Westinghouse Broadcasting And Cable, Inc. (Wbz-Tv)

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 205 (N.L.R.B. 1987)

WESTINGHOUSE BROADCASTING
Westinghouse Broadcasting and Cable , Inc. (WBZ-
TV) and Local 1228 , International Brotherhood
of Electrical Workers, AFL-CIO. Case 1-CA-
21594
31 July 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 24 July 1986 Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' the Charging Party filed cross-exceptions
and a supporting brief,2 and the General Counsel,
the Charging Party, and the Respondent filed an-
swering briefs.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge 's rulings , findings,3 and
conclusions, 4 to modify his remedy, 5 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Westing-
house Broadcasting and Cable, Inc. (WBZ-TV),
Boston, Massachusetts , its officers, agents , succes-
1 The Respondent has requested oral argument The request is denied
as the record , exceptions, and cross -exceptions including the transcripts,
exhibits , and briefs, adequately present the issues and the positions of the
parties
2 The Charging Party's motion to strike the Respondent 's exceptions
and supporting brief is denied The Charging Party also moved to strike
the testimony of the Respondent 's controller , Robert Houghton , concern-
ing the cost to the Respondent of cab and courier nonemployee service
for 1982, 1983, and 1984 The Respondent does not oppose this motion
Under these circumstances , the motion is granted
8 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
4 Under any of the analyses set forth in Otis Elevator, 269 NLRB 891
(1984), we find that the Respondent 's decision to subcontract its news
courier work was a mandatory subject of bargaining See Century Air
Freight, 284 , NLRB 731 (1987) In so concluding , we find it unnecessary
to pass on the judge 's alternative rationale , which we construe as dicta,
that the Respondent 's decision was a mandatory subject of bargaining
under the plurality opinion in Otis even if the Respondent 's decision did
not turn on labor costs
s In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 will be com-
puted at the "short -term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
205
sors , and assigns , shall take the action set forth in
the Order.
Genevieve Pluhowski, Esq., for the General Counsel.
Don T. Carmody, Esq., of New York, New York, for the
Respondent.
Alan H. Shapiro, Esq., of Boston, Massachusetts, for the
Union.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Boston , Massachusetts, on
4-6 March 1985, 3-4 December 1985, and 3 February
1986, pursuant to a charge filed on 21 November 1983 by
Local 1228, International Brotherhood of Electrical
Workers, AFL-CIO (the Union); and a complaint issued
on 27 December 1984 against Respondent Westinghouse
Broadcasting and Cable, Inc. (WBZ-TV) (the Compa-
ny). The complaint alleges that after the Union won a
representation election in a unit of the Company's news
department couners, the Company violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act), by subcontracting the news courier work without
prior notice to the Union and without having afforded it
an opportunity to negotiate and bargain with respect to
the decision to subcontract and the effects of such sub-
contracting . The Company requests dismissal of the com-
plaint on the grounds, inter alia, ( 1) that in the represen-
tation election , a challenge was improperly sustained to a
possibly determinative ballot; (2) that all the conduct at-
tacked in the complaint occurred before the Union's cer-
tification; (3) that the Union's certification is invalid be-
cause , inter alia, it was issued when no unit employees
remained in the Company 's employ ; and (4) that the de-
cision to subcontract is not a mandatory subject of col-
lective bargaining.
On the basis of the entire record, including the de-
meanor of the witnesses , i and after due consideration of
the briefs filed by the General Counsel, the Union, and
the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation which operates a tele-
vision station in Boston, Massachusetts . During calendar
year 1983, the Company's gross revenues exceeded
$100,000. During that same year , the Company was a
member of national wire services and advertised national
brand products. When stipulating to the conduct of the
representation election previously referred to, the Com-
i Pursuant to Sec 9(d) of the Act, the record in the representation
case is a part of the record before me The witnesses who testified in the
representation case hearing, which was conducted by Hearing Officer
Anthony D DaDalt after the election , included three who did not testify
before me-namely, Thomas Weed, Frederick Boudreau , and Joseph P
Gerstner Because of the Board 's disposition of the representation case
(see infra part II ,A, especially fn 3), regarding these three witnesses no
credibility issues need to be resolved.
285 NLRB No. 32
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany stipulated that it annually receives at its Boston,
Massachusetts location materials valued in excess of
$50,000 directly from points outside Massachusetts. I find
that, as the Company concedes, the Company is engaged
in commerce within the meaning of the Act, and that as-
sertion of jurisdiction over its operations will effectuate
the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Representation Proceedings
The Company is a wholly owned subsidiary of a cor-
poration which has almost the same name, and which is
referred to herein as WBC. By letter dated 23 June 1983
to J. C. Gidel, who is WBC's director of labor relations,
Union Business Agent Kenneth F. Flanagan stated that
the Union represented the Company's couriers, and
asked the Company and WBC to recognize and bargain
with the Union as their representative. The letter went
on to state that if "the Company" was unwilling to
extend such recognition, "the Union is prepared to prove
its majority in an election conducted by" the Board, and
that the Union had filed the appropriate petition with the
Board. The letter concluded, "I hope to hear from you
shortly so that we can proceed to bargain on behalf of
these employees." There is no evidence that this letter
was ever answered. The complaint does not allege that
the Company violated the Act by failing to respond.
On the same day that this letter was sent by the
Union, it filed a representation petition with the Board.
On 18 July 1983 the Regional Director for Region 1 ap-
proved a stipulation for certification on consent election
executed by the Company and the Union on 13 July
1983. The stipulation specified a unit limited to full-time
and regular part-time news department couriers, which
unit is fully described infra in Conclusion of Law 3; and
stated that the payroll period for eligibility would be 16
July 1983. The election was conducted on 19 August
1983, the date specified in the stipulation. The tally of
ballots issued on that day showed that one ballot had
been cast for the Union, and three ballots had been chal-
lenged. On 24 August 1983 the Union filed timely objec-
tions to conduct affecting the results of the election. On
12 October 1983, after conducting an investigation, the
Regional Director issued a report on objections and chal-
lenged ballots. He recommended that the Union's objec-
tions be overruled, that two of the challenges be sus-
tained, and that a hearing be conducted regarding the
challenged ballot of Wayne Chou, who had admittedly
been a courier on the day of the election but whose
status on the eligibility date (16 July 1983) was in dis-
pute. On 24 October 1983 the Union filed exceptions to
the Regional Director's recommendation that the chal-
lenges to the ballots of Royden Lungelow and Peter
McDonagh be sustained. The Union based this conten-
tion on the ground that these two employees' separation
on 5 August 1983 had been motivated by their union ac-
tivity. In support of this contention, the Union attached
to its exceptions its then-pending appeal of the Regional
Director's action in dismissing , on 6 October 1983, the tratively dismissed
Union's 24 August 1983 charges alleging that the Com-
pany had unlawfully terminated these employees.
On 9 November 1983 Attorney Don T. Carmody filed
with the Regional Director and the Board a motion on
the Company's behalf (1) to dismiss the petition, or (2) in
the alternative, for leave to withdraw from the election
stipulation and for a reopening of the investigation of the
petition, or (3) in the alternative, for a reopening of the
investigation of Chou's challenged ballot. In support of
the first two branches of this motion, Carmody alleged
that the election unit presently consisted of two employ-
ees, went on to allege that after the election the Compa-
ny had decided to terminate both of these employees,
further alleged that their final date of employment would
be no later than 2 December 1983 and, finally, alleged
that the Company had no present intention of employing
unit employees in the future. In support of the third
branch of this motion, Carmody alleged that he wanted
to submit unspecified evidence which had allegedly been
unavailable to the Company when the Regional Director
had issued his report on challenged ballots. On 18 No-
vember 1983 the Union filed an opposition to this
motion. By letter to Carmody dated that same day,
Union Attorney Joseph G. Sandulli requested "that the
Company rescind the decision to terminate the Couriers,
that it restore the status quo and that it bargain with the
Union about all mandatory subjects put into issue by its
desire to terminate Couriers." As previously noted, on 21
November 1983 the Union filed the charge herein, which
alleged that the Company had violated Section 8(a)(1)
and (5) of the Act by announcing on 9 November 1983
its determination to terminate the employment of all
couriers effective 2 December 1983.2
As discussed infra, the Company transferred news cou-
rier Chou to a nonunit job effective 28 November 1983
and laid off its only remaining news courier, Thomas
Weed, on 2 December 1983. By letter to Sandulli dated 5
December 1983, Company Attorney Carmody stated:
I am in receipt of your letter of November 18,
1983.
I am not-in a position to provide you any further
reply to your correspondence, other than to for-
ward this acknowledgement that I have received
the letter, so as to avoid any impression that [the
Company] has recognized, or is prepared to recog-
nize, [the Union] as the collective bargaining repre-
sentative for the news couriers formerly employed
by [the Company].
As you are aware, a question concerning repre-
sentation of these former employees remains unde-
cided before the National Labor Relations Board in
[the representation case].
On 12 December 1983 then General Counsel William
A. Lubbers denied the Union's appeal of the Regional
Director 's action in dismissing the charges that chal-
lenged voters Lungelow and McDonagh had been un-
lawfully separated before the election . On 11 April 1984
2 This charge also included an 8(a)(3) allegation, which was adminis-
WESTINGHOUSE BROADCASTING 207
the Board adopted the Regional Director's findings and
recommendations as to the objections and challenges, or-
dered a hearing with respect to Chou's ballot, and denied
the Company's motion of 9 November 1983, without
prejudice to its renewal at the representation case hear-
ing.
The representation case hearing with respect to Chou's
ballot was held on 31 May and 1 June 1984, before Hear-
ing Officer Anthony D. DaDalt. At that hearing and in
what amounted to a posthearing brief, the Company re-
newed its 9 November 1983 motion. DaDalt's "Report
on Challenged Ballot," issued on 6 July 1984, recom-
mended that this motion be denied, that the challenge to
Chou's ballot be sustained because he did not join the
bargaining unit prior to the eligibility date, and that a re-
vised tally of ballots and a certification be issued.3 The
hearing officer stated, in part:
The Employer contends that since the bargaining
unit no longer exists, the Board has no authority to
issue a certification and that dismissal of the petition
or withdrawal from the Stipulation by the Employ-
er is appropriate. The Employer claims that Cutter
Laboratories, 116 NLRB 260 (1956), is dispositive of
this matter. In Cutter, after an election, but before a
certification, the unit had been permanently reduced
to one (1) employee. While the Board dismissed the
Petition in Cutter, in doing so it specifically relied
on the fact that no unfair labor practice charge re-
lating to the reduction of the unit had been filed.
In the instant case, there is currently pending in
the Regional Office unfair labor practice charge
filed by the [Union] which alleges that the Employ-
er violated Section 8(a)(1) and (5) of the Act by
failing to bargain over its decision to eliminate the
work of the news couriers and also over the effects
of that decision. t 6 Whether the Employer had an
obligation to bargain concerning its decision and/or
the effects thereof would turn, at least in the first
instance, upon whether the [Union] won the elec-
tion on August 19.17 Thus issues relating to both
the question concerning representation raised by the
instant petition and those relating to the election
held pursuant to the Stipulation must be determined
in order to ascertain the legal import of the Em-
ployer's alleged failure to bargain over its decision
to discontinue its news courier operation and over
the effects thereof. The pendency of the aforemen-
tioned unfair labor practice charge and the implica-
tions thereof clearly distinguish the instant case
a The hearing officer rejected the Company 's contention (based on
Banner Bedding, 214 NLRB 1013 (1974)), that the Board should honor an
alleged prestipulation agreement between the Company and the Union
that Chou was an eligible voter Pointing to a union witness' denial of a
company witness' testimony that an oral agreement to that effect had
been made , the hearing officer found "that even if the weight of the evi-
dence favored the existence of an oral agreement , it was not the type of
unequivocal evidence that would be considered as determinative", he
cited Cooper Mattress Mfg Co, 225 NLRB 200 (1976), and Hunt- Wesson
Foods, 220 NLRB 922 (1975) The representation case transcript shows
that as to this issue, the company witness was Gersten (who did not testi-
fy before me) and the union witness was Flanagan (who did testify before
me)
from Cutter and other cases cited by the Employer
in support of its Motion. Moreover, research dis-
closes no case where the Board has dismissed a peti-
tion and/or permitted withdrawal from a Stipula-
tion under circumstances even remotely similar to
those present here.18
Accordingly, I conclude that the Employer's
Motion that the petition be dismissed or in the alter-
native that it be allowed to withdraw from the Stip-
ulation in view of the elimination of the unit should
be denied.
16 Case No 1-CA-21,594 [the instant unfair labor practice
case]
17 An employer acts at its peril by making unilateral changes
during a time when challenges to an election are pending . [Inject-
ed] Rubber Products Corp. 258 NLRB 687, 696-697 (1981). [On 28
September 1984, after the Hearing Officer's report , the Board
modified its original Injected Rubber decision in respects immaterial
here, 272 NLRB 418 ]
18 Dismissal of a petition based upon the imminent elimination
of the voting unit is premised by the Board upon the fact that no
useful purpose would be served by holding an election . See for e g
MB Kahn Construction Co, Inc, 210 NLRB 1050 (1974)
On 19 October 1984 the Board adopted the hearing of-
ficer's findings and recommendations. The Board denied
for the reasons set forth by him the Company's motions
to dismiss the petition, to allow the Company to with-
draw from the stipulation, and to reopen the investiga-
tion of the petition and/or challenged ballot. The Board
certified the Union as the representative of the Compa-
ny's news department couriers. As of 4 March 1985 the
Company had never offered to bargain with the Union
about the decision to subcontract the courier work or
about the effects of that decision on the courier employ-
ees.
B. The Alleged Unfair Labor Practices
1. The Company' s elimination of the staff news
courier positions
The responsibilities of the newsroom couriers em-
ployed by the Company prior to 2 December 1983 were
to pick up from and deliver tapes to camera persons, to
pick up and deliver newsroom accessories, equipment,
and press releases to and from the newsroom and news
reporting sites, to run errands for newsroom staff as ne-
cessitated by their work schedules, and to chauffeur on-
camera news personnel and technicians to and from the
newsroom and news reporting sites. These functions
were performed in preparation of the Company's five
daily news programs during the week, which aired at
5:30 a.m., noon , 5:30, 6, and 11 p.m., and news programs
on weekends, which aired Saturday at 6 and 11 p.m. and
Sunday at 11:30 a.m., 6, and 11 p.m.
Prior to 2 December 1983, when the staff newsroom
couriers were not available to perform all of the above-
described functions, the services of the staff newsroom
courier would be supplemented by taxicab drivers who
would be called by the newsroom assignment editor.
Thus, couriers were available each day to the newsroom
staff during the entire period of time during which such
staff was engaged in news gathering functions.
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The newsroom couriers received their assignments
from the assignment editor, who was stationed at the as-
signment desk in the Company's newsroom. After the
completion of each assignment, the newsroom courier
would report to the assignment editor for his next assign-
ment.
The newsroom employed staff news couriers since at
least 1977, although (perhaps) not continuously from
1977 to 1981.
About September 1982 the Company, in partnership
with ABC Video Enterprises, set up a satellite news
channel (SNC) to telecast news around the clock. In
connection with this expanding operation, the Company
added to its staff six technicians , four "talent," and one
producer. The establishment of SNC did not lead to the
addition of any couriers, and the cost of couriers was not
included in the SNC budget. However, couriers may
have performed services for SNC in terms of the deliv-
ery of tapes.
About October 1983 the Company and ABC Video
decided to sell SNC. At that time, the Union and the
Company were parties to a current collective-bargaining
agreement covering the Company's technicians. By letter
dated 13 October 1983 to J. C. Gidel, who is WBC's di-
rector of labor relations, Union Business Manager Flana-
gan stated that he had received news reports about the
agreement to sell, and asked the Company to,negotiate
about the effects of the sale on union members. By letter
dated 1 November 1983, Gidel stated that any personnel
changes that affected the contractual relationship be-
tween the Union and the Company would be dealt with
in accordance with the current agreement. As discussed
infra, nobody in this unit was laid off in consequence of
the sale. The General Counsel does not contend that the
decision to sell SNC constituted a mandatory subject of
collective bargaining.4
Customarily, company officials and WBC's officials
confer every September, at WBC's corporate headquar-
ters in New York City, about the Company's budget for
the forthcoming fiscal (i.e., calendar) year. During these
conferences, WBC decides what personnel "body count"
the Company will be expected to maintain during the
forthcoming calendar year. "Body counts" include mem-
bers of management and persons who are parties to indi-
vidual contracts of employment, but do not include
either the employees of independent contractors, or indi-
vidual persons (such as freelance producers) who per-
form personal services as independent contractors. Sepa-
rate "body counts" are determined for full-time and part-
time employees. 5 In accordance with this practice, about
September 1983, before the sale of SNC had been decid-
ed on, the Company's vice president and general manag-
er (Thomas Goodgame), the Company's controller
(Robert Houghton), and the Company's vice president of
sales and marketing went to New York to conduct such
a conference. Goodgame testified that during this confer-
ence, WBC decided that as to full-time employees, the
Company's "body count" for 1984 would be "approxi-
mately 285 people, I may miss a person or two." The
record fails to show the prescribed "body count" for
part-time employees.
By memorandum dated 12 October 1983, Daniel L.
Ritchie, who is WBC's principal executive officer, ad-
vised Gidel that the SNC sales transaction would likely
be closed on 27 October 1983. The memorandum further
stated, in part:
Employees associated with the [SNC] service
will be carefully considered for jobs with the ABC
and Group W organizations.6 We are making every
effort to minimize the impact of this decision on
SNC employees. We will pay severance benefits, of
course, and do all we can to support SNC people's
transition to new career opportunities.
Group W Satellite Communications is proceeding
with plans to enter the regional sports pay-program-
ming business . GWSC intends to begin its cable
sports, services with the participation of the Balti-
more Orioles and Seattle Supersonics. GWSC is
also moving ahead with its sales and marketing ef-
forts on behalf of the The Nashville Network.
Launched in March of this year with a record
number of subscribers for a start-up service, the
Nashville Network now has more than 10 million
subscribers, and is projected to reach between 11
and 12 million by year's end.
As a witness initially called as an adverse witness by
the Union, Goodgame initially testified that an order to
eliminate 11 employees came from either Ritchie's 12
October memorandum or "through conversations with"
WBC; and that "I believe" Goodgame had specific con-
versations with people in WBC regarding the need to
eliminate 11 positions. After union counsel pointed out to
Goodgame that Ritchie's 12 October memorandum does
not state that 11 persons must be let go, and asked Good-
game "where did the requirement come from that 11 em-
ployees had to be cut?" Goodgame testified, "The specif-
ic conversation I couldn't specifically recall, but I can
assure you that the conversations were had in terms of
what is expected of us"; he further testified, "From a
purely business standpoint, it only makes sense that if
you had created 11 positions when [you] devised the sat-
ellite news channel operation, that you have 11 persons
that you didn't need prior to that, and it would make
sense that you didn't need those 11 people afterward."
Goodgame further testified (without contradiction or
corroboration) as follows: Between 13 and 20 October
1983, the president of the "Television Station Group,"
Larry Fraiberg, told Goodgame that because the institu-
tion of SNC had caused the addition of 11 people, the
sale of SNC meant that 11 people did not need to be
there any longer, and that there were 11 people the
Company was no longer authorized to have. Neither
Fraiberg nor anyone else from WBC specified the posi-
tion of courier or any other positions. On an undisclosed
4 The General Counsel and the Company so stipulated. The Union re-
fused to join in that stipulation.
5 A third "body count" is determined for casual employees
6 The record indicates that "Group w organizations" consist of the
Company and some of its corporate affiliates.
WESTINGHOUSE BROADCASTING 209
date prior to 9 November 1983, at Goodgame's request,
"New York" said that the 11 people to be got rid of did
not necessarily have to be the same 11 people who had
been added because of the SNC operation.'
By memorandum dated 17 October 1983, satellite news
feed coordinator Charles Mann urged News Director
Stanley Hopkins to continue the use of satellite technolo-
gy notwithstanding the sale of SNC. Mann suggested,
inter alia, that continued use of such technology might
save the Company money in freighting programming ma-
terial and in obtaining signals for Boston Celtic basket-
ball games. That same day, Hopkins sent a copy of this
document to then Station Manager George L. Miles Jr.,
together with a covering memorandum which stated that
the document "clearly demonstrates . .. the need for a
full-time [satellite] coordinator's position."
By memorandum dated 18 October 1983 to then Sta-
tion Manager Miles (with courtesy copies to Goodgame
and Houghton), Engineering Director George St. Andre
stated, in substance, that four of the six "technical shifts
assigned to SNC" could be eliminated; but that the elimi-
nation of the remaining two, who had been used in
crossover assignments , would require the remaining per-
sonnel to take over the work of supplying a fourth
camera on two daily news broadcasts, to provide remote
control of the earth station, and to perform more news
tape editing. By memorandum dated 19 October 1983 to
Goodgame and Miles (with courtesy copies to St. Andre,
News Director Hopkins, and three other individuals
whose jobs are not shown by the record), Production
Manager Bob Glover stated that both SNC directors
could be eliminated if a part-time staff associate director
were hired; but that if this net reduction were made, the
Company would have to be prepared (1) to spend, for
overtime and freelance help, money that had not been
adequately forecast in the 1983 and 1984 budgets; (2) for
longer response time to some "unique programming and
news needs"; (3) for "some slippage in the quality of our
air product"; (4) to curb plans to develop certain new
program concepts and projects; and (5) for possible in-
ability to achieve equal employment opportunity goals.
By memorandum dated 7 November 1983, Station
Manager Miles advised Goodgame that Miles wanted to
maintain news and programming efforts at an existing
level that had been made possible by SNC's "capabili-
ties" and would be impossible if the Company eliminated
all 11 employees currently assigned to SNC. Regarding
such employees, the memorandum recommended retain-
ing "3-1/2 employees"-namely, the satellite/newsfeed
coordinator, the earth station control engineer, a "direc-
tor 1/2 time," and a news editor "(required only half
7 Fraiberg did not testify In March 1985 the Company filed a motion
to quash a subpoena, issued at the Union's request, for documents which
included, "Regarding the effects on [the Company] of the sale of SNC,
any advisements from [WBC] regarding personnel changes, including
elimination of personnel, positions, or replacement of employees with
non-Company personnel " The Company did not then assert that no such
documents existed, but rested its motion solely on relevancy grounds I
found the subpoenaed material to be relevant, and denied the motion to
quash However, on the Company's appeal dated 2 August 1985, the
Board directed me on 3 September 1985 to quash the subpoena on the
ground of relevance Thereafter, Goodgame testified that the directive
from "New York" about eliminating 11 positions was not in writing
time; however, union agreement restricts the hiring of
part-timers on a full-time basis)." Miles' memorandum
went on to state:
We have been instructed by David Lalich, Con-
troller, Television Station Group that we were to
make up the 3-1/2 employees within the station op-
eration through lay-off or elimination of position.
After extensive examination of our total station per-
sonnel count, I recommend that the following posi-
tions be eliminated, inasmuch as they are the posi-
tions which can be eliminated with the least degree
of disruption to our station operations and with the
least direct impact upon our programming . . . .
The positions listed in the memorandum were (1) the
account executive designated to sell SNC; (2) the person-
nel manager (a vacant job, which Miles recommended be
left vacant until "we are able to find another position
with less priority"); and (3) the part-time courier and the
full-time courier ("Note: This function can be performed
by an outside service"). The memorandum concluded,
"We are in the process of moving on the above adjust-
ments, and the separation and absorption of the SNC em-
ployees have been worked out in accordance with the
Company's instructions."
On an undisclosed date between 13 October and 9 No-
vember 1983, News Director Hopkins, after reviewing
all positions in his department and (perhaps) consulting
Assistant News Director Randy Covington, recommend-
ed to Goodgame that the satellite news coordinator posi-
tion and a news editor position should be retained, and
that "we could do without the courier positions."
Goodgame testified that it was he who made the final
determination as to which positions to eliminate, and
which individuals to lay off, in consequence of the 11-
person "body count" reduction that (he had allegedly
been told) was called for by the sale of SNC. Concern-
ing what action was taken, the record shows as follows:
1. Goodgame credibly testified that the following
4 persons who were involved with SNC ended up
with full-time employment in other areas of the sta-
tion: an unidentified news editor, an unidentified di-
rector, the satellite news feed coordinator (Charles
Mann), and the earth station control engineer
(Philip Stoddard). There is no evidence that the
transfer of any of these 4 caused the termination of
anyone else or constituted the filling of pre- existing
vacancies.
2. Goodgame credibly testified that in conse-
quence of the sale of SNC, the position of personnel
manager, which had been vacant for some weeks,
was abolished.
3. Goodgame credibly testified that in conse-
quence of the sale of SNC, the Company released
the salesman (Hershel Norwood) who had been sell-
ing for SNC.
4. Goodgame testified that 7 or 8 persons (in ad-
dition to Norwood) who worked on SNC were in
fact terminated. He testified that he could not recall
the names of any of them; that two of them were
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"talent"; and that "just exactly how the others
broke down I'm not sure." As previously noted,
Glover's 19 October memorandum to Goodgame
had stated that with specified disadvantage to the
Company, both SNC directors could be eliminated
if a part-time director were hired. Because one SNC
director was retained, I infer that the other SNC di-
rector was laid off, and that he was among these 5
or 6 "others" whom Goodgame said he could not
break down. As to whether any technicians were
laid off, Goodgame testified, ". . . my assumption
would be absolutely, but I can't attest to that. I
couldn't state that was an absolute fact." Employee
Harvey Morris, who is the union president and was
the SNC engineering crew chief, testified that 7
technicians, including himself and Stoddard, worked
with SNC;11 that none of them was laid off as part
of SNC's "demise"; that he would have been aware
if any full-time technicians had been laid off as part
of SNC's "demise"; that no full-time technicians
were laid off at that time; and that the only techni-
cians he could think of who were laid off at the
time of SNC's "demise" were two vacation relief
technicians (James O'Donnell and Michael Couto).
As previously noted, as to Stoddard, Morris' testi-
mony was corroborated by Goodgame. Goodgame
testified that the summer relief technicians were not
included in the "body count" which he had to
reduce by 11. See supra fn. 5.
In short, the testimony as summarized up to this point
shows that (laying to one side the one full-time courier
and the one part-time courier in the bargaining unit), the
sale of SNC unquestionably led to the abolition of one
vacant job (personnel manager) and the termination of
two SNC "talent," one SNC salesman , and one SNC di-
rector-that is, elimination of five "bodies." I accept
Morris' testimony that none of the seven technicians who
worked on SNC was terminated.9 Accordingly, I con-
clude that Goodgame gave equivocal testimony other-
wise to conceal either that the Company had never re-
ceived any 11-employee "body count" directive, or that
the directive was never fully complied with. Shattuck
Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). I infer that in addition to the SNC personnel al-
ready specified, no more than three more were terminat-
ed.
5. Goodgame testified that the position of full-
time news courier was abolished, and that the only
incumbent in that position (Chou) was promoted to
a vacant position as production assistant. I credit
Goodgame's testimony (partly corroborated by
company records) that such action was taken. As to
his tendered reasons for such action, see infra "The
Remedy."
8 The other five were David Posmona, Marton Sanders, Wayne Miller,
Dennis Godreau, and Julie Volpe
8 I so find for demeanor reasons, because Morris' testimony was far
more specific than Goodgame's about names and jobs, and because the
Company did not produce its payroll records as to the matters Morris
testified about
6. Finally, Goodgame testified that the termina-
tion of part- time courier Weed, and the abolition of
his job, were effected as part of the layoff which
was occasioned by the sale of SNC.1 ° However, al-
though station manager Miles' 9 November memo-
randum to Goodgame recommended the layoff of
part-time courier Weed after "extensive examination
of our total station personnel count," Goodgame's
testimony strongly suggests that WBC's alleged Oc-
tober 1983 directive referred to 11 full-time
"bodies" (Tr. 684-688). Goodgame testified that
Weed was the only person not working in SNC
who lost his job because of the sale of SNC.
For the calendar year 1983, all the news couriers com-
bined earned about $25,000.11 During that same year,
the Company spent about $88,000 for taxicab courier
service. Also during that same year, the Company's total
station budget was about $30 million and the news de-
partment budget was between $5 million and $10 mil-
lion.' 2 The parties stipulated that the cost to the Compa-
ny of the cab and courier service, whether employee-
provided or not, is an insignificant portion of the entire
budget of the news department and has so been at all
material times.
3. Company methods used after abolishing the
courier jobs
News Director Hopkins credibly testified that after the
Company had decided to eliminate its own couriers but
before their jobs were abolished, "we were talking to not
only courier services but we were talking to cab compa-
nies, with the realization that at some point in December
[1983] we would be without our internal courier serv-
ice."t3 Further, he testified that before entering into any
arrangement with a courier service, there was "obvious-
ly" a discussion of what their charges were going to be,
but that there was no cost estimate on a weekly, month-
10 Weed's personnel records state that he received I week's severance
pay, as previously noted, Goodgame had advised Gidel that "severance
benefits" would be paid to separated employees "associated with" the
SNC service The Company' s brief states (p 7) that on 7 November,
Weed "was advised of the Company 's decision to eliminate the position
of news courier effective December 2, 1983 At that time, Mr.
Weed offered to submit a bid to provide news courier service, which was
encouraged by [news director ] Hopkins, although never received " The
brief contains no record references as to any such 7 November conversa-
tion, nor can I find any evidence about it
i 1 This figure includes Chou, who worked as a courier for 19 weeks at
$248 a week
12 The Company 's total costs for courier service were higher in 1984
than in 1983 However, the Company refused to provide any information
about the total news department budget, and the total operating budget
of the station for 1984 Accordingly, the evidence in the record would
not warrant an inference that the increase was due to labor cost consider-
ations rather than (for example) to an increase in the Company 's use of
courier service owing to increased station activity
11 He so testified after Controller Houghton, in Hopkins' presence,
identified invoices from Grace Courier dated, respectively, 25 November
1983 (Chou's last day of work as a courier), and 2 December 1983 (the
day that the remaining courier, Weed, was laid off), and testified that
each invoice was probably for a week preceding the date of the invoice
Previously , Hopkins had testified that it was not until after eliminating
the staff couriers that there was discussion about how much the outside
couriers ' charges would be
WESTINGHOUSE BROADCASTING 211
ly, or annual basis.14 Also, Hopkins credibly testified
that during this period, "I believe" the company repre-
sentatives got in touch with more than one courier serv-
ice, as well as various cab companies.
Hopkins testified that the Company' s arrangements
with the courier services were made by TV News Unit
Manager Paulette Lane and by then Assistant News Di-
rector Randy Covington, who (Hopkins testified) at the
time of the hearing was still working for the Company,
but in a different capacity.15 Covington did not testify.
Lane's duties consist of processing all expenses in the
news department; she answers to Hopkins, the assistant
news director (at that time, Covington), and the control-
lers' office. Pursuant to a subpoena from the Union, Lane
testified that during this period, the Company did not so-
licit courier services; that Grace was selected because it
solicited Covington by telephone; and that she was never
directed to make any comparison between different cou-
rier companies' rates. I do not credit her uncorroborated
testimony set forth in the preceding sentence, for de-
meanor reasons , because it seems inherently improbable
(particularly in view of her duties), and because it is dif-
ficult to reconcile with Hopkins' testimony.
At a staff meeting of the news department in February
1984, someone on the staff told News Director Hopkins
that there had been some trouble getting a tape back in a
timely fashion. Hopkins said that under the arrangement
with Grace, couriers were to be available around the
clock and 7 days a week. Someone said that it seemed as
if they were not available on weekends because a tape
had to go back by taxi 1 day, and it almost "missed air."
Someone asked whether there would be staff couriers
again , a situation where there was someone on weekends
who did that kind of work. Hopkins replied no, that the
courier position was eliminated "due to the demise of
SNC"; but that the contract couriers from Grace cost
dust about the same as the staff couners had cost, and
that the news department had broken even "staffwise"
because it had been able to retain Mann as a satellite co-
ordinator. Lane credibly testified that during the time
when Grace Courier was performing courier service for
the Company (that is, during about the last 6 weeks of
1983 and the first 9 months of 1984), there had been
times when the Company had been very close to losing a
story, or had been late in airing the story, because, if no
courier was sitting in the newsroom to be used, the
Company would telephone Grace Courier for a courier
14 He so testified after testifying, in response to questions by company
counsel, that Hopkins did not discuss with Goodgame about October
1983 how much the news courier function cost, that Hopkins did not
consider this factor in deciding what positions to eliminate as a result of
the SNC sale , that he did not conduct about this time, nor was he asked
to conduct, an analysis of the cost of the news courier functions, that he
did not estimate at all what it might cost the station after the elimination
of the news courier unit for the station to provide the service of news
couriers, and that other than discussing rates on a per-trip basis , he never
asked Grace Courier, Choice Courier, or any of the taxi companies for an
estimate of what the cost would be to the Company , following the elimi-
nation of the position of news courier , for providing the function of news
courier service Controller Houghton credibly testified that nobody from
the Company ever asked him to analyze the costs to the Company of the
provision of news courier services, and that he never of his own volition
conducted such an analysis
15 Covington was working in Philadelphia , in a television station there
"right away"; and "Right away to Grace would mean as
soon as we can dispatch one from our home office and
get one over there to you . . . and to us right away
meant we needed one in five to ten minutes, we had a
story to get to."
Until October 1984, the Company had its courier work
performed by Grace Courier and a taxi service. Thereaf-
ter, the Company had its courier work performed by
Choice Courier and a taxi service. Concerning how this
change was made, and the reasons for it, the record con-
tains the following evidence:
Lane credibly testified that on an undisclosed date
before September 1984, she and Covington determined
that the Grace Courier service was too expensive, and
decided to look around for another courier service."'
Further, she credibly testified that News Director Hop-
kins had expressed concern over the cost of Grace's cou-
rier service and its periodic unavailability when needed,
and that he knew that she and Covington were evaluat-
ing the courier costs and were looking into moving the
courier service to another company. Hopkins testified
that the arrangements to change from Grace Courier to
Choice Courier were made by her and Covington, and
that before this change was made, someone under Hop-
kins "obviously" discussed what Choice's per-trip
charges were going to be. Although Lane credibly testi-
fied that she had on file the names of a couple of courier
services who had telephoned to solicit business from the
Company, she further testified (without contradiction or
corroboration) that she did not call any of them. She ex-
plained this alleged omission on the ground that "Choice
Courier had, in the interim, given us a call." Still without
corroboration or contradiction, she testified that she and
Covington decided to change to Choice because the lo-
cation of Choice's headquarters enabled it to supply
couriers on no more than 10 minutes' notice, whereas the
location of Grace's headquarters usually made it impossi-
ble to supply couriers on less than 25 minutes' notice. I
do not credit Lane's testimony that she and Covington
did not make inquiries of other courier services before
changing to Choice, for demeanor reasons; because such
testimony seems inherently improbable; because it is diffi-
cult to reconcile with her testimony that it was the ex-
pense of Grace Courier's service that had triggered the
search for a new courier service and that Hopkins knew
about this search and about her and Covington's concern
with costs; because it is difficult to reconcile her discred-
ited testimony with Hopkins' testimony about "obvious"
discussions with Choice; and because her testimony was
not corroborated by Covington. However, on the basis
of credible parts of her testimony, I do find that the
changeover was made partly because Choice's headquar-
ters was closer to the Company's studio than were
16 She testified that the Company had all its courier work performed
by taxi companies for an undisclosed period after eliminating the Compa-
ny's couriers , and that she and Covington eventually determined that this
was cheaper than using both taxicabs and Grace Courier However, the
Company's records establish that the Company began to use Grace Cou-
ner shortly before Chou's transfer from his courier job Moreover, there
is no evidence that Lane or Covington ever considered using taxi service
alone
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Grace's headquarters and, therefore, she and Covington
anticipated prompter service
The individuals who have performed the courier serv-
ices since 2 December 1983 perform the same job func-
tions as did the news couriers employed by the Compa-
ny. They continue (as did the news couriers employed
by the Company) to receive their job assignments from
the assignment desk editor. Courier service functions are
still supplemented with taxicabs when necessary. Al-
though the employee couriers used company vehicles
and the outside couriers use their own vehicles, the
elimination of the staff courier positions did not necessi-
tate or lead to the sale of any assets, vehicles, or equip-
ment. Courier service is still available to the newsroom
staff during the entire time that the news gathering func-
tion is being performed
C Analysis and Conclusions
1. Company's contention that complaint be
dismissed as allegedly deficient on its face
After 6 days of hearing between 4 March 1985 and 3
February 1986, the Company's April 1986 brief contends
for the first time that the December 1984 complaint
should be dismissed because it is allegedly deficient on its
face. So far as relevant here, the complaint has at all
times alleged that the Company "subcontracted the news
courier work performed by the Unit . . . without prior
notice to [the Union] and without having afforded it an
opportunity to negotiate and bargain as the exclusive
representative of [the Company's] employees with re-
spect to the decision as to such acts and conduct and the
effect of such acts and conduct," in violation of Section
8(a)(1) and (5). The Company relies on two cases decid-
ed before the beginning of the hearing-namely, R. L.
Broker & Co., 274 NLRB 709 (1985), and Otis Elevator
Co., 269 NLRB 891 (1984). The Company's brief states
that the complaint is deficient because it "fails to allege
whether or not the [Company's] decision involved a
change in the nature and direction of a significant facet
of the [Company's] business, that the decision was moti-
vated by labor costs, that the decision was amenable to
resolution through the process of collective bargaining
and that the potential benefits of bargaining outweighed
the burdens that such bargaining would have placed
upon the [Company]" (Br. 24-25).
The General Counsel averred in her opening state-
ment , before any evidence had been put in other than the
formal papers and a stipulation as to certain facts, that
"the decision to eliminate the staff . . . news courier po-
sition does not involve [a] change in the nature and di-
rection of [a] significant facet of the employer' s business,
was motivated either directly or indirectly by labor
costs, and was clearly amenable to resolution through
the collective bargaining process. And the benefits of the
collective bargaining outweigh the burdens that bargain-
ing would have placed on the employer." As discussed
infra part II,C,3, the record contains evidence relating to
all these matters; nor does the Company claim that the
complaint failed to apprise it of what conduct by it was
alleged to be unlawful. I find the complaint sufficient to
withstand a motion to dismiss following a hearing during
which all parties had an opportunity to put in their evi-
dence. See American Newspaper Publishers Assn. v.
NLRB, 193 F.2d 782, 799-800 (7th Cir. 1951), affd. 345
U.S. 100 (1953); Teamsters Local 662 (Rice Lake Cream-
ery) v. NLRB, 302 F.2d 908, 912 (D.C. Cir. 1962), cert.
denied 371 U.S. 827 (1963); Boilermakers Local 363
(Fluor Corp.), 123 NLRB 1877, 1913-1914 (1959).
The Company errs in relying on Broker, which merely
held a complaint insufficient to support a motion for
summary judgment on the basis of the respondent's fail-
ure to file an answer. Although finding the complaint al-
legations insufficient to enable the Board to determine
whether the decision to subcontract in fact required bar-
gaining, the Board did not dismiss the complaint (as the
Company asks me to do here), but merely remanded the
proceeding to the Regional Director for "appropriate
action." Whatever may have been the "appropriate
action" in Broker, the "appropriate action" is a determi-
nation on the basis of the record which was made within
an 11-month period after Broker. I note that the omis-
sions complained of by the Company correspond to its
own interpretation of Otis and its own view of the legal
principles which govern this case, which interpretation
and principles are not quite the same as those urged by
the General Counsel and the Union (see infra part
II,C,3) Accordingly, I reject the Company's contention
that the complaint should be dismissed as insufficient on
its face.
2. Whether Company was under duty to bargain
with Union with respect to couriers
a. Validity of certification issued 19 October 1984
As previously noted, on 19 October 1984, the Board
adopted the hearing officer's recommendation that the
Union be certified as the bargaining representative of the
couriers, and issued such a certification. In so ruling, the
Board considered and rejected the Company's exceptions
(with a supporting brief) to the hearing officer's report.
As the Company recognizes, Board policy bars me from
reconsidering any of the issues so raised. Chicago Metallic
Corp., 275 NLRB 871 (1985), Heuer International Trucks,
279 NLRB 127 (1986); Wickes Corp., 261 NLRB 1062
(1982). Accordingly, my decision assumes that this certi-
fication was properly issued. The Company's exceptions
to the hearing officer's report, and the Company's sup-
porting brief, have been received into evidence in the
record made before me.
b. Whether Company was under duty to bargain with
Union after 19 August 1983 election but before 19
October 1984 certification
As previously found, the Company's decision to termi-
nate the couriers, and its decisions and actions related to
the termination decision, all occurred after the Union
won the election on 19 August 1983. By adopting Hear-
ing Officer DaDalt's "Report on Challenged Ballot"
(particularly fn. 17 of that report), the Board has at an
earlier stage in this proceeding rejected the Company's
contention that its actions with respect to the couriers
could not have violated Section 8(a)(5) because such ac-
WESTINGHOUSE BROADCASTING 213
tions were taken before the Union's certification on 19
October 1984. Accordingly, I am likely barred from re-
considering that issue. Chicago Metallic, supra.
In any event, this contention has been repeatedly re-
jected by both the Board and the courts of appeals. Mike
O'Connor Chevrolet, 209 NLRB 701, 703 (1974), enf.
denied on other grounds 512 F.2d 684 (8th Cir. 1975),
and cases cited; NLRB v. Carbonex Coal Co., 679 F.2d
200, 204-205 (10th Cir. 1982), and cases cited; San Anto-
nio Portland Cement Co., 277 NLRB 388 (1985); Zelrich
Co., 144 NLRB 1381, 1391 (1963), enfd. 344 F.2d 1011
(5th Cir. 1965); Timsco, Inc., 279 NLRB 1121 fn. 4
(1986). The Company contended before me that the
'O'Connor Chevrolet line of cases are irreconcilable with
Summer & Co. v. NLRB, 419 U.S. 301 (1974); and drew
my attention to a case, then pending before the Board, in
which the Company's counsel was so urging on behalf of
another employer client. Thereafter, the Board decided
that case adverse to the company's position. Sandpiper
Convalescent Center, 279 NLRB 1129 (1986). Nor does
the Company appear to contend that the instant case pre-
sents the "compelling economic considerations" that
(under the foregoing Board decisions) would excuse uni-
lateral action without notice and an opportunity to bar-
gain.
The policy considerations urged by the Company as a
basis for overruling O'Connor Chevrolet and related cases
do not, of course, empower me to overrule them. More-
over, some of such considerations have little relevance to
the particular factual situation presented here. Thus, the
Company's improper precertification disregard of the
election results could not have disadvantaged the unit
employees, and might have deprived them of jobs which
they might have kept or been transferred to if the Com-
pany had complied with its statutory bargaining duty
(see infra part II,C,3, and The Remedy). Furthermore,
because the Company knew that employee Weed (the
only unit member whose ballot was opened, and the only
unit member who lost his job) had voted for the Union,
by negotiating with the Union concerning him alone the
Company could not have either violated the Act or been
taken to have agreed to recognize the Union with re-
spect to the entire unit . Ladies Garment Workers (Bern-
hard-Altmann) v. NLRB, 366 U.S 731, 741-743 (dissent-
ing opinion) (1961). Further, of course, the obligation to
bargain is not the obligation to agree, indeed, the Com-
pany contends (infra part II,C,3, and The Remedy) that
bargaining could not have changed the decision it
reached without bargaining.
Finally, the Company contends that to read the statute
as requiring the Company to refrain from unilateral
action (although not requiring it to bargain about
changes requested by the Union) between the election
(whose initial tally was the same as the final tally) and
the certification violates the Fifth Amendment to the
Constitution of the United States by depriving the Com-
pany of an alleged "constitutional property right in its
statutory entitlement to operate without any obligation
to bargain with a union absent a Board conducted elec-
tion" (Br. 16). Even if I were sure that the Company had
thoroughly briefed the point, I would question my own
authority to tell my superiors in the administrative and
judicial hierarchy that for more than 20 years, they have
been interpreting the Act so as to reach an unconstitu-
tional result." Moreover, I am doubtful that the Compa-
ny's brief is sufficient to enable me to reach an informed
conclusion as to this matter. The Company's sole cited
authority consists of an 8-page section of an 8-year-old
treatise on constitutional law,18 which section discusses
the constitutional protection then afforded to a number
of statutory entitlements that do not appear to include (at
least in terms ) any "statutory entitlement to operate
without any obligation to bargain,"19 and to what the
treatise describes as "a core of substantive `liberty' and
`property' rights independent of a state's laws" (but not,
at least in terms, any "entitlement" to be free of a bar-
gaining obligation). Although I do not question the
scholarship of this 1978 treatise, I regard it as insuffi-
ciently specific and insufficiently up to date, standing
alone, to enable me intelligently to address the precise
constitutional issue that the Company has advanced to
me in 1986. Moreover, counsel has neither advanced the
rather unlikely claim that fair consideration of his views
would require me to read all of the law review articles,
and the dozens of cases, cited in the treatise, nor advised
me which ones I should read. The treatise itself does not
persuade me that the longstanding views of the Board
and the courts of appeals are inconsistent with the fifth
amendment. On this admittedly limited basis, I reject the
Company's constitutional claim.
c. Whether Company's duty to bargain was affected by
employee Chou's transfer to a nonunit job
The Company contends that assuming arguendo it was
under a duty to bargain with the Union with respect to
the couriers immediately after the election on 19 August
1983, that duty terminated with employee Chou' s trans-
fer to a nonunit job, thereby reducing the unit to only
one employee (Weed).20 However, Union's Exhibit 4
shows that Chou's transfer was effective on 28 Novem-
ber 1983, several days after the Company is presumed to
have received the Union's letter (mailed about 18 No-
vember 1983) requesting the Company to bargain over
its decision to eliminate the news couriers and over the
effects of that decision. Teamsters Local 610 (Browning-
Ferris), 264 NLRB 886, 899-900 (1982).
In any event, during the period when the question of
whether a certification should issue was pending before
" See Iowa Beef Packers, 144 NLRB 615, 616 (1963), modified 331
F 2d 176 (8th Cir 1964), Ford Motor Co, 230 NLRB 716, 717-718 (1977),
enfd 571 F 2d 993, 996-997 (7th Cir 1978), a f f d 441 U S 488 (1979)
18 Laurence H Tribe, American Constitutional Law, § 10-9, pp 514-
522 (1978)
i9 Specifically discussed are entitlements to welfare benefits , parole,
government employment , and "good time" credits against prison sen-
tences
20 There is no contention or evidence that at any material time, the
number of employees in the unit had ever before diminished to only one
employee Although only one employee had been eligible to vote in the
election, two employees were at that time undisputedly in the unit, with
one (Chou) found ineligible to vote because he had not started to work in
the unit until after the 16 July 1983 eligibility date Between 18 July
(when the election stipulation was approved) and 5 August 1983 (about 2
weeks before the election), the unit consisted of four employees (Weed,
Chou, Lungelow, and McDonagh)
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Board, the Company's obligation vel non to refrain
from unilateral changes did not turn on whether the
Union had demanded bargaining . Hudson Oxygen Ther-
apy Sales Co., 264 NLRB 61, 74 (1982); Injected Rubber,
258 NLRB at 696-697. Furthermore, any duty to
demand bargaining about the changes would in any
event be excused because such a demand would have
been futile. Hudson Oxygen, supra. The Union first
learned about the decision to eliminate the unit when
union counsel was served with a 9 November 1983 com-
pany motion to the Regional Director and the Board.
This very motion cited this decision as a basis for dis-
missing the petition that would be a necessary basis for a
valid certification. Moreover, at all times thereafter the
Company has adhered to this contention, has further al-
leged that Chou's vote should have been counted, and
has further alleged that for these and other reasons, the
Union's certification is invalid. Furthermore, after receiv-
ing the Union's 18 November 1983 request for rescission
of this decision, restoration of the status quo ante, and
bargaining about "all mandatory subjects put into issue
by its desire to terminate Couriers," the Company ig-
nored the letter until after eliminating the unit and there-
after sent an "acknowledgement" of receipt "so as to
avoid any impression that [the Company] has recognized,
or is prepared to recognize, [the Union] as the collective
bargaining representative for the news couriers formerly
employed by [the Company]." Plainly, the Company had
no intention of honoring any union bargaining demand
regardless of its date.
3. Whether the decision to cease having Company
couriers, and to have work performed by outside
firms, was a mandatory subject of collective
bargaining
My decision in this case is controlled by the plurality
opinions in Otis Elevator, supra, 269 NLRB 891 (Chair-
man Dotson and then Member Hunter), and in Morco In-
dustries, 279 NLRB 762 (1986) (Chairman Dotson and
Member Johansen).21 The plurality opinion in Otis stated
that "the critical factor to a determination whether [a]
decision [to subcontract unit work] is subject to manda-
tory bargaining is the essence of the decision itself, i.e.,
whether it turns upon a change in the nature or direction
of the business, or turns upon labor costs; not its effect
on employees nor a union's ability to offer alternatives"
(emphasis in original).
The instant record shows that the Company's decision
to abolish the job classification of courier on its own
payroll, and to have all of the courier services performed
by persons (taxi drivers and couriers) employed by other
firms, did not affect the scope, direction, or nature of the
Company's business . Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203, 213 (1964); Clinton's Ditch Co., 274
NLRB 728 (1985), enf. denied on other grounds 778 F.2d
132 (2d Cir. 1985). Thus, the Company needed at all rel-
evant times the services which, until December 1983,
were performed partly by the unit couriers on the Com-
pany's payroll. Furthermore, at all relevant times, the
2 1 See O f f i c e E m p l o y e e s Local 11 v NLRB, 353 U S 313, 316 fn 5
(1957), and cases cited supra, fn 17
couriers' job assignments have been made by the Compa-
ny's assignment desk editor, and courier service has been
available to the newsroom staff during the entire time
that the news-gathering function is being performed. Nor
did the elimination of the staff courier positions from the
Company's own payroll necessitate or lead to the sale of
any assets, vehicles, or equipment. "Therefore, to require
the employer to bargain about the matter would not sig-
nificantly abridge his freedom to manage the business."
Fibreboard, supra, 379 U.S. at 213.
The Company appears to contend that its decision
with respect to the couriers was not a mandatory subject
of collective bargaining because that decision was at
least allegedly connected with the sale of SNC and the
General Counsel concedes that whether to effect this
sale was not a mandatory bargaining subject. However,
as pointed out in the General Counsel's excellent brief,
the Company's decision with respect to the couriers was
not part and parcel of the decision to sell SNC. Admit-
tedly, the couriers were not employed in the SNC oper-
ation. Rather, according to the Company, the couriers'
jobs were abolished because the jobs of the employees
who had worked in the SNC operations no longer exist-
ed due to the sale, the Company decided to retain some
of them anyway because of their value to other aspects
of the station's operations, the retention of these employ-
ees led to what was believed to be an excessive "body
count," and the Company decided to reduce the "body
count" by (inter alia) eliminating the courier positions,
even though the couriers were not included in the SNC
budget, had done almost no work in connection with
SNC, and had been rendering services that the Company
still needed and thereafter obtained from independent
contractors. Moreover, according to Goodgame, "body
counts" could be adjusted on the basis of unexpected
needs or problems, he would not feel it necessary to get
in touch with WBC management when implementing an
"economy of scale," and WBC management would
almost certainly be agreeable to any adjustments that
would save money. Indeed, the record indicates that the
Company (although it terminated part-time courier
Weed, whose job was not included in the full-time "body
count") never did comply with any instructions by WBC
to diminish the full-time "body count" by as many as 11.
Accordingly, the Company could have made a different
decision at every stage between its decision to eliminate
the jobs made superfluous by the SNC sale and its dec;
sion to eliminate the couriers, who were performing still-
needed services unrelated to SNC. Hence, the merits of
the instant case are unaffected by the General Counsel's
concession that the decision to sell SNC was not a man-
datory subject of collective bargaining.
Further, I agree with the General Counsel and the
Union that the Company's decision to eliminate the
couriers' jobs turned on labor costs within the meaning
of Otis Elevator, and reject the Company's contention
otherwise. Goodgame testified that the Company's al-
leged decision to eliminate 11 jobs was based on WBC's
alleged decision to reduce the Company's authorized
"body count" by 11 persons. However, Goodgame fur-
ther testified that basically, the "body count" is designed
WESTINGHOUSE BROADCASTING
to represent a point at which the Company can produce
its desired product for the least cost in terms of person-
nel. He further testified that when the Company makes a
business judgment, it is his normal practice to consider,
among other factors, cost as relevant to that judgment.
Also, he testified that the Company's management would
be subject to "great criticism" by WBC if the Company
hired people who did not perform a function. Further-
more, in deciding to keep one director who had worked
in SNC (a decision that was part of the at least alleged
chain of events which eventuated in the abolition of the
couriers' jobs), Goodgame was presented with the claim
of Production Manager Glover that eliminating both
SNC directors would likely result in spending "addition-
al dollars for overtime and freelance help." Similarly,
before successfully recommending to Goodgame the re-
tention of Satellite News Feed Coordinator Mann, Sta-
tion Manager Miles had received a memorandum from
Mann to News Director Hopkins suggesting that contin-
ued use of satellite technology might save the company
money. I note, moreover, that among those who recom-
mended to Goodgame the elimination of the news couri-
er jobs was News Director Hopkins, who had with his
own approval forwarded to Miles the above-described
Mann memorandum. Hopkins' continuous awareness of
courier-work costs is shown by his statement in mid-Feb-
ruary 1984 that the Company's costs for that service had
remained about the same since the Company's December
1983 elimination of the couriers' jobs. His cost conscious-
ness is further shown by his testimony that he assumed
his subordinates would have discussed costs with an out-
side courier before entering into arrangements for its
services, and that management discussed the provision of
courier services with both outside courier services and
taxicab companies before abolishing the staff couriers'
jobs. Accordingly, and in view of the probabilities of the
case, I infer that Hopkins' recommendation that the
Company abolish its couriers' job was based partly on
his conclusion that performing the work through taxi
drivers and/or outside courier services would not in-
volve costs wholly out of line with the costs of obtaining
the services from the Company's own courier employees.
To this extent, I do not credit Hopkins' testimony that
when management was considering what positions to
eliminate after the sale of SNC, he did not estimate or
consider the cost to the station of providing the news
courier function.22
Furthermore, I agree with the Union's contention in
its helpful brief that the Company's decision to have all
courier work performed by outside firms was a mandato-
ry subject of collective bargaining even if that decision
did not turn on labor costs. Although most bargainable
decisions do turn on labor costs, the Board and the
courts have found to be bargainable a number of deci-
sions that do not turn on this factor. See, e.g., Ford
Motor Co. v. NLRB, 441 U.S. 488, 498, 500 (1979) (con-
ditions under which food is available on job, meal hours,
coffeebreak scheduling, cancellation of catering truck
22 I do, however, accept his testimony that he never conducted or, in
terms, directed anyone to conduct an analysis of such costs, and never
had any discussion with Goodgame that, in terms, concerned such costs
215
service); Meat Cutters Local 189 v. Jewel Tea, 381 U.S.
676, 691 (1965) (particular hours of the day and days of
the week when employees are required to work); Fibre-
board, supra, 379 U.S. at 222 (concurring opinion)
(same); NLRB v. Proof Co., 242 F.2d 560 (7th Cir. 1957),
cert. denied 355 U.S. 831 (1957) (union use of company
bulletin boards); Transportation Enterprises, 240 NLRB
551, 560 (1979), modified on other grounds 630 F.2d 421
(5th Cir. 1980) (dress codes); Southland Paper Mills, 161
NLRB 1077 (1966) (privilege of hunting on employer's
land); Rudy 's Farm, 245 NLRB 43, 49 (1979) (restrictions
on bumper stickers attached to employees' cars parked in
employer's parking lot); Express Publishing Co., 13
NLRB 1213, 1217 (1939), enfd. in relevant part 111 F.2d
588 (5th Cir. 1940), modified in respects immaterial here
312 U.S. 426 (1941) (employer-newspaper's use of em-
ployee-reporter's byline); NLRB v. Knoxville Publishing
Co., 124 F.2d 875, 881 (6th Cir. 1942) (same) .23 1 do not
believe that the plurality opinion in Otis was directed at
cases like the foregoing, which (like the instant case) did
not involve decisions that even arguably turned on "a
change in the basic direction or nature of the enterprise"
(269 NLRB at 893). Rather, I believe that the labor-costs
test enunciated in Otis was directed at doubtful cases, in
which at least a substantial claim could be made that the
employer's decision was not bargainable because it lay
"at the core of entrepreneurial control" (Fibreboard,
supra, 379 U.S. at 223 (concurring opinion)). As found
above, this characterization cannot fairly be attached to
the Company's decision to have all of its courier work
performed by other firms rather than to have some of it
performed by the Company's own employees. Rather, as
the Supreme Court said in Fibreboard, supra, 379 U.S. at
215, "We are . . . not expanding the scope of mandatory
bargaining to hold, as we do now, that the type of 'con-
tracting out' involved in this case-the replacement of
employees in the existing bargaining unit with those of
an independent contractor to do the same work under
similar conditions of employment-is a statutory subject
of collective bargaining under § 8(d)." Accord: Soule
Glass Co. v. NLRB, 652 F.2d 1055, 1088-1089 (1st Cir.
1981).
In considering whether particular management deci-
sions constitute mandatory subjects of collective bargain-
ing, concurring opinions in Otis-generated cases have
taken into account factors which the principal opinions
in Otis and Morco either abjured or did not discuss. How-
ever, because in and since Otis no single rationale in this
area has been agreed to by a majority of the Board, some
discussion of these factors may be useful in enabling the
Board to reach in the instant case a result, if not a ration-
ale, acceptable to a Board majority.
The plurality opinion in Otis stated (269 NLRB at 892)
that the union's ability to offer alternatives was not mate-
rial to determining whether the employer's decision con-
stituted a mandatory subject of collective bargaining.
However, the separate concurring opinions of then mem-
23 See also American Oil Co, 164 NLRB 36 (1967), finding that an em-
ployer acted lawfully by rejecting, on the policy ground that it did not
favor unionism for engineers and scientists, a union's bargainable request
for dues checkoff in a unit including such employees
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bers Dennis and Zimmerman regarded, as critical to such
a determination, whether the employer's decision was
"amenable to resolution through the bargaining process"
(First National Maintenance Corp. v. NLRB, 452 U.S.
666, 678 (1981)). See 269 NLRB at 897, 900. I agree with
the General Counsel and the Union that the Company's
decision to have all its courier work performed by out-
side firms, and to abandon the performance of some of
such work by its own couriers, was so amenable under
either the Dennis or the Zimmerman approach. Thus, the
Union could have attempted to persuade the Company
that if it continued to perform the work with couriers in
the Company's own employ, the Company would save
money as compared with taxicab drivers and outside
couriers.24 Further, the Union could have attempted to
persuade the Company that it would benefit by having
couriers who were solely under the Company's control
and owed it undivided loyalty (as compared to couriers
who might be simultaneously transporting materials or
personnel on behalf of another customer to whom the
courier would afford priority, or taxicab drivers who de-
layed their service to the Company by picking up other
fares).25 Also, the Union could have attempted to per-
suade the Company that it would benefit by having
couriers who (unlike taxicab drivers or outside couriers)
were experienced in the Company's own business, knew
the policies of the outside news department, could evalu-
ate the relative importance of the materials they were
carrying, realized that the quality of the Company's
news programs might be adversely affected by delays in
the delivery. of videotapes, were familiar with the traffic
problems around the Company's studio and around the
areas where news cameramen were likely to be working,
and could recognize and be recognized by company per-
sonnel in crowd situations.26 Further, the Union could
have advised the Company that its proposal to discontin-
ue the use of its own news couriers had made the Union
newly receptive to the Company's proposals that person-
nel outside the Union's technician unit be permitted to
assist the employees in that unit in carrying technical
equipment. Although during contract negotiations as to
this unit the Union had rejected the Company's proposal
that "talent" be permitted to carry such equipment, the
Union did not represent "talent" and, during negotiations
at other stations where the Union represented more than
one unit, had agreed to relax its customary jurisdictional
boundaries between such units. In other words, the
Union "was in a position to lend assistance or offer con-
cessions that reasonably could affect-i.e., make a differ-
24 As previously noted , 2 or 3 months after the changeover , News Di-
rector Hopkins told his staff that the changeover had not saved any
money . As discussed infra, the Union could have made proposals that
would have made the Company 's courier employees cheaper than before
25 As previously noted, the Company changed from Grace Courier to
Choice Courier partly because a request to Grace for a courier "Right
away to Grace would mean as soon as we can dispatch one from our
home office and get one over there to you and to [the Company]
right away meant we needed one in five to ten minutes, we had a story
to get to "
29 As previously noted , 2 or 3 months after the changeover , staff mem-
bers of the news department complained to News Director Hopkins that
courier service after the changeover was slower than before , particularly
on weekends Moreover, Hopkins expressed concern to TV News Unit
Manager Lane about not having couriers there when they were needed
ence in-the employer's decision" (269 NLRB at 897,
concurring opinion by then Member Dennis), and con-
cessions by the Union could have "substantially
mitigate[d] the concerns underlying the employer's deci-
sion, thereby convincing the employer to rescind its de-
cision" (269 NLRB at 901, concurring opinion by then
Member Zimmerman).27
These considerations persuade me that the Company's
October-November 1983 decision was "amenable to reso-
lution through the bargaining process" notwithstanding
Goodgame's February 1986 testimony on direct examina-
tion that such union arguments could not have persuaded
him to alter that decision.28 Goodgame elsewhere testi-
fied that the body count could be adjusted "Based on
some logical reason for it"; that "The nature of business
is if you can save money I don't think anyone is going to
get protestive about that"; and that in deciding what jobs
to abolish (including the jobs of one full-time and one
part-time courier), the Company did not try to reevalu-
ate some areas of the building "because they're insignifi-
cant in terms of the number of bodies, and very easily
analyzed without even giving it thought." In view of
such other testimony by him and for demeanor reasons, I
conclude that when testimonially insisting that the
Union's arguments could not have changed his mind
more than 2 years earlier, Goodgame was attempting to
avoid both the imposition of a Board reinstatement,
backpay, and bargaining order and the possibility that his
superiors (and, perhaps, Goodgame himself) might think
less of him for making an uninformed, and possibly
money-losing, decision.
Furthermore, Goodgame reached his decision to retain
satellite news feed coordinator Mann (who had been as-
signed to SNC) for the obviously self-serving reasons ad-
vanced by Mann himself and approvingly relayed by
Hopkins and Miles.29 However, Goodgame reached his
decision to abolish the staff couriers' jobs without afford-
ing the couriers their statutory right to have their union
attempt to persuade Goodgame to retain them. Had
Goodgame afforded the couriers this right, they might
have fared quite differently. For, as the Supreme Court
observed in Ford Motor Corp., supra, 441 U.S. at 502-503
fn. 14 (quoting from Cox, The Duty to Bargain in Good
Faith, 71 Harv. L. Rev. 1401, 1412 (1958)):
Participation in debate often produces changes in
a seemingly fixed position either because new facts
are brought to light or because the strengths and
weaknesses of the several arguments become appar-
ent. Sometimes the parties hit upon some novel
compromise of an issue which has been thrashed
27 The Company makes no contention that its eventual agreement to
the jurisdictional clauses in the technician contract would have rendered
the Company unwilling to renegotiate such clauses to its own advantage
I note that couriers ' wages were lower than the wages of "talent" and
technicians
28 As correctly pointed out in the Company's brief (Br 29, fn ), Good-
game's testimony in this respect was adduced in response to Flanagan's
testimony about what arguments the Union could have tendered-testi-
mony received over the Company's objection
29 Rather similarly, Goodgame reached his decision to retain an SNC
director and an SNC earth station control engineer after being so urged
by Goodgame's management subordinates
WESTINGHOUSE BROADCASTING 217
over and over. Much is gained even by giving each
side a better picture of the strength of the other's
convictions. The cost is so slight that the potential
gains easily justify legal compulsion to engage in
the discussion.
Then Member Dennis' concurring opinion in Otis
stated, inter alia, that as to a management decision which
has a direct impact on employment but has as its focus
only economic profitability, bargaining would be re-
quired "only if the benefit, for labor-management rela-
tions and the collective-bargaining process, outweighs
the burden placed on the conduct of the business" (269
NLRB at 897, quoting from but adding emphasis to First
National Maintenance, supra, 452 U.S. at 679).30 In the
instant case, if the parties had worked out a mutually
agreeable arrangement about the courier issue, they
would have achieved one of the principal goals of the
Act, "the promotion of collective bargaining as a method
of defusing and channeling conflict between labor and
management" (First National Maintenance, supra, 452
U.S. at 674). Nor is there any evidence that any appre-
ciable burden on the Company's business would have
been imposed if the Company had discussed with the
Union whether to continue to have some of the couner
work performed by bargaining unit employees. There is
no claim or evidence that in making its decision about
courier work, the Company had any particular need for
"speed, flexibility, and secrecy" (First National Mainte-
nance, supra, 452 U.S. at 682-683). Indeed, by 13 Octo-
ber 1983 the Union had received press reports of the
SNC sales agreement, the agreement itself was executed
about 27 October 1983, management's discussion about
what consequent personnel action to take continued be-
tween 12 October and at least 7 November, and courier
Weed was not laid off until 2 December 1983. In short,
even after the execution of an agreement which for at
least 2 weeks previous had been the subject of press re-
ports, the Company had ample opportunity to bargain
with the Union about the news couriers. The Company's
claim of an undue burden is based solely on its claim (Br.
28-30) that any action different from the action it took
"would have placed burdens on the [Company's] future
operations which would make it impossible to operate
under competitive conditions," a claim somewhat diffi-
cult to reconcile with the Company's stipulation that the
cost to the Company of the cab and courier service,
whether employee-provided or not, has been at all mate-
rial times an insignificant portion of the entire budget of
the news department.3 i However, as discussed supra, the
record suggests that if the Company had bargained with
the Union about the matter, a feasible different solution
might have been found. In any event, "it is not necessary
that it be likely or probable that the union will yield or
supply a feasible solution but rather that the union be af-
forded an opportunity to meet management's legitimate
complaints .. ." (Fibreboard, supra, 379 U.S. at 214).
For the foregoing reasons, I find that the Company's
decision to discontinue the performance of some of its
courier work through couriers employed by it, and to
have all of its courier work performed by outside firms,
was a mandatory subject of collective bargaining.
In finding that the Union could have advanced certain
specific proposals to the Company if it had bargained
with the Union, I have given weight to such testimony
by Kenneth Flanagan, who at the time of courier Weed's
layoff had been the Union's business representative for
more than 2 years. The Company contends that such tes-
timony is inadmissible under the Federal Rules of Evi-
dence, which control Board unfair labor practice pro-
ceedings "so far as practicable" (see Sec. 10(b) of the
Act, Sec. 101.10 (a) of the Board's Statements of Proce-
dure, and Sec. 102.39 of the Board's Rules and Regula-
tions). Flanagan's testimony in this respect was received
in connection with the contention of the General Coun-
sel and the Union that whether the Company should dis-
continue having courier work performed partly by its
own employees was a dispute that would have been ame-
nable to resolution through the collective bargaining in
which the Company allegedly should have engaged.
Flanagan is an experienced union negotiator, who from
representing the Company's technicians and other televi-
sion units has acquired substantial knowledge about the
industry generally and the Company's business in par-
ticular. In view of these facts, and because he would
likely have represented the Union if the Company had
consented to negotiations regarding the Company's
couriers, I believe his testimony was receivable under
Rule 704, and under Rules 701 and/or 702, of the Feder-
al Rules of Evidence. United States v. Ranney, 719 F.2d
1183, 1187-1189 (1st Cir. 1983); Teen-Ed v. Kimball Inter-
national, 620 F.2d 399, 403-404 (3d Cir. 1980); State
Office Systems v. Olivetti Corp., 762 F.2d 843, 845-846
(10th Cir. 1985); Eisenberg v. Gagnon, 766 F.2d 770, 780-
781 (3d Cir. 1985); Indian Coffee Corp. v. Procter &
Gamble Co., 752 F.2d 891, 900 (3d Cir. 1985), cert.
denied 106 S.Ct. 180 (1985).
The authorities cited by the Company do not persuade
me that Flanagan's testimony was inadmissible under the
FRE. The Company relies on unspecified portions of
Rule 611 (whose relevance to this issue counsel has not
explained and I do not perceive) and on United States v.
Alker, 260 F.2d 135 (presumably at 149-150) (3d Cir.
1958), cert. denied 359 U.S. 906 (1959), decided some
years before the FRE became effective.32 Alker held that
in a criminal case tried before a jury, the prosecuting at-
torney should not have been permitted to ask a character
witness for the defendant whether the opinion that the
witness had tendered on direct examination would have
been the same if he had heard about various incidents
(allegedly relevant to the defendant's character) that may
°° The other Board members did not discuss this issue
a' However, I deem it unnecessary to consider the Union 's contention 32 Regarding the Company 's contentions to this area , the Company's
that because of the Company's refusal to provide certain evidence (see brief must be read in light of its letter of 10 May 1986, in reply to my
supra fn 12), an inference should be drawn that after the abolition of the letter of 22 April 1986 requesting clarification of that brief Alker is cited
staff couriers ' jobs, the Company spent less money for a given amount of only in the Company's letter, which misstates the volume number and
courier work contains no spot citation
218 DECISIONS OF THE NATIONAL LABOR RELATIONS $OARD
not have taken place. In contrast, when Flanagan testi-
fied in the instant case (tried, of course, without a jury),
he, the parties, and I were all aware of the undisputed
fact that the Company had never bargained with the
Union, and Flanagan's complained-of testimony so as-
sumed.
In any event, I regard this portion of Flanagan's testi-
mony as properly received in the instant administrative
proceeding even if the FRE rendered such testimony in-
admissible before a Federal district court. "Whether the
Board may deviate from [the FRE] depends on the
extent to which the Board's proceedings are comparable
to the proceedings in federal courts." NLRB v. Jacob E.
Decker & Sons, 569 F.2d 357, 362 (5th Cir. 1978).33 The
challenged testimony of Flanagan (and the testimony of
Goodgame; see supra at fn. 28) were received in connec-
tion with the issue of whether the Company's decision
with respect to the courier work was a mandatory sub-
ject of collective bargaining. Although seldom presented
to the Federal district courts at all, this kind of issue is
one about which the Board has special expertise and its
judgment is entitled to considerable deference. Ford
Motor Co., supra, 441 U.S. at 495-497. Moreover, testi-
mony, by union and employer representatives about what
could and what could not have been done if a particular
subject had been bargained about is helpful in ascertain-
ing whether that subject is "amenable to resolution
through the bargaining process" (First National Mainte-
nance, supra, 452 U.S. at 678)-an issue which is often
highly material in determining whether that subject is a
mandatory subject of collective bargaining. Further, the
conclusion that the Board can properly receive such evi-
dence is supported by the Supreme Court's determination
that notwithstanding the 1947 amendments to the judi-
cial-review provisions in Section 10(e) and (f) of the Act,
the Board retains its status as "one of those agencies pre-
sumably equipped or informed by experience to deal
with a specialized field of knowledge, whose findings
within that field carry the authority of an expertness
which courts do not possess and therefore must respect."
Radio Officers (Bull Steamship) v. NLRB, 347 U.S. 17, 50
(1954), citing Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). In thus reaffirming the Board's retention
of the right and duty to exercise its expertise, the Su-
preme Court must have assumed that the Board's ability
to receive evidence to assist the Board in exercising its
expertise was not substantially diminished by the 1947
amendments to Section 10(b), which, as noted, call for
district court rules of evidence "so far as practicable." I
conclude that the quoted language from Section 10(b)
warrants the receipt of Flanagan's challenged testimony.
4. Whether the Company's decision to cease having
work performed by company couriers was a
mandatory subject of collective bargaining
The General Counsel and the Union contend that
whether the Company's decision to cease having work
performed by the Company's couriers was a mandatory
subject of collective bargaining, the impact of this deci-
33 Decision on remand 244 NLRB 875 (1979), enfd. 636 F 2d 129 (5th
Cir. 1981).
sion on the Company's couriers was a mandatory sub-
ject. I agree. First National Maintenance, supra, 452 U.S.
at 677-678 fn. 15; Gar Wood-Detroit Truck Equipment,
274 NLRB 113 (1985). Indeed, regarding this branch of
the complaint the Company contends only that it was
under no duty, to bargain with the Union at all-a de-
fense rejected supra at part II,C,2.
5. Conclusion
For the reasons set forth above, I find that the Compa-
ny violated Section 8(a)(5) and (1) of the Act by subcon-
tracting the news courier work without prior notice to
the Union and without having afforded it an opportunity
to negotiate and bargain with respect to the decision to
subcontract and the effects of such subcontracting.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of the Company constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time news department
couriers employed by the Company at its Boston,
Massachusetts, television facility, but excluding all
other employees, guards and supervisors as defined
in the Act.
4. At all times since 19 August 1983, the Union, by
virtue of 'Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the aforesaid
unit for the purposes of ' collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. The Company has violated Section 8(a)(5) and (1) of
the Act by subcontracting the news courier work per-
formed by the employees in the aforesaid unit, without
prior notice to the Union and without having afforded it
an opportunity to negotiate and bargain with respect to
the decision about such acts and conduct and the effect
of such acts and conduct.
6. The unfair labor practices set forth in Conclusion of
Law 5 affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I shall recommend that the
Company be required to cease and desist therefrom, and
from like or related conduct, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
When, as here, an employer has unlawfully refused to
bargain with respect to a decision to have bargaining
unit work performed by nonunit personnel, the Board at
least ordinarily includes in its remedial order a require-
ment that the employer resume having such work per-
formed by unit employees, offer the unit employees rein-
statement to their unit jobs, and make them whole for
WESTINGHOUSE BROADCASTING
any loss of pay they may have suffered by reason of
their removal from their unit jobs. Griffith-Hope Co., 275
NLRB 487 (1985); Pennsylvania Energy Corp., 274 NLRB
1153 (1985); University Health Care Center, 274 NLRB
764 (1985), enfd. mem. 786 F.2d 1170 (8th Cir. 1986); see
also Fibreboard, 379 U.S. at 215-217. The Company con-
tends in its answer that such an order would be inappro-
priate here, on the ground that even if the Company had
bargained with the Union about whether to abolish the
staff couriers' jobs, the Company would in the end have
adhered to its decision to do so. However, as shown
supra at part II,C,3, if the Company had bargained with
the Union before terminating the couriers, the Union
could have offered at least arguably cost-saving alterna-
tives, and could have pointed out at least arguable disad-
vantages ("right away" and weekend service, realized in
the event) of using solely outside couriers and taxicabs.
Particularly in view of this evidence, the Company
cannot successfully urge that as to whether the couriers
would have been retained if the Company had bargained
with the Union, the doubts created by the Company's
unlawful conduct should be resolved in the Company's
favor. See NLRB v. Transportation Management Co., 462
U.S. 393, 403 (1983). Accordingly, the Company will be
required to resume the performance by its own staff
couriers of the work performed by them prior to 28 No-
vember 1983; to offer Wayne Chou and Thomas Weed
immediate and full reinstatement as couriers, without
prejudice to their seniority and other rights and privi-
leges; and to make them whole for any loss of pay they
may have suffered by reason of their removal from cou-
rier jobs. Backpay shall be computed in accordance with
the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).34 In addition, the
Company will be required to remove from its files any
reference to the removal of these employees from their
jobs as couriers, and to notify them that this has been
done and that such removals will not be used as a basis
for future personnel actions concerning them. See Ster-
ling Sugars, 261 NLRB 472 (1982); Griffith-Hope, supra,
275 NLRB 487 fn. 3 (1985).
In addition, the Company will be required to post ap-
propriate notices.
The Company's answer further contends that a bar-
gaining order would be inappropriate because as of 2
December 1983, when the Company laid off its only re-
maining courier (Weed), the unit consisted of only that
one employee. However, Goodgame testified, in effect,
that the nonunit job to which courier Chou was trans-
ferred effective 28 November 1983 (after the Union had
demanded bargaining about the decision to eliminate the
couriers) had been offered to him because of that deci-
sion (whose unlawful implementation the Order is de-
signed to remedy) and pursuant to WBC Executive Offi-
cer Ritchie's October 1983 instructions to try to find jobs
for personnel "associated with the [SNC} service."
Moreover, the evidence that Chou and Weed had been
performing 60 hours' courier work a week before Chou's
transfer militates against any suggestion that only one
94 See, generally , Isis Plumbing Co, 138 NLRB 716 (1962)
219
courier woulci be able to perform the courier work that
the Company began to subcontract shortly before Chou's
transfer, which is still being performed 7 days a week on
the Company's behalf, and whose performance through
staff couriers the Company is being required to resume.
Accordingly, I agree with the General Counsel and the
Union that a bargaining order should issue. Lange Co.,
222 NLRB 558, 567-568 (1976); Crispo Cake Cone Co.,
190 NLRB 352, 353-354 (1971), enfd. 464 F.2d 233 (8th
Cir. 1972).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed35
ORDER
The Respondent, Westinghouse Broadcasting and
Cable, Inc. (WBZ-TV), Boston, Massachusetts, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Subcontracting work performed by employees in
the following unit , without prior notice to International
Brotherhood of Electrical Workers, Local 1228, AFL-
CIO, and without having afforded it an opportunity to
negotiate and bargain with respect to the decision as to
such acts and conduct and the effect of such acts and
conduct:
All full-time and regular part-time news department
couriers employed by Respondent- at its Boston,
Massachusetts, television facility, but excluding all
other employees, guards, and supervisors as defined
in the Act.
(b) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Resume the performance by its own staff couriers
of the work performed by them prior to 28 November
1983; offer reinstatement as couriers to Thomas Weed
and Wayne Chou, without prejudice to their seniority
and other rights and privileges; and make them whole
for any loss of pay they may have suffered by reason of
their separation from their jobs as couriers; in conformity
with the remedy section of this decision.
(b) Remove from its files any reference to the separa-
tion of Weed and Chou from their jobs as couriers, and
notify them that this has been done and that evidence of
such separation will not used as a basis for future person-
nel actions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
93 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
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 pur-
poses
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
essary to analyze the amount of backpay due under the
terms of this Order.
(d) On request, recognize and bargain collectively
with Local 1228 as the exclusive representative of all
employees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody such an understanding in a signed agreement.
(e) Post at its facilities in Boston, Massachusetts, copies
of the attached notice marked "Appendix."36 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
98 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 Nation-
al 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 "
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 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 subcontract work performed by em-
ployees in the following unit , without prior notice to
International Brotherhood of Electrical Workers, Local
1228, AFL-CIO, and without having afforded it an op-
portunity to negotiate and bargain with respect to the
decision as to such acts and conduct and the effect of
such acts and conduct. The unit is:
All full-time and regular part-time news department
couriers employed by us at our Boston, Massachu-
setts, television facility, but excluding all other em-
ployees, guards, and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL resume the performance by our own staff
couriers of the work performed by them before 28 No-
vember 1983.
WE WILL offer reinstatement as couriers to Thomas
Weed and Wayne Chou, without prejudice to their se-
niority and other rights and privileges, and make them
whole, with interest, for any loss of pay they may have
suffered by reason of their separation from their jobs as
couriers.
WE WILL remove from our files any reference to the
separation of Weed and Chou from their jobs as couriers,
and notify them that this has been done and that evi-
dence of such separation will not be used as a basis for
future personnel action.
WE WILL, recognize and bargain with Local 1228 as
the exclusive representative of all employees in the unit
described above with respect to rates of pay , wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody such an un-
derstanding in a signed agreement.
WESTINGHOUSE BROADCASTING AND
CABLE, INC. (WBZ-TV)