Midland Broadcasters, Inc.

National Labor Relations Board - Board Decisions

May 22, 1969

176 N.L.R.B. 107 (N.L.R.B. 1969)

MIDLAND BROADCASTERS, INC.
Midland Broadcasters , Inc. and Topeka Association
of Radio Announcers. Cases 17-CA-3580 and
17-CA-3631
May 22, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JI•NKINS, AND ZAGORIA
On November 29, 1968, Trial Examiner Benjamin
K. Blackburn issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent and the Charging Party
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
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.
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
Examiner's Decision, the exceptions and the briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner, except as modified below.
1. Although not alleged in the complaint, the
Trial Examiner found that the Respondent violated
Section 8(a)(1) when supervisor Larry Jarvis asked
employee Ray Goldsich how he would vote. We do
not agree. The record reveals that prior to reading
his affidavit, Goldsich first testified that he was
asked the above question. However, his subsequent
testimony reveals that he volunteered the
information concerning his voting intentions without
being asked. Accordingly, we shall dismiss the Trial
Examiner's finding of interrogation as it is
unsupported by the evidence.
2. We also find, contrary to the Trial Examiner,
that the Respondent did not violate Section 8(a)(3)
and 8 (a)(5) by its failure to reassign its newscar to
newsdirector Graham following the strike. The Trial
In adopting the Trial Examiner 's conclusion that Christian is properly
excluded from the announcer 's unit , we do not rely upon Great Western
Sugar Company , 132 NLRB 936, which not only involved seasonal
supervisors , but was subsequently reviewed and amended at 137 NLRB
551. Instead , we rely upon Westinghouse Electric Corporation . 163 NLRB
No. 96 , wherein we held that only those engineers who spent 50 percent or
more of their working time performing nonsupervisory duties were
properly included in the unit.
107
Examiner found that prior to participating in the
strike, Graham had possession of the Respondent's
newscar, as he was responsible for 24 hour
on-the-spot news coverage, and that use of the
newscar saved Graham an estimated $10 per week
in gasoline and parking fees. On the morning of the
strike, Graham returned the car to the Respondent.
During the strike and for some time thereafter, the
newscar and the 24-hour news coverage associated
with it were assigned to other employees. The Trial
Examiner concluded that the Respondent had
discriminated against Graham by its failure to
return the car to him. We do not agree. Graham's
possession of the car was only incidental to the
corresponding duty that he be available 24 hours a
day. As both the car and the duty were assigned to
another, the Respondent did not violate the Act
when it failed to return the car to Graham.
Accordingly, we shall dismiss these allegations of
the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Midland
Broadcasters, Inc., Topeka, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified.'
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
'Add as the last Indented paragraph on page ( I) of the Appendix the
following:
WE WILL notify the above -described employee if presently serving in
the Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: Upon a
charge filed June 4 , 1968,' and amended July 15, in Case
17-CA-3580, by Topeka Association of Radio
Announcers , referred to herein as the Charging Party or
the Union, the General Counsel of the National Labor
Relations Board , on July 24 , acting through the Regional
Director of Region 17 (Kansas City, Missouri) issued a
complaint and notice of hearing in which it is alleged that
Midland Broadcasters, Inc., referred to herein as
Respondent , has violated Section 8 (a)(1), (3), and (5) of
the National Labor Relations Act in various ways. A
similar charge filed on July 31 in Case 17-CA-3631 led in
a similar manner to the issuance of a complaint on
August 20 in which it is alleged that Respondent has
'Dates are 1968 unless otherwise specified
176 NLRB No. 15
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(l) and (3) in various additional ways.
Respondent's answers deny any violations of the Act. The
two cases were consolidated for hearing by an order dated
August 20.
Pursuant to due notice, hearing was held before me in
Topeka, Kansas, on September 4, 5, 17, and 18. At
various times during the hearing, counsel for the Charging
Party and counsel for the General Counsel moved,
respectively, to amend the charge and complaint in Case
17-CA-3631 to name three additional persons as
discriminatees. I granted the motions. The issues litigated
were whether Respondent unlawfully refused to recognize
and bargain with the Charging Party on or about May 10,
whether Respondent thereafter violated Section 8(a)(5) of
the Act by unilaterally making certain changes in the
terms and conditions of its announcers ' employment,
whether Respondent discriminated against its announcers
in different ways, including discharging Gregory Aust on
July 15, James Connors on September 3, Christopher
Graham on September 5, and Stanley Wall on September
9, in order to discourage their membership in the Union,
and whether Respondent interfered with, restrained, and
coerced its employees in the exercise of their Section 7
rights by words spoken to announcers by agents of
Respondent on several occasions.
All parties appeared at the hearing and were given full
opportunity to participate, to adduce relevant evidence, to
examine and cross-examine witnesses , to argue orally, and
to file briefs.
Upon the entire record, including briefs filed by the
General Counsel and Respondent and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Missouri corporation, operates radio
station KEWI in Topeka. It annually receives more than
$100,000 for the services it performs, $30,000 of which
comes from the advertisement of national brand products.
On the basis of these admitted facts, the complaints
allege , the answers admit , and I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent contends, generally, that the Charging
Party is not a labor organization within the meaning of
the Act and, specifically, that it was not a labor
organization on May 10, the date on which the General
Counsel alleges Respondent unlawfully rejected its
demand for recognition.' As is more fully set forth below,
five of Respondent's announcers had expressed their
intention in writing of banding themselves together for
collective bargaining purposes under the name of Topeka
Association of Radio Announcers on May 10 when, as a
group , they met with Respondent's general manager and
informed him of their desires. Thereafter, on May 13, the
Topeka Association of Radio Announcers came into
formal existence as an unincorporated association when
the five put their names to its charter. No officers, as
such, have ever been elected. No dues, as such, have ever
been collected . However , as its charter makes clear, the
'Respondent 's answers deny the Union' s status as a labor organization in
general terms . However , only the latter argument is raised in its brief.
Charging Party is an association which admits employees
to membership and exists for the purpose of representing
them in bargaining over wages , hours and other conditions
of employment . I find , therefore , that it is a labor
organization within the meaning of Section 2 (5) of the Act
and has been at all times material to the case.'
111. THE UNFAIR LABOR PRACTICES
A. Prerequisites to Bargaining
1. Existence of a labor organization
Respondent operates KEWI, a contemporary music and
news radio station in Topeka, Kansas. On April 26 it
asked its announcers to sign personal service contracts. At
that time, and at all times relevant to the 8 (a)(5) issue in
this case, it employed nine persons whose duties, in whole
or in part, regularly required them to appear on the air,
either as disc jockeys or as newsmen or as a combination
of both. Eight of the nine broadcast under names other
than their real names, James Connors being the one
exception. The other eight, with their stage names in
parenthesis , are Larry E. Jarvis (Larry James), Stanley
James Wall (Stan Wallace), Christopher R. Graham
(Tom Sawyer), Gregory Van Aust (Greg Austin),
Raymond Edward Goldsich (Ray Dunaway), Willis
Raymond Moorehead (Ray Marshall), Keith L. Christian
(Keith Holliday), and Lonnie M. Stanton (Ron Stevens).'
Connors, Wall, Graham, Aust, and Stanton retained a
lawyer who undertook to deal with Respondent about
objections which the announcers had to certain provisions
in the contracts. The lawyer conferred with Respondent on
May 9. A meeting of the announcers with Robert F.
Russell, Respondent's vice president and general manager
of Station KEWI, was scheduled for the morning of May
10.
After retaining an attorney, Connors, Wall, Graham,
Aust, and Stanton explored the possibility of unionization.
They called David Schnabel, executive secretary of the
Kansas City local of the American Federation of
Television and Radio Artists and asked AFTRA to
organize Respondent's announcers. There were several
telephone conversations between Connors, as spokesman
for the five,' and Schnabel in the week or 10 days before
May 10. Finally, Schnabel told them that AFTRA could
not afford to move into the Topeka area at that time and
suggested that they form their own labor organization.
The attorney they had retained declined to undertake the
task of organizing a union for them. On the night of May
9-10 Connors asked Schnabel what the five could do to
protect themselves, especially in view of the imminent
meeting with Russell. Schnabel advised that they
immediately draft a "letter of intent" and, without delay,
retain James Rose, the Topeka attorney who represents
the Charging Party in this matter. Consequently, at 1 a.m.
on May 10, the five drafted and all signed a letter dated
May 10 and addressed to "Mr. Robert F. Russell, KEWI
Radio" which reads:
'Iowa Industrial Hydraulics , Inc., 169 NLRB No 27; Grand Lodge
International Association of Machinists and Aerospace Workers,
AFL-CIO, 159 NLRB 137, Stewart Die Casting Division (Bridgeport) of
Stewart Warner Corporation , 123 NLRB 447.
41 have attempted to refer to these men by thew real names at all times
herein , although their real and stage names are used indiscriminately
throughout the transcript.
'I have referred to Connors , Wall, Graham , Aust, and Stanton
collectively as "the five" throughout this decision in describing actions
MIDLAND BROADCASTERS, INC. 109
We, the undersigned, members in good standing of the
Topeka Association of Radio Announcers, hereafter
known as TARA, hereby demand all rights as the
collective-bargaining group for the majority of
announcers at KEWI, to negotiate with the company on
matters pertaining to wages, hours and working
condition.
Topeka Association of Radio Announcers consists of:
followed by the signatures of Connors, Wall, Graham,
Aust, and Stanton. This letter was never sent to
Respondent.
On May 10 Rose sent a letter, addressed to Russell,
which informed Respondent that Rose's firm had been
retained to represent "a group of your broadcasting
employees who have become organized under the style of
Topeka Association of Radio Announcers." This letter
also named Connors, Wall, Graham, Aust, and Stanton,
claimed that they, as members of the Union, constituted a
majority of Respondent's "broadcast employees," and
demanded that Respondent recognize the Union.
On May 13 Connors, Wall, Graham, Aust, and Stanton
each signed two documents which had been prepared for
them by Rose. One is headed AUTHORIZATION FOR
REPRESENTATION and authorizes the Union "...to
represent us for purposes of collective bargaining within
the meaning of the Labor-Management Relations Act, to
negotiate collective-bargaining agreements on our behalf,
and to petition for an election before the National Labor
Relations Board and/or achieve recognition from our
employer without an election ." The second is headed
CHARTER of the TOPEKA ASSOCIATION OF
RADIO ANNOUNCERS and begins , "We, the
undersigned, employees of Midland Broadcasters, Inc.,
(Radio Station KEWI) hereby associate ourselves together
to form and establish a non-profit labor organization
under the laws of the United States of America and the
State of Kansas." It then sets forth the name, principal
place of business (Connors' home address), purpose, and
charter nembers of the Union (i.e., Connors, Wall,
Graham, Aust and Stanton). It states that membership is
limited to "employees of employers in the radio and
television broadcasting industry."
On May 16 Rose sent a special delivery letter to
Respondent which reads, in part:
Dear Mr. Russell:
Please be advised that as of 6:00 AM, May 17, 1968,
your broadcasting employees will engage in a strike to
protest your unfair labor practice in refusing to
recognize and bargain with the Topeka Association of
Radio Announcers as their bargaining agent.
Demand is again made that you recognize and
bargain with Topeka Assocation of Radio Announcers
as the duly authorized bargaining representative of a
majority of your broadcasting employees, that is, those
employees who frequently or regularly appear before
the microphone...
which they took concertedly . I do not mean to imply that all five men were
always present when a concerted action took place. Their various work
schedules in Respondent 's 24-hour broadcast day frequently caused one or
the other to be absent from their meetings in the period prior to May 10.
For example Gregory Aust had the all-night disc jockey show from
midnight to 6 a.m. Consequently , he was not actually present when the
others signed the May 10 "letter of intent" (see below) at I a.m. on the
morning of May 10. However , he signed it later that day, apparently
before the 9 a.m. meeting with Russell.
The Union has no officers as such, although Connors
has acted as spokesman for the five. The Union has no
dues, although Connors, Wall, Graham, Aust, and
Stanton have agreed to share equally any legal expenses.
Respondent contends that Rose's letter of May 16 was
the first valid demand for recognition since the Union did
not come into existence until after the meeting of the five
with Russell on May 10 and after receipt of Rose's letter
of May 10 by Respondent. I find no merit to this
argument . In the first place, the demand voiced by
Connors on May 10 (about which more immediately
below) and written by Rose on the same day was a
continuing demand which fully apprised Respondent as
early as May 10 of its employees' intentions with respect
to organization and thus was in effect on May 13 when
the Union came into existence in a formal sense. In the
second place, a labor organization is, at most, an
unincorporated association and begins in a legal sense as
soon as two or more persons expressly band themselves
together for purposes of collective bargaining. Therefore, I
find that the Union came into existence in the early
morning hours of May 10 when Connors, Wall, Graham,
Aust, and Stanton plighted their troth. The only
significance of their unsent letter to Russell dated May 10
is that it now provides demonstrative evidence of their act.
If they had never written it, the Union would nonetheless
have been born at that moment. The fact that they
recorded their act in the form of a letter addressed to
Russell which Respondent never saw affects the coming
together of the five not one whit.
2. Demand
Russell called a meeting of the announcers for 9 a.m.
May 10 after conferring with their original attorney the
day before and, he thought, resolving all the disputes over
the proposed personal service contracts in order to discuss
changes in the contracts with them.' Russell began by
explaining the changes he had worked out with their
attorney which, he understood, would take care of their
objections. When he asked for questions, Connors spoke
up on behalf of the five. As he had been instructed by
Rose prior to the meeting, Connors informed Russell that
the five had formed the Union, that he was demanding
that Respondent recognize and bargain with it as the
representative of Respondent's announcers, and that the
Union was represented by Rose. Russell expressed
surprise that the announcers had not brought their gripes
to him and invited them to discuss such matters with him
on an individual basis. Connors refused. Instead, he again
referred Russell to Rose.
The record is unclear as to just which announcers attended this meeting
It is undisputed that Connors, Wall, Graham , and Stanton were present
Connors first testified that Aust was also present , then expressed some
uncertainty . Graham and Wall did not name Aust as among those present.
Aust was not asked whether he was present . Russell named the five plus
Moorehead but expressed some uncertainty . Since Aust worked the
midnight to 6 a.m. shift it is unlikely that he would have stayed around for
a midmorning meeting . Also, it is clear that dissatisfaction with the
proposed personal services contracts was not limited to Connors, Wall,
Graham , Aust, and Stanton. Therefore , it is likely that announcers other
than the five would have attended a meeting called by Russell to discuss
those contracts . Consequently , I find that the announcers present for this
meeting were Connors, Wall, Graham, Stanton, and Moorehead . However,
I attach no significance to Aust 's absence since it is undisputed that
Connors said he was speaking on behalf of the five and Russell did not
question that fact.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 17, after Connors , Wall, Graham, and Aust
struck in protest of Respondent refusal to recognize the
Union , William Haynes, the attorney who represents
Respondent in this matter , wrote Rose . Haynes ' letter
reads, in part:
Your letter dated May 10, 1968 , on behalf of the
Topeka Association of Radio Announcers, to the
Midland Broadcasters , Inc. (KEWI) has been referred
to me for answering.
You are hereby advised that the employer has a good
faith doubt that said Association represents a majority
of the employees in an appropriate unit for purposes of
collective bargaining . Moreover , the Company
questions the status of the Association as a labor
organization within the meaning of the National Labor
Relations Act....
Respondent contends that the Union ' s demand for
recognition was not rejected by it until May 17. I find
that the Union satisfied the formal prerequisite to
bargaining of a demand for recognition when Connors
spoke to Russell at the meeting of announcers on May 10
and that Respondent then and there formally refused even
though , as is undisputed , Russell spoke no magic words.
3. Appropriate Unit
The General Counsel contends that a unit limited to
Respondent's broadcasting employees, i.e., those
employees who regularly or frequently appear before a
microphone, is appropriate for bargaining. Respondent
contends that only a unit of announcers, engineers, and
production programmers is appropriate. The parties are in
agreement that salesmen, office clerical employees , guards
and supervisors should be excluded from any unit found
appropriate herein.
Respondent's operation is divided into departments, two
of which are the program department and the engineering
department. Jarvis was promoted from head announcer to
program director on April 17 and thus became head of the
program department at that time. The program
department consists of announcers and production
programmers. Production programmers prepare the log
which announcers follow while on the air and perform
other clerical duties in connection with Respondent's
programming. They do not appear on the air. On May 10
there were two female employees performing these duties.
No employee of Respondent has ever transferred from a
job as production programmer to a job as announcer or
vice versa.
On May 10 the engineering department was headed by
Keith Christian and numbered five engineers in addition
to the chief engineer . Christian began his employment
with Respondent as an announcer. When he became chief
engineer he continued to run a disc jockey show from 10
p.m. to midnight, Monday through Friday. Other than
Christian and Jarvis, who began with Respondent as an
engineer and an announcer simultaneously, there has never
been any interchange between announcers and engineers.
Engineers work at Respondent ' s transmitter , some miles
removed from its studios, where they monitor the
equipment and make minor repairs.
Program department employees are paid on a monthly
salary basis with, however, time and a half for overtime.
Engineers are paid on an hourly basis. All employees
share the same fringe benefits, such as vacations and
group insurance.
Since announcers and engineers perform different duties
at different locations under different supervisors without
any significant interchange, a unit which covers both
programming and engineering departments is not the only
one appropriate for Respondent's employees. Since the
Board has held that a unit limited to radio station
employees who frequently or regularly appear before the
microphone can be appropriate and Respondent's
production programmers do not possess such a
community of interest with Respondent's announcers as to
rule out application of that rule here, a unit comprised of
all production department employees is also not the only
one appropriate here. Therefore, I find that a unit limited
to Respondent's announcers is appropriate for purposes of
collective bargaining. Hampton Roads Broadcasting
Corporation (WGH), 100 NLRB 238; KPOJ, Inc., 129
NLRB 727; National Broadcasting Company, Inc., 160
NLRB 1440.
4. Majority
The parties agree that Larry Jarvis is properly excluded
from an announcers unit because, as program director, he
was a supervisor within the meaning of the Act after April
17. The significance of Respondent's contentions with
respect to labor organization and demand and refusal lies
in the position it takes with respect to the other eight
announcers plus events which took place before and on the
day the Union struck Respondent, May 17.'
Of the eight men who, in addition to Jarvis, frequently
or regularly appeared before Respondent's microphones
on May 10, the parties agree that James Connors, Stanley
Wall, Gregory Aust, Raymond Goldsich, Raymond
Moorehead, and Lonnie Stanton are properly included in
a unit of announcers .'The General Counsel would exclude
Keith Christian and Respondent would exclude
Christopher Graham, each on the ground that he is a
supervisor within the meaning of the Act.
Keith Christian worked 30 hours a week as chief
engineer and 10 hours a week as a disc jockey. The parties
agree that his duties as chief engineer made him a
supervisor insofar as his relationship with the engineers is
concerned and that he had no supervisory authority of
functions with respect to the other announcers.
Respondent relies on the latter fact to argue for his
inclusion on the authority of Berea Publishing Company,
140 NLRB 516, wherein the board held that an employee
with dual functions could be included in a unit on the
basis of his community of interest with the other
employees in that unit despite the fact that he spent less
than 50 percent of his time working in that unit. I agree
that Christian , as an announcer , had a community of
interest with the other announcers. However, Berea
Publishing and the • cases which follow it involve
dual-function employees who wore two rank and file hats.
Since Christian wore a supervisor's hat as chief engineer, I
hold that he is properly excluded from an announcers unit.
Unlike the carpenter in Dimeo Construction Company,
122 NLRB 980, who had worked for the same employer
at various times as a carpenter, carpenter foreman, and
superintendent and was found to be an employee rather
than a supervisor in an 8(b)(2) context, Christian was
chief engineer and disc jockey simultaneously although
performing the duties of the two jobs at different hours of
the work week. Like the year-round employees in the
Great Western Sugar Company, 132 NLRB 936, who
'Connors , Wall, Graham, and Aust struck . The strike ended May 20.
MIDLAND BROADCASTERS, INC.
exercised supervisory authority only during the season and
were excluded from a unit of seasonal and year-round
employees for that reason, Christian's relationship with
management as chief engineer so colored his total image
as to outweigh the community of interest with the
announcers that his 10 hours a week before the
microphone otherwise gave him.
On May 10 Christopher Graham and Lonnie Stanton
were the only newsmen among Respondent's announcers.
Respondent's program format calls for 5 minutes of news
beginning 5 minutes before each hour, referred as the 55
news , and news bulletins or "headlines" at 20 minutes
after and 20 minutes before each hour, referred to as the
20-20 news. The newsman's duty is to prepare the
material for each of these broadcasts and, if present in the
studio at the appropriate time, read it on the air. If the
newsman is out of the studio covering a story, the disc
jockey in whose show the newscast falls reads the news
and, if necessary, prepares it. Newscasts which fall in
periods when there is no newsman on duty are prepared
and presented by disc jockeys.
Graham had worked for Respondent longer than
Stanton, was paid a larger salary than Stanton, and had
authority to tell Stanton what news events he should
cover. Graham also had the title of news director.
Graham's hours were 6 a.m. to noon, Monday through
Saturday, Stanton's were 12:55 p.m. to 7 p.m. Monday
and Wednesday through Saturday, 10:55 a.m. to 7 p.m.
Tuesday. The 1-hour overlap of Graham's and Stanton's
hours on Tuesday morning was provided to permit
Graham regularly to cover meetings of the Topeka City
Council which take place at that time. The working
arrangement between Graham and Stanton was that each
would leave notes for the other about news events the
writer of the note could not cover. Although the system
was highly informal and there is no evidence that any such
distinction was ever expressly laid down by Respondent, I
find that a note from Graham to Stanton had the status
of an order while one from Stanton to Graham was a
suggestion only. There is no evidence that Stanton ever
failed to cover a news event ordered by Graham. There is
no evidence that Graham ever failed to cover a news event
suggested by Stanton.
Respondent relies on Graham's authority to tell
Stanton what news events to cover in arguing that
Graham responsibly directed the work of Stanton and
was, therefore, a supervisor within the meaning of the
Act. I disagree. Graham did not direct the work of
Stanton in any immediate sense , especially in view of the
fact that they were present for duty at the same time, at
most, only 1 hour per week. The relationship between
them was, at most, that of journeyman and helper and
involved only the carrying out of routine tasks without the
exercise of independent judgment. Since Graham
possessed none of the other indicia of supervisory
authority and since his title alone is not enough to confer
that status on him, I find that he was not a supervisor
within the meaning of the Act. He is, therefore, includible
in a unit of Respondent ' s announcers. National
Broadcasting Company, Inc., supra.
Respondent further contends that Stanton should not be
counted as a supporter of the Union because his
adherence was coerced in the first instance and because he
had withdrawn by May 17 when, in Respondent's view of
the case, it first refused the Union's demand for
recognition.' During the period when the five were
wrestling with the problem of how to cope with
Respondent 's insistence upon personal service contracts
111
and were in telephone communication with Schnabel, the
question arose of what, if any, pressure they could bring
to bear on colleagues who did not go along with them in
the event they went on strike. The suggestion was made
that it might be possible to get AFTRA's help at least to
the extent of bringing pressure to bear on others not to
cross their picket line. The five spoke to each other in
terms of "blackballing" their colleagues, especially
Raymond Moorehead. Which of the five first raised the
subject is not clear, although Stanton conceded that it
could have been he. In any event, the subject was
discussed in the telephone conversations Connors had with
Schnabel during this period. Finally, an arrangement was
reached under which Schnabel was to send a letter which
the five could show to would-be picket line crossers.
Apparently this arrangement was reached on the evening
of May 13 since it was discussed by the five that evening
before they signed the Authorization for Representation
and Charter detailed above, and Connor's wife made a
special trip to Kansas City the next day to pick it up. The
letter is dated May 14, addressed to Jim Connors and
reads, in pertinent part:
...I haven't heard yet from National AFTRA when we
can expect the hiring of a new Field Rep. to service the
Central Region but hope it will be shortly. Keep me
posted on all developments, not only at KEWI but any
interest you might hear of at the other stations. When
we can get sufficient personnel to service the Central
Region I am sure that Topeka will be a prime area for
organization...
P.S. I would be interested in the names and Social
Security Numbers of any performers who act contrary
to the best interest of this effort on the part of the
KEWI Announcers to obtain just and equitable terms
and conditions of employment.
On the evening of May 16 Stanton joined Connors,
Wall, Graham, and Aust in painting picket signs for their
strike, scheduled to begin at 6 a.m. the next morning.
Sometime after midnight that night Stanton was
awakened from sleep by his roommate, Raymond
Moorehead. Moorehead was angry, he said, because
Connors had shown him Schnabel's letter and sought to
force him not to cross the picket line by threatening him
with being blackballed in the industry. Stanton and
Moorehead talked until dawn. Stanton then called his
father, an executive in the radio business, and sought his
advice. As a result of his conversations with Moorehead
and his father, Stanton changed his mind about joining in
the strike.
Stanton crossed the Union's picket line to go to work
on the morning of May 17. He told Russell that he was
worried about what might happen to him in Kansas City
as a result of crossing the picket line. Kansas City is a
"major market" in the radio business to which announcers
in Topeka, apparently a "minor market," aspire to
advance in furtherance of their careers. Stanton told
Russell about the discussions the five had had about
"blackballing" in the period leading up to the strike. He
did not tell Russell that he had joined with the four
strikers in organizing the Union because he feared he
would be blackballed. Stanton took no affirmative action
to end his membership in the Union, either by word or
deed, until August when, in preparation for hearing in
these cases, he was invited to meet with Rose and counsel
'This portion of my decision is based on the testimony of Stanton, whom
I credit
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the General Counsel. In a letter mailed to Rose on
August 28, Stanton replied:
Regarding a letter from Mr. Robert E. Funk, Jr., of
the National Labor Relations Board Region 17,
suggesting a meeting between myself and Mr. Rose and
Mr. Jolley for the purpose of discussing the trial of
N.L.R.B. cases numbers 17-CA-3580 and 17-CA-3631,
Midland Broadcasters Incorporated on Thursday,
August 29.
With all respect, I fail to see the necessity for such a
meeting since I terminated my involvement with the
Topeka Association of Radio [sic] on May 17, 1968.
The Union has never taken any formal action to expel
Stanton from its ranks.
In Respondent's view of all the issues so far considered,
Respondent can be under no duty to bargain with the
Union because, there being no labor organization in
existence prior to May 13, there was no operative demand
to bargain until that time and no operative refusal of that
demand until Haynes' letter of May 17. By that time,
since Stanton cannot be counted among the Union's ranks
whichever of the reasons set forth at the beginning of the
discussion of Stanton's travail is relied on, Respondent
had a good faith doubt of the Union's majority even in
the announcers' unit whose appropriateness Respondent
does not concede on the basis of the facts available to it.
The Union, Respondent says, on the morning of May 17
had only three adherents - Connors, Wall, and Aust -
in a unit of seven - the three just named plus Goldsich,
Moorehead, Stanton, and Christian.
I disagree with both of Respondent's reasons for
eliminating Stanton from the Union's ranks. First, it is
clear from his own testimony that he was not coerced into
signing the May 10 "letter of intent" and the May 13
Authorization for Representation and Charter by the
blackball conversations being carried on by himself and
his fellow dissidents. Schnabel's letter was intended to
bri ng pressure not on Stanton, who wanted it as a weapon
to use in the fight of the five for the rights they sought,
but on other announcers, among them Stanton's
roommate Ray Moorehead, who were reluctant to join the
five. Stanton did not change his mind about the step he
had freely taken to join with Connors, Wall, Graham, and
Aust in organizing the Union and calling a strike against
Respondent until his talk with Moorehead a few hours
before the strike was scheduled to begin. Second, the fact
that Stanton then crossed the picket line establishes only
his refusal to strike, not his withdrawal from the Union.
Since he did nothing to terminate the relationship until
August, he continued to be a member at all times relevant
herein despite what he thought in August was the
sig nificance of his action in May.'
In summary, therefore, I find that, on May 10 and at
all other relevant times, the Union represented a majority
of five Connors, Wall, Graham, Aust, and Stanton -
in an appropriate unit limited to Respondent's seven
non-supervisory announcers - the five just named plus
Goldsich and Moorehead - and that, on that date, the
Union made a legally sufficient demand for recognition
which continued in effect at all relevant times. Thus all
the prerequisites to bargaining were met at all relevant
times. The question remains whether these and/or other
'It is, I think , an interesting commentary on the thought processes of the
earnest young men, uninitiated in the mysteries of labor law , involved in
this matter but a matter of no significance that Stanton chose the word
" involvement" rather than "membership" when he wrote to Rose.
events gave rise to a duty on Respondent 's part to bargain
with the Union. That issue is discussed under The 8(aXS)
Allegations below.
B. The Independent 8(aX 1) Allegations
1. The conversations of Russell and/or Reynolds with
Connors on May 10 and May 131°
Shortly after Russell's meeting with the announcers on
the morning of May 10, Russell took Connors to the
office of Fred Reynolds, president of Respondent.
Reynolds asked Connors if he knew what he was getting
into and told Connors that Respondent had gone through
the same thing with its engineers 2 years before." He said
that Respondent had been able to beat the engineers then
and was prepared to follow the same course with the
announcers . He pointed out that Respondent was in a
much better position than the five to bear the expense of a
drawn-out Labor Board election fight.
The conversation then turned to Connors' personal
situation and his prospects with Respondent. Russell told
Connors that he had reached a crossroad in his career.
There was a discussion of youth and its propensity to
buck the establishment, Reynolds at one point citing his
own son as an example . Reynolds pointed out to Connors
that he had to make a choice between bucking the
establishment and going along with it, between deciding he
wanted to be a disc jockey for the rest of his life and
deciding he wanted to move up to better things in the
radio industry. Russell reminded Connors of a
conversation they had had a couple of months before, on
the occasion of Connor's last raise, when the possibility of
Respondent's opening up an FM station and the value to
Respondent of Connors' prior experience at an FM
station had been discussed. Reynolds and Russell told
Connors that Respondent would need someone to manage
its FM station, if it started one, and that he would end his
chances of getting that job if he insisted on bucking the
establishment as he was doing. Finally, Reynolds asked
Connors if he was going to go ahead. Connors replied that
he did not know, that the decision was not his alone to
make, and that he would have to talk to the others.
On the following Monday morning, May 13, Connors
had occasion to go to Russell's office to get a key, Russell
asked Connors if he had made a decision based on the
May 10 discussion. Connors said, "No, not yet." Russell
said, "You had better make a decision pretty quick. I
have to know this afternoon. That is when our defense
mechanism goes into action."
Later that day, in the control room, Russell again
asked Connors if he had made up his mind. Connors said
that the five were going to go ahead with their plans.
Russell said, "You know you are not going to win because
you don't have a majority of the broadcasting employees."
On the foregoing, I find that Fred Reynolds,
Respondent's president, on May 10 and Robert Russell,
This section is based on the credited testimony of Connors. Reynolds
did not testify Russell 's version differs from Connors' in detail , emphasis,
and shading. I found Connors, like all of General Counsel's witnesses, a
straightforward if brash young man. Russell , on the other hand, was
somewhat evasive and inclined to attempt to substitute his opinions for
facts in areas damaging to Respondent.
"The Director of the 17th Region issued a Decision and Direction of
Election in Midland Broadcasters, Inc. (Radio Station KEWI), Case
17-RC-4935, on December 23, 1965 , in which he directed an election in a
unit of Respondent 's transmitter engineers . Petitioner was International
Brotherhood of Electrical Workers, Local No. 226, AFL-CIO.
MIDLAND BROADCASTERS, INC.
Respondent ' s vice president and general manager, on May
10 and 13 interrogated an employee about his union
activities and desires , promised him future economic
benefits if he refrained from union activities, and
threatened him with loss of those benefits if he persisted in
his efforts to organize Respondent ' s employees , thereby
violating Section 8(a)(l) of the Act.
2. Jarvis' conversation with Goldsich on May 19 and
subsequent events'2
Raymond Goldsich, a high school senior, worked
part-time as a disc jockey for Respondent during the
1967-68 school year. In mid-May he was on a leave of
absence to permit him to participate in the activities which
keep seniors busy as graduation nears . Following his
graduation, he went to work full-time on June 10. He quit
2 weeks later.
On May 17 Goldsich received a call from Russell, who
asked him to come to work, saying that Respondent could
use him full-time immediately. Goldsich asked if the
announcers were on strike. Russell replied that they were.
Goldsich put Russell off. Goldsich then called Schnabel.
He asked what might happen to him if he crossed the
picket line at KEWI.
On May 19, while the strike was in progress, Goldsich
called Larry Jarvis and discussed the situation with him.
Jarvis filled Goldsich in on what was going on. Jarvis
named the four announcers who were out on strike and
said that the score was tied, four announcers who did not
want a union being at work and four who did being out
on strike. Goldsich said that he was willing to come to
work immediately if Respondent needed him but that he
would rather not get mixed up in the situation in light of
his conversation with Schnabel. Jarvis replied, "We will
get by all right without your working. You do not have to
come to work right away. What we need right now is your
vote." Two days later, after the striking announcers had
returned to work, Goldsich called Jarvis again. It was
arranged that Goldsich would wait a while longer before
coming to work for Respondent.
Goldsich began working full-time for Respondent on
Monday, June 10. On June 12 Jarvis telephoned Goldsich
while Goldsich was working." Goldsich told Jarvis that he
had been talking about the union situation with the other
announcers and thought there was some merit to the
arguments of the five that they were being treated
unfairly. He pointed out that the schedule which had gone
into effect when he was added to the full-time staff
required Christopher Graham to work until midnight on
Sunday, then return to the station at 5:50 a.m. on
Monday. Goldsich said he did not think that was fair. He
asked whether Graham's being for the Union had
anything to do with his getting a schedule like that. Jarvis
replied that Graham and the other strikers had been
disloyal to Respondent and Graham was only getting what
he deserved. Jarvis asked Goldsich how he would vote. 1°
Goldsich replied that, in light of his conversations with
Connors and Graham, he did not know which way he
wanted to vote. Jarvis replied, "It was our understanding
when you came to work for us that you were going to be
on our side."
"This section is based on the testimony of Goldsich , whom I credit over
Jarvis, where there is any discrepancy between their versions , for the same
reasons I credit Connors over Russell.
"Apparently it is not uncommon for disc jockeys to use the telephone or
to perform other chores while technically on the air I gather that, while
113
The next day Goldsich received a memorandum from
Jarvis criticizing his work. Goldsich asked Jarvis about
the memorandum he had received and the fact that Jarvis
was giving out more memoranda than previously. Jarvis
said that his purpose was to create a record so that, in the
event Respondent decided to discharge anybody, it could
prove that the employee had been warned about doing
wrong the things for which he was ultimately let go.
I find the statement of Larry Jarvis, Respondent's
program director, to Goldsich on June 12 that it was
Respondent's understanding, when Goldsich came to
work, that Goldsich would be on its side, coupled with
Jarvis' statement to Goldsich on May 19 that what
Respondent needed was Goldsich's vote and with Jarvis'
statement on June 12 about Graham's schedule,
constitutes an implied threat of economic loss to an
employee and thus is violative of Section 8(a)(1). The
complaints in this matter do not allege any interrogation
of employees by Jarvis. However, since what Jarvis said to
Goldsich in the June 12 telephone conversation was
thoroughly litigated, I find that Jarvis further violated
Section 8(a)(1) in that conversation by asking him how he
would vote.
3. Russell's conversations with Goldsich on May 31,
June 10, and June 1315
On May 17 Respondent mailed both an unfair labor
practice charge and a petition for an election to the
Board ' s regional office in Kansas City." In Case No.
17-CP-87 , Respondent alleged that the Union 's picketing
was violative of Section 8(b)(7)(C) of the Act. In
17-RM-384 it sought an election as a result of the Union's
claim to represent its announcers.
On May 27 Respondent filed a second unfair labor
practice charge against the Union . Case 17- CB-607 alleges
a violation of Section 8(b)(1)(A) in that "On or about
May 16, and at various times thereafter, [the Union] .. .
threatened , intimidated and coerced Raymond Goldsich,
Lonnie Stanton , Ray Moorehead and Gregory Aust with
regard to future employment . . . . . On May 30
Respondent asked Goldsich to give a statement to a
Labor Board field examiner in support of its charge.
Goldsich did so. The next day Russell asked Goldsich if
he had gotten a copy of his statement . Goldsich replied
that he was supposed to get one but did yet have it.
The regional office dismissed Respondent ' s charge in
Case 17-CB-607 on June 7 . On June 10 Russell again
asked Goldsich if he had a copy of his statement to the
Labor Board. He also asked Goldsich to make another
statement to Respondent 's attorney . Respondent 's purpose
in seeking a copy of Goldsich' s Board statement and in
taking another affidavit from him was to appeal the
Regional Director 's dismissal of its charge on the ground
that the field examiner had refused to include in the
statements he took certain information with respect to the
blackballing facet of the situation which I have discussed
above.
the platters are spinning , the disc jockey's microphone is cut off and he is
free to speak on the telephone or do other things without being heard on
the air.
"Respondent 's petition for an election in Case 17-RM- 384 was pending
at the time . See fn . 16 below.
"The facts in this section are undisputed.
"Both cases were docketed in the Regional Office on May 20. Both were
dismissed shortly before the complaint was issued in Case 17-CA-3580 on
July 24
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 13 Goldsich accompanied Russell to the office
of William Haynes , Respondent ' s attorney . Russell again
asked Goldsich whether he had obtained a copy of his
Board statement. Goldsich replied that he had not but
that he would get one and bring it to Russell . Haynes
took another statement from Goldsich. Goldsich
subsequently gave to Russell , for Haynes ' use, a copy of
his Board statement . Haynes mailed his appeal of Case
17-CB-607 on June 19.
The General Counsel relies on the well established
principle that an employer violates Section 8(a)(l) when
he interrogates his employees about statements they have
given to Board investigators and seeks copies of their
statements in arguing that Russell 's queries of May 31,
June 10, and June 13 were violative. Johnnie 's Poultry
Company, 146 NLRB 770; Winn-Dixie Stores, Inc., 143
NLRB 848; Texas Industries , Inc., 139 NLRB 365; Hilton
Credit Corporation, 137 NLRB 56. I disagree. Each of
the cases in which the Board has reiterated this principle
has involved charges against an employer and his efforts,
or the efforts of his attorney, to find out what the
employees have told the Board about them so that he
could prepare his defense . As the Board said in
Winn-Dixie:
Pretrial statements taken by the General Counsel are
intended to record and preserve the facts leading to the
alleged unfair labor practices on which the charge is
based. As such, these statements necessarily reveal the
employees' attitudes, activities, and sympathies in
connection with the Union. Moreover , the statements
divulge the union sympathies and activities of other
employees and the conduct of the supervisors toward
the Union and its adherents. As such, they should be as
free of any inquisitive interest by the Employer as are
the employees ' union activities themselves . Knowledge
by the employee that his Employer is manifesting an
interest in what the employee may say about him can
only exert an inhibitory effect on the employee's
willingness to give a statement at all or to disclose all
of the matters of which he has knowledge for fear of
saying something that might incur the Employer's
displeasure and possible reprisal.
None of these elements is present here . Rather,
Goldsich talked to the Board's investigator at
Respondent 's request in order to give to the Board
information Respondent thought Goldsich had which
would support Respondent's charge . When the Regional
Director found no merit to Respondent's charge,
Respondent could not intelligently appeal to the General
Counsel without knowing wherein the information on
which the Regional Director had based his decision
differed from the facts as Respondent understood them
from its own conversations with the witnesses it had relied
on in filing charges in the first place. Thus, under these
circumstances , Respondent ' s mere request to Goldsich to
get it a copy of his statement to the Board, absent any
other pressure to force him to comply, is a necessary part
of Respondent ' s right to avail itself of the Board's
processes , not an invasion of its employees ' rights to
invoke the Board's help without coercion. I find,
therefore, that Russell did not violate Section 8(a)(1) on
May 31, June 10, and June 13 when he asked Goldsich for
a copy of the statement which Goldsich had furnished to
the Board as Respondent ' s witness in support of an unfair
labor practice charge filed by Respondent against the
Union.
C. The 8(aX3) Allegations
1. The events immediately following the May 17-20
strike"
a. Christopher Graham and the news car
As indicated, the strike began on Friday, May 17. On
Monday, May 20, the strike was abandoned. Connors,
Wall, and Graham signed and delivered to Respondent a
letter dated May 20 in which, on behalf of themselves and
Aust, they made an unconditional offer to return to work
and repeated their demand for recognition of the Union as
their collective-bargaining representative. All four
announcers returned to work.
As part of its news operation, Respondent operates a
telephone-equipped automobile known as the news car or
the mobile unit which is used for covering local news
events. Prior to the strike, the news car was assigned to
Christopher Graham as news director. This meant that he
was on 24-hour call to cover any events which required
use of the mobile unit. Consequently, when he was not at
work he was required to have the news car with him. With
Respondent's permission he drove it to and from work
and on personal errands or social events in and around
Topeka. Use of the news car on his own as well as on
Respondent's business was a prequisite of his job whose
value Graham estimated at $10 a week in gasoline and
parking fees saved.
On the morning the strike began Graham parked the
news car in its usual garage stall at the studio and turned
in the keys. When the strike ended Graham, by note,
asked Jarvis to return the keys. Jarvis failed to reply. The
keys were returned to Graham in the middle of July, when
he again became responsible for 24-hour on-the-spot news
coverage. During the period from May 17 to mid-July, the
news car and the responsibility were assigned to Lonnie
Stanton, the second newsman , for a period of 1 week and
to Jarvis for the rest of the time. Graham was on vacation
for 2 weeks during this period. On two occasions when
events occurred during Graham's shift which required
on-the-spot news coverage, Graham obtained the keys to
the mobile unit from Jarvis and gave them back when he
returned to the studio.
b. Stanley Wall, his lunch and his wife
Prior to the strike it was Stanley Wall's custom to eat
his lunch in the disc jockeys' lounge . The disc jockeys'
lounge is an office with a desk and a telephone which the
'Trhe facts in this section are essentially undisputed. As indicated above,
I credit Jarvis only where his testimony is corroborated . In addition to his
demeanor, I rely on the following specific inconsistencies in his testimony
in discrediting him generally as well as with respect to the particular points
on which the inconsistencies bear (1) Jarvis deni ed any knowledge that
Mrs. Wall was keeping Wall company at the station on Sunday afternoons
prior to the Sunday after the strike. However , in detailing his reasons for
ordering Wall to stop eating his lunch in the disc jockeys' lounge , Jarvis
said, "I informed him ... for several reasons , me not having a telephone
in my own office it was bad news for me to go in there and find him and
his wife eating their lunch ." I consider Jarvis' reference to Mrs . Wall in
this context an admission that he knew she frequently visited her husband
at the studio . (2) Jarvis testified that he changed Graham 's schedule
around August 1, as soon as the inequity was called to his attention, yet he
admitted that, in their June 12 conversation , Goldsich told him that
Goldsich thought the new schedule discriminated against some of the
announcers
MIDLAND BROADCASTERS, INC.
announcers are free to use when not in the control room.
It also contains the office coffee machine . Jarvis, as
program director , has an office elsewhere which does not
contain a telephone . He customarily uses the telephone in
the disc jockeys' lounge.
On the day after the strike ended Wall, as was his
custom , went to the lounge with sandwich in hand. He
was met there by Jarvis who told him there was a policy
against eating in the lounge and that, because it interfered
with Jarvis ' use of the telephone , he could not eat there.
When Wall protested that he was all ready to eat his
sandwich , Jarvis relented for that day but ordered him not
to eat his lunch there in future . A three-page,
single-spaced document entitled "KEWI GENERAL
ADMINISTRATIVE POLICY" contains no mention of
eating in the disc jockeys' lounge.
On the Sunday after the strike ended, that is, on
Sunday May 26, as she had on previous Sundays since
their marriage the preceding October, Mrs. Wall
accompanied Wall to the studio to keep him company
during his 6-hour afternoon disc jockey stint . Jarvis saw
Mrs. Wall there . He told Wall that he would have to tell
his wife to leave because of Respondent ' s policy against
visitors in the station . The aforementioned policy
document contains various provisions the gist of which is
that visitors will not be encouraged and anyone who wants
to see the station in operation will be given a brief look
and ushered politely out . It reads , in part:
7. Visitors:.. .
d. If you bring in personal friends or relatives to
look at the station , make it brief . Show them
around , then , after a reasonable time, leave.
e. Air Staff will not have visitors while on the air .
During the 1967 football season Wall had occasion to
comment to Jarvis one Monday what a big help his wife
had been to him the previous day in keeping football
scores up to the minute . On another occasion a telephone
call which Wall could not cope with came into the station
from an advertiser on a Sunday afternoon. Mrs. Wall
relayed the message to Jarvis at home.
c. The June 9 schedule change
Lonnie Stanton was hired by Respondent around the
first of April . He and Raymond Moorehead are members
of the Kansas National Guard. They are required to
attend a weekend drill once a month. KEWI broadcasts
on a 7-days-a week, 24-hours-a-day schedule with the
exception of midnight to 6 a . m. on Monday . Before
Stanton was hired , the absence of Moorehead on a
Saturday and a Sunday because of his military obligation
caused a problem which Respondent solved each month
by finding another disc jockey who could cover for him.
The addition of Stanton to the staff and his and
Moorehead ' s absence on the same weekend complicated
the problem to the point where a permanent schedule
which would give each a weekend schedule with another
announcer, either disc jockey or newsman , who could run
the whole shebang himself once a month when Stanton
and Moorehead were gone became a better solution.
Keith Christian left Respondent on June 1 to join the
United States Navy. Raymond Goldsich was placed on a
full time status to cover the gap left in Respondent's disc
jockey schedule by his departure . Because of the necessity
of working Goldsich into the schedule on a 40-hour basis
while Christian's departure left only a 10-hour gap in disc
115
jockey programming and because of a desire to resolve the
Stanton-Moorehead National Guard problem in the
manner indicated, Jarvis issued a completely revamped
work schedule, effective Sunday, June 9. Prior to the
change, James Connors worked as a disc jockey from
noon to 6 p.m. on Saturdays, with Lonnie Stanton
opposite him as newsman. Both had Sunday off. Stanton's
shift ran until 7 p.m. which carried him an hour into
Goldsich's 6 p.m. to midnight show. (Goldsich worked
Saturday nights only.) After the change, Moorehead had
the Saturday afternoon disc jockey trick, with Goldsich
opposite him as newsman. Connors wound up with the 6
p.m. to midnight Saturday shift, doubling as both disc
jockey and newsman. Prior to the change Graham worked
as newsman from 6 a.m. to noon, Monday through
Saturday, opposite disc jockey Jarvis. Both had Sundays
off. Moorehead had Saturday off but was required to
work a split shift on Sunday, 9 a.m. to noon and 6 p.m.
to midnight, with no newsman opposite him. After the
change Lonnie Stanton worked the Saturday morning
news trick opposite Jarvis. Graham had Saturday off but
was required to work a split shift on Sunday, as newsman
from 10 a.m. to 1 p.m. and as both from 6 p. m. until
midnight. His old Monday shift as newsman from 6 a.m.
to noon remained unchanged. The new schedule solved
Respondent's National Guard problem in that, on
weekends when Stanton and Moorehead were away,
neither was scheduled to work on Sunday and Jarvis and
Goldsich could get along by themselves on Saturday
morning and afternoon respectively.
In a schedule effective July 14 Graham was relieved of
his Sunday morning shift, returning to the 36 scheduled
hours basis which he had worked before the June 9
change . In a schedule effective August 12, Graham and
Connors swapped the Saturday night and Sunday night
shows. Jarvis ordered the change in order to end the
necessity for Graham to return to work on Monday
mornings only 6 hours after finishing his stint on Sunday
nights.
d. Conclusions
In each of these three areas I am convinced that
Respondent acted out of a desire for revenge against the
strikers. I rely for this conclusion on the fact that, on
June 12, Jarvis told Goldsich that Graham had been
disloyal to Respondent when he went out on strike and
was only getting what he deserved in the June 9 schedule.
While this is, technically , an admission of an illegal
motive as to only one of several discriminations alleged by
the General Counsel, it throws such a blinding light on the
atmosphere that prevailed just after the May strike that it
reveals the real reason for each of the petty vengeances
Jarvis took against employees who had the termerity to
exercise their legal right to strike . In addition, with
respect to each of the discriminations, I do not credit the
ostensible reason advanced by Respondent for the
following reasons:
(1) In arguing that Christopher Graham is excluded
from an announcers' unit because he is a supervisor,
Respondent does not take the position that his title or
duties were any different after the strike than before.
Therefore , he was still news director and, in Respondent's
view, responsible for collecting the news after the strike. If
carrying out that responsibility required him to be on
24-hour call for on-the-spot news coverage before the
strike, he should have been subject to the same
requirement after the strike . But the requirement carries
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with it 24-hour use of the news car. To say, as
Respondent does, that it did not give the car back to
Graham immediately once the strike was over because it
found that Jarvis or Stanton could carry the responsibility
satisfactorily is to say that Graham had ceased to be news
director insofar as that title has any real significance.
Such an argument is totally inconsistent with
Respondent's majority argument that Graham is a
supervisor.
(2) Timing alone is enough to give the lie to
Respondent's excuse that Jarvis could not permit Wall to
continue to eat his lunch in the disc jockeys' lounge
because it interfered with Jarvis' business use of the
telephone. Jarvis succeeded Russell as program director
on April 17. Wall ate his lunch in the lounge without
objection in the month between April 17 and May 17.
Jarvis forbade such conduct on the first day after the
strike. There is no fact other than Wall's participation in
the strike to account for the change in the rules. The same
reasoning applies to Jarvis' forbidding Wall to have his
wife with him at the station on Sunday afternoons since
Jarvis acted on the first Sunday after the strike. Jarvis'
excuse that he invoked Respondent's policy against
visitors while on the air the first time he learned Mrs.
Wall was in the station fails before the clear proof that he
knew full well what was going on before the strike.
(3) Finally, Respondent's coincidence explanation for
the fact that, in the June 9 schedule, Connors wound up
with a Saturday night shift instead of a Saturday
afternoon shift and Graham wound up with a Sunday
night shift that gave him only 6 hours off before he had to
return to work on Monday morning instead of a Saturday
morning shift is completely incredible. I do not doubt that
Respondent's motive for revamping the schedule was to
solve its National Guard problem at the same time it
wove Goldsich in. I am equally convinced, however, that
Jarvis took advantage of the opportunity to punish
strikers and reward non-strikers. There is no other
explanation for the fact that Jarvis' solution was to prefer
Goldsich, whose experience to that point had been as a
part time employee only, over Connors, an experienced
radio announcer, as the man who would work by himself
when Raymond Moorehead had to be away. To say, as
Jarvis did, that Connors was better qualified than
Goldsich to work the Saturday night shift will not stand
close inspection either, for Saturday night was the very
shift that Goldsich had worked as a regular part-timer
prior to June 9. The easy solution, as far as Lonnie
Stanton's National Guard duty was concerned, was to put
him on as Saturday afternoon newsman opposite Connors'
pre-June 9 disc jockey show. The fact that Jarvis chose to
solve the problem the hard way makes his motive clear.
With respect to Graham, the fact that Jarvis chose the
news director rather than some other disc jockey, say
Goldsich, the new man, to replace Moorehead on his
Sunday shows is equally illuminating.
Wall's eating of his lunch in the disc jockeys' lounge
and having his wife in the studio with him on Sunday
afternoons are not conditions of employment of the same
magnitude as Graham's use of the news car for personal
business, with the attendant increase in his real salary, or
Graham's and Connors' less onerous hours of
employment, but they are substantial enough to be
conditions of employment in the circumstances of these
cases. I find, therefore, that Respondent changed the
conditions of employment of Wall, Graham, and Connors
in the manner indicated because they engaged in the May
strike and thereby, in each instance, violated Section
8(a)(3) of the Act.
2. Discrimination against Gregory Aust18
Gregory Aust began working for KEWI on April 15.
His only prior experience as a radio announcer had been
at KUSN in St. Joseph, Missouri, a sister station of
KEWI. At KUSN Aust had worked as the all night show
disc jockey from August 1967 until he quit sometime prior
to being hired at KEWI. His manner of quitting was to
leave a note that he would not be back in the control
room at the end of a shift. All-night disc jockeys, at both
KUSN and KEWI, are alone in the studio while they are
working.
Aust was hired by Russell at KEWI with knowledge of
the difficulties he had had at KUSN, the manager having
told Russell that Aust tended to deviate from KUSN's
on-the-air policies and programming format, preferring to
create his own image as an entertaining personality. Aust
was assigned to KEWI's all-night disc jockey show. As
additional duties he was required to prepare the daily civic
calendar and poop sheet, noncommercial items of local
interest which Respondent broadcasts in the public
interest. KEWI, like KUSN, has an on-the-air policy and
a programming format. KEWI's policy and format are
designed to project the total image to listeners which
Respondent has decided will make KEWI a successful
radio station. The image which Respondent seeks to
project is that of a contemporary music and news station,
that is, a station whose around-the-clock programming is
limited to disc jockey music shows interspersed with news
at 20 minutes after the hour, 20 minutes before the hour,
and 5 minutes before the hour. The music which disc
jockeys are permitted to present is strictly limited to the
40 top records at any given moment, as determined by
record sales in the Topeka area, some 20 or 30 other new
records known as "comers" which Jarvis and Moorehead
(who has the additional title and duties of "music
director") have decided show promise of rising to top 40
stature, and a few former top 40 tunes known as
"classics." The format calls for disc jockeys to play
records of their own choosing from each of these stacks in
a certain ratio and sequence during a given time period.
There are other rules about such things as not presenting
a commercial immediately before a newscast. The most
sacred rule is not to omit any of the commercials
scheduled during a given time period.
Respondent's image is one of bright, cheerful,
entertaining young disc jockeys who do not, however, let
their chatter overshadow their music. Within the
on-the-air policy and programming format laid down by
Respondent disc jockeys are free to plan and present their
shows as they see fit.
When Aust was hired in April he was informed of
Respondent's policies and format, including the fact that
Respondent has a 90-day probation period for new
employees. Probation was never mentioned to him again
up to and including his discharge on July 15, 3 months to
the day from his hire. Prior to the May strike, Aust
received frequent instruction and criticism from Jarvis
about his work. These efforts to mold Aust into a
KEWI-model disc jockey took the form of conversations
between Jarvis and Aust when Jarvis reported in the
morning to begin his, show as Aust was finishing his as
well as memoranda sent to Aust by Jarvis. However,
during the prestrike period Jarvis did not speak to Aust
"The facts in this section are essentially undisputed.
MIDLAND BROADCASTERS, INC.
and then follow up the conversation with a memorandum
on the same subject.
As already related in detail, Aust joined with Connors,
Wall, Graham, and Stanton in the activities which led up
to formation of the Union and the May strike. Aust
vacillated somewhat before he cast his lot irrevocably with
the Union by joining in the strike. On Sunday, May 12,
Aust called Russell at home to tell him he was not
involved with the Union, despite the fact that he had
signed the "letter of intent" 2 days before and signed the
authorization and charter the following day. In the last
few days before the strike, Aust told Russell on several
occasions how happy he was to be given a second chance
by Respondent, how much he liked his job, and how he
did not want any trouble. On May 17, as Aust was
leaving at 6 a.m. he shook hands with Jarvis and told him
that, while he was joining the strikers, he really did not
have his heart in it. He added, "No matter what happens,
no matter how much dissension we have, I want to remain
friends." Jarvis replied, "You are doing a good job on the
air."
In the period after the strike, Aust continued to receive
instructions and criticism from Jarvis. During this time,
however, Aust, like other strikers, received more
memoranda then before and the memoranda tended to
supplement and memorialize conversations already held.
Also in the period after the strike, Aust on two
occasions asked Jarvis to transfer him from the all-night
show to a better shift. The first was around the time Keith
Christian left. The second was when a new disc jockey
named Steve Keating was hired, apparently shortly before
Aust's discharge.19 He was told that he could not be
transferred because of his attitude. Other disc jockeys who
started with Respondent on the all-night show advanced to
a better shift when a new man joined the staff and took
over the all-night show although the record does not
establish that Respondent invariably followed this
practice.
Aust was discharged at 11:15 p.m. on Monday, July 15,
a few minutes before he was to go on the air. Russell
made the decision to fire him and Jarvis executed it. No
reason was given to Aust, either then or later, for his
discharge. He had been late for work the preceding
Saturday. When Jarvis gave him his check and told him
his services were no longer required, Aust referred to that
fact, pointing out that Jarvis, too, had been late for work
on occasion. Jarvis replied, "That is none of your
concern."
Respondent contends that Aust was discharged for
consistently and deliberately failing to follow
Respondent's policies and format, attempting to substitute
his own concept of the kind of disc jockey he wanted to
be. He was discharged on July 15, despite advice of
counsel that an unfair labor practice charge might result,
rather than at some earlier or later time because that date
marked the end of his probationary period and, as Russell
testified, ". . . it would be necessary to take this action or
else everybody would think they could get away with
murder and do anything they wanted to and disregard
format entirely."
"The name Steve Curtis first appears on the schedule effective June 9,
where he is shown as a part-timer working a Sunday morning show only.
(I assume the Keating -Curtis discrepancy is another example of the real
name-stage name syndrome which plagues these cases .) On a schedule
effective July 14, Curtis is a full -timer whose hours are basically 6 p.m. to
midnight , and Aust is still listed as the all-night disc jockey.
117
Russell and Jarvis catalogued a long series of Aust's
failures and shortcomings, beginning soon after his hire
and ending only with the weekend preceding his discharge.
There is no point in detailing all their criticisms, for the
simple fact is that most, if not all, of them are true. Aust
admitted that he did not always follow to the letter
Respondent's rules with respect to newscasts, not
balancing content of the 55 newscasts as required, or
keeping his finger on the beeper a shade too long, or
going directly from a commercial into the news, or
miscuing the tape cartridges which contain portions of the
introduction and close to newscasts, or failing to keep a
serious tone even when recounting amusing stories. He
admitted that he misidentified KEWI on the air, giving,
instead, the call letters of another station. He did not
dispute that he did not adhere strictly to Respondent's
rule of one record out of this stack, followed by another
out of that stack, followed by another out of the third
stack but, rather, played the records placed in the control
room by Respondent in a different order. He denied that
he "screamed" on the air in the sense that the word was
used during the hearing although he admitted that he did
raise his voice and speak in the manner of "rock jocks,"10
another expression which assumed term-of-art stature
during the hearing.31 He admitted that he frequently failed
to prepare the civic calendar and poop sheet as he was
supposed to. He did not dispute that he talked longer
between records than a strict adherence to Respondent's
policy would dictate. He admitted that he was late for
work the Saturday night before his discharge. But other
announcers testified and Respondent conceded that all
announcers make all of these mistakes or commit all of
these transgressions at one time or another without any
dire consequences. And Respondent does not argue that it
discharged Aust for any particular one or more of these
incidents. Instead, it contends that the totality of Aust's
conduct, during the 3 months he worked for KEWI, added
up to a nondiscriminatory cause for discharge because it
evidenced an attitude of defiance of Respondent's policies
and substitution of Aust's.
The key to this aspect of the case lies in the word
attitude. Aust was the kind of disc jockey he was from the
time he was hired until he was fired. If anything, he
improved at least slightly during his tenure as he became
familiar with and adept at using Respondent's equipment.
Yet the shortcomings which Respondent would use to
justify his discharge after the strike were not so serious
before as to prevent Jarvis' responding to Aust's friendly
gesture of goodwill on May 17 with an assurance that
Aust was doing a good job on the air. The attitude that
changed after the strike was Respondent's, as evidenced
by Jarvis' remark to Aust on May 17 when contrasted
with his remark to Goldsich on June 12 that another
striker was getting what he deserved. I find, therefore,
that, regardless of how high the level of Russell's
exasperation with Aust as a disc jockey may have been on
July 15, but for Aust's participation in the May strike he
would not have been discharged. For the same reasons, I
also find that Respondent was similarly motivated when it
refused to transfer him to a more desirable shift when it
added new full time employees between the end of the
strike and July 15 who could have been assigned to the
all-night show. By refusing to transfer Aust and by
"Respondent denied vehemently that it operated a "rock -and-roll" radio
station and that the image it seeks to project has anything in common with
the mannerisms of disc jockeys featured on that kind of a station.
" I conclude this is a distinction without a difference.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging him for his union activities, Respondent
violated Section 8(a)(3) of the Act. Whitin Machine
Works, 100 NLRB 279.
3. Discharges of James Connors, Stanley Wall, and
Christopher Graham"
One of the things Respondent requires its disc jockeys
to do is to read "one-liners" on the air . One-liners are
brief promotional statements, for example, "This is Big
Kee Wee, let the good guys put you in the music seat."
They are kept on a circular spindle in the control room,
one one-liner to a 3 by 5 inch card. Disc jockeys are
supposed to read them in rotation, three or four each
hour, flipping over each card on the spindle as it is read
and reading the next card on top when one-liner time next
rolls around . In practice , prior to August 1, disc jockeys
sometimes picked and chose among the one-liners on the
spindle without any protest from Respondent. From time
to time, all of the one-liners were removed from the
spindle and replaced with a large new batch in order to
keep Respondent's promotional efforts fresh. In addition
to the one-liners on the spindle just prior to August 1,
there was, in the control room, taped to the glass wall
between the control room and the newsrooms' a set of
seven additional one-liners which read:
This is Big Kee Wee, the Kansas giant
This is Big Kee Wee, first in Topeka and getting
firster
This is Big Kee Wee, number one in Topeka
This is Big Kee Wee, Topeka's top sound
This is Big Kee Wee, on top of the heap
This is Big Kee Wee, the Kansas king
This is Big Kee Wee, the people's 1 choice
These one-liners were marked "Please Rotate." On special
occasions Respondent substitutes special one-liners for the
general promotional one-liners usually used . Prior to
August 1 no disc jockey ever refused to read a one-liner
placed in the control room by Respondent.
James Connors, Stanley Wall, and Christopher Graham
struck Respondent for a second time on August 1 in
protest of Respondent's refusal to recognize and bargain
with the Union. They returned to work on August 5.
On August I Jarvis removed=' the spindled one-liners
and replaced them with a new set which read:
This is Big Kee Wee, the fairest of them all
This is Big Kee Wee, the world's greatest radio
station
This is Big Kee Wee, and this is good guy (name of
announcer), I love big Kee Wee and I'm proud you
do too
This is Big Kee Wee, 1 and we still try harder
This is Big Kee Wee, I'm proud to be a part of the
world's greatest radio station
The new one-liners were lettered on a 5 by 8 inch card
which Jarvis placed next to the control room console. The
"There is no dispute about the facts in this section.
"Disc jockeys broadcast from the control room ; newsmen , from the
newsroom . The glass partition permits them to see each other in order to
coordinate their efforts.
Or covered ; the record is unclear
card also bears the notation "Use T.F. [til further notice?]
Please Rotate Evenly."
Jarvis testified his reason for replacing the one-liners on
August 1 was that ". . . we were getting ready to do
certain promotions in association with a period we had
coming up. This was to improve the image of the station,
number one, we are all good guys, we love our work, we
like our station and it is a great station, number one.
Number one, this is what we were trying to get across." I
do not credit Jarvis. I find, relying on the speed with
which he acted when Connors, Wall, and Graham began
picketing Respondent's studios on August 1, that Jarvis'
purpose was to counteract the adverse publicity
Respondent was receiving that some of its good guys were
telling the community, by their picket signs , that in their
opinion, "KEWI refuses to recognize and bargain with its
announcer employees in violation of the National Labor
Relations Act Topeka Association of Radio Announcers."
From August 5, when they abandoned their second
strike, until September 3 Connors, Wall, and Graham
refused to read the new one-liners on the air. They did so
on the advice of counsel that they had a Section 7 right
not to read material which made Respondent out to be a
good employer when their labor dispute demonstrated
their real view that Respondent was a bad employer. On
the stand, Connors, in response to a request that he read
the new one-liners as he would have read them on the air,
articulated their reasons for taking this position thus:
You have to smile and sound sincere, and say this is
Big Kee Wee, the best in the west, which sounds you
are completely sold on company policies, your
treatment of the company and you are really in love
with the company. After the fact we have been out on
strike once and newspaper articles had appeared, the
other radio stations had mentioned the fact on their
newscasts that we had been out on strike, the general
public knew about it and to us it appears to have to do
this, in fact, tells the people we really did not mean it
when we were on strike. We really love Big Kee Wee.
They [that is, the public] do not feel this is a job, you
are doing this just because you are forced to. The
public listens and accepts what they hear. They [that is,
all the new one- liners ] all do [that is, convey the same
message] , because of what they say and the way they
are used in this context.
Graham put it this way:
I felt that they reflected on my decision to join
TARA. They were trying to get me to say something
that quite literally I did not believe that would have
been the exact reversal of the reasons I went out on
strike.
Wall put it this way:
... because it is against what we have tried to strive
for, we have went on strike because of unfair labor
practices and the next day we come back and these
cards are up and they are requiring us to state over the
air to all those listening to KEWI to say they are
fairest of them all. And the same thing with these cards
that just came up, they are about the same, a few have
been deleted, thty are saying `the world's greatest radio
station' and I am not going to admit this.
Respondent soon became aware of the refusal to read
the new one-liners and the reason. In a memorandum
dated August 17 containing various criticisms of
Connors's work, Jarvis wrote:
MIDLAND BROADCASTERS , INC. 119
I've . . . also been listening to you quite frequently
this past week and have noticed in many hours of your
program you have failed to give the flip cards that I
have posted on the giant flip card . The hot clock=s
indicates that these should be read 3 times per hour and
they are to rotate there are 5 of them . All 5 of the one
liners are to [be] rotated by all jocks and will be read
as per hot clock . We all tend to forget once and awhile
but you have repeatedly ignored the flip cards on your
program.
Similar memoranda to Graham and Wall also dated
August 17 contain similar statements . Another
memorandum to Connors dated August 21 contains
another reference to failure to read the new one -liners.
On September 3, on advice of counsel and in order to
bring the dispute to a head , Respondent removed the
August I one-liners from the control room and replaced
them with four which read:
This is Big Kee Wee , the best in the West
This is Big Kee Wee, Number One, and we still try
harder
This is Big Kee Wee, the world ' s greatest radio
station
Hi, this is (name of announcer ) and I'm another good
guy from Big Kee Wee, the station that loves people,
and the station people love
The new one - liners were circulated to all announcers
with a memorandum from Russell dated August 30 which
reads:
Attached is a new series of station one-liners. Each
of these are to be read on the air once an hour during
your disc jockey shift.
Failure to do so will be an act of insubordination and
we will consider you to have terminated your
employment " with KEWI . All programs will be
regularly monitored to insure compliance.
We regret we find it necessary to take this stand.
Never in the history of this station has it been
necessary to issue such a memorandum concerning
programming policies and compliance therewith. It is
the result of one person 's refusal [a reference to
Connors] to follow instructions with regard to
one-liners which have been posted in the control room.
When Connors finished his afternoon show at 6 p.m. on
Tuesday , September 3, he noted on his log that he had not
read the one- liners . In addition , he scrawled on his copy
of the August 30 memorandum , "As I stated before. On
the advice of my lawyer I will refuse to read the flip
cards . Jim Connors" and turned it in too. Russell typed
on the top of the same piece of paper:
To: Jim Connors
From : Bob Russell
On the advice of our attorney , your failure to comply
constitutes clear cut insubordination . Thus , as noted in
this memo below, you have terminated your
employment effective 6 PM, Sept . 3, 1968.
/s/ Robert F . Russell
and returned it to Connors.
The next morning , at the opening of the hearing in this
case , the General Counsel amended the complaint to
allege the discriminatory discharge of Connors . Wall and
Graham both took the stand on September 5. Wall
testified that he had deliberately failed to read the
September 3 one -liners on his 10 a.m. to 2 p . m. show on
September 4. Counsel for Respondent stated that his
employment was terminated . Graham testified that, while
he had not yet appeared as a disc jockey since the
September 3 one -liners had been introduced , he planned
not to read them at the first opportunity , his disc jockey
show on Saturday , September 7. Counsel for Respondent
stated that if he did so, he too would terminate his
employment . The General Counsel indicated his intention
to move to amend the complaint at an appropriate time to
allege the discriminatory discharges of Wall and Graham.
I recessed the hearing for 2 weeks to give the situation
time to come to a head . Graham refused to read the
September 3 one- liners on September 7. He was
discharged on September 9.
Over the Labor Day weekend , August 31 through
September 2, Respondent placed in the control room a
special set of one-liners keyed to the theme of safe holiday
driving. Connors , Wall, and Graham read them on the air
without comment . During the period from August 5 until
the various discharges , each occasionally read one of the
one-liners on the card taped to the controlroom newsroom
partition which had been there prior to their August
strike.
During the hearing the General Counsel cited the
doctrine of constructive discharge as his theory with
respect to the discharges of Connors , Wall, and Graham.
However , his brief does not mention constructive
discharge and cites no cases. Instead , he argues this way:
In the analysis of this issue the fact that these disc
jockeys were personalities must be taken into
consideration . Their picketing had been publicized by
all the news media . If they then went on the air and
praised the Company those people listening to them
would feel that there really was no problem with the
Company and the purpose of the picketing would be
defeated . It must be taken into consideration that the
average person listening to the radio does not know a
disc jockey is required to read one - liners and most
probably thinks that disc jockeys make these slogans up
as they go along . The average person probably feels
that this is a sincere expression of opinion.'
The narrow issue presented by the discharges of
Connors , Wall, and Graham is whether radio announcers
have a right under the Act to refuse to read on the air
words which their employer insists that they read on the
ground that the words publicize the employer 's side of a
labor dispute to the detriment of their own . Any analysis
of that issue must start with the nature of a radio
announcer 's job.
While he is on the air a radio announcer ' s only function
is to broadcast sounds which his employer wants on the
air. Whether he is reading a commercial, a public service
announcement or a promotional one-liner , activating a
"A diagram , in the form of a clock face , in the control room which tells
disc jockeys in which quarter -hour segment of each hour regularly
recurring program items such as news and one-liners are to be read.
"Counsel for Respondent would make an issue out of whether Connors,
Wall and Graham were discharged or quit. I think this is another
distinction without a difference and find that they were discharged.
"For purposes of my analysis I have considered General Counsel's
conclusions as if they are facts, even though the record contains no
evidence on the points and I do not consider this a subject as to which I
may take judicial notice No criticism of General Counsel is intended by
this comment . What the average person knows or thinks about radio disc
jockeys , if, indeed , he knows or thinks anything , are matters incapable of
proof within the scope of a Labor Board hearing.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tape recording of a newscast lead-in or conclusion, playing
the latest rock-and-roll record, or a simply ad libbing
words off the top of his head, the final decision as to
whether the sounds he has sent out are acceptable is his
employer's and not his. In this respect, the announcers in
this case must be distinguished from employees on other
jobs. If a trucking firm bought air time and made a
dissident driver read a statement that the firm does not
commit unfair labor practices, a violation would be clear
because what the firm was forcing its employee to do,
even though part of its Section 8(c) right to get its side of
the labor dispute before the public, is totally unrelated to
the driver's regular duties. Here, if Respondent's dispute
had been with its engineers rather than its announcers and
it had insisted engineers read on the air a statement that
Respondent does not commit unfair labor practices as the
price of saving their jobs, the same conclusion would
obtain. But Connors, Wall, and Graham are not
truckdrivers or engineers. They are radio announcers, and
their job, day in and day out, labor dispute or no labor
dispute, is to put Respondent's words, not their own, on
the air. Therefore, I begin by concluding that the doctrine
of constructive discharge has no relevance to the issue
presented here. Respondent did not move Connors, Wall,
and Graham from the comfortable, pleasant control room
in which they had always worked to a hellhole. It did not
remove their familiar equipment and substitute strange or
dilapidated tools for them to work with. It did not take
them off the air and hand them brooms. All it did was
insist that they do what they had always done, read
Respondent's words on the air." Consequently, in my
view, General Counsel can only prevail on this issue if the
words Respondent furnished are so directly related to the
labor dispute and so unrelated to Respondent's general
purpose of promoting its business that it can reasonably
be said that the announcers' Section 7 rights have been
violated in a manner and to an extent which outweighs
Respondent's Section 8(c) right to state its case to the
public. A flat statement that Respondent does not commit
unfair labor practices or something equally bald and
unambiguous would, I think, tip the scales in the General
Counsel's favor. This leads me, perforce, to determine
whether the words which Respondent did insist Connors,
Wall, and Graham read were so unrelated to one-liners
which they read when there was no labor dispute as to
consitute an unreasonable attempt by Respondent to force
them to undermine their own rights.
Respondent introduced into evidence all the one-liners
which had been used on the control room spindle in the
year preceding the hearing. I do not consider it necessary
to reproduce in this decision the words appearing on 352
cards measuring 3 by 5 inches. A few one-liners in this
group, selected at random, are:
This is ever newer KEWI, where you get service with a
dial
This is Big Kee Wee, as much fun as being awake
This is Big Kee Wee, no money down, years to play
This is Big Kee Wee, better than crackerjacks, Kee Wee
has a new surprise every day
"Jarvis issued a memorandum in June or July that all news items
concerning unions must be cleared with him before being put on the av.
There is no evidence that any announcer ever objected. Apparently the
General Counsel does not claim that Respondent did not have a right to
control the content of its programming in this respect.
This is Big Kee Wee, with the secret that unlocks the
flavor
Among the pre-August 1 flip cards appears one of the
slogans objected to by Connors, Wall, and Graham,
namely:
This is Big Kee Wee, number one and we still try
harder
The good guys theme recurs over and over, as, for
example, in:
This is Big Kee Wee, let the good guys put you in the
music seat
This is Big Kee Wee, the wonderful world of the good
guys
Others paraphrase the ideas in some of the post-August l
one-liners although the actual words are different, for
example:
This is Big Kee Wee, the Mid-West's friendly giant
As a group they tend to run to puns and parodies on
popular sayings as a slogans similar to the allusion to the
objected to, "This is Big Kee Wee, the fairest of them all"
makes to the evil Queen's "Mirror, mirror on the wall,
who's the fairest one of all?" in Snow White.
There is, I find, a slight difference between the
pre-August 1 one-liners, considered as a group, and the
post. The ones which Connors, Wall, and Graham refused
to read make slightly more directly and forcefully the
point that the speaker loves and is happy with Big Kee
Wee. However, the distinction is so fine and so subtle that
it has no significance since, I conclude, the post-August 1
one-liners fall far short of the sort of direct and
unambiguous statement that "We do not, either, commit
unfair labor practices, regardless of what those pickets are
trying to tell you, dear public," required to outweigh
Respondent's Section 8(c) rights.
Finally, I further find that Respondent did not resort to
the dispute over the one-liners as a pretext to mask
discharges really motivated by Connors', Wall's, and
Graham's union activities. I disagree with the General
Counsel statement that "What Respondent did [when it
issued the August 30 memorandum] was to set up the
Union members with a choice of either saying to the
public that they didn't really mean that the Company was
unfair when they picketed or refusing to do so and thereby
terminating their employment." I find, rather, that
Respondent changed the one-liners on August 1 for the
legitimate purpose of countering the Union's picketing
and that the situation escalated step by step thereafter
with no intention on Respondent's part of forcing
Conn,)rs, Wall, and Graham to quit. I am especially
persuaded to this conclusion by the fact that Respondent
removed from the list of one-liners it insisted on at the
ultimatum stage "This is Big Kee Wee, the fairest of them
all," the only one-liner which contains a word -
"Fairest" - close to an expression - "unfair labor
practice" - of significance in the labor dispute between
Respondent and the Union. I interpret this omission as
part of a deliberate and reasonable effort on Respondent's
part to give Connors, Wall, and Graham one last chance
to back down without compromising Respondent's right
to control its own programming.
For the reasons stated, I find that Respondent
discharged Connors, Wall, and Graham, not because of
their union activities, but because of their insubordination
in refusing to perform a part of their normal duties which
MIDLAND BROADCASTERS , INC. 121
Respondent had a legal right to insist they perform. They
had a right to strike, a right they invoked twice during
their extended confrontation with Respondent. They had
no right to engage in a partial strike. Riviera
Manufacturing Co., 167 NLRB No. 103; John S. Barnes
Corp., 165 NLRB No. 58; Stop & Shop, Inc., 161 NLRB
75. Cf. Uniform Rental Service, Inc., 161 NLRB 187;
Ador Corporation, 161 NLRB 1042.
D. The 8(ayS) Allegations
I have found in section A above that all the
prerequisites to bargaining were present on May 10 when
the announcers met with Russell. I have found in sections
B and C above that Respondent thereafter committed
serious and substantial unfair labor practices. I now find,
relying on the evidence which establishes the unfair labor
practices, that Respondent engaged in such a course of
conduct in order to gain time to undermine the Union by
dissipating its majority and in complete rejection of the
principle of collective bargaining. I further find that, at no
time, did Respondent have a good faith doubt as to the
Union's majority or the appropriateness of the unit in
which it sought recognition. Respondent has, therefore,
violated Section 8(a)(5) of the Act. Joy Silk Mills, Inc.,
85 NLRB 1263, enfd. as modified 185 F.2d 732
(C.A.D.C.), cert. denied 341 U.S. 914; Gibson Products
Company, 172 NLRB No. 243 ; Bauman Chevrolet, Inc.,
173 NLRB No. 781. Cf. J. C. Penney Company, 172
NLRB No. 82; Merritt Packing and Crating Service, Inc.,
172 NLRB No. 202; Fashion Fair, Inc., 173 NLRB No.
28.
Since Respondent was under a duty to bargain with the
Union at the times the various events occurred, it follows
that Respondent also refused to bargain when,
unilaterally, it changed the terms and conditions of its
employees' employment by depriving Christopher Graham
of use of the news car from May 20 until mid-July, by
cancelling Stanley Wall's privileges of eating his lunch in
the disc jockeys' lounge and having his wife with him in
the studio on Sunday afternoons, and by assigning
Graham and James Connors to less desirable shifts on
June 9. 1 find that Respondent also violated Section
8(a)(5) in each of these instances.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact, and on the entire
record in these cases , I make the following conclusions of
law:
1. Midland Broadcasters, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Topeka Association of Radio Announcers is a labor
organization within the meaning of Section 2 (5) of the
Act.
3. All employees who regularly or frequently appear
before the microphone at Respondent 's radio station
KEWI in Topeka , Kansas , including disc jockeys and
newsmen , but excluding engineers , production
programmers, salesmen , office-clerical employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times on and after May 10 , 1968, the Union
has been and presently is the representative for the
purposes of collective bargaining of the employees in the
unit described above and, by virtue of Section 9(a) of the
Act, has been and now is the exclusive representative of
all the employees in said unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of
employment, or other terms and conditions of
employment.
5. By refusing on or about May 10, 1968, and at all
times thereafter, to bargain collectively with the Union in
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, of the
employees in the unit described above; and by unilaterally
changing the terms and conditions of employment of
Christopher Graham on or about May 20, 1968, Stanley
Wall on or about May 21, 1968, and on or about May 26,
1968, and Christopher Graham and James Connors on or
about June 9, 1968, Respondent has refused to bargain
with the above-named labor organization and thereby has
violated Section 8(a)(5) and (1) of the Act.
6. By failing to return the news car to Crhistopher
Graham on or about May 20, 1968; by cancelling Stanely
Wall's privileges of eating his lunch in the disc jockeys'
lounge on or about May 21, 1968, and of having his wife
with him in the studio on Sunday afternoons on or about
May 26, 1968; by transferring Christopher Graham and
James Connors to less desireable shifts on or about June
9, 1968; by refusing to transfer Gregory Aust on various
dates in June and July, 1968; and by discharging Gregory
Aust on or about July 15, 1968, all because of the union
activities of the employees named, Respondent has
discriminated with respect to their hire and tenure of
employment, discouraging membership in the
above-named labor organization, and thereby has violated
Sections 8(a)(3) and 8(a)(1) of the Act.
7. By interrogating its employees about their union
activities, by threatening them with loss of economic
benefits if they persisted in such activities, and by
promising them economic benefits if they refrained from
such activities, Respondent has interefered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed to them by Section 7 of the Act and
thereby has violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Respondent has not committed unfair labor practices
by requesting that an employee obtain for it a copy of a
statement furnished by him to a National Labor Relations
Board investigator in support of a charge filed by
Respondent against the above-named labor organization
or by discharging James Connors on or about September
3, 1968, Stanley Wall on or about September 5, 1968, and
Christopher Graham on or about September 9, 19 68.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent has discriminated against
Gregory Aust. Therefore, I will recommend, not only that
Respondent offer him reinstatement to the position that
he formerly held, namely, that of a disc jockey, but that it
also assign him to a show other than the all-night show. I
will also recommend that Respondent make Aust whole
for any loss of earnings he may have suffered as a result
of his discharge by paying to him a sum of money equal
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to that which he normally would have earned as wages
from July 15, 1968, to the date of Respondent's offer of
reinstatement , less his net earnings during such period,
with backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. Since James Connors, Stanley Wall, and
Christopher Graham are no longer employees of
Respondent , I will not recommend that Respondent take
any steps to remedy the various discriminations practiced
against them.
I will also recommend that Respondent bargain, upon
request, with the Union in respect to the rates of pay,
wages , hours of employment, and other terms and
conditions of employment of its announcers. Since
Connors, Wall, and Graham are no longer employees of
Respondent , I will not recommend that Respondent take
any steps to revoke the changes it unilaterally made in the
terms and conditions of their employment.
Since the unfair labor practices which Respondent has
committed are flagrant and exhibit a deliberate purpose to
thwart the rights of its employees, I will recommend that
it cease and desist from interfering with those rights in
any manner.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following Recommended
Order:
Midland Broadcasters , Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
activities.
(b) Threatening its employees with loss of economic
benefits if they persist in their union activities.
(c) Promising their employees economic benefits if they
refrain from union activities.
(d) Discriminating against its employees by discharging
them or by changing the terms and conditions of their
employment in order to discourage memberhsip in the
Topeka Association of Radio Announcers or any other
labor organization.
(e) Refusing to recognize and bargain with the Topeka
Association of Radio Announcers as the exclusive
representative of its employees in the unit found
appropriate herein.
(f) Unilaterally changing the terms and conditions of
employment of its employees in the unit found appropriate
herein without bargaining with the Topeka Association of
Radio Announcers as the exclusive representative of the
employees in that unit.
(g) In any manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Gregory Aust immediate and full
reinstatement to his former position as a disc jockey, or to
a position substantially equivalent thereto in that it utilizes
his services as a radio announcer , and assign him to a
show or duties other than the all-night disc jockey show,
without prejudice to any seniority or other rights and
privileges enjoyed; also, make him whole for any loss of
pay suffered as a result of Respondent's discrimination
against him in the manner set forth above under "The
Remedy."
(b) Notify Gregory Aust if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
records, social security payment records, timecards,
personnel records and reports, as well as all other records
necessary to analyze and compute the amount of backpay
due under the terms of this Recommended Order.
(d) Upon request, bargain collective with the Topeka
Association of Radio Announcers with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment of the employees in the
appropriate unit described above under "Conclusions of
Law" and, if an understanding is reached, embody such
understanding in a signed agreement.
(e) Post at its studio and transmitter in or near Topeka,
Kansas, copies of the notice attached marked
"Appendix."" Copies of such notice, on forms to be
provided by the Regional Director for Region 17, after
being duly signed by an authorized representative of
Respondent, shall be posted 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 placed.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.70
I further recommend that the complaints in these cases
be dismissed insofar as they allege that Respondent has
committed unfair labor practices by Robert F. Russell's
interrogation of employees on or about May 21, June 1,
and June 13, and by discharging James Connors on or
about September 3, 1968, Stanley Wall on or about
September 5, 1968, and Christopher Graham on or about
September 9, 1968.
"In the event that the Recommended Order'is adopted by the Board, the
words "This notice is posted by order of the National Labor Relations
Board after a trial at which all sides had the chance to give evidence, the
National Labor Relations Board found that we , Midland Broadcasters,
Inc., violated the National Labor Relations Act, and ordered us to post
this notice." shall be substituted for the words "Pursuant to the
Recommended Order of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that ," in the notice In the
further event that the Board's Order is enforced by a decree of the United
States Court of Appeals , the words "this notice is posted by order of the
United States Court of Appeals" shall be substituted for the words "This
notice is posted by order of the National Labor Relations Board."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read , "Notify the Regional Director for
Region 17 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
MIDLAND BROADCASTERS , INC. 123
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
The Act gives all employees these rights:
To engage in self-organization
To form, join , or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT ask you whether you are a member of,
or are helping , TOPEKA ASSOCIATION OF
RADIO ANNOUNCERS, or any other union.
WE WILL NOT threaten you with loss of your job or
any benefits you now enjoy as our employee if you
become a member of, or help , TOPEKA
ASSOCIATION OF RADIO ANNOUNCERS, or
any other union.
WE WILL NOT promise to reward you in any way if
you refrain from becoming a member of, or helping,
TOPEKA ASSOCIATION OF RADIO
ANNOUNCERS , or any other union.
WE WILL immediately offer to reinstate Gregory
Aust to his former position as one of our announcers
on a show other than the all-night disc jockey show
without any change in the seniority or other privileges
he enjoyed before we discharged him and we will pay to
him any money he lost as a result of our discrimination
against him with interest at 6 percent.
WE WILL recognize Topeka Association of Radio
Announcers as the only collective-bargaining
representative of our employees in the bargaining unit
which is:
All employees who regularly or frequently appear
before the microphone at our radio station KEWI in
Topeka, Kansas , including disc jockeys and newsmen,
but excluding engineers, production programmers,
salesmen , office clerical employees , guards, and
supervisors as defined in the Act.
WE WILL bargain, on request , with Topeka
Association of Radio Announcers on wages , hours and
conditions of employment , and any agreement we reach
will be put in writing and signed.
Dated By
MIDLAND BROADCASTERS,
INC.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 610 Federal
Building , 601 East 12th Street, Kansas City , Missouri
64106 , Telephone 816-374-5181.