American Federation of Television & Radio, Etc.

National Labor Relations Board - Board Decisions

Nov 1, 1965

155 N.L.R.B. 479 (N.L.R.B. 1965)

AMERICAN FEDERATION OF TELEVISION & RADIO, ETC. 479
American Federation of Television and Radio Artists (AFTRA),
Its Los Angeles Local , and Its Agent , Claude L. McCue [Coast
Radio Broadcasting Corporation , Radio Station KPOL] and
Munger, Tolles, Hills & Olson . Case No. 31-CB-8 (formerly
21-CB-2365). November 1, 1965
DECISION AND ORDER
On August 19, 1965, Trial Examiner Wallace E. Royster issued his
decision in the above-entitled proceeding, finding that the Respondents
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
attached Trial Examiner's Decision. Thereafter, the General Counsel
and the Respondent Unions filed exceptions to the Trial Examiner's
Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Exam-
iner's Decision, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modification.
The Trial Examiner found that Respondent McCue sent each of the
employees in the unit here involved the following telegram :
WE WANT EVERY MAN AT KPOL TO KNOW THAT
KPOL MANAGEMENT IS COMMITTING UNFAIR LA-
BOR PRACTICES. IF ANY ANNOUNCER OR NEWSMAN
THINKS HE CAN IMPROVE HIS POSITION WITHOUT
A UNION, I SUGGEST HE TALK TO ANY KFWB MAN
WHO MADE THE SAME MISTAKE. ANYONE WHO
RENOUNCES AFTRA WILL GIVE UP HIS RIGHT
TO SUCH REPRESENTATION FOREVER. AS YOUR
UNION REPRESENTATIVE, I AM ASKING YOU TO
PHONE ME TOMORROW, WEDNESDAY, HO 4-5123.
The Trial Examiner found that this telegram threatened to discon-
tinue representation of the unit, but that such threat did not constitute
a violation of Section 8(b) (1) (A) of the Act as alleged in the com-
plaint. The General Counsel urges that the "clear language" of the
telegram can mean only that Respondent AFTRA would withhold
representation from any employee in the unit who engaged in activity
protected under Section 7 of the Act. We find, however, that the word-
155 NLRB No. 51.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of the telegram is ambiguous, that it does not on its face contain
any unlawful threat, and that the General Counsel failed to present
evidence as to context which would establish the alleged unlawful
threat. Accordingly, we adopt the Trial Examiner's ultimate conclu-
sion that no violation of the Act has been established. We therefore
find it unnecessary to resolve the issue as to the joint responsibility of
the Respondent AFTRA and the Local for this conduct.
[The Board adopted the Trial Examiner's Recommended Order dis-
missing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried b2fole Trial Examiner Wallace E. Royster in Los Angeles,
California, on July 13, 1965. At issue is whether American Federation of Television
and Radio Artists, herein AFTRA, its Los Angeles Local, herein the Local, and
Claude L. McCue, alleged to be an agent of AFTRA, restrained and coerced employ-
ees of KPOL in the exercise of rights guaranteed by Section 7 of the Act and thus
engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the
Act.'
Upon the entire record in the case and from my observation of the witness, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
KPOL is a California corporation engaged in Los Angeles, California, in radio
broadcasting. Its annual gross revenues are in excess of $500,000 and more than
$50,000 of this amount derives from advertising products which are marketed
nationally. It is conceded, and I find, that KPOL is an employer engaged in com-
meice and in an operation affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
AFTRA and the Local are labor organizations within the meaning of Section 2(5)
of the Act.
Claude L. McCue is the executive secretary of the Local and is western regional
director of AFTRA.
The Local is a chartered member of AFTRA.
III. THE ALLEGED UNFAIR LABOR PRACTICES
From February 1962 until April 1964, KPOL and AFTRA were parties to a
collective -bargaining agreement covering the wages , hours, and working conditions of
the staff announcers employed by KPOL. On February 4, 1964, Claude L. McCue
sent to each of the 12 men in the bargaining unit at KPOL a telegram reading:
WE WANT EVERY MAN AT KPOL TO KNOW THAT KPOL MANAGE-
MENT IS COMMITTING UNFAIR LABOR PRACTICES. IF ANY
ANNOUNCER OR NEWSMAN THINKS HE CAN IMPROVE HIS POSI-
TION WITHOUT A UNION, I SUGGEST HE TALK TO ANY KFWB MAN
WHO MADE THE SAME MISTAKE. ANYONE WHO RENOUNCES
AFTRA WILL GIVE UP HIS RIGHT TO SUCH REPRESENTATION FOR-
EVER. AS YOUR UNION REPRESENTATIVE, I AM ASKING YOU TO
PHONE ME TOMORROW, WEDNESDAY, HO 4-5123.
A labor organization which is the exclusive bargaining representative of employees
has a duty to treat those who comprise the bargaining unit impartially and without
discrimination in dealings with the employer .2 The record suggests that some of the
employees at KPOL were dissatisfied with the representation afforded them and
'Charge filed August 3, 1964; amended complaint Issued April 27, 1965.
2 Peerless Toot and Engineering Co., 111 NLRB 853, 858.
AMERICAN FEDERATION OF TELEVISION & RADIO, ETC. 481
were disposed to terminate the bargaining agency of AFTRA. There is no intimation
that these employees were thus engaged in any conduct violative of the contract
then in effect and they had a right, protected by Section 7 of the Act, to support
AFTRA 3 or to refrain from doing so. Had AFTRA failed, as long as it iemamed
the bargaining representative, thereafter to afford these dissidents representation
without discrimination, a violation of Section 8(b) (1) (A) would probably exist. I
think it to be no less a violation in the circumstances given for a bargaining representa-
tive to threaten such a reprisal.
But, back to the telegram. "Anyone who renounces AFTRA will give up his right
to such representation forever." That conveys a clear message; be true to us or we'll
never help you again. But, "Words are not pebbles in alien juxtaposition; they have
only a communal existence; and not only does the meaning of each interpenetrate the
other, but all take their purport from the setting in which they are used ..." 4 The
whole of the telegram must be considered as well as the situation to which it was
addressed. In respect to the latter, the evidence is meager and it already has been
described to the extent that the record permits. Faced with elements of discoid,
AFTRA told all the employees that if they did not support it they would be making
a mistake, that their situation would not be improved, and if they failed to heed the
advice offered them AFTRA would wash its hands of them forever. Although the
telegrams were sent to individuals and speak in the first person, everyone in the unit
received one. The threat to withhold representation "forever" was directed, I find,
to the group rather than to any lesser number. If the employees in the KPOL unit
withdrew authority from AFTRA to represent them it would have no status to do so.
A threat not to continue a status which by force of law is forbidden is indeed empty.
But assume that AFTRA remained the majority choice as, for all that the record
reveals, it may have. Assume further that because some of the employees in the
unit failed to support AFTRA, that organization decided that it wanted nothing more
to do with a group containing such ingrates and declined to provide the service of
representation. Would it have been obliged to do so? I think that the answer is "No."
The establishment of a bargaining agency arises only by consensual arrangement.
The Act guarantees the right of employees freely to choose who is to represent them
but there is nothing in the statute or in the decisions I have read to compel a labor
organization so chosen to accept the burden of representation. This would seem
obviously to be so where a union desires to respect the jurisdictional claims of other
unions or where it decides that it has not the staff or the funds to take on additional
duties. Of course a bargaining representative can be compelled to function. Section
8(b) (3) of the Act requires that and Section 8(d) provides guide lines for bargaining
conduct. I am aware, however, of no holding to the effect that a union, absent con-
tractual commitments , may not resign its office as bargaining representative. Cer-
tainly this action would have to be unconditional and without hint of temporizing for
if such a union were to take a dog-in-the-manger attitude Section 8(b)(3) would
have application.
As a union is free "to prescribe its own rules with respect to the acquisition or reten-
tion of membership" I think it to be as free to accept or reject designation as bargain-
ing representative. I find that AFTRA was under no compulsion imposed by the
Act to continue to represent the KPOL unit. It follows, and I find, that a threat to
discontinue such representation even if published in an attempt to bring apostates
back to the fold does not constitute a violation of Section 8 (b) (1) (A) of the Act.
Upon the basis of the entire record in the case I reach the following:
CONCLUSIONS OF LAW
1. KPOL is an employer engaged in commerce or in an activity affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. AFTRA and the Local are labor organizations within the meaning of Section
2(5) of the Act.
3. By threatening to discontinue representing employees in the KPOL unit neither
AFTRA nor the Local has restrained or coerced employees within the meaning of
Section 8 (b) (1) (A) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
S I find no merit In the claim that AFTRA was not a party to the contract with KPOL.
Clearly It was. I find that McCue in sending the telegram was acting as agent for AFTRA
and the Local . Within the limits of this case, I treat AFTRA and the Local as a single
entity.
'N.L.R.B. v. Federbush Company, Inc., 121 F. 2d 954 at 957 (C.A. 2).