Midland Broadcasting Co.

National Labor Relations Board - Board Decisions

Feb 27, 1951

93 N.L.R.B. 455 (N.L.R.B. 1951)

MIDLAND BROADCASTING COMPANY 455
MIDLAND BROADCASTING COMPANY and AMERICAN FEDERATION OF RADIO
ARTISTS, KANSAS CITY LOCAL, A. F. OF L. Case No. 17-CA-17.
February 07, 1951
Decision and Order
On February 8, 1950, Trial Examiner Myers D. Campbell, Jr.,
issued his Intermediate Report in the above-entitled case, copy of
which is attached, finding that the Respondent had not engaged in
any of the unfair labor practices alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety. The General
Counsel and American Federation of Radio Artists, A. F. of L., filed
exceptions to the Intermediate Report together with supporting briefs.
The Respondent filed a brief and reply brief in support of the Inter-
mediate Report.
All parties participated in oral argument before the Board on
September 8, 1950.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the briefs and exceptions, the contentions advanced at
oral arguments, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications :
1. The General Counsel and the Union contend that the Respondent
violated Section 8 (a) (5) and (1) of the Act by executing and con-
tinuing in effect individual or "talent" contracts with its staff actors
and singers, notwithstanding that the Union was the exclusive bar-
gaining agent of such artists. In agreeing with the Trial Examiner's-
finding that the Respondent did not violate the Act in this respect, we
are particularly persuaded by the following considerations :
Section 6 of the 1946 and 1948 contracts between the Union and
the Respondent covering its staff artists expressly authorized direct
negotiations between the Respondent and the artists.' The Union and
our dissenting colleagues do not question the fact that, under the spe-
cial circumstances present in this industry, these individual bargaining
1 Section 6 of the 1946 and 1948 union contracts reads as follows :
. . . The Company agrees that no staff artist will be employed or engaged at Station
KMBC upon terms and conditions less favorable to the staff artist than those set forth
in Schedule I. . . . The Company further agrees that nothing in this contract shall
be deemed to prevent any staff artist from negotiating for or obtaining better terms
than the minimum terms provided herein . . . . ( 1946 contract )
The Company agrees that no full -time staff artist will be employed . . . upon terms
and conditions less favorable to the full -time staff artist than those contained in this
contract and Schedule I . . . and that the Company further agrees that nothing in
this contract shall be deemed to prevent any full-time staff artist from negotiating
for or obtaining better terms than the minimum terms provided herein. (1948
contract.)
93 NLRB No. 65.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions were themselves consistent with the Respondent's bargain-
ing obligations under the Act.
They are expressly limited, however, to the negotiation of better
terms than those contained in the union contracts. Relying on this
authorization, the Respondent negotiated individual, or "talent," con-
tracts with its artists. Generally speaking, these talent contracts
differed from the union contracts in that they afforded the artist an
opportunity to earn a bonus over and above the minimum rates of pay
guaranteed by the union contracts, but at the same time imposed cer-
tain restrictions on the artist, designed in general to assure that the
Respondent would receive the exclusive benefit of its investment in
the artist.
The General Counsel contends, however, that certain provisions of
the talent contracts are less favorable than the union contracts, and
that in negotiating and continuing such provisions in effect the Re-
spondent has therefore exceeded the scope of its authority to negotiate
directly with individual artists for better terms, thereby violating
Section 8 (a) (5) and (1) of the Act. We do not agree that the
present record supports that contention.
Among the provisions of the talent contracts claimed to be less
favorable are those relating to the artists' compensation. However,
we agree with the Trial Examiner that the talent contracts, as admin-
istered by the Respondent, have not had the effect of reducing any
artist's pay below the union minimum.
The General Counsel contends further that the talent contracts are
less favorable in that they impose certain restrictions on the artist's
freedom to sell his services on the open market, both during his em-
ployment by the Respondent and for some time thereafter. Assuming
that these restrictions are in derogation of the provisions of the union
contracts, we nevertheless find that the General Counsel has not estab-
lished by the preponderance of the evidence that, in negotiating or
maintaining the talent contracts in effect, the Respondent exceeded
the scope of its authority under Section 6 of the union contracts to
bargain directly with its artists with respect to better or more favorable
terms than those contained in the union contracts. ,
It is not sufficient, in our opinion, to show that a particular provision
of the talent contracts, taken by itself, is less favorable than a particu-
lar term of the union contract. The talent contracts are self-con-
tained, collateral agreements, conferring certain benefits upon the
artists'in the form of a bonus arrangement, in consideration for which
the artists accept certain responsibilities and restrictions. If we were
to strike down the burdensome provisions and leave only the bonus
provisions of the talent contracts in effect, we would be making a new
and different contract for the parties. That is not the function of
this Board.
MIDLAND BROADCASTING COMPANY 457
It is not without significance that while the union contract estab-
lished grievance machinery, it does not appear from the record that
the question whether the talent contracts are less favorable than the
union contracts has been taken up by the Union, or by any artist, as
a grievance. This is not the sort of controversy which Congress
established this Board to consider or decide.2
We find, therefore, in agreement with the Trial Examiner, that the
Respondent did not violate the Act by negotiating the talent contracts
or by continuing them in effect.
2. We agree with the Examiner's finding that during the 1948 con-
tract negotiations there was no refusal by the Respondent to bargain
concerning changes in the talent contracts. We rely, however, solely
on the following considerations :
The Union does not contend that the Respondent refused during
the 1948 contract negotiations to discuss the changes in the talent
contracts; in fact, the Union asserts that the Respondent agreed
orally during those negotiations to make certain changes in the talent
contracts. The gravamen of the Union's case on this point is simply
that the Respondent refused to put into effect the changes to which
it had allegedly orally agreed . Assuming that there was such refusal
by the Respondent to effectuate an oral agreement, that fact alone
would not be sufficient evidence of a refusal to bargain. Section 8
(d) of the Act defines the obligation to bargain collectively as includ-
ing the "execution of a written agreement incorporating any agree-
ment reached if requested by either party" (emphasis supplied).
Here there is no evidence that the Union requested the Respondent to
reduce the oral agreement to writing.
3. The General Counsel contends that the Respondent , during the
term of the 1948 contract, unlawfully refused to bargain with the
Union concerning changes in the provisions of the talent contracts.
The Trial Examiner made no specific finding on this point.
The record shows that during April 1949, Union Representative
Roberts requested a meeting with the Respondent to discuss terms of
employment allegedly not covered by the union contract, referring
specifically to the provisions of the talent contracts. On April 25,
the Respondent, while maintaining that the Union's request was
"improper" and "contrary to the express provisions of our existing
agreements," agreed to meet for the purpose of explaining its position,
and the parties met on April 27.
The only evidence in the record as to what occurred at the April 27
meeting is contained in a letter of May 9, 1949, from the Union to
the Respondent , in which it is alleged that after the Union stated its
demands for changes in the talent contracts , the Respondent suggested
2 Consolidated Aircraft Corporation, 47 NLRB 694.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another conference. We cannot, however, consider such self-serving
statements in a letter by the Union as competent evidence of what
occurred at the April 27 meeting. Absent any competent evidence
to the contrary, we will not infer that the Respondent, even assuming
that it was required to do so at all, did not bargain in good faith on
that occasion. We find, therefore, that it has not been established
by the preponderance of the evidence that the Respondent unlawfully
refused to bargain with the Union during the term of the 1948 contract
concerning changes in the talent contracts .8
4. We agree with the Trial Examiner's finding that the discharge
of Durkin was not due to union activity but to his frequent references
to Respondent's management and policies in profane and abusive
terms, and that his discharge was therefore not in violation of the Act.
It is clear from the record that such references were made by Durkin,
not only in connection with the discussion of grievances, but also on
other occasions, and that they occurred, on at least one occasion, in
the artists' lounge, which was open to the public.
We are accordingly not required to decide in this case whether
Section 8 (a) (3) would be violated by the discharge of an employee
for using offensive language of the sort that Durkin indulged in, where
such language is used only in connection with the presentation of
grievances or other concerted activities.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that° the complaint in this case against the
Respondent, Midland Broadcasting Company, be and it hereby is,
dismissed.
MEMBERS HOUSTON and STYLES, dissenting in part :
We disagree with the decision of the majority of the Board in this
case insofar as it finds that the Respondent did not violate Section 8
(a) (5) of the Act by negotiating, executing, and continuing in effect
certain provisions of its individual contracts with its staff artists at
a time when the Union was the acknowledged statutory bargaining
representative of such artists. It is well settled that the statutory
representative has the exclusive right to bargain for the employees
it represents, and that any direct negotiations between an employer
I In view of this finding , it is not necessary for us to consider whether the Union's
proposed changes in the talent contracts constituted modifications in the terms of the
existing union contract within the meaning of Section 8 (d) of the Act, which provides that
the duty to bargain collectively "shall not be construed as requiring either party to discuss
or agree to any modification of the terms and conditions contained in a contract for a
fixed period. . . .
MIDLAND BROADCASTING COMPANY 459
and such employees is in derogation of that right, and hence violative
,of Section 8 (a) (5).'
The Respondent contends, however, that various provisions in its
1946 and 1948 contracts with the Union authorized the Respondent
to negotiate and execute all the provisions of such individual "talent"
contracts.
The Respondent relies principally on the following language of
Section 6 of the 1946 and 1948 union contracts :
... The Company agrees that no staff artist will be employed
or engaged at Station KMBC upon terms and conditions less f a-
vorable to the staff artist than those set forth in Schedule I... .
The Company further agrees that nothing in this contract shall
be deemed to prevent any staff artist from negotiating for or
obtaining better terms than the minimum terms provided
herein. . . . (1946 contract.)
... The Company agrees that no full-time staff artist will be
employed . . . upon terms and conditions less favorable to the
full-time staff artist than those contained in this contract and
schedule I . . . and the Company further agrees that nothing
in this contract shall be deemed to prevent any full-time staff
artist from negotiating for or obtaining better terms than the
minimum terms provided herein. (1948 contract.)
We construe these provisions as permitting the Respondent to
negotiate and execute contracts with individual artists, but only insofar
as they (1) relate to matters covered by the union contracts, and (2)
provide terms more favorable than those contained in the union con-
tracts. Under this view, negotiations by the Respondent with indi-
vidual artists were not authorized by the union contracts if (1) they
did not relate to matters covered by such contracts, or (2) they did
relate to such matters, but involved terms not more favorable to the
artist than the terms contained in such contracts.
Such a view not only accords with our settled policy of construing
strictly any waiver by a union of its rights under the Act," but also
constitutes the most reasonable interpretation of the meaning of the
foregoing quoted provisions. There can be no question that such
provisions did not authorize the negotiation of an individual contract
provision which, while relating to a matter covered by the union
contract-such as wages-was not more favorable than the terms of
the union contract. The union contracts are unequivocal on this point.
As to matters not covered by the union contracts-e. g., the artists's
property right in his own compositions, his right to seek other em-
ployment after leaving Respondent's employ-there was no warrant
4 J. I Case Co v. N L. R. B , 321 U. S 332 ; Medo Photo Supply Corp. v. N. L. R. B., 321
U. S. 678. See Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321
U. S. 342.
0 Tide Water Associated Oil Company, 85 NLRB 1096.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the union contracts for any negotiations whatsoever on these sub-
jects. The Union had consented only to the negotiation of "more
favorable" terms than those contained in the union contracts. This
test necessarily implied in our opinion that the negotiations must re-
late to matters which were susceptible of comparison with some term
of the union contracts; otherwise, the requirement that the terms
negotiated with individuals be more favorable than the collectively
bargained terms would be meaningless. Clearly, it would be impos-
sible to determine whether a provision in a talent contract which had
no counterpart in the union contracts was,more favorable than any-
thing in the union contracts. Consequently,, it is clear that the only
way to give effect to the "more favorable" test in the union contracts
is to construe those contracts as permitting individual bargaining
only with respect to matters covered by the union contracts, and as
to those matters, as already stated, the bargaining must be limited to
terms more favorable than those contained in the union contracts.
Under the circumstances of this case, we believe that the Union
might, if it wished, effectively waive its exclusive bargaining rights
to the limited extent indicated in Section 6 of its contracts with the
Respondent,e and that the Respondent was free, within those limits,
to bargain directly with individual artists. However, we find that
the Respondent exceeded those limits by bargaining for, and incorpo-
rating in the talent contracts, provisions which were either less favor-
able than comparable provisions in the union contract " or which
related to matters outside the scope of such contracts.'
J I Case Co, supra. Oi der of Railroad Telegraphers v Railway Express Agency,
Inc, supra Consent by the Union in its contracts to individual bargaining for better
terms than those provided by the union contracts presumably reflects recognition by the
Union of the gieat differences in the earning power of radio aitists In J I Case, the
court said
Of course. when theio is great variation in circumstances of employment or capacity
of eniplovees, it is possible for the collective bargain to prescribe only minimum rates
or maximum hours or expressly to leave certain areas open to individual bargaining.
(321 U S at p. 338 )
4 Illustrative of this type of provision are the following
(1) Under some of tin. talent contracts the aitists are required to work 40 hours for
the same pay as the uriou contract provides for a 28-hour week, with less tavorable
overtire rates than those fixed by the union contracts. In most of the talent contracts
there is no limitation on the Rorkweek and no provision for overtime.
(2) The union contract grievance procedure provides for arbitration of disputes by
arbitrators selected and paid jointly by the Union and the Respondent. Paragraph 10
of the talent contracts provides that disputes as to the determination of an artist's
bonus are to be determined by a public accountant selected by the Respondent and paid
by the artist
8 Illustrative of this type of provision ate the foiloiimg
(1) Paragraph 15 of the talent contract prohibits the artists from accepting other
employment during the term of the contract, and from working within a radius of 150
miles from Kansas City, Missouri, for a period of 12 months after leaving the Respond-
ent's employ. In at least one case, the Respondent brought injunction proceedings against
one of its artists to enforce this restriction.
(2) Under paragiaphs 4 and 5 of the talent contracts any material composed by the
artists ahile in the Respondent's employ becomes the property of the Respondent.
(3) Paragraph 3 of the talent contract recognizes the Respondent's right to assign
fictitious air names to the artists The union contracts, while acknowledging the Re-
spondent's pioperty right in all air names used by its employees, do not grant the Respond-
ent the right to assign fictitious air names to its artists.
MIDLAND, BROADCASTING COMPANY 461
4
The majority holds further that it is not sufficient to show that
certain provisions of the talent contracts may be less favorable to the
artists than corresponding provisions of the union contracts, be-
cause the contracts also confer certain benefits upon the artists. We
know of no basis for this view. The union contracts forbid the nego-
tiation of less favorable "terms and conditions" of employment, and
authorize the negotiation of better "terms," than the union minimum.
Under this language, the negotiation of any "term" of employment,
which was not more favorable than the union minimum would violate
the union contracts.
In the parlance of labor relations each distinct provision of an
employment contract is a term of employment. Thus, when a con-
tract embodies a number of clauses, one relating to wages, another to
hours, a third to seniority, etc., each such clause is deemed to be a
term of the employment relation .9
We believe therefore that, in drafting section 6 of the union con-
tracts, the parties intended to preclude the negotiation of any pro-
vision which, in itself, was not more favorable to the artist than the
union contracts, and did not intend to permit the negotiation of such
a provision upon the condition that the Respondent simultaneously
agreed with the individual artists on other provisions, the sum of
which was more favorable to the artists than the union contracts.
And, unlike the majority, we can attach no significance to the fact
that no grievance may have been filed under the union contract on
the issuance of whether the talent contracts are less favorable than the
union contracts.10
We would find, therefore, that the Respondent violated its statutory
duty to bargain with the majority representative by negotiating
provisions in the talent contracts which were less favorable than the
union contracts. Contrary to the assumption of the majority, such a
finding would not require that we engage in the function of rewriting
the, talent contracts for the parties. Our order need merely direct
the Respondent to cease and desist from engaging in the conduct
found to be unlawful and to bargain with the Union on the inclu-
sion in future talent contracts of provisions not authorized by the
existing union contract 11
Intermediate Report
Margaret L. Fassig, and Martin Sacks, Esgs., of Kansas City, Mo., for the
General Counsel.
9 See the language of Section 8 (d) of the Act, which refers to collective bargaining "with
respect to wages, hours, and other terms and conditions of employment." [Emphasis
supplied.]
10 The power of the Board to prevent unfair labor practices "shall not be affected by any
other means of adjustment or prevention that has been or may be established by agreement,
law, or otherwise." Section 10 (a) of the Act.
" See, e g, Central Metallic Casket Co., 91 NLRB 572.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oscar S. Brewer, Charles F. Lamkin, Jr., and Dupuy G. Warrick, Esqs., of
Kansas City, Mo., for the Respondent.
John J. Manning, Esq., and Don Roberts, of Kansas City, Mo., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed December 29, 1947, by American Federation
of Radio Artists, A. F. of L., herein called the Union, the General Counsel of the
National Labor Relation Board, herein respectively called the General Counsel
and the Board, by the Regional Director for the Seventeenth Region (Kansas
City, Missouri), issued a complaint, dated June 28, 1949, against the Midland
Broadcasting Company, herein called the Respondent. The complaint alleged
that the Respondent had engaged in, and is engaging in, unfair labor practices
affecting commerce, within the meaning of Section 8 (a) (1), (3), and (5)
and Section 2 (6) and (7) of the Labor Managament Relations Act of 1947,
61 Stat. 136, herein called the Act. Copies of the complaint, the amended charge,
and the notice of hearing thereon were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that the Respondent discharged Sherwood Durkin on or about December 18,
1947, and thereafter failed and refused to reinstate him for the reason that he
joined or assisted the Union, the American Guild of Variety Artists, A. F. of L.,
or engaged in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection; (2) that at all times material hereto and prior
to August 19, 1948, the Respondent interferred with, restrained, and coerced
its employees by (a) entering into, modifying, and continuing in effect individual
employment contracts with its employees who are in the collective bargaining
unit; (b) entering into, modifying, and continuing the individual employment
contracts during the period of time that the Union has been the exclusive
bargaining representative of the employees in the bargaining unit; (c) estab-
lishment of terms and conditions of employment in conflict with, dissimilar to,
and less favorable to employees than those established by the collective bargain-
ing agreements between the Union and the Respondent covering the employees
in the said unit ; (d) entering into, renewing, or continuing in effect the in-
dividual employment contracts without giving the Union an opportunity to be
present at the time thereof; (e) entering into, renewing, or continuing in effect
said contracts by bargaining directly and individually with its employees, con-
cerning rates of pay, wages, hours of employment and/or other conditions of
employment; (f) unilaterally modified terms and conditions of employment of
employees in the said unit by the assignment of fictitious names without consult-
ing the Union; (3) that, the Respondent refused to bargain in good faith with
the Union concerning all terms and conditions of employment of special program
announcers, by refusing to discuss and reduce to writing any terms or conditions
of employment, other than wages and union security, concerning said special
program announcers; and (4) that the Respondent, by acts described above,
violated Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act.
The Respondent duly answered and admitted certain jurisdictional facts and
that the Union had been designated as bargaining representative of its em-
ployees in an appropriate unit, but denied it had refused to bargain with the
Union, or that it had engaged in any unfair labor practices. Respondent also
set forth in its answer specific affirmative defenses germane to the allegations
set forth in the complaint.
Pursuant to notice, a hearing was held in Kansas City, Missouri, from July
11 to 20, 1949, inclusive, before the undersigned Trial Examiner, duly designated
MIDLAND, BROADCASTING COMPANY 463
by the Chief Trial Examiner. The General Counsel, the Respondent, and the
Union were represented by counsel and participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. At the close of the General
Counsel's case, the Respondent filed formal motions to strike certain testimony
and documentary evidence, and to dismiss the complaint, and orally argued
the motion to dismiss. The undersigned reserved ruling as to some and denied
the others. At the close of all the case, the Respondent renewed the motions and
the undersigned made the same rulings. The General Counsel moved the amend-
ment of the pleadings to conform to the proof with respect to immaterial vari-
ances, which was granted without objection. The Respondent orally argued
its motions and the General Counsel waived oral arguments.
The motions on which ruling was reserved are now disposed of in accordance
with the considerations, findings, and conclusions herein.
All parties were granted time for filing briefs and proposed findings of fact
and conclusions of law. A brief was filed by counsel for the General Counsel
and brief and proposed findings of fact and conclusions of law by counsel for
the Respondent.' The briefs and proposals have been carefully considered.
Upon the entire record in the case and from his observations of the witnesses,
and consideration of the contentions of counsel, the undersigned makes the
following :
FINDINGS OF FACT 2
FINDINGS OF FACT2
The Respondent, Midland Broadcasting Company, a Missouri corporation, with
its principal office and place of business at Kansas City, Missouri, is and has been
engaged in broadcasting network and local radio programs, sale of radio time,
preparation, production, and transmission of radio programs and broadcasts. It
owns and operates studios and broadcasting facilities ; stations KMBC, and
KMBC-FM at Kansas City, Missouri, and KFRM at Concordia, Kansas, under
authority of the Federal Communications Commission. It operates KMBC
Artists Bureau for booking its radio artists for public performances. It broad-
casts programs which originate outside the State of Missouri and is an outlet
for the Columbia Broadcasting System, a national radio network. The Re-
spondent sells radio advertising valued in excess of $100,000 annually, of which
more than 50 percent is sold to customers located outside the State of Missouri.
The Respondent admitted and the undersigned finds that the Respondent is
engaged in commerce within the meaning of the Act.
II, THE ORGANIZATIONS INVOLVED
It was agreed and the undersigned finds that American Federation of Radio
Artists, Kansas City Local, A. F. of L., is a labor organization admitting to
membership employees of the Respondent.
It was also agreed and the undersigned finds that American Guild of Variety
Artists, A. F. of L., is a labor organization within the meaning of the Act.
I Time for filing briefs was extended and the briefs were received September 30, 1949.
Respondent filed a reply brief on October 7, 1949
2 In making the findings herein , the undersigned has considered and weighed the entire
evidence and the contentions of the parties. It would needlessly burden this report to
separately evaluate all of the testimony on the few disputed points. Such testimony or
other evidence 'that conflicts with the findings herein is not credited.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement 3
The Respondent's principal office and place of business is in Kansas City,
Missouri, and it operates studios and broadcasts by radio over stations KMBC,
KMBC-FM, and KFRM, under authority of the Federal Communications Com-
mission. It also operates KMBC Artists Bureau for booking radio artists for
public performances, and is an outlet for CBS.
It had been the policy and practice of Respondent for several years prior hereto
to employ radio announcers, actors, and singers on a probationary basis pending
development of the individual's talent, value, and appeal to the radio listening
public. This included the prospect of sale of talent to customers buying radio
time for advertising and other purposes. The expense to Respondent and the
time necessary for talent development is not clear in the record, but it is clear
that it varied in individual cases. Contracts between the individuals and the
Respondent were executed for the protection of both parties.
In early 1946, AFRA Kansas City local was organized to represent radio artists
in that area, and after negotiations with Respondent executed a contract dated
June 1, 1946, which was effective May 15, 1946, through the last day of Febru-
ary 1948. The contract was to remain in effect from year to year from the first
day of March through the last day of February unless changed or terminated
as provided therein. The contract provided for ratification by the national
executive secretary of the Union. That was accomplished as of the date of
contract.
On June 1, 1946, all of the parties also executed a letter which modified the
contract in respect to the exclusion from coverage thereunder of certain em-
ployees, and on the same date executed a letter which stated Respondent's
policy in respect to voice, transcriptions, and character of broadcasting. That
letter also contained a paragraph, to which all parties agreed, that "It, of course,
is understood that air names of all persons employed by KMBC remain the
property of KMBC and could not be used in any outside work."
As provided therein, the contract was opened after notice, on March 1, 1947,
for discussion of wages and fees, and after negotiations were completed, an
amendment was executed by all the parties under date of March 31, 1947, and
became a part of the contract of June 1, 1946. The amendment settled the
minimum salary of staff artists, staff announcers, and staff actors and singers
(singles).
The June 1, 1946, contract as amended remained in effect until a new contract
was negotiated and entered into over the signatures of the local union representa-
tive, the national executive secretary of the union, and the Respondent under
date of August 19, 1948. The same parties executed a contract covering all regu-
lar staff continuity writers, and also five more letters dated August 19, 1948,
respecting Respondent's policy and certain employees, job classifications, and
wage scales These specific matters will be discussed later in this report.
B. The alleged refusal to,bargain
1. The appropriate unit and representation by the Union of a majority therein
It was not disputed and the undersigned finds that all full-time staff an-
nouncers, full-time staff actors, and full-time staff singers, excluding all musicians
and all supervisory personnel (Managing News Editor, Farm Director, Director
8 This statement is based upon undisputed evidence and exhibits adduced at the hearing,
but does not include all that was presented. Other undisputed evidence and exhibits will be
discussed in relation to appropriate parts of this report.
MIDLAND BROADCASTING COMPANY , 465
of Education and Research, Director of Sports, Director of Home Economics,
etc.) and excluding all persons primarily engaged in education, public service,
farm and youth programs, and activities and persons who appear on programs
of a quasi-governmental, religious, political, educational, and civic nature, and
excluding all special program announcers except as to minimum weekly wage
scale, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
It was also not disputed that at all times material hereto, the Union has been
and now is the duly designated representative of the employees of the Respondent
in the afoiesaid bargaining unit. The undersigned therefore, finds that at all
times material hereto, the Union was, and now is, the duly designated bargaining
representative of the employees in the appropriate bargaining unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
2. The Union contracts
Collective bargaining negotiations between the Union and the Respondent were
started in the spring of 1946, and carried to conclusion of contract on June 1, 1946.
There is no evidence of animosity or serious dispute on the part of either party,
and when in March 1947, the agreement was opened for discussion of wages
and fees as provided therein, the amendment of March 31, 1947, resulted, and
became a part of the June 1, 1946, contract. Again there is no evidence of
animosity or serious dispute between the parties. A dispute on interpretation of
the contract arose in the fall of 1947. At that time, the Union complained of
disparity of contracts in relation to a few preprogram contracts, which had been
effected between individuals and the Respondent The Union presented its
complaint as a grievance and after meetings with Respondent's officials, the
grievance was settled by the cancellation of those specific individual preprogram
contracts, as demanded by the Union, effective December 15, 1947, before the
charge in this case was filed on December 22, 1947. As those grievances were
settled in accord with the demands of the employees and their bargaining repre-
sentative, before any charges had been filed with the Board, the undersigned
finds that the said preprogram contracts are not a proper subject of complaint
after settlement has been effected.
Don Roberts, executive secretary of the Kansas City Local of the Union,
opened the negotiations for a new collective bargaining agreement with the Re-
spondent's officials in March 1948, and clearly reached the bargaining stage on
or about June 14, 1948. Thereafter 16 negotiation meetings were held or sched-
uled and an agreement was reached on or about August 18, 1948 The agree-
ments were reduced to writing on August 19, 1948, and signed by Roberts and
the Respondent on August 20, and forwarded to National Executive Secretary
George Heller, who advised by telegram August 28, 1948, that the contract had
been ratified by the national board of the Union and countersigned by him
Also under date of August 19, 1948, a contract was executed covering all regular
staff continuity writers, and five letters were executed by the Union and Re-
spondent and countersigned by Heller, covering classification of one employee as
a special program announcer, and clarifying and modifying the contract in certain
specified respects. The wage scale was agreed on a minimum rate per week
based on length of service from 0 to and including "after 24 months."
Roberts testified as to the contract :
It is in writing by virtue of the union contract, as far as I am concerned,
"It is not an oral agreement," and, "I think this contract covers everything
quite sufficiently."
943732-51-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts was asked if the purpose of this proceeding was to get the Board to
write a contract for the Union that the Respondent refused to write, and
answered :
No, my position is exactly this-I have tried for a long time to write con-
tracts at KMBC ; I thought they covered everything ; I thought they made
null and void the individual employment contract. But from time to time
we have things occur, such as the Don Sullivan discharge; and so on, which
convinces me that the union contract isn't any good. So I don't want to
strike the Company;' we could do that easily. We are going to negotiate
again shortly.6 I don't want to get into that position. So I am trying this
method' to work out some agreement where the individual employment
contract would be modified in accordance with 8 the union contract.
3. The talent contracts
For years prior to the advent of the Union, the Respondent had entered into
individual talent contracts with employees it engaged as radio announcers,
actors, and singers. By reason of the nature of services to be performed by the
individual artist and the nature of Respondent's business, it was an established
custom to contract for 5-year periods subject to the right of cancellation upon
certain stated contingencies. In some cases the artist and the Respondent entered
into a talent option contract for a short period of time preliminary to entering
into the long-term talent contract.
The consideration is set forth as salary or wages on a weekly or monthly pay-
ment basis and in most instances on a graduated scale upward for each year the
contract remained in effort. In addition to the salary or wage, the talent con-
tract provided that the employee be paid one-half of the net amount the
Respondent received from the sale of the employee's services to others for par-
ticipation in shows, broadcasts, motion pictures, electrical transcriptions, scripts,
and features. The net amount was determined after cost of development, pro-
duction and sale, and deduction of the amounts advanced to the said
individual.
The Respondent maintained books and records of the payment of salary or
wages to each employee and the detail of all expenses of the development pro-
duction and sale above stated. At the end of each year, the Respondent prepared
a statement of the account of each employee called "Memo Account." The memo
account set forth the debit balance as of the beginning of the year and set forth
the employee's credits and debits, losses, debit balance, advances against the
account for the year involved and the balance due the employee at year's end
if the employee was entitled to participate in the income from said employee's
service, over and above the salary or wage paid as provided in the talent contract.
It was not disputed that employees received a memo account statement with the
payment to them of the amount of money over previous payments at the end of the
year. Others could obtain them on request and some of the witnesses in this
case had secured them on request even though no extra payment was due at
the end of the year.
The Sullivan discharge is not involved herein.
The contract provides "As long as this Agreement is in effect, the employees shall not
strike not picket the Company of its property , nor fail to comply with the terms of this
Agreement and likewise the Company shall not cause any lock-out and shall observe the
procedure herein set up foi the settlement of controveisies hereunder "
8 Effective date of contract March 1, 1948 , thiough last day of February 1950.
4 Determination of charges of unfair labor practices
8 The contract provides that changes may be made at any time by mutual consent but
either party desiring a change must notify the other in , writing at least 60 days prior to
March 1, 1950.
MIDLAND, BROADCASTING COMPANY 467
4. The issues
The complaint alleged and the Respondent admitted that it had "at all times
material hereto entered into, modified , and/or continued in effect individual
employment contracts with its employees who are in the collective bargaining
unit described . . . above." This referred to the talent contracts described
above. It was also alleged and admitted that Respondent 's actions in that regard
were continued during the period of time that the Union has been the exclusive
collective bargaining representative of the employees in the bargaining unit
described above.
The Union contended that the talent contracts were less favorable to the
employees than the union contracts , and that said contracts were entered into,
modified, and continued in effect without notice to , approval of, or bargaining
with, the Union.
The Respondent contended that its talent contracts were not less favorable to
the employees because it had paid to its employees at least as much as the
minimum rate of salary or wages as set out in the union contract , and other
provisions of its talent contract were authorized by that contract, including
the right to negotiate with the individual and without notice to , or approval
of, the Union.
Some of the talent contracts introduced in evidence were in effect prior to,
and were to remain in effect after the term of, the union contract. Both
contracts provided for a minimum wage or salary.
J. Noland Franz, comptroller and administrative assistant of Respondent,
testified credibly that immediately upon effect of the union contract, he issued
instructions 0 to increase the wage scales in conformity with and as set forth
in the contract. The fact that all salaries and wages were adjusted to conform
with the union contract of August 19, 1948, was not disputed by any of the
employees that testified in this case Roberts testified that the employees
actually "received in dollars" the amount of salary or wage agreed upon in the
union contract. The union contention that the talent contracts and the "Memo
Accounts" were less favorable to the employees than the union contract was
based upon the union interpretation of those two instruments. Roberts testi-
fied that "by that I mean that he (Cirotto) is given maybe his hundred dollars
a week in salary, but immediately it is entered as a debit on his memo account,
and if he doesn't do enough commercial shows, he owes the company that
money at the end of the year, and if the contract is valid, the company can
collect the money. So has he been pair the scale or not? In my opinion, no."
Cirotto's memo account 30 was introduced in evidence, identified by an official
of Respondent Company and Cirotto himself, called as a witness for the General
Counsel. Cirotto was not interrogated at all about his contractual relations
with the Respondent or about his salary or wages. The undersigned therefore
turns to the exhibits and finds that he was paid a salary of $5,065 in 1948, and
his talent contract" executed June 1, 1945, for a period ending May 31, 1950,
shows his weekly wage minimum to be $57.50, which is obviously less than
the amount he actually received. His base wage was increased to $100 per
week by the union contract of August 19, 1948, and Respondent immediately
complied therewith but did not change that physical provision of the talent
contract.
Franz testified that where salaries were less than the union contract called
for they were immediately adjusted upward to the correct figure and where
0 Respondent ' s Exhibit No. 19.
10 General Counsel ' s Exhibit 28-F
11 General Counsel's Exhibit No. 24.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the salary was in excess of the contract figure it remained at that figure and
was not revised downward. He further testified that the memo accounts are
solely the manner in which the company maintains a record of whether or not
the employee is entitled to participate, and where it shows a debit balance there
is no claim on anyone.
Caroline Ellis, a member of the Union, employed by Respondent for many
years as a commentator on women's events, testified credibly that she received
the salary guaranteed by her talent contract and would not be expected to
pay any money back to the employer where the memo account showed a
"deficit." She performed a radio program which was sponsored by General
Mills, who paid the Respondent for her services and that pay was divided be-
tween her and the Respondent in accord with the provision of the talent contract.
Arthur B. Church, president and treasurer of the Respondent, testified credibly
that the memo accounts were instituted to show that the employees "if they
reach a successful stage they share with me fifty-fifty in the profits of their
endeavors, in addition to their salary," and if the memo accounts were can-
celed the employees went solely under the union contract they would receive
substantially less money.
James K. Fulkerson, a member of the radio team called the Lazy River Boys,
testified credibly that his talent contract provided for a wage of $60 per week
and he was getting what the contract called for and had received as much as
$100 a week. The payment was for personal appearances added to the $60 salary.
The undersigned is convinced and finds that the talent contracts and the memo
account bookkeeping method of determining the amount of participation due the
-employee, if any, which was set up in accordance with said contract, did not
establish less favorable rates of salary or wages than the union contract. There
is no forum that would require any employee to return his wages or salary to the
Respondent under the talent contract and the memo account.13
The complaint alleged that the Respondent refused to bargain in good faith
with the Union concerning the individual talent contracts.
Roberts testified that the first such contract be obtained was in December 1947,
although he had requested a copy from Respondent in April 1946. The Respond-
ent introduced two letters 13 addressed to Roberts which discussed the talent
contracts and the one of March 8, 1947, stated the Respondent was placing a
singer and a newscaster under contract, and the letter of January 16, 1947,
stated the Respondent was "in the process of employing John McDermott as spe-
cial events Director replacing Gene Dennis whose talent contract with us expires
as of February 28, 1947." Roberts was interrogated as a witness. "Q. Did you
have more than one conversation with Koerper regarding the talent contracts of
the company?" "A. Yes, we did. I would say three or four conversations
relating to the contracts, between July and August 19, and we finally signed the
agreement." 14
The talent contracts provided that Respondent had the right to assign fictitious
names or characters to its performers and that such "air names" remain the
property of the Respondent. The Respondent assigned air names to the members
of the radio group Lazy River Boys and Roberts presented their objection to the
Respondent and was advised that Respondent could not alter the decision
with respect to air names.
"Both the talent contract and the meno account could, in the opinion of the under-
signed, be more clearly explicit as to the nonliabihty of any employee to owe or repay
to the company any of the money paid as salary or wages.
13 Respondent's Exhibits 17 and 18.
24 The union contract of August 19, 1948.
MIDLAND' BROADCASTING COMPANY 469
The union contract of 1948 provided that "It, of course, is understood that air
names of all persons employed by KMBC remain the property of KMBC and
could net be used'in any outside work." With reference to the allegation of
refusal to consult with or bargain with the Union concerning the assignment of
fictitious names to employees, Roberts testified, "Q So you did negotiate about
it, didn't you?" "A. About air names?"' "Q. I mean about air names, yes."
"A. -Yes." and also stated, "I had no reason to contest the company's right to
keep the air names which it had assigned or might assign."
Gladys Rose Floris, employed by the Respondent as director of home economics,
testified credibly that she was given a copy of the talent contract to study before
she was employed and told to take it to her room where she would have a chance
to study it carefully. She advised Respondent that she did not want to sign it
and returned to Ohio. She had discussed the possible assignment of an air name
and at a later date, when she decided to accept the talent contract, she was
assigned the air name of Sally Baker, and worked for Respondent until she
resigned on July 1, 1949, effective August 16.
Other employee witnesses testified without dispute that they "went over" the
talent contracts in full before they signed them, and that they had each received
the amount called for by that contract in wages or salary, and were paid for
certain other work over and above the amount.
The union contract of August 19, 1948, agreed that :
2. The Company has the sole and exclusive right to plan, control and
direct the operations of its radio and television stations, to hire, discharge,
promote employees and to supervise and direct the employees in their work;
to determine their qualifications with respect to experience, training and
fitness, their competency and the number to be employed.
3. The Company agrees that during the term of this Agreement, every
artist covered by Paragraph 1, above, excluding free-lance artists, will be
employed by it directly, . . . If at any time during the probationary period
such 1 artist is not satisfactory to the Company, the Company may at any
time during the probationary period terminate the services of such artist
without notice.
4. AFRA agrees to accept as member of AFRA any artist the company
wishes to employ or use, as provided above, subject to the imposition of
terms and penalties in the case of members suspended or expelled by AFRA.
AFRA agrees, however, that if it suspends or expels a member who is em-
ployed by the Company, such suspension or expulsion shall not affect the
obligation of the staff artist to perform then existing contracts for the dura-
tion of the contract between the Company and the artist, or the Company's
right at its option to demand performance thereof, or the Company's right
to continue the employment of such artist, provided however, such artist
must pay, or tender payment, to AFRA the standard dues paid by regular
members of AFRA during such period.
6. . . . the Company further agrees that nothing in the contract shall
be deemed to prevent any full-time staff artist from negotiating for or
obtaining better terms than the minimum terms provided herein.
If the compensation or the hours now had by any full-time staff artist
are more favorable to such artist than the compensation or hours herein
specified, then this contract shall not modify any more favorable compensa-
tion or hours now enjoyed by any such artist, but the Company reserves
the right to alter, amend, modify or change any such arrangement, provided
such alteration, amendment or change does not reduce the same below the
minimums specified in Schedule I hereof. (Wage schedule.) - ,
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 . . . Any employee shall give the Company two (2) weeks written
notice of his intentions to terminate his employment under this Agreement.
The only exception to this provision shall be in the event of a written agree-
ment between the Company and the artist providing otherwise.
12. No deductions, directly or indirectly, by way of commission or other-
wise may be made by the Company . . . by which any staff artist shall
receive less than the minimum established by this Agreement , such mini-
mum being net to the said staff artist, except for withholding or deductions
which are authorized by law, or agreed to by the employee.
It is clear that the contract provided that the Respondent was given the right
to employ talent and enter into individual talent contracts unilaterally, and
it has not been shown in this case that the talent contracts interfered in any way
with the collective bargaining rights of the employees. It is so found.15
There is no better known field of industry for the exercise of the right by the
employee of making an individual talent contract than that of radio entertain-
ment, where the sole value of the employment relation rests upon the individual
performance value to the radio listening public.
The contract defined "Special program announcers " and stated that they
"do not come within the scope of this Agreement " except as to wages and union
security . That subject *as bargained and was settled in the contract.
The contract of June 1, 1946 , contained most of the provisions set forth above
and in March 1948, the Union and the Respondent began to meet and discuss
terms of the new contract . As found above , there were 16 negotiation meetings
and Roberts ' testimony together with the consideration of the terms and pro-
visions of the contract of August 19, 1948, convinces the undersigned and it is
found that Respondent bargained with the Union on all points of issue raised
by the Union . The Respondent did refuse to agree to some of the demands
made by the Union ; nevertheless the parties did reach an agreement , reduced
it to writing , and signed it. It is found that the action of the parties settled
the issues 19
The undersigned makes no finding upon the contention of the Union that a
"side" or "oral " agreement was made between the parties at the time of signing
the contract for the reason that the contract itself made any such agreement
null and i oid where it provided , "However, changes may be made at any time
by mutual consent. Any changes agreed upon shall be reduced to writing,
signed by both parties hereto and approved by the National Executive Secretary,
the same as this Agreement ." No such agreement in writing was produced in
this record.
The definition of collective bargaining set forth in'Section 8 (d) of the Act
placed duties and responsibilities on employers and unions alike. It was not
disputed that the Respondent met and conferred with the Union many times and
that the Respondent refused to concede on all points . There was no credible
evidence that Respondent refused to bargain in good faith unless that failure to
concede may be so construed.
15 "Care has been taken in the opinions of the Court to reserve a field for the individual
contract , even in industries covered oy the [Act], not merely as an act or evidence of
hiring, but also in the sense of a completely individually bargained contract setting out
terms of employment, because there are circumstances in which it may legally be used,
in fact , in which there is no alternative ." J. I. Case Company v. N. L. R. B., 321
U. S. 332.
16 The Board may not shape the course of negotiations between employees and em-
ployers so long as the employer bargains collectively in accordance with the Act.
N. L. R. B . v. P. Lorillard Co., 117 F 2d 921 ; Singer Mfg. Co. v. N. L. R. B., 119 F.
2d 131.
MIDLAND, BROADCASTING COMPANY 471
Consideration of the evidence on the record as a whole convinces the under-
signed that the Respondent did not, at any time, fail or refuse to bargain col-
lectively' in good faith with the Union, and did not interfere with, restrain, or
coerce its employees in the exercise of the rights guaranteed them in Section
7 of the Act.
C. The discharge
Sherwood Durkin was employed by the Respondent as a station announcer in
1942 and at that time signed an individual talent contract. After service in the
Army, he returned to the employment in November 1945, and was a staff an-
nouncer until his discharge on December 18, 1947. He joined the APRA union
in February 1946, became a member of the board and shop steward, which posi-
tion he retained during his employment. He was elected president of the local
in February 1947, and attended 7 to 10 meetings of the negotiations with Re-
spondent which culminated in the March 1947 amendment to the June 1, 1946,
union contract.
Durkin's duties as shop steward included the presentation of grievances and
the record is clear that he presented numerous grievances during his time in
office. Many of the grievances he presented, however, were his own personal
grievances. It was his practice to present the matters to Roderick Cupp, the
program director, or to James McConnell, head of the Artists Bureau, and if no
settlement was made to his satisfaction he then referred the matters to Don
Roberts, executive secretary of the local. It was customary for Roberts to deal
with the management of Respondent Company, as neither Cupp nor McConnell
had authority to settle grievances.
Durkin presented his preference for a change in work shift to Cupp, according
to his own testimony, over a long period of time, and his demand for extra fee
for doing sportscast at least 10 times. It is clear that Durkin exhibited anger
during many of his conferences with Cupp in the discussion of grievances, but
there is no evidence that he engaged in the use of profane and obscene terms prior
to November 1947, as set out later.
After his discharge, Durkin instituted a civil suit against Respondent because
of his discharge and his deposition was duly taken in that case and referred to
herein. In that deposition in reference to his anger, he answered, "A. I was
provoked to that anger by the said Mr. Cupp on many occasions."
Durkin was given a wage raise in 1946 and another at the time of the contract
amendment in March 1947. Then in June 1947, he suggested a program and
presented the script," for which he was praised by the management and his
efforts encouraged.
On November 4, 1947, Durkin left his shift early in violation of rules and
Cupp advised Karl Koerper, vice president and managing director, of the insub-
ordination and recommended "that Sherwood Durkin be discharged for such
insubordinate act this afternoon." Koerper wrote a memorandum to Durkin on
November 5, 1947, where he warned that if Durkin again left his assignment
without permission his employment would be terminated. That memo also stated,
"There are other reports concerning you which I should like to discuss with you
as soon as we can arrange a time to fit both your and my schedule." '8 Durkin
acknowledged the memo on November 6, 1947, to Koerper and after admitting that
he had left the station before end-time of his shift, stated that he imagined the
other reports concerning him. "I am fully aware that I, as AFRA and AGVA's
representative here, am right in the middle of a lot of talk" and said he would
"Respondent's Exhibit 21
Is Respondent's Exhibits 11 and 16.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss the reports. The discussion did not take place, and nothing was done,
as the Respondent preferred to give Durkin another chance.
Karl Koerper, vice president and managing director for Respondent, testified
credibly that the "reports" mentioned in his memo to Durkin on November 5,
1947, were the reports he had been receiving from Cupp after conferences with
Durkin since the summer of 1947 that verbal clashes between them were becoming
more intense and Cupp was complaining of Durkin's attitude, and reported in
November that Durkin had started using profanity. Durkin as a witness was
asked about and testified, "I might have."
Koerper further testified that later on Durkin, in some instances, directed the
profanity toward him, and that Cupp reported to him that the profanity was
later directed against company policies and the management, and against Cupp
personally.
The fact that in November 1947 Durkin used profanity and directed it toward
Cupp, Koerper, and the management was supported in the record by the credited
testimony of Roderick Cupp, the program director, and Kenneth Krahl, studio
director and member of IBEW. Cupp testified that during the latter part of
1947 after a meeting Durkin, on leaving, turned to him and said "you will hear
from me about this, you s. o. b., you wait and see," and that Durkin referred to
Koerper as a brainless b- on several occasions. Cupp did not report that to
Koerper at first, but eventually in late 1947 told Koerper that Durkin was being
abusive, or argumentative, and was using profanity as regards the Company and
its officers. Krahl testified that his office was located 20 to 30 feet, from the
artists' lounge where he could hear Durkin make the obscene statements about
the Company and on one occasion heard Durkin make the obscene statement in
his office. There is no doubt that the statements made by Durkin as recited
by these and other witnesses were profane and obscene. They will not be
repeated here as they are in the record.
It was not disputed that Durkin was active in union affairs and in the organi-
zational efforts for the American Guild of Variety Artists Nor was it disputed
that he was active in the presentation of grievances. The Respondent contended
that none of the activity had anything to do with the discharge.
George Heller, national executive secretary of the Union, testified credibly
that Koerper called on him in New York, New York, in March 1947, "and we
had what I imagine was a rather pleasant 20 minutes, I think it was about 20
minutes"; that he (Koerper) indicated that the attitude of the shop steward at
KMBC was over-enthusiastic ; that he also had some trouble with Don Roberts
and that he complained about the rather attentive manner in which the shop
steward took care of matters at K111BC. Koerper did not mention the name of
the shop steward.
Durkin testified without dispute that he was active in organizational work
for the American Guild of Variety Artists beginning in September 1947, and dis-'
cussed that organization with Cupp and McConnell on numerous occasions, but
did not know whether or not Koerper or Church knew about it. If there was
any evidence of union animus on the part of Respondent, that could raise a
presumption that the discharge may have been caused in part at least by that
union activity. However, there was no showing of such animosity and it is clear
that the Respondent did have a valid and sufficient reason for the discharge of
Durkin when he left his post without permission and admittedly could have been
discharged therefor on November 4, 1947. Respondent did not exercise its plain
right to discharge Durkin at that time, and did not discharge him until about
6 weeks thereafter. During that 6 weeks the reports of the use of profanity and
the expression of obscene terms in connection with the Respondent and its officers
were made to Church, the Respondent's president.
MIDLAND, BROADCASTING COMPANY 473
Church testified that "the thing that immediately precipitated his discharge
was the matter of reports that had come to me and statements made to me that
Durkin had made defamatory statements concerning the organization and its
officers quite a number of times to a number of people , and in some cases ap-
parently in front of other people who were not officers and managers of the
company." He asked Durkin to resign and on refusal , discharged him on
December 18, 1947.
The Board held in an early case that "an employer has a right to discharge an
employee for using obscene language in his plant if he sees fit to do so. The
Act is not designed to deprive him of such rights." 19 The Board and courts have
broadened that statement in numerous cases since and have held that an em-
ployee may be discharged by the employer for a good reason, a poor reason, or
no reason at all, so long as the terms of the statute are not violated .20 Moreover,
it matters not that for reasons apart from union activity an employee deserves
summary discharge if as a fact the reason was union activity.21
Conclusion
There is undoubtedly an inference that Respondent desired to rid itself of one
so' aggressive in his efforts to advance the cause of his union . Such inference,
however, in the opinion of the undersigned , is more than offset by a combination
of factors supporting Respondent 's position , among them the paucity of proba-
tive evidence tending to show that Respondent bore animosity toward either
Durkin or the union he represented , or had interfered with, restrained, or
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
-Act.
Such inference and contentions are met by the positive and seemingly sincere
denial of such thought and conduct , and the admission by Durkin that he might
have uttered the words directed to officers of, and about , the Respondent Com-
pany attributed to him. Not even these and other supporting factors serve
to completely remove suspicions arising out of Durkin ' s union activities, but
suspicions do not make a case, and the undersigned , upon consideration of the
entire record, is not persuaded that the General Counsel has sustained his
position by a preponderance of the credible evidence . There must be a pre-
ponderance of evidence to show that the Respondent was motivated by anti-
union considerations
Upon the entire record the undersigned is convinced , and finds, that the Gen-
eral Counsel did not prove the allegations of the complaint , and that the Re-
spondent did establish its defense that it did not engage in unfair labor practices.
Therefore , the undersigned recommends that the complaint herein be dis-
missed.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Midland Broadcasting Company, is engaged in commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. American Federation of Radio Artists, Kansas City Local, A. F. of L., is a
labor organization admitting to membership employees of the Respondent.
19 Titmus Optical Co., 9 NLRB 1026.
'IN L R . B. v. Condenser Corp. of America, 128 F . 2d 67 , 75 (C A 3).
21 Budd Mfg . Co. v. N. L R B, 138 F. 2d 86, 90 ( C. A. 3), cert. denied 321 U. S. 773.
22 See Punch and Judy Togs , Inc. of California, 86 NLRB 629.
1
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. American Guild of Variety Artists , A. F. of L., is a labor organization within
the meaning of the Act.
4. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (1), (3 ), and (5 ) of the Act.
[Recommended Order omitted from publication in this volume.]
TELECHRON , INC. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS
OF AMERICA (UE), PETITIONER. Case No. 1-RC-1452. February
27,1951
Second Supplemental Decision and Order
On December 12, 1950, the Board issued a Supplemental Decision
and Order 1 in this proceeding, finding merit in the objections to the
conduct of the election which had been filed by the United Steel-
workers of America, and directing that the election of August 10,
1950, be set aside. Thereafter, on December 26, 1950, the Employer
filed a motion to reconsider the Supplemental Decision and Order, and
the Petitioner, herein, filed objections to said motion.
We have considered the Employer's motion to reconsider, and find
it to be without merit.2
The statements which were found to have interfered with the em-
ployees' free choice in the election were contained in a letter the
Employer sent to the employees on August 8, 1950. In this letter
the question "What can you expect from any union?" was posed; and
to it the following reply was offered "To have wage increases, insurance
and other benefits held up." This was followed by two examples, in
one of which reference was made to the fact that at another plant
of the Employer (the Ashland plant) "employees now represented by
UE are being prevented right now from enjoying your recent wage
increase and insurance benefits." In the other example given, the
statement is made that "You'd have an improved pension plan now
too if both UE and CIO were not to-day making it impossible for
us to give it tQ you and other Telechron employees."
In its motion, the Employer contends in substance that the em-
ployees were generally aware of certain circumstances surrounding
negotiations at the Ashland plant and of the special reasons for the
delay in instituting the contemplated improvement in the pension plan.
As a consequence, the Employer urges the, employees reasonably in-
192 NLRB No. 113
2 Although , pursuant to Section 3 (b) of the Act , the Decision and Direction of Election
as well as the Supplemental Decision and Order in this matter were considered by a three-
member panel of the Board , all Members of the Board have considered the Employer's
motion to reconsider . Chairman Herzog and Member Reynolds disagree with the result
reached herein for the reasons set forth in their separate opinion
93 NLRB No. 67.