Corporation for General Trade (WKTG-TV 53)

National Labor Relations Board - Board Decisions

Feb 8, 2000

330 N.L.R.B. 617 (N.L.R.B. 2000)

CORP. FOR GENERAL TRADE (WKJG-TV 33) 617
Corporation for General Trade (WKJG-TV 33) and
International Brotherhood of Electrical Work-
ers, Local 723, a/w International Brotherhood of
Electrical Workers, AFL–CIO. Cases 25–CA–
23757 and 25–CA–24038
February 8, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On September 30, 1997, Administrative Law Judge
John H. West issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply to the General Counsel’s brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally implement-
ing its proposal prior to impasse. As the judge found, the
parties had not reached impasse in their negotiations in
view of the fact that there had been substantial move-
ment in negotiations immediately prior to and after the
Respondent implemented its proposals, and the Respon-
dent had not informed the Union that it believed the par-
ties were at impasse or otherwise indicated that further
bargaining would be in vain. See, e.g., D.C. Liquor
Wholesalers, 292 NLRB 1234, 1235 (1989), enfd. 924
F.2d 1078 (D.C. Cir. 1991) (steady progress in negotia-
tions militates against finding impasse).
We find merit, however, in the Respondent’s exception
to the judge’s finding that the Respondent committed an
additional violation of Section 8(a)(5) and (1) because
the proposal that it unilaterally implemented included a
provision that altered the scope of the bargaining units by
merging the two historically separate units into one unit.
We find that the record fails to support the judge’s find-
ing in this respect.
________
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 In addition to modifying the judge’s recommended Order to reflect
our decision, as discussed below, we shall modify the Order in accor-
dance with our decisions in Indian Hills Care Center, 321 NLRB 144
(1996), and Excel Container, Inc., 325 NLRB 17 (1997). We have also
modified the judge’s recommended Order and notice to reflect his
factual finding that the Respondent has furnished the requested infor-
mation to the Union, which had been unlawfully withheld, so that no
affirmative order to provide this information is necessary.
It is undisputed that on September 4 or 5, 1994, the
Respondent sent the Union its proposal for a successor
contract, which included, inter alia, a recognition clause
that combined the two historically separate units into one
unit. It is also undisputed, however, that the Respondent
abandoned this proposed new recognition clause in its
November 2, 1994 proposal. From that time forward, the
Respondent proposed combining the substantive terms
covering the two separate units into one contract, instead
of two, with separate addenda for each unit. Since such
proposal did not seek to alter, or have the effect of alter-
ing, the scope of the bargaining units, we dismiss this
complaint allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Corporation for General
Trade (WKJG-TV 33), Fort Wayne, Indiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Without bargaining to lawful impasse with respect
to this conduct and the effects of this conduct, imple-
menting changes on February 3, 1995, in the terms and
conditions of employment of the employees in the in-
volved units including, but not limited to: (i) removing
one-half hourly rate premium pay for hours worked over
8 hours in a day; (ii) reducing guaranteed 5-1/3 hours
premium pay to 3 hours’ premium pay for employees
called in to work on their days off; (iii) reducing pre-
mium pay from 2-1/2 times to 2 times rate of pay for
employees called in to work on a scheduled vacation
day; (iv) removing a fifth week of vacation for employ-
ees with more than 25 years of active service with Re-
spondent; (v) reducing paid sick leave time by 10 days
per year; (vi) removing guaranteed 12-hour rest period
between assignments for employees and removing the
half hourly rate premium pay for employees called in to
work during their 12-hour rest period; (vii) permitting
supervisors to perform bargaining unit work thereby re-
ducing the amount of overtime available to bargaining
unit employees; (viii) removing classification jurisdiction
thereby allowing Respondent to assign employees to
work in higher-paying job classification without paying
to employees the higher wages associated with such job
classifications; and (ix) creating a two-tier wage structure
which caused employees hired after November 4, 1994,
to be paid lower wages than other employees.
(b) Unreasonably delaying the furnishing of the infor-
mation to the Union which it sought in its February 20,
1995 letter as that information relates to members of the
involved bargaining units.
(c) 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.
330 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
2. Take the following affirmative action necessary to
effectuate the polices of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of all employees in the in-
volved units and, if an understanding is reached, embody
such understanding in signed contracts.
(b) On request, rescind any and all unilateral changes
the Respondent has made in the terms and conditions of
employment of the employees in the involved units.
(c) Within 14 days of the date of this Order, make
whole the employees in the involved units, with interest,
for any loss of earnings and other benefits they may have
suffered by the Respondent’s unlawful refusal to apply
the terms and conditions of employment as set forth in
the collective-bargaining agreements which expired in
November 1994 until such time as Respondent bargains
in good faith to impasse or enters into new collective-
bargaining agreements.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Fort Wayne, Indiana facility copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 3, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
________
3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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 insist, as a condition of reaching any col-
lective-bargaining agreement, that International Brother-
hood of Electrical Workers, Local 723, a/w International
Brotherhood of Electrical Workers, AFL–CIO agree to
consolidate the two units it represents into one contract
and implement this.
WE WILL NOT without bargaining to a lawful impasse
implement changes in the terms and conditions of em-
ployment of the employees in the involved units includ-
ing, but not limited to: (i) removing one-half hourly rate
premium pay for hours worked over 8 hours in a day; (ii)
reducing guaranteed 5-1/3 hours premium pay to 3 hours
premium pay for employees called in to work on their
days off; (iii) reducing premium pay from 2-1/2 times to
2 times rate of pay for employees called in to work on a
scheduled vacation day; (iv) removing a fifth week of
vacation for employees with more than 25 years of active
service with Respondent; (v) reducing paid sick leave
time by 10-days per year; (vi) removing guaranteed 12-
hour rest period between assignments for employees and
removing the half hourly rate premium pay for employ-
ees called in to work during their 12-hour rest period;
(vii) permitting supervisors to perform bargaining unit
work thereby reducing the amount of overtime available
to bargaining unit employees; (viii) removing classifica-
tion jurisdiction thereby allowing Respondent to assign
employees to work in higher-paying job classifications
without paying to employees the higher wages associated
with such job classifications; and (ix) creating a two-tier
wage structure which caused employees hired after No-
vember 4, 1994, to be paid lower wages than other em-
ployees.
WE WILL NOT unreasonably delay furnishing informa-
tion to International Brotherhood of Electrical Workers,
Local 723, a/w International Brotherhood of Electrical
Workers, AFL–CIO which it sought in its February 20,
1995 letter as that information relates to members of the
involved bargaining units.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with Inter-
national Brotherhood of Electrical Workers, Local 723,
a/w International Brotherhood of Electrical Workers,
AFL–CIO as the exclusive representative of all employ-
ees in the following units and, if an understanding is
reached, embody such understanding in signed contracts:

All cameramen, projectionists, audio and video techni-
cians, including switchers, transmitter technicians, and
floorman-directors, film cutters, producer-directors,
film editors, art directors, news photographers, continu-
ity clerks, continuity coordinators, and production as-
sistants, and excluding radio announcers operating ra-
CORP. FOR GENERAL TRADE (WKJG-TV 33) 619
dio control equipment, office and clerical employees,
guards and professional employees and supervisory
employees as defined in the Act.
All regular full-time anchors, reporters and announcers
at WKJG-TV Studios in Fort Wayne, Indiana; but ex-
cluding the general manager, the farm director, the
news director, the public affairs director, all office
clerical employees, all professional employees, guards
and supervisors as defined in the Labor Management
Relations Act, as amended, as that unit of employees is
described in the certification of representative, issued
May 14, 1974, at Indianapolis, Indiana, in Case 25–
RM–386 of the National Labor Relations Board.
WE WILL, on request, rescind any and all unilateral
changes we have made in the terms and conditions of
employment of the employees in the involved units.
WE WILL make whole the employees in the involved
units, with interest, for any loss they may have suffered
by our unlawful refusal to apply the terms and conditions
of employment as set forth in the collective-bargaining
agreements which expired in November 1994 until such
time as we bargain in good faith to impasse or enter into
new collective-bargaining agreements.

CORPORATION FOR GENERAL TRADE (WKJG-
TV 33)

Michael T. Beck, Esq., for the General Counsel.
Robert S. Sanders, III, Esq. (Daniels, Sanders, Pianowski, Todd
& Thomas), of Elkhart, Indiana, for the Respondent.
Mr. Ronald Bame, of Fort Wayne, Indiana, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. International
Brotherhood of Electrical Workers, Local 723, a/w Interna-
tional Brotherhood of Electrical Workers, AFL−CIO (the Un-
ion or the Charging Party) filed charges against Corporation for
General Trade (WKJG−TV 33), (Respondent) in Cases
25−CA−23757 and 25−CA−24038 on February 22 and June 19,
1995, respectively. An order consolidating cases, consolidated
complaint and notice of hearing was issued December 11, 1996.
It alleges that Respondent violated Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act), by failing and re-
fusing to bargain collectively and in good faith with the exclu-
sive collective-bargaining representative of its employees. Re-
spondent denies violating the Act.
A hearing was held on June 2−4, 1997, in Fort Wayne, Indi-
ana. On the entire record in this proceeding, including my ob-
servation of the demeanor of the witnesses and consideration of
the briefs filed by the General Counsel and by Respondent on
July 28, 1997, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness in Fort Wayne, has been engaged in the operation of a
television broadcasting station. The complaint alleges, the Re-
spondent admits, and I find that at all times material Respon-
dent has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
On September 4 or 5, 1994, Respondent sent the Union its
proposed successor contract which contained substantial
changes from the prior contracts, including a recognition clause
which combined two units, namely, the production and techni-
cal unit1 and the talent unit,2 into one unit. Respondent’s Ex-
hibit 3. The cover letter, Respondent’s Exhibit 16 from Nichols
to Bame indicates:

Enclosed you will find the changes we wish to make in the
Production/Technical and Talent contracts. You will see that
we have combined the two agreements.

We would like to meet as soon as possible following your re-
view of these changes. Due to the extensive changes, I felt
that at our first meeting we could answer questions on how he
organizational structure would be implemented. [Emphasis
added.]

Bame pointed out that the first page of the agreement, under the
paragraph designated “THIS AGREEMENT” refers to “the bar-
gaining unit hereinafter described, the members of said bargain-
ing unit being hereinafter referred to as ‘Employees’ and fur-
ther defined in Addendum A, Section A1, employed now or
hereafter during the term of this Agreement, by the Employer at
the said television station.”
And on page 2 of the proposed agreement in the recognition
clause the document refers to “the following bargaining unit”
and goes on to describe one combined bargaining unit. The
________
1 The agreement, G.C. Exh. 24(a), which was then in effect (No-
vember 4, 1994) described this unit of employees as follows:
All cameramen, projectionists, audio and video technicians, including
switchers, transmitter technicians, and floorman-directors, film cutters,
producer-directors, film editors, art directors, news photographers,
continuity clerks, continuity coordinators, and production assistants,
and excluding radio announcers operating radio control equipment, of-
fice and clerical employees, guards and professional employees and
supervisory employees as defined in the Act.
The employees described in this unit have been represented by the
Union and have been recognized since the mid-1960s.
2 The separate collective-bargaining agreement which was in effect
at the time (November 4, 1991, to November 3, 1994) covering this
unit, G.C. Exh. 24(b), described the unit as follows:
All regular full-time anchors, reporters and announcers at WKJG-TV
Studios in Fort Wayne, Indiana; but excluding the general manager,
the farm director, the news director, the public affairs director, all of-
fice clerical employees, all professional employees, guards and super-
visors as defined in the Labor Management Relations Act, as
amended, as that unit of employees is described in the certification of
representative, issued May 14, 1974, at Indianapolis, Indiana, in Case
No. 25−RM−386 of the National Labor Relations Board.
Respondent’s former general manager, William Nichols testified that
the employer has been recognizing the Union as the exclusive bargain-
ing agent of these employees since the late 1960s. Originally they were
in another union and these employees held an election to be represented
by the Union involved herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
proposal contained a total overhaul of job titles. William
Nicholas, who at the time was Respondent’s general manager,
explained that there were titles in the old agreement that had
gone back many years and did not exist in 1994.3 Respondent
also proposed to change job titles of a majority of the employ-
ees in the production unit to operator class in that it proposed to
establish an operator pool. Respondent also proposed to use
nonbargaining unit employees (or subcontract) to do work
which had previously been done by bargaining unit employees,
viz. the operational part (not the setups) of remote broadcasts.
And Respondent proposed to have management personnel per-
form some of the functions previously performed by the bar-
gaining unit at the station, such as editing. Additionally, Re-
spondent also proposed, among other things, to eliminate a
number of so-called premium pays. Nichols testified that the
Company’s contract proposal changed how remote broadcast
work was going to be done in that before the on the air work
was done by bargaining unit employees (the set up was done by
nonunion people) and the Company was proposing to use non-
bargaining unit employees or subcontractors; that there was no
two-tier wage scale in the 1991–1994 contracts4; that with the
proposal the Company gave to the Union in September 1994 he
believed that there were going to be two separate contracts but
in the Company’s proposal, Respondent’s Exhibit 3, the Com-
pany combined the two units into one unit in the recognition
clause; and that the language in that proposal indicated that the
Company was recognizing the Union as the exclusive bargain-
ing representative of the bargaining unit (singular). Todd Gal-
lagher, a bench technician who is a union steward and on the
bargaining committee, testified that the Company’s proposal
was a complete rewrite with a lot of work rule changes, a lot of
things missing that the employees enjoyed previously in the
other contract, it was something completely new; and that the
proposal combined both involved units into a single contract
with two addendum and separate pay scales. Bame, who began
negotiating contracts with this Company around 1985, testified
that the changes which the Respondent proposed in September
1994 were overwhelming; that more of the prior contracts were
subject to Respondent’s proposed changes then were not; that
some of the basic fundamental proposed changes included hav-
ing one bargaining unit in one contract, removing work from
the union’s jurisdiction and giving it to outside contractors or
other company people, merging most of the involved employ-
ees into a pool which would allow the Company to cross juris-
dictional lines that existed in prior agreements, and doing away
with premiums except those required by law such as overtime
for working over 40 hours.
On September 22, 1994, Respondent and the Union held
their first negotiating session. In attendance were Bame, Galla-
gher, and Jim Lindley for the Union,
________
________
3 Nichols testified that with the certification of the part-time photog-
rapher/reporters in the late 1970s employees ceased to be added by
certification and from that point forward any change in the description
of the two bargaining units was done through negotiation.
4 He pointed out that the 1979 contracts, R. Exhs. 1 and 2, contained
a two-tier wage scale and it continued in 1982, 1983, and 1984, R.
Exhs. 13, 14, and 15, respectively.
5 and Nichols, Robert
Sanders, Mark Meyer, Steve Buyze, Eric Groenwald, and Mat
Kyle for the Respondent. Gallagher testified that they spent the
entire session discussing the changes in the Company’s pro-
posal. Bame testified that it took the whole meeting to review
Respondent’s proposal because it was so lengthy and he was
not sure if they were able to go over the entire proposal during
this meeting.
On October 3, 1994, the second negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Burt
Gonzales for the Union, and Nichols, Sanders, Meyer, and
Buyze for the Respondent. Nichols testified that the Union
presented its proposal to the Respondent, which was reviewed
at this meeting; and that Respondent also proposed an addition
to an addendum which dealt with subcontracting, General
Counsel’s Exhibit 4. Gallagher testified that the Union made
some information requests; that the parties discussed layoff and
call back language; that the Union came to bargain for two
separate contracts for two separate units and that understanding
never changed in negotiations; and that General Counsel’s Ex-
hibit 30 is the Union’s proposal which is dated but he was not
sure whether the parties got to this on October 3. Bame testified
that the Union’s proposal included a 6-percent-per-year wage
increase.
By letter dated October 12, 1994, Respondent’s Exhibit 4,
the Union requested that the Respondent provide “information
which is necessary for the Union to fully understand the Com-
pany’s proposals.” The letter goes on to indicate that “[b]ecause
of the great many changes the Company is proposing, the
amount of information needed is substantial.”
On October 17, 1994, the third negotiating session was held.
In attendance were Bame, Gallagher, Lindley, and Gonzales for
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. A union information request was discussed. Re-
spondent presented its wage proposals, namely, a 10-percent
decrease in pay beginning November 1994 for employees cur-
rently on the staff and an even lower wage scale (two tier) for
new hires after November 1994. The Union requested informa-
tion on the justification for the 10-percent wage cut. Respon-
dent refused to provide it, indicating that Respondent was not
pleading poverty and Respondent was not claiming that it could
not afford increases. Respondent agreed to change its proposal
so that the cap on the probationary period would be one calen-
dar year, the word transfer would be deleted from the manage-
ment-rights clause, proper cause for termination would be
changed to just cause, the deadline for the fourth step of arbitra-
tion would be 30 and not 7 days, to allow a substitute form for
sick leave, and to include step children in funeral leave. Re-
spondent informed the Union that the Respondent’s proposal is
180 degrees opposed to most union proposals and the Company
was proposing to change the existing contract in most respects.
Nichols testified that Respondent was proposing to change the
existing contact at a very basic level. Nichols also testified that
the information requested by the Union on October 12 was
5 Bame testified that the steward who helped him negotiate previous
contracts was promoted by Respondent 10 days before the first session
and so he asked for volunteers. Reporter Dave Morin came to one
meeting ansked if he had to be there. He left when he was told it was
not necessary for him to be there. Otherwise the talent unit did not have
a representative attend the negotiations. The three stewards on the
bargaining committee were from the production unit.
CORP. FOR GENERAL TRADE (WKJG-TV 33) 621
provided at this meeting except for information which was
provided on October 20. Gallagher testified that the Company
did not feel that it needed to include an errors clause6 but it
offered a letter of leniency for the time of cross-training and a
transition period from the old contract to what it was proposing;
that the Company gave the Union the requested wage rates with
its 10-percent decrease for current employees; that the Com-
pany offered a 1-year cap on the probationary period in re-
sponse to the Union’s concern for an hours cap which could
take longer than 1 year for part-time employees; that the Com-
pany agreed to reinstate the cafeteria plan; that the company
representatives indicated that most of the union proposals
would not work in their new contract because the union pro-
posals were based in the old contracts; that the Company
agreed to the Union’s proposal to add stepchildren to the fu-
neral leave provision and to increase the investment options on
the 401K plan from three to six; and that the Union kept its
proposals on the two units separate because they were there
bargaining two separate contracts. Bame testified that his notes
of this meeting, General Counsel’s Exhibit 47, contain the fol-
lowing; “not agreeable to combining both units into one with
the contract as proposed by the Company—If we can agree on a
single contract then we” but he was not sure if this is something
he “put across the table” to the Company since he has the habit
of writing what he wants to say.
On October 19, 1994, the fourth negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Nichols, Sanders, Meyer, and Buyze for
the Respondent. Respondent presented the Union with written
changes to the Respondent’s proposal which changes covered
agreements reached at the prior meeting. Nichols’ notes, Gen-
eral Counsel’s Exhibit 6, indicate “union not agreeable to put
both units under one agreement but they might change down
the road.” He testified that the Union indicated that it was will-
ing to discuss the Employer’s proposed changes in the operator
class; and that he did not recall a point at any meeting where
the Union said that it would absolutely agree to the change
Respondent asked for regarding the operator class. Gallagher
testified that the Union received some of the things it had re-
quested, namely, a seniority list, health census, a list of interns,
a temporary employee list, and amendments to the Company’s
proposal. G.C. Exh. 33. He also testified that the Union agreed
to section 1.03 of the Company’s proposal; that the Union
might possibly accept some of the parts of the Company’s pro-
posed contract with some changes; that the Union still assumed
that it was bargaining for a contract for each unit; and that the
Union was not opposed to the operator pool but the conditions
had to be negotiated.
On October 20, 1994, the fifth negotiating session was held.
In attendance were Bame, Gallagher, Lindley, and Gonzales for
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. Respondent proposed new language on the issue
of the internship program in response to the Union’s request for
more specific language regarding how it would work and what
rules would govern it. Nichols’ notes, General Counsel’s Ex-
hibit 7, indicate that Respondent indicated that it would agree to
add back some of the economic issues
________
________
6 The clause relieves the employee of responsibility if they are per-
forming more than one job simultaneously.
7 to its proposal if the
Union would agree to pool operators. He testified that they
discussed a number of issues that the Union brought up and the
parties went through the contract term by term. The Union indi-
cated that it would not be opposed to legitimate interns and it
indicated that it would provide language regarding overtime
replacement. Gallagher testified that the Company provided
certain information which Bame had requested; that the Com-
pany also submitted a proposal, General Counsel’s Exhibit 35;
that the Company’s changed language on interns was dis-
cussed; that the Company, indicating that it needed more flexi-
bility, proposed a modified version (8 hours) of the 12-hour
rule, a minimum of 5.3 hours of premium pay for working on a
day off, call back travel time, double time and one half for
working during vacation, grandfathering employees who had
earned 5 weeks of vacation, returning the 40 accumulated sick
days, and deleting the 10-percent paycut proposal for current
employees (but no increase); that he believed that the flexibility
the Company was looking for was the operator pool; that the
Union agreed to a number of the Company’s proposals, General
Counsel’s Exhibit 348; that the Union offered to extend the
present probationary period by 90 days at the Company’s re-
quest; that the operator pool would allow employees to work in
engineering and production jobs which was not allowed under
prior contracts; and that a number of other proposals were dis-
cussed. Bame testified that the Company agreed to add some-
thing new to the contract in that it agreed to rewrite the intern
language to address the concerns about this provision, which
had not appeared in any of the prior contracts; that, as indicated
above, a number of items were agreed to by the parties; and that
all but about 6 of the approximately 40 people represented by
the Union would have been subject to the Company’s proposed
operator pool.
On October 24, 1994, the sixth negotiating session was held.
In attendance were Bame, Gallagher, Lindley, and Gonzales for
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. Respondent gave some proposals to the Union,
General Counsel’s Exhibit 9. The parties discussed only spe-
cific proposals of the Respondent which the Union objected to
and the Union agreed to the following sections of Respon-
dent’s proposal: 1.01, 1.02, 1.03, 1.06, 1.08, and 1.09. Respon-
dent indicated that it was willing to modify its economic issues
proposal and it proposed (1) to delete its proposal regarding
7 Respondent’s original proposal had removed (a) the “12 hour rule”
which accorded the employee premium pay if he or she did not have 12
hours of rest between shifts, (b) premium pay (time and a half) for 5.3
hours if the employee worked on his or her day off, (c) pay for 1 hour
of travel time if the employee was called back to work after he or she
had left work, (d) premium pay for working on a day that was a vaca-
tion day, and (e) the fifth week of vacation. Respondent indicated that it
was willing to put back (1) a modified version of the “12 hour rule”
which called for premium pay if the employee did not have 8 hours of
rest, (2) the day-off premium pay rule but the latest proposal did not
apply to part-timers, (3) the 1-hour pay-for-call back, (4) premium pay
for working on a vacation day, and (5) the fifth week of vacation only
for those who already had it. Respondent also indicated that it was
willing to discuss the age rates for current employees but it wanted to
keep the 10-percent reduction for new hires.
8 Gallagher testified that a lot of the terms were satisfactory to both
parties and they just need dates; that the Union agreed to sec. 1.02
Change of Termination Procedure, 1.03 No Strike or Lockout, 1.04
Trade Jurisdiction, 1.06 Employer and Union Conferences, and 2.03
Inspection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
outside contractors, (2) add language covering remote broad-
casts, and (3) provide some production language on layoff and
termination. Nichols’ notes, General Counsel’s Exhibit 8, indi-
cate “union agrees to combining units.” Gallagher testified that
they received Company proposed contract changes; that Bame
gave the Company the Union’s proposal on internship; that they
asked the Company what it had to have and what was negotia-
ble and the Company indicated that it had to have assignments,
the operations pool, interns, management, and subcontracting to
do the units members’ work; and that the Company agreed to
drop 1.10(B) subcontracting with an indication that it was go-
ing to write something about subcontracting into the remote
broadcast language. Bame testified that the parties were making
some movement but the magnitude of the changes that the
Company was proposing was enormous and they were getting
closer to the expiration of the contract so he asked the Com-
pany to indicate what their essential items were.
On October 27, 1994, the seventh negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Nichols, Sanders, Meyer, and Buyze for
the Respondent. A written proposal regarding the deletion of
section 1.10(B), as agreed to in the prior meeting, of Respon-
dent’s proposal was given to the Union. Respondent also
agreed to change the recall rights under its layoff provision
from 12 to 18 months which was the period given in the 1991–
1993 contract. It agreed to pay overtime after 8 hours, to ad-
dress the issue of holiday pay so that it would not be as restric-
tive (in terms of premium pay) as it was under the Company’s
original proposal, to revise the proposal for discharge for cause,
change its proposal on the accumulation of sick leave from 40
to 50 days retaining the 10 day total a year, to reinstate the
successorship clause, to reinstate the vacancies language, and to
reinstate rest periods. Nichols testified that it was probable that
due to the sheer number of changes that the company was pro-
posing it necessitated spending the majority of the time on
Company proposals. Gallagher testified that the above-
described Company proposals were received; that the parties
discussed a specified part-timer being covered by the contract
and the Company indicated that he was being hired as a full-
time reporter and would be in the bargaining unit; that the defi-
nition of workday and workweek were discussed; that the
Company agreed to reconsider its full-time to part-time reduc-
tion proposal; that the parties discussed 18 vis-a-vis 12 months
recall rights; that the parties discussed how 10-hour workdays
would affect premium pay, pyramiding, and cascading pay, the
Company’s new proposal to deny holiday pay to anyone sick
the day before or after a holiday, time allowances for travel, the
fifth week of vacation, and the increased reasons for discharge
and their exclusion from the grievance procedure; that the
Company changed its position and agreed to the 18 months
recall right and overtime for work over 8 hours9; that the Com-
pany indicated that if it got the operator pool it would look to
eliminate the qualifiers for holiday pay10; that the Company
dropped the 2-week maximum allowed of vacation to take at
sign up; that the Company changed its position on accumulated
sick leave to allow a total accumulation of up to 50 days and it
returned the 18-month sick leave; and that the Company agreed
to put back the successorship clause, rest periods, and the va-
cancies clause.
________
________ 9 This was a change in that the Company originally proposed over-
time for work over 40 hours.
10 Gallagher testified that the Union was agreeable to the operator
pool all along and it was just a matter of working out the conditions.
On October 31, 1994, the eighth negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Nichols, Sanders, Meyer, and Buyze for
the Respondent. Respondent presented new proposals dealing
with workday, workweek, subcontracting, and section 1.10 of
talent. Respondent’s written proposed changes were received as
General Counsel’ Exhibit 13. They deal with the workday, the
workweek, and discharge for cause. Respondent agreed to use
unit personnel on remote broadcasts as long as they were work-
ing on straight time and not overtime at the time of the broad-
cast. Nichols testified that Respondent also agreed to reinstate 2
weeks’ pay at the time of discharge. Subsequently he testified
that his notes, General Counsel’s Exhibit 13, reflect that the
Company did not agree to reinstate the 2 weeks. The Union
agreed to a 10-hour workday as proposed by the Company
provided the benefits were also based on a 10 workday. Re-
spondent changed the block out provision (precluding vacations
during that period) for production employees so that it covered
a 6-week period instead of an 8-week period during the period
from May through October. The parties agreed to extend the
collective-bargaining agreements that were due to expire on
November 3 on a day-by-day basis until one party gave the
other 7 days notice for terminating those agreements. Gallagher
testified that at this meeting the Company made new proposals
regarding workday and workweek and discharge for cause,
General Counsel’s Exhibit 13; that the Company indicated that
unless the IBEW members were willing to work remote on
straight time alone it wanted to subcontract; and that the Com-
pany changed its position on vacation blockouts.
On November 2, 1994, the ninth negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Nichols, Sanders, Meyer, and Buyze for
the Respondent. Respondent gave the Union a new proposed
contract containing the changes that had already been dis-
cussed. The Company agreed to do away with the 20-percent
reduction in pay for nonexperienced personnel if the Union
would agree to the two tier wage system. The parties agreed on
section 1.10(A). The Union offered new language on section
1.10(B) which dealt with interns. The parties agreed on sections
2.02(A) and 2.02(B). Respondent agreed to keep pay rates at
the present level for existing employees, to change the “12 hour
rule” so that it is an 8-hour rule, paying overtime for over 8-
and 10-hour shifts, pay part-timers for over 10-hour shifts, rein-
state 5.3 hours of overtime for employees called in on their day
off, reinstate the call back and call prior language, reinstate the
2-1/2-time premium pay for vacation time, and giving the em-
ployees who already earned it a fifth week of vacation.11 Nich-
ols testified that Respondent’s Exhibit 5 is the revised Com-
pany proposal which was offered to the Union as of November
2, 1994, and Respondent’s Exhibit 6 is the status sheet which
the Company gave to the Union at this meeting, which sheet
lists the economic issues that the Company was willing to put
back in the contract to get an overall agreement. Nichols also
testified that his notes, General Counsel’s Exhibit 14, reflect
11 Nichols testified that all of these agreements were made condi-
tional on reaching a comprehensive agreement. He could not locate this
condition in his notes.
CORP. FOR GENERAL TRADE (WKJG-TV 33) 623
that Bame agreed to combining some of the common provisions
of the two contracts into one master contract with two addenda.
Subsequently Nichols testified that his notes of this session
indicate that the Union said that it was not opposed to the ad-
dendum. Meyers testified that he authored most of the Novem-
ber 2, 1994, Company proposal, Respondent’s Exhibit 5, and it
was the intent of the Company to have two separate contracts
and the way that was carried out was by combining the unit
description and identifying the Union as the sole collective-
bargaining agent for the following bargaining unit (singular)
followed by the single unit description.12 Gallagher testified
that the Company presented a copy of their original proposal
with strikeouts and additions and a list of items that the com-
pany wanted to modify, add or change; that the Company was
still combining in the main body with two addendum; that the
Union was still negotiating two separate contracts; that a lot of
economic terms ended up on the Company’s status sheet not-
withstanding the fact that he thought that the parties had agreed
on them in prior meetings; and that at this point in the negotia-
tions the Union’s proposal had only been discussed once be-
cause so much was going on with the Company’s proposal and
the Company had indicated that a lot of what the Union pro-
posed would not work with the Company’s new proposal.
Buyze testified that when he was submitting copies of his bar-
gaining notes to the Board he found some undated notes be-
tween his October 1994 notes and his November 1994 notes;
that in comparing them to notes of other people who were in-
volved in the bargaining he determined that they were notes of
the November 2, 1994 session; that he has other notes for No-
vember 2, 1994, which most likely are for earlier in the day
before they started going through the agreement from top to
bottom; that in the top right hand corner of the first page of
Respondent’s Exhibit 19 he wrote “not Disagreeable to titles or
single contract”13; and that it probably was a comment made by
Bame. On cross-examination Buyze testified that his above-
described notes are undated; that he did not list who was at the
meeting; that he did not indicate on the notes who made this
comment; that he was sure that Bame said this; and that while
he did not remember 100 percent what everybody said in every
meeting, in this specific case he did remember that is what
Bame said.
On November 18, 1994, the 10th negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Nichols, Sanders, Meyer, and Buyze for
the Respondent. The Union, with respect to a sticking point in
the negotiations, indicated that it was not 100 percent against
the Company proposal on remote broadcasting but it wanted to
discuss how far away from the station the company was pro-
posing the Union to give up that work. The Company never
made a proposal to the Union in terms of distance, other than
all work occurring off premises. For the second time the parties
discussed the Union’s proposals. Regarding the Union propos-
als, the Company agreed to provide the Union with schedules in
advance so that the Union could review them and make sugges-
tions to the Company. The Company changed its original posi-
tion and agreed to remove the allowance of a waiver of rest
periods between assignments if the Union would agree to the
Company’s modified 8-hour rule. For the first time the parties
discussed specifically with a listing what management person-
nel would be allowed to do bargaining unit work. Nichols testi-
fied that his notes, General Counsel’s Exhibit 15, indicate that
Bame said that he did not care if they had one contract or two.
Gallagher testified that the parties reviewed the Union’s Octo-
ber 3, 1994 proposal, General Counsel’s Exhibit 30, at this
meeting; that with respect to the Union’s proposal, the Com-
pany had already agreed to the vacancies provision; that the
parties agreed on the terms of the rest between assignments
section but it was not what the Union had proposed; that the
Company agreed to add the grievance settlement based on a
part-timer day off; that the Company agreed to add stepchildren
to funeral leave; that the Company had agreed to increase in-
vestment options from three to six; that the Company agreed to
put dental insurance back in the agreement; that the Company
agreed to put the same things the parties had agreed to on the
production/engineering agreement regarding vacation, the fu-
neral leave adding stepchildren and the insurance, in the talent
contract; and that they were discussing the two units separately
because they were negotiating two separate contracts.
________
12 The single unit description reads as follows:
All technicians, Director/Editors, Operators, Continuity Employees,
regular Full-Time Television Announcers, Anchors, and Reporters,
and excluding office and clerical employees, guards, professional em-
ployees and supervisory employees as defined in the Labor Manage-
ment Relations Act as amended.
13 Unlike all of the other writing on this page this note is written at a
45-degree angle to the lines on the page.
On November 23, 1994, the eleventh negotiating session was
held. In attendance were Bame, Gallagher, and Lindley for the
Union, and Nichols, Sanders, Meyer, and Buyze for the Re-
spondent. The Company made new written proposals to the
Union regarding insurance, vacation overtime premium, and
trade jurisdiction. (G.C. Exh. 17.) The trade jurisdiction dealt
with a change in Respondent’s proposal on remote broadcasting
in that it now named the actual management personnel who
would do the remote work. The Company agreed to delete that
portion of the 401K plan that said that at least 50 percent of the
employees had to participate. Respondent changed its proposal
in section 3.07(B) from two times to 2-1/2 times. The Company
indicated that it was willing to discuss changes. Nichols testi-
fied that up to this point in the negotiations no one at the bar-
gaining table made any suggestion that the parties were at im-
passe. Gallagher testified that the Company presented a new
written proposal and Bame received some medical information;
that the Company agreed that there was a problem with its va-
cation overtime premium and it agreed to rewrite it; that the
Company agreed that it had already agreed to drop the required
50-percent participation in the 401K plan; and that the Com-
pany suggested that at the next meeting there should be a list of
the problem areas; and that no one at this meeting suggested
that the parties were at impasse and the word impasse was not
used. Bame sponsored General Counsel’s Exhibit 56 which is
the Company’s November 23, 1994 proposal regarding vaca-
tion overtime premium.
On November 29, 1994, the 12th negotiating session was
held. In attendance were Bame, Gallagher, Lindley, and Gonza-
les for the Union, and Sanders, Meyer, and Buyze for the Re-
spondent. Nichols did not attend this meeting. Meyer testified
that the Union presented the Company with a proposal regard-
ing the internship which indicated that the interns should not be
scheduled beyond 8 hours, their work could not replace over-
time assignments, and they would have to work side by side
with an employee at all times; that this proposal by the Union
regarding interns had not been presented before; that as indi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
cated on page two of his notes, General Counsel’s Exhibit 25,
the Union agreed to cascading pay language as it stands; that
page three of his notes makes it clear that Bame made it clear
that in the Union’s opinion the parties were talking about two
separate bargaining units; that the proposal submitted to the
Union in December 1994 was a single contract with two ad-
denda; that the contract which was implemented in February
1995 is one contract with two separate addenda each of which
identifies an individual bargaining unit; and that he has no
notes of anyone saying at this meeting “I think we are at im-
passe.” Meyers also testified that at this meeting the Company
offered to have two separate contracts with two separate ad-
denda but the Union declined that offer; that he did not know
what, according to his notes, Bame was talking about when he
said “2 separate barg. Units”; that Bame said fine lets have one
contract for these two separate bargaining units; and that there
is nothing in his notes to indicate that Bame said this. Gallagher
testified that his bargaining committee did list areas which were
still open for negotiation but it was not put in written form to
hand to the Company across the table; that the Company pre-
sented a rewrite of the vacation overtime premium; that the
parties went through the contract listing areas where there was
still concern; that after a caucus the Company addressed several
of the concerns; that the union was under the impression that it
was negotiating two contracts but at times it seemed that the
Company was putting the units together in a single contract, it
expressed concern about this and the Company said they were
“doing” two separate contracts with two separate recogni-
tions14; that the Union’s bargaining committee intended to
agree on a format of a main body and an addendum and the pay
scale but they were assuming that meant a main body and ad-
dendum for pay scale for each unit; that the Company took the
cap off the number of stewards allowed; that the Company
agreed to language where it would give the Union steward a
copy of the proposed schedule 7 days prior to it being posted so
that the steward could review it and make suggestions before it
was posted; that the Company changed its proposal on days off
in that it was going to add language allowing the four 10-hour
days for that under days off; and that no one at this meeting
suggested that the parties were at impasse. When asked by
counsel for Respondent if his bargaining notes reflected that the
Union advised the Company that it, the Union, was bargaining
for two contracts and two separate units Gallagher referred to
page two of his notes for this November 29, 1994 meeting,
General Counsel’s Exhibit 42 where, according to Gallagher’s
testimony, this same counsel for Respondent, Sanders, during
the negotiating session said, in response to the Union bargain-
ing committee’s concern, that there would be two separate con-
tracts with separate recognitions. Bame testified that there has
never been an impasse declared; and that he was not going to
be available in December and offered to have an international
representative sit in for him but the Company indicated that it
was not interested. On cross-examination Bame testified that he
may have asked during this negotiating session whether the
Company intended that there be one or two units; and that he
never agreed to combining the contracts nor had he ever agreed
to combining the units at any point in time, “I may have im-
plied that we would consider it under certain conditions, but I
never agreed to do it.” On redirect Bame testified that he may
have said that the Union was not opposed to the idea of ad-
denda but he was not agreeing to the form of the contract that
the Respondent ultimately implemented; and that what he
meant when he said he might not be disagreeable to the idea of
addenda was if the addendum was attached to a contract that
only pertained to that bargaining unit. Buyze testified that
________
________
14 Gallagher testified that what the Company implemented was not
what he understood to be meant by two separate contracts.

Bame . . . asked if we were dealing with one or two contracts
because both Addendum were labeled Addendum A and there
was some confusion. That entered into some conversation
about what our purpose and intent was. It was communicated
that we weren’t concerned about one contract or two con-
tracts. Coming out of that discussion, the company proposed
that we would make it one contract, label them Addendum A
and label them Addendum B, and that is what we did.

When asked on cross-examination “you testified that the un-
ion agreed to Addendum A and Addendum B,” Buzye testified

No. That’s not quite what I said. What I said, coming
out of a discussion the company had the feeling that was
what the union wanted. We proposed splitting into Ad-
denda A’s and Addenda B’s and I don’t remember any
further discussions on it for many, many bargaining ses-
sions. From that point on, we submitted them as Adden-
dum A and Addendum B and I do not remember any ob-
jection being raised by the union. [Emphasis added.]

Buyze also testified that there were at least two other bargain-
ing sessions before the Company implemented its final offer.
There was only one.
The Company submitted another contract proposal to the
Union on December 6, 1994, containing all of the changes
which had been discussed.15 Nichols testified that the Com-
pany, during the first week of December 1994, sent the Union a
letter indicating that the Company intended to implement the
contract on January 13, 1995. By letter dated December 9,
1994, from Sanders to Bame, Respondent’s Exhibit 7, the Un-
ion was informed in writing that the Company had requested
the imposition of a deadline with respect to negotiations16; and
that the Company would delay the implementation of the Com-
pany’s final offer and revised proposals until January 13, 1995.
Nicholas testified that with three of the last five contracts the
Company has reached impasse and implemented its final pro-
posal. He sponsored Respondent’s Exhibit 10, a letter from
Sanders to Bame in 1992 regarding negotiations on the
1991−1994 contract, indicating, among other things:

[w]e are at an obvious and continuing impasse with respect to
the single remaining issue, and unless the Union is prepared to
accept the Company’s proposal, or to independently propose
some substantive change in its position, there can be no fur-
ther value in meeting to discuss the issue.

Nichols testified that while in 1992 when the Company be-
lieved that the parties were at impasse the Company put this in
writing to the Union, in 1994 when the Company believed the
15 The cover letter was received as G.C. Exh. 57.
16 The letter begins with “[t]his will confirm out telephone conversa-
tion today in which I indicated that the Company as requested the im-
position of a deadline . . . .” Bame testified that during his December 9,
1994 telephone conversation with Sanders the latter did not mention
impasse, implementation, or deadline.
CORP. FOR GENERAL TRADE (WKJG-TV 33) 625
parties were at impasse, it never bothered to tell the Union that
it, the Company, thought the parties were at impasse.
By letter dated December 20, 1994, General Counsel’s Ex-
hibit 58, Bame indicated the following to Sanders:

My vacation time is no surprise development. I in-
formed you early in November that I had vacation that I
had to get in before the end of the year. I had offered to
have an International Representative of the IBEW step in
and continue bargaining in my absence. You declined the
offer.
The Union is not agreeable to any form of implementa-
tion of the “company’s final offer.” For the Company to
do so implies that you have declared an impasse which
you have not done. Your offer includes putting two sepa-
rate bargaining units into one contract which the Union
has not agreed to. It also drastically changes the jurisdic-
tion of the bargaining units which the Union has not
agreed to. Your offer also removes future rights of bar-
gaining to which the Union is not agreeable to waiving.
Where we may have had extensive bargaining as you de-
scribe, it is not lengthy when measured against the large
number of changes the Company is demanding.
The Union is not agreeable to any deadlines that allow
for implementation of the Company’s last offer. We intend
to continue negotiations for whatever amount of time is
necessary to deal with the unresolved issues still on the ta-
ble.

On January 9, 1995, the 13th negotiating session was held. In
attendance were Bame, Alan Goddard, Gallagher, Lindley, and
Gonzales for the Union, and Nichols, Sanders, Meyer, and
Buyze for the Respondent. When asked if anyone at this meet-
ing said that the parties were at impasse Nichols answered, “I
don’t see it in my notes.” He also did not see anything in his
notes indicating that the Company made any new proposals at
this meeting. When the Union pointed out that part-time pho-
tographer/reporters were under the union jurisdiction Respon-
dent indicated that it would be folded into the proposed agree-
ment. While a notation appears in Nichols’ notes, General
Counsel’s Exhibit 19, regarding the Company agreeing to add
language under the remote production clause that no bargaining
unit employee would be laid off or terminated as a direct result
of such work, Nichols testified that he believed that this was
agreed on earlier. The notes contain the following: “[RB]
COMPANY IS STILL TRYING TO ALTER THE BARGAINING
UNIT AS CERTIFIED. UNION DOESN’T ACCEPT OUR
MODIFICATION OF ADDEND A.” The Company proposed for
the first time having production and technical employees sign
the payola notice which indicates that an employee could be
terminated if they violated the payola provision. This change
had not been discussed at any meeting prior to this meeting.
Nichols testified that this was not, in his opinion, a bargainable
issue since the Federal Communications Commission required
it. The Company agreed to give the Union a new written con-
tract proposal after this January 9 meeting containing the
changes that were made in this meeting. The Company also
agreed to extend the implementation date to February 3, 1995.
The parties agreed to meet on February 10, 1995. The Com-
pany made it known to the Union that it wanted to continue to
meet in January to discuss its contract proposal even though it
was implementing it on February 3, 1995. Nichols testified that
Respondent’s Exhibit 8, which is a statue sheet dated December
6, 1994,17 was sent to the Union before this meeting along with
a revised proposal dated “12−6−94,” Respondent’s Exhibit 9.
Nichols testified that while there was a lot of discussion about
the economic items on the status sheet these items were never
incorporated into the actual revised proposals which were given
to the Union. He also testified that the “12−6−94” revised pro-
posal was the first time there was an addendum A for techni-
cians and directors and an addendum B for announcers and
talent because the Company believed that the Union was agree-
able to having one boilerplate with two addendum and the
Company clarified the addendum. Meyers testified that his
notes, General Counsel’s Exhibit 26, reflect that the Company
provided the recognition clause change requested by the Union
on that day; and that he has no notes of anyone saying at this
meeting “I think we are at impasse.” Meyers also testified that
the two changes made by the Company involved the adding of
part-time reporter/photographers to the recognition clause and
to offer no layoff language in its remote broadcast clause. Gal-
lagher testified that for the first time the subject of pay-
ola/plugola was brought up at a negotiating session; that he had
never been asked to sign one of these forms before; that with
respect to the December 6 Company proposal the Union had
concerns about the recognition clause because it believed that
part-timers and reporters were being written out of it; that the
Company agreed to match the certification clause from the
1978 certification; that with respect to the remote broadcast
clause the Company indicated that it would add no layoff or
termination language; that remote broadcasting was a major
sticking point in negotiations; that the Company changed its
position with respect to when it was going to implement its
offer from January 13 to February 3, 1995; that he did not recall
anyone from the Company say at this meeting that the parties
were at impasse and he does not have this in his notes; and that
the parties agreed to meet on February 10, 1995. On cross-
examination Gallagher testified that his notes for this meeting,
General Counsel’s Exhibit 43, indicate that the Union was not
satisfied with the remote broadcasting issue at this point in time
and the Company indicated that it had “gone as far as they can
go with remote broadcast language”; that his same notes appar-
ently show that the Union bargaining committee accused the
Company bargaining committee of “pushing for impasse”18:
and that at the end of this session there were many items open
but the Union understood the Company’s stance on remote
broadcasts. And or redirect Gallagher testified that the Union
never agreed to the form of the contract that was implemented
but rather understood that there would be two separate contracts
with two separate bargaining units; that the Union never agreed
on the unit description being combined with the unit description
________
17 The introductory paragraph on this status sheet and the November
2, 1994 status sheet reads: “[I]n addition to the written proposals, the
Company has discussed the following provisions in connection with a
comprehensive agreement on all principals”: Meyers testified that this
status sheet and that of November 2, 1994, were separate from the
Company proposals that it had provided because they were items aside
that would only become a part of the proposal in the event that an over-
all agreement was met; and that these economic items were not part of
the proposal which was implemented.
18 This portion of the notes reads:
Company wanted to implement contract by January 13th
1995.
Union still wishes to negotiate!
Company pushing for impasse.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
for the other unit in one single recognition paragraph in the
contract; that while at one point the Company indicated that it
can go no further with the remote broadcast language that is
exactly what it did 7 days after implementing its final offer; and
that he neither recalled if the Company responded to the Un-
ion’s expression of its opinion that the Company was pushing
for impasse nor did he recall anyone from the Company saying
we are at impasse or words to that effect. And on further redi-
rect Gallagher testified that the last thing the parties did during
this last meeting before the Company’s offer was implemented
was to try to agree on dates to meet before the offer was im-
plemented and the Company was agreeable to continuing these
meetings prior to the implementation date. Bame testified that
he was demanding that the Company bargain on payola before
having anybody sign anything but the Company did not feel
that it had to. On redirect Bame testified that at the conclusion
of this meeting the Union was satisfied with the description of
the unit such that the employer would add part-timers to that
unit but the Union never agreed that that certification descrip-
tion would be included in a single recognition paragraph with
the description of the other unit. And on recross Bame testified
that he did not remember ever saying that there could be a con-
tract of one main body with separate addendum for each unit
and that would have been contrary to the Union’s position
through this period of time.
By letter dated January 12, 1995, General Counsel’s Exhibit
60, Sanders advised Bame, as here pertinent, that Respondent
enclosed new versions of the updated contract proposal of the
Company; that he hoped that the Union would be able to nego-
tiate on one of the 9 days given by the Company before imple-
mentation (including February 3, 1995) but regardless, the
Company intended to implement its final offer on February 3,
1995.
By letter dated January 23, 1995, General Counsel’s Exhibit
62, Bame advised Sanders as follows:

The Union believes that no impasse exists between the
parties. At no time has the Union agreed to the implemen-
tation of the Company’s last offer.
If the Company makes any changes in the current
agreement without the concurrence of the Union, Local
723 will file an unfair labor charge with the National La-
bor Relations Board.

On February 3, 1995, Respondent implemented its contract
proposal. General Counsel’s Exhibit 20 (a), (b), and (c). Re-
spondent reduced the 5.3 hours for employees called in to work
on their day off to 3 hours in the implemented proposal. Also in
the implemented proposal it reduced the premium pay for peo-
ple called in to work on a scheduled vacation day from 2-1/2
times their regular rate of pay to two times their regular rate of
pay, it removed all the fifth week of vacation for all employees
including those who had already earned it, it reduced the num-
ber of sick days by 10 days a year, it removed the so-called 12-
hour rule guaranteeing people a 12-hour rest period in between
assignments, it included language permitting supervisors to
perform bargaining unit work, it implemented its operator pool
proposal whereby employees could be interchanged in assign-
ments in a way not previously allowed, and it implemented a
two-tier wage structure so that new hires would be paid at a
lower rate. Nichols testified that the Union never agreed to any
of these changes. Nichols also testified that at the time the
Company implemented its offer it had no intent of changing its
proposal but it did just that with respect to the remote broadcast
language on February 10, 1995. Gallagher testified that since
February 3, 1995, the employees have not received (a) their one
and a half premium rate for hours worked over 8 hours in one
day, (b) the 5.3 hours of premium pay on days that they are
called on to work in their day off, (c) their 2-1/2 time for days
called in on scheduled vacation days, and (d) their fifth week of
vacation even if they already earned it; that since February 3,
1995, the employees’ number of sick days have been reduced
by 10, employees have received premium pay only under the
new terms of the rest period provision, supervisors have been
doing bargaining unit work that they previously were not al-
lowed to do, the Company had implemented the operator pool,
and a two-tier wage system whereby new employees are paid
less than regular employees has been implemented; and that the
Union did not agree to any of these changes.
On February 10, 1995, the 14th negotiating session was held.
In attendance were Bame, Goddard, Gallagher, and Lindley for
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. Also in attendance was a mediator, Ted Keefer,
from the Federal Mediation and Conciliation Service. Respon-
dent proposed the elimination of the paragraph on remotes and
the reinstatement of the old paragraph. G.C. Exh. 22. Nichols
conceded that 1 week after the Company implemented its offer
and said that no agreement was possible it made a significant
change in the remote bargaining language which was one of the
major sticking points in the negotiations. Meyer testified that
the Company proposed a change in the remote broadcasting
language which the Union had indicated was a major sticking
point in the negotiations and which had been discussed exten-
sively at a lot of the meetings; that this was a concession on the
part of the Company in an attempt to find some resolution to
the contract problem; that this was the first time the Company
became aware that a change in its remote broadcast language
might lead to the Union accepting the contract; and that prior to
implementation, the Company’s offers on remote broadcasts
were simply to tinker with the language that was contained in
the company proposal and a week after the implementation, the
Company’s proposal was to fundamentally change what it had
been offering on remote broadcasts at the suggestion of the
mediator. Gallagher testified that the Company changed their
remote broadcast rule after both sides spoke with the mediator;
and that the Union believed that items which had been agreed
to across the table on October 27, 1994, were not included in
the company’s offer which was implemented but instead were
placed in the November 2, and December 6, 1994 status sheets
and it so advised the Company. On cross-examination Galla-
gher testified that during this session Goddard, who was from
the Union’s International office, said, according to Gallagher’s
notes,19 that the “COMPANY WILL HAVE TO REMOVE
REMOTE LANGUAGE BEFORE WE CAN MOVE ON!” Bame
testified that while the Company might have said that it could
go no further on the remote broadcast issue, during the very
next meeting it went further; and that he was sure that the Un-
ion told the Company before February 10, 1995, that the Com-
pany’s position on remote broadcasting was a major stumbling
block to the agreement.
On February 20, 1995, the 15th negotiating session was held.
In attendance were Bame, Goddard, Gallagher, and Lindley for
________
19 G.C. Exh. 44.
CORP. FOR GENERAL TRADE (WKJG-TV 33) 627
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. Keefer was also present.
By letter dated February 20, 1995, General Counsel’s Ex-
hibit 63, Bame made the following request of Nichols:

In order to properly represent the bargaining unit employees,
we request that you furnish us the following:

1. A copy of the company’s Affirmative Action Plan
or Plans.
2. A copy of any discrimination complaint filed against
the company during that last five years.
3. A list of all employees during that last five years
showing for each the following: race, sex, ethnic origin
and age.
Please reply within one week.

Bame testified that he had never requested this information
before from the Company; and that he wanted the information
to determine whether there was a potential discrimination on
the basis of pay with respect to employees.20
On February 27, 1995, the 16th negotiating session was held.
In attendance were Bame, Goddard, Gallagher, and Lindley for
the Union, and Nichols, Sanders, Meyer, and Buyze for the
Respondent. Keefer was also present. Nichols testified that
there were six or seven subsequent meetings over the period of
a year and he did not recall that any items were agreed on dur-
ing any of those meetings. At the time of the hearing herein the
terms of the implemented agreement were still in place at the
facility. Nichols also testified that no one from the talent unit
ever participated in the negotiations for the contract which was
to commence in 1994. When he testified herein Gallagher testi-
fied that the parties continued to meet and they have finalized
the grievance and arbitration procedures.21
By letter dated March 1, 1995, General Counsel’s Exhibit
64, Sanders denied Bame’s above-described February 20, 1995,
information request, indicating that Bane’s request has no rela-
tion to any pending subject of negotiations, and is not even
limited to bargaining unit employees. Sanders went on to indi-
cate “unless you can demonstrate why the requested informa-
tion is relevant to negotiating issues, it will not be provided.”
Bame testified that Respondent provided certain of the in-
formation requested in his above-described February 20, 1995
letter at the end of January 1997.22 Meyer testified that this
information, Respondent’s Exhibit 20, was provided in a bar-
gaining session which he attended in January 1997.
________
20 In his March 9, 1995 letter, R. Exh. 17, to Nichols, Bame indi-
cated “[t]his information may not be related to any pending subject of
negotiations; however, it is necessary for us to have this information to
properly represent the bargaining unit employees.” In his March 22,
1995 letter, R. Exh. 18, Sanders advised Bame that “the requested
information has no relevancy to any of the negotiated issues with the
Union, and with respect to employees who are not even members of the
. . . unit, there are confidentiality and privacy issues which preclude our
complying with your request for information.”
21 To the extent that Bame’s testimony duplicates the unchallenged
testimony that Gallagher had already given about what occurred at the
various bargaining sessions it is not summarized above.
22 He explained that Respondent only complied with the request as
far as it dealt with bargaining unit employees; and that the Union’s
duties to the employees in the involved units extend beyond negotiating
the collective-bargaining agreements to the Federal and state laws.
Analysis
In my opinion, Respondent violated the Act aa alleged in the
complaint.
Paragraph 6(a) of the complaint alleges that between Sep-
tember 22, 1994, and February 3, 1995, Respondent insisted, as
a condition of reaching any collective-bargaining agreement,
that they agree to consolidate the two involved units into one
contract. Paragraph 6(b) of the complaint alleges that the condi-
tion described above in paragraph 6(a) is not a mandatory sub-
ject for the purposes of collective bargaining. And paragraph
6(c) alleges that about February 3, 1995, in support of the con-
dition described above in paragraph 6(a), Respondent declared
impasse and implemented its proposal, including the condition
described above in paragraph 6(a), as described below in para-
graphs 7(a) through 7(c). As pointed out in Antelope Valley
Press, 311 NLRB 459, 464 (1993), in NLRB v. Borg-Warner
Corp., 356 U.S. 342 (1958), the Supreme Court held that insis-
tence to impasse is available to a party only with respect to a
mandatory subject of bargaining. Insistence to impasse on a
permissive subject of bargaining violates the statutory duty to
bargain in good faith. The scope of a unit does not involve
wages, hours, or other terms and conditions of employment,
and therefore is a permissive subject. Thus neither party may
bargain to impasse over a change in the scope of the bargaining
unit. As pointed out by the General Counsel on brief, by com-
bining the two units into a single recognition clause, Respon-
dent altered the scope of the involved units. It then made this a
part of its final offer and implemented it on February 3, 1995.
When it did this Respondent failed and refused to bargain in
good faith in violation of Section 8(a)(1) and (5) of the Act. As
pointed out in PRC Recording Co., 280 NLRB 615, 634 (1986),
good-faith bargaining is a prerequisite to reaching bona fide
impasse. Respondent violated the Act as alleged in paragraph 6
of the complaint.
Paragraph 7(a) of the complaint alleges that about February
3, 1995, Respondent implemented changes in the terms and
conditions of employment of the employees in the involved
units including, but not limited to: (i) removing one-half hourly
rate premium pay for hours worked over 8 hours in a day; (ii)
reducing guaranteed 5-1/3 hours premium pay to 3 hours’ pre-
mium pay for employees called in to work on their days off;
(iii) reducing premium pay from 2-1/2 times to 2 times rate of
pay for employees called in to work on a scheduled vacation
day; (iv) removing a fifth week of vacation for employees with
more than 25 years of active service with Respondent; (v) re-
ducing paid sick leave time by 10 days per year; (vi) removing
guaranteed 12-hour rest period between assignments for em-
ployees and removing the half hourly rate premium pay for
employees called in to work during their 12-hour rest period;
(vii) permitting supervisors to perform bargaining unit work
thereby reducing the amount of overtime available to bargain-
ing unit employees; (viii) removing classification jurisdiction
thereby allowing Respondent to assign employees to work in
higher-paying job classifications without paying to employees
the higher wages associated with such job classifications; and
(ix) creating a two-tier wage structure which caused employees
hired after November 4, 1994, to be paid lower wages than
other employees. Paragraph 7(b) alleges that the subjects set
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
forth above in this paragraph relate to terms and conditions of
employment of the involved units and are mandatory subjects
for the purposes of collective bargaining. Paragraph 7(c) of the
complaint alleges that Respondent engaged in the conduct de-
scribed above in paragraph 7 notwithstanding the fact that Re-
spondent and the Union had not reached a lawful impasse dur-
ing negotiations. And paragraph 7(d) of the complaint alleges
that Respondent engaged in the conduct described above in
paragraph 7 without prior notice to the Union and without af-
fording the Union an opportunity to bargain with Respondent
with respect to this conduct and the effects of this conduct. The
subjects set out in this paragraph are mandatory subjects of
bargaining since they relate to terms and conditions of em-
ployment. The Union did not agree to these changes. And there
was not and there could not have been a lawful impasse here.
Indeed, Respondent was well aware of that fact and it did not
declare an impasse but rather unlawfully implemented its final
offer just after trying to arrange further negotiations before
implementation. Respondent’s changes were, according to its
own general manager, extensive. Changes were made in the last
negotiating session before February 3, 1995. Indeed a major
change was made in the first session after Respondent imple-
mented its final offer. The parties were not at an impasse on
February 3, 1995. Respondent violated the Act as alleged in
paragraph 7 of the complaint.
Paragraph 8 of the complaint alleges that since February 20,
1995, the Union by letter has requested that Respondent pro-
vide it with information regarding the Respondent’s Affirma-
tive Action Plan and related information, the information is
necessary for and relevant to the Union’s performance of its
duties, and since about March 1, 1995, Respondent has failed
and refused to furnish this information to the Union. The 1991–
1994 agreements and the proposed agreement contain policy
against discrimination clauses. The Union explained its need.
Yet the Respondent waited almost 2 years before providing the
information. As pointed out by the Board in Westinghouse
Electric Corp., 239 NLRB 106 (1978), in this situation a union
has a statutory and a contractual right to make a good-faith
effort to correct any discrimination and the information sought
is relevant. And as pointed out in General Electric Co., 290
NLRB 1138 (1988), the type of delay experienced here consti-
tutes a failure and refusal to bargain in good faith in violation
of Section 8(a)(1) and (5) of the Act. Respondent violated the
Act as alleged in paragraph 8 of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer 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 meaning of
Section 2(5) of the Act and at all times material is the represen-
tative for purposes of collective bargaining for the employees in
the units consisting of the following:

All cameramen, projectionists, audio and video technicians,
including switchers, transmitter technicians, and floorman-
directors, film cutters, producer-directors, film editors, art di-
rectors, news photographers, continuity clerks, continuity co-
ordinators, and production assistants, and excluding radio an-
nouncers operating radio control equipment, office and cleri-
cal employees, guards and professional employees and super-
visory employees as defined in the Act.

All regular full-time anchors, reporters and announcers at
WKJG-TV Studios in Fort Wayne, Indiana; but excluding the
general manager, the farm director, the news director, the
public affairs director, all office clerical employees, all profes-
sional employees, guards and supervisors as defined in the
Labor Management Relations Act, as amended, as that unit of
employees is described in the certification of representative,
issued May 14, 1974, at Indianapolis, Indiana, in Case No.
25–RM–386 of the National Labor Relations Board.

3. The Respondent violated Section 8(a)(1) and (5) of the
Act by:
(a) Insisting, as a condition of reaching any collective-
bargaining agreement, that the Union agree to consolidate the
two units its represents into one contract and implementing this.
(b) Without a lawful impasse and without affording the Un-
ion an opportunity to bargain with Respondent with respect to
this conduct and the effects of this conduct, implementing
changes on February 3, 1995, in the terms and conditions of
employment of the employees in the involved units including,
but not limited to: (i) removing one-half hourly rate premium
pay for hours worked over 8 hours in a day; (ii) reducing guar-
anteed 5-1/3 hours premium pay to 3 hours’ premium pay for
employees called in to work on their days off; (iii) reducing
premium pay from 2-1/2 times to 2 times rate of pay for em-
ployees called in to work on a scheduled vacation day; (iv)
removing a fifth week of vacation for employees with more
than 25 years of active service with Respondent; (v) reducing
paid sick leave time by 10 days per year; (vi) removing guaran-
teed 12-hour rest period between assignments for employees
and removing the half hourly rate premium pay for employees
called in to work during their 12-hour rest period; (vii) permit-
ting supervisors to perform bargaining unit work thereby reduc-
ing the amount of overtime available to bargaining unit em-
ployees; (viii) removing classification jurisdiction thereby al-
lowing Respondent to assign employees to work in higher-
paying job classifications without paying to employees the
higher wages associated with such job classifications; and (ix)
creating a two-tier wage structure which caused employees
hired after November 4, 1994, to be paid lower wages than
other employees.
(c) Failing and refusing to furnish the information to the Un-
ion which it sought in its February 20, 1995 letter as it relates to
members of the involved bargaining units.
4. The unfair aforesaid labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action set
forth below to effectuate the policies of the Act.
Having found that Respondent has made unilateral changes
in certain terms and conditions of employment in violation of
Section 8(a)(1) and (5) of the Act, I recommend that Respon-
dent revoke, on request, said unilateral changes. Also, I rec-
ommend that Respondent be ordered to make whole its em-
ployees for any loss they might have suffered as a result of
Respondent’s unlawful implementation on February 3, 1995,
with interest as authorized by New Horizons for the Retarded,
Inc., 283 NLRB 1173 (1987). The recommended Order will
also provide that Respondent give to the Union the information
CORP. FOR GENERAL TRADE (WKJG-TV 33) 629
it requested in its February 20, 1995 letter as it relates to bar-
gaining unit employees and bargain in good faith with the Un-
ion as the exclusive collective-bargaining representative of the
above-described units.
[Recommended Order omitted from publication.]