5301 Wisconsin Avenue, NW

Suite 800
Washington, DC 20016
T: 202-362-0041
F: 202-362-2640
www.odonoghuelaw.com

April 24, 2020

VIA E-FILING ONLY

Sumintra J. Aumiller
Field Examiner
National Labor Relations Board, Region 5
Bank of America Center, Tower II
100 South Charles Street
Baltimore, MD 21201

Re: Montgomery Community Television t/a Montgomery Community Media

Case No. 05-CA-259327

Dear Ms. Aumiller:

This office represents National Association of Broadcast Technicians and Employees –

Communications Workers of America, Local 31 (“Local 31” or “Union”). Local 31 has filed an
unfair labor practice charge against Montgomery Community Television t/a Montgomery
Community Media (“MCT/MCM” or “Employer”). The Union alleges that MCT/MCM is
violating Sections 8(a)(5) and 8(d) of the National Labor Relations Act (“Act”), 29 U.S.C. §§
158(a)(5) & 158(d). The undersigned submits this position statement in support of the charge.

I. INTRODUCTION

The Supreme Court once observed, “[t]he law is its own measure of right and wrong, of
what it permits, or forbids, and the judgment of the courts cannot be set up against it in the
supposed accommodation of its policy with the good intention of the parties, and, it may be, of
some good results.” Standard Sanitary Mfg. Co. v. United States, 226 U.S. 20, 49 (1912). In this
case, MCT/MCM has taken it upon itself to decide what satisfies the duty to bargain in good
faith. In the Employer’s view, Section 8(d) of the Act’s requirement to meet at reasonable times
and confer in good faith is limited to in-person bargaining. The Employer conveniently adopts
this interpretation in the midst of the coronavirus pandemic. During this pandemic, the Governor
of the State of Maryland has issued certain executive orders restricting “non-essential business.”
MCT/MCM cites these executive orders as precluding in-person meetings and, by extension,
precluding collective bargaining negotiations. In the words of MCT/MCM’s attorney, “…absent
the ability to conduct in person bargaining, there is no obligation to do anything. Period.” (E-
Mail from John Bolesta to Keith Bolek of 4/14/2020 at 1, provided as Exhibit 1.)
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 2

MCT/MCM is an employer in the broadcast media business, fancying its online presence
as “the epitome of today’s transformation of access TV, combining content, information and
engagement into an easy to use, mobile platform.” MCT/MCM, About Us, available at
mymcmedia.org/about/ (last visited 04/20/2020). While the Employer is more than willing to
build a substantial part of its business around engagement over the Internet, it refuses to engage
collective bargaining through videoconference or telephone conference. It even refuses to
provide a proposal by e-mail. Despite the multiplicity of means by which the parties could
engage in bargaining during the coronavirus pandemic, MCT/MCM is insisting upon the only
one that is legally unavailable, viz., in-person meetings. This is a violation of Section 8(a)(5) and
Section 8(d) of the Act.

MCT/MCM implicitly recognizes the absurdity of its position. While stating it has no
obligation to do anything, the Employer has offered to engage in bargaining over non-economic
proposals during the pandemic. However, in so doing, the Employer commits another violation
of Section 8(a)(5) of the Act. MCT/MCM steadfastly refuses to engage in any bargaining over
economic proposals. Once again, to quote the Employer’s attorney:

As I stated previously, the pandemic, and resulting uncertainty on the budget,

renders my client unable to confidently commit to any wage-related proposal.
Without knowing how the COVID pandemic will impact the county’s budget, my
client is clearly facing an unprecedented situation that compels it to exercise
prudence before committing to another 3-year contract.

(Ex. 1 at 3.) For this reason, MCT/MCM is refusing to bargain over economic issues until the
Montgomery County Council completes the budget process, which may not be until some point
in May or June 2020.

Accordingly, as explained herein, Local 31 respectfully submits that MCT/MCM is

violating Sections 8(a)(5) and 8(d) of the Act by: (1) insisting on in-person negotiations during
the coronavirus pandemic when such in-person meetings are prohibited by legal order; and (2)
refusing to bargain over economic matters until the county council has completed the budgeting
process. The Union respectfully requests that the Regional Director issue a complaint.

II. STATEMENT OF FACTS

A. Background

MCT/MCM describes itself as “the only independent, nonprofit organization providing

access to public media (public access television and broadband media)” to the residents,
associations and businesses of Montgomery County, Maryland. (MCT/MCM, About Us,
available at mymcmedia.org/about/ (last visited 04/20/2020).) MCT/MCM maintains its
principal facility at 7548 Standish Place, Rockville, MD 20855.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 3

At all material times, MCT/MCM’s management and supervisory structure included the
following individuals:

Nannette Hobson -- Chief Executive Officer

Deborah Billings -- Director of Administration and Human Resources

Both Ms. Hobson and Ms. Billings exercise supervisory authority on behalf of MCT/MCM as
defined in Section 2(11) of the Act, 29 U.S.C. § 152(11). They are also agents of the Employer
as defined in Section 2(13) of the Act, 29 U.S.C. § 152(13).

MCT/MCM employs employees who perform production work and instructional work at
its Rockville facility. Many years ago, the National Labor Relations Board (“Board”) certified
Local 31 as the exclusive bargaining representative of the following unit of employees who work
at this facility:

All Full-Time and regular Part-Time Employees employed by the Company as

Teaching Assistants, Media Resource Technicians I-II-III, Equipment
Technicians, Production Coordinators, Post-Production Coordinators, Play-Back
Supervisors, Play-Back Operators, Photographer/Editors, Production Technicians
and Senior Production Technicians, but excluding all other Employees, guards
and supervisors as defined in the Act.

Over the years, the Union and the Employer have negotiated a series of collective bargaining
agreements. The latest agreement expired on June 30, 2018. A copy of that agreement is
provided as Exhibit 2.)

B. The Parties Begin Negotiations for a New Agreement

As the agreement was set to expire, MCT/MCM’s Chief Executive Officer (“CEO”) –
Nannette Hobson – asked to delay collective bargaining negotiations for six months. Ms. Hobson
asserted that she needed the time as the new CEO (the previous one committed suicide while in
the office) to get acclimated to the responsibilities of the job. The Union reluctantly agreed,
although it insisted on monthly meetings to discuss and/or negotiate over matters of concern in
the workplace. Negotiations would then commence in January 2019.

From January 2019 through December 2019, the parties had ten (10) negotiation sessions.
These sessions took place on January 17, 2019; January 31, 2019; February 13, 2019; May 13,
2019; June 17, 2019; August 19, 2019; September 13, 2019; October 22, 2019; November 8,
2019 and December 9, 2019. A mediator was present for the November and December sessions.

During these negotiations, the parties bargained over both non-economic and economic
proposals. While they reached some tentative agreements on non-economic proposals, the parties
had not reached any agreements on economic proposals. Meanwhile, in or about August 2019,
MCT/MCM gave a three percent (3%) raise to all non-unit employees, retroactive to July 1,
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 4

2019. The Employer advised that, with respect to bargaining unit employees, any wage increase
would have to come through collective bargaining. A copy of the e-mail from Ms. Hobson to the
employees announcing the wage increase is provided as Exhibit 3.

The parties had scheduled negotiation sessions for February 4 and February 26, 2020.
However, the Employer had to cancel the former date because of the unavailability of its attorney
(John Bolesta). The Union had to cancel the latter date because of the unavailability of its
President (Robert Williams). The parties set their next negotiation session for March 30, 2020.

C. The Emergence of the Coronavirus Pandemic

The coronavirus pandemic began to take root in the State of Maryland in early March
2020. The Governor of the State of Maryland, Larry Hogan, issued a state of emergency and
catastrophic health emergency on March 5, 2020 in connection with the spread of the
coronavirus, as well as the resulting disease, COVID-19. Governor Hogan also issued a series of
executive orders related to the state of emergency. For example, on or about March 12, 2020, the
Governor issued an executive order banning meetings in excess of ten (10) individuals. This
order was superseded by a subsequent order, which, in turn, was superseded by another order.
With each new order, the limitations on meetings and business expanded.

Governor Hogan issued an executive order – No. 20-03-23-01 – on March 23, 2020 that
superseded an order already in place. In this order, the Governor directed all non-essential
businesses and establishments to close. The order specifically excludes “[a]ny newspaper,
television, radio or other media service.” In addition, the official guidance and interpretation of
the order also excluded “lawyers and law firms” from the scope of the order. The guidance
further noted that the executive order was not a shelter-in-place or a stay-at-home order. 1

D. MCT/MCM Refuses to Meet with the Union and Refuses to Bargain Over
Economic Proposals

1. The Correspondence of the Week of March 23, 2020

On the same day as Executive Order No. 20-03-23-1 issued, Local 31 sent an e-mail to
MCT/MCM, in which the Union indicated its willingness to continue the mediation and
negotiations during the coronavirus pandemic. A copy of the e-mail, along with the subsequent
e-mails in the chain, is provided as Exhibit 4. Local 31 noted that it has been using Zoom to
conduct business that was previously handled through face-to-face meetings, including
negotiations. (Id. at 12.) The Union proposed the following:

1
Since that time, Governor Hogan has issued a stay-at-home order, which is Executive Order 20-
03-30-01. That order also excludes newspapers, television radio and other media services. This
order superseded Executive Order 20-03-23-01 and is currently in effect.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 5

1. MCT provide a counterproposal to the Union’s December 9, 2010

proposal as soon as possible by e-mail either through the mediator or
directly to the Union.

2. Zoom could be used when the mediator and the parties need to meet “face-
to-face” (albeit with the use of cameras and screens).

3. The mediator’s one-on-one discussions with parties could be one either

through a separate Zoom meeting or by conference call.

4. Further proposals could be exchanged by e-mail either directly between

the parties or through the mediator.

(Id.) The Union emphasized that the above approach allowed the parties to continue the
negotiations while the coronavirus pandemic precluded face-to-face meetings. (Id.)

MCT/MCM responded to the Union’s request on March 26, 2020. (Ex. 4 at 8.) Through
its attorney, the Employer initially expressed some doubts about Zoom, but the Employer’s
attorney added:

With that said, I don’t necessarily see this as an impediment, and given Larry’s
suggestion below, I am certain we can come to some arrangement on virtual
conferencing. My client would be willing to utilize Zoom for any further
mediation sessions (assuming Christy is able to participate) if we can host the
meeting.

(Id. at 9.) 2 As for the subjects of negotiation, MCT’s attorney stated the following:

The current pandemic has completely halted the County Council’s ability to
continue the budgeting process. The County Council, which is supposed to
approve the county budget by mid-June, has suspended all budget-related
meetings until further notice, and our client cannot commit to any of the
remaining financial proposals because we simply don’t have any idea how the
budget process will be impacted (the county, like all others, is losing money so
there’s a possibility MCM’s preliminary budget, approved by the County
Executive will be impacted). We suspect the budgeting process will continue in
the coming weeks, but don’t know for sure (we are checking with the County
daily). Given the above uncertainty, until such time as the County Council
approves the budget or 2021 (or my client is made aware that the preliminary
budget put forth by the County Executive will remain unaltered as it relates to

2
There are references to the Mediator in the block quote. Mediator Christy Yoshitomi attended
the sessions in November and December 2019; however, she was unavailable in March 2020.
Mediator Larry Passwaters was assisting the parties at that time.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 6

MCM), my client will have to postpone bargaining over the remaining financial
proposals (wages). In the alternative, my client is also open to possibly exploring
conditional financial proposals, subject to the uncertainties of the budgeting
process, but we would have to have a side agreement, in writing, setting forth the
details of any such arrangement and my client’s ability to claw back any
proposals that are untenable due to budgeting changes that are announced.

(Id. (emphasis added).) Thus, MCT/MCM sought to have it both ways: it indicated a willingness
to bargain, but refused to bargain over economic issues.

The Union responded to the Employer’s e-mail on the same date. Local 31 addressed the
MCT/MCM’s concerns with respect to the use of Zoom. (Ex. 4 at 6-7.) However, the Union
would not agree to postpone negotiations over economic matters. (Id.) The Union further noted
that it would not agree to “conditional financial proposals” because, in the past, parties
responded to any uncertainties by agreeing to wage reopeners. 3 (Id. at 7.) The Union asked for a
counterproposal from the Employer. (Id.)

MCT/MCM responded by e-mail on March 27, 2020. (Ex. 4 at 4-6.) The Employer had
prepared a counterproposal; however, MCT/MCM would not provide it to the Union. (Id. at 5.)
MCT/MCM further reiterated its unwillingness to continue bargaining over economic proposals,
basically rehashing the statements made by its attorney in prior emails (as quoted on the prior
page). (Id. at 5.) The Employer’s attorney did propose the following:

… let’s plan on reconnecting next Friday – in the interim, we will work daily to
obtain more clarity on the possible impact on our budget. We do not expect this to
take very long. We will continue to connect weekly to see how things progress,
and once we have clarity on the budget, my client will gladly e-mail you and your
committee our proposals, which we then could set up a Zoom session to discuss.
If further sessions are required, we would ask for the same in return (proposal
from the union a few days in advance of the session) and so on and so forth. If
you would like to exchange the remaining non-wage proposals in the interim,
that’s fine as well.

(Ex. 4 at 5.) In other words, the Employer now dispensed with any meeting on Monday, March
30, 2020, seeking to substitute at the very least, a “reconnecting” on Friday April 3, and, at most,
an exchange of non-economic proposals.

The Union reiterated its request to bargain over both economic and non-economic
proposals. As of March 27, 2020, the outstanding provisions to be negotiated included the
following:

3
Indeed, the prior agreement (Ex. 2) provided for a three percent (3%) wage increase in the first
year, followed by wage reopeners for the second and third years.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 7

(1) Article VIII, Section 8.1: whether employees could have their schedules
sent to personal e-mail addresses;

(2) Article VIII, Section 8.4: (a) whether employees would continue to receive
a premium for having to work on an 11th consecutive day; (b) whether the
employees would be paid for a rest day, which is the first day off after
being scheduled for 11 or more consecutive days; and (c) whether
employees could arrange for non-consecutive days off;

(3) Article VIII, Section 8.8: whether employees receive a premium when
performing the duties of another employee in addition to their own duties;

(4) Article VIII, Section 8.9: provisions relating to the completion of

timesheets;

(5) Article IX, Section 9.1(i): the amount of employer contributions to an IRS
qualified Section 125 Cafeteria or Flexible Spending Account Plan;

(6) Article X, Section 10.16: the definition of a multi-device operator;

(7) Article XVIII, Section 18.2: the rate of pay to be paid to an employee who
takes sick leave;

(8) Article XXIV, Section 24.1(e): whether employees would continue to

receive mileage when reporting to assignments at the county office
building in Rockville;

(9) Article XXXI, Section 31.1: the annual increases to employees wages; and

(10) Article XXXI, Section 31.2: the range of wage rates for full time
employees, as well as the wage rates for part-time employees.

(A copy of the last proposal exchanged by the parties, which was a proposal by the Union, is
provided as Exhibit 5.) Seven of the ten outstanding items involve economic issues in some
way, whether it was the payment of a premium, a contribution made by the Employer, or the
wages paid to the employees. More importantly, the bargaining unit employees had not had a
wage increase since 2015, while non-unit employees received a wage increase in 2019. Thus,
economic proposals generally, and wage proposals in particular, are important to the bargaining
unit employees and the Union.

In light of the foregoing, Local 31 reiterated its request to proceed with the negotiations
as it had outlined in its March 23, 2020 e-mail, as well as to bargain over economic and non-
economic proposals. (Ex. 4 at 3-4.) MCT/MCM’s response become more strident:
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 8

… I’m afraid you are not comprehending the fundamental issue – the pandemic,
and resulting uncertainty on the budget, renders my client unable to confidently
commit to any wage-related proposal. If you are referring to non-wage proposals,
we can certainly do that Monday as planned.

(Id. at 3.) The Union again repeated its request to bargain over both economic and non-economic
proposals and asked that the Employer send its proposal on March 30, 2020, which was the day
on which the parties were scheduled to meet. (Id. at 2.)

MCT/MCT’s became even more rigid. Reply through its attorney, the Employer stated
“… the law requires us to meet in person at reasonable times and places. That’s not possible at
the moment. We will get back to you when we learn more as outlined below,” i.e., reconnecting
on Friday while the Employer communicates with the county council. (Id. at 1.)

MCT/MCM did not provide a proposal on March 30, 2020.

MCT/MCM did not meet with the Union on March 30, 2020.

The Employer did not “touch base” (i.e. check in) with the Union on April 3, 2020.

The Employer did not “touch base” (i.e. check in) with the Union on April 10, 2020.

2. The Correspondence on April 14, 2020

After two weeks of silence from MCT/MCM, Local 31 sent an e-mail dated April 14,
2020 protesting the Employer’s refusal to negotiate over economic proposals. (Ex. 1 at 3-4.) The
Union also noted that MCT did not even comply with its own proposal to touch base on a weekly
basis. (Id.) The Union demanded MCT’s counterproposal on both economic and non-economic
terms so that the negotiations could continue in some form. (Id.) If MCT/MCM failed to provide
a proposal, then the Union would assess its legal options and proceed accordingly. (Id.)

MCT/MCM responded by e-mail on the same day. (Ex. 1 at 2-3.) The Employer adhered
to its previous position, as explained by its attorney:

… the law requires us to meet in person at reasonable times and places. That’s
not possible at the moment. We will get back to you when we learn more as
outlined below. You know the reason for the halting the process is the governor’s
stay at some executive order(s), which prevents the parties from attending any in-
person sessions as is required by Section 8(d). My client is not ‘refusing to
bargain over economic matters’ as you suggest – it is prevented from attending
any in person sessions at all (under penalty of a fine and/or imprisonment), which
is the extent of the requirements under the Act.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 9

(Id. at 3 (emphasis in original).) After accusing the Union’s attorney of being “misleading and
unprofessional,” the Employer’s attorney labored on:

Of course, we did and have been considering alternate bargaining (via email and
Zoom), and while not required to do so under the Act, I conditioned that alternate
approach on the outcome of the county’s budgeting process, which remains
ongoing (we understand that we should know more in May but we continue to
check weekly). That’s perfectly legal and you know it.

(Id. (emphasis in original).) Apparently, in an effort to “reinforce” the legality of his position,
the Employer’s attorney dug out an inapposite Board decision 4 and an equally distinguishable
Advice Memorandum. 5 Based upon this “legal support,” MCT/MCM’s attorney declared, “[m]y
client cannot be forced to bargain electronically. Period.” (Id.) Although the Union disputed this
legal proposition (id. at 1) – as it allowed MCT/MCM to completely avoid bargaining during the
coronavirus pandemic – the Employer dug a deeper hole. Once again, in the words of the
Employer’s attorney, “your e-mail ignores the fact that absent the ability to conduct in-person
bargaining, there is no obligation to do anything. Period.” (Id.)

III. ARGUMENT

No amount of lousy legal legerdemain can obscure MCT/MCM’s ongoing refusal to

bargain with Local 31. While claiming to be open to negotiating by alternative means, the
Employer has refused to bargain over “wage proposals” because of the alleged “uncertainty”
surrounding the budgeting process of the Montgomery County Council. When Local 31 pressed
to bargain over all matters, economic and non-economic, MCM/MCT clumsily perform another
trick: viz., to turn the duty to bargain in good faith on its head. The Employer interpreted Section
8(d)’s requirement that parties meet in reasonable places to confer in good faith to require only
in-person bargaining. Relying upon the Maryland Governor’s executive orders in response to the
coronavirus pandemic, MCT/MCM concluded that bargaining cannot continue because it can
only be done through face-to-face meetings. The Employer is not obligated to use alternative
means to bargain when in-person meetings are a legal impossibility. Thus, the duty to bargain in
good faith means there is no duty to bargain at all.

4
See The Westgate Corp., 196 NLRB 306, 313-314 (1972) (finding that, once the union no
longer acquiesced to bargaining by phone, employer was obligated to meet face-to-face). The
Board did not address the question of whether the parties were obligated to bargain by alternative
means when they could not meet face-to-face.
5
See Vanguard Car Rental USA, Inc., Case No 37-CA-7033 (Div. of Advice Jul. 24, 2006)
(concluding that, once party seeks to bargain in person, the other party may not lawful refuse to
do so and seek to negotiate through alternative means). Once again, the question in this case is
whether the Section 8(d)’s provision that parties meet at reasonable times to confer in good faith
requires those parties to negotiate through alternative means – such as by video conference,
telephone conference or e-mail – when they are legally prevented from meeting in person.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 10

A. MCT/MCM is Violating Sections 8(a)(5) and 8(d) of the Act by Insisting that
Bargaining Can Only Take Place in Person

Section 8(d) of the Act, 29 U.S.C. § 158(d) requires, inter alia, an employer and a union
to “meet at reasonable times and confer in good faith with respect to wages, hours and other
terms and conditions of employment, or the negotiation of an agreement….” The foregoing
language does not expressly require parties to meet at reasonable places. It also does not define
what would be a “reasonable place.” For this reason, the Board does not take a “per se” approach
to whether a party is acting in bad faith with respect to a proposed location for negotiations.
Somerville Mills, 308 NLRB 425, 426 (1992). The Board considers all of the circumstances,
including the “failure to justify the reason for a proposed location, the intransigence of a party’s
insistence on a location, and whether a party is acting in bad faith by making proposals for the
purpose of delaying or avoiding negotiations.” Id. at 426.

In this case, MCT/MCM has construed the Act in such a manner that the only purpose is
to delay or avoid negotiations. P. Lorillard Co., 16 NLRB 684, 696 (1939), enforced as
modified, 117 F.2d 921 (6th Cir. 1941), reversed and remanded with instructions to enforce in
full, 314 U.S. 512 (1942). In P. Lorillard Co., the employer insisted that bargaining take place in
New York City for a bargaining unit located in Middletown, Ohio. The Board found that the
employer’s proposal “imposes grave burdens upon the Union that, in practical effect, permits the
respondent to avoid bargaining.” P. Lorillard Co., 16 NLRB at 696. In other words, the
employer placed the opportunity to bargain out of the union’s reach.

In this case, MCT/MCM has similarly acted in bad faith by arguing that it is only
required to engage in face-to-face bargaining. Such an argument, made with the knowledge that
such meetings are not permitted under the Governor’s executive orders, can only be for the
purpose of delaying or avoiding negotiations. It has enabled MCT/MCM to pay lip service to,
while outright ignoring, Local 31’s repeated requests to bargain using video conference,
telephone conference and/or e-mail. The result is the delay in and/or avoidance of bargaining for
weeks, if not months. For these reasons, MCT/MCM is violating Section 8(a)(5) of the Act by
failing to meet at reasonable times to bargain in good faith as required by Section 8(d). Burns
Sec. Svcs., 300 NLRB 1143, 1144 (1990); P. Lorillard Co., 16 NLRB at 696.

While MCM/MCT may have indicated a “willingness” to engage in bargaining through

Zoom or other alternative methods, those statements offer no defense in this case. Westinghouse
Pacific Brake Co., 89 NLRB 145, 174-75 (1950) (noting that unlawfulness of objective cannot
be “obscured” by employer’s offer to meet at “other reasonable places,” employer never offered
any and thus still violated the Act by proffering only a location that was thousands of miles from
the facility). Although MCM/MCT has a counterproposal at the ready (Ex. 4 at 5), it has failed to
provide that proposal to the Union. When the Union pressed for the Employer’s proposal,
MCM/MCT insisted that bargaining can only take place with face-to-face meetings. MCT/MCM
pressed this argument with the clear objective to avoid or delay bargaining, especially over
economic proposals. As such, the Employer is presently violating the Act.
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 11

B. MCT/MCM is Violating Sections 8(a)(5) by Refusing to Bargain over

Economic Proposals

MCT/MCM is compounding those violations by not only delaying the actual bargaining,
but refusing to bargain over economic issues. MCT/MCM’s attorney clearly and unambiguously
stated that his “client cannot commit to any of the remaining financial proposals because we
simply don’t have any idea how the budget process will be impacted (the county, like all others
is losing money so there’s a possibility MCM’s preliminary budget, approved by the County
Executive, will be impacted).” (Ex. 4 at 9.) “Given the above uncertainty,” the attorney
continues, “until such time as the County council approves the budget for 2021 (or my client is
made aware of the preliminary budget put forward by the County Executive will remain
unaltered as it relates to MCM), my client will have to postpone bargaining over the remaining
financial proposals (wages).” (Id.) The suspension of bargaining over wages is another violation
of MCT/MCM’s obligation to bargain in good faith.

The Board has recognized that, “[n]owhere in the statutory terms [of Section 8(d)] is any
authority granted to us to excuse the commission of the proscribed action because a showing
either the action was compelled by economic need or that it may have served what may appear to
us to be a desirable economic objective.” Oak Cliff-Golman Baking Co., 207 NLRB 1063, 1064
(1973). While MCT/MCM may view it to be more desirable (and advantageous) for negotiations
to await the outcome of the county’s budgeting process, its refusal to bargain now over economic
conditions violates Section 8(a)(5).

This refusal to bargain is even more inexcusable given MCT/MCM has input into its
budget and the county’s budgetary process. An example is illustrated Agenda Item #15 of the
Council’s staff, which relates to the budget for the Cable Television and Communications Plan.
That document is attached for your reference. (A copy of this document is provided as Exhibit
6.) As on pages 13 to 14 of Ex. 6, the Council’s staff asked for a copy of MCM’s budget for
2018 and 2019. MCM responded with information and supplemental information. As to the
supplemental information, the following was noted by the county council’s staff:

The following supplemental information was provided by MCM.

Here are the reasons MCM anticipates increased labor and benefit costs:

• NABET negotiations are scheduled to begin in May/June 2018

• MCM Staff has not received a pay increase in 3 years since the last
contract negotiations. If an increase in pay occurs in this year’s
negotiation, that would also have an impact on benefits. The labor
increases we asked for is $50,282.00. The risks we stated in the FFI
are:
o Litigation risk for violation of labor agreement requirements.
Failure to maintain current cable television support personnel
will result in fewer hours of community media services, fewer
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 12

video and web stories about County programs and reduced

training and facilities for public use.
• The benefit increase is $31,887.00. This was calculated as an average
increase in benefits since 2012. (7.61% as stated in the FFI.) MCM
does not set the costs or pricing of benefits as they are a
“Participating Agency” of the County.

We also need to increase staff for the Silver Spring location, in conjunction with a
re-org, as we move into FY 19. MCM is dedicated to evolving with the media
access needs of our community, especially your youth.

As the foregoing illustrates, MCT/MCM has input into the budgeting process, at the very least
proposing increases in funding for labor costs and answering questions from Council staff. By
trying to postpone negotiations until after the budget process is completed, MCT/MCM is
attempting to turn the economic negotiations into a fait accompli. The Employer will take
whatever it has worked out with the County and present that as all it can do during the
negotiations. Under the circumstances, this is not a situation beyond the control of MCT/MCM.
Rather, the Employer has sufficient control and is now seeking to manipulate situation to its
advantage and to the detriment of the collective bargaining process. MCT/MCM is using its own
view of the situation to evade its responsibilities under the Act, and, in doing so, the Employer is
violating Section 8(a)(5) by refusing to bargain. Wackenhut Corp., 345 NLRB 850, 853 (2005)
(rejecting employer’s interpretation of contract bid documents, which was used to justify its
refusal to bargain).

IV. CONCLUSION

Accordingly, for the foregoing reasons, Local 31 respectfully requests that the Regional
Director issue a complaint on all of the allegations contained in the unfair labor practice charge.
The Union stands ready to provide additional information in support of the charge.

If you have any questions, please feel free to contact the undersigned. Thank you for your
time and attention to this important matter.

Sincerely,

Keith R. Bolek
Counsel to Local 31

Enclosures
Sumintra J. Aumiller
National Labor Relations Board, Region 5
April 24, 2020
Page 13

cc: Robert Williams (w/encl.)

Barbara Krieger (w/encl.)