NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Midwest Television, Inc., d/b/a KFMB Stations and American Federation of Television and Radio Artists, San Diego Local. Cases 21–CA–34683, 21–CA–34803, 21–CA–34833, and 21–CA–35029–2

February 20, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On February 25, 2004, Administrative Law Judge James L. Rose issued the attached decision. The General Counsel and the Respondent filed exceptions and supporting briefs. The Charging Party filed cross-exceptions and a supporting brief. The General Counsel and the Respondent filed answering briefs and reply briefs to each other’s answering briefs.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions only to the extent consistent with this Decision and Order.

This case concerns unfair labor practice allegations arising from abortive negotiations between the Respondent and the American Federation of Television and Radio Artists, San Diego Local (the “Union”) for a successor collective-bargaining agreement in 2001. For the reasons stated in the judge’s decision, we adopt his finding that the Respondent violated Section 8(a)(3) of the Act by discharging Mike Effenberger because his position was part of the bargaining unit. We also adopt the judge’s findings that the Respondent violated Section 8(a)(1) by telling Effenberger that he was being discharged because station manager Ed Trimble was “eliminating bargaining units”; by offering the services of its attorney, Craig Schloss, to employees who had been subpoenaed during the Board investigation; and by coercively interrogating, through Schloss, employee Brian Wilson.

For the reasons stated below, we reverse the judge’s findings that the Respondent violated Section 8(a)(5) by bargaining in bad faith and by withdrawing recognition from the Union. We also reverse the judge’s findings that the Respondent violated Section 8(a)(5) and (3) by reducing employee Rick Moorten’s wages to union scale and Section 8(a)(1) by referencing that reduction in a letter to employees.[2]

i. alleged bad-faith bargaining

The Respondent owns and operates a television station and two radio stations in San Diego, California. For many years, the Union represented a bargaining unit of all staff announcers, newspersons, and freelance performers employed by the Respondent. The parties had a series of collective-bargaining agreements, the most recent of which was effective March 21, 1998 to July 31, 2001. Negotiations for a successor agreement began on April 26, 2001.[3] The parties met 20 times over the next 6 months, last meeting on October 9. During this period, the parties presented proposals and counterproposals and reached tentative agreement on some issues. The parties remained apart, however, on wages, management rights, and union security.

The judge found some justification for accusations that both sides acted in ways that tended to impede bargaining, such as cancelling scheduled meetings and being uncivil, vague, and ambiguous when answering questions. The judge concluded, however, that the bickering and accusations were “irrelevant to the fundamental issue of whether the Respondent’s proposals and its actions away from the bargaining table demonstrate bad faith bargaining.” In this regard, the judge found that none of the Respondent’s proposals, save the proposed elimination of a union-security provision, discussed below, evidenced bad-faith bargaining. We agree with the judge, for the reasons stated in his decision, that the Respondent’s proposals regarding management rights, a zipper clause, at-will employment, scale wages, grievance/arbitration, direct dealing for personal service contracts, and a no-strike provision, whether considered individually or collectively, did not demonstrate a determination to avoid agreement.

The judge did find that, standing alone, the Respondent’s proposal to eliminate union security in the new collective-bargaining agreement constituted bad-faith bargaining. The parties’ previous contracts included a provision that required employees, “as a condition of employment,” to join and maintain membership in the Union after 30 days’ employment. The judge found that such a provision is so common and well established that a proposal to eliminate it “can only be viewed as ‘anti union’ and for the purpose of weakening the Union.” The judge also found that the Respondent’s seasoned negotiators would know that the Union could not accept a contract providing for the elimination of union security, and he found that the Respondent advanced no valid reason for deleting it. Thus, the judge found that the proposal demonstrated bad-faith bargaining. We disagree.

The existence of a union-security clause in previous contracts does not by itself obligate the parties to include it in successive agreements. Challenge-Cook Bros., 288 NLRB 387, 388 (1988). In Challenge-Cook Bros., the Board rejected the judge’s reasoning that an employer’s insistence on the “predictably unacceptable” elimination of a long-established union-security provision revealed its unlawful predetermination not to reach agreement. We find the judge’s reasoning in the present case similarly erroneous. As the Board recognized in Challenge-Cook Bros., supra,

[a]n employer is entitled to advance a position sincerely held, notwithstanding the employer’s having taken a different position at an earlier time . . . . Union security . . . [is a] mandatory [subject] of bargaining, and [a] party . . . is entitled to stand firm on a position if he reasonably believes that it is fair and proper or that he has sufficient bargaining strength to force agreement by the other party.

Id. (quoting Atlas Metal Parts Co. v. NLRB, 660 F.2d 304, 308 (7th Cir. 1981)) (internal quotations omitted).

Contrary to the judge, the Respondent asserted a valid reason for its proposal on union security. As the Respondent explained to the Union, it wanted to eliminate the union-security clause because it did not want to be forced to remove on-the-air talent for nonpayment of union dues. The Union responded with a proposal to keep the language stating that union membership was a condition of employment, but to add a proviso that it would not exercise its “right” to force the Respondent to remove talent from the air. The Respondent asked the Union if it would remove the “condition of employment” language, but the Union refused. The Respondent then rejected the Union’s counter-proposal as internally inconsistent and thus illusory. Whether or not the Respondent’s interpretation of the Union’s proposal was correct, its rejection of that proposal was not unreasonable, so there is no basis for the judge’s finding that the Respondent’s position was “specious” or that it failed to consider the proposal before finding it inadequate to resolve its concerns about the union-security issue.

The Board must assess a party’s total conduct before determining whether that party has engaged in bad-faith bargaining. Challenge-Cook Bros., supra at 388. “‘The Board’s task in cases alleging bad-faith bargaining is the often difficult one of determining a party’s intent from the aggregate of its conduct.’” Garden Ridge Mgmt., Inc., 347 NLRB No. 13, slip op. at 2 (2006) (quoting Reichhold Chemicals, 288 NLRB 69, 69 (1988), enf. denied in part on other grounds 906 F.2d 719 (D.C. Cir. 1990)). In considering the totality of the conduct, the Board decides “whether the employer is engaging in hard but lawful bargaining to achieve a contract that it considers desirable or is unlawfully endeavoring to frustrate the possibility of arriving at any agreement.” Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003).

Here, the totality of the Respondent’s conduct indicates hard but lawful bargaining. The Respondent met with the Union 20 times over 6 months. The parties exchanged proposals and counterproposals and reached tentative agreement on a number of issues. The Respondent explained the reasons for its proposals, including, as discussed above, its reason for wanting to eliminate the union-security clause. The Respondent also explained why it rejected the Union’s counterproposal on union security, and that explanation was not unreasonable. There is no allegation that the Respondent failed to provide requested information. The judge found, and we agree, that none of the Respondent’s other proposals demonstrated an intent not to reach agreement. In addition, in light of our conclusion in the following section that the Respondent lawfully reduced employee Richard Moorten’s wages, there is no away-from-the-table conduct suggesting bad-faith bargaining intent. Having reviewed the Respondent’s overall course of conduct, we find that its proposal to eliminate the union-security clause was not evidence of bad faith or an intent not to reach agreement. See Challenge-Cook Bros., supra.

ii. reduction of moorten’s wages

The parties’ 1998–2001 contract set minimum wages and benefits for the unit employees (referred to as scale wages), but also permitted the Respondent to deal directly with individual employees in negotiating personal service contracts (PSCs) that could provide higher wages and better benefits. Upon expiration of the 1998–2001 agreement, the Union faxed the Respondent a letter that withdrew permission for the Respondent to “direct deal with any current employee, prospective employee, or their agent.” The letter also stated that it would “assume that any PSC not delivered to [the Union] by 10 a.m. [August 1] was not negotiated and signed by 11:59 p.m. on July 31st and therefore is null and void.”

Richard Moorten began working for the Respondent on March 19 at the above-scale wage rate of $17.30 per hour (scale was $14.32 per hour). Moorten was presented with a PSC incorporating this rate when he was hired, but he neglected to sign and return it until August—shortly after the July 31 expiration of the collective-bargaining agreement and after the Union withdrew the Respondent’s right to direct deal. Thus, the Respondent would not accept Moorten’s signed PSC when he tendered it. Because Moorten was receiving above-scale wages without having a signed PSC at the expiration of the contract, the Respondent reduced his wage rate to scale.

On September 19, Station Manager Ed Trimble sent a letter to all employees in which he stated, in relevant part:

First and foremost, if you are reduced to scale, it will be because of AFTRA’s bargaining tactics. . . . * * * AFTRA is again interfering with our ability to pay current employees or new hires more than the Union contract rate. Already we have had to reduce one current AFTRA member to scale and one ‘new hire’ could not be hired above scale or given a contract. * * * Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those coworkers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them.

The judge found that Moorten’s reduction in wages violated Section 8(a)(3) and that Trimble’s September 19 letter to employees violated Section 8(a)(1) because it threatened to reduce other employees’ wages as well. The judge declined to rule on whether Moorten’s reduction violated Section 8(a)(5) because a similar issue was pending before the Board in another case involving the same parties. As discussed in full below, we find the Respondent did not violate the Act in any respect by reducing Moorten’s wages, and that Trimble’s letter was lawful.

A. Section 8(a)(5) Allegation

The “Hal” mentioned in Trimble’s letter is Harry (Hal) Clement, a former anchorperson for KFMB and the charging party in KFMB Stations, 343 NLRB 748 (2004) (KFMB I). Clement worked for the Respondent under a PSC, effective July 17, 1994 to January 31, 1998. Upon expiration of the 1994–1997 collective-bargaining agreement, the Union withdrew permission for the Respondent to deal directly with employees not signed to a PSC in an effort to pressure the Respondent to reach a new agreement. Subsequently, the Respondent reduced Clement’s salary to scale when his PSC expired.

The Board affirmed the judge’s conclusion that the reduction in Clement’s salary did not violate Section 8(a)(5) of the Act. It first stated that Board precedent establishes that an employer’s right to deal directly with unit employees and establish above-scale wages is a permissive subject of collective bargaining. KFMB I, supra, at 752 (citing KJEO-TV, 324 NLRB 138, 143–144 (1997), enfd. 172 F.3d 660 (9th Cir. 1999). It then referred to the Supreme Court’s holding that parties to a collective-bargaining agreement can unilaterally rescind permissive terms of the contract at any time without violating Section 8(a)(5). Id. (citing Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 183–186 (1971)). Based on this precedent, the Board concluded that “given the permissive nature of the direct dealing provision, the Respondent had the right under the Act to unilaterally reduce the wages of employees working under PSCs to union scale at any time, during the term of the contract or thereafter . . . .” Id. at 753.

The Board’s holding in KFMB I governs the disposition of the same issue in this case.^[4] Moorten’s above-scale wage rate resulted from direct dealing and, as such, was a permissive bargaining subject. The Respondent therefore did not violate its statutory bargaining obligation by reducing Moorten’s wages to union scale. We shall dismiss the 8(a)(5) allegation based on this conduct.

B. Section 8(a)(3) Allegation

The judge found that the Respondent was not required to reduce Moorten’s wage rate, but chose to do so and then blamed the Union in Trimble’s September 19 letter to employees. The judge found that reducing Moorten’s wages was a violation of Section 8(a)(3) because it was done during the course of collective bargaining for the purpose of undermining the Union and was “inherently destructive of Section 7 rights.” See NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967). We disagree.

A Section 8(a)(3) allegation has two basic elements: discrimination and motivation to discourage or encourage union activity. In NLRB v. Great Dane Trailers, supra, the Supreme Court established guidelines for assessing whether employer motivation to discourage or encourage union activity could be inferred in certain 8(a)(3) cases, without further proof of union animus, based on the impact on employees of challenged conduct that discriminates along lines of protected Section 7 activity. The Court found that if the employer’s discriminatory conduct is “inherently destructive” of important employee statutory rights, “no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations.” Id. at 34. On the other hand, if the adverse effect of the discriminatory conduct on employee rights is “comparatively slight,” “an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct.” Id.

In the present case, we need not go so far as to examine whether unlawful motivation can be inferred under Great Dane inasmuch as we disagree with the judge’s finding that the General Counsel proved discrimination along the lines of Section 7 activity. In this regard, we find that the judge erred in finding that the decision to reduce Moorten’s wages during the 2001 negotiations represented disparate treatment. Contrary to the judge’s finding, other employees were not “routinely” paid above-scale wages without a PSC prior to those negotiations. The Respondent’s witnesses testified that its policy was not to pay above scale without a signed PSC. At most, the record reveals one specific instance other than Moorten’s where this policy was not followed, and that occurred in 1998.[5] As to Moorten’s situation, while Moorten was paid above scale without a PSC for over 4 months, this payment was made pursuant to a negotiated PSC that the Respondent expected him to sign. Once the Union’s deadline to receive PSCs passed, any subsequently signed PSC would not be accepted as valid by the Union. Thus, there is no evidence that Respondent treated Moorten differently from other employees when it chose to reduce his wages to scale in the absence of a signed PSC.

Even assuming, arguendo, that the Respondent’s reduction of Moorten’s wages represented disparate treatment, based on first paying him above scale without a signed PSC and then reducing his wage rate in response to the Union’s negotiating tactics, we reject the judge’s finding that this discrimination was “inherently destructive.”[6] The impact of this action on unit employees was both temporary and limited to Moorten, new hires, and any other employees whose PSCs lapsed during the bargaining dispute. Contrary to the judge’s suggestion, the Respondent’s action did not exhibit hostility to the process of collective bargaining or make it seem a futile exercise in the eyes of unit employees. Indeed, both the Union and the Respondent knew that direct dealing was indispensable to their mutual interests and would be part of any final agreement. Consistent with the Board’s analysis of the same issue in KFMB I, we find the Respondent’s treatment of Moorten had at most a “comparatively slight” impact on employees’ Section 7 rights.

We further find, as in KFMB I, that the Respondent proved that a legitimate and substantial business interest motivated its action. The Union’s withdrawal of permission to direct deal was meant to put pressure on the Respondent to reach an agreement on terms favorable to the Union. The Respondent’s decision to reduce non-PSC employees to scale was its lawful counter to the Union’s withdrawal of direct-dealing permission. The reduction of Moorten’s wages was consistent with the Respondent’s legitimate bargaining strategy of restoring its critical ability to negotiate PSCs as soon as possible.

In sum, we find that the Respondent’s reduction of Moorten’s wages was not discriminatory. We further find that even if the Respondent’s treatment is viewed as discrimination on the basis of Section 7 activity, it had at most a “comparatively slight” impact on employees’ statutory rights, and the Respondent proved a substantial and legitimate business reason for its action. Consequently, no violation can be found under Great Dane, and the General Counsel must present specific affirmative proof of antiunion motivation.

In fact, the General Counsel did not argue that Moorten’s wage reduction violated Section 8(a)(3) under a traditional Wright Line motivational analysis.[7] Assuming that the issue is before us, we find no violation under Wright Line. As previously stated, the General Counsel has failed to prove his claim that the Respondent discriminated against Moorten by treating him disparately from other employees with respect to above-scale payments in the absence of a signed PSC. Further, the General Counsel has failed to meet his initial burden of proving that the reduction of Moorten’s wages was motivated by animus against union activities. The record does not show that Moorten engaged in any union activity apart from being a dues-paying member. There is no showing that the Respondent bore any animus against him in this respect. The judge appears to have viewed Trimble’s September 19 letter as evidence that general animus against the Union’s bargaining tactics motivated the Respondent to make an example of Moorten. We disagree. Without even mentioning Moorten by name, the letter informed employees of KFMB’s lawful actions in response to the Union’s denying the Respondent’s right to enter into PSCs during past and contemporaneous contract negotiations. In the absence of a showing of discrimination or of antiunion motivation for the reduction in Moorten’s wages, the General Counsel has not established a prima facie case under Wright Line. See KFMB I, supra, at 750-751.[8]

C. Section 8(a)(1) Allegation

The judge found that Trimble’s letter violated Section 8(a)(1) because the letter threatened to reduce other employees’ wages and placed the blame on the Union.[9] We disagree. As explained above, the Respondent lawfully reduced the wage rates of Moorten and, during previous contract negotiations, of Clement and others. Thus, Trimble’s letter did not threaten employees with an unlawful wage cut. Instead, the letter explained the Respondent’s bargaining position and the lawful actions the Respondent had taken in response to the Union’s withdrawal of the Respondent’s right to deal directly. This statement did not violate Section 8(a)(1).

iii. withdrawal of recognition

From September 4 through October 20, a majority of the bargaining unit employees signed a decertification petition. On October 30, the Respondent relied on this showing of majority disaffection and withdrew recognition from the Union.

The judge found that the decertification petition was tainted by the Respondent’s unremedied unfair labor practices, particularly reducing Moorten’s wages, blaming the Union for that action, threatening other employees with a similar wage reduction, and proposing the elimination of the union-security provision. Therefore, the judge found that the Respondent was not privileged to withdraw recognition from the Union. RTP Co., 334 NLRB 466, 468 (2001) (“[A]n employer may not withdraw recognition from a union while there are unremedied unfair labor practices tending to cause employees to become disaffected from the union.”), enfd. 315 F.3d 951 (8th Cir. 2003). As discussed above, however, we have dismissed the unfair labor practice allegations relied upon by the judge in finding that the decertification petition was tainted.

The only unfair labor practice findings we have adopted involve actions that occurred after the employees signed the petition and the Respondent withdrew recognition..[10] These actions could not have caused the employee disaffection on which the Respondent relied. Consequently, the Respondent withdrew recognition based on an untainted showing of majority disaffection from the Union. We therefore reverse the judge’s finding that the withdrawal of recognition violated Section 8(a)(5).

ORDER

The National Labor Relations Board orders that the Respondent, Midwest Television, Inc., d/b/a KFMB Stations, its officers, agents, successors and assigns, shall

1. Cease and desist from

(a) Discharging an employee in order to dissipate employee support for the Union.

(b) Coercively informing an employee that he is being discharged because of his Union membership.

(c) Offering representation by the Respondent’s counsel to employees who had been subpoenaed during a Board-conducted investigation.

(d) Coercively interrogating employees who had had been subpoenaed during a Board-conducted investigation.

(e) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Mike Effenberger full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Mike Effenberger whole for any losses he may have suffered as a result of the discrimination against him in the manner set forth in the remedy section of the judge’s decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing that this has been done and that the discharge will not be used against him in any way.

(d) 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 designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records 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.

(e) Within 14 days after service by the Region, post at its facility in San Diego, California, copies of the attached notice marked “Appendix.”[11] Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s authorized 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 altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 2001.

(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. February 20, 2007

Peter C. Schaumber, Member

Peter N. Kirsanow Member

(seal) National Labor Relations Board

Member Walsh, dissenting in part.

In August 2001,1 the Respondent unilaterally reduced employee Richard Moorten’s wages. A month later, on September 19, the Respondent sent a memo to employees announcing that it had already “had to” reduce an employee’s wages, blaming the reduction on the Union, and threatening additional wage reductions. In October, the Respondent withdrew recognition from the Union based on an employee petition signed in September and October.

Because Moorten’s wages were a mandatory subject of bargaining, the unilateral wage reduction violated Section 8(a)(5) and (1). The judge correctly found that the September 19 memo violated Section 8(a)(1). Those violations tainted the employee petition, making the October 2001 withdrawal of recognition unlawful. Accordingly, I dissent from the majority’s dismissal of the allegations that the September 19 memo violated Section 8(a)(1) and that Moorten’s wage reduction and the withdrawal of recognition violated Section 8(a)(5) and (1).2

i. unilateral reduction in moorten’s wages

The parties’ 1998–2001 collective-bargaining agreement set minimum wages and benefits, but expressly permitted the Respondent to deal directly with individual employees to negotiate personal service contracts (PSCs) that provided for wages and other benefits greater than the contractual minimum. The Respondent hired Richard Moorten in March 2001 at a wage rate of $17.30, which the Respondent and Moorten had negotiated. The scale wage was $14.32. Moorten asked for and received a PSC setting forth the $17.30 rate, but he neglected to sign and return it until August. From March to August, however, Moorten continued to work and to be paid $17.30 per hour.

When the collective-bargaining agreement expired on July 31, the Union withdrew permission for the Respondent to engage in further direct dealing. In August, when Moorten signed the proposed PSC and attempted to return it to the Respondent, the Respondent’s vice president and general manager told Moorten that the Respondent could no longer accept the PSC. On August 18, the Respondent unilaterally reduced Moorten’s wage from $17.30 to $14.32.

The majority concludes that the reduction in Moorten’s wages did not violate Section 8(a)(5) and (1). The majority relies on KFMB Stations, 343 NLRB 748 (2004) (KFMB I), in which a different Board majority found that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally reducing the above-scale salary of another of its employees, Hal Clement. The majority in KFMB I reasoned that Clement’s above-scale salary was negotiated pursuant to a contractual provision permitting direct dealing, that the right to deal directly is a permissive subject of bargaining, and that a party may unilaterally rescind permissive terms of a contract without violating Section 8(a)(5). Id. at 752–753.

I dissented from the dismissal of the Section 8(a)(5) allegation in KFMB I, and I dissent here as well. The issue is not whether direct dealing itself is a mandatory subject of bargaining, but whether directly-negotiated wages, once established through the otherwise permissive direct-dealing mechanism, become a mandatory subject of bargaining because the parties have established that method as the mechanism for determining their wages. As explained in my partial dissent in KFMB I, I would find that they are. See id. at 753–754. In my view, therefore, the Respondent was not free to unilaterally change Moorten’s established wage rate, and it violated Section 8(a)(5) and (1) by doing so.3

ii. the respondent’s september 19 memo

I agree with the judge that the Respondent violated Section 8(a)(1) by sending a memorandum to employees on September 19 blaming the Union for the reduction in Moorten’s wages and threatening additional wage reductions.

The memo, issued by Station Manager Ed Trimble, stated in relevant part:

First and foremost, if you are reduced to scale, it will be because of AFTRA’s bargaining tactics, not my alleged interest in reducing your compensation
. . . .

As for Hal Clement, he was a victim of the same bargaining tactics that the Union is using again. . . .

AFTRA is again interfering with our ability to pay current employees or new hires more than the Union contract rate. Already we have had to reduce one current AFTRA member [Richard Moorten] to scale and one “new hire” could not be hired above scale or given a contract.

Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those coworkers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them. . . .

The majority finds that the memo simply explained the Respondent’s bargaining position and the lawful actions the Respondent had taken in response to the Union’s withdrawal of permission to deal directly. I disagree. The Respondent’s memo blames the Union for Moorten’s wage reduction, stating that the Respondent “already . . . had to” reduce an employee’s wages because of the Union’s tactics. Holding both Moorten and Clement up as examples, the memo warns all other employees that the Respondent may also reduce their wages, again blaming the Union. The memo states: “if you are reduced to scale, it will be because of AFTRA’s bargaining tactics . . . .” The Respondent, however, did not “have to” reduce Moorten’s wages to scale. Nor would the Respondent have to reduce other employees to scale when their PSCs expired. The Respondent chose to reduce Moorten’s wages. Moreover, in my view, it did so unlawfully. As explained above, I would find that the unilateral wage reduction violated Section 8(a)(5) and (1).

Thus, the import of the September 19 memo is a threat to retaliate against employees—through unlawful unilateral action—because of the Union’s bargaining positions. The announcement that two employees’ wages have already been reduced makes it clear that the threat is not an idle one. Accordingly, the judge correctly found that the memo violated Section 8(a)(1).4

iii. withdrawal of recognition

On October 30, the Respondent withdrew recognition from the Union based on an employee petition signed by 25 employees.5 My colleagues find no unfair labor practices predating the withdrawal of recognition, and so they reverse the judge’s finding that the petition was tainted. Because, as just shown, I would find that the reduction in Moorten’s wages and the September 19 memo were unlawful, I would further find that this unlawful conduct tainted the employee petition, and therefore that the withdrawal of recognition also violated the Act.

An employer may not withdraw recognition from a union in the wake of unremedied unfair labor practices tending to cause employees to become disaffected from the union. RTP, supra at 468. The Board examines the following factors to determine whether there is a causal connection between the unfair labor practices and employee disaffection: “(1) [t]he length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, organizational activities, and membership in the union.” Master Slack Corp., 271 NLRB 78, 84 (1984).

A causal connection is present here. With regard to timing, the Respondent withdrew recognition less than 2-1/2 months after reducing Moorten’s wages and 6 weeks after sending the September 19 memo. Of the 25 employees who signed the antiunion petition, 12 signed it between October 9 and October 20, just weeks after the circulation of the memo.

The nature of the violations also supports finding a causal connection. Wages are, of course, a critical employment term. A unilateral change in wages would have the natural tendency to undermine the Union. Where, as here, the Respondent compounded the unlawful reduction in Moorten’s wages by announcing to employees that it “had to” reduce an employee’s wages, by threatening additional reductions, and by affirmatively blaming the Union, the possibility of a detrimental effect on union support is clear. See Penn Tank Lines, 336 NLRB 1066, 1067 (2001) (“Where unlawful employer conduct shows employees that their union is irrelevant in preserving . . . their wages, the possibility of a detrimental or long-lasting effect on employee support for the union is clear.”).6

The final two Master Slack factors focus on the effect of the unlawful conduct on protected employee activities. Here, by unilaterally changing an employee’s wages, the Respondent “‘minimize[d] the influence of organized bargaining’ and ‘emphasiz[ed] to the employees that there is no necessity for a collective-bargaining agent.’” Penn Tank Lines, supra at 1068 (quoting May Department Stores Co. v. NLRB, 326 U.S. 376, 385 (1945)). The Respondent’s September 19 memo went even further, blaming the Union for Moorten’s wage reduction and threatening the same action against other employees because of the Union’s bargaining position. Cf. RTP, supra at 469 (employer’s accusation that the union prevented a wage increase would tend to alienate employees from the union). Finally, the Respondent’s September 19 memo essentially conceded that wage reductions would tend to cause disaffection from the Union. In reminding employees of the 1998 unilateral salary reductions involving Clement and other employees, the memo stated: “Hal [Clement] and 19 other employees were reduced to scale. Many employees immediately joined those co-workers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them.” In sum, the Respondent’s unlawful conduct is of a type that reasonably tends to have a negative effect on union support and to undermine the employees’ confidence in their collective-bargaining representative.

In finding the antiunion petition tainted by the Respondent’s unfair labor practices, I reject the Respondent’s reliance on the testimony of those employees who stated that they were unaware of Moorten’s or Clement’s wage reductions when they signed the petition or, for those who were aware, that the reductions did not influence their decision to sign. Master Slack is an objective test that focuses not on the subjective state of mind of the employees, but on whether the unfair labor practices have a tendency to undermine the union. See AT Systems West, 341 NLRB 57, 60 (2004). “For this reason, actual knowledge by the employees of the unfair labor practices need not be shown.” Wire Products Mfg. Corp., 326 NLRB 625, 627 fn. 13 (1998), enfd. mem. 210 F.3d 375 (7th Cir. 2000). See also C.F. Martin & Co., 252 NLRB 1192 fn. 2 (1980) (specifically disavowing reliance on employees’ testimony about their subjective reasons for withdrawing support from the union). Application of the Master Slack factors, addressed above, shows a causal connection between the unlawful conduct and employee disaffection.

In any event, even if the Board were to consider the employees’ subjective reasons for signing the petition, some of the reasons given were entirely consistent with a finding that the Respondent’s unlawful conduct caused employee disaffection. For example, one employee testified that she signed the petition because she felt the union was “divisive.” Another wanted to be “part of the group” after seeing that other employees had signed. Still another stated that she “hadn’t seen much action with AFTRA.” Those are precisely the types of employee reactions to be expected when an employer’s unlawful conduct has undermined the union.

Accordingly, the judge correctly found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union.

Dated, Washington, D.C. February 20, 2007

Dennis P. Walsh, Member

National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated 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 benefit and protection

Choose not to engage in any of these protected activities.

We will not discharge you in order to dissipate employee support for the Union.

We will not coercively inform you that you are being discharged because of your union membership.

We will not offer representation by our attorney to employees subpoenaed during a Board-conducted investigation.

We will not coercively interrogate employees subpoenaed during a Board-conducted investigation.

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, within 14 days from the date of the Board’s Order, offer Mike Effenberger full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We will make Mike Effenberger whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Mike Effenberger, and we will, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.

Midwest Television, Inc., d/b/a KFMB Stations

Robert MacKay, Esq., for the General Counsel.

Theodore R. Scott, and Edward Cramp, Esqs. of San Diego, California, for the Respondent.

Diane Richard, Esq., of San Diego, California, for the Charging Party.

DECISION

Statement of the Case

James L. Rose, Administrative Law Judge. This matter was tried before me at San Diego, California, on various dates from March 31, 2003, to May 1, 2003, upon the General Counsel’s consolidated complaint which principally alleged that in 2001 the Respondent did not bargain in good faith with the Charging Party and thereafter unlawfully withdrew recognition of the Charging Party in violation of Section 8(a)(5) of the National Labor Relations Act (the Act). It is also alleged that the Respondent reduced the wages of one employee and terminated another in violation of Section 8(a)(3). And finally, the Respondent is alleged to have committed various violations of Section 8(a)(1) of the Act.

The Respondent generally denied that it committed any violations of the Act and affirmatively contends it bargained in good faith, but the parties were unable to reach an agreement, following which a majority of the bargaining unit employees presented a petition stating they no longer wished to be represented by the Charging Party.

Upon the record as a whole,1 including my observation of the witnesses, briefs and arguments of counsel, I hereby make the following findings of fact, conclusions of law and recommended order

i. jurisdiction

The Respondent is a Delaware corporation engaged in the business of operating radio and TV stations in San Diego, California. In the conduct of this business the Respondent annually derives gross revenues in excess of $100,000, sells time for commercial advertising to advertisers of national brand products, and purchases and receives at its San Diego facility goods valued in excess of $50,000 from enterprises located within the State of California, each of which other enterprises had received these goods directly from points outside the State of California. The Respondent admits, and I conclude that it is an employer engaged in interstate commerce within the meaning of Sections 2(2), 2(6), and 2(7) of the Act.

ii. the labor organization involved

The Charging Party, American Federation of Television and Radio Artists, San Diego Local (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act.

iii. the alleged unfair labor practices

A. Brief Overview

The operative facts in this matter are largely undisputed. For many years the Union has represented a unit of the Respondent’s employees defined as follows:

All staff announcers, newspersons and free lance performers employed at KFMB Stations, located at 7677 Engineer Road in San Diego California; excluding guards and supervisors as defined in the Act.

And, the parties negotiated a series of collective-bargaining agreements, the last of which was effective from March 21, 1998, to July 31, 2001.2 Negotiations for a successor agreement began on April 26 and thereafter, the parties met 20 times, the last meeting occurring on October 9. During this period, the parties presented proposals and counterproposals and there was tentative agreement on some issues; however, they remained apart on basic wages, management rights and union security (all of which will be discussed in more detail below).

The General Counsel alleges that the Respondent’s bargaining demonstrated an attempt to be rid of the Union as its employees’ representative. Counsel for the Respondent stated that this case involves the Union’s “efforts to prevent Respondent MIDWEST TELEVISION, INC., d/b/a KFMB STATIONS (KFMB) from bringing the economics of its operations into line with its San Diego-area competitors.” (Brief of Respondent at 1.) In support of this argument, the Respondent contends that it is the only TV/radio station operation in the San Diego market whose employees are represented by a union. Further, a witness for the Respondent stated that the Respondent was on tracks to lose more than $1,000,000 in 2001, thus concessions were necessary.

As will be discussed in more detail below, I reject the Respondent’s economic argument as having not been established by credible evidence. To the contrary, evidence offered by the Respondent demonstrates that the matters in issue probably had little to do with the Respondent’s bottom line. For example, in his September 19 letter to employees, Station Manager Ed Trimble wrote, “This Company has a well-established tract record of paying employees above scale and above market [ for emphasis], not because we have to, but because we are committed to hiring and retaining the best talent.” (Emphasis added.) Such a statement is at odds with the Respondent’s apparent contention that contractual wages kept it from being competitive.

In addition, common in this industry, and practiced by the Respondent with permission of the Union, is to negotiate individual personal service contracts (PSC) with its employees. Thus, again from the brief of counsel for the Respondent at 7, “Bargaining unit employees’ PSCs routinely provide for salary levels and other benefits that are far above the minimums provided by collective bargaining. In fact, several bargaining unit employees enjoy compensation in six and seven figures pursuant to the PSCs (citing transcript references).”

The parties seem to assume, as stated by counsel for the Respondent in his brief, that “all employees who are paid more than the minimum scale were to have signed PSCs in place” (Br. at 129). However, the overwhelming evidence of record is that employees are routinely paid above scale even without having a PSC. See Trimble’s letter, the testimony of Mike Effenberger, Frank Calaifo and Richard Moorten and the Respondent’s negotiation proposal that it could “lower an employee’s above-scale compensation at any time,” subject to the employee’s PSC.

A previous case involving these parties was decided by Judge Parke on May 4, 2001,3 and as of this writing is still pending before the Board on exceptions by both the General Counsel and the Respondent. Some of the issues in that case are similar to issues in this matter; however, Judge Parke’s findings and conclusions are not controlling here.4

B. Bad-Faith Bargaining

It is alleged in paragraph 10 of the consolidated complaint that the Respondent failed to bargain in good faith during negotiations in 2001 by: (1) presenting “proposals retaining to itself total control over virtually every significant aspect of the employment relationship;” (2) presenting “proposals requiring the Union to abdicate its representational rights and duties;” and (3) threatening “to reduce employee wages, lay off employees, and reduce economic commitments in its proposals, unless the Union accepted the Respondent’s proposals.” It is further alleged that by its overall conduct, including the allegations above, the Respondent failed to bargain in good faith.

Witnesses for both the Union and the Respondent accuse each other, with some justification, of actions tending to impede the bargaining process, such as canceling scheduled meetings, walking out of meetings, not always being available for a meeting when the other side was, and being uncivil, vague and ambiguous when answering questions. I believe that negotiators for both sides share responsibility for whatever acrimony there may have been during negotiations, however, such behavior does not necessarily imply a determination not to reach an agreement either party. The bickering and accusations, even if true,5 are irrelevant to the fundamental issue of whether the Respondent’s proposals and its actions away from the bargaining table demonstrate bad faith bargaining.

The Respondent’s proposals which the General Counsel contends demonstrate an unlawful intent not to reach an agreement will be considered as argued by Counsel for the General Counsel on brief.

1. The management-rights proposal

The General Counsel argues that by its Management Rights proposal, the Respondent “sought to retain for itself total control over virtually every significant term and condition of employment, and to strip the Union of having any representational role.” I disagree.

While the Respondent’s proposed clause is substantially more detailed and inclusive than that set forth in the previous contract, it does not appear to have the impact argued for by the General Counsel. Thus Thomas Doyle, the Union’s chief negotiator, testified that the Respondent’s proposal was very similar to that in the previous contract; and, the only issues the Union had with the Respondent’s proposal related to subcontracting and to the assignment of duties other than those regularly performed by an employee.

Cases are legion holding that the Board will not analyze an employer’s particular contract proposal to determine whether it would be “acceptable” to the union. However, if the totality of proposals leads to the conclusion that the employer sought to strip from the union its role as the employees’ bargaining representative, then such proposals are evidence of bad-faith bargaining. Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001). On the other hand, proposing a broad management rights clause, such as the one here, does not itself mean that the employer engaged in bad-faith bargaining. Logemann Bros. Co., 298 NLRB 1018 (1990), where the Board found the company had violated Section 8(a)(5) in some respects but declined to find that a broad management rights clause including the right to subcontract was evidence of bad faith.

So it is here. Although subcontracting and assignment of employees to other duties are no doubt significant, I cannot conclude that they rise to the level of stripping from the Union its representational role. I cannot conclude that the Respondent’s proposal of an all encompassing management rights clause was evidence of its intent not to reach an agreement.

2. The zipper clause

The Scope of Bargaining clause in the previous agreement stated that each party “agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter covered in this Agreement.” The Respondent proposed to delete “covered in” and add: “whether or not specially referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of the parties at the time they negotiated or signed” this agreement. And in the second paragraph, where it is acknowledged that the contract constitutes the entire agreement between the parties and supersedes all prior written agreements, the Respondent proposed to delete “written agreements” and add “agreements and undertakings, oral or written, express or implied, or practices between the Employer and the Union or its employees, and expresses all obligations and restrictions imposed on each of the respective parties during its term.”

The Respondent argues that such language was proposed in view of the Board’s waiver jurisprudence and wanted to insure that final agreement contained the entire agreement between the parties. The General Counsel argues that such language was meant to be a “sword” to justify unilateral changes the Respondent might want to make midterm and therefore was evidence of bad faith, citing GTE Automatic Electric Inc., 261 NLRB 1491 (1982).

Basically the General Counsel argues that this clause might allow the Respondent to unilaterally change some past practice thus requiring the Union to test the matter with a Board charge. Since the Union suggested no specific past practice it had in mind preserving, and since this is a standard zipper clause, I find the General Counsel’s argument too abstract on which to base a finding of Section 8(a)(5).

3. Employees are at-will

Apparently the General Counsel argues that the Respondent should have proposed a “just cause” for discharge of employees not covered by a PSC, and its failure to do so is evidence of an intent not to reach an agreement.

There was no “just cause” protection in the previous contract. Indeed, the parties contemplated that employees might be dismissed without “just cause” and therefore provided severance pay for such employees. While the Respondent sought to change some aspects of the severance pay provisions, I cannot conclude that it was also required to offer a “just cause” clause.

Indeed, “just cause” does not even seem an applicable test for these employees. Every member of the bargaining unit is “on the air talent” and therefore, to a large extent, whether a particular employee is doing his job to the satisfaction of management is a matter of subjective evaluation. Management might well determine to discharge a “talent” without there being traditional just cause.

4. The Respondent’s proposals on scale wages

In its wage proposal, the Respondent wrote: “The Employer may lower an employee’s above-scale compensation to scale at any time.” (This would be subject, presumably, an employee’s PSC.) This, the General Counsel argues, would give the Respondent “unilateral control and discretion over mid-term wages” and therefore evidences bad faith. I disagree.

As noted above, many, if not most, of the Respondent’s unit employees have a PSC which calls for compensation above scale, an others, apparently, are also paid above scale. That employees can negotiate directly with the Respondent for above scale wages has long been established here. What the Union negotiates is a floor. Basically the General Counsel argues, without citation of authority, that absent this proposed language, once the Respondent has agreed with an employee to above-scale wages such could not be reduced. Such is questionable. But beyond that, the proposal that above-scale employees could be reduced to scale does not give the Respondent unilateral control over wages or otherwise demonstrate an intent not to reach an agreement, provided the Respondent does not make the reduction for reasons proscribed by the Act. See Section C, infra.

5. Grievance/Arbitration

The General Counsel argues that the grievance/arbitration clause proposed by the Respondent evidenced bad faith because the broad management-rights clause left nothing to grieve; that the Respondent rejected the Union’s proposal that alleged breaches of PSCs be subject to grievance/arbitration; and the start of the limitation period was vague.

Although the Respondent did propose changes in the grievance/arbitration procedure from the previous contract, I find nothing that suggests, as argued for by the General Counsel, that the Respondent’s proposal destroys the Union’s capacity to resolve disputes on behalf of the employees.

6. Direct dealing for PSCs

The General Counsel contents that “Respondent presented proposals that granted itself the unrestricted right to direct deal with employees for PSC’s.” I reject this contention. In its proposal on Wages, the Respondent sought to codify direct dealing in language identical to that in the expired contract, which includes the employee’s right to be represented by the Union during individual negotiations.

Believing that direct dealing might be a permissive subject of bargaining, the Respondent withdrew this language in its final proposal before declaring impasse. Nevertheless, the proposed language and negotiation discussions on direct dealing do not support the General Counsel’s argument. As noted above, direct dealing is common in this industry and has been in place here for many years. The Respondent’s proposal did not alter this practice. I conclude that the Respondent’s proposal on PSCs was not evidence of bad faith.

7. No Strike/No Crossing picket lines

In the 1998–2001 contract, there is a prohibition against strikes and lockouts as well as a proviso that individuals can refuse, without being subject to discipline, to cross primary picket lines. Though the Respondent initially proposed to eliminate this language, along with the picket line language, it subsequently included the no strike/no lockout proscriptions. The Union agreed to this language, with the deletion of the picket line portion. The General Counsel does not argue that deleting the picket line language was evidence of bad faith. Accordingly, I will make no finding concerning the picket line proposal. As to the no strike language, I conclude it is identical to that in the previous contract does not evidence bad faith and in fact the Union agreed to it.

8. Respondent’s proposal to eliminate union security

Requiring employees to join and maintain membership in the Union after employment for 30 days has been codified in the parties’ previous contracts. The Respondent proposed to eliminate this requirement—to the point of impasse. A union-security provision, such as the one in the parties’ previous contract, is so common and well established that a proposal to eliminate such a clause can only be viewed as “anti union” and for the purpose of weakening the Union. Notwithstanding that some of the Respondent’s employees might themselves be “anti-union” the Respondent’s proposed elimination of union security is clearly evidence of bad faith—evidence that the Respondent was determined not to reach an agreement.

It is true, as the Respondent contends, that just because there was a union security clause in previous contracts it was not required to accept one in the successor. Challenge—Cook Brothers., 288 NLRB 387 (1988). In arguing for removal of the union security clause, the Respondent contended it did not want to be forced to remove on-the-air talent, such as Rick Roberts (who was vocally antiunion and objected to paying dues). However, the fact that the Respondent would not consider the Union’s proposal that employees would not be removed from the air suggests that its claim is specious. E.g., Mar-Len Cabinets, Inc., 243 NLRB 523, 536 (1979).

In fact, I conclude that union security is so important to the Union that once established the Union would not reasonably abandon it, any more than it would abandon a wage scale and agree to start over from scratch. And this the Respondent’s seasoned negotiators would know. Thus the Respondent would know that the Union could not accept a contract providing for the elimination of union security.

In sum, though most of the Respondent’s proposals were not so unreasonable as to support a finding of bad faith in negotiations, its adamant insistence (to impasse) on deleting union security demonstrates such bad faith.

C. Richard Moorten Allegations

Richard Moorten began working for the Respondent on March 19 at the above scale wage of $17.30 per hour (scale being $14.32 which Moorten testified he would not accept). Within a few days Moorten was presented with a PSC, which he neglected to sign and in fact did not do so until August—shortly after the July 31 deadline for PSCs set by the Union.

On September 19, station manager Ed Trimble sent a memorandum to all employees in which he stated, in relevant part: “First and foremost, if you are reduced to scale, it will be because of AFTRA’a bargaining tactics. . . . * * * AFTRA is again interfering with our ability to pay current employees or new hires more than the union contract rate. Already we have had to reduce one current AFTRA member to scale and one ‘new hire’ could not be hired above scale or given a contract.
* * * Why don’t you ask AFTRA for the truth about what really happened with Hal? Hal and 19 other employees were reduced to scale. Many employees immediately joined those coworkers who had already resigned from the Union and informed KFMB that they no longer wanted AFTRA to represent them.”

According to the Respondent, since Moorten was receiving above scale wages without having signed a PSC, he was reduced to scale. The Respondent also argues that the fact Moorten was paid above scale without a PSC was clerical error not known to management—a contention beyond belief. As noted above, employees are routinely paid above scale without a PSC and in any event, managers are presumed to know how much they pay employees, and under what circumstances.

The issue is whether reducing Moorten’s wage rate was violative of Section 8(a)(5) and/or violative of Section 8(a)(3). In a similar situation involving employee Hal Clement, Judge Parke found that receiving above-scale wages was not a mandatory subject of bargaining, thus for his wage rate to be reduced was not violative of Section 8(a)(5); however, in his case, the reduction was inherently discriminatory within the meaning of NLRB v. Great Dane Trailers, 388 U.S. 21 (1967). Both conclusions are before the Board on exceptions.

Since the Board will decide whether unilaterally reducing one’s above-scale wage rate is a violation of Section 8(a)(5), I will not rule on that issue as to Moorten. I do, however, conclude that reducing his wage rate during the course of collective bargaining for the purpose of undermining the Union was violative of Section 8(a)(3). The Respondent, of course, was not required to reduce Moorten’s wage rate, but choose to do so in the context of negotiations for a new collective-bargaining agreement and then put the blame on the Union.

While Moorten is not specifically named in Trimble’s September 19 letter to employees, his situation was. Since the Respondent was not required to reduce Moorten’s wage rate, in doing so and blaming the Union, the Respondent clearly violated Section 8(a)(3). It is clear from Trimble’s letter that the Respondent reduced Moorten’s wage rate, and threatened others with like fate, in order to undermine the Union. Such was inherently destructive of Section 7 rights therefore a violation of Section 8(a)(3). The import of the letter threatened other employees in violation of Section 8(a)(1).

Finally, it is undisputed that the Respondent reduced Moorten’s wage rate without notice to, or consultation with, the Union. Whether it thereby violated Section 8(a)(5) will depend on the Board’s ruling in the previous case and I make no conclusion concerning that issue here.

D. Mike Effenberger Discharge

Mike Effenberger was a fill-in announcer from 1995 until his discharge in November 2001.6 He had just finished a week of fill-in work for the morning show when Dave Sniff, the program director, called Effenberger into his office and said “that he had to fire me at that point in time.” Effenberger also testified that Sniff “told me that he was—they were eliminating bargaining units.” And, “(w)e discussed a little bit that there was an ongoing negotiation with AFTRA and the station, that was the reason why this was occurring.” Sniff assured Effenberger that the discharge had nothing to do with his performance.

Sniff testified that he was instructed by his boss, Tracy Johnson, “that we needed to make this move (discharging Effenberger), and what ever the timetable was to make it in.” Sniff denied discussing the AFTRA negotiations with Effenberger. He further denied telling Effenberger that Ed (Trimble) said to terminate him, that “Ed is terminating the bargaining unit,” that “Ed wanted to terminate the bargaining unit employees,” or that “Ed wants to get rid of some of the people in the bargaining unit,” none of which Effenberger testified to on direct. The denials elicited from Sniff were similar to, but not really the same as Effenberger’s assertions.

Sniff testified that he told Effenberger that his discharge was one of the ways the Respondent was attempting to reduce costs. He also said that fill-in work would be done by Rick Roberts—one of the Respondent’s “stars,” vocally antiunion and very high paid.

Although asserting, as with other issues, that discharging Effenberger was a cost cutting measure, the Respondent offered no real proof as to how discharging a part-time fill-in employee and replacing him with a very high paid employee saved money. Further, Effenberger continues to be employed by the Respondent, but as an “independent contractor.”

On the other hand, lending support to the conclusion that Effenberger was discharged because of his membership in the Union is the test