KGTV

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1283 (N.L.R.B. 2010)

KGTV
355 NLRB No. 213
1283
McGraw-Hill Broadcasting Company, Inc., d/b/a
KGTV and National Association of Broadcast
Employees and Technicians-Communications
Workers of America, AFL–CIO. Cases 21–CA–
38193 and 21–CA–38294
September 30, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
The issues before the Board in this case are whether
the Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union over its deci-
sion to lay off three part-time bargaining unit employees,
and by refusing to bargain over the effects of the layoff
decision. The judge recommended dismissal of these
allegations, concluding that the Respondent had com-
plied with its bargaining duty concerning both matters.1
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, and conclusions only
to the extent consistent with this Decision and Order.2
As to the issue of decision bargaining, our analysis dif-
fers from that of the judge, but we nevertheless find no
violation of the Act. However, we do find an effects-
bargaining violation.
I.
The Respondent operates a television station in San
Diego. The Union has represented a unit of technicians
and other employees in collective bargaining with the
Respondent and its predecessors since 1953. The par-
ties’ most recent collective-bargaining agreement expired
on January 31, 2006. Following the contract’s expira-
tion, the parties continued day to day under the terms of
the expired agreement.3

1 On October 10, 2008, Administrative Law Judge Gregory Z. Mey-
erson issued the attached decision. The General Counsel filed excep-
tions and a supporting brief, the Respondent filed a brief answering the
exceptions, and the General Counsel filed a reply brief. In addition, the
Respondent filed cross-exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed a reply
brief.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) by unilaterally changing the terms of access to an
office in the Respondent’s facility used by the Union.
3 The record is unclear whether the parties extended the contract day
to day or simply honored its terms under the statutory duty to maintain
the status quo following contract expiration. In finding that the Re-
spondent unlawfully failed to bargain over the effects of the layoffs, we
have assumed that there was an extension of the contract—the circum-
stance most favorable to the Respondent’s position here. See generally
In early December 2007, the Respondent decided to
terminate a Sunday morning newscast because of low
ratings.4 Later in December, the Respondent determined
that the reduced hours of full-time unit employees due to
the cancellation of the newscast implicated a provision of
the expired collective-bargaining agreement that requires
that the working hours of part-time unit employees be
limited to a certain percentage of the working hours of
full-time unit employees. The Respondent unilaterally
decided to lay off three part-time employees to remain in
compliance with the terms of the contract.
Article 5.4 of the expired collective-bargaining agree-
ment addresses layoffs of bargaining unit employees.
Pursuant to its provisions, by memoranda dated January
9, 2008,5 the Respondent gave notice to part-time em-
ployees Roberto Rios, Ilo Neukam, and Melissa Sass that
they would be laid off effective January 31. The Union
also received official copies of the layoff notices on
January 9. The notices were consistent with the require-
ments of article 5.4, with the exception that 3 weeks’
advance notice was provided instead of the 6 weeks set
forth in the contract. The January 9 notices offered the
employees 3 weeks of additional severance pay in lieu of
an additional 3 weeks’ notice.
On January 14, the Union requested in writing that the
Respondent bargain over the effects of the announced
layoffs. It also requested information in support of the
Respondent’s contention that the layoffs were necessary.
The Respondent replied by email on January 16. In rele-
vant part, it stated that “‘effects bargaining’ does not
apply here,” that “[i]n any event, the parties have already
bargained about layoffs” (referring to art. 5 of the agree-
ment), and that there was “no duty to bargain further
about layoffs.” The Respondent did agree to provide
information supporting its calculation of the percentage
limits on part-time hours required to comply with the
contract.
On January 17, the Union filed a grievance alleging
that the January 9 layoff notices violated the parties’ con-
tract, and requesting that the notices be rescinded. On
January 25, the parties met to discuss the grievance.
During the meeting, the Union repeated its request to
bargain over the effects of the layoffs. The Respondent’s
reply was negative, consistent in substance with its Janu-
ary 16 email.

E. I. DuPont De Nemours, Louisville Works, 355 NLRB No. 176, slip
op. at 2 (2010). At the time of the unfair labor practice hearing, in July
2008, the parties had yet to reach an agreement on a successor contract.
4 No party contends that this decision was a mandatory subject of
collective bargaining.
5 All subsequent dates are in 2008.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1284
On January 31, the three part-time employees were
laid off. On February 1, the Union filed a second griev-
ance which essentially restated the earlier one. It also
requested more information showing why the layoffs
were necessary, and it challenged the Respondent’s fail-
ure to provide the full 6 weeks’ notice required by the
contract.
The Union did not request bargaining over the layoff
decision itself, nor (according to the hearing testimony of
Union President Dennis Csillag) did the Respondent state
that it would not bargain over the decision. Csillag testi-
fied that the reason the Union did not request decision
bargaining was because the Respondent had issued the
January 9 contractual layoff notice.
II.
The General Counsel alleged that the Respondent
unlawfully refused to bargain about the decision to lay
off the 3 part-time unit employees and also failed to bar-
gain over the decision’s effects. The judge, relying on
article 5.4 of the expired collective-bargaining agreement
addressing layoffs, concluded that no additional bargain-
ing was required. He recommended dismissal of the al-
legations. The General Counsel excepts.
In an alternative analysis, the judge addressed the Re-
spondent’s separate contention that the Union’s failure to
request bargaining over the layoff decision relieved the
Respondent of any duty to bargain. The judge rejected
this argument, reasoning that if (contrary to his finding)
the Respondent did have a duty to bargain, it had pre-
sented the Union with a “fait accompli,” excusing the
Union’s failure to request decision bargaining. The Re-
spondent cross-excepts.
III.
The questions before us, then, are whether the Re-
spondent violated Section 8(a)(5) either in connection
with the layoff decision (over which the Union never
requested bargaining) or in connection with the effects of
that decision (over which the Union did request bargain-
ing). We address each issue in turn.
A.
We conclude that the Respondent did not unlawfully
refuse to bargain over the layoff decision, given the Un-
ion’s failure to request bargaining.
The legal principles governing this issue are well es-
tablished. See, e.g., Bell Atlantic Corp., 336 NLRB
1076, 1086 (2001). Before implementing a change in-
volving a mandatory bargaining subject, an employer is
required to give timely notice to the union and a mean-
ingful opportunity to bargain. Once notice is received,
the union must act with “due diligence” to request bar-
gaining, or risk a finding that it has waived its bargaining
right. However, a union may be excused from the bar-
gaining request requirement if the employer’s notice
provides too little time for negotiation before implemen-
tation, or if the employer otherwise has made it clear that
it has no intention of bargaining about the issue. In these
circumstances, a bargaining request would be futile, be-
cause the employer’s notice informs the union of nothing
more than a “fait accompli.” A fait-accompli finding
requires objective evidence; a union’s subjective impres-
sion of its bargaining partner’s intention is insufficient.
Here, the Respondent’s January 9 layoff notice issued
3 weeks in advance of the implementation date. In the
circumstances, this was an adequate period for the parties
to negotiate over the layoff decision.6 The operative
question is whether the Respondent’s conduct otherwise
objectively communicated to the Union that a request to
bargain about the decision would have been futile.
The judge found a fait accompli, relying on three fac-
tors to establish the futility of a bargaining request. First,
the Union’s two grievances demonstrated that the Union
“did not acquiesce” in the Respondent’s layoff decision.
Second, the Respondent’s simultaneous notice to the
Union and the affected employees on January 9 demon-
strated an “unyielding position” on its decision. Third,
the Respondent had made clear to the Union that bar-
gaining concerning the decision was not required be-
cause of the terms of article 5.4. Applying Board prece-
dent, we conclude that the judge erred in relying on these
three factors to find a fait accompli.
That the Union filed grievances about the layoff deci-
sion does not demonstrate that the Respondent had no
intention of bargaining about the decision.7
Nor is simultaneous notice, such as the Respondent’s
January 9 memoranda, necessarily an indication that an
employer would refuse a bargaining request.8 So long as
the union has sufficient actual notice of a pending change
in employment conditions, as it did here, no particular
form of notice is required.9
Finally, with respect to the Respondent’s invocation of
article 5.4 in response to the Union’s request to bargain
over effects of the layoffs, the evidence shows that by the

6 Compare Bell Atlantic, supra at 1088 (2 weeks sufficient);
Medicenter, Mid-South Hospital, 221 NLRB 670, 673, 678 (1975) (2
days sufficient).
7 The filing of the grievances by itself does not satisfy the Union’s
affirmative duty to request bargaining. Under existing precedent, at
most it establishes a protest of the layoff decision. See W-1 Forest
Products Co., 304 NLRB 957, 961 (1991); Haddon Craftsmen, 297
NLRB 462 (1989) (filing grievance does not constitute bargaining
request). See also Clarkwood Corp., 233 NLRB 1172 (1977), enfd.
mem. 586 F.2d 835 (3d Cir. 1978); Medicenter, supra at 679 (mere
protest is not sufficient to satisfy bargaining request requirement).
8 See Bell Atlantic, supra at 1086–1087.
9 See Medicenter, supra at 678, and cases cited there.
KGTV 1285
time the Union requested effects bargaining, it had al-
ready determined not to request bargaining over the lay-
off decision. According to Union President Csillag, the
reason that the Union did not request decision bargaining
was because the Respondent had issued the January 9
contractual layoff notice. He testified that, in contrast to
the events in January 2008, in 2002 the Union had re-
ceived informal notice of a prospective layoff a week
before the contractual notice, and that the parties had had
a meeting about it. In Csillag’s view, the Respondent’s
failure in the present case to provide similar advance
notice meant that “the horse left the stable,” i.e., the Re-
spondent had already made the layoff decision without
consulting the Union. For Csillag, this meant that it was
too late to request decision bargaining.10 Our case law is
to the contrary, however. A union is entitled to bargain
over a decision even after it has been made, but before it
has been implemented. Similarly, an employer is not
required to bargain before making its decision, but it is
required to delay implementation to allow for good-faith
collective bargaining once the decision has been made.11
The Respondent met that obligation here. Csillag’s sub-
jective belief that the January 9 notice foreclosed deci-
sion bargaining, unsupported by objective evidence, was
insufficient to excuse the Union’s failure to request bar-
gaining.12
Accordingly, the 8(a)(5) decision bargaining allegation
is dismissed.13

10 The General Counsel argues that the Respondent acted inconsis-
tently with the parties’ past practice, contributing to a fait-accompli
finding. However, Csillag’s testimony, concerning a single instance in
2002, is insufficient to support a finding of a past practice. See, e.g.,
Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003),
enfd. 112 Fed.Appx. 65 (D.C. Cir. 2004) (alleged past practice must be
shown to have occurred with regularity and frequency over an extended
period of time).
11 See, e.g., Bell Atlantic, supra at 1088, and cases cited there.
12 See Haddon Craftsmen, 300 NLRB 789, 790–791 (1990), review
denied sub nom. mem. Graphic Communications Workers Local 97B v.
NLRB, 937 F.2d 597 (3d Cir. 1991).
13 In light of the dismissal, we need not address the judge’s conclu-
sion that art. 5.4 of the expired collective-bargaining agreement re-
lieved the Respondent of any duty to bargain over the layoff decision.
In any event, the three cases cited by the judge to support his view
are not controlling here: Port Printing AD & Specialties, 351 NLRB
1269 (2007); Odebrecht Contractors of California, 324 NLRB 396
(1997); and Farina Corp., 310 NLRB 318 (1993). In Port Printing,
supra, the Board observed in dicta that “in the absence of an agreed-
upon contractual provision on the subject, an employer is generally
obligated to bargain with an incumbent union with respect to both the
decision to conduct a layoff and the effects of that decision.” 351
NLRB at 1269. The Board proceeded to find that the employer’s fail-
ure to bargain over a layoff decision was excusable because of “eco-
nomic exigencies”; it also found that the employer unlawfully failed to
bargain concerning the layoff’s effects. No particular contract provi-
sions were at issue. Nor did Odebrecht, supra, involve the effect of a
contractual provision. Rather, the judge observed in passing that where
B.
We reach a different result with respect to the effects-
bargaining allegation. It is undisputed that the Union
requested bargaining over the effects of the layoffs an-
nounced on January 9, and that the Respondent refused
that request. Our holding that the Respondent was not
required to bargain over the layoff decision, in turn, does
not preclude finding an effects-bargaining violation.14
The judge found that having negotiated article 5.4 of
the collective-bargaining agreement, which addressed
layoffs, the Respondent was not required to engage in
additional bargaining over the effects of the layoff deci-
sion. The principal difficulty with this finding—even
assuming the contract had been extended and the cor-
rectness of the judge’s analytical framework—is that at
the time it refused to engage in effects bargaining, the
Respondent had not complied with at least one provision
of the expired article 5.4: the requirement that laid-off
employees be given 6 weeks’ advance notice. Instead,
the Respondent gave the employees 3 weeks’ notice and
offered 3 weeks of additional severance pay in lieu of
notice. Even assuming that compliance with the expired
contract’s provisions governing the effects of layoff
would have privileged the Respondent’s actions, the Re-
spondent did not comply with those provisions, but uni-
laterally altered them.15 Moreover, to the extent that
there were effects of the layoffs on the remaining unit
employees, such as changes in workload, article 5.4 did
not purport to address them, and they would remain sub-
ject to bargaining as well.16

parties have yet to negotiate layoff rules, they are required to bargain
over such procedures. 324 NLRB at 403. In Farina, supra, dicta in the
judge’s decision, affirmed by the Board, pointed out there may be un-
ions and employers who have incorporated layoff provisions in their
collective-bargaining agreements “in a more mature labor relations
context than the one presented in th[at] case.” 310 NLRB at 320.
Meanwhile, the Board has found an 8(a)(5) violation involving a
layoff decision, notwithstanding a contractual provision addressing
layoffs. See Teamsters Local 71, 331 NLRB 152 (2000) (applying
“clear and unmistakable waiver” standard). Compare Public Service
Co., 312 NLRB 459, 460–461 (1993) (subcontracting provision did not
waive union’s right to bargain).
14 See, e.g., Allison Corp., 330 NLRB 1363, 1365 (2000) (duty to
bargain over effects of subcontracting decision, even where no obliga-
tion to bargain over decision itself).
15 Our dissenting colleague points out that the failure to follow the
contract provision requiring 6 weeks advance notice of the layoff was
not alleged to be an unlawful, unilateral change. But we do not find
that the failure to follow that provision was a separate, unlawful unilat-
eral change, but merely that, even assuming the contract remained in
effect, the Respondent’s failure to comply with the contract provision
prevents the Respondent from relying on it as a defense to the allega-
tion that it refused to bargain over the layoff’s effects.
16 Compare Mt. Sinai Hospital, 331 NLRB 895, 911 (2000) (contrac-
tual provision requiring employer to provide certain information to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1286
Accordingly, we reverse the judge’s dismissal and find
that the Respondent’s rejection of the Union’s request for
effects bargaining violated Section 8(a)(5).
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy
the Respondent’s unlawful refusal to bargain with the
Union about the effects of its decision to lay off three
part-time unit employees, we shall order the Respondent
to bargain with the Union, on request, about layoff ef-
fects, consistent with our decision. Because of the Re-
spondent’s unlawful conduct, however, the laid-off unit
employees have been denied an opportunity to bargain
through their collective-bargaining representative.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted.
Accordingly, in order to ensure that meaningful bar-
gaining occurs and to effectuate the policies of the Act,
we deem it necessary to accompany our bargaining order
with a limited backpay remedy designed to make whole
the employees for losses suffered as a result of the Re-
spondent’s failure to bargain with the Union about the
effects of its layoff decision, and to recreate in some
practicable manner a situation in which the parties’ bar-
gaining positions are not entirely devoid of economic
consequences for the Respondent. We shall do so by
ordering the Respondent to pay backpay to the laid-off
employees in a manner similar to that required in Trans-
marine Navigation Corp., 170 NLRB 389 (1968), as
clarified by Melody Toyota, 325 NLRB 846 (1998).
Thus, the Respondent shall pay its laid-off employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until the occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of the layoffs; (2) a bona fide
impasse in bargaining; (3) the Union’s failure to request
bargaining within 5 business days after receipt of this
Decision and Order, or to commence negotiations within
5 days after receipt of the Respondent’s notice of its de-
sire to bargain with the Union; or (4) the Union’s subse-
quent failure to bargain in good faith.

union does not constitute waiver of statutory right to other information,
unless waiver is expressly stated in agreement).
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which they were laid off to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ. Back-
pay shall be based on earnings that the laid-off employ-
ees would normally have received during the applicable
period, less any net interim earnings, and shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).17
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, McGraw-Hill Broadcasting Company, Inc.,
d/b/a KGTV, San Diego, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with National As-
sociation of Broadcast Employees and Technicians –
Communications Workers of America, AFL–CIO, by
laying off employees at its San Diego, California facility
without affording the Union notice and an opportunity to
bargain over the effects of the layoff decision.
(b) Refusing to bargain collectively with the Union by
unilaterally changing the parties’ past practice in order to
prohibit Dennis Csillag, the nonemployee union presi-
dent, from having access to the union office at the Re-
spondent’s facility.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the appropriate unit, which is set forth
in article 1 of the collective-bargaining agreement refer-
enced above.

17 The General Counsel requests that the Board’s current practice of
awarding only simple interest on backpay and other monetary awards
be replaced with a practice of compounding interest on a quarterly
basis. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
KGTV 1287
(b) On request, bargain with the Union with respect to
the effects of its decision to lay off employees.
(c) Pay the laid-off unit employees Roberto Rios, Ilo
Neukam, and Melissa Sass their normal wages for the
period set forth in the amended remedy section of this
decision.
(d) Restore the parties’ past practice of permitting
nonemployee Union President Dennis Csillag access to
the union office at the Respondent’s facility.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in San Diego, California, copies of the at-
tached notice marked “Appendix.”18 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 21, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 16,
2008.
(g) 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.

MEMBER HAYES, concurring in part and dissenting in part.
I agree with my colleagues that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by failing to
bargain about its decision to lay off three part-time em-
ployees. Unlike the majority, however, I find no need to
rely on the Union’s failure to request decisional bargain-

18 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.”
ing. As did the judge, I find that the parties’ collective-
bargaining demonstrates that they fully bargained about
the mandatory subject of layoffs, thus relieving the Re-
spondent of any obligation to engage in further bargain-
ing when undertaking layoffs during the term of the con-
tract, as extended. For the same reason, I disagree with
my colleagues that the Respondent violated Section
8(a)(5) by refusing to bargain about the effects of the
layoff. The Respondent’s failure to follow the contrac-
tual procedure providing for 6 weeks’ advance notice of
the layoff was not alleged to be an unlawful unilateral
change. As an apparent contractual breach, the notice
issue could have been addressed in discussion of either
one of the two grievances filed by the Union, but the
Respondent’s action did not invalidate the remainder of
the contractual agreement permitting the Respondent to
act unilaterally in making the layoffs. Consequently, I
dissent from the majority’s reliance on the notice breach
to impose a statutory effects bargaining obligation that
has already been satisfied.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain collectively with Na-
tional Association of Broadcast Employees and Techni-
cians – Communications Workers of America, AFL–CIO
(the Union) by laying off employees without affording
the Union notice and an opportunity to bargain with us
over the effects of the layoff decision.
WE WILL NOT refuse to bargain collectively with the
Union by unilaterally changing our past practice in order
to prohibit Dennis Csillag, the nonemployee union presi-
dent, from having access to the union office at our San
Diego facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1288
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, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the appropriate unit, which is set
forth in article 1 of the collective-bargaining agreement
referenced above.
WE WILL, on request, bargain with the Union with re-
spect to the effects of our decision to lay off employees.
WE WILL pay laid-off employees Roberto Rios, Ilo
Neukam, and Melissa Sass their normal wages for the
period set forth in the amended remedy for refusing to
provide the Union prior notice and an opportunity to bar-
gain with us with respect to the layoff effects referenced
above.
WE WILL restore our past practice of permitting non-
employee Union President Dennis Csillag access to the
union office at our San Diego facility.

MCGRAW-HILL BROADCASTING COMPANY,
INC., D/B/A KGTV

Robert MacKay, Esq., for the General Counsel.
John D. Collins, Esq. and Matthew W. Holder, Esq., of San
Diego, California, for the Respondent.
Matthew Harris, Esq., of Washington, D.C, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GREGORY Z. MEYERSON, Administrative Law Judge. Pursu-
ant to notice, I heard this case in San Diego, California, on July
29, 2008. National Association of Broadcast Employees and
Technicians-Communications Workers of America, AFL–CIO
(the Union or the Charging Party) filed an unfair labor practice
charge in Case 21–CA–38193 on January 17, 2008, and filed
another unfair labor practice charge in Case 21–CA–38294 on
April 2, 2008. Based on those charges, the Regional Director
for Region 21 of the National Labor Relations Board (the
Board) issued a Consolidated Amended Complaint and Notice
of Hearing (the complaint) on June 10, 2008. The complaint
alleges that McGraw-Hill Broadcasting Company, Inc. d/b/a
KGTV (the Respondent or the Employer) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
The Respondent filed a timely answer to the complaint denying
the commission of the alleged unfair labor practices and raising
a number of affirmative defenses.1
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-

1 All pleadings reflect the complaint and answer as those documents
were finally amended.
dence, to examine and cross-examine witnesses, and to argue
orally and file briefs. Based upon the record, my consideration
of the briefs filed by counsel for the General Counsel and coun-
sel for the Respondent, and my observations of the demeanor of
the witnesses, I now make the following findings of fact and
conclusions of law.2
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is a New York corporation with an office and place
of business in San Diego, California, where it has been engaged
in the business of operating a television broadcasting station
located at 4600 Air Way, herein called the San Diego, Califor-
nia facility. Further, I find that annually the Respondent, in the
course and conduct of its business operations, derives gross
revenues in excess of $100,000, advertises nationally for the
sale of products, and purchases and receives at its San Diego,
California facility goods valued in excess of $50,000 directly
from points outside the State of California.
Accordingly, I conclude that the Respondent is now, and at
all times material herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Dispute
The dispute between the parties involves two separate and
distinct incidents. 1. The first dispute is whether the Respon-
dent and the Union had an established past practice of allowing
nonemployee union officials access to an office at the Respon-
dent’s facility, hereinafter referred to as the “union office.” It is
the contention of the General Counsel and the Union that such a
past practice had been established and that the Respondent
violated Section 8(a)(1) and (5) of the Act by unilaterally dis-
continuing that practice. The Respondent denies that any such
practice existed and, further, that even assuming such a past
practice, the Respondent was justified in changing the practice
and prohibiting access to the office by the Union’s president
because of his misconduct.
2. The second dispute is whether the Respondent’s decision
to lay off three unit employees was made unilaterally, without
first providing the Union with advance notice and an opportu-
nity to bargain. The General Counsel and the Union contend

2 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
KGTV 1289
that the Respondent did so, in violation of Section 8(a)(1) and
(5) of the Act. However, the Respondent contends that it was
under no obligation to further bargain with the Union, having
previously engaged in collective-bargaining over layoffs, which
bargaining resulted in agreement as contained in the parties’
most recent contract. Also, the Respondent alleges that the
Union waived any right to bargain over the layoff decision, as it
never specifically requested such bargaining. Finally, the Re-
spondent contends that its decision to lay off the three employ-
ees was the direct result of a managerial decision to discontinue
a live weekend news broadcast, which programming decision
was a nonmandatory subject of bargaining. According to the
Respondent, even assuming it unlawfully refused to bargain
with the Union over the “layoff decision,” as the decision to lay
off the employees was directly “linked” to that non-mandatory
subject of bargaining, an appropriate remedy would not include
reinstatement and full backpay.
As a collateral issue, the General Counsel and the Union also
contend that the Respondent refused to engage in “effects bar-
gaining” over the layoff of the unit employees in violation of
Section 8(a)(1) and (5) of the Act. The Respondent continues
to argue that the issue of layoffs was covered by the parties’
collective-bargaining agreement, which also encompassed the
effects of such layoffs, and, thus, it was under no obligation to
engage in further bargaining over effects.
A second collateral issue over which the parties disagree is
that of remedy. Assuming that the Respondent violated the Act
by unilaterally laying off the unit employees and/or by failing
to bargain over the effects of the layoff, the General Counsel
and the Union contend that the appropriate remedy for the un-
fair labor practices would be reinstatement, with full backpay to
the laid off employees. The Respondent argues that a more
limited remedy as set forth in Transmarine Navigation Corp.,
170 NLRB 389 (1968), is proper under such circumstances.
B. The Facts
For the most part, the facts in this case are not in dispute.
The Respondent operates a television broadcasting station in
San Diego, California. The Union has represented a unit of the
Respondent’s employees at its San Diego, California facility
since approximately the 1950s.3 The Union and the Respon-
dent have been parties to successive collective-bargaining
agreements, the most recent of which was effective by its terms
from October 1, 2002, through January 31, 2006 (the expired
contract). (GC Exh. 2.) The parties have not reached agree-
ment on the terms of a successor contract. Since the expiration
of the last contract, the Respondent has, for the most part,
maintained the terms and conditions of that contract.4

3 In its answer to the complaint, the Respondent admits that the unit
of employees as set forth in article 1 of the most recent collective-
bargaining agreement between the Union and the Respondent consti-
tutes a unit appropriate for the purposes of collective bargaining within
the meaning of Sec. 9(b) of the Act. Further, the Respondent admits
that based on Sec. 9(a) of the Act, that the Union has been the exclusive
collective-bargaining representative of the employees in the Unit since
at least October 1, 2002, the effective date of the last contract.
4 A post-impasse change involving jurisdiction over unit work has
no bearing on the issues in this case.
1. Access to the union office
Dennis Csillag was employed by the Respondent from July
1981 until May 30, 2006, when he was terminated. Initially he
was employed as an operations technician, and at the time of
his discharge he was classified as a director. These were bar-
gaining unit positions. Since 1986, he has served as the union
president. Csillag has continued to hold that office following
his termination. As president, his duties are, as one would ex-
pect, to participate in contract negotiations, administer the col-
lective-bargaining agreement, process grievances, and meet
with management and workers to discuss issues of concern or
dispute.
The expired contract between the Respondent and the Union
does not contain any provision regarding the Union’s use of an
office at the Respondent’s facility. However, the undisputed
testimony at the hearing established that in approximately 1990,
during contract negotiations, the parties orally agreed that the
Union could use an “office” at the Respondent’s facility. From
the collective testimony of various witnesses, it appears that the
Union was given exclusive use of this office, with electricity
and telephone provided by the Respondent. The intent was to
provide the Union with a place to lock up its files. There was
apparently no further discussion between the parties as to the
specificity for which the Union would use the office.
It is undisputed that the “union office” is located on the sec-
ond floor of the Respondent’s facility. There is a lock on the
door, to which only the union officers have a key. The office is
cramped, approximately 10 feet by 10 feet in size. It contains a
desk, file cabinet, chairs, computer, printer, telephone, and
answering machine. The Union’s records are maintained in this
office, including previous collective-bargaining agreements,
grievances, and correspondence.
Csillag testified that both before and after his termination, he
used this office to perform all manner of functions in his capac-
ity as union president, including storing records, reviewing
documents, preparing correspondence and grievances, and
meeting with unit employees. As all the union officers, who
until Csillag’s discharge were also all employees of the Re-
spondent, had keys to the office, they were in the habit of using
the office to leave records and other documents for review by
fellow officers. Regarding those specific uses, the Respon-
dent’s witnesses testified that they had no knowledge that union
officers were using the space for “meetings.”
As noted earlier, the Respondent fired Csillag on May 30,
2006. During the hearing, counsel for the Respondent sought
to introduce evidence as to the reasons for Csillag’s discharge.
Over the objection of counsel for the General Counsel and
counsel for the Union, I permitted a limited amount of such
testimony.5 It was the Respondent’s contention that the alleged
misconduct, which led to Csillag’s discharge, as well as other

5 Following my ruling, I did offer the Union and the General Coun-
sel the opportunity, if they chose, to offer some exculpatory evidence as
to the alleged misconduct of Csillag. However, for the most part, such
evidence was not proffered. In any event, for the purpose of rendering
a decision in this case, it is not necessary for me to make any findings
as to the truthfulness of the reasons given by management for Csillag’s
discharge, and I specifically make no such finding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1290
inappropriate behavior by Csillag, ultimately caused the Re-
spondent to prohibit his access to the union office.
In summary fashion, I will simply indicate that the Respon-
dent takes the position that it fired Csillag for “tampering with,
sabotaging and deleting/destroying company property,” and
also for “[m]aking false statements to company investigators
during the course of their investigation.” Specifically, he was
accused of deleting files from a computer. (Res. Ex. 1.) In any
event, Csillag continued to serve as union president. At his
termination meeting, Csillag informed the Respondent’s direc-
tor of operations and engineering, Mike Biltucci, and opera-
tions manager, Patrick Givans6 that he would still need access
to the union’s office at the facility.
It is undisputed that Biltucci gave Csillag permission to con-
tinue using the office. According to Csillag, all he was required
to do was to call ahead and tell Biltucci that he was coming to
the facility at some specific time. He testified that from his
termination in May of 2006, until Sept of 2007, he went to the
Respondent’s facility to use the office on the average of twice a
month, where he would remain anywhere from 15 minutes to a
couple of hours. During that time period, Csillag was never
denied access to the office. Typically, upon arriving at the
facility, Csillag would go to the lobby where he would wait for
Biltucci to escort him part way to the office. Upon leaving the
office, he would alert Biltucci, who might walk him back to the
lobby, or perhaps not.
Biltucci’s testimony was somewhat different, but not materi-
ally so. He testified that following his termination, Csillag was
given permission to visit the facility under certain conditions.
Those conditions included calling ahead to get permission from
either Biltucci or Givans, indicating the time of the visit, the
nature of the visit, and how long he would be visiting. Accord-
ing to Biltucci, Csillag was escorted in and out of the facility
because the Respondent did not want him “roaming around the
facility unfettered.” As expressed by the Respondent’s wit-
nesses, they did not trust Csillag following his termination.
In any event, until September 2007, there were no particular
problems regarding Csillag’s access to the union office.7 How-
ever, on September 26, 2007, Csillag received an email from
Paul Kaderabek, the Respondent’s business director. Kadera-
bek complained about Csillag’s alleged failure to abide by the
parties’ previous agreement on access to the office, in particular
Csillag having allegedly entering the facility without an ap-
pointment and then being found in parts of the facility that he
had no permission to enter. The message informed Csillag that
in the future he would be allowed on the premises only after
receiving advance permission from Biltucci or Givans to be so,
only in the areas of the facility that he had been given permis-
sion to be in, and would have to adhere to a time limit at the
facility, which would need to be approved by management.
(GC Exh. 4.) Csillag testified that he considered this message

6 At the time of the hearing Givans was the Respondent’s director of
technology.
7 During this same period of time, Csillag was at the facility without
incident on a number of occasions for reasons other than visiting the
union office, such as for the purpose of attending grievance meetings or
to serve as a Weingarten representative.
as having alerted him to a change in the past practice. Being
unhappy with these perceived changes, Csillag responded with
an email dated September 27, 2007,8 in which he proposed his
own changes in the past practice. (GC Exh. 5.)
The Respondent apparently takes the position that the Sep-
tember 26 message from Kaderabek was nothing more than a
recitation of the conditions, previously agreed upon, that Csil-
lag must comply with in order to seek access to the office fol-
lowing his termination. My review of this document is in line
with the Respondent’s position. Further, the General Counsel
does not allege in his complaint that the September 26 message
changed the terms under which access to the office had been
permitted Csillag.
There then followed a series of emails between the parties
where the issue of access to the office was further discussed.
(GC Exh. 7.) In any event, according to Csillag, during a meet-
ing at the Respondent’s facility in late October of 2007, the
parties agreed that the procedures that had been in place before
Kaderabek’s September 26 email would remain in place. Ac-
cordingly, Csillag continued to use the union office under the
conditions that had been imposed immediately following his
termination. This remained the situation until December 28,
2007.
On December 28, Csillag received an email from Patrick
Givans, which email accused Csillag of misconduct during a
disciplinary meeting for an employee that had been attended by
Csillag on December 21. Allegedly, Csillag “resisted leaving
[the meeting] when asked, threatened to harass the Station with
multiple access requests . . . threatened and demeaned manag-
ers in front of an employee, and then abused access permission
by remaining on the property talking to Station employees.”
Further, the email accused Csillag of causing “similar problems
in September and before.” Givans reminded Csillag that he had
been “terminated for destroying Company property,” and con-
tended that the attempt to allow Csillag “some continued access
without jeopardizing Company security or productivity . . . has
not worked.” The email informed Csillag that effective imme-
diately he “will not be allowed on-site simply to use Company
office space or equipment,” and that neither he nor any other
nonemployee would have access to the union office. (GC Exh.
8.) It is these statements in the email that the General Counsel
contends in paragraphs 7(a), (c), (d), and 8 of the complaint
constitute a violation of the Act, as a unilateral change in the
parties’ past practice.
In should be noted that Givans’ email attempts to make a dis-
tinction between the Respondent’s denial of access by Csillag
and other nonemployees to the union office, and Csillag’s con-
tinued access to the Respondent’s facility “for specific official
meetings under the same guidelines,” [as were previously im-
posed]. Further, the email assures Csillag that if there are per-
sonal or union documents in the office that are needed by Csil-
lag, he can make arrangements with those union officers who
are employees to deliver them to Csillag. Givans notes that the
office will continue to be available for the Respondent’s em-
ployees, who are also union officers, for storage of union mate-
rial and for “other purposes as in the past.” (GC Exh. 8.)

8 All dates are in 2007 unless otherwise indicated.
KGTV 1291
Not surprisingly, the parties disagree as to what transpired at
the meeting of December 21, which allegedly precipitated
Givans’ email of December 28. According to Mike Biltucci,
Csillag was at the facility on December 21 to attend a discipli-
nary action regarding employee John Suarez. Present were
Biltucci, Givans, Csillag, and Suarez. Biltucci testified that the
meeting needed to end by a specific time because Suarez was
scheduled to direct the 5 p.m. newscast. Nevertheless, Csillag
allegedly refused to leave until he finished his note-taking.
Biltucci informed Csillag that he had 60 seconds to finish, after
which Csillag replied that management would “just have to get
security to get [him] out of [the facility].” Further, Biltucci
alleges that Csillag told the two management officials that they
“disgusted him,” and that he hoped that they “would get what
was coming” to them. Regarding the union office, Biltucci
testified that Csillag indicating that because of the end of the
year accounting issues for the Union, he would need to make
several extended visits to the office to prepare materials for the
accountant. Biltucci further testified that once out of the Re-
spondent’s building, Csillag remained in the parking lot for 10-
15 minutes talking with several employees, one of whom was
allegedly on duty.
It is the Respondent’s position that Csillag’s conduct consti-
tuted harassment and necessitated the prohibition against non-
employees, specifically Csillag, using the union office, as set
forth in Givans’ letter of December 28. (GC Exh. 8.) During
the hearing, Csillag did not specifically deny Biltucci’s account
of the December 21 meeting. However, in Csillag’s December
29 email to Givans, which is a response to Givans’ email of the
previous day, Csillag does deny that he “resist[ed] leaving” the
facility or that he threatened the two managers, although he does
admit telling them that their “actions are disgusting.” He ac-
knowledges talking with several off-duty employees in the park-
ing lot, and of telling management that he would need to visit the
facility more than usual before the end of the year, but denies that
this was intended as harassment.9 (GC Exh. 9.)
In closing his email of December 29, Csillag states the Union’s
position that the union office “was the subject of previous nego-
tiations,” has been “in daily use [by the Union] for 17 years,” and
that “to deny access to the Local President is interfering with the
Union and is unlawful.” (GC Exh. 9.) On January 8, 2008,
Givans replied by email, essentially denying Csillag’s conten-
tions, and standing on his earlier correspondence. (GC Exh. 10.)
Since December 28, Csillag has had no access to the union of-
fice. However, it is undisputed that during this period he has
continued to have access to the Respondent’s facility for other
purposes, including representing the Union at grievance meet-
ings. There is no contention by the General Counsel or the Union
that Csillag has been denied access to the Respondent’s facility
since December 28, for any reason other than to use the union
office.

9 While the parties obviously disagree as to the specific events oc-
curring at the December 21 meeting, for the purpose of deciding the
issues before me it is not necessary that I resolve any issues of credibil-
ity arising from the respective testimony about this meeting. In order to
evaluate the parties’ respective legal positions, I will conclude that the
testimony of Mike Biltucci was accurate as to the events of December
21.
Csillag testified that prior to his notification on December 28
that he would no longer be permitted to access the union office,
management never offered to bargain over access. It is the Gen-
eral Counsel’s contention that the Respondent’s conduct consti-
tuted a unilateral change in the parties’ past practice, and, as
such, a violation of the Act. The Respondent argues that as this
denial of access to the union office by Csillag did not affect unit
employees’ terms and conditions of employment, and was not
material, substantial, and significant, it, therefore, did not consti-
tute a violation of the Act.
2. The layoffs
As noted earlier, the most recent collective-bargaining agree-
ment between the parties expired on January 31, 2006. (GC Exh.
2.) That contract contains a number of provisions relating to the
layoff of bargaining unit employees. Certain of those contract
provisions are as follows:

Reduction of Staff: Should it become necessary at any time,
on account of reduction in staff, for the Company to layoff
any Employee, the Company shall give such Employee no-
tice in writing at least six (6) weeks in advance, and on the
effective date of their layoff grant a service letter. In addi-
tion, severance pay shall be given on the following basis:
[chart]. . . . (Art. 5.4, p. 12.) [Emphasis added.]

The Company shall notify the Local [Union] President in
writing, within (7) days of . . . (c) layoffs of NABET-CWA
Employees. (Art.10.3, p. 25.)

[Recall rights for employees during periods of] layoff. (Art.
5.4.1 and 5.4.2, p. 12-13.)

Layoffs on account of reduction of staff shall be made in in-
verse order of seniority within the staff. (Art. 5.4.3, p. 13.)
[Emphasis added.]

Reduction in Staff Through Automation: [payment chart].
. . . (Art. 5.5, p. 13.)

The expired contract also contains a comprehensive grievance
procedure covering “all complaints, disputes or questions as to
the interpretation, application or performance of this Agree-
ment.”10
In December 2007, the Respondent’s management team made
a decision to eliminate weekend daytime production, specifically
the Sunday morning newscast. The reasons for management’s
decision were a combination of low ratings for the newscast, and
the expectation that it would be replaced by a religious broadcast,
which was far more lucrative. The final Sunday morning news-
cast was aired in early December 2007.
Article 3.1.4 (GC Exh. 2, p. 4) of the expired collective-
bargaining agreement provides for a ratio of part-time and tempo-
rary employees’ hours worked to the regular, full-time employ-
ees’ hours worked. Said somewhat differently, based on that
ratio, there are a maximum number of hours that can be worked

10 It should be noted that no party has taken the position that either
the layoff provisions or the grievance procedure provisions fail to sur-
vive the expiration of the contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1292
by part-time and temporary employees.11 In order to maintain
this ratio, as the number of hours worked by full-time employees
decrease, the maximum number of hours worked by part-time
and temporary employees must be reduced.
According to the testimony of Mike Biltucci, the elimination
of the weekend morning newscast resulted in fewer hours being
worked by the full-time employees. He testified that in mid-
December of 2007, he recognized that in order to be in confor-
mity with the ratio provision in the expired contract, he would
need to lay off some part-time employees.12 He contends that
there was no other way to stay within the ratio provision in the
contract, and, therefore, the decision was made by management
to lay off three part-time employees.
By memorandum dated January 9, 2008, Biltucci informed
part-time employees Roberto Rios, Ilo Neukam, and Melissa
Sass that they were being laid off “in inverse order of seniority as
required by the collective bargaining agreement.” It was ex-
plained in the memo that this reduction in force was necessary in
order not to exceed the maximum percentage of part-time hours
worked to full time-hours, as provided for in the contract. Fur-
ther, the employees were informed that the contract calls for 6
weeks advance notice and 4 weeks of severance pay. However,
they were told that since the advance notice given was 3 weeks
instead of 6, that they would be provided with an additional three
weeks of severance pay. The Union was copied on the memo.
(GC Exh. 11.)
It is undisputed, that prior to the issuance of the layoff memo,
the Union was not consulted about the Respondent’s decision to
lay off part-time employees in an effort to maintain the hours
worked ratio. Further, it is undisputed that the Respondent’s
managers never specifically offered to bargain with the Union
over their decision to lay off the three part-time employees.
Also, it appears uncontested that the Union never affirmatively
asked to bargain over this decision.
It is the position of the Respondent that bargaining over lay-
offs had previously taken place, at the time the most recent con-
tract was entered into. As the expired contract contained a num-
ber of provisions covering the issue of layoffs, the Respondent
contends that no further bargaining was required. Counsel for the
Respondent argues that under the terms of that contract, if the
Union believed the layoffs in question were not “necessary,” a
grievance was the appropriate method of resolving this issue.
(GC Exh. 2, art. 5.4 and 7.1) Further, the Respondent argues that
even if there had been a duty to bargain over the layoff decision,
the Union waived its right to engage in such bargaining by failing
to specifically request bargaining of the Respondent.
It is the position of the Union and the General Counsel that the
Union was not required to specifically request that the Respon-
dent bargain over its decision to lay off, as that decision had been
presented to the Union as an accomplished fact. Furthermore, the

11 No party has taken the position that the provision concerning the
ratio of part-time and temporary employees’ hours worked to the hours
worked by regular, full-time employees fails to survive the expiration
of the contract.
12 It is the position of the Union that there may have been ways to
reduce the number of hours worked by part-time or temporary employ-
ees, so as to stay within the contractual ratio, other than through the
layoff of part-time employees.
General Counsel and the Union argue that the Respondent should
have understood, based on the Union’s subsequent actions, that
the Union did not acquiesce in the decision.
By letter dated January 14, 2008, Csillag responded to the Re-
spondent’s notice of layoff. Specifically, the Union requested
“effects” bargaining over the planned layoffs, and requested cer-
tain financial and documentary records so as to consider the Re-
spondent’s contentions regarding the necessity of the layoffs.
(GC Exh. 12.) In response, Paul Kaderabek, the Respondent’s
business director, sent Csillag an email. In that message,
Kaderabek stated that he had been “advised that ‘effects bargain-
ing’ does not apply here.” Further, the message indicated that
“the parties have already bargained about layoffs. See Article 5
of the expired agreement.” He repeated that “[t]here is no duty to
bargain further about layoffs,” and declined to furnish the re-
quested financial records. However, he did agree to “provide
information about the projected part-time/full-time hours’ ratio.”
(GC Exh. 13.)
Under cross-examination, Csillag responded affirmatively that
he “never, ever asked the company to bargain over the decision
to conduct the layoffs.” Still, he indicated that no request was
proffered “because the decision had already been made.” Never-
theless, the Union subsequently filed two grievances, which ap-
peared to challenge the Respondent’s layoff action. On January
17, 2008, the Union filed a grievance under the terms of the ex-
pired contract, stating as its grievance the claim that the “Com-
pany issued layoff notices to 3 Employees in violation of the
collective bargaining agreement.” As to remedy, the grievance
indicated, “[r]escind the layoff notices.” (GC Exh. 14.) A sec-
ond grievance was filed on February 1, 2008, stating as its griev-
ance the claim that the “Company laid-off 3 Employees-Roberto
Rios, Ilo Neukam and Melissa Sass-on January 31, 2008, without
providing information showing the layoffs were necessary and
without providing the required notice.” As to remedy, the griev-
ance indicated, “[p]rovide information showing the layoffs were
necessary and make these Employees whole for all lost wages
and benefits or return them to work.” (GC Exh. 15.)
Certainly these two grievances appear to challenge the Re-
spondent’s decision to lay off the three employees, with the sec-
ond grievance specifically questioning whether the layoffs were
“necessary” under the terms of the contract. In any event, the
parties met to discuss the first grievance on January 25, 2008.
Present for the meeting on behalf of the Respondent were Paul
Kaderabek and Patrick Givans, with the Union represented by
Csillag and Robert Buchanan, union vice president. However, it
appears that little was accomplished at the meeting.
While the parties’ views as to the tenor of this meeting differ
somewhat, for the most part they agree as to which matters were
discussed, and which were not discussed. Csillag acknowledged
under cross-examination that he did not orally request bargaining
over the Respondent’s decision to lay off, did not suggest any
alternative to the layoffs, and did not make any proposals about
the layoff decision. Again, he testified that he did not discuss
these matters because the Respondent had already announced its
decision. According to Csillag, the Respondent limited the meet-
ing to providing the Union with the Respondent’s reasons for the
layoff decision, specifically the problem with the ratio between
part-time and full-time employees, and the Respondent’s justifi-
KGTV 1293
cation for not complying with a provision in the expired contract
regarding the amount of notice that must be given to employees
being laid off.
Regarding the Union’s request to bargain over the effects of
the layoffs, Csillag testified that Paul Kaderabek refused, saying
that the Respondent did not need to do so, as the effects of layoffs
had already been bargained over and was covered under the
terms of the expired collective-bargaining agreement. Csillag
claims that Kaderabek read from a “memo” stating the Respon-
dent’s position. It appears that Csillag is referring to Kadera-
bek’s email of January 16, 2008, wherein he indicated, “that
‘effects bargaining’ does not apply here . . . as the parties have
already bargained about the layoffs. See Article 5 of the expired
agreement.” (GC Exh. 13.) Csillag admits that the Respondent’s
managers never cut the meeting short; it simply ended when it
became apparent that further discussion would not be productive.
Csillag acknowledges that the Respondent has been processing
grievances filed under the terms of the expired contract, estimat-
ing that approximately 30 such grievances have been filed by the
Union and entertained by the Respondent.13 However, the Re-
spondent has taken the position that the arbitration provisions of
the contract do not survive the agreement’s expiration. Appar-
ently the Respondent has refused to process to arbitration any
grievances filed since the expiration of the contract.14
The three employees in question were laid off as of January
31, 2008. The Union then filed the second grievance, as dis-
cussed above, dated February 1, 2008. (GC Exh. 15.) While
Csillag testified on direct examination that the Respondent has
never met with the Union to discuss this particular grievance, this
is somewhat inconsistent with his testimony on cross-
examination that the Respondent has not refused to process
grievances filed under the terms of the expired contract.15 In any
event, the second grievance was for the most part simply a repeti-
tion of the first grievance, over which the parties had met on
January 25, 2008.
Following the meeting of January 25, 2008, there were a series
of emails exchanged between Csillag and Kaderabek wherein the
parties seem merely to have restated their respective positions.
(GC Exh. 17.) Attached to Kaderabek’s correspondence was a
worksheet the Respondent prepared setting forth the hours
worked by various employees, and the difficulty the Respondent
faced in attempting not to exceed the maximum hours worked by
part-time employees under the ratio as provided for in the expired
contract. (GC Exh. 18.) This information had been previously

13 Art. 7.1 of the expired contract sets forth the grievance procedure,
specifically the establishment of a “Joint Conference Committee,”
comprised of management and union representatives. (GC Exh. 2, p.
16.)
14 The General Counsel has not alleged this conduct by the Respon-
dent to constitute a violation of the Act.
15 While Csillag’s testimony regarding the processing of grievances
was somewhat unclear, it seems reasonable to assume that the parties
never met to discuss the second grievance either because the Union did
not request such a meeting; or because the Respondent took the posi-
tion that such a meeting was unnecessary, as the matters discussed at
the January 25, 2008 meeting encompassed the same issues as raised by
the second grievance.
requested by the Union. Thereafter, the parties held no further
meetings regarding the layoffs.
C. Analysis and Conclusions
1. Access to the union office
Counsel for the Respondent spends considerable effort in his
brief arguing against a finding, under Section 8(a)(1) of the Act,
that the Respondent’s action in denying access to the union office
to union president Csillag interfered with, restrained, or coerced
employees in the exercise of their Section 7 rights. However,
counsel’s efforts are misplaced. The complaint before me does
not allege an independent violation of Section 8(a)(1) of the Act.
Rather, the alleged violation of the Act is found under Section
8(a)(5), as a failure and refusal to bargain collectively with the
Union over access to the union office. The complaint clearly
indicates that such is the violation of the Act alleged by the Gen-
eral Counsel. The 8(a)(1) violation referred to in the complaint is
merely a derivative of the 8(a)(5) allegation. In these circum-
stances, the 8(a)(1) allegation can not stand alone, and can only
survive if the 8(a)(5) allegation is found to have merit. As there
is no independent 8(a)(1) allegation before me, I make no finding
regarding any such issue, and I need not address these arguments
by counsel.
It is next argued by counsel for the Respondent that the 8(a)(5)
allegation has no merit since Csillag’s use of the union office was
not a mandatory subject of bargaining. Further, counsel contends
that even if it was a mandatory subject, the Respondent’s change
in past practice by denying access to Csillag was not material,
substantial, and significant. In any event, counsel argues that the
Respondent was justified in denying Csillag access because of his
prior misconduct and the Respondent’s legitimate property inter-
ests.
Of course, it is well established that a unilateral change in
terms and conditions of employment involving a mandatory sub-
ject of bargaining violates Section 8(a)(5) of the Act. See the
seminal cases of Bethlehem Steel Co. (Shipbuilding Div.), 136
NLRB 1500, 1503 (1962); and NLRB v. Katz, 369 U.S. 736, 743.
In a very recent case, Alcoa, Inc., 352 NLRB 1222 (2008), the
Board held that an employer’s past practice of allowing employ-
ees to leave work early to attend union meetings had become a
term and condition of employment and was a mandatory subject
of bargaining. The Board reiterated the well established principle
that an employer proposing a change in employment conditions
must give the union representing its employees advance notice
and must allow the union a “reasonable and meaningful opportu-
nity to bargain” before the new policy is implemented. As the
employer had done so, the Board found no violation. See also
Intersystems Design & Technology Corp., 278 NLRB 759, 760
(1986), and cases cited therein; Dorsey Trailers, Inc., 327 NLRB
835, 858 (1999), enfd. in part 233 F.3d 831 (4th Cir. 2000).
In Dorsey Trailers, Inc., the Board held that good-faith bar-
gaining requires timely notice and a meaningful opportunity to
bargain regarding the employer’s proposed changes, as no genu-
ine bargaining can be conducted where the decision has already
been made and implemented, as in a “fait accompli.” In deter-
mining whether a union has been presented with a “fait accom-
pli,” the Board looks for objective evidence. (citing to Mercy
Hospital of Buffalo, 311 NLRB 869, 873 (1993)).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1294
Regarding the specific issue at hand, namely Csillag’s access
to the Union’s office, it is well settled that a union’s right of ac-
cess to represent employees is a mandatory subject of bargaining.
An employer cannot unilaterally prohibit a union representative
from visiting its facility, where the visits are established through
past practice, even though not specifically incorporated in the
collective-bargaining agreement. Further, even where the em-
ployer has accused the agent of misconduct, the employer is re-
quired to give the union notice and an opportunity to bargain
before making a unilateral change. Granite City Steel Co., 167
NLRB 310, 315–316 (1967); see also Peerless Food Products,
236 NLRB 161, 161 (1978).
As was noted above, at Csillag’s termination meeting on May
30, 2006, he raised the issue of his continued access to the union
office, since he was no longer an employee but remained the
union president. It is undisputed that Biltucci orally gave Csillag
permission to continue using the office, as long as he called
ahead and informed Biltucci that he would be coming to the facil-
ity to use the office at some specific time. Although there was
subsequently some disagreement between Csillag and the Re-
spondent’s managers as to whether Csillag was fully abiding by
the conditions that he had agreed to in order to access the office,
Csillag’s access to the office remained largely unfettered until
December 28, 2007. During that period of approximately 19
months, from the end of May 2006 until the end of December
2007, Csillag asked for and received permission to access the
union office approximately twice a month, where he would re-
main for up to several hours. Therefore, I conclude that Csillag’s
access to the office was well established, first through a negoti-
ated agreement between Csillag and Biltucci on May 30, 2006,
and then by a past practice established during 19 months of use.
The fact that this agreement covered only one nonemployee,
namely Csillag, did not diminish its significance, as it was obvi-
ously intended to allow the union president to continue to access
the union office, as he had regularly done prior to his termina-
tion.16
An employer’s attempt to restrict a union agent’s right to ac-
cess the employer’s facility, in the agent’s representative capac-
ity, where such access has been established by negotiations or
through past practice, is a mandatory subject of bargaining when
the proposed changes are material, substantial, and significant.
Peerless Food Products, supra. Under the circumstances of this
case, I find the Respondent’s December 28, 2007 email to Csillag
informing him that he would no longer be permitted access to the
union office (GC Exh. 8.) to constitute a material, substantial, and
significant unilateral change.
Counsel for the Respondent in his posthearing brief refers to
this denial of access by the union president to the union office as
“a trivial dispute,” which “could not rise to the level of ‘material,
substantial, and significant.”’ However, unlike the denial of
access in Peerless, where the Board found no violation, the de-
nial of access to Csillag limited the ability of the union president
to access the Union’s files, use the Union’s computer, and meet
with other union officers, who continued to be employed by the
Respondent, as well as with other bargaining unit employees.

16 There is no evidence that any other union official was actually de-
nied access to the office.
Counsel for the Respondent makes much of the fact that other
union officers had access to the office, that the Respondent was
unaware that the office was being used for meetings, and that
such meetings could be held between Csillag and employees off
the Respondent’s property. Further, counsel points out that Csil-
lag was not denied access to the Respondent’s facility for other
representational purposes, such as the processing of grievances,
but only regarding the union office. Finally, counsel argues that
the Union was free to establish an office off the Respondent’s
property, in which it could keep its files and computer, and hold
meetings.
However, in my view, these arguments by counsel for the Re-
spondent miss the point. It is not for the Respondent to decide
what use the union president may make of any office used by the
Union on the Respondent’s property, where access to that office
has been furnished to the union president through negotiations
and past practice.17 The “union office” was certainly being used
for representational purposes. It was being so used by the local
union’s president, its highest ranking officer. He used the office
to access files, use the computer, and meet with other union offi-
cers and bargaining unit members. It is axiomatic that such use
was for representational purposes protected by the Act. The
denial of this access to Csillag was clearly material, substantial,
and significant. It was not ameliorated by the fact that others had
access to the office, or because Csillag continued to be allowed
on the property for other purposes, or because the Union might
have established an office elsewhere.
I conclude that the Respondent’s denial of Csillag’s access to
the union office had a material, substantial, and significant nega-
tive impact on the Union’s representational activity on behalf of
the bargaining unit employees, and, thus, potentially affected
their terms and conditions of employment. The Respondent uni-
laterally implemented this change in the access policy on De-
cember 28, 2007, without giving the Union advance notice or an
opportunity to bargain over the change. The only remaining
issue is the Respondent’s contention that it was justified in deny-
ing Csillag access to the union office because he had engaged in
misconduct, and was not abiding by the access agreement of May
30, 2006.
In his posthearing brief, counsel for the Respondent cites a
number of cases to support his position that Csillag’s alleged
misconduct warranted the Respondent’s prohibition of access for
Csillag to the union office. However, I believe all these cases are
distinguishable. There is no doubt that the Board has repeatedly
held that the Act requires a balancing of two conflicting rights,
namely those of employees to be represented by a labor organiza-
tion of their choice, with the right of an employer to control its
property and ensure that its operations are not interfered with.
Holyoke Water Power Co., 273 NLRB 1369, 1370 (1985). That
is particularly true where the access issue applies to non-
employee union agents. Still, the Holyoke case is distinguishable
as it involved a “request” by the bargaining representative to
allow for an industrial hygienist to make an inspection of the
employer’s facility, rather than the continuation of a well-

17 Obviously, this would not apply where the Union was using the
office for illegal or immoral purposes, or where the Union’s use of the
office was disruptive of the Respondent’s operation.
KGTV 1295
established past practice, as in the matter before me. Similarly, in
Houston Coca-Cola Bottling Co., 265 NLRB 766, 777–779
(1982), the General Counsel failed to establish the existence of a
past practice for access, and the union’s attempt to access the
employer’s facility was made during a decertification campaign.
Under these unique circumstances, the employer’s offer to have
the nonemployee union agents “escorted” while on its property
was considered reasonable.
The issue before me is far different, as the parties had a past
practice of some 19 months, from May 2006 to December 28,
2007, of allowing Csillag, the nonemployee union president, to
have access to the union office. If the Respondent had genuine
concerns about Csillag’s conduct, it could have raised the issue
with the Union and engaged in good faith negotiations in an at-
tempt to reach an agreement on access for Csillag. Instead, the
Respondent simply unilaterally promulgated a policy prohibiting
Csillag from coming on its property for the purpose of accessing
the union office. As counsel for the General Counsel points out
in his posthearing brief, the Respondent’s reasons and concerns
about Csillag’s conduct did not relieve the Respondent of its
bargaining obligation. Peerless Food Products, supra at 161.
The Respondent did not notify and bargain with the Union, it
simply unilaterally changed what had become a well established
past practice of allowing Csillag access to the Respondent’s facil-
ity so that he could utilize the union office. As noted earlier,
access for the Union to the Employer’s property is undoubtedly a
mandatory subject of bargaining, which affects the employees’
terms and conditions of employment, and the change to that pol-
icy was material, substantial, and significant.
The Respondent claims to have genuine concerns about Csil-
lag’s alleged destruction of its property, for which he was fired,
regarding his alleged untruthfulness during the investigation of
that incident, about his alleged failure to abide by the conditions
under which he was allowed access to the union office, and re-
garding his alleged disruption of the Respondent’s operation and
disrespect toward management. However, regardless of whether
these were serious issues over which the Respondent was genu-
inely concerned, the Respondent was not relieved of its bargain-
ing obligation toward its employees’ representative.18 If the Re-
spondent desired to prevent Csillag from accessing the union
office at its facility, it was required to notify the Union and give
the Union the opportunity to bargain.19 This it failed to do.
Accordingly, I conclude that by unilaterally changing the
terms and conditions under which Csillag, as union president, had
been permitted access to the union office, the Respondent has
been failing and refusing to bargain collectively with the Union
in violation of Section 8(a)(1) and (5) of the Act, as alleged in
paragraphs 7(a), (c), (d), and 8 of the complaint.

18 In order to address the allegations in the complaint, it is not neces-
sary for me to resolve the Respondent’s contention that Csillag engaged
in misconduct, both before and after his discharge. I specifically make
no such finding.
19 The Respondent does not contend that Csillag’s alleged miscon-
duct was so egregious as to require his immediate exclusion from the
Respondent’s facility, and, in fact, the Respondent sought only to pro-
hibit Csillag’s access from the “union office.”
2. The layoffs
Counsel for the Respondent makes a number of arguments in
support of his position that the Respondent did not fail and refuse
to negotiate with the Union regarding the layoff of three bargain-
ing unit employees. In my view, the strongest of these arguments
is the contention that the parties did in fact previously bargain
over layoffs, and that said bargaining resulted in contractual lan-
guage, as contained in the most recent contract. The Respondent
acknowledges that the issue of layoffs is a mandatory subject of
bargaining, which, therefore, normally requires notification to a
collective-bargaining representative and an opportunity to bar-
gain before an employer can lay off employees. This particular
argument by counsel does not include any contention that the
Union waived its right to bargain, but, rather, that the Union and
the Respondent did in fact bargain to agreement over this issue,
which is allegedly demonstrated by the various provisions relat-
ing to lay offs in the most recent collective-bargaining agreement.
As argued by the Respondent, the Board cases do seem to con-
sistently hold that additional bargaining over layoffs is not re-
quired when a union and an employer have already negotiated
over layoffs and incorporated the results of those negotiations
into a collective-bargaining agreement. See Port Printing & AD
& Specialties, 351 NLRB 1269 fn. 2 (2007); Odebrecht Contrac-
tors of California, Inc., 324 NLRB 396, 403 (1997); Farina
Corp., 310 NLRB 318, 320 (1993). Counsel for the Respondent
further argues that an employer is simply not required to negoti-
ate all over again each time the layoff provision it already negoti-
ated with the union comes into play. That does appear to be the
logical result of the Board’s holdings in the three above-cited
cases. Of course, in the case at hand, one needs to look at the
precise language in the most recent collective-bargaining agree-
ment to determine whether in fact the Respondent and the Union
have set forth procedures for the layoff of employees, if neces-
sary.
Looking to the most recent contract between the parties, which
expired on January 31, 2006 (GC Exh. 2), there appear to be a
number of provisions that involve both the layoff of employees,
as well as the effects of such layoffs. Those provisions were
enumerated earlier in this decision, where they are cited by spe-
cific article and page number. They include a “reduction of staff”
provision that indicates if it should “become necessary . . . on
account of reduction in staff . . . to layoff any employee, the [Em-
ployer] shall give such employee notice in writing at least six (6)
weeks in advance, and . . . grant a service letter.” Also, it pro-
vides that “severance pay shall be given on the following basis.
. . . [a chart follows].” Other provisions in the contract provide
for layoff notification to the Union in writing; the recall right of
laid off employees; and the requirement that “layoffs on account
of reduction in staff shall be made in inverse order of seniority
within the staff.”
I agree with counsel for the Respondent that the existences of
these provisions demonstrate that the Respondent and the Union
have previously negotiated over these matters and have estab-
lished rules regarding how layoffs are to be handled. Of particu-
lar significance is the comprehensive grievance procedure in the
contract covering “all complaints, disputes or questions as to the
interpretation, application or performance of this Agreement.”
(GC Exh. 2; art. 7.1, p. 16.) It is clear that the grievance proce-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1296
dure survives the expiration of the contract, even if the arbitration
provision does not.20 If the Union objected to the Respondent’s
decision to lay off the three employees in question, it could file a
grievance over whether such a layoff was “necessary.” In fact,
that is precisely what the Union did, filing two such similar
grievance on January 17 and February 1, 2008, respectively.
(GC Exhs. 14 and 15.) Further, the parties did meet to discuss
the first grievance on January 25, 2008, although the matter was
obviously not resolved.
What useful purpose could the layoff and grievance provisions
in the contract serve if in every instance where a layoff was con-
sidered “necessary” by the Respondent, the Respondent was
required to bargain anew with the Union? I can determine none.
The Board cases hold and logic dictates that once the parties have
negotiated over these layoff issues and incorporated the results of
their agreement in a contract no further such negotiations are
required. Nothing could more clearly demonstrate this conclu-
sion than the requirement in the collective-bargaining agreement
that the Union be given written notice within 7 days of the lay-
offs. It would certainly not foster the interests of collective-
bargaining to require the Respondent to give some advance no-
tice to the Union of its decision to lay off different from the con-
tractual requirements, to which the parties had previously agreed.
Accordingly, I conclude that the Respondent’s conduct sur-
rounding the layoff of the three employees in question did not
constitute an unlawful refusal to notify the Union and to provide
the Union with the opportunity to bargain over its decision to lay
off the workers. As the layoff provisions in the collective-
bargaining agreement are the result of the parties successful bar-
gaining efforts over these matters, no further negotiations were
required. Therefore, I shall recommend that complaint para-
graphs 7(b), (c), (d), and 8, only as they relate to the layoff deci-
sion issue, be dismissed.
Although I have concluded that the Respondent was not under
any legal obligation to further negotiate with the Union over its
decision to lay off the employees, I will briefly address the Re-
spondent’s alternative contention that even if required to so nego-
tiate, the Union waived its right to bargain over the decision by
not specifically requesting such bargaining. Essentially, the Re-
spondent is taking the position that the Union waived any right to
bargain by its inaction in not requesting bargaining. I disagree.
The facts establish that the Union was first notified of the Re-
spondent’s layoff decision on January 9, 2008, at the same time
that the employees to be laid off were so notified. The notifica-
tion memo from management was addressed to the three employ-
ees to be laid off, Roberto Rios, Ilo Neukam, and Melissa Sass,
with a copy sent to the Union. (GC Exh. 11.) Although the ac-
tual layoffs did not occur until January 31, 2008, the decision was
presented to the employees and the Union as a “fait accompli.”
Union President Csillag testified that, thereafter, the Union never
specifically requested that the Respondent bargain with it over
the “decision” to lay off employees. It is this failure on the part

20 The fact that the arbitration provision of the collective-bargaining
agreement did not survive the expiration of the contract is simply one
of the consequences of the failure by the parties to reach agreement on
the terms of a new contract. It does not detract from the otherwise
viable provisions of the surviving grievance procedure.
of the Union to specifically request bargaining over the decision
that the Respondent claims constituted a waiver of the Union’s
right to bargain.
However, in my view, it should have been obvious to the Re-
spondent that the Union did not acquiesce in the layoff decision.
While the testimony of Csillag was somewhat contradictory, he
did testify at one point that no request to bargain over the deci-
sion was proffered “because the decision had already been
made.” Still, the clearest evidence that the Union wanted the
layoff decision reversed was the two grievances filed by the Un-
ion on January 17 and February 1, 2008, respectively. (GC Exhs.
14 and 15.) In the January 17 grievance, the requested remedy
was for the Respondent to “[r]escind the layoff notices.” Simi-
larly, in the February 1 grievance, the Union requested as a rem-
edy that the Respondent “[p]rovide information showing the
layoffs were necessary and make these employees whole for all
lost wages and benefits or return them to work.”
It seems to me that the two grievances clearly challenged the
Respondent’s decision to lay off the three employees, with the
second grievance specifically questioning whether the layoffs
were “necessary” under the terms of the contract. In any event,
the parties met to discuss the first grievance on January 25, 2008.
At the hearing, Csillag admitted under cross-examination that he
did not orally request bargaining over the decision to lay off, did
not suggest any alternative to the layoffs, and did not make any
proposals regarding the layoffs. He testified that he did not raise
these issues at the meeting because the Respondent had already
announced the layoffs and its managers indicated no interest in
altering their decision. The meeting was limited to a discussion
of the Respondent’s reasons for the layoffs, specifically the prob-
lem with the ratio between the part-time and full-time employees,
the issue of notice to the employees scheduled for layoff, and the
Respondent’s refusal to bargain over the “effects” of the layoff.
The Respondent’s managers took the position that the parties had
already bargained over “effects,” as was allegedly reflected by
the language in the expired collective-bargaining agreement.21
The Board has held that where an employer gives notice to a
union of its intent to change a condition of employment, and
where the notice is given too short a time before implementation,
or under circumstances where it is clear that the employer has no
intention of bargaining about the subject, then a violation will be
found even if the union has failed to request bargaining. In such
cases, the Board has found that the notice is intended to accom-
plish nothing more than informing the union of a “fait accompli.”
Bell Atlantic Corp., 336 NLRB 1076, 1086 (2001). Similarly,
the Board has generally found that the announcement of changes
given to employees before notification is given to the Union is
sufficient to establish that the employer’s decision is a “fait ac-
compli.” Such late notice to a union precludes the possibility of
meaningful bargaining, and, therefore, the union has no reason to
request bargaining. Roll & Hold Warehouse & Distribution
Corp., 325 NLRB 41 (1997).
In the matter at hand, the Respondent informed the Union of
its decision to lay off employees at the same time it so notified

21 The issue of whether the Respondent violated the Act by allegedly
refusing to bargain over the “effects” of the layoff will be discussed
later in this decision.
KGTV 1297
the very employees scheduled to be laid off. Nothing in the Re-
spondent’s subsequent actions appeared to suggest anything other
than that its decision to lay off employees constituted an unyield-
ing position. See Mercy Hospital of Buffalo, 311 NLRB 869, 873
(1993). In my view, the Union was certainly reasonable in con-
cluding, based on the Respondent’s actions, that the Respon-
dent’s position on the layoffs was unyielding. Under those cir-
cumstances, the Union was not obligated to specifically request
bargaining over the decision.
In any event, the Union’s subsequent actions were sufficient to
put the Respondent on notice that it did not intend to acquiesce in
the Respondent’s decision. See Oak Rubber Co., 277 NLRB
1322, 1323 (1985), enf. denied mem. 816 F.2d 681 (6th Cir.
1987); Armour & Co., 280 NLRB 824, 828 (1986). As noted
above, the Union filed two grievances over the layoffs, both of
which sought to have the layoff decision reversed.
It was the Respondent’s position that no bargaining was re-
quired over its decision to lay off employees, as bargaining had
previously occurred and agreement by the parties reflected in the
expired contract. The Respondent’s conduct demonstrated that
any request by the Union to bargain over the decision would be
futile, as the decision was a “fait accompli.” Under these circum-
stances, the Union was not required to specifically ask the Re-
spondent to bargain over its decision, and the Union’s failure to
do so did not constitute a waiver of its right to bargain. National
Car Rental System, 252 NLRB 159, 163 (1980), enfd. in relevant
part 672 F.2d 1182 (3d Cir. 1982); Intersystems Design Corp.,
278 NLRB 759 (1986).
Accordingly, I conclude that under the circumstances of this
case, the Union’s failure to specifically request bargaining over
the Respondent’s decision to lay off employees did not constitute
a waiver of the Union’s right to bargain on behalf of the laid off
employees. However, I do not find that the Respondent’s refusal
to bargain with the Union following its decision to lay off em-
ployees constituted a violation of Act, as I earlier concluded that
the Respondent was privileged to take that position since bargain-
ing over layoffs had previously occurred, and was reflected in the
most recent collective-bargaining agreement between the parties.
One final contention by the Respondent must be addressed,
namely the question of whether the layoff decision was directly
“linked” to an earlier decision to discontinue a live weekend
news broadcast. There is no dispute that the decision to discon-
tinue this program was solely a managerial decision and, thus, a
non-mandatory subject of bargaining.22 However, it is the Re-
spondent’s contention that the decision to discontinue the pro-
gram led directly to the decision to lay off the three employees.
Accordingly, the Respondent argues that even if it unlawfully
failed to bargain with the Union over the layoff decision, any
remedy should be limited to that set forth in Transmarine Navi-
gation Corp., 170 NLRB 389 (1968), and should, therefore, not
include reinstatement and full backpay. Counsel for the General
Counsel disagrees, contending that the decision to discontinue
programming was unrelated to the later decision to lay off em-

22 The Board has long held that an employer’s right to direct “the
core purpose” or central nature of its business involves managerial
decisions, which are nonmandatory subjects of bargaining. Peerless
Publication, Inc., 283 NLRB 334 (1987).
ployees. It then follows, according to counsel, that any failure to
bargain over the decision to lay off must be remedied by rein-
statement and full backpay.
As was discussed earlier, in December of 2007, the Respon-
dent’s management team made a decision to eliminate weekend
daytime production, specifically the Sunday morning newscast.
The reasons for management’s decision were a combination of
low ratings for the newscast, and the expectation that it would be
replaced by religious broadcasting, which was more lucrative.
The final Sunday morning newscast was aired in early December
of 2007. There is no dispute that this was solely a managerial
decision, and, as such, a nonmandatory subject of bargaining.
Article 3.14 (GC Exh. 2, p. 4.) of the expired collective-
bargaining agreement provides for a ratio of part-time and tempo-
rary employees’ hours worked to the regular, full-time employ-
ees’ hours worked. Based on that ratio, there are a maximum
number of hours that can be worked by part-time and temporary
employees. In order to maintain this ratio, as the number of
hours worked by full-time employees decreases, the maximum
number of hours worked by part-time and temporary employees
must also be reduced.
It is undisputed that the elimination of the weekend morning
newscast resulted in fewer hours being worked by the full-time
employees. Mike Biltucci, the Respondent’s director of opera-
tions and engineering, testified that in mid-December 2007, the
Respondent’s managers realized that in order to remain in con-
formity with the ratio provision in the expired contract, the Re-
spondent would need to lay off some part-time employees.
Therefore, a decision was made to lay off three part-time work-
ers. Biltucci contends that there was no other way to stay within
the ratio provisions of the contract. Subsequently, on January 9,
2008, the three employees selected for layoff were so notified,
with their positions eliminated on January 31, 2008. (GC Exh.
11.)
It is the position of the General Counsel and the Union that
there may have been some way, other than a layoff of the three
part-time employees, for the Respondent to have remained in
conformity with the ratio provision in the expired contract.23
However, it is the Respondent’s position that the layoffs were the
only practical way to maintain the ratio.
Although I have already concluded otherwise, for purposes of
the remaining discussion, I will assume that the Respondent
unlawfully failed and refused to bargain with the Union over the
“decision” to lay off employees. Under those circumstances, the
General Counsel is seeking a restoration of the status quo ante,
i.e. reinstatement and full backpay. However, the case law does
not support such a remedy, providing instead for a limited back
pay remedy as called for under Transmarine Navigation Cop.,
170 NLRB 389 (1986).
The Board has repeatedly held that where a decision to lay off
employees is directly linked to a nonbargainable managerial
decision, the appropriate remedy for a failure to bargain over the

23 It should be noted that between the date it was notified of the lay-
offs, January 9, 2008, and the date the employees were actually laid off,
January 31, 2008, the Union apparently failed to make any alternate
suggestions to the Respondent as to how the ratio could be maintained
without the layoffs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298
layoff decision is found in Transmarine. In the fairly recent case
of North Star Steel Co., 347 NLRB 1364 (2006), the employer
changed its scrap-yard system. This change was a nonmandatory
subject of bargaining. Eight months later,24 the employer laid off
employees. The Board found that the employer had unlawfully
refused to bargain over the layoff decision. However, the Board
held that reinstatement was an inappropriate remedy, relying on
Litton Business Systems, 286 NLRB 817, 820–822 (1987), and
Fast Food Merchandisers, 291 NLRB 897, 899–900 (1988). The
Board reasoned that the layoffs “flowed from the earlier deci-
sion,” which was a nonmandatory subject of bargaining, and the
earlier decision “produced” the layoffs. North Star Steel Co.,
supra at 1370–1371.
In Litton Business Systems, supra, the Board found an unlaw-
ful refusal to bargain over a decision to lay off. However, the
Board also concluded that reinstatement was inappropriate since
the decision to lay off was “one of a number of responses,” which
the employer could have selected in response to “changed cir-
cumstances” created by the employer’s earlier decision to im-
plement a cold-type printing process, which was a nonmandatory
subject of bargaining. It is certainly significant that in the case at
hand the General Counsel and the Union also contend that the
Respondent’s decision to lay off, allegedly made without bar-
gaining with the Union, was only one of a number of ways in
which the Respondent could have remained in compliance with
the ratio provision in the expired contract. However, such a find-
ing would not negate the conclusion that the Respondent’s origi-
nal decision to end a Sunday news broadcast created the changed
circumstances that led directly to the decision to lay off employ-
ees.
Another very similar case is Fast Food Merchandisers, supra,
where the employer transferred work from its old facility to a
new facility, a nonmandatory subject of bargaining. There then
followed the employer’s decision to lay off employees, which the
Board concluded was unlawful because the employer had failed
to negotiate with the union. However, the Board held that rein-
statement was an inappropriate remedy since there was a “link-
age” between the layoffs and the earlier nonmandatory subject of
bargaining. Id. at 899–900; also see Odebrecht Contractors of
California, 324 NLRB 396–398 (1997) (Board found layoff was
“an effect” of earlier nonmandatory bargaining decision, denied
reinstatement, and ordered a Transmarine remedy). 25
While counsel for the General Counsel attempts to distinguish
the facts in these cases, I find them to be most applicable to the
case at hand. In each of these cases, the Board held that while the
original decision was a nonmandatory subject of bargaining, and
the decision to lay off flowed directly from that original manage-
rial decision, the layoff decision was made unlawfully as the
employer failed to negotiate with the union over the layoff. Simi-

24 It should be noted that in the case at hand, the layoffs occurred
only a month or two after the discontinuation of the weekend news
broadcast, the nonbargainable managerial decision.
25 The Board sometimes uses the term “effects bargaining” obliga-
tion, when it is describing the process whereby the “decision to lay off”
employees was made. By using the term “effects bargaining” in these
cases, the Board appears to mean that the “decision to lay off” was the
natural effect of an earlier managerial decision, which decision was a
nonmandatory subject of bargaining.
larly, in the case before me, the decision to lay off the three part-
time workers was “linked” or “directly related” to the earlier
managerial decision to discontinue the weekend news broadcast.
As I am, for purposes of this discussion, assuming the layoffs
were unlawful as taken without negotiating with the Union, some
remedy is appropriate. However, in each of the cases cited
above, the Board ordered the Transmarine remedy, rather, than
the more traditional remedy of reinstatement with full backpay.
In my view, it is simply not possible to distinguish these cases
from the matter before me.
Although I continue to find that the Respondent’s decision to
lay off the three employees was not unlawful, I have assumed for
purposes of this discussion only that the layoff decision was
unlawful. Under those circumstances, had I found such a viola-
tion of the Act, I would have concluded that the appropriate rem-
edy for the layoffs was the limited backpay remedy found in
Transmarine.26
3. The effects of the layoffs
The remaining issue that must be discussed is the General
Counsel’s allegation, as found in complaint paragraph 7(d), that
apart from the issue of the Respondent’s alleged failure to bar-
gain over its decision to lay off employees; that the Respondent
committed a separate violation of the Act by failing to bargain
over the “effects” of that decision. As noted, I have earlier con-
cluded that the Respondent did not fail and refuse to bargain with
the Union over its decision to lay off employees because it had in
fact negotiated with the Union over the issue of layoffs, which
agreement between the parties was contained in the most recent
expired contract. For essentially the same reason, I conclude that
the Respondent did not fail and refuse to negotiate with the Un-
ion over the effects of the layoff decision.
The most recent collective-bargaining agreement between the
parties contains numerous provisions specifically dealing with
the “effects” of a layoff. (GC Exh. 2.) Under “Reduction of
Staff” (art. 5.4, p. 12) the contract provides for employees to be
notified 6 weeks prior to a layoff, to receive a service letter, and,
most significantly, to be awarded “severance pay” in accordance
with a specific schedule based on length of service. The contract
provides for the recall rights of the laid off employees (art. 5.4.1
and 5.4.2, p. 12–13.), for layoffs to be conducted in “inverse
order of seniority” (Art. 5.4.3, p. 13.), and for a specific schedule
of “notice or pay” based on length of service for employees laid
off “due to automation” (art. 5.5, p. 13).
Unlike the issue concerning the “decision” to lay off, there is
no dispute that the Union did request an opportunity to bargain
over the “effects” of the planned layoffs. In Csillag’s letter to
Paul Kaderabek, the Respondent’s director of business affairs,
dated January 14, 2008, Csillag demanded “to immediately en-
gage in effects bargaining with KGTV.” (GC Exh. 12.) In
Kaderabek’s email response, dated January 16, 2008, he stated
that he had been “advised that ‘effects bargaining’ does not apply
here.” Further, the message indicated that “the parties have al-
ready bargained about layoffs. See article 5 of the expired
agreement.” Kaderabek repeated that “[t]here is no duty to bar-
gain further about layoffs,” and declined to furnish certain finan-

26 Transmarine Navigation Corp., 170 NLRB 389 (1968).
KGTV 1299
cial records that Csillag had requested. However, he did agree to
“provide information about the projected part-time/full-time
hours ratio.” (GC Ex. 13.)
As noted earlier, the Union filed two grievances over the lay-
offs. The parties met on January 25, 2008, to discuss the first of
these grievances. However, as described in detail above, little
was accomplished at this meeting. Still, I credit Csillag’s testi-
mony that he requested “effects” bargaining, which request was
refused by Kaderabek for the reason that the effects of layoffs
had already been bargained over and were covered under the
terms of the expired collective-bargaining agreement. Csillag
claims that Kaderabek read from a “memo” stating the Respon-
dent’s position. It appears that Csillag is referring to Kadera-
bek’s email of January 16, the substance of which is set forth
immediately above. To the extend that in Kaderabek’s testimony
he denied a refusal to bargain over the effects of the layoffs at
this meeting, I do not credit him, as it is clear from the Respon-
dent’s letter of January 16 exactly what the position of the Re-
spondent was.
The Respondent’s position was simply that no further bargain-
ing over “effects” was necessary, as the parties had previously
done so, and their agreements were reflected in article 5 of the
expired contract. I agree.
As I indicated earlier, the Board has held that additional bar-
gaining over layoffs is not required when a union and an em-
ployer have already negotiated over layoffs and incorporated the
results of those negotiations into a collective-bargaining agree-
ment. See Port Printing AD & Specialties Inc., supra; Odebrecht
Contractors of California, Inc., supra; Farina Corp., supra. By
analogy, I believe the holding of those cases would also apply to
bargaining over the “effects” of a layoff. It would make no sense
to require an employer to negotiate with a union over “effects”
every time there was a layoff, when the parties had previously
negotiated and placed their agreement in these matters into their
contract. In the case before me, this was preciously what the
Union and the Respondent had done in article 5 of their contract.
Further, the parties provided that any dispute over the “effects”
language in the contract could be resolved by way of the com-
prehensive grievance procedure in the contract. (GC Exh. 2; art.
7.1, p. 16.)
Accordingly, I conclude that the Respondent did not fail and
refuse to bargain with the Union over the “effects” of its decision
to lay off employees. As the provisions in the collective-
bargaining agreement dealing with the “effects” of a layoff were
the results of the parties successful bargaining efforts over these
matters, no further negotiations were required. Therefore, I shall
recommend that complaint paragraphs 7(b), (c), and (d), and 8,
only as they relate to the “effect” of the layoff issue, be dis-
missed.27
CONCLUSIONS OF LAW
1. The Respondent, McGraw-Hill Broadcasting Company,
Inc., d/b/a KGTV, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, National Association of Broadcast Employees
and Technicians-Communications Workers of America, AFL–
CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The unit of employees as set forth in Article 1 of the most
recent collective-bargaining agreement between the Union and
the Respondent, effective by its terms from October 1, 2002,
through January 31, 2006, constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of section
9(b) of the Act.
4. Since at least October 1, 2002, the effective date of the last
contract between the Union and the Respondent, the Union has
been the exclusive collective-bargaining representative of the
employees in the above described unit within the meaning of
Section 9(a) of the Act.
5. By unilaterally changing the terms and conditions under
which Dennis Csillag, the nonemployee union president, had
been permitted access to the union office, the Respondent has
been failing and refusing to bargain collectively with the Union
in violation of Section 8(a)(1) and (5) of the Act.
6. The above unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act except as set forth
above.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the polices of the Act.28
[Recommended Order omitted from publication.]

27 Assuming a violation was to be found over a failure to bargain
over the “effects” of the layoffs, then the appropriate remedy would be
as provided for in Transmarine Navigation Corp., supra.
28 Although a monetary award of backpay is not required to remedy
the unfair labor practices that I have found the Respondent to have
committed, had I found such a remedy to be necessary, I would have
denied counsel for the General Counsel’s request that interest on the
backpay be compounded on a quarterly basis. See Tech Valley Print-
ing, 352 NLRB No. 81 fn. 5 (2008) (not reported in Board volumes).