F. M. Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1974

211 N.L.R.B. 560 (N.L.R.B. 1974)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. M. Broadcasting Corp. and Radio and Television
Broadcast Engineers Union , Local 1212, Interna-
tional ' Brotherhood,,of Electrical Workers,AFL-CPO.
Case 29-CA-3497
June 13, 1974
DECISION AND ORDER.
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 5, 1974, Administrative Law Judge
Fannie M. Boyls issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief to General Counsel's
exceptions and a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, F. M. Broadcasting
Corp., Hempstead, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Administrative Law Judge: This case,
initiated by a charge filed on August 1, 1973, and a
complaint issued on October 17, 1973, was heard before
me in Brooklyn, New York, on January 7 and 8, 1974. The
issue presented by the pleadings and the evidence is
whether Respondent, in violation of Section 8(a)(1) of the
Act, unlawfully interfered with, restrained, and coerced
employees in the exercise of their Section 7 rights by urging
and encouraging them to decertify their collective-bargain-
ing representative and promising them economic benefits
to induce them to sign a decertification petition. Subse-
quent to the hearing, the General Counsel and the
Respondent filed briefs.
Upon the entire record in this case, upon my observation
of the demeanor of the witnesses, and after a careful
consideration of the briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent is a New York corporation, having its
principal office and place of business in Hempstead, New
York, where it is engaged in the operation of an AM and
FM radio broadcasting station. During the fiscal year
preceding the issuance of the complaint, which is a
representative period, Respondent, in the course and
conduct of its business operations, derived gross revenues
therefrom in excess of $500,000, more than $50,000 of
which was from the sale of advertising of nationally known
products and services performed for firms located outside
the State of New York.
On the basis of these undisputed facts, I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Radio and Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the IBEW or the Union , is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Prior Unfair Labor Practice Case and
Other Related Background Facts
During the periods pertinent herein, Respondent has had
collective-bargaining agreements with two labor organiza-
tions at its Hempstead, New York, radio broadcasting
station. One of these was with AFTRA which represented
Respondent's announcers, newsmen, and disc jockies
(herein collectively referred to as the announcers) and the
other was with IBEW, which represented Respondent's
engineers. The AFTRA contract was due to expire on June
19, 1973, and the IBEW contract was due to expire on
October 14, 1973.
In a prior unfair labor practice case against Respondent
(Case 29-CA-3330), Administrative Law Judge Dyer
issued his Decision on September 5, 1973, finding, inter
alia, that Respondent had violated Section 8(a)(1) of the
Act by urging and encouraging employees to decertify
AFTRA as their bargaining representative by holding out
vague promises of wage increases, retirement and profit-
sharing plans, and other benefits and improvements in
their working conditions; by threatening employees with
discharge or other reprisals if they remained members of
the Union; and by threatening reprisals if employees
testified against Respondent in an unfair labor practice
proceeding. Respondent filed no exceptions to his Decision
and it was adopted by the Board.
Common to the prior case and the instant case is the
General Counsel's contention that Respondent was initiat-
ing steps to have both AFTRA and IBEW decertified at
appropriate times prior to the expiration of its contracts
with those unions, in order to enable Respondent to curtail
its engineering force and operate more profitably for itself,
as well as for the remaining announcers and engineers. As
Respondent's president and general manager, Paul Godof-
211 NLRB No. 79
F. M. BROADCASTING CORP. 561
sky, in late 1972 and early 1973 explained to announcers
Fox and Robinson, Respondent was required under
contracts with both AFTRA and IBEW to operate a "split-
board" and could not use a "combo" operation for more
than 5 hours a day. Thus, although a competent announcer
was qualified to operate the control board while perform-
ing his other duties, Respondent was required under the
union contracts to employ engineers to operate the control
board for a substantial part of the time. If Respondent
could combine the duties of the announcer and engineer at
the control board and terminate some of its engineers, it
could split the wage savings between itself and the
announcers or engineers who remained. To illustrate the
point, Godofsky told Robinson that if an announcer and
engineer were each making $4 an hour under the split-
board system Respondent would be paying $8 an hour to
produce a program which it could produce for $4 an hour
under a combo system, and that if the engineer were
eliminated there would be $2 an hour extra for the
announcer and $2 an hour extra profit for Respondent.
The only way Respondent could operate under a combo
system, Godofsky told Robinson, was first to rid itself of
AFTRA and IBEW.1
The charge in the prior case was filed by AFTRA, whose
contract with Respondent expired several months prior to
that of IBEW. That case was concerned in large part with
alleged attempts by Respondent to get AFTRA decertified.
Though, as already shown, there is evidence in that case
that Godofsky had alluded to the fact that it would be
necessary to have IBEW, as well as AFTRA, decertified in
order to institute the combo operation and grant substan-
tial wage increases , the General Counsel in the prior case
appears to have concentrated on evidence tending to
support AFTRA's charge. The IBEW had not yet filed its
charge at the time of the hearing in the prior case.
In this case, the General Counsel has concentrated on
evidence tending to support the charge filed by IBEW and
by way of background has adduced further evidence of
statements by Godofsky occurring more than 6 months
prior to the filing of the charge which, the General Counsel
claims , tends to show Godofsky's efforts to have IBEW
decertified.
There is testimony by Robinson, for instance, that in his
early January meeting with Godofsky, when the latter
sought to have him take steps to decertify AFTRA,
Godofsky told Robinson that he felt the IBEW had little
support among the engineers and that he was in the process
of seeing that some sort of decertification petition or drive
was under way for that Union, mentioning his prospective
son-in-law, Leonard Sebel, as "the person who would be
most liable to feel out the engineers" on their sympathies
toward the IBEW. I do not find, as Respondent's counsel
asserted at the hearing, any inconsistency in Robinson's
testimony at the prior hearing and at the instant hearing
I The above findings are based upon the testimony of Fox and Robinson
in the prior case , which Administrative Law Judge Dyer credited , and upon
Robinson 's similar testimony , which I credit, in the instant case.
2 Godofsky, while categorically denying that he made any statements
attributed to him by Robinson regarding the decertification of IBEW or
about Sebel , did not purport to relate what he did say in this January
interview . Robinson testified under subpena and did not appear to me to be
unfriendly toward Respondent or even fundamentally in disagreement with
about Godofsky's statements in this regard at the early
January conference. At the first hearing, Robinson testified
that: "Mr. Godofsky made it quite plain that to carry out
this idea [a combo operation] he felt he had to be rid of
AFTRA and IBEW" and "he mentioned that IBEW would
most likely have to go and that was being taken care of as
well." Respondent's role in an attempt to decertify IBEW
was not an issue in the prior case and Robinson was not
asked and did not volunteer information as to whether
Godofsky mentioned any particular person who might take
the leading role in an attempt to decertify IBEW.2 It is
noted that Godofsky is not alleged to have said that Sebel
would feel out the IBEW members or lead the decertifica-
tion drive but only that he was the person "most liable" to
feel out the engineers . Sebel, as he testified at the hearing,
and as he told fellow engineers , had reasons of his own to
want to decertify IBEW and it would not be unusual at a
small station like Respondent's for Godofsky to have
learned of Sebel's dissatisfaction. I do not regard Robin-
son's testimony as evidence that Respondent directed or
authorized Sebel to act as its agent in the decertification
drive.
There is further testimony by Robinson, not alleged in
the complaint as an unfair labor practice and apparently
introduced as background, about a conversation he had
with Godofsky on or about April 23, during which the two
discussed Robinson's need for a wage increase, the
possibility of AFTRA being decertified, the announcers
and engineers whom Godofsky thought had a lot of
potential and particularly wanted to keep in Respondent's
employ, and a rumor spread by engineer Xenakis to the
affect that Vice President Sternberg had told his former
employer of a plan to get IBEW decertified by hiring and
firing a new engineer every 90 days, the length of the
probationary period, in order to eliminate a "fifth vote."
Robinson testified that Godofsky was "taken aback" by
this Xenakis story and said he did not think anything like
that would happen and that he would check on the
accuracy of this story. According to Robinson, Godofsky
reported back to Robinson that he had checked with
Sternberg and that there was no basis for Xenakis' story.
Godofsky denied that he had any conversation with
Robinson such as that described by Robinson. Robinson,
in general, impressed me as a credible witness. However, I
need not and shall not resolve the credibility issue here
presented for I do not find the conversation to which
Robinson testified has any particular relevancy to the
issues in this case.
There is also background evidence that as early as
September 1972 vice president in charge of engineering,
Norman Sternberg, had in mind the possible decertifica-
tion of IBEW. When interviewing an applicant, Xenakis,
for an engineer's position and after informing Xenakis of
Respondent's union-shop contract with IBEW, he asked
Godofsky in the latter 's alleged views about decertifying the Unions.
Although Robinson had a tendency to testify about the substance of
conversations he had with Respondent's representatives and others, rather
than attempting to quote them verbatim, and he sometimes interspersed his
narrative about a conversation with background explanations , he impressed
me as sincerely attempting to give an accurate account . I credit his
testimony regarding the January meeting with Godofsky.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Xenakis how he felt about unions. When Xenakis stated
that he really did not care for unions, Sternberg responded,
"that was good because it was a possibility that the union
would be decertified." Sternberg similarly interrogated and
informed another applicant, Perez, in January 1973. Perez
stated that he had not worked with unions and knew
nothing about them but would join if he had to. Sternberg
then volunteered that he had hopes that when the IBEW's
contract expired in October 1973 the employees "would be
able and willing, among themselves," to decertify it .3
These background facts clearly show that Respondent,
prior to the events covered by the complaint in this case,
had made known to its employees its hope that both
AFTRA and IBEW would be decertified and had taken
coercive steps to accomplish its desires. They are relevant
to an understanding of the events which took place during
the period covered by the complaint but cannot in
themselves form the basis for an unfair labor practice
finding. Let us turn now to a consideration of the evidence
asserted by the General Counsel as supporting the
allegations of the complaint.
B. Coercive Interrogation Attributed to Vice
President Sternberg
The General Counsel contends that Vice President
Sternberg unlawfully interrogated employee Laurie Rich-
man about her union sympathies during her employment
interview on or about May 24, 1973. Richman testified that
Sternberg, after having her fill out an application and
asking some questions regarding the Federal Communica-
tions Commission, asked her what she thought of unions
and whether she liked them or not. She replied that if a
union was good she liked it, and if it was not she did not
like it. Sternberg told her that whether she thought unions
were good or bad, she would have to join the IBEW after
30 days because of a union-shop contract Respondent had
with that Union. Then, in showing her the control room
and board, he remarked that the disc jockies might be
"comboing" in October.
Sternberg's account of his interview with Richman, I
believe, is not basically inconsistent with her account. He
testified that he made substantially the same statements
about union membership to Richman during his pretrial
interview with her that he makes to other applicants. He
tells them: "I don't know what your feelings are about
unions or perhaps, how do you feel about unions because
you're going to have to join one if you work here. This
station is bound by contract with Local 1212 and a
stipulation of the contract is at 30 days from the start of
employment the employee must become a mP^,ber of
Local 1212." Likewise, Sternberg's testimony on this
subject is not basically inconsistent with the testimony of
employees Perez and Xenakis, already referred to, that
during their employment interviews and in connection with
informing them of the union-shop contract Sternberg
asked them how they felt about unions. I find that
Sternberg did question Richman, during her employment
interview, about her union sympathies as she testified.
Sternberg testified that any question he may have asked
Richman and other applicants for employment about how
they felt about unions was only his informal way of letting
them know that they would have to join the IBEW by
reason of the union-shop provision in the contract. I
cannot view Sternberg's inquiry, however, as merely a
rhetorical question to which no answer was required or
expected. Richman did answer the question in a noncom-
mittal way, as had Perez in his January 1973 interview, and
Xenakis had expressed dislike for unions . As the General
Counsel points out, it was not necessary for Sternberg to
inquire of the applicants as to their union sympathies in
order to inform them that, as employees, they would be
required to join the Union after 30 days of employment.
Richman was being interviewed and hired as a temporary
employee to work during the summer or vacation period
and she could well feel, as she apparently later did feel,
that her attitude about the Union might have something to
do with her opportunities for selection later as a permanent
employee. Although Sternberg did not at the time he hired
Richman expressly mention the decertification movement
then in progress, he did mention as he showed her around
the station that "disc jockies may be comboing in
October," a situation which, as already pointed out, would
not have been permissible under the union contracts. The
Board has long held that the interrogation by an employer
as to his employee's union sympathies, without having a
good reason which he imparts to the employees, and
without assurances against reprisal, will be considered
coercive and an unlawful interference with the employee's
organizational rights. I am constrained to find that, under
the circumstances of this case, Sternberg's interrogation of
Richman, during her employment interview, as to her
union sympathies was coercive and in violation of Section
8(a)(1) of the Act. Rochester Cadet Cleaners, Inc., 205
NLRB No. 121; Bendix-Westinghouse Automotive Air
Brake Co., 161 NLRB 789, 791-792; Tesoro Petroleum
Corporation, 174 NLRB 1285, 1286-87; Consolidated
Rendering Company, 161 NLRB 1, 16, enfd. sub nom.
N.L.R.B. v. Burlington Rendering Co., 386 F.2d 699, 703
(C.A. 2, 1967).
C. Alleged Coercive Statements Made by Sternberg
to Employee Dillon
The General Counsel also contends that Respondent,
through Vice President Sternberg, violated Section 8(a)(1)
of the Act in connection with coercive statements made to
an engineer, William R. Dillon. According to Dillon,
Sternberg approached him at the station on or about April
1, 1973, and told Dillon that he, Sternberg, was going to
remove his eyeglasses and look Dillon straight in the eyes.
Having done so, he told Dillon that he felt Dillon "was a
big boy now," that Sternberg thought very highly of Dillon
and believed he "was big enough not to need a union to
represent" him and "could stand on his own two feet."
Sternberg added "that in the event there was no longer any
union representative," he was planning to retain Sebel,
Silvera, and Dillon to perform the engineering duties along
3 The findings in this paragraph are based upon the credited testimony credible than Sternberg's denial that he mentioned decertification during his
of Xenakis and Perez, both of whose testimony impressed me as more interviews
F. M. BROADCASTING CORP.
with himself. Sternberg also mentioned that the engineer-
ing department operated on a fixed budget and that if he
could reduce the engineering staff , there would be more
money to go around for the remaining engineers.
Sternberg conceded that he told Dillon that he was a big
boy now and did not need a union to protect him, but
explained that he had merely wanted to express satisfac-
tion with Dillon's work and reassure him that as long as
Dillon satisfied Sternberg his job was secure. Sternberg
further testified that he believed he said something to the
effect that Dillon could see that a certain automated
system under which Respondent had been operating for
about a year was not going to deprive anyone of a job, but
he later conceded that his remarks to Dillon had "not
really" had anything to do with his desire to assure Dillon
that he was not going to lose his job on account of the
automated system. Sternberg explained that he was merely
trying to give Dillon a pat on the back because Respondent
was not in a position to give anyone a raise-which would
be the normal way of expressing appreciation for a good
job. Sternberg's explanation does not jibe with his admitted
remarks about Dillon not needing a union to represent him
and does not have the ring of truth. Dillon impressed me as
thoughtfully and conscientiously attempting to recall the
remarks made to him by Sternberg and I believe his
account is accurate.
I am satisfied that Sternberg's statements were intended
to let Dillon know that Respondent opposed the continued
representation of its engineers by the IBEW and hoped
that Dillon would join in the movement then under way to
rid the engineers of union representation by decertifying
that Union. In view of President Godofsky's proposal,
previously mentioned herein, to employees Fox and
Robinson that if AFTRA and the IBEW could be
decertified Respondent could institute a "combo" system
at its control boards, then limited by union contracts,
which would enable Respondent to terminate some of its
engineers and divide the savings in wages between itself,
the remaining engineers and the announcers , Sternberg, I
am satisfied, felt it necessary to reassure Dillon that he
wound not be one of those engineers to be terminated
under the combo plan. This assurance of job security
would not likely be sufficient to induce Dillon to go along
with the decertification movement, as Sternberg must have
realized, because the IBEW contract required that Respon-
dent employ as many as four permanent full-time
engineers and Dillon's seniority would be sufficient
guarantee to him that he would be one of those retained
under the union contract. It is manifest that for this reason
Sternberg pointed out to Dillon, as a further inducement
for him to help decertify IBEW, that if Respondent could
reduce the engineering staff, there would be more money
to go around for the remaining engineers . It is accordingly
found that Respondent, through its vice president and
agent, Sternberg, offered Dillon job security and increased
wages to induce him to abandon support of IBEW and join
4 1 do not regard this statement as sufficient to constitute Sebel
Respondent's agent in general or with respect to the decertification
movement. As Sternberg explained, when he, the chief engineer, is not
present , he tries to see that one of his first-class engineers, such as Silvera or
563
in the decertification movement, in violation of Section
8(a)(1) of the Act.
D. Alleged Responsibility of Respondent for
Decertification Efforts of Leonard Sebel
The complaint alleges that Respondent, acting through
Leonard Sebel as its agent , urged and encouraged its
employees to decertify the IBEW as their bargaining
representative, offered employees time off from their work
in order to file a decertification petition, and offered its
employees job security, a hospitalization plan, and other
benefits and improvements in their working conditions and
terms of employment in order to induce them to refrain
from giving any assistance or support to the Union and to
induce them to abandon their membership and activities
on its behalf.
Sebel was hired as an engineer in October 1971. Except
for Bailey, a permanent part-time engineer, he was the
most senior among Respondent's approximately nine
engineers . Another engineer, Silvera, though having less
tenure with Respondent than Sebel, had more technical
education and knowledge than Sebel and his advice was
sought by other less experienced engineers , including
Sebel, at times when Chief Engineer and Vice President
Sternberg was not present. Both Sebel and Silvera held
first-class FCC licenses. Although no formalized chain of
command was announced prior to the filing of the
decertification petition on July 26, when a notice was
posted to the effect that Silvera would be in charge in
Sternberg's absence, Sternberg had told one third-class
engineer, Perez, prior to that time that Sebel was "third in
command" and that if neither Sternberg or Silvera were at
the station Perez should consult Sebel about engineering
problems .4 Sebel was the engineer designated to train new
engineers during the first week of their employment, at the
end of which time he would report to Sternberg on their
progress. The General Counsel does not contend that this
or any other duty assigned to Sebel made him a supervisor
within the meaning of the Act. Indeed, it is conceded that
Sebel is an employee, not a supervisor, and that he is in the
appropriate bargaining unit.
Sebel became engaged to the daughter of Paul Godofsky,
Respondent's president and general manager, in Novem-
ber 1972 and they were married in June 1973. Although
Godofsky's family owned all the stock in Respondent
corporation, his daughter was not one of the stockholders
and held no position with Respondent. Sebel likewise owns
no stock in Respondent and holds no official position. He
is not even the highest paid engineer and has received no
increase in pay since he became engaged to Godofsky's
daughter. When the engagement was announced, Stern-
berg called Sebel into a closed room at the station and told
him that his marriage to the president's daughter would
make no difference in his job, that he would not get any
more consideration than he had been getting, and that, if
anything, Sternberg would expect more of him, that
Sternberg expected him to take an interest in the radio
Sebel , are on duty when a less experienced third -class operator, such as
Perez, is on duty so that if any technical problem should arise the third-class
or inexperienced operator will have someone to assist him or tell him how to
solve an engineering problem.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
station without any special consideration and to work
harder. Sternberg later informed Godofsky of what he had
told Sebel and Godofsky approved.
The General Counsel's argument that Sebel was acting as
an agent of Respondent in taking the leading role in
attempting to have the IBEW decertified rests in part upon
his contention that Godofsky in January indicated that
Sebel would be acting for Respondent when Godofsky told
Robinson that Sebel was the person "most liable" to feel
out the engineers about the decertification of IBEW. I have
rejected the General Counsel's interpretation of this
remark by Godofsky for I believe it was well known that
Sebel, for reasons of his own, did not like the IBEW, or
perhaps unions in general, and was, indeed, the most likely
person to lead the decertification movement. Sebel had
been annoyed with the IBEW for having forbidden him
and other union members to take a lie detector test about a
year previously and, as he told Robinson, he could not see
what the IBEW had done for the engineers. Moreover,
during his previous employment at a telephone company,
he had crossed the picket lines to go to work during a
strike.
In pressing his agency theory, the General Counsel also
relies upon his contention that in view of Sebel's relation-
ship to the Godofsky family, first as fiancee, then husband
of President Godofsky's daughter, certain statements made
by Sebel to announcer Robinson, and engineers Richman,
Perez , and Dillon were reasonably construed by them as
demonstrating that Sebel was acting as an agent of
management in attempting to have IBEW decertified. Let
us now consider this evidence.
While renting a house together, Sebel and Robinson had
a number of discussions between January and June 1973
about the problem of decertifying their respective bargain-
ing representatives. Robinson testified, among other things,
that in these conversations Sebel had mentioned that he
was in "a rough situation." Robinson agreed and stated
that he was too-that he was "in the middle of a thing,
being pulled on one end by a man that [he] enjoyed
working for, and on the other end by a union." Sebel
replied that he "was in a tougher spot, in that he was
marrying into" Godofsky's family "and had very little
choice but to do what Godofsky wished." Sebel also stated
that he agreed with Godofsky that there seemed to be little
support for the IBEW and that it was hard to figure what
either AFTRA or IBEW were doing for the employees.
Sebel, however, did not say that Godofsky had told him
these things and it may well be that Sebel made these
statements based on what Robinson had related to him.
Sebel testified that, although he could not remember all
the conversations he had with Robinson about decertifica-
tion, he did not tell Robinson that he had been authorized
by Godofsky to decertify the IBEW. He further testified
that neither Godofsky or Sternberg had suggested or asked
him to take any part in the decertification movement. I do
not regard Robinson's and Sebel's testimony as necessarily
in conflict on this issue. Robinson did not expressly say
that Sebel told him that Godofsky asked him to do
anything about decertification. Both Robinson and Sebel
knew from what Godofsky had told Robinson and other
employees that Godofsky preferred to operate without
AFTRA and IBEW and hoped that those Unions would be
decertified . The statement attributed to Sebel by Robinson,
that Sebel felt that he was in an even tougher spot than
Robinson because he , Sebel, was marrying into the
Godofsky family and had little choice but to do what
Godofsky wished, may well have been the mere expression
of a feeling of moral obligation to do what he felt would
please his future father-in-law . I do not, in the circum-
stances , interpret Robinson's testimony as attributing to
Sebel a statement that Godofsky had requested Sebel to do
anything. Nothing in Robinson 's testimony regarding his
discussions with Sebel persuades me that Sebel was
purporting to act as Respondent 's agent in pursuing his
decertification efforts.
Laurie Richman , who was hired on May 23, 1973, as a
temporary third-class broadcast engineer and was termi-
nated on August 31 , 1973, testified that Sebel on one
occasion had replaced her at the control board with
another engineer while Sebel talked to her about the steps
he had taken to have IBEW decertified. In this connection,
he told her that management was against the Union and
that, for personal reasons , he was too, expressing his
displeasure over the Union 's having forbidden its members
to take he detector tests in connection with the Respon-
dent's attempt about a year prior thereto to investigate the
disappearance of some equipment from this station. He
stated that if the engineers got rid of the Union "maybe"
management would give them some insurance . In making
these statements, Sebel let her know that he was speaking
for himself and not for management . When Richman
expressed concern about job security if a combo operation
was instituted, Sebel told her not to worry, that there
would always be some production work, and that she could
work the control board during "crush" hours . Thereafter,
in another conversation with Sebel , she told him about a
conversation she had had with engineer Dillon in which the
latter had said that Vice President Sternberg told him that
if IBEW was ousted only three engineers, Dillon , Sebel,
and Silvera, would be retained. Sebel replied that he did
not know what Sternberg's plans for the future were.
Richman then told Sebel that she felt "confused" and
"wishy-washy" about the decertification question.
On August 29, in discussing with Sternberg the reasons
for her termination which was to be effective as of August
31, Richman informed Sternberg that she did not believe
the assigned reason (that she did not have a first-class
license) was the real reason and that she believed she was
in fact being terminated because she felt "wishy-washy
about decertification." On the following day, she talked to
Sebel about her termination and he offered to talk to
Sternberg and told her that she could talk to Godofsky
about it. He then asked her why she had to mention the
Union to Sternberg. (Richman had not told Sebel about
mentioning the Union to Sternberg .) Sebel conceded that
after Richman had been notified of her termination and
came to him weeping, he might have told her that
Sternberg liked her and that he, Sebel , would speak to
Sternberg . Sebel testified that he made this statement only
to calm her down and did not in fact speak to Sternberg.
He did not remember asking Richman why she had to
mention the Union to Sternberg, but I am convinced that
F. M. BROADCASTING CORP. 565
he did ask her this. I do not, however, regard this question
as particularly significiant since the engineers at this small
station appeared to communicate freely with each other
and it would not, I believe, be unusual for occurrences
such as what went on during Richman's interview with
Sternberg to become common knowledge among the
engineering staff.
Clayton Perez, another temporary third-class engineer,
credibly testified that on July 26, the day Sebel filed the
petition seeking decertification of IBEW , Sebel took him
from the control board where he was then working and had
Richman fill in for him . Sebel had never before taken him
off the control board except for relief purposes , luncheon
breaks, or for some reason having to do with the operation
of the station . Sebel told Perez that he , Sebel, and
engineers Silvera and Bailey were going to the National
Labor Relations Board offices to file the petition and asked
if Perez would like to go too . Sebel stated that management
could give Perez time off to make the trip. He also stated
that "once the Union was out, that management could do
more for us without a union, than with a union, and they
were not thinking of discharging anyone that was then
working." Perez testified that he understood that Sebel was
speaking for management because:
By the mere fact that he said the station had not
planned on discharging anyone, whether or not we
decertified or not. This to. my knowledge could not be
made unless he has already spoken with someone of
management, that could give him this reassurance.
The General Counsel also contends that Sebel was acting
as an agent of management when , in May and again in
July 1973, he told engineer Dillon that without the IBEW
the engineers could probably get additional health benefits,
increased salaries , and other benefits . These statements by
Sebel, however, appear to be merely expressions of his own
views and were not attributed by him to management.
Sternberg and Godofsky each testified that he had never
requested Sebel to do anything about the decertification
petition. Sternberg testified that, when he heard rumors
that Sebel was circulating a decertification petition for the
IBEW, he told Sebel that he did not want to know
anything about it. Godofsky testified that he was not aware
of Sebel's efforts to have IBEW decertified before the
petition was actually filed. Sebel confirmed the testimony
of both Sternberg and Godofsky in these respects.
According to Sebel, he called the Labor Board's offices to
ascertain how to go about getting the IBEW decertified
and followed the instructions given him by a Board agent.
He attempted to make it clear to the engineers with whom
he talked that decertification was his own idea and told
them what he thought would happen if IBEW were
decertified.
I have no doubt that Sebel, because of his marriage to
the president's daughter, was regarded by some of the
employees as having a special status and that they
suspected or believed that he was acting under instructions
from management in seeking to have the IBEW decerti-
fied. Thus, Richman, despite Sebel's assurance to her that
he was speaking for himself and not for management in
urging her to join the decertification movement , neverthe-
less believed he was acting pursuant to some special
authority in having her relieved at the control board so that
he could talk to her about decertification and in volunteer-
ing to talk to Sternberg about her discharge. Perez, too,
thought it was significant that Sebel had taken him from
the control board and suggested that he could get time off
to accompany Sebel and Silvera to the Board's offices to
file the decertification petition and that Sebel had assured
him that Respondent was not planning to discharge
anyone then working as a result of decertification. The fact
that management representatives themselves had expressed
a desire to rid themselves of IBEW and had pointed out
benefits that could inure to the employees if Respondent
was not obliged to deal with the Union lent plausibility to
the employees belief that the president 's son-in-law was
acting as an agent of management.
Nevertheless, I do not believe that a preponderance of
the evidence warrants a conclusion that Sebel was acting as
Respondent's agent in leading the decertification move-
ment. As Sebel credibly testified, there was nothing
unusual about his asking one engineer to relieve another
engineer at the control board or about himself being asked
by another engineer to relieve someone . He and Silvera
who took the decertification petition to the Board offices
did so on their own time and he did not tell anyone else
whom he invited to go that they would be paid for the time
taken from their work . Sebel may have felt some moral
compulsion by reason of the family relationship to get the
decertification movement under way. He had good reasons
of his own, however-which he publicized among his
fellow employees-for not wanting the IBEW to represent
him and he expressed his own views as to the benefits the
employees could have without union representation. Even
assuming that some of the statements he made could
reasonably have been interpreted by the employees as
indications that he was speaking for management, it is
axiomatic that an agency relationship cannot be estab-
lished merely on the basis of a purported agent's
extrajudicial statement as to the existence of his authority.
Restatement of the Law, Agency, 2d ed., sec. 285.
The statute excludes an individual employed by his
parent or spouse, but not by his father-in-law, from the
definition of employee. Sebel was an employee within the
meaning of Section 2(3) of the Act. Although it might have
been the better part of wisdom, in order to avoid suspicion
by employees of management participation, for him not to
have taken the leading role in the decertification drive,
Sebel had a legal right to do so.
I am not persuaded that the General Counsel has
established by a preponderance of the evidence that Sebel
was acting as an agent of Respondent in attempting to get
the IBEW decertified and in making statements to
employees about benefits which he believed would inure to
them as a result of decertification-statements which might
be viewed as unlawfully coercive if Sebel had been
authorized by management to make them. In any event,
even if Sebel 's conduct, considered against the background
of Respondent's attempts to initiate a decertification
movement and Sternberg 's coercive conduct , should be
considered as warranting an inference that Sebel was
acting as Respondent 's agent, no substantial purpose
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be served in holding Respondent responsible for
Sebel 's conduct , for the order herein necessary to remedy
Sternberg's coercive statement to Dillon is , I believe, broad
enough to cover any action by Respondent and its agents
designed to coerce employees into abandoning the IBEW
or joining in the decertification movement.
CONCLUSIONS OF LAW
1. By coercively interrogating an employee about her
union sympathies and by offering job security and wage
increases to an employee to induce him to abandon union
representation and join in a decertification movement,
Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed under
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
3. A preponderance of the evidence does not support
the allegations of the complaint that Respondent engaged
in other unfair labor practices not specifically found
herein.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(axl) of the
Act, my recommended Order will require that it cease and
desist therefrom and take certain affirmative action of the
kind normally required to remedy the unfair labor
practices found.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act , there is hereby issued the following recom-
mended:
ORDERS
F. M. Broadcasting Corp., its officers , agents , succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees or applicants for
employment in regard to their union sympathies.
(b) Offering job security, wage increases, or other
benefits to employees to induce them to abandon union
representation or join in a movement to decertify Radio
and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-
CIO, as their bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Hempstead , New York, radio station
copies of the attached notice marked "Appendix."6 Copies
of the notice, on forms provided by the Regional Director
for Region 29, after being duly signed by an authorized
representative of Respondent , shall be posted by Respon-
dent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places , including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not herein found.
S In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
or applicants for employment in regard to their union
sympathies.
WE WILL NOT offer job security , wage increases, or
other benefits to our employees to induce them to
abandon union representation or join in a movement to
decertify Radio and Television Broadcast Engineers
Union , Local 1212, International Brotherhood of
Electrical Workers, AFL-CIO , as their bargaining
representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed under Section 7 of the
National Labor Relations Act.
F. M. BROADCASTING
CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , 16 Court Street, Fourth
Floor, Brooklyn, New York 11241, Telephone 212-
596-3790.