University of Vermont/Vermont Educational TV

National Labor Relations Board - Board Decisions

Sep 21, 1981

258 N.L.R.B. 247 (N.L.R.B. 1981)

UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
University of Vermont/Vermont Educational Televi-
sion and International Brotherhood of Electrical
Workers, Local 42, AFL-CIO. Case 1-CA-
15759
September 24, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on March 14, 1979, by Inter-
national Brotherhood of Electrical Workers, Local
42, AFL-CIO (herein called the Union), the Gen-
eral Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
1, issued a complaint dated June 15, 1979, against
University of Vermont/Vermont Educational Tele-
vision (herein called Respondent). The complaint
alleges that Respondent violated Section 8(a)(l)
and (5) of the Act by refusing to bargain with the
Union about wages until the legislature of the State
of Vermont appropriated funds for that purpose.
Copies of the charge and the complaint and
notice of hearing were duly served on Respondent
and the Union. On June 20, 1979, Respondent filed
an answer to the complaint denying the commis-
sion of any unfair labor practices.
On January 28 and 30, 1980, the parties executed
a stipulation of facts, which the General Counsel
filed with the Board on February 14, 1980. On
June 11, 1980, the Board issued an order rejecting
the stipulation of facts because it was not accompa-
nied by a motion to transfer proceeding to the
Board and a signed statement whereby the parties
agreed to submit the case directly to the Board for
findings of fact, conclusions of law, and a decision
and order. On July 3 and 9, 1980, the parties ex-
ecuted a motion to transfer proceeding to the
Board, wherein they waived a hearing before an
administrative law judge and agreed to submit the
case to the Board for findings of fact, conclusions
of law, and a decision and order based on the stipu-
lation of facts and attached exhibits which had pre-
viously been filed with the Board. On August 8,
1980, the Board issued an order granting the
motion, approving the stipulation, and transferring
the proceeding to the Board. Thereafter, the Gen-
eral Counsel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the Board
makes the following findings and conclusions:
258 NLRB No. I
I. JURISDICTION
Respondent is now, and has been at all times ma-
terial herein, a nonprofit corporation with its ex-
ecutive offices and principal academic facilities lo-
cated in Burlington, Vermont, engaged in provid-
ing educational services, including, inter alia, the
operation of a nonprofit educational television
broadcasting system from its studio and facilities
located in Colchester, Vermont, and its transmitter
sites located in Rutland, Windsor. Stowe, and East
Burke, Vermont. Only Respondent's educational
television system facilities are involved in this pro-
ceeding. During the past 12 months, a representa-
tive period, Respondent had gross revenues in
excess of $1 million. During this same period, Re-
spondent purchased and received goods valued in
excess of $50,000 for use at its Vermont facilities
directly from sources located outside the State of
Vermont. The complaint alleges, Respondent's
answer admits, and we find that Respondent is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer
admits, and we find that the Union is now, and has
been at all times material herein, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
1. The creation of VETV
Vermont Educational Television (herein called
VETV) is a division of the University of Vermont
(herein called UV), which was established in 1966
by an enabling act of the legislature of the State of
Vermont. 2 A chronology attached to the stipula-
tion of facts in this case reveals that the following
sequence of events led up to the enactment of this
statute.
In December 1960, UV applied to the Ford
Foundation for a $21,000 grant "to be used for a
project looking forward to the establishment of an
educational television facility for Vermont." In
January 1961, the Ford Foundation approved UV's
grant. In February 1961, a UV associate professor
was named director of the project. In March 1961,
the firm of Jansky & Bailey of Washington, D.C.,
i See University of Vermont and State Agricultural College. 223 NLRB
423 (1976), where the Board asserted jurisdiction over the University.
finding that, despite the receipt of about 25 percent of its total revenues
from the State, it was not a "political subdivision" of the State inasmuch
as it was free from state control over administration, personnel policies,
accounting procedures, and other essential areas.
2 Title 16 Vermont Statutes Annotated, Chapter 86.
247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was retained as engineering consultant for the pro-
ject, and the firm of Covington & Burling of Wash-
ington, D.C., was retained as legal counsel for the
project. In May 1961, the general manager of the
University of Nebraska educational television sta-
tion was retained as project consultant. On June 1,
1961, the Ford Foundation study was completed,
showing "a crucial need for educational television
in Vermont" and indicating that four UHF trans-
mitters would reach 98 percent of the State.
In March 1962, UV applied to the Federal Com-
munications Commission to reserve four specific
UHF channels in Vermont for educational use. On
September 25, 1962, the FCC reserved those four
UHF channels for educational television in Ver-
mont, despite vigorous opposition by interests in
other States to the assignment of one particular
channel to Vermont. On June 5, 1963, the Vermont
House of Representatives defeated a bill which
would have provided $1,595,700 to construct an
educational television network; however, on June
29, 1963, the Vermont legislature passed a resolu-
tion giving UV the responsibility for development
and ultimate operation of educational television in
Vermont and providing $5,000 to reimburse UV
for its expenses in reserving the four UHF channels
for Vermont.3 On September 1, 1963, Covington &
Burling advised UV that the most effective manner
of implementing the legislative intent of the June
resolution would be to apply to the FCC for con-
struction permits for all four reserved channels and
to apply to the U.S. Department of Health, Educa-
tion, and Welfare for Federal matching funds for
the construction.
On March 2, 1964, the chief engineer for Maine's
educational television network was retained as en-
gineering consultant for the preparation of applica-
tions for FCC construction permits and for HEW
matching funds. On June 9, 1964, UV applied to
HEW for Federal matching funds for construction,
and, on July 21, 1964, UV applied to the FCC for
construction permits for the four channels. On
August 5 and 13, 1964, the FCC and HEW, respec-
tively, accepted UV's applications. On August 14,
1964, UV's president met with the Governor of
Vermont. The Governor stated that he intended to
support legislation to create VETV and asked UV
"to go as far as possible with final plans to facili-
tate the earliest possible on-the-air date after legis-
lative approval of construction funds."
After this conversation, the engineering consul-
tant was requested to prepare specifications for all
transmission equipment to be ready for bidding,
and an attorney was requested to obtain legal clear-
3 This was apparently the first action taken by the legislature concern-
ing educational television ill Vermont.
ance for all proposed transmitter sites. On October
8, 1964, UV representatives met with the State
Building Commission and selected the firm of Free-
man, French, and Freeman as the architect for all
proposed VETV buildings. The Building Commis-
sion then instructed the architect to prepare build-
ing plans to be ready for bid if and when the legis-
lature provided construction funds. On January 4,
1965, UV applied to the U.S. Housing and Home
Finance Agency for an advance to fund part of the
costs of such plan preparation. 4 Later in 1965, the
HHFA approved an advance of $26,292 to UV,
which UV would be required to pay back, for plan
preparation for the proposed construction of a
studio and four transmitter buildings.
The legislation creating VETV went into effect
on March 10, 1966.5 The statute describes its pur-
poses and the authority of the trustees of UV in
operating VETV as follows:
§2801. Gifts
The trustees of [UV] may accept any gift of
money or real or personal property, from
any source whatever, and grants in aid from
the federal government to assist in carrying
out the purposes of this chapter.
§2802. Construction
[UV] may acquire real estate, construct, op-
erate, manage and equip television broadcast
stations and related auxiliary broadcast sta-
tions including microwave facilities, and
may interconnect with any other television
station or network for the purpose of pro-
viding a statewide educational television net-
work for the transmission of programs to
pupils in schools, colleges and universities in
Vermont, as well as to the public generally
throughout the state; and may enter into any
contract, considered necessary to carry out the
purposes of this chapter. Title to the facilities
created under this chapter shall be held in
the name of [UV]. [Emphasis supplied.]
§2803. Purposes
The action of [UV] in applying for construc-
tion permits and federal matching funds in
connection with educational television in
Vermont is expressly ratified and confirmed.
[UV] may hold all necessary governmental
4 The board of trustees' resolution authorizing application for this ad-
vance stated in part:
That if such advance be made the applicant shall provide or make
necessary arrangements to provide such funds, in addition to the ad-
vance, as may be required to defray the cost of the plan preparation
5 This was apparently the next action taken by the legislature concern-
ing educational television in Vermont after the resolution f June 29.
1963.
248
UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
authorizations for all facilities contemplated
by this chapter, and shall take all acts neces-
sary for the efficient and economical operation
of those facilities according to good educational
and engineering practices, all in accordance
with applicable law, rules and regulations.
[Emphasis supplied.]
In addition to vesting management responsibility
for VETV with the trustees of UV, the statute also
provides for two advisory committees. One, the in-
structional television committee, "is created for the
purpose of consulting with and advising the . . .
trustees . . . in the determination of all elementary
and secondary in-school instructional television
programming, policy and courses for the [VETV]
network." The second, the broadcasting council,
"is created for the purpose of consulting with the
advising and assisting the . . . trustees . . . in car-
rying out the purposes of this chapter." The statute
contains no other limitations on the authority
granted to the trustees to operate VETV.
2. The funding of VETV
VETV began operations in about 1967. VETV
employees have always been considered UV em-
ployees, receiving the same fringe benefits and sub-
ject to the same personnel policies as other UV
employees. VETV accounts have always been kept
separate from the general funds of UV. VETV's
funding since 1966 has been based on moneys re-
ceived from three sources: the State of Vermont,
the Federal Government, and private sources such
as donations and auctions. While VETV initially
received almost all of its funding from the State, as
of early 1979 VETV received about one-third of its
funding from each of the above three sources.
VETV's appropriation from the State of Vermont
is a line item in the state budget, which is separate
from the UV appropriation. Although UV submits
the annual funding requests for both VETV and
UV to the state legislature together, VETV's ap-
propriation request is treated separately from UV's
appropriation request by legislative committees and
can be voted on separately from the UV appropri-
ation when placed before the legislature for final
approval. The record indicates that VETV's Fed-
eral funding comes from the Corporation for
Public Broadcasting; however, there is no evidence
in the record as to the procedure followed by UV
in applying for this Federal money or as to the
procedure used by CPB in approving VETV's
funding.
The record reveals that the UV trustees are re-
sponsible for approving two VETV budgets for
each fiscal year:6 a capital outlay budget and an
operational budget. Apparently, as of early 1979,
VETV's yearly lump-sum appropriation from the
State of Vermont covered only part of the costs
for each of these two VETV budgets. The record
indicates that the VETV budget approval process
has generally worked as follows. About 1 year
before a particular fiscal year begins, the VETV
broadcasting council makes a recommendation to
the UV trustees of a specific yearly amount of
money for the VETV budgets for the fiscal year
and the following fiscal year.7 The UV trustees
then approve specific budgets for those two fiscal
years, which have on occasion been smaller than
the amounts requested by the VETV broadcasting
council.
After the budgets are approved, the president of
UV presents VETV's appropriation requests for
the two fiscal years to the Governor and to the
legislature of the State of Vermont." After receiv-
ing VETV's appropriations requests from UV, the
Governor makes his own recommendation to the
legislature as to the amount of funding VETV
should receive; the Governor has frequently rec-
ommended that VETV's appropriation should be
less than its request. The legislature finally acts to
approve a specific appropriation for VETV for
each of the two fiscal years sometime shortly
before the first of the two fiscal years begins.9
This does not necessarily end the VETV budget
approval process, however; for even after the legis-
lature has approved VETV's appropriation for a
particular fiscal year, UV has on several occasions
requested additional appropriations from the legis-
lature for VETV, sometimes even after that fiscal
year has begun. The minutes of the meetings of the
UV trustees, which are attached to the stipulation
of facts herein, indicate that such requests for sup-
plemental appropriations have occurred on the fol-
lowing occasions.
The minutes for a meeting occurring in about
late 196610 note "that an additional amount of
$63,762 the first year [FY 1968] and $92,190 the
second year [FY 1969] would be needed in addition
to the amount originally reported to the legislature
UV's fiscal year runs from July I to June 30.
Thus, in September 1966, the VETV broadcasting council made a
recommendation to the UV trustees as to the amounts of the VETV bud-
gets for fiscal years 1968 (beginning July 1. 1967) and 1969.
8 As noted above, the most recent appropriations requests have only
covered a part of the total VETV budget amounts for each fiscal year.
9 Thus, the legislature wvould approve the VETV appropriations for
fiscal years 1968 and 1969 sometime in the spring of 1967 Apparently.
beginning in about 1970 with the budget for fiscal year 1971. UV present-
ed appropriations requests for VETV to the legislature on a yearly as
vell as a biennial basis; however. the budget approval process remained
the same
"' The exact date of this meeting does not appear in the portion of the
minutes contained in the record
249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to complete and operate the [VETV] program. A
portion of this amount is in University overhead
for administrative purposes. This was not included
with the original request."" The trustees voted to
incorporate these additional amounts in the final
VETV appropriations request to the legislature for
fiscal years 1968 and 1969; apparently, UV had al-
ready presented a smaller VETV appropriations re-
quest for those years to the legislature. At a meet-
ing in late 1969 (after fiscal year 1970 had
begun), 2 the trustees voted to request a supple-
mental appropriation of $80,985.70 from the legisla-
ture for use by VETV in fiscal year 1970, in order
to avoid curtailing VETV's operations.' 3 The min-
utes of this meeting note that "expenses of about
$4,000 to $5,000 per month above resources will be
incurred from January 1, 1970 on" by VETV. At a
meeting on August 16, 1975, the trustees voted "to
request from the Emergency Board of the State the
amount of $44,799 to enable [VETV] to eliminate
its deficit." Again at a meeting on November 7,
1975, after a discussion of "the strategy for funding
the [VETV] deficit," the trustees voted to request
a supplemental appropriation of $10,800 from the
legislature for VETV for fiscal year 1976 (which
had already begun) and to reconsider in December
the appropriation request to the legislature for
VETV for fiscal year 1977. At a meeting on Octo-
ber 1, 1977, the trustees voted to request a supple-
mental appropriation of $13,909 from the legisla-
ture for VETV for fiscal year 1978 (which had al-
ready begun) "for the purpose of replacing a Klys-
tron tube at the Mt. Ascutney facility." At the
same meeting, the trustees voted to request "an in-
crease of $66,800 in the fiscal year 1979 appropri-
ation for general operations of [VETV]" from the
legislature.
The record reveals that on the three occasions
described above when VETV operated at a deficit
(i.e., FYs 1970, 1975, and 1976), UV advanced cash
to VETV at the end of the fiscal yar to enable
VETV to meet its current operating expenses, and
these advances were then paid back from subse-
quent VETV revenues. The record also reveals
that on one occasion in about 1967, UV used its
own funds to purchase land for possible use by
VETV.' 4 The record does not indicate whether
" Until fiscal year 1971, UV charged VETV overhead; however,
since that time UV has been precluded from doing so by the legislature.
12 The exact date of this meeting does not appear in the portion of the
minutes contained in the record.
1a The minutes indicate that, if this money were not received. VETV
would have to cut back night programming and lay off several employ-
ees.
14 Thus, the minutes of a trustees' meeting in about 1967 (the exact
date does not appear in the minutes) state that:
Acting as agent for VETV]. [UV] entered into agreement to pur-
chase a piece of land . . for 2.750. After the negotiations had been
UV was paid back for the purchase price of this
land from later VETV revenues.
The record contains no evidence as to the specif-
ic dates when the state legislature acted upon any
of the various VETV appropriations requests de-
scribed above (either initial or supplemental), as to
the actual amounts appropriated by the state legis-
lature in each instance, or as to the specific dates
on which VETV actually received each such ap-
propriation. The record does indicate generally
that the state appropriation for each fiscal year be-
comes available on July 1, the beginning of that
fiscal year. The record affirmatively establishes
that the yearly state appropriation is a lump sum
and that VETV has the discretion to decide how
to allocate that sum among the various expenses in
its budget.
With regard to VETV's Federal funding from
CPB, the record indicates merely that those funds
become available in October each year. 5 As to
VETV's private funding, the record indicates only
that VETV has its fund-raising auction in about
March of each year and that those funds do not
become available until about May of each year.
There is nothing in the record to indicate the
amount, the source, the timing, or the predictability
of any of the other private donations received by
VETV each year.
3. The Union's certification and subsequent
negotiations
On October 26, 1978, the Union was certified as
the exclusive collective-bargaining representative
of a unit of about 25 employees in the engineering,
production, and program departments at Respond-
ent's VETV facilities. On or about November 20,
1978, the Union requested Respondent to bargain
about the wages, hours, and working conditions of
the unit employees.
The first bargaining session occurred on Decem-
ber 4, 1978, and lasted about 1 hour. Attorney
Arthur Menard was the spokesman for Respondent
at this and all later bargaining sessions. At this
meeting, general ground rules were discussed, and
the Union presented its proposals on all items
except wages to Respondent. 16 The Union stated
entered into [UV] was given a lot of land adjacent to the [property
in question] which will be used by the IVETV] system. It is the rec-
ommendation of the Committee that [UV] should continue with the
plan to purchase the lot . . and after a duration of time if it is not
needed by the VETV] system. it can be sold.
lThe trustees then oted to purchase the land for $2,750. ith "the costs
to be charged to unassigned Plant Funds."
s1 Presumably, this is based on the beginning of the Federal fiscal
year, which runs from October I to September 30
16 The particular proposals discussed at this meeting included. inter
ulia. retention of the present 7-1/2 hour workday and 37-1/2 hour work-
Continued
250
UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
that, after reviewing the lists of present salaries for
unit employees provided by Respondent, it would
prepare a wage proposal "with some sort of a per-
centage increase" and also "a time and grade pro-
posal."
The second bargaining session occurred on De-
cember 19, 1978, and lasted about 3 hours. At this
meeting, Menard stated that Respondent had re-
viewed the Union's proposals and was ready to
present its counterproposals to the Union. Menard
then made the following statement as to Respond-
ent's bargaining position:
Before getting into our proposals, there is
something you should understand. You should
understand that the TV station is a unit of the
University of Vermont.
. . . So in terms of all the policy judgments
we are going to make, to a great extent, they
are going to be informed by UVM policy. I
say this because I want you to understand
from the outset where we are coming from.
When you consider our proposals you must
consider three things: (I) the fact that the Uni-
versity has already established liberal fringe
policies for its employees; (2) University pay
policies; (3) University concerns regarding
management rights and artistic questions and
issues pertaining to Union security.
The Union then went over Respondent's coun-
terproposals, noting its strong objections to particu-
lar proposals" but only minor objections to other
proposed language. 1 8 The Union emphasized its
proposal for time-and-a-half overtime pay after a 7-
1/2 day or a 37-1/2 hour week, noting that this
was its only proposed change in present practices
other than job posting. The Union also stated that
one of its main concerns was union security, either
week, I week advance posting of schedules, I week posting of job sacan-
cies within VETV before outside applications are considered. monthly
meetings between stewards and management, retention of the existing
UV personnel policies as to leave (for sickness. maternity, funerals. jury
duty, military service, emergencies, etc.). retention of existing UV per-
sonnel policies as to discipline with an explicit definition of "just cause."
retention of UV's present tuition policy, paid medical insurance, upgrad-
ing present life insurance to two times annual salary. a clothing allo-
ance up to $200 a year for transmitter employees,. and a food allosa;nce
up to $25 a week for transmitter employees.
17 The Union objected, inter alia, to the folloss ing proposals hb Re-
spondent: a 40-hour rather than the present 37-1/2 hour ssorkweek. a 6-
month rather than the present 4-month probationary period, a broad man-
agement-rights clause. a lower wage rate for probationary employees
than for other employees at the entry level, elimination of the present
floating holiday. straight time rather than time and a half fr employees
who work on scheduled holidays, and paid sick leave with accumulalion
limited to 60 days rather than the present unlimited accurnulation of sick
days.
[' The Union suggested limited changes in Respondent's propo:sals as
to the grievance procedure, union communications with employees at
work, the no-strike clause, layoff and recall, the "zipper" clause. anti the
duration of the contract.
with or without dues checkoff. Menard noted that,
if Respondent agreed to dues checkoff, it would
have to charge the Union the same fees it charged
all other outside organizations for input into the
University computer, which were $150 initially and
$80 a year thereafter. Menard suggested that since
union security was important to both parties, it was
probably better to defer it along with the wage in-
creases until later. Menard suggested they focus on
management rights at the next session, and the
Union stated it would present its wage proposals
then. Menard ended this session by stating:
I foresee three problem areas. First, manage-
ment rights.... Second, union security is a
very big problem. .... Third, pay will be a
problem. You are aware of what the Universi-
ty pay policy is now.
The third bargaining session occurred on De-
cember 20, 1978, and lasted about I hour. At this
meeting, Menard agreed to make certain changes in
Respondent's proposed management-rights clause;
discussed his objections to the Union's proposed
job descriptions and to its proposal on scheduling;
and indicated his basic agreement with the Union's
proposed clauses on preservation of unit work and
seniority. The Union presented its wage proposals
at the end of the meeting.
The fourth bargaining session occurred on Janu-
ary 9, 1979, and lasted about 6 hours. At this meet-
ing, Menard presented Respondent's new counter-
proposal on contract language. The Union agreed
to sign off on numerous clauses in Respondent's
proposed contract,io but noted that further discus-
sion was needed on other provisions. 20 The Union
again proposed time-and-a-half overtime pay for
time worked over 7-1/2 hours per day and re-
newed its proposals on clothing and food allow-
ances and travel time for transmitter employees.
There was no discussion of union security or of the
Union's wage proposals.
The fifth bargaining session occurred on January
22, 1979, and lasted about 45 minutes. Menard out-
lined certain changes in Respondent's proposals. In
particular, Menard proposed to increase the com-
pensation of transmitter employees as requested by
the Union, by giving each eligible employee $900
per year prorated over a 12-month period for
il The parties agreed. inter alia. to clauses pro iding fir dues checkoff.
the same s:age rates for probatlion:ar employees as for tother emplo.ees,
a 4-mnonth probationary period. a 37-1/2 hour workweek. time-ald-i-half
osertime pay after 37-1i/2 hrs. a griesNance and arhbilralion proe-edlur.,
discipline fir "Just causc.
'
the ulhloril , of unilon represenlatixes. cnller-
it. I;s,off and recall. tuition polic . funceral lealc. duration, arld rcncx al
2t .cfi penr for flilrher discussionl \,O.ere c laiul .Iclllg \kith manage-
meilt rights. shift scheduling. limited accumuilatill oif paid Ick 1caie.
penllslon. iliedical iLsir:alice. ainlmtlll f life ilsirallti. p.J.meCI t for ptlr
dull. atid strikes
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
travel, meals, and uniforms; to drop the demand
that the Union pay the cost of dues checkoff; and
to pay time-and-a-half for hours worked on a
scheduled holiday.2 1 Menard then made this state-
ment as to wages:
On the question of salaries, let's review the
current state of the budget. As nearly as we
can determine, the average salary for ETV is
$8,394. An average salary increase of $550 was
recently granted. That came out to an average
of 6.4% for the last fiscal year. By college and
university standards in this area, such a raise
really stands these employees in very good
stead.
As you may know, from the last AAUP
report, salaries in Vermont were less than
other states. The percent increase for employ-
ees was generally a great deal below what oc-
curred here.
The budget for 1979-1980 has been submitted
by ETV to the Administration. Concurrently
the entire budget was sent by UVM to the
State. The budget of ETV is separate from the
University, I must emphasize that. The Gover-
nor has now submitted his recommendations to
the legislature.
. . .The legislature will act on these matters
April 1, and funding will be implemented in
the new fiscal year as of July 1, 1979.
Menard then described the three sources for
VETV's funding
. . .In the current year cuts were necessary to
keep the budget balanced. So we are in a
shortfall situation.
Thus, we think the proper approach is to enact
a re-opener so that we can take into considera-
tion union demands before our budgetary allo-
cation takes places [sic]. That has to be done
before June when the Board of Trustees ap-
proves the budget. So we would propose a
wage re-opener which takes place on April 1.
Needless to say, this is not very far away.
. . .What we are saying is that we do not cur-
rently have non-expended items. However,
with new appropriations in April, we can ne-
gotiate with the Union over how to spend this
money. That's the fairest and the only propos-
al we can make to you regarding salaries.
21 Menard also agreed to I-week advance posting of schedules, equita-
ble distribution of overtime, and the present policy of unlimited sick
leave accumulation.
The sixth bargaining session occurred on Febru-
ary 8, 1979, and lasted about 2 hours. Menard
opened the meeting by stating:
. . .We now want to put forth our final pro-
posal. ....
First of all, on wages, we, frankly, do not see
how we can deviate from the April 15 reopen-
er proposal. At this point in time, our expendi-
tures are pretty well fixed. Our budget goes
from July 1 to July 1. Based upon inflation
and increased operating costs and other things,
the President . . . is seeking a $736,000 appro-
priation for fiscal year 1980 and an $815,000
appropriation for fiscal year 1981. The Gover-
nor is seeking $697,700 for fiscal year 1980 and
$725,600 for fiscal year 1981. So, there's likely
to be a substantial difference between what
was requested and what will be received.
To summarize my position, we have not taken
a fixed position with respect to how that
money should be distributed. It might be dis-
tributed across-the-board, or across-the-board
with an inequity adjustment, or across-the-
board with a merit adjustment. All this can be
negotiated. ...
Our position is that if this were done on April
15, we will know what funds we will get from
the state appropriations, we will have had our
fund-raiser in March, and we will have the
funds available from the auction in May.
These funds will not be available before this
time. As to the federal government funds, they
do not again become available until October. I
must emphasize that we have no uncommitted
funds right now. Right now we have costs
which are fixed.
The following exchange then occurred between
Menard and Union Representatives John Carr,
Fletcher Fisher, and Brian Marshall:
Carr: What is the purpose of waiting until
April 15 if you don't know what direction
you're going to go in now? We don't care
whether we wait until June, but we want it
to be retroactive.
Menard: You are asking us to commit re-
sources that we don't have.
Carr: Why can't you look at the history and
make an approximation?
Menard: Because I just don't know.
Carr: I'm sure there are people in the Univer-
sity who have a good idea of what they're
252
UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
going to end up with. Why do you have to
wait for the legislature?
Menard: We don't have uncommitted re-
sources.
Carr: What I am saying is that the University
has knowledge of where the money comes
from and how much.
Menard: I can say to you that I think that it
should be between 6 and 8-1/2%.
Carr: Whatever the real dollars turn out to be
is the University willing to make it retroac-
tive until February?
Menard: I can't answer that. We're talking
about a variation of 50 to $100,000. It will
depend on the mood of the Legislature and
the people. Suppose we settle at 8-1/2%
without retroactivity?
Carr: Is the University willing to go retroac-
tive regardless of the percentage amount?
Menard: . . . We are not set on the questions
of retroactivity or progression. I cannot bar-
gain until I know how much we have to
bargain with. I don't have a fixed position.
Fisher: If it is possible to come up with the at-
torney's fees they're paying, why don't they
have the money for these things?
Menard: You are operating on two assump-
tions. One, that that amount of money is sig-
nificant and two, that it has been paid.
Carr: My feeling is that anyone who has gone
through this year after year knows what's
going down.
Menard: The President's assumption is the
amount on July I will be 8-1/2%. If he gets
it, you know that it does not preclude re-
troactivity nor the shifting from one line to
another.
Carr: You only get 41% from the state.
Menard: That can vary by $100,000.
Carr: Forget the money. We still want to
know about wage progression. This group
may be willing to listen to April 15 if we
have some kind of progression. We can put
to bed the wage progression question.
Menard: All those mean money. I don't know
what money we have.
Carr: That's why I say to you that someone in
the University has the ability to figure this
out.
Menard: The President would breach his fidu-
ciary duty if he were to commit resources
he doesn't have. He cannot do that. No can
the Board of Trustees.
Marshall: No one knows what the state will
appropriate, but most people know within a
small range what it is likely to be. The Uni-
versity must and does make commitments
based on things before they know what the
appropriations will be. But I am saying is
that for normal budgetary purposes, it is not
unusual to commit funds before you have
them. If you can do so for other items, why
not here?
Menard: Because those are not legal commit-
ments. Commitments in the collective bar-
gaining context are legally enforceable
before the NLRB and the courts. What you
are talking about is not.
Marshall: Is it legal for the University to lease
land 5 years in advance?
Menard: I am only a labor lawyer. I don't
know anything about real estate. I had to
retain a lawyer myself to purchase my
house.
Marshall: I think you know that the University
can do that.
Menard: What I know is that I cannot make a
commitment that it is [sic] legally binding
for which I have no funds.
Menard then presented Respondent's final propos-
als as to other items on which the parties still disa-
greed. 2 2 Menard proposed time-and-a-half over-
time pay for hours worked over 10 hours per day
(rather than 12 hours as Respondent had originally
proposed), and the Union countered with a propos-
al for overtime after 8 hours. Menard rejected this
proposal, stating, "Right now we are paying
$30,000 a year for overtime for the bargaining unit.
If you add overtime in excess of 8 hours, our best
estimate is that it will run us an extra $10,000 a
year and that simply is a cost we cannot afford."
The Union stated it would present Respondent's
proposals to its membership, noting that rejection
of the proposals would authorize a strike.
The seventh bargaining session occurred on
March 6, 1979, and lasted about 1 hour. Menard
opened the meeting by noting that a strike vote
had been taken and proposed "modified agency
shop" language to break the deadlock. As to
wages, Menard stated:
Z2 These included, tinter alia. minimum hours and mileage fr call-hack.
duration of the contract mnaintenance of membership, jand job posting.
253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We know something now that we didn't know
the last time we met, and that is that the Ap-
propriations Committee of the Legislature has
made a recommendation with respect to ETV
appropriations. We can draw a conclusion
from that as to what the Legislature may do.
However, we do not want you or your Com-
mittee to be misled. The fact that a recommen-
dation has been made does not change our po-
sition. It would be against our fiduciary re-
sponsibility to make a wage increase offer at
this time.
Union Representative Carr responded by proposing
"modified Union shop" language and further
stated:
I also propose that we discuss and negotiate
wages based upon the recommendations of the
legislative Appropriations Committee. I pro-
pose that we negotiate based upon the current
recommendation and that the Union and the
University use whatever means possible to get
that recommendation passed by the Legislature
as a whole.
If that appropriation is not passed, then we
could renegotiate depending on whatever ap-
propriations come through.
Menard rejected the Union's proposals, and the
Union stated the strike would begin that night. 2 3
The eighth bargaining session occurred on
March 22, 1979, and lasted about I hour. Both Re-
spondent and the Union indicated that their posi-
tions had not changed.
The ninth bargaining session occurred on April
16, 1979, and lasted about 1 hour. Menard opened
the meeting by stating he was prepared to make
Respondent's initial offer on wage increases, 24 but
he wanted to know the basis for the Union's
demand for retroactivity since the unit employees
had already received a raise during the current
fiscal year. The Union responded that the last raise
was really for the previous fiscal year, and Menard
disagreed. Menard then offered a 5-percent wage
increase, effective July 1, 1979. After some discus-
sion of the source of VETV's funding and of
whether UV could provide VETV with funds to
cover retroactive wage increases, Union Repre-
sentative Carr stated:
If we do not get the money until July 1, that is
okay. We understand that you might not have
2: The strike lasted ahout 2 months. All striking employees s ere rein-
stated upon their unconditional offers to return to work
2 Apparenlly the legislature had approved VETV', appropriation by
the time of this meeting, although the record does nol reveal the d(late on
which this occurred.
the money until then. If you do not pay until
July I for obligations incurred under this pro-
gression proposal before that date, that is
okay. As long as it is paid on July 1.
The 10th bargaining session occurred on April
24, 1979, and lasted about 3 hours. Menard pro-
posed a classification system with progression
among several grades and a list of equity adjust-
ments for specific individuals. The Union ques-
tioned Menard as to what prevented UV "from
kicking in money from other areas" to pay for
VETV's wage increases, and Menard promised to
give the Union a copy of the UV counsel's legal
opinion on this matter. Because of the Union's ob-
jections, Menard withdrew his classification pro-
posal and substituted a proposal on specific equity
adjustment increases, averaging 8 percent with a
minimum of 5 percent. 25 The Union rejected this
proposal. Menard ended the meeting by stating,
"the University feels it has made a fair and equita-
ble offer. Even if the funds could be diverted, they
would not be."
On April 28, 1979, the UV trustees approved a
VETV operating budget of $1,772,000 for fiscal
year 1979. The record does not reflect the exact
appropriation approved by the legislature for
VETV for fiscal year 1979.
The 11th bargaining session occurred on May 3,
1979, and lasted about 3-1/2 hours. Menard pro-
vided the Union with a copy of the UV counsel's
legal opinion on diverting UV funds to VETV. 2 6
After some discussion of wage proposals, Menard
made a final offer of a 7-percent across-the-board
increase with an additional 1.5 percent of total pay-
roll to be used for equity adjustments to specific in-
dividuals, effective July 1, 1979.27 The Union ac-
cepted this offer, subject to working out how the
1.5-percent adjustments would be distributed.
Sometime thereafter, the parties signed a collec-
tive-bargaining agreement effective February 1,
1979, through June 30, 1980.
B. Contentions of the Parties
The General Counsel contends that during the
period from February 8 to April 16, 1979, Re-
spondent refused to bargain with the Union con-
cerning wages, a mandatory subject of bargaining,
and thus violated Section 8(a)(5) of the Act. The
2 , Menard stated the cost of this proposal was about $20000. com-
pared o $5t.(X)0 for the Union's last proposal.
"
1
I his opinion, dated May 2. 1979, concludes that use of UV's general
funds to support VETV would he a breac;h of fiduciary responsibility.
since such use would not be in keeping with UV's specific charter pur-
pioses hosxver. the opinionll also note that "Nowhere is such use of Uni-
versity funds specifically prohibited
27 Mcnal;rd indicated that the cost of this proposal would he about
s21)(XX).
254
UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
General Counsel argues that the reason advanced
by Respondent as an excuse for its refusal to bar-
gain about wages at that time is not sufficient to
justify Respondent's conduct in refusing any dis-
cussion of this mandatory subject of bargaining.
The General Counsel notes that, although Re-
spondent claimed it had no currently uncommitted
funds and would therefore breach its fiduciary duty
by making any legal commitments of money before
the state legislature took final action on its appro-
priation in April, the Union offered to make any
bargaining on this subject contingent upon legisla-
tive approval of the funds requested by Respond-
ent. The General Counsel contends that, in light of
the Union's offer to bargain tentatively, Respond-
ent's adamant refusal to even discuss wages with-
out the necessity of making any legal commitments
was unreasonable. Finally, the General Counsel
contends that, even though the parties subsequently
agreed upon a contract, that fact does not render
Respondent's earlier refusal to bargain moot.
Respondent notes that the Board has held that an
employer does not violate Section 8(a)(5) simply
because it is unwilling or unable to grant a wage
increase. Respondent contends that it never refused
to discuss wages but rather merely refused to make
an offer to increase wages because of the unavaila-
bility of any funds for that purpose. Furthermore,
Respondent contends that it acted reasonably in
proposing that the wage issue be deferred until the
legislature acted on its appropriations request, since
it honestly believed that negotiating prospectively
or granting a wage increase before funds were ap-
propriated could constitute a breach of its fiduciary
responsibilities toward the citizens of Vermont, for
whom it operates the University, using the taxpay-
ers' money. Respondent also argues that it did
make a wage offer in its first set of proposals,
which referred to an attached wage schedule pro-
viding for a wage reopener on April 15, 1979,
when increases would be negotiated. Finally, Re-
spondent urges the Board to ignore the Vermont
statute on collective bargaining for state employ-
ees, submitted by the General Counsel as part of
the stipulated record herein, because under the
doctrine of Federal preemption that statute clearly
has no application whatsoever to employees of em-
ployers over which the Board has asserted jurisdic-
tion.
C. Analysis and Conclusions
Section 8(d) of the Act defines the duty to bar-
gain collectively as the obligation of the parties "to
meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and
conditions of employment .. . ." It is well estab-
lished that an employer's refusal to bargain about
any matter which is a mandatory subject of bar-
gaining under Section 8(d) (such as wages) and as
to which the union seeks negotiations constitutes a
per se violation of Section 8(a)(5) of the Act, re-
gardless of the employer's overall subjective good
faith in bargaining. 2 8 However, Section 8(d) also
provides that the duty to bargain "does not compel
either party to agree to a proposal or require the
making of a concession .... " Therefore, the
Board has held that, where an employer engages in
bargaining but remains unwilling to make an offer
to increase wages or otherwise raise its economic
costs, this fact alone does not establish a violation
of Section 8(a)(5). without other evidence of the
employer's bad faith.29 Thus, the Board draws a
distinction between cases in which the employer
refuses to engage in any bargaining on a mandatory
subject, where proof of overall bad faith is not re-
quired to find a violation, and cases in which the
employer merely engages in hard bargaining on a
mandatory subject, where proof of overall bad
faith is required to find a violation.
The first question here is, therefore, whether Re-
spondent refused to bargain over wages until April
or merely made an initial offer of no wage in-
crease. Having considered all of the evidence in
the record, we find that Respondent did not actual-
ly refuse to discuss wages until April but rather en-
gaged in hard bargaining on this subject, claiming
that it was both unable and unwilling to offer a
wage increase until that time.
Thus, at the second bargaining session on De-
cember 19, 1978, before the Union presented its
first wage proposals, Respondent's spokesman,
Menard, stated that Respondent had already estab-
lished liberal fringe policies for its employees and
that pay would be a problem because of Respond-
ent's present pay policies. Menard suggested that
the wage increases be deferred along with union
security until later as these issues were important to
both parties; however, he did not indicate any in-
tention of refusing to consider or discuss the
Union's wage proposals when they were presented.
The Union handed Respondent its specific wage
proposals at the end of the third bargaining session
on December 20, 1978, but there was no discussion
of these proposals or of specific wage rates at
either this session or the fourth bargaining session
2' See ..L.R.. BRnt Kat., d/h/a Willionamsbhurg Se Products Co.,
3h( U.S 736 (192).
M2,Middleburv Manor .N'urging and Con,valescent IHonm. 224 NLRH 1038
(197 6)- Jack Liprn.t. li a., d h a .nericcan Sanilar Wipe rs Comnpan. 157
NIRBH 1092 (1966). See alt. Brtouad,ary lopipal.Ilc.. 244 NLRB 341. 354-
355 (1979); Church Point
4
iholaih/ Grocery Company. Inc.. 215 NRB
5(1( (1974), enfd. 538 F 2d 1199 5th Cir 197h): ne A.pparel. In. 208
NLR h601 (1974). nfd 58 F 2d 13h (5h Cir 1975)
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on January 9, 1979. At the fifth bargaining session
on January 22, 1979, Menard responded to the
Union's wage proposals, stating that Respondent
had recently granted a salary increase of $550,
which came out to an average of 6.4 percent for
the fiscal year; that this increase and the employ-
ees' salaries compared favorably with the increases
and salaries paid to employees at other universities
in Vermont; that for the current fiscal year Re-
spondent had had to make cuts in its expenditures
in order to keep its budget balanced; that Respond-
ent did not presently have any nonexpended funds;
that Respondent's budget for the next fiscal year
would be acted upon by the state legislature on
April 1; and that, therefore, Respondent proposed a
wage reopener to take place on April I when it
could take the Union's demands into account
before allocating the budgetary funds. There was
no discussion of specific wage rates at this meeting.
At the sixth bargaining session on February 8,
1979, Menard presented Respondent's "final pro-
posal," stating that, as to wages, Respondent could
not deviate from the April 15 reopener proposal
since its expenditures were fixed and there was
likely to be a substantial difference between the ap-
propriation requested and what was actually ap-
proved by the state legislature. When questioned
by the Union as to whether Respondent would be
willing to make any wage increase negotiated after
April 15 retroactive to February 1, Menard said
Respondent could not commit resources it did not
have. When asked why Respondent had to wait for
the legislature to act, Menard again stated it was
because Respondent did not have any uncommitted
resources. Finally, at the seventh bargaining session
on March 6, 1979, Menard noted that, although the
appropriations committee of the legislature had al-
ready made a recommendation as to the amount of
VETV's appropriation, Respondent still took the
position that it would breach its fiduciary duty if it
made a wage increase offer at that time.
By these statements, Menard consistently indicat-
ed that Respondent was unable to pay any wage
increase until the legislature acted on its appropri-
ation request. Further, in addition to establishing
that Respondent could not afford to pay a wage in-
crease at the present time, Menard made it clear by
the above statements that Respondent was unwill-
ing to offer any wage increase for the present fiscal
year, because it had just granted its employees a
substantial wage increase and because it felt that its
employees' salaries were already competitive with
the salaries of other employees in the area.30 Thus,
3 Menard's statements noted above also implicitly indicate that Re-
spondent was unwilling to operate at a deficit or borrow money from
UV in order to pay an immediate wage increase. This position was later
we find that Respondent merely engaged in hard
bargaining on the issue of wage increases, by pro-
posing no wage increase until the next fiscal year.
By such conduct, therefore, Respondent has not
committed a per se violation of Section 8(a)(5);
however, we must still determine whether there is
other evidence of Respondent's bad faith which
which would warrant a finding that Respondent
violated Section 8(a)(5).
Considering all the circumstances of this case,
we conclude that there is insufficient evidence in
the record to find that Respondent exhibited over-
all bad faith in bargaining with the Union. We note
that, while Respondent took a firm position on the
issue of an immediate wage increase, it made nu-
merous concessions during the early bargaining ses-
sions as to the Union's other proposals and even
reached agreement on several minor economic mat-
ters. 31 Further, Respondent told the Union that it
would offer a substantial wage increase after only a
short delay of about 2 months, giving specific rea-
sons necessitating this delay as noted above and
predicting a specific range of 6 to 8-1/2 percent for
the eventual wage increase based on its anticipated
funding. We also note that, in proposing no imme-
diate wage increase, Respondent offered a wage re-
opener on a specific date in April, thus indicating
an intent to reach agreement with the Union on a
contract at the present time rather than delaying
any final agreement until its funds became availa-
ble. Although the Union did not agree to this pro-
posal of a wage reopener in April, Respondent
continued to exhibit its good faith by promptly
making an offer of a 5-percent wage increase at the
ninth bargaining session on April 16, 1979, after
legislature had approved its funding. Finally, after
two more bargaining sessions Respondent agreed
to a wage increase which averaged 8.5 percent,
and a contract was signed.
In our view, Respondent's refusal to agree in
February to an immediate wage increase does not
rise to the level of bad faith even when considered
made explicit during bargaining over the actual amount of the wage in-
crease. At the 10th bargaining session on April 24, 1979, after Respond-
ent had made its initial proposal on specific wage increases, the Union
asked what prevented UV "from kicking in money from other areas" to
pay for VETV's wage increases. Menard responded, "the University feels
it has made a fair and equitable offer. Even if the funds could be divert-
ed, they would not be."
31 Thus, on January 22, 1979, Respondent agreed to increase the com-
pensation of transmitter employees by $900 a year for travel, food, and
uniform expenses; agreed to check off union dues without requiring the
Union to pay the S150 cost for input into the UV computer; and agreed
to pay time and a half rather than the present straight time for hours
worked on a scheduled holiday. Respondent also negotiated with the
Union about time-and-a-half overtime pay. On February 8, 1979., Re-
spondent made a concession on this issue by proposing time and a half
for hours worked over 10 hours per day, rather than over 12 hours as it
had originally proposed.
256
UNIVERSITY OF VERMONT/VERMONT EDUCATIONAL TV
along with its proposal for a wage reopener 2
months later, since there is evidence that Respond-
ent bargained in good faith on all other matters.
The General Counsel contends, however, that Re-
spondent's rejection of the Union's offer on March
6, 1979, to make any bargaining proposal about a
wage increase contingent upon legislative approval
of all funds requested by Respondent was unrea-
sonable and therefore constituted bad faith. We do
not agree. Although the Union's offer was a rea-
sonable attempt to persuade Respondent to change
its position about proposing an immediate wage in-
crease of some amount, as we have mentioned
above, the Act does not require that Respondent
accede to the Union's proposal. This holds espe-
cially true where, as here, Respondent has indicat-
ed its good faith by its bargaining conduct overall
and has specifically claimed an inability to pay any
wage increase at the present time.
Furthermore, we find that, even if Respondent
were mistaken in its assertion that it could not le-
gally commit any funds before the legislature
acted, the mere fact that it made this assertion in
justifying its hard bargaining stance with regard to
a wage increase does not constitute bad faith. Thus,
we note that Respondent gave several other sub-
stantial reasons for its firm position on a wage in-
crease, including its present inability to pay such an
increase; that Menard only raised this issue as a jus-
tification for Respondent's position late in the bar-
gaining, after emphasizing the other reasons and in
response to questioning from the Union as to
VETV's ability to operate at a deficit or obtain
money from UV in order to finance a wage in-
crease; and that there is insufficient evidence to
show that Respondent made this assertion knowing
it to be false. Although the record indicates that
VETV had previously operated at a deficit using
money borrowed from UV on several occasions,
the record does not reveal whether these deficits
arose because of affirmative commitments made by
VETV with the intention of exceeding its budget
or merely due to unexpected price increases
beyond VETV's control. Moreover, the fact that
VETV had previously operated at a deficit, for
whatever reasons, does not necessarily impose a re-
quirement on Respondent that it agree to do so
again in order to pay for a wage increase.
In concluding that Respondent exhibited overall
subjective good faith in bargaining with the Union
in this case, we have considered the fact that the
parties herein were engaged in bargaining for a
first contract and that therefore Respondent's
budget for this transition period had not been cal-
culated with the cost of the Union's demands in
mind. In addition, we note that there is no evi-
dence in the record to show that Respondent indi-
cated any intention to use the same bargaining
strategy in the future in order to delay negotiations
pending actual receipt of its funding. On the con-
trary, Respondent actually agreed to a contract
based on its anticipated budget for the next fiscal
year, after only a short delay and without condi-
tioning implementation of the contract on the re-
ceipt of funds at a later time from its other sources
of funding (the Federal Government and private
donations). 3 2 Further, it is clear that Respondent
intended to avoid a recurrence of the particular
problem involved in this case, since the contract to
which it agreed was effective only until June 30,
1980, and thus coincided with the end of its next
fiscal year. Therefore, any suggestion that Re-
spondent either could or would defer future bar-
gaining on wages indefinitely, by insisting on wait-
ing until it knew exactly what funds it would actu-
ally receive from each separate funding source at
three different times of the year, is purely specula-
tive.
Accordingly, we find that, in all of the circum-
stances of this case, Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to
propose or agree to an immediate wage increase. 3 3
CONCLUSIONS OF LAW
1. Respondent University of Vermont/Vermont
Educational Television is and has been at all times
material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
2. International Brotherhood of Electrical Work-
ers, Local 42, AFL-CIO, is and has been at all
times material herein a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(5)
and (1) of the Act as alleged in the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complant be,
and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I agree with the
General Counsel's contentions that Respondent
violated Section 8(a)(5) of the Act by refusing to
" We agree with the General Counsel, however, that Respondent's al-
leged refusal to bargain in good faith did not become moot merely be-
cause the parties later signed a contract.
33 In reaching this conclusion, we have not considered the Vermont
statute on collective bargaining for state employees since we agree with
Respondent that the statute has no application to this case.
257
DECISIONS OF NATIONAL. LABOR Rl.ATIONS BOARD
bargain with the Union about wages from Febru-
ary 8, 1979, until April 16, 1979. Prior to February
8, Respondent and the Union engaged in ive nego-
tiating sessions. At the end of the third session, on
December 20, 1978, the Union presented its pro-
posal on wages. At the fifth bargaining session, on
January 22, 1979, Respondent refused to bargain
about wages and requested that the parties agree to
a wage reopener for April 1, so that wages might
be negotiated at that time. Respondent defended its
position by stating that it already had committed its
resources for the current fiscal year expiring at the
end of the following June, and in fact was in a
"shortfall" situation which had required certain
budget cuts. Respondent further explained that its
funds came in roughly equal parts from the Federal
Government, from the state government, and from
private sources such as donations and auctions. In
seeking the delay on wage negotiations until the
first of April, Respondent noted that by that time
the state legislature would have acted on its appro-
priations request and that these additional funds
would then be available for the following fiscal
year beginning July 1, 1979. At the following nego-
tiation session on February 8, 1979, Respondent re-
fused to deviate from its reopener proposal,:' 4
reemphasizing that it had no uncommitted funds at
that time.
At first blush, Respondent's position that fiscal
constraints prevented it from being able to offer
any wage increase until April has a ring of credibil-
ity. Indeed, the majority concludes that Respond-
ent did not actually refuse to discuss wages until
April, but only engaged in hard bargaining by re-
fusing to offer a wage increase prior to that time.
A closer analysis of the record, however, shows
that Respondent steadfastly refused to bargain over
wages until a future date selected to suit only its
convenience, substantially disrupting the process of
negotiations without lawful justification.
Respondent's operations historically have been
conducted on the basis of a fiscal year commencing
July 1. At least 6 months prior to the start of each
fiscal year, Respondent and the University of Ver-
mont prepare a tentative budget for Respondent
and submit it to the state governor's office in sup-
port of an appropriations request. The Governor
reviews the budget and the appropriations request
and submits this information, along with his own
recommendation to the state legislature. Sometime
later, apparently in March or April of each year,
the state legislature acts on these requests and ap-
:4 The minutes of this nIegotiation session indicate that Respondent
changed the date of the reopener to April 15, although it earlier had re-
quested an April 1 reopener. The record does not indicate the exact basis
for this modification.
propriates money to be made available in a lump
sum and on an unrestricted basis for the start of the
next fiscal year. Thereafter, the final, detailed
budget is prepared for the approval of the Univer-
sity's board of trustees no later than the following
June.
As stated above, Respondent's income is derived
from three sources, Federal, state, and private. Of
these three, the state appropriations are the only
funds which Respondent has claimed to have any
significant control over, '35 apparently due to its
ability to provide input into the legislative process
or the obligation of the legislature subsequently to
supply the funds allocated in the appropriation.
The funds from private sources and the Federal
Government are made available in May and Octo-
ber, respectively. Despite the initial uncertainty
over the amount of any of its funding, Respondent
is able to prepare a tentative budget at least 6
months prior to the start of the fiscal year. It ap-
pears that uncertainty as to a substantial portion of
its funding persists even after the preparation of the
finalized budget, at least with respect to the Feder-
al funding to be made available in October. 3 6
Against this background, it is apparent that the
Union's certification as bargaining representative
for an appropriate unit of ETV employees on Oc-
tober 26, 1978, and the ensuing contract negotia-
tions resulted in certain difficulties for the parties'
willingness or ability to negotiate any immediate
economic changes. The Union never contested Re-
spondent's claim on January 22, 1979, that it cur-
rently had no nonexpended income, and the Union
explicitly conceded on February 8 that it was will-
ing to wait until June, in apparent reference to the
start of the next fiscal year, for any wage increases
to be applied retroactively. Accordingly, as of Feb-
ruary 8, the Union's request for wage negotiations
entailed no reformulation of Respondent's current
budget, but was directed only at the allocation of
future income. Respondent, on the other hand, re-
fused to negotiate regarding wages until April,
when it claimed the uncertainty regarding state ap-
propriations would be resolved. Respondent con-
tinued to insist on the April reopener even after the
state legislature's appropriations committee had
:: As Respondent's negotiator stated at the January 22, 1979, session:
As far als the money front private sources is concerned, that money
is simply a function of what the University can do. There is little
control here, Also. ETV has little control over what the federal gov-
ernment will do. As far as the State is concerned, the appropriation
is a lump sum amount.
:" Although the record is unclear. it appears that the amount of pri-
sate funding is ascertainable sometime between March and May. and
therefore may he relied on prior to final approval of the budget in June.
However, Respondent never claimed that it ould knos the amount of
private funding available for the next fiscal year at any time prior to the
requested reopener date
25
UNIVERSITY OF VERMON'T/VERM()N- E)U'CA'IO(NAL TV
acted on the ETV request in early March, and de-
spite the Union's proposal to negotiate on the basis
of that committee's recommendation, with a provi-
so that renegotiations occur should that recommen-
dation not be followed by the full legislature.
Although some of the uncertainty regarding Re-
spondent's funding obviously would have been
eliminated had the Union agreed to Respondent's
demand that it delay wage negotiations for several
months, it is apparent that such a delay would not
have substantially advanced Respondent's asserted
fiduciary interest in being assured that it would
make no commitments which would exceed its
income. Respondent's budget for the upcoming
fiscal year, as approved, totaled over $1,700,000,
out of which only approximately $700,000 was pro-
vided by state funding. The remaining $1 million
from private and Federal sources had not become
available, was admittedly not within Respondent's
control, and the record fails to indicate when Re-
spondent first could rely with certainty on the
exact amount of such funds, prior to their respec-
tive receipt in May and October 1979. According-
ly, Respondent's negotiator's statement at the Feb-
ruary 8, 1979, negotiation session that, "I cannot
bargain until I know how much we have to bar-
gain with," could have been used to delay wage
negotiations for up to 8 months, until the receipt of
Federal funds. Although Respondent sought only a
3-month delay in wage negotiations, it has failed to
show how funding uncertainties attributable to
state funding prevented it from being able to dis-
cuss wages at any time prior to the proposed re-
opener date. The record clearly indicates Respond-
ent had definite expectations regarding the prob-
able amount of state funding and what its position
on wage increases would be at the time of the pro-
posed reopener. On February 8, Respondent's ne-
gotiator stated that negotiated wage increases
should be between 6 and 8.5 percent. Given that
the existing payroll for the 21-23 unit employees
was well under $250,000, Respondent's maximum
suggested increase would have totaled between
$15,000 and $21,000 on a yearly basis. While the
Union's initial wage proposal exceeded this sum,
Respondent has not been about to justify why it re-
fused even to discuss its more limited wage in-
crease prediction. Given that the maximum sug-
gested wage increase of 8.5 percent would have
amounted to less than 1.5 percent of Respondent's
budget, Respondent's professed fear of overspend-
ing its income is not sufficient justification to war-
rant its total refusal to discuss wages, particularly
as the requested delay would not have resolved the
continuing uncertainty about Federal and private
funding, representing approximately 60 percent of
its budget. In any event, Respondent admitted at
the March 8 negotiation session that any sense of
uncertainty about state appropriations had been ef-
fectively eliminated by its negotiator's statement
that:
We know something now that we didn't know
the last time we met, that is that the Appropri-
ations Committee of the Legislature had made
a recommendation with respect to ETV ap-
propriations. We can draw a conclusion from
that as to what the Legislature may do.
Despite this acknowledgment, Respondent contin-
ued to insist on the wage reopener.
Respondent's own actions during the negotia-
tions are also inconsistent with its professed belief
that it could not negotiate on cost items before the
legislature acted. Respondent agreed to several of
the Union's proposals which clearly increased its
costs and thus presumably committed funds it did
not currently have available. Thus, on January 22,
1979, Respondent agreed to increase the compensa-
tion of transmitter employees by $900 a year for
travel, food, and uniform expenses; agreed to check
off union dues without requiring the Union to pay
the $150 cost for input into the UV computer; and
agreed to pay time and a half rather than the pres-
ent straight time for hours worked on a scheduled
holiday. Respondent also negotiated with the
Union about time-and-a-half overtime pay, which
certainly was a cost item. On February 8, 1979, Re-
spondent made a concession on this issue, propos-
ing time and a half for hours worked over 10 hours
per day, rather than 12 hour as it had originally
proposed.
Unlike Respondent, the Union exhibited a great
deal of flexibility in reacting to Respondnt's pro-
posal for a reopener in April. On February 8, 1979,
the Union first indicated that it might be willing to
bargain later about the amount of the wage in-
crease if Respondent would agree to make any
wage increase retroactive; then it indicated a will-
ingness to defer the receipt of retroactive wage in-
creases until June; and finally it indicated that it
might be willing to bargain later about the amount
of the wage increase if Respondent would bargain
now about the Union's time and grade progression
proposal. On March 6, 1979, the Union further of-
fered to negotiate about a wage increase based on
the appropriations committee's recommendation
but to make any agreement contingent upon the
legislature approving that recommendation. Despite
these concessions by the Union, Respondent re-
fused to discuss wages, retroactivity, or progression
until April.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered no justification for its refusal
to bargain tentatively based on its requested appro-
priation, and none is apparent from the record. Re-
spondent clearly had had enough experience with
the legislative approval of its appropriations re-
quests during its 15-year existence to be able to
predict approximately how much funding it was
likely to receive and even conceded this fact on
March 6. Since the Union had offered to make any
agreement conditional on legislative approval of
the appropriations request and to renegotiate the
wage increase if the legislature passed a lower ap-
propriation, Respondent would lose nothing by ne-
gotiating before April. Respondent's insistence on a
delay was clearly unreasonable in these circum-
stances and constituted a refusal to bargain in good
faith.
260