Radio Station KVEC

National Labor Relations Board - Board Decisions

Mar 5, 1951

93 N.L.R.B. 618 (N.L.R.B. 1951)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHRISTINA Al. JACOBSON, DOING BUSINESS AS RADIO STATION KVEC
and LOCAL 202, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS. Case No. 91-CA-630. March 5, 1951
Decision and Order
On September 27, 1950, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in certain unfair labor practices
and recommending that she cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in
the complaint, and recommended dismissal of those allegations.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the Trial Examiner,
with the exceptions, modifications, and additions noted below.
1 Respondent excepts to the Trial Examiner's failure to dismiss ( 1) the entire complaint
because copies of the charges were served upon the Respondent by the Regional Director,
and not by the charging party, and ( 2) the independent 8 (a) (1) allegations in the com-
plaint, because such allegations do not appear in the charges.
We find no merit in the Respondent 's exceptions . Neither the Act and its legislative
history nor the Rules and Regulations of the Board support the Respondent 's position that
the charging party alone can satisfy the service requirements of Section 10 (b) of the Act.
American Pipe and Steel corporation , et al, 93 NLRB No. ll. With respect to the scope
of the complaint , the Board held in Cathey Lumber Company, 86 NLRB 157, that a com-
plaint may lawfully enlarge upon a charge if, as in this case , the added unfair labor practice
allegations were committed no longer than 6 months prior to the filing and service of the
charge initiating the case. The Respondent has offered no valid ground for altering the
Board's position in that case , which was recently upheld in Cathey Lumber Company v.
N.L R B , 185 F. 2d 1021 (C.A 5).
Nor do we find any merit in the Respondent' s exceptions to the Trial Examiner 's credi-
bility findings . The importance of observation of the demeanor of witnesses to any finding
of their credibility is such that we will not overrule a Trial Examiner ' s resolution as to
credibility except where the clear preponderance of all the relevant evidence convinces us
that the Trial Examiner ' s resolution was incorrect . Standard Dry Wall Products, Inc.,
91 NLRB 544 . No such conclusion is warranted here
2 The Intermediate Report contains an inadvertence which does not affect the Trial
Examiner 's ultimate conclusions or out concurrence therein. The Trial Examiner found
in footnote 18 of the Intermediate Repoit that Tognazzini testified that Ryno had been
drawn into the Union "mess" by older men and would have been with management bad
he not been misled. Ho ev cr, the record shows that he made it clear, and we find, that
he was merely stating what Muff had told him.
93 NLRB No. 75.
RADIO STATION KVEC 619
1. On the basis of the facts set forth in the Intermediate Report,
we agree with the Trial Examiner's conclusion that the Respondent
is engaged in commerce within the meaning of the Act.' We also
find that it will effectuate the policies of the Act to assert jurisdiction
over the business of the Respondent'
2. We agree with the Trial Examiner that the Respondent interfered
with, restrained, and coerced her employees in violation of Section
8 (a) (1) of the Act. The proscribed conduct was engaged in by the
Respondent and her representatives Muff, Hacker, and Brindle,' and,
as more fully described in the Intermediate Report, consisted of
interrogating Ryno, the technician employed at the FM transmitter,
on October 27, 1949, and stating to him that the transmitter would
be shut down. if the Union were successful; warning employees on
October 27 and 28 and on November 2 that the advent of the Union
would cause the Respondent to go "combination"; telling Complainant
Stephenson and other employees that they would lose their jobs as
a result of the changeover; 6 fomenting and participating in the prep-
aration of the loyalty pledge of the announcers on October 28 ; '
offering the technicians a pay raise on November 2 conditioned on
their withdrawal from the Union, and suggesting that they negotiate
a contract with the Respondent directly; and threatening on No-
vember 2 that unless the technicians withdrew from the Union the
business would be sold to a person who would have no need for
the services of the Respondent's staff.
3. The Trial Examiner found that the Respondent did not dis-
criminate in regard to the hire or tenure of employment of Milton
Crane and Chester Egan. We agree.
As more fully detailed in the Intermediate Report, prior to January
1, 1950, the Respondent maintained an AM and FM transmitter.
® Contrary to the Respondent , we find ample support for the Trial Examiner 's findings
in the 1949 financial report and 1950 application for license renewal filed by the Re-
spondent with the Federal Communications Commission , which were received in evidence.
N. L R. B. v. Shawnee Milling Co ., 184 F. 2d 57 (C. A. 10), relied upon by the Re-
spondent to support the contention that she is not engaged in an interstate business,'
is patently distinguishable from this case on its facts.
* WBSR, Inc., 91 NLRB 630.
There is no merit to the Respondent 's contention that she was not responsible for
Brindle's conduct . The record shows that Brindle was "in charge of the personnel,"
as the station 's program director , and that he interviewed applicants for employment and
had authority to hire and discharge employees subject only to the subsequent approval
of Hacker , the station 's manager. We therefore find that Brindle was a supervisor and
that his conduct is attributable to the Respondent
9 Under a "combination " operation , all the employees would have been required to
qualify as technician-announcers , i e., demonstrate an ability for both technical and an-
nouncing work At the time under discussion , the employees at the AM transmitter
were required to possess only technical ability, and those at the studio , only announcing
ability . It is clear that the Respondent 's threats of going "combination ," and her
warnings that employees would then lose their jobs, were made for the purpose of inducing
the technicians to forego their bargaining representative, and of inciting the announcers
actively to oppose the Union.
T The record shows, and we find , that Brindle dictated the first draft of the pledge.
620 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
Crane and Egan were employed as technicians at the AM transmitter,
and engaged in technical work exclusively. On January 1 the Re-
spondent discontinued the operation of the FM transmitter. She
then instituted a change in the operation of the AM transmitter which
required the technicians at that location to assume some of the an-
nouncing duties theretofore performed by the announcers at the studio.
Crane and Egan were thereupon offered auditions for the purpose of
testing their announcing ability. Crane did not avail himself of the
opportunity to audition ; Egan did, but failed to qualify. Their
discharges followed.
The General Counsel does not dispute the Trial Examiner's finding
that the FM operation was abandoned for economic reasons, but con-
tends that Crane and Egan were unlawfully discharged because the
Respondent converted the AM transmitter into a combination opera-
tion for the purpose of ridding herself of these two union adherents.
Like the Trial Examiner, we are unable to agree with this contention.
While the matter is not free from doubt, we attach overriding sig-
nificance to the following uncontroverted facts : (1) In July 1949,
before the advent of the Union, the Respondent was contemplating
the transfer of announcing work to the AM transmitter in the event
operations at the FM transmitter were discontinued; (2) the dis-
mantling of the FM transmitter left the Respondent with a substantial
amount of valuable broadcasting equipment which she was able to
utilize by going "combination" at the AM transmitter ; and (3) the
transfer of some announcing work from the studio to the AM trans-
mitter enabled the announcers at the studio to devote more time and
effort to other matters, and do a better job on program arrangements;
in addition, the transfer was beneficial from a production viewpoint
in making possible the use of more than one voice during a broadcast.
We therefore find, as the Trial Examiner did, that the record does
not establish by a preponderance of the evidence that the Respondent
transformed the AM transmitter into a combination operation in
order to effect the discharges of Crane and Egan.
4. We are in agreement with the Trial Examiner's finding that the
Respondent discriminatorily discharged Dwight L. Stephenson irb
violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
In support of her contention that she did not unlawfully terminate
Stephenson, the Respondent asserts that: (a) Stephenson's union ad-
herence was unknown to management at the time of his discharge;'
(b) the discontinuance of the FM operation required the elimination
of a technician's job and Stephenson was selected for termination on
a seniority basis, as his letter of discharge dated December 31, 1949,
RADIO STATION KVEC 621
shows; 8 and (c) Stephenson had shown himself to be negligent and
incompetent in his duties as a technician. For the reasons set forth
below, we are not persuaded by the Respondent's position. '
The Respondent's knowledge on December 31 of Stephenson's prior
union activity is abundantly demonstrated by Union Representative
-de la Laing's statement to Muff at the October 26 bargaining confer-
ence that he represented all the technicians, by Ryno's conversation
with the Respondent on October 27, in which he made it plain that all
the technicians were behind the Union, by Hacker's remark to Stephen-
son on October 27 or 28 that he would lose his job as a result of the
technician's "going union," and his further reprimand of Stephenson
and the other technicians for "going behind his back" in dealing with
the Union, and by Stephenson's and the other technicians' stand sup-
porting the Union at the meeting of technicians, announcers, and
management on November 2.
On the issue of Stephenson's seniority, we are of the opinion that,
while Stephenson may have been junior to the other technicians in
point of service,9 the Respondent nevertheless utilized that fact as.a
pretext for his discharge. Thus, although Stephenson had, during a
tour of duty at the FM transmitter, proved himself to be a satisfac-
tory technician-announcer, he was hastily discharged, upon the closing
down of the FM transmitter, without "the customary two weeks
notice." Indeed, the Respondent then knew that she would need
technician-announcers to staff the AM transmitter and was not sure
Whether the more senior employees, Crane and Egan, would qualify
for such jobs.10 Moreover, after the Respondent had terminated
Crane and Egan, she did not recall Stephenson ; instead, she filled
their jobs with an employee from the studio and a new employee.
Significantly, too, on October 27 or 28, when the Respondent was
making coercive threats to Ryno to shut down the FM transmitter,
Hacker told Stephenson that under a combination operation at the AM
transmitter he would lose his job because he could not qualify as an
announcer. He made no mention of seniority at that time.
8 That letter , handed to Stephenson on January 1, 1950, reads as follows :
You will find attached herewith a check covering one (1) month's salary-Dec 16th
thru Jan. 15th, 1950 inclusive. This in lieu of the customary two weeks notice.
We will have no further use for your services after Jan. 1st due to the fact that
for economic reasons we are being forced to turn our license covering KVEC-FMI in
to the FCC, thereby taking FAI off the air and as you are the youngest employee we
will have no further work for you. This is being done on a seniority basis.
Although Stephenson began working for the Respondent 2 days before Rvno, it appears
that lie entered the Respondent s employ as a part-time, probationary employee, whereas
Ryno started as a iegular employee. In these circumstances, we are unable to conclude,
as the General Counsel urges, that, to the Respondent's knowledge, Stephenson held more
seniority than Ryno
10 The Respondent's hi cf filed with the Trial Examiner indicates that she had reason to
believe that Egan, at least, did not possess the requisite qualifications.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor can we agree that the events of December 2 and 3, when the
AM transmitter went off the air for a period of time, establish that
Stephenson was negligent and incompetent. We axe satisfied, as
was the Trial Examiner, that the Respondent did not regard Stephen-
son as an unsuitable employee on account of the afore -mentioned
incidents and that these incidents were not operative factors in his
discharge . The credible testimony shows that Stephenson was never
criticized by the Respondent therefor . Moreover , he was not termi-
nated until almost a month later, and, at the time of the termination,
Hacker wrote the words "Service Satisfactory " on Stephenson's FCC
license. Finally, at no time before the hearing did the Respondent
specifically assign the quality of Stephenson 's work as a reason for
the discharge.
On the basis of all the foregoing , and the entire record, including
the Respondent 's knowledge of Stephenson 's union activity , her union
animus, the threat to Stephenson of loss of employment , and the
unconvincing character of the reasons adduced to support the dis-
charge, we find, as the Trial Examiner did, that Stephenson was dis-
charged because he was a union adherent.
5. In agreement with the Trial Examiner, we find that the Re-
spondent refused to bargain with the Union , in violation of Section
8 (a) (5) and 8 ( a) (1) of the Act . However, we find that the first
in the series of such refusals to bargain with the Union occurred on
October 27, 1949, and not on December 6, 1949, as found by the Trial
Examiner.
The record discloses that on October 26 , 1949, the Union made its
claim of majority representation , and entered into a discussion with
the Respondent of its proposed contract for the technicians . It shows
further that on the very next day the Respondent embarked upon a
course of unlawful conduct which included interrogation , coercive
utterances, and attempts to bypass the Union . This conduct of the
Respondent , which we have already found to be violative of the Act,
was, in our opinion, plainly calculated to undermine the Union and
to deny to the Union its statutory status as the technician 's bargaining
representative . Under the circumstances , it is clear , and we find,
that although the Respondent first formally rejected the Union's
request for bargaining negotiations on December 6, 1949, she has
actually sought to avoid bargaining with the Union since October 27.
The Respondent contends , however, that she was under no obligation
to bargain because the Union never represented an uncoerced majority,
because she had a good faith doubt as to its majority , and because
the unit sought was inappropriate.
The record establishes that all the technicians signed authorization
cards for the Union. The four technicians regularly employed at the
RADIO STATION KVEC 623
transmitters during the period in question signed such cards on October
12 and 13. On the eve of the Union's meeting with the Respondent,
those employees, together with Raymond Kunkel, a part-time techni-
cian, signed new authorizations. The Respondent claims, however,
that the authorization cards signed on October 12 and 13, and again
on October 25, are invalid because of the union activity of Tognazzini,
the chief engineer. Contrary to the Respondent, however, there is
no evidence that Tognazzini assisted the Union in securing designa-
tions from the technicians."' As to Tognazzini's alleged union activ-
ity, the record merely shows that in September Tognazzini learned
about the union activity of the technicians ; that "from time to time"
he expressed his views with respect to the "organizational needs" at
the Respondent's operations, but was not for or against the Union
"until it actually came up"; that on October 15 he signed a union
authorization card given to him by Crane; and that on October 25,
during the meeting between the technicians and de la Laing, at which
time the technicians executed authorizations for the second time, he
voiced his "views" and himself signed a new authorization card. In
our opinion , these facts show, at best, that Tognazzini developed an
interest in the Union which he openly exhibited. They manifestly
fall far short of establishing that he unlawfully coerced the technicians
into designating the Union as their bargaining representative?2
For these reasons, as well as those stated by the Trial Examiner,13
we find this contention without merit.
With respect to the Respondent's alleged good faith doubt, it is clear
that the Union's majority status was made known to the Respondent
during the critical period herein by de la Laing and the technicians
themselves. In any event, the Respondent's claim to a bona fide doubt
of the Union's majority status is clearly untenable in the face of her
unlawful efforts to undermine the Union's support, as found above."
The Respondent's contention as to the unit claimed by the Union
is based on the exclusion therefrom of the announcers employed at
u This case is therefore distinguishable from Wells , Inc , 68 NLRB 54'5, relied upon by
the Respondent.
12 The Board has heretofore found that the labor organizations involved were not
tainted by management support because supervisors ( a) were members of the union
(California Packing Company , 59 NLRB 941 ), (b) held a union office ( Charlottesville
Woolen Mills, 59 NLRB 1160 and Allen B . Dumont Laboratories , Inc, 88 NLRB 1296),
and (c ) signed a union authorization card and attended a union meeting ( Comfort Sp)ing
Corporation, 61 NLRB 980)
While we find , as the Trial Examiner did, that the Union ' s majority status is established
by the authorizations signed on October 12 and 13 and on October 25, we note that the
earlier designations , which antedate Tognazzini's execution of union authorizations and
his appearance at the union meeting, are, of themselves , sufficient to demonstrate the
Union's, majority.
13 However , we do not adopt the Trial Examiner's observations as to the impact of the
Respondent's unfair labor practices on the validity of the designations
11 See Everett Van Kleeck it Company, Inc, 88 NLRB 785, and cases cited therein.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the studio. The technicians are required by the Respondent to hold
an FCC license, 15 and they have, at all times material to this case, been
engaged, exclusively or primarily, in technical operations on trans-
mitter equipment. On the other hand, the announcers are engaged
chiefly in the duties of their classification. They are physically sep-
arated from the technicians and are not under the supervision of the
chief engineer, as are the technicians. No FCC license is required of
them. Such technical functions which the record shows them to per-
form require considerable less skill than is involved in the tech-
nicians' work, are only incidental to their main functions, and con-
stitute a minor part of their duties as announcers. Under all these
circumstances, we agree with the Trial Examiner that a unit con-
fined to the Respondent's technicians is appropriate for the purposes
of collective bargaining.16
On the basis of all the foregoing, and the entire record, we find that
since October 27, 1949, the Respondent has refused to bargain with the
Union, in violation of Section 8 (a) (5) and 8 (a) (1) of the Act.
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 hereby orders that the Respondent, Christina M.
Jacobson, doing business as Radio Station KVEC, San Luis Obispo,
California, her agents and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 202, International
Brotherhood of Electrical Workers, as the exclusive representative of
all radio broadcast technicians at the Respondent's Radio Station
KVEC, San Luis Obispo, California, but excluding announcers, pro-
fessional employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in Local 202, International Brother-
hood of Electrical Workers, or in any labor organization of her
employees, by discharging employees or in any manner discriminat-
15 As the Respondent requires her technicians to hold an FCC license, we find -is unneces-
sary to decide, as the Trial Examiner did, whether the Federal Communications Commission
itself requires persons in such jobs to be licensed by it.
11 ifaddlesev Broadcasting Corporation , 87 NLRB 1567; TBEZ Radio , Inc, 91 NLRB
1518.
In support of her contention, the Respondent relies on Radio Station KTBS, Inc , et at.,
90 NLRB No 218, where, in two of the cases consolidated, the Board included combination
announcer-control board operators and transmitter engineers in a single unit. It would
appear from that decision, however, that the employees in question, revealingly called
announcer -control board operators , spent a substantial portion of their time performing
various technical functions It should be noted that in another of the cases there con-
solidated "full-tine announcers" with minor and incidental technical duties were excluded
from a technical unit. Significantly, Hecker characterized the announcers in the instant
case as "100% announcers."
RADIO STATION KVEC 625
ing in regard to their hire and tenure of employment, or any term or
condition of employment.
(c) In any manner interfering with, restraining, or coercing her
employees in the exercise of the right to self-organization, to join or
assist Local 202, International Brotherhood of Electrical Workers,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 202, Interna-
tional Brotherhood of Electrical Workers, as the exclusive representa-
tive of all the employees in the aforesaid appropriate unit, with respect
to rates of pay, hours of employment, or other conditions of employ-
ment, and if an understanding is reached, embody such understand-
ing in a signed agreement.
(b) Offer to Dwight L. Stephenson immediate and full reinstate-
ment to his former or substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and make him
whole, in the manner set forth in the section of the Intermediate Re-
port entitled "The Remedy," for any loss of pay he may have suffered
by reason of the discrimination against him.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to analyze the amounts of
back pay due and the right of reinstatement under the terms of this
Order.
(d) Post at her studio and transmitting station in and near San
Luis Obispo, California, copies of the notice attached hereto, marked
Appendix A.17 Copies of such notice, to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed by
the Respondent's authorized representative, be posted by the Respond-
ent immediately upon receipt thereof, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words* "A Decision and Order," the words
"A Decree of the United States Court of Appeals Enforcing
943732-51-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act by conduct other than that found to
be unlawful in this Decision and Order, be, and it hereby is, dismissed.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that :
I WILL BARGAIN collectively upon request with LOCAL 202, IN-
TERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, as the ex-
clusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employ-
ment, or other conditions of employment, and if an understand-
ing is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All radio broadcast technicians at Radio Station KVEC,
excluding announcers, professional employees, guards, and
supervisors as defined in the Act.
I WILL NOT discourage membership in LOCAL 202, INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, or in any other
labor organization of my employees, by discharging any of my
employees or discriminating in any other manner in respect to
their hire or tenure of employment, or any term or condition of
employment.
I WILL NOT in any manner interfere with, restrain, or coerce
my employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist LOCAL 202, INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
I WILL OFFER to Dwight L. Stephenson immediate and full re-
instatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay suffered as a result of the
discrimination against him.
RADIO STATION KVEC 627
All my employees are free to become , remain , or refrain from be-
coming or remaining , members of any labor organization , except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
CHRISTINA M. JACOBSON, doing business as
RADIO STATION KVEC,
Employer.
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Intermediate Report and Recommended Order
Ben Grodsky, Esq., for the General Counsel.
Messrs. Carter & Potruch, by Findlay A. Carter, Esq., and James M. Nicoson,
Esq., of Los Angeles, Calif., for the Respondent.
Mr. Gilbert M. de la Laing, of San Francisco, Calif., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed on May 18, 1950, by Local 202, International
Brotherhood of Electrical Workers, herein called the Union, the General Counsel
of the National Labor Relations Board,' by the Regional Director of the Twenty-
first Region ( Los Angeles , California ), issued his complaint dated May 22, 1950,
against Christina M. Jacobson , d/b/a Radio Station KVEC , herein called the
Respondent , alleging that the Respondent had engaged in and was 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 National Labor Relations
Act, as amended , 61 Stat. 136 , herein called the Act. Copies of the charge, the
amended charge , the complaint and a notice of hearing were duly served on the
Respondent and the Union .2
1 The General Counsel and his representative at the hearing will be called herein the
General Counsel; the National Labor Relations Board, the Board
2 The original charge was flied on November 8, 1949, and copies of both it and the
amended charge were duly served on the Respondent by the Regional Director . The Union.
the charging party, did not serve a copy of either the original or the amended charge on
the Respondent . The Respondent moved to dismiss the complaint on the ground that
"neither the Board nor the General Counsel has acquired any jurisdiction in this case for
the reason that the charging party has not obeyed the mandate of the statute ." Section
10 (b) of the Act, relied on by the Respondent , provides "that no complaint shall issue
based upon any unfair labor practice occurring more than six months prior to the filing
of the charge with the Board and the service of a copy thereof upon the person against
whom such charge is made. .. It seems clear that the Act does not require that service
of the charge be made by the person or persons making the charge, and I think the legis-
lative history of the Act gives no support to the Respondent 's theory. The mandate of the
Act was fully obeyed when the Regional Director served copies of the charges upon the
Respondent . Nor may the Respondent rely on Section 203 14 of the Board's Rules and
Regulations inasmuch as this rule does not explicitly or by implication foreclose the
Regional Director from making valid' service of a charge upon the person charged with
unfair labor practices , even though the charging party has failed to do so It simply means
that if the charging party fails to serve a copy of its charge upon the person or persons
charged with unfair labor practices , it may not complain if the Regional Director does not
act in the matter. Here the Regional Director did act in the matter , and the Respondent
having been duly served by him with copies of both the original and amended charges, has
no cause to complain . The motions of the Respondent accordingly were, and are , denied.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent:
1. Discriminated against three named employees in violation of Section 8
(a) (3) of the Act;
2. Refused to bargain with the Union as the duly designated bargaining
representative of a majority of employees in an appropriate unit, in violation of
Section 8 (a) (5) of the Act;
3. And because of the aforesaid acts and conduct, and other specified acts
and conduct independently constituting interference, restraint and coercion,
violated Section 8 (a) (1) of the Act.
In her duly filed answer, the Respondent denied the appropriateness of the
bargaining unit alleged in the complaint ; that the Union at any time repre-
sented a majority of employees in an appropriate unit, and the commission of
any of the alleged unfair labor practices.
Pursuant to notice a hearing was held at San Luis Obispo, California, on
July 26, 27, 28, 1950, before William E. Spencer, the undersigned Trial Examiner
'duly designated by the Chief Trial Examiner. All parties were represented at
and participated in the hearing where full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the issues was
afforded them.
After the introduction of the formal papers, the undersigned granted in part,
denied in part, the Respondent's motion for a bill of particulars ; denied the
Respondent's motion to dismiss the complaint on the ground that copies of the
charges were not served upon the Respondent by the charging party;' and
denied the Respondent's motion to dismiss paragraph 8 of the complaint alleging
independent violations of Section 8 (a) (1) of the Act on the ground that neither
the charge nor the amended charge specifically alleged 8 (a) (1) violations'
These motions, renewed at the close of the hearing, and ruling reserved thereon,
are now denied. At the close of the General Counsel's case-in-chief, the Re-
spondent moved to dismiss the complaint in its entirety, and as to each of its
separate allegations, and renewed these motions at the close of the hearing.
All reserved rulings are disposed of by the findings below. The General Counsel's
unopposed motion to amend the complaint to conform to the proof was granted.
The parties waived oral argument before the undersigned. The General Counsel
and the Respondent filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Christina M. Jacobson owns and operates radio station KVEC-AEI at San
Luis Obispo, California, operating under license issued by the Federal Com-
munications Commission. During 1949, the Respondent also owned and oper-
ated radio station KVEC-FM, but this station ceased to operate on December
31, 1949, and its operating license was cancelled.
During 1949, the broadcast revenue of KVEC was approximately $71,056,
of which approximately $16,947 was derived from the sale of time to regional
networks, and $12,409 from the sales of station time on a nonnetwork basis
to national or regional advertisers or sponsors. During the same period ex-
penses incurred included cost of wire services in the amount of $6,604.
3 See footnote 2, supra.
'See Cathey Lumber Company, 86 NLRB 157; Tennessee Knitting Mails, Inc, 88
NLRB 1103.
RADIO STATION KVEC 629
A substantial portion of Respondent's programming is devoted to network
commercial and network sustaining programs. KVEC is affiliated with the
Mutual Broadcasting System and the Don Lee Broadcasting System.'
It is found that the Respondent is engaged in commerce within the meaning
of the Act.6
II. THE LABOR ORGANIZATION INVOLVED
Local 202, International Brotherhod of Electrical Workers, is a labor organ-
ization admitting to membership certain employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
During 1949 the Respondent operated two radio broadcasting stations known
respectively as KVEC-AM and KVEC-FM. The Respondent's studio was lo-
cated in the city of San Luis Obispo, the FM transmitting station about a mile
from the studio and the AM transmitting station about 2 miles from the studio,
the transmitting stations being about 3 miles from each other. Three tech-
nicians wei e regularly employed at the AM transmitter, one at the FM trans-
mitter.? Only technicians were regularly on duty at the transmitting stations
and they performed no duties at the broadcasting studio. They worked under
the immediate supervision of the chief engineer. The rules of the Federal
Communications Commission require a radio-telegraph first class operator's
license of any person engaged in the transmission of standard radio broadcasts
(F. C. C. Rule No. 13.61), and also require that a licensed engineer (tech-
nician) must be on duty at all times while the station is broadcasting (F. C. C.
Rule No. 3.165) 8
The Respondent's staff of announcers, five in number, performed their duties
at the broadcasting studio, under the immediate supervision of the program
director.
On or about December 31, 1949, pursuant to steps taken by the Respondent,
the Federal Communications Commission cancelled Respondent's FM license,
and station KVEC-FM has not been operated since that date. Technicians re-
tained in the Respondent's employ after that date became what is known in
radio parlance as combination technicians ; i. e., in addition to their duties as
technicians or engineers, they did some announcing, such as making "spot com-
mercial" and "station break" announcements. (Previously, only the technician
stationed at the FM transmitter had functioned as a combination operator.)
They continued to work under the supervision of the chief engineer and con-
tinned to perform their duties at the transmitter station.
It is clear from the foregoing that the technicians are a homogeneous group
possessed of special skills, that they function as a unit apart from other em-
ployees and under a separate work program, and under separate immediate
6 Findings are made substantially in accord with the statement of facts contained in
the General Counsel's brief They are based on the annual financial report for 1949 filed
by the Respondent with the Federal Communications Commission
9 Valley Broadcasting Company, 88 NLRB 35 ; Nicholas William Kuris , 90 NLRB No.
187 ; and cases cited therein.
7 At some time during this period Raymond Kunkel appears to have been employed as a
part-time technician. The precise nature of his duties is not clearly developed in the
record
8 The undersigned takes official notice of the rules and regulations of the Federal
Communications Commission
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision.' The discontinuance of the FM transmitter did not destroy their
integration as a unit, for qualifications not applicable to announcers continued
to be required of them because of the technical nature of their work and the
requirements of the Federal Communications Commission. Following the dis-
continuance of the FM transmitter, they did some announcing in addition to
their duties as technicians, but their principal duties remained unchanged, and
they continued to function apart from the staff of announcers and under sep-
arate supervision"
It is found, as alleged in the complaint, that all radio broadcast technicians
employed by the Respondent excluding announcers, professional employees,
guards and all other employees and supervisory employees as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. The Union's majority
Union activities among the technicians began in the summer and fall of 1949.
During this period Milton Crane, Chester Egan, Dwight L. Stephenson, and
Stanley Phillip Ryno were the technicians regularly employed by the Respond-
ent. Raymond Kunkel appears to have been employed on a part-time basis.
Their immediate supervisor was Chief Engineer Wilce A. Tognazzini. In
August there was correspondence between Crane and the Union's representa-
tive, Gilbert M. de la Laing, and, later, Crane circulated union application
cards among the technicians. All the technicians, excluding the chief engineer,
signed application cards on October 12 or 13. The chief engineer, Tognazzini,
signed a card on October 15. On October 25, all the technicians, including
Tognazzini, met with the Union's representative at Stephenson's home and
signed new authorization cards.
On October 26, de la Laing met with the Respondent, stated that he repre-
sented the technicians and requested recognition of the Union in its capacity as
their bargaining representative.
It is not disputed that all the technicians, including the chief engineer,
signed union authorization cards, but it is the Respondent's contention that be-
cause of Tognazzini's participation in the organizational activities there was no
freedom of choice among the technicians and therefore the Union at no time
represented a valid majority. The issue thus posed is one of fact: were the
technicians coerced into signing union authorization cards because of Tognaz-
zini's participation in organizational activities? The answer must be given in
the negative for the following reasons :
1. There is no showing whatever that Tognazzini was instrumental in bring-
ing the Union into the picture, or that he participated in organizational ac-
tivities until after the other technicians had already signed union cards. His
own testimony, which is credited, is to the contrary. It was Crane who made
contact with the Union's representative and it was Crane who obtained,union
cards, circulated them; and obtained the signatures of the technicians. For
reasons not altogether clear, the Union's representative on a later date had
new authorization cards signed, and Tognazzini attended the meeting at which
these cards were signed and himself signed a card. It may be argued that
his mere presence at this meeting was sufficiently coercive to render the sign-
ing of these cards by the technicians a nullity, and the argument would have
9 See Radio Station KTBS, Inc., et al, 90 NLRB No 218 ; Middlesex Broadcasting Corp.,
87 NLRB 1567; Atlanta Broadcasting Company, 90 NLRB 808.
10 See Trendle-Campbell Broadcasting Corp., 86 NLRB 1240.
RADIO STATION KVEC 631
some force were it not for the fact that the technicians had previously, on
their own initiative, shown that they wanted representation by the Union.
2. While normally the active participation of a supervisory employee in
organizational activities of rank-and-file employees under his supervision, may
be taken as interference by management to a degree, in some instances, to con-
stitute coercion, this does not necessarily follow where the conduct of the higher
officers of management is such as to make it plain to the employees that the
supervisor in so acting is acting contrary to the wishes and policies of manage-
ment As will be seen hereinafter, the Respondent herself and her top officers,
vigorously and openly opposed the unionization of the technicians. Obviously,
if the technicians were 'coerced in the slightest degree by Tognazzini's participa-
tion in their organizational activities, the last vestiges of such constraints were
swept away by the Respondent's own expressed opposition to their organiza-
tional efforts
I conclude that the technicians were not coerced in their union affiliations, and
accordingly find that on or about October 25, 1949, the Union was, at all times
since has been, and now is the exclusive representative of Respondent's em-
ployees in the appropriate unit described above, for purposes of collective
bargaining.
3. The refusal
On October 26, 1949, the Union's representative, de la Laing, called on the
Respondent at her place of business, advised her that he represented the techni-
cians, and requested a meeting for the purpose of negotiating a contract. That
same evening, a meeting was held-at the Respondent's studio, attended by de In
Laing and the Respondent, Christina M. Jacobson, Leslie H. Hacker, Respond-
ent's manager, and Fred A. Muff, Respondent's brother (now deceased). The
Union's representative submitted a draft of a proposed contract and it was dis-
cussed in detail. The meeting lasted for several hours and at its close arrange-
ments were made for another meeting to occur on'November 15.
On November 13, 1949, de la Laing notified the Respondent that inasmuch
as the Union had "asked the National Labor Relations Board to intercede in
certain matters pertaining to representations made on behalf of the technicians
employed at KVEC," it was inadvisable to hold the meeting tentatively arranged
for November 15. Presumably, de la Laing was referring to the charge of un-
fair labor practices which the Union filed with the Board on November 8. As
will be seen hereinafter, in the interim between the meeting of October 26 and
de la Laing's letter of November 13, the Respondent had engaged in conduct
irreconciliable with bona fide collective bargaining between herself and the
Union.
By letter dated November 27, 1949, de in Laing advised the Respondent that
the Union wished "to arrange a meeting in the near future to consummate
negotiations," " and suggested December 8 or 9 for a further meeting.
By letter dated November 30, the Respondent notified de la Laing that she had
arranged with the Santa Maria Valley Employer's Council, hereinafter called the
Council, to act as her bargaining representative, and that arrangements for a
further meeting would have to be arranged with this agency.
By letter dated December 3, de la Laing addressed the executive secretary
of the Council, W. H M Swett, and requested a meeting on December 9. By
letter dated December 6, Swett replied :
11 Certain clauses of the Union's proposed contract had been agreed upon at the October
26 meeting
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will' not be possible for me to meet with you December 9, 1949, due
to prior commitments of long standing . As soon as I can clear my calendar
I will advise you an approximate date for a meeting.
You can appreciate the fact, I am sure, that until such time as the unfair
labor practice charges you filed against Station KVEC are disposed of and
the question of representation is properly determined that any meeting we
may have could only be an informal discussion of the general situation.
It is my hope that these matters will be cleared up in the near future
The Union's representative did not reply to this letter and had no further
communications from Swett
By letter dated January 30, 1950, Respondent's counsel, Frederick A Potruch,
notified de la Laing, in substance, that without certification by the National
Labor Relations Board it would be necessary for the Union to submit proof of
majority representation "to enable" the Respondent to proceed on negotiations
with it. Potruch made reference to the fact that the Union, shortly after the
meeting of October 26, 1949, had filed a petition for certification with the Board,
a petition which it had later withdrawn.
It is clear from the foregoing, and is found, that the Respondent by the Swett
letter of December 6 and by the communication of her counsel dated January 30,
1950, refused to bargain with the Union The Swett letter conditioned further
bargaining on disposal of the pending charges of unfair labor practices and a
determination of the "question of representation." 12 That the filing of an unfair
labor practice charge affords no justification for a refusal to bargain is too well
settled to require comment. Both letters conditioned further bargaining con-
ferences on proof by the Union of its majority representation. If a question of
representation actually had existed at the time these letters were written, or if
the Respondent had entertained a bona fide doubt as to the Union's majority
status, the refusal to bargain may well have been justified, but such was not
the case.'
When de la Laing presented himself to the Respondent as bargaining repre-
sentative of the technicians, all of the technicians had authorized the Union
to represent them. It is argued by Respondent's counsel that at the meeting of
October 26, Muff, the Respondent's brother who attended that conference, chal-
lenged the Union's majority and de in Laing declined to proffer proof of the
Union's majority. Hacker so testified. I do not credit this testimony. Ad-
mittedly, at some point during this conference de la Laing took the authorizations
out of his brief case and then returned them without actually showing them
to the Respondent. It was de la Laing's testimony that he took the cards out
at the time that he asked the Respondent's representatives if they questioned that
he represented the technicians, and when there was no response he returned the
cards to his brief case. I find de la Laing's testimony credible because he then
had in his possession authorizations from all the technicians, and had the
Respondent expressed a doubt of the Union's majority status, it seems entirely
unlikely that he would have made the gesture of displaying the cards and then
refused to permit their inspection.13 Too, it seems unlikely, had the Respondent
12 Obviously , the offer made in Swett's letter to meet with 'the Union's representative
only for "an informal discussion of the general situation was not an offer to bargain col-
lectively , and, in any event , contrary to the statement contained in his letter , he at no
time advised the Union's representative of an "approximate date for a meeting "
13 That de la Laing a few days following his conference with the Respondent filed a
petition for certification does not appear to me to have any bearing on his credibility. The
fact is that he had authorization cards from all the technicians he purported to represent,
but he may very well have considered that certification by the Board would strengthen
his bargaining position.
RADIO STATION KVEC 633
entertained a. bona fide doubt of the Union 's majority , that she and her repre-
sentatives would have met with de la Laing and spent several hours in a detailed
discussion of the proposed contract . I conclude and find that the Respondent
at no time had a bona fide doubt of the Union 's majority status.
Accordingly, it is found that the Respondent on December 6, 1949, refused,
and at all times thereafter has refused to bargain with the Union , in violation
of Section 8 (a) (5) of the Act, and thereby has interfered with, restrained,
and coerced her employees , in violation of Section 8 (a) (1) of the Act.
B. Interference, restraint, and coercion
On the day following the meeting between the Union's representative, de la
Laing, and management, on the Union's proposed contract, Jacobson, the Re-
spondent , asked Ryno , then employed at the FM transmitter , if he knew that the
Union's representative had been at the studio, and also asked him if all the
technicians were in the Union together. Ryno replied that they were. The
Respondent then told Ryno that if the Union came in, it would be necessary for
the Respondent to operate on a combination basis and she would have to shut
down the FM transmitter in order to pay the salaries required by the Union's
proposed contract.
On the following day, Muff, the Respondent's brother, asked Ryno what papers
he had signed with the Union, and told the latter that though he had signed
up he did not have to "go through with it." He also said that if the Respondent
signed the union contract it would be necessary to go "combination." "
A day or two after de la Laing's visit at the studio, Hacker, Respondent's
manager, saw Stephenson , a technician at the AM transmitter , and told the latter
that he had better start looking for a job and that he should be ready to leave
his present employment not later than November 15, inasmuch as the station would
go combination because of the Union , and Stephenson could not qualify as an
announcer . Hacker also told Stephenson that the technicians should settle
their grievances directly with management.15
It is found that Jacobson 's and Muff ' s questioning of Ryno concerning his
knowledge of union affiliations and activities ; their threats that the Respondent
would go "combination" in the event the Union came in ; Jacobson's statement
that she would have to close down the FM transmitter, where Ryno was then
employed , in order to pay the salaries required by the Union 's proposed contract;
and Hacker 's statement to Stephenson that he would lose his employment because
of union requirements, constituted interference, restraint, and coercion in viola-
tion of Section 8 (a) (1) of the Act.
Within a day or two of de la Laing's meeting with the Respondent , Jacobson
informed Karl Brindle, Respondent's program director, of the meeting with
de la Laing. Brindle later discussed the Union's proposed contract with Hacker.
Convinced that the Union's proposed contract would require that the station
operate on a combination basis, with resultant loss to the announcers of their
jobs inasmuch as they could not qualify as technicians, Brindle aroused the
announcers in opposition to the Union's proposal. A meeting of announcers
was held one evening at Brindles office, and in Hacker's presence the proposed
contract was discussed. One of the announcers suggested that they draw up
16 These findings are based on Ryno ' s undisputed and credible testimony . Jacobson did
not testify Muff was deceased at the time of the hearing
15 These findings are based on Stephenson 's credited testimony Hacker's denial is not
credited . Stephenson was not actually discharged on November 15, and Hacker may very
well not have stated definitely that he would be, but I am convinced that he made the
threat substantially as testified to by Stephenson
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a petition or pledge in opposition to the technicians. The pledge was dictated
and typed in Brindle's office, signed by all the announcers, and Brindle then,
presented it to Jacobson." The pledge, addressed to Jacobson, read :
This is to certify that the announcers on staff at Station KVEC hereby
agree as one, that we collectively stand against any union of engineers.
SAID REASON: (COMBINATION MEN) We do not have a first class radio
technician telephone license. Whereas a union of engineers at KVEC would
consist of combination men (Engineer-Announcers), thereby eliminating
straight staff announcers. We could no longer spin disks, operate remotes
or anything called upon for a staff announcer to undertake. Before this
matter came forth, we were all happy with our work, hours, working con-
ditions, wages and the enjoyment of working for you. Asa group of veterans
who are use to working as a team, we have chosen this way to show our
feelings in this matter.
From the foregoing it is clear, and is found, that the Respondent, through
the instrumentality of her manager, Hacker, and her program director, Brindle,
aroused the staff of announcers in opposition to the technician's organizational
objectives, by threatening them with the loss of their jobs in the event the
Respondent entered into a contractual relationship with the Union Whether
or not Hacker was present during the actual formulation and signing of the
so-called loyalty pledge, he participated in the discussions which preceded it,
and together with Brindle, furnished its motivation.
It is found that the Respondent by threatening her announcers with loss of
their jobs in the event of a contractual relationship with the Union, and by
fomenting 'and participating in the preparation of the so-called loyalty pledge,
interfered with, restrained and coerced her employees in violation of Section
8 (a) (1) of the Act.
On or about November 1, Chief Engineer Tognazzini quit his employment with
the Respondent. When lie called for his final check, Hacker showed him the
petition or pledge signed by the announcers, and at that time he informed
Hacker that he was "100 percent" for the Union. Admittedly, he was in-
censed at the announcer's pledge. At the request of management he was in-
strumental in arranging for a meeting of technician and announcer personnel at
the Respondent's studio. Upon invitation, Jacobson, Hacker, and Muff attended
the meeting and participated in the discussions The Union's proposed contract
was produced by representatives of management and was the topic of much
discussion. It is needless to review the discussion in detail. During the course
of the meeting, the Respondent Jacobson, or Muff, her representative, stated
that under a union contract, the Respondent would have to eliminate certain
of her employees and operate on a combination basis, and suggested that the
technicians negotiate a contract directly with the Respondent, without union
participation. The Respondent also indicated a willingness to pay salaries of
$200 a month to the technicians, most of whom were then drawing salaries of
10 These findings are based on Brindle 's credited testimony . Brindle was no longer
employed by the Respondent at the time of the hearing Edward Warner Rudd, who
uses the professional name of Ted Warner , then an announcer , took Brindle ' s place as
program director when Brindle resigned . He testified that Hacker did not show the
announcers the Union 's proposed contract , and that they saw it only after the pledge had
been presented to Jacobson He also denied that Hacker was present at any time during
the formulation of the pledge . It is apparent , however, from the text of the pledge, that
the Union s contract proposals were known to the announcers at the time the pledge was
drawn up. Rudd 's testimony, wherever in conflict with Brindles , is not credited Hacker's
denial that he showed the announcers the Union contract is not credited.
RADIO STATION KVEC 635
approximately $175. This offer was obviously conditioned upon the withdrawal
of union representation. Jacobson also stated that he had a prospective buyer
of her radio interests, a person then operating a broadcasting station in New
England, and that his staff of some twenty-odd persons were "anxious" to come
to California to work.17
Inasmuch as officers of management were invited to attend the meeting, it is
not found that their mere attendance constituted a violation of the Act. The
fact that they were invited to attend did not, however, license them to bypass
the Union in an attempt to bargain directly with the technicians. Their at-
tempt to do so was violative of Section 8 (a) (1) of the Act. The statements
of Jacobson and Muff that under the Union's proposed contract the Respondent
would be required to go "combination" and eliminate certain jobs, was inherently
coercive and violative of Section 8 (a) (1) of the Act. Obviously, a contract
was a matter for collective bargaining between the Union and the Respondent,
without finality until negotiated and executed, and the Respondent seized upon
a clause in the Union's proposed contract and treated it as if it were a fait ac-
compli in the event the technicians persisted in their union affiliation, for the
purpose of coercing them into a withdrawal of union representation, and for
the further purpose of arousing the announcers against unionization of the
technicians. Jacobson's offer of a salary increase to the technicians in the event
they dealt directly with management and without union representation, was
a "promise of reward," or bribe, condemned by the Act and violative of Section
8 (a) (1) of the Act. Her reference to a prospective purchaser of her properties
with a staff eager to come to California to work, was patently a threat made for
-the purpose of coercing her employees to give up their union affiliations, and, as
such, violative of Section 8 (a) (1) of the Act.
C. The discharges
On January 1, 1950, the Respondent discontinued operation of her FM (Fre-
quency Modulation) station, and the Federal Communications Commission can-
celled her FM license. The FM station has not been operated since. With the
discontinuance of the FM station, the Respondent changed the operation of her
main outlet to the AM station, and thereafter employed only combination tech-
nicians. As a result of this changeover, the position of one technician was
eliminated. The Respondent thereupon discharged Stephenson. Egan was re-
quired to take an announcer's test and when he allegedly failed to pass, he
was discharged. Crane was offered an announcer's test but apparently did
not avail himself of the offer. He was discharged. Thus, of the four regularly
employed technicians as of the period of the changeover, only Ryno remained
in the employ of the Respondent. The status of the announcers remained un-
changed.
It is the Respondent's position that operation of the FM station was dis-
continued because of economic considerations, and that efficient and economical
operation of the AM station thereafter required the services of combination
technicians. It is the General Counsel's position that the changeover was made
for discriminatory purposes.
Hacker testified that the Respondent had suffered a financial loss from the
operation of the FM station each month that it was in operation, because of
inability to obtain sponsors for FM programs. This, he explained, was due
17 These findings are based on the credited testimony of Tognazzini and Stephenson,
much of it undisputed . Testimony in conflict with these findings, though considered,
is not credited.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the fact that few of the station 's potential listeners had bought FM receivers.
"As the result," he testified , "we had no listeners , and without listeners we can-
not sell it commercially ." As early as July 1949, according to Hacker, he had
suggested to the Respondent that the FM operation should be discontinued but
at that time she had applied for a television construction permit from the Fed-
eral Communications Commission and feared that taking FM off the air would
hinder her in getting television.
Hacker testified that in October the operation of the FM station was at its
greatest loss but that no action was taken in the matter until December when
certain operational difficulties added to the cost of keeping FM on the air. The
Respondent then notified FCC that she was taking FM off the air because of
continued financial loss. The FM station was dismantled and its equipment
removed to the AM station to the extent that it could be used there.
There is no substantial basis in the evidence for discrediting Hacker's tes-
timony that Respondent 's FM station was operated at a loss. True , the Re-
spondent produced no records to substantiate Hacker 's testimony , but the Gen-
eral Counsel did not seek the production of such records and offered no evidence
to the contrary . Granted that the Respondent discontinued her FM station
for economic reasons, it follows that the elimination of the position of one
technician was also for economic reasons. There is no basis for finding other-
wise. The issue appears to be narrowed therefore to Respondent 's action in
requiring the technicians retained in her employ after the discontinuance of
the FM station to go "combination ." If this change was made for discriminatory
purposes, Egan and Crane were illegally discharged inasmuch as the principal
ground for their discharge asserted by the Respondent was that they failed to
qualify as announcers.
As we have already seen, with the advent of the Union the Respondent re-
peatedly made the threat that unionization of the technicians would force the
Respondent to operate on a combination basis. This threat was directed mainly
against the announcers who could not qualify as technicians , but as a matter
of fact the discontinuance of the FM station left the status of the announcers
unchanged . Only the technicians were adversely affected by it. And, with the
changeover to combination technicians , the Respondent dropped from her em-
ploy three of the four union technicians , retaining in her employ only Ryno.
There is credible evidence that the Respondent regarded Ryno as having been
influenced by his older associates in affiliating with the Union , and Muff had
suggested to him that he might withdraw from the Union . 18 Thus we have
a combination of circumstances which weigh rather heavily in substantiation
of the General Counsel 's position . On the other hand the Respondent 's defense
is not without substance.
When the Respondent dismantled her FM transmitting station , equipment
was moved to the AM station to enable the broadcasting of station programs
from that station. Hacker placed the value of this equipment at $2,500. He
testified that by requiring the technicians to do some announcing , the regular
staff of announcers was relieved of some work and thereby enabled to give
more attention to program arrangements. "It was a striving more or less for
economic reasons," he testified , "but it had also this production angle, and also
we had this equipment which we had money tied up in."
In terms of salary, operating costs were increased by the changeover to com-
bination technicians , inasmuch as higher salaries were paid than previously,
but salaries , of course , constitute but one item in operational costs, and it is
11 Tognazzini testified credibly that Ryno had been drawn into the Union "mess" by older
men and would be with management had he not been misled.
RADIO STATION KVEC 637
not unreasonable to assume that with the added announcer duties the tech-
nicians held positions requiring a higher salary range. Nor does it seem un-
reasonable that the Respondent would make use of its FM equipment by in-
stituting a system of broadcasting station programs from the AM transmitter
thus augmented by FM equipment. The General Counsel offered no affirma-
tive evidence to show that the changeover to combination technicians was not
a logical development flowing from the dismantling of the FM transmitter, and
economically desirable. In this state of the record I am unable to conclude
that the changeover was for discriminatory purposes, thought doubts and sus-
picions are engendered by the various threats to go "combination" made by
the Respondent prior to the discontinuance of the FM station. In short, it
does not seem to the undersigned that the General Counsel has sustained the
burden of proof in this matter.
We turn now to the individual discharges
Crane, though offered an audition to determine whether he filled the re-
quirements for a combination operator, did not avail himself of the offer, and
was discharged. It does,not seem an unreasonable requirement of a combina-
tion operator that he should submit to some sort of test to determine his qual-
ifications as an announcer. Unlike Ryno and Stephenson, Crane had no prior
record of announcing while in Respondent's employ. I conclude that the Gen-
eral Councel has not shown b3 a predominance of the evidence that he was dis-
criiuinated against.
Egan availed himself of an audition and failed to qualify. The General
Counsel offered no evidence to show that his disqualification was improper or
that Egan had the qualifications normally required of an announcer-technician.
Nor was there evidence tending to show that either Crane or Egan was replaced
by a person similarly lacking in qualifications for the position I conclude that
the General Counsel has failed to sustain the burden of proof with respect to
Egan to
Stephenson's discharge, however, presents a different picture. He was first
employed by the Respondent at her FM station, and while there served as a
combination technician. During this period of his employment, lie was praised
for his announcing by Respondent's program director, Brindle, who testified
credibly that he regarded Stephenson's work as an announcer satisfactory.
But Stephenson was not afforded an opportunity to audition for a combination
technician before his discharge. He was notified by letter dated December 31,
1949, that he was being discharged because of the discontinuance of the FM
station and because he was youngest in terms of seniority. This, patently, was
but a pretext. Assuming, as has been assumed, that the Respondent was
economically justified in closing down her FM station and that the position of
one technician was thereby eliminated, nevertheless, the disqualification of both
Egan and Crane left two vacancies. In view of these circumstances, it is obvious
that the elimination of only one position would have left Stephenson's status
unchanged, since there remained two vacancies on the staff. Realizing, appar-
ently, the speciousness of her position with regard to Stephenson, the Respondent
at the hearing sought to show that Stephenson was negligent and incompetent
in his duties as a technician. This evidence involved two incidents occurring
on December 2 and 3, 1949.
19 In her letter offering Egan an audition for the combination position, the Respondent
complained that she had been inconvenienced when Egan took two additional days over
his 2 weeks' allowed vacation It cannot be said, however, that his discharge was
predicated upon this platter which, in the opinion of the undersigned, provided no
justification for his discharge
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of December 2, while Stephenson was on duty, the AM station
went off the air. Hacker, and Respondent's new chief engineer , Harold Schwartz,
who had gone to work for the Respondent on the previous day, went to the
transmitting station and were advised by Stephenson that there was a mouse
in the transmitter. Schwartz determined that a tube had burned out, and it
was replaced and the station went back on the air. Apparently, they did not
believe Stephenson's story about the mouse in the transmitter. The next evening,
however, the station again went off the air. Schwartz and Muff came to the
transmitter and found that a voltage switch had burned out. This time there
was no doubting Stephenson's story of the mouse in the transmitter. The mouse
was there. Schwartz put a jumper across the switch and got the station back on
the air, extinguishing the mouse in the process. Further investigation showed
an accumulation of rodent nests and other debris in the transmitter, and this
is now charged to negligence on Stephenson's part.
Unquestionably, it is the technician's duty to keep the station on the air
during broadcast hours and it may well be that Stephenson was somewhat remiss
in not getting the station promptly back on the air on both occasions. Rightly
or wrongly, he attributed the difficulty to the mouse in the transmitter, and on
the second occasion, at least, he was justified in advising with his superiors
before attempting an operation which had elements of risk. It appears that on
both occasions his doubt as to the cause of the difficulty was justified. It is not
every day that a technician is confronted with a mouse in his transmitter. The
circumstances were novel and the delay in getting the station back on the air
was not unreasonable under such circumstances. Nor can it be said that Stephen-
son, and Stephenson alone, was responsible for the accumulation of filth in the
transmitter. The accumulated debris was in a portion of the transmitter which
could not be reached while the station was on the air, and to locate it required
the disassembling of equipment which could not be handled by one man.
Both Hacker and Schwartz testified that Schwartz recommended Stephenson's
discharge at the time of these occurrences, but the fact is that Stephenson was
not discharged until nearly a month later, nor was he advised then or later that
the Respondent regarded him as culpable in the matter. At the time of the
termination of his employment his license was marked "satisfactory" and, as
previously stated, the sole reason given him for his discharge was that he was
youngest in seniority. I conclude that Stephenson was not regarded as an
unsatisfactory employee because of the circumstances flowing from the incident
of the mouse in the transmitter, and that this matter was introduced at the
hearing by the Respondent for the purpose of bolstering an otherwise specious
defense.
It is recalled that the technicians signed authorization cards at Stephenson's
house, and that shortly after de la Laing's meeting with the Respondent, Hacker
threatened him with discharge because of the unionization of the technicians.
Ryno informed the Respondent that all the technicians were in the Union, and
there can be no doubt that the Respondent was aware of that fact. The solidarity
of the technicians was demonstrated at the meeting of Nocember 2. I conclude
that the Respondent, with full knowledge of Stephenson's union affiliation, dis-
charged him because of his union affiliation and activities, and thereby inter-
fered with, restrained and coerced her employees in the exercise of rights
guaranteed them by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I, above,
RADIO STATION KVEC 639
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1), (3), and (5) of the Act, it will be
recommended that the Respondent cease and desist therefrom and take certain
affirmative action which is required in order to effectuate the policies of the Act.
It having been found that the Respondent discriminatorily discharged Dwight
L. Stephenson because of his union activities, it will be recommended that the
Respondent offer him immediate and full reinstatement to his former or sub-
stantially equivalent position," without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him by payment to him of a
sum of money equal to that which he would have earned as wages from the date
of his discharge to the dafe of the Respondent's offer of reinstatement, less his
net earnings 21 during said period. The back pay shall be computed in the manner
established by the Board in F. W. Woolworth Company 22 and the Respondent
shall make such records available as is hereinafter provided.
It having been found that the Respondent refused to bargain collectively with
the Union as the exclusive representative of her employees in an appropriate
unit, it will be recommended that the Respondent, upon request, bargain col-
lectively with the Union as such representative, and if an understanding is
reached, embody such understanding in a signed agreement.
The character and scope of the unfair labor practices found to have been
committed by the Respondent indicate an intent to interfere generally with the
rights of her employees as guaranteed by the Act. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing her employees in their right to self-organization 23
On the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS of LAW
1. Local 202, International Brotherhood of Electrical Workers, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All radio broadcast technicians employed by the Respondent excluding
announcers, professional employees, guards and all other employees and super-
visory employees as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. Local 202, International Brotherhood of Electrical Workers was on Oc-
tober 26, 1949, and at all times since has been, the exclusive representative within
the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit
for the purposes of collective bargaining.
4. By refusing on December 6, 1949, and at all times thereafter, to bargain
collectively with Local 202, International Brotherhood of Electrical Workers,
as the exclusive bargaining representative of employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
2° The Chase National Bank, 65 NLRB 827
21 Crossett Lumber Co., 8 NLRB 440, 497-98.
22 90 NLRB 289.
21 May Department Stores , 326 U. S. 376.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By discriminating in regard to the hire and tenure of employment of
Dwight L. Stephenson, thereby discouraging membership in Local 202, Inter-
national Brotherhood of Electrical Workers, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
of the Act.
6. By interfering with, restraining, and coercing her employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent has not discriminated against Milton Crane and Chester
Egan, as alleged in the complaint.
[Recommended Order omitted from publication in this volume I
MONTGOMERY WARD & CO., INCORPORATED and AMERICAN FEDERATION
OF LABOR. Case No. 3-CA-189. March 5, 1951
Decision - and Order
On November 7, 1950, Trial Examiner Henry J. Kent issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent also requested oral argument. This request is hereby
denied because, in our opinion, the record, exceptions, and brief ade-
quately present the issues and positions of the parties.
The Board I 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 Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions and
modifications : 2
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by the following conduct of Manager
Boughton : (1) Interrogating employees Lois Krott, Frances Scordo,
and Loretta Stuckey as to whether they had received solicitation
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Members Houston , Murdock , and Styles].
'The Trial Examiner stated that the complaint alleged that Victor was discharged on or
about July 11, 1949 This date is hereby corrected to June 11, 1949.
93 NLRB No. 89.