KFMB Stations, 748 (2004)

Midwest Television, Inc., d/b/a KFMB Stations and Harry Clement. Case 21–CA–32858

November 23, 2004

DECISION AND ORDER

By Members Schaumber, Walsh, and Meisburg

On May 4, 2001, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, the General Counsel and the Respondent filed answering briefs, and the Respondent filed a reply brief to the General Counsel’s answering brief.

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

The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judgeÂ’s rulings, findings,2 and conclusions3 only to the extent consistent with this Decision and Order.

We agree with the judge, contrary to our dissenting colleague, that the Respondent did not violate Section 8(a)(5) of the Act either by reducing employee Harry Clement’s above-scale salary to the contractual rate or by insisting to impasse on a permissive subject of bargaining. For the reasons stated below, we find merit in the Respondent’s exceptions to the judge’s further findings that the Respondent violated Section 8(a)(1) of the Act by soliciting the decertification of the Union and violated Section 8(a)(3) by reducing Clement’s wages to union scale and by constructively discharging Clement based on his pay reduction. Accordingly, we reverse the violations found by the judge and dismiss the instant complaint.

i. the “closely related” issue

The judge found that the Respondent violated Section 8(a)(1) when its president, Edward Trimble, solicited Clement in February 1998 to initiate the Union’s decertification. The Respondent argues that this solicitation allegation is time barred by Section 10(b) of the Act because it is neither contained in Clement’s unfair labor practice charge nor closely related to any allegations contained in that charge. We agree.

On July 15, 1998, Clement filed his original charge alleging that the Respondent violated Section 8(a)(3) of the Act by “unlawfully reducing [his] compensation” and by constructively discharging him. Clement filed his first amended charge on July 27, 1999, alleging that the Respondent’s treatment of him and its conduct during bargaining violated Section 8(a)(3) and (5). Neither the original charge nor the first amended charged included any independent 8(a)(1) allegation. Nonetheless, the complaint specifically alleged that the Respondent violated Section 8(a)(1) by soliciting employees to resign from the Union.

In Redd-I, Inc., 290 NLRB 1115, 1118 (1988), reaffirmed in Nickles Bakery of Indiana, 296 NLRB 927, 928 (1989), the Board set forth the following three factors for determining whether allegations that would otherwise be untimely can be included in a complaint based on their close relationship to the allegations in a timely filed charge: (1) whether the untimely allegation involves the same legal theory as the allegation in the timely charge; (2) whether the allegations arise from the same factual situation or sequence of events; and (3) whether the respondent would raise similar defenses to both allegations. The allegation relating to Trimble’s solicitation does not involve the same legal theory as the allegations in the charge and amended charge. Clement’s charge and amended charge allege violations of different sections of the Act and are based on different legal theories than Trimble’s alleged 8(a)(1) solicitation. The factual situations are also distinct. The 8(a)(5) allegations in the charge concern the Respondent’s conduct during contract negotiations, while the 8(a)(3) charge allegation relates to Respondent’s treatment of Clement in reducing his wages. By contrast, the complaint allegation involves whether conduct relating to efforts to decertify the Union interfered with employee Section 7 rights in violation of Section 8(a)(1). Finally, the Respondent’s defense of this complaint allegation would require it to raise different arguments (that is, whether certain conduct occurred and whether it tended to interfere with employee rights) from those involved in defending against allegations in the charge and amended charge relating to its duty to bargain and refrain from discrimination, with consideration of motivation.

We, therefore, conclude that the complaint allegation that the Respondent violated Section 8(a)(1) by soliciting the UnionÂ’s decertification does not meet the Redd-I test. Thus, Section 10(b) precludes the Board from considering this issue.4 Â

ii. the 8(a)(3) allegations

A. Facts

The Respondent and the Union have been parties to a series of collective-bargaining agreements covering all the Respondent’s on-air television and radio personalities for over 50 years. The most recent collective-bargaining agreements were effective from February 1, 1994, through January 31, 1997,5 and from March 1998 until July 2001. All relevant contracts between the Respondent and the Union set forth minimum terms and conditions of employment for the unit employees, but also expressly permitted the Respondent to deal directly with individual employees in negotiating personal service contracts (PSCs) that could provide for wages and/or benefits greater than the contractual minimum.

Clement, a television studio news anchor, worked for the Respondent from October 1979 through February 1998. His most recent PSC was effective from July 17, 1994, through January 31, 1998, and provided for annual compensation of $225,000, $235,000, and $250,000, respectively, during each of the 3 years of the contract. As a union member, Clement engaged in various union activities, including attending union meetings and a late 1997 bargaining session.Â

Upon expiration of the 1994–1997 agreement, the Union withdrew permission for the Respondent to deal directly “with new bargaining unit employees or current employees not signed to a . . . PSC.” The Union was attempting to exert pressure on the Respondent to agree to a successor contract by eliminating the Respondent’s ability to hire and retain experienced on-air talent. By letter dated March 17, 1997,6 the Respondent informed the Union that it intended to declare a bargaining impasse unless the Union accepted its final offer by March 24. The Respondent claimed that the Union’s refusal to allow it to negotiate PSCs was “without precedent in our industry and we believe that this negotiating ploy will backfire against [the Union] and cause discontent among your members.” In response, the Union notified the Respondent that it would allow the Respondent to “direct deal” with any of its current employees whose PSC negotiations began before March 6.

After the Respondent implemented its final offer on April 6, the Union filed an unfair labor practice charge against the Respondent alleging 8(a)(5) violations. By letter dated May 29, the Respondent informed the Union that, “in accordance with your restrictions, those employees who currently have [PSCs] will be adjusted to scale upon the expiration of their [PSCs].”Â

In late September or early October, Clement discussed with the Respondent’s news director, Fred D’Ambrosi, possible terms for a new PSC to replace Clement’s contract expiring in January 1998. Clement made a written proposal seeking annual salary figures of $300,000, $315,000, and $330,000, respectively, for a new 3-year PSC. Clement also requested that the PSC provide an annual clothing allowance of $3500, and relieve himself of working Thanksgiving, Christmas, or early morning shifts, as well as taking any helicopter rides. D’Ambrosi replied that the Respondent’s president, Trimble, would have to approve it. The next day, Trimble told Clement that it “looks like we have a deal.” On October 14, the Respondent’s attorney prepared a new PSC for Clement, who rejected it because the agreement did not include either the clothing allowance or the other restrictions described above. D’Ambrosi claimed that he had forgotten to mention these items to Trimble. On October 29, the Respondent informed the Union that, based on the Union’s opposition to its direct dealing with prospective new hires, the Respondent would not directly negotiate any new PSCs or other above-scale compensation with existing employees. The Respondent subsequently told the Union, on November 3, that it had rejected Clement’s counteroffer to its PSC proposal and that its own PSC proposal was no longer open for Clement’s acceptance. On November 14, Trimble told Clement that the Respondent had decided to eliminate direct dealing because of the union negotiations.

Meanwhile, in September 1997, the Respondent reached agreement with television reporters Kathy Chin and Colleen Rudy on successor PSCs. Both Chin and Rudy subsequently claimed that the Respondent had made errors in calculating the annual salaries set forth in their respective multiyear agreements based on cost-of-living raises provided for by the then-existing collective-bargaining agreement. After reviewing Chin’s and Rudy’s assertions, D’Ambrosi agreed with the employees and made the appropriate changes. The Respondent signed the final PSCs for both Chin and Rudy after it decided that it would no longer enter into such agreements pending the outcome of negotiations.

D’Ambrosi testified that, about this time, a television reporter named Kevin Cox tentatively agreed to a new PSC. The Respondent then announced that it would no longer negotiate PSCs before Cox returned the signed copy. When Cox subsequently questioned D’Ambrosi about one of its terms, D’Ambrosi said that Cox would have to wait until after the Respondent resolved the union issues if he wanted to change anything. Cox executed the PSC without any changes. Although not discussed by the judge, D’Ambrosi...