Rollins Telecasting, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 613 (N.L.R.B. 1972)

ROLLINS TELECASTING, INC. 613
Rollins Telecasting , Inc. and Teamsters Local Union
No. 648, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 3-CA-4538, 3-CA-4591, 3-CA-4636,
and 3-RC-5218
October 10, 1972
DECISION, ORDER , AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On March 30, 1972, Administrative Law Judge 1
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order' as modified herein.
1. In the latter part of August, H. L. Kelly was
offered a job transfer. Before accepting the transfer,
she inquired whether she would be considered a confi-
dential employee and ineligible to vote in the upcom-
ing election. Respondent's station manager expressed
his opinion that she would be a confidential employee
and therefore would not be eligible to vote in the
election. Having been so informed, she accepted the
transfer . Unlike the Administrative Law Judge, we do
not find that Respondent violated Section 8(a)(1) of
the Act by his statement to Kelly. The fact that the
Board subsequently determined that she was an eligi-
ble voter does not alter the noncoercive nature of his
statement in the circumstances in which it was made.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge' s resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings
3 For the reasons set forth in his separate opinion in United Packing Com-
pany of Iowa, Inc, 187 NLRB No. 132, Chairman Miller concurs in the
issuance of the bargaining order, but only on the basis of Respondent's
serious violation of Section 8(axl) and (3) of the Act as set forth in the
attached Administrative Law Judge' s Decision.
2. We agree with the Administrative Law Judge
that Vice President James Roddey's speech of August
11 was understood by the employees to mean in its
totality that it would be futile for them to vote for the
Charging Party. Roddey emphasized three main
points. First, he pointed out that the Respondent had
previously closed a business enterprise rather than
deal with the Teamsters. Second, he pointed out that
if the Teamsters attempted to force Respondent to
deal with them through a strike, the employees would
lose their jobs "temporarily or permanently" through
replacements. Third, he suggested that the employees
organize a committee to deal with Respondent and
indicated they would benefit by such a procedure.'
The Administrative Law Judge found that all three
points taken together were violative of Section 8(a)(1).
Contrary to our dissenting colleague, the employer's
speech found lawful by the Board in Texaco Inc., 178
NLRB 434, contained no threats or promises. The
employer there did not suggest that employees would
lose their jobs in the event of a strike, and, unlike the
speech in the instant case , was a balanced appraisal
of the rights of employees with respect to union repre-
sentation.
3. In agreement with the Administrative Law
Judge, we have overruled challenges sufficient in
number to affect the outcome of the election, and
have sustained certain of the Union's objections to
conduct affecting the validity of the election. Accord-
ingly we, shall remand the representation case to the
Regional Director for Region 3 with directions that
the challenged ballots be opened and counted, and
that a revised tally issue. If the revised tally establishes
that Teamsters Local Union No. 648, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, represents the majority
of Respondent's employees in the agreed-upon appro-
priate unit the Regional Director shall certify it as the
collective-bargaining representative of the unit em-
4 In concluding that James Roddey's speech to employees on August I I
violated Sec . 8(a)(1) of the Act, Chairman Miller relies solely on the finding
that it contained a veiled promise of benefit for foregoing unionization and
dealing directly with Respondent . Unlike his colleagues , Chairman Miller
would not find that Respondent violated Sec . 8(axl) by the statements
Roddey and Dixon made concerning strike replacements . The Board, in
Texaco Inc., 178 NLRB 434, found similar statements did not exceed the
bounds of protection afforded by Sec. 8(c) of the Act. Furthermore , Chair-
man Miller does not agree that Roddey's speech contained a veiled threat
that Respondent would close down rather than deal with the Union. The
Administrative Law Judge did not credit any testimony to that effect. Rather,
he relied on Roddey' s concession , evidenced soley by the latter's testimony
that he told employees that at another location "it had been the Company's
decision that rather than submit to the demands [of the Teamsters] that we
felt were unreasonable , we would prefer to close that office ." (Emphasis
supplied.) It is upon this testimony that the alleged violation of Sec. 8(axl)
must be tested. Viewed separately or in the context of the entire speech, this
statement does not suggest that Respondent would close down rather than
deal with the Union.
199 NLRB No. 92
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. Otherwise, we shall direct that the election be
set aside and that the Regional Director dismiss the
petition. in Case 3-RC-5218 and vacate all proceed-
ings in connection therewith.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Rollins Telecasting,
Inc., its officers , agents, successors , and assigns, shall
take the action set forth in the Administrative Law
Judge's recommended Order as modified herein:
1. Delete paragraph 1(f) from the recommended
Order.
2. Insert the following after the last paragraph of
the recommended Order:
"IT IS FURTHER ORDERED that the election be set
aside, the petition in Case 3-RC-5218 be dismissed
and all proceedings in connection therewith be vacat-
ed, if, after the opening and counting of the two chal-
lenged ballots, the tally of ballots shows that the
Union has not obtained a majority of the votes cast."
3. Substitute the attached notice for the Adminis-
trative Law Judges.
DIRECTION
It is hereby directed with regard to the election
held on September 28, 1971, in Case 3-RC-5218, that
the Regional Director for Region 3 shall, pursuant to
the Board's Rules and Regulations , within 10 days
from the date of this Direction, open and count the
ballots of Patrick Connelly and John Ryan, and there-
after prepare and cause to be served on the parties a
revised tally of ballots, including therein the count of
the above ballots; and
IT IS HEREBY FURTHER DIRECTED that if the results
according to the revised tally indicate that the Peti-
tioner has received a majority of the total votes cast,
including the above-named challenged ballots, the
Regional Director certify Petitioner as the exclusive
representative for collective-bargaining purposes of
the employees in the appropriate unit. However, if the
revised tally of ballots shows that Petitioner has not
received a majority of the total ballots as provided
above, then it is ordered that the election held on
September 28, 1971, in Case 3-RC-5218 be set aside,
and all proceedings connected therewith vacated.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
The National Labor Relations Board having found,
after a trial, that we violated Federal law in various
ways, we hereby notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT discharge you for engaging in
union activities.
WE WILL NOT promise you raises and other
benefits for rejecting union representation.
WE WILL NOT threaten to close the station if
you vote for union representation.
WE WILL NOT tell you it would be futile for
you to vote for union representation.
WE WILL offer Patrick Connelly and John
Ryan immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions and make
them whole for any earnings they lost as a result
of their discharge on July 16, 1971, plus 6 percent
interest.
WE WILL, upon request, even if the election
held at the station on September 28," 1971, does
not result in certification of Local 648, bargain
collectively with Teamsters Local Union No.
648, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as your exclusive representative and, if
an understanding is reached, embody it in a
signed agreement. The unit appropriate for such
bargaining is:
All our employees at Television Station
WPTZ, Plattsburg, New York and at Terry
Mountain, New York, including office clerical
employees, but excluding sales personnel,
managerial employees, confidential employ-
ees, watchmen and guards, professional em-
ployees, and supervisors as defined in the Act.
All our employees are free, if they choose, to join
Teamsters Local Union No. 648, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion.
ROLLINS TELECASTING, INC.
(Employer)
NATIONAL LABOR RELATIONS BOARD Dated By
An Agency of the United States Government (Representative) (Title)
ROLLINS TELECASTING, INC. 615
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, The 120 Building, 120
Delaware Avenue, Buffalo, New York 14204, Tele-
phone 716-842-3112.
TRIAL EXAMINER'S DECISION
Melvin and Mrs. Kelly. Consequently, I recommend that
the challenges to the ballots of Connelly and Ryan be over-
ruled, but that the challenge to the ballot of Melvin be
sustained. This should lead to a second revised tally of
ballots which will show a majority of Respondent's employ-
ees voted for representation by the Charging Party, and
certification of the Charging Party within the context of
Case 3-RC-5218 will result. (Connelly and Ryan did not
testify explicitly that their challenged ballots were cast for
the Charging Party. However, they initiated the Charging
Party's organizational campaign, and nothing which hap-
pened to them between their discharge and the election
would indicate a change of heart in the interim.) In the event
that it does not, I recommend that certain objections to the
-election held on September 28 be sustained, that the pro-
ceedings in Case 3-RC-5218 be vacated, and that the issue
of Respondent's obligation to recognize and bargain with
the Charging Party be resolved in accordance with the Gis-
sel principle (N.L.R.B. v. Gissel Packing Company, 395 U.S.
575), as found below.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consideration
of briefs, I make the following:
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner: The petition
was filed in Case 3-RC-5218 on July 22, 1971.' The charge
in Case 3-CA-4538 was filed on July 23 . A Stipulation for
Certification Upon Consent Election in Case 3-RC-5218
was approved by the Regional Director on August 23. The
charge in Case 3-CA-4591 was filed on September 17. The
election in Case 3-RC-5218 was held on September 28. Six
challenged ballots were determinative . Objections were
filed on October 4. The charge in Case 3-CA-4636 was filed
on October 20 and amended on October 28 and again on
November 11. The Regional Director consolidated Cases
3-CA-4538, 4591 , and 4636 for hearing and issued a consol-
idated complaint on November 29. He issued his Report on
Challenges and Objections in Case 3-RC-5218 on Decem-
ber 7 . In it, he consolidated Case 3-RC-5218 with the three
unfair labor practice cases in the event a hearing proved to
be necessary . On January 18, 1972 , the Board issued a Deci-
sion and Order in the consolidated cases in which it ordered,
under circumstances which have come to pass (i.e., opening
of the other three challenged ballots and challenges still
determinative), a hearing on three challenged ballots and
several objections . Hearing on all four cases was held in
Plattsburgh , New York, on January 24, 25, 26, and 27, 1972.
(The General Counsel 's motion to correct the transcript is
hereby granted.)
The principal issue litigated was whether Respondent
discharged Patrick Connelly and John Ryan on July 16,
James Melvin on September 9, and H. L. Kelly on Novem-
ber 9 for reasons which violated Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended . For the
reasons set forth below, I find that it did so in the cases of
Connelly and Ryan , that it did not do so in the cases of
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, operates a tele-
vision station known as WPTZ in Plattsburgh, New York.
The station annually grosses more than $100,000 and re-
ceives goods valued at more than $50,000 which are trans-
ported to it directly from points outside the State of New
York. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The Charging
Party is a labor organization within the meaning of Section
2(5) of the Act. ,
II. THE UNFAIR LABOR PRACTICES
A. Facts
1. The discharge of Patrick Connelly and John Ryan
WPTZ is one of three television stations owned by
Respondent. Respondent is part of the media division of
Rollins, Inc. Along with other "media"-i.e., cable tele-
vision, outdoor advertising, and radio-the three stations
are under the direction of James Roddey, group vice presi-
dent in charge of Rollins' media division. In late June and
early July Roddey summoned the managers of the enter-
prises under him to Respondent's home office in Atlanta for
a series of meetings. The television stations' turn came on
July 9 and 10. William Eaton, manager of station WPTZ,
was in Atlanta at that time for that purpose.
Roddey explained to Eaton and the managers of the
other two television stations that various developments in
the television industry such as the loss of cigarette advertis-
' Dates are 1971 unless otherwise indicated.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing revenues after January 1, 1971, had created a problem
with respect to Respondent's anticipated profits. He point-
ed out that income projections which he had made for the
fiscal year that began on May 1 were running behind. He
gave each a budget for the quarter beginning August 1 and
instructed them to work together with the data available,
such as their anticipated revenues, to see what they could
devise in the way of reducing such costs as total salaries,
telephone, gas and oil, stationery and other supplies, and
copying work. He set the month of August as a target date
for bringing costs into line with the revised projection. The
three managers spent the balance of the 2-day conference
working on the task set them by Roddey. Eaton returned to
Plattsburgh on Sunday, July 11.
Eaton held his usual Monday conference with his de-
partment managers the next morning. He reviewed with
them his notes from the conference he had just attended. He
went over briefly such areas as telephone, payroll, expense
for Xerox, technical maintenance expenses, and news ex-
penses. He instructed each to study his own department and
return to him with suggestions he might have for reducing
expenses.
Thomas Beardsley went to work for WPTZ as a studio
technician in February 1971. In May or June, Larry Bender,
the news director, told Beardsley he would keep Beardsley
in mind for an opening WPTZ was thinking of creating in
the news department. Roddey subsequently authorized the
hiring of an additional newsman. Around July 1, Bender
told Beardsley to make a test videotape. Beardsley did so.
About a week later Bender told Beardsley to get a shave and
a haircut because he would be starting in the news depart-
ment on July 25. On Tuesday, July 13, Bender told Beards-
ley that, while his transfer to the news department was still
certain, it was being put off until mid-August because
Beardsley could not be spared from the control room until
Frank Kennedy, engineering supervisor in the studio, re-
turned from vacation.
Overt union activity began later that same day, July 13,
among WPTZ's employees. Discussions of unionization
had been going on among the employees for a month or
more. Eaton was aware of these discussions and knew that
Patrick Connelly was involved in them.
On that afternoon, one of these discussions resulted in
Connelly's telephoning the office of the Charging Party and
making an appointment for the following day.
Patrick Connelly is the son of Robert Connelly,
WPTZ's sales manager. He went to work for the station on
May 19 as a combined film and camera man. In mid-July
his duties included setup and camera work on 5-minute live
newscasts at 7:25 and 8:25 a.m. (WPTZ, an NBC affiliate,
begins its broadcast day at 6:55 a.m. It carries the Today
Show from 7 to 9 a.m. each weekday morning.) Connelly
spent the balance of his workday in sorting, assembling, and
packaging film used by the station. In these tasks he worked
with and assisted Roderick Wilson, WPTZ's film editor.
Connelly was accompanied to the office of the Charg-
ing Party in the late afternoon of July 14 by John Ryan.
Ryan started with WPTZ in March 1970 as a film and
camera man. In June 1970 he transferred to the news de-
partment. In July 1971 his duties included presentation of
the 7:25 and 8:25 a.m. newscasts. He then spent the balance
of his day covering news events and preparing them for
presentation on WPTZ's evening newscasts . He and Con-
nelly went to the Charging Party's office when they finished
work on July 14.
Connelly and Ryan talked to Victor Mousseau, the
Charging Party's president and business agent . They ex-
plained their interest in being represented by the Charging
Party. Mousseau explained the procedures for organizing a
unit of employees. He gave them a supply of a booklet
entitled "The Law and You" which the Charging Party uses
in its organizing campaigns . The back cover of the booklet
is a perforated authorization card which is torn off and
executed by employees who want union representation.
Connelly signed an authorization card on the spot and left
it with Mousseau.
Connelly and Ryan went from Mousseau's office to the
Dairy Queen, a limited menu restaurant next door to WPTZ
frequented by WPTZ's employees. There they discussed
their strategy for signing up WPTZ's employees. Ryan
signed an authorization card at that time. Connelly and
Ryan divided up a list of other employees they thought
would be interested and set out to solicit their signatures.
Connelly signed up Roderick Wilson on July 14; Ryan
signed up Carl Leahy, Raymond Bryant, Donald Colborn,
Lucius Smith , and Cindy Bromley.
The next day, at the station, Connelly and Ryan jointly
signed up Thomas Beardsley, H. L. Kelly, and James Mel-
vin. After work they sought out Richard Maynard at a
baseball diamond and signed him up there. They also went
to Terry Mountain, the location of WPTZ's transmitter.
However, they changed their minds about soliciting Dick
Krause, engineer at the transmitter , and left without
broaching the union subject to him. (Ryan talked to Nevton
Dunn, tower supervisor, about joining the Union at Dunn's
home on the evening of July 15. Ryan and Connelly both
mentioned what they were up to on July 15 to Larry Bender,
Ryan's immediate supervisor. Bender wished them luck.)
Eaton also visited the transmitter on July 15. On his
return, while he was seated in his office a few minutes after
5 p.m., he answered the telephone. The caller was Krause.
Krause asked Eaton if Ryan was there, explaining that his
wife told him Ryan was looking for him. In the course of
this chance conversation, Eaton told Krause that Ryan was
probably looking for Krause in order to get him to sign an
authorization card.
Eaton summoned Ryan to his office at the end of the
8:25 newscast on the morning of July 16. Eaton said, "John,
I am sorry but we are having an economic cutback and we
have to let you go as of the 30th. You are released today.
Hand in your keys." Ryan handed over his keys and tele-
phone credit card. Eaton asked where Ryan's camera was.
Ryan said it was in his car. As Ryan left Eaton's office,
Eaton followed him. They walked through the reception
area outside Eaton's office . Ryan said to the persons in the
area that he would be back with the Teamsters. Eaton fol-
lowed Ryan to Ryan's car. Ryan gave Eaton the camera
equipment which belonged to Respondent.
Eaton summoned Connelly to his office as soon as he
had finished with Ryan. Eaton told Connelly that his posi-
tion was being eliminated due to an economy cutback. Ea-
ton explained that he was eliminating the two live morning
ROLLINS TELECASTING, INC. 617
newscasts as well as a locally produced daytime show called
News of Women or NOW. Eaton asked Connelly for his
keys. Connelly gave them to him, along with some pens and
notebooks which belonged to Respondent . Eaton asked if
Connelly had any personal effects in the building . Connelly
said yes, in the film department , where he worked. Eaton
accompanied Connelly to the film department while Con-
nelly picked up his things , then escorted him to the door.
Ryan and Connelly went directly from the television
station to the Charging Party's office . They told Mousseau
what had happened . He immediately drafted and posted a
demand letter for an all -employees unit . Eaton received it
before noon that same day. Eaton advised Atlanta what had
happened . He carried the Charging Party's demand letter
around unopened until William Ford, a partner in the At-
lanta law firm which represents Respondent , arrived in
Plattsburg several days later. Ford replied to the Charging
Party's July 16 demand letter under date of July 20. He
declined to recognize the Charging Party prior to Board
certification on the ground that Respondent doubted the
Charging Party's majority.
Ryan talked to Bender shortly after his discharge.
Bender told Ryan he had not been aware that any cutbacks
were impending in the news department.
The 7: 25 and 8 : 25 a.m . newscasts were last carried by
WPTZ on Monday , July 19. Arthur Bradley , operations
manager, second-in-command of the station , and an expe-
rienced announcer , performed Ryan's role . The record does
not reveal who performed Connelly's. The record also does
not reveal precisely when the NOW show disappeared from
the air. Apparently it was on or shortly after July 16. The
NOW show had been produced for WPTZ by a Mrs. Twells
on a contract basis. Her connection with the station ended
when the show went off the air.
Connelly and Ryan were paid by Respondent through
Friday, July 30. They did not work after 9 a .m. on July 16.
On July 23 Eaton told Beardsley his transfer to the news
department was being canceled because of an economic
cutback . Connelly's departure caused Wilson to have to
work overtime . Shortly after the election held in Case 3-
RC-5218 on September 28, Wilson asked for an assistant.
Since November Wilson's stepson, a schoolboy, has worked
with Wilson on a parttime basis, performing roughly the
same duties as Connelly other than Connelly's work on the
morning newscasts.
2. The Dairy Queen incident
On July 21 Ryan was seated in the Dairy Queen with
Carl Leahy and Thomas Beardsley when Lincoln Dixon,
WPTZ's engineering manager, came in. Dixon joined the
group . The smile on his face caused Ryan to chuckle. Dixon
said, "You shouldn't laugh now because you are going to
lose." He then said he was sorry that Ryan had lost his job
and added, "In light of the bad labor record of this compa-
ny, John, you definitely should have written a letter to Mr.
Eaton prior to trying to get the Union cards signed, and
prior to getting the Union movement going ." (Dixon had
made a similar comment, that a letter to Eaton before they
started their union activities would have protected Connelly
and Ryan from discharge, to H. L. Kelly on July 16. 1 do
not credit Dixon's testimony that his remark to Ryan,
Leahy, and Beardsley in the Dairy Queen was made after
Ryan expressed some doubt about Respondent 's motive for
firing him.)
Around the same day, Dixon told Dennis McDowell,
a studio engineer , in the course of a conversation about the
union situation initiated by McDowell , it was too bad the
only people who would get hurt would be the employees, the
Company was already making arrangements to bring peo-
ple in in the event of a strike, and the station could keep
running a lot longer than the employees who would go out
on strike.
3. James Roddey's August 11 speech
As already indicated, the petition was filed in Case
3-RC-5218 as soon as Respondent rejected the Charging
Party's July 16 demand for recognition , and the election was
held on September 28. In the interim , Roddey made two
trips to Plattsburgh in connection with Respondent's cam-
paign. He spoke to the employees on August 11 and again
on September 26 or 27. On August 11, in his own words, he
said:
Q. Would you begin at the beginning of the meet-
ing, and describe what you said, and what was said to
you?
A. It is in the testimony I have heard-I have
heard that it was characterized as a speech. It was more
of an extraneous discussion about the Company's posi-
tion.
I think I generally began by explaining why I was
there-that it was generally understood that I was there
because of the Union activities, and that I wanted to
make the Company' s position, as far as the home office
of Rollins , very clear; that we did not want a Union;
that I was there to find out what conditions existed that
would cause the people to want a Union.
In addition to that, I indicated that I had heard
from Mr. Eaton-that he had reported to me that there
were rumors that the Teamsters were a powerful Un-
ion; that they will pull a great deal of pressure on
Rollins through contracts they had with Rollins, and
with companies they dealt with across the country, be-
cause Rollins is a national concern.
Also that I heard the Teamsters were very tough,
and a lot tougher than the last union that had been
active in Station WPTZ. I heard that they would be
able to get the Company to agree with things that the
other union had not.
I pointed out to them that I didn't believe that was
the case; that first of all we had union contracts with
Teamsters in our Company ; that the only connection
we had with the Teamsters was an office in Florida that
they had organized, and that it had been the
Company's decision that rather than submit to the de-
mands that we felt were unreasonable, we would prefer
to close that office.
I indicated that I would be the man that they
would bargain with, and I would deal with them at
arm's length ; that I acknowledge that the Teamsters
were a hard bargaining force , but that I would bargain
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hard also, and that the election, if in favor of the Un-
ion, would not mean they would automatically get all
of these benefits that they felt they wanted; that it only
gave the Union the right to negotiate, and that there
was no legal means by which the Union could force us
to agree with anything that we did not believe was in
the best interest of the Company; that one method they
might use would be to strike.
I told the people that if they did strike under cer-
tain circumstances, that they could be replaced tempo-
rarily or in other circumstances they could be replaced
permanently.
Q. Did you give any explanation for the temporary
or permanent replacement?
A. I don't think there was any question on that
particular issue.
s s • s
Q.... what if anything was said about an employ-
ee committee?
s
A. Well, I have to tell a little background. I had
asked for questions about why they needed a union.
There were several responses, some of which quite
frankly surprised me. Some of the employees said they
were having to get Welfare in order to exist. Some of
them had two jobs in order to support their families.
One remark that was made, was that they had to
get food stamps-federal government food stamps. I
indicated that I was surprised, and that I didn't know
that conditions like that existed.
They also said that the cost of living was extremely
high, and I acknowledged that I didn't know that until
I came up here, and had discussions with Mr. Eaton-
we had discussed the issue and it was pointed out to me
that the cost of living is fairly high in the Plattsburgh
area.
In response to that, I replied to that that if they
would like to get something together, either individual-
ly or as a group or committee, and talk to me, and
explain to me the problems, I would certainly be willing
to do so.
Q. Anything said concerning investigating other
stations?
A. I offered to get the wage scales and the cost of
living figures for comparable markets in upstate New
York, New England and so forth.
Q. What if anything else was said in the course of
the meeting?
A. I believe that particular meeting, there was a
discussion about our recent union activities in Dela-
ware. I pointed out that the Company had won the
election, and that the organizational efforts were at-
tempted by a large national union.
This was cable television, and that the Company
had won the election. I don't remember the exact num-
ber of the vote-I think it was 14 to nothing. I said that
since that time the Company had formed a committee
of employees, and this was working very successfully.
s s • s 0
Q. Going back to the previous meeting, there was
testimony earlier concerning the question about the
discharge of Mr. Connally and Mr. Ryan, and do you
remember that?
A. Yes.
Q. Tell the Trial Examiner what happened.
A. Somebody brought the question up-I don't
remember-several people in the group were quite ac-
tive in asking questions.
One of the persons asked about the termination of
Mr. Ryan and Mr. Connally. I think I remarked that
it was done hastily.
Q. Did you make an explanation?
A. I was asked for an explanation, and I said that
I was not really at liberty to discuss that matter at that
time.
11
4. Janet Newbegin's attempts to get a raise
Janet Newbegin, hired on May 3 at $1.95 an hour, was
sales and engineering secretary at WPTZ. After working 2
or 3 months, she sought a raise.,The evidence with respect
to what resulted from her campaign presents the only signif-
icant credibility conflict in this record. The conflict is be-
tween Miss Newbegin and Lincoln Dixon, one of Miss
Newbegin's immediate supervisors. According to Newbe-
gin, Dixon talked to her in terms of a raise if the Charging
Party did not win the election. According to Dixon, he told
her she would get a raise after the election regardless of the
outcome. More specifically, Dixon testified that he dis-
cussed their conversations about a raise with Roddey, Rod-
dey thought that Miss Newbegin was baiting him in order
to create an unfair labor practice or an objection to the
election, and that, on Roddey's instructions, he told Miss
Newbegin, when she drove him to the Plattsburgh airport
on September 16, that she would get a raise to $100 a week
regardless of who won the election. I credit Miss Newbegin
over Dixon, principally because of the insight provided by
the forthright testimony of Robert Connelly, the sales man-
ager, into the atmosphere at WPTZ in July, August, and
September.
Robert Connelly testified that his son's union activities
so disrupted his home life that he and Patrick were not
speaking to each other during this period. Connelly was
"working on" his wife to determine "what the hell" Patrick
was doing organizing for the Charging Party. Connelly said
to his wife, "He ain't been here long enough for anybody
to hurt him or for him to know anything about the busi-
ness."
Mrs. Connelly said, "Well, your company's skirts
aren't so damned clean either." She said that Patrick had
told her Respondent was trying to bribe Janet Newbegin to
vote for it.
Connelly replied, "No way."
ROLLINS TELECASTING, INC. 619
Miss Newbegin struck me as an intelligent young wom-
an who would have no trouble understanding what was
being said to her by her bosses during the heat of an organiz-
ing campaign . The fact that what was said to her became a
cause celebre at the time convinces me that her version is to
be preferred over Dixon's.
Sometime in late July or early August, Miss Newbegin
began complaining to Dixon that she could not live on her
income. Dixon asked her what she thought a fair salary
would be. She said that she needed $90 a week to live on.
Dixon agreed that she was worth $90 a week and promised
to try to get it for her. The wage freeze instituted by Presi-
dent Nixon in mid-August obviously intervened, for when
Miss Newbegin carried her campaign to Eaton in August,
he told her that he could not give her the raise she deserved
because of the President's wage freeze and the pendency of
the election. This came during a conversation in which Ea-
ton also told Miss Newbegin that there were no advantages
for the employees in a union and pointed out that when the
employees at another of Respondent's companies went on
strike, Respondent simply brought in replacements.
The culmination came on September 16. (The com-
plaint speaks of illegal promises of wage increases by Dixon
on three occasions in August and September "in an automo-
bile on route to the airport and in the studio at WPTZ." My
finding as to the precise date on which this conversation
took place in based on Dixon's testimony, which I credit,
that September 16 was the only occasion during this period
when Miss Newbegin drove him to the airport. Dixon's
memory was corroborated by his pilot's log. In light of
Dixon's admission that Miss Newbegin drove him other
places during this period, I attach no significance to the fact
that Miss Newbegin testified to two different conversations
with Dixon about her salary while on trips to the airport or
to her vagueness as to the precise dates on which these
conversations took place. Respondent's contention that this
allegation of the complaint should be dismissed, especially
in light of its essentially unsuccessful efforts to have the
complaint clarified through a motion for a bill of
particulars, because the General Counsel's evidence did not
conform to his pleadings, is without merit.) On their way to
the Plattsburgh airport that day in Miss Newbegin's car,
Dixon asked her if she remembered their conversation
about $90 a week. When Miss Newbegin said that she did,
Dixon told her that she would get a raise to $100 a week if
the Charging Party lost the election.
When Roddey visited WPTZ a day or two before the
September 28 election, he told Miss Newbegin he would see
to it that any promises which had been made to her were
kept. On September 28, just before she voted, Dixon said to
her, "Remember, I have committed you to the company."
5. H. L. Kelly's transfer
H. L. Kelly went to work for WPTZ on December 14,
1970, as logging secretary under the supervision of Arthur
Bradley, the operations manager . Around August 20 Cindy
Bromley, the continuity secretary, resigned. Because of the
importance of the continuity secretary's job and the quali-
ties required of the incumbent if it is to be performed prop-
erly it was decided to transfer Bradley's secretary, Ann
Bowen, to that position. Bradley offered Miss Bowen's job
to Mrs. Kelly. He explained that Miss Bowen would take
certain of her old tasks-i.e., the preparation of certain
recurring documents-with her to her new job and that Mrs.
Kelly would retain certain of her peripheral duties-i.e., the
preparation of certain weekly reports-but that, in the
main, Mrs. Kelly's new duties would consist of acting as his
private secretary. A new employee was to be hired to take
over Mrs. Kelly's primary duty, logging. Mrs. Kelly had
recently heard, at a union meeting, about some of the intri-
cacies of Board law on unit inclusions and exclusions, in-
cluding the rule relating to confidential secretaries. (The
Charging Party held three meetings for Respondent's em-
ployees during the campaign, one in July and two, appar-
ently in August. Prounion employees, Mrs. Kelly included,
also wore "Vote Teamster" buttons while at work during
this period.) Consequently, she asked Bradley what effect
such a transfer would have on her status. Bradley referred
her to Eaton. Eaton told her that becoming Bradley's pri-
vate secretary would make her a confidential employee and
thus she would be ineligible to vote in the upcoming elec-
tion. Mrs. Kelly asked for some time to think about
Bradley's offer. She eventually accepted. She started on her
new duties on Monday, August 30.
H. L. Kelly's name was not on the list of eligible em-
ployees prepared by Respondent for use at the election on
September 28. Ann Bowen's name was. Mrs. Kelly voted a
challenged ballot. (William Ford, Respondent's attorney
who was at the location on election day, also told her she
could not vote because she was a confidential employee.)
She was challenged by the Board agent conducting the elec-
tion on the ground that her name was not on the list. In his
December 7 Report on Challenges and Objections, the Re-
gional Director concluded that she was not a confidential
employees and recommended that her ballot be opened and
counted; it was, on January 21, 1972, along with two other
challenged ballots, pursuant to the Board's order of January
18, 1972. The revised tally of ballots issued on January 21,
1972, shows 11 votes for the Charging Party, 11 votes
against, and 3 determinative challenges. (The original tally
showed 10 votes for the Charging Party, 9 against, and 6
determinative challenges.)
Shortly after Mrs. Kelly's transfer, Janet Newbegin had
a conversation with Bradley. Miss Newbegin remarked that
Ann Bowen was acting like a 5-year-old and very upset that
Mrs. Kelly was made Mr. Bradley's secretary. She said she
was surprised that Miss Bowen had not figured out that
Respondent made Mrs. Kelly a confidential secretary in
order to kill her vote for the Charging Party. Bradley asked
Miss Newbegin why she did not tell that to Miss Bowen.
Miss Newbegin said she was going to.
At the hearing, counsel for Respondent stipulated that
H. L. Kelly and Ann Bowen were in the unit on various
dates in July on which the General Counsel contends that
the Charging Party represented a majority of Respondent's
employees under the Gissel doctrine, supra, although Re-
spondent reserved its position for future litigation growing
out of Case 3-RC-5218 that, as Bradley's private secretary
on and after August 30, Mrs. Kelly was a confidential em-
ployee. Ann Bowen was Bradley's private secretary on the
July dates in issue.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The discharge of James Melvin
Mrs. Kelly attempted suicide on Monday , September
6, and was taken to a hospital . Bradley visited her on Sep-
tember 7 at a time when her estranged husband was with
her. As a result, Bradley exchanged only a few words with
Mrs. Kelly . On his return to the station , he talked to James
Melvin, a technical director, about Mrs. Kelly's attempt to
kill herself . Melvin blamed the incident on Respondent. He
said, "The [obscenity] capitalistic company, don't they give
a [obscenity] about the people that work here? It is the
company's fault that Kelly is in the hospital ." Melvin, Mrs.
Kelly's friend, visited her on the evening of September 7.
Melvin was on duty at the time . He left the station for an
hour without permission and without the knowledge of any
supervisor in order to go to the hospital . (No issue has been
made in this case about Melvin's conduct on September 7.
The question of whether his discharge was violative of the
Act turns solely on his similar conduct on the evening of
September 8.)
Bradley visited Mrs. Kelly in the hospital again on the
afternoon of September 8. Mrs . Kelly asked him if Melvin
.could visit her that evening . Bradley replied that Melvin had
the evening off. Mrs . Kelly corrected him. Bradley said it
was all right with him if Melvin came to the hospital that
evening.
Evening visiting hours at the hospital end at 8:30.
Shortly before 8 p.m. Mrs. Kelly, distraught that Melvin had
not yet arrived , left her bed and sneaked to a public tele-
phone . She called the station and asked to speak to Melvin.
After a short delay, Melvin came to the phone . The record
does not reveal precisely what they said to each other al-
though, on the basis of Melvin's subsequent conduct, an
inference is justified that it was a highly emotional conver-
sation. Melvin asked Carl Leahy, a tape and projection
loader who was also on duty in the studio that night , to take
over for him and prepared to leave the building.
Bradley was in his office on the second floor of the
station at that time with Shawn Fitzgerald , WPTZ's produc-
tion manager . Melvin went first to Bradley's office. He
paused in the door , said that he had to leave to go to the
hospital, and started walking toward the back stairs without
waiting for an answer . Bradley told Fitzgerald to stop Mel-
vin because Melvin had production to do that night and
Bradley did not want him to leave . (Bradley was referring
to a commercial and an interview scheduled for taping that
evening . As technical director, Melvin would be involved in
that activity.) Fitzgerald called out, "Jim, just a minute,"
and followed him down the hall . He caught up with Melvin
at the top of the rear stairs . Fitzgerald said that Bradley did
not want him to leave , he had production to do. Melvin said,
"I know, but I got to go," added that Leahy was taking over
for him, and continued down the stairs and out the back
door.
Fitzgerald returned to Bradley's office and said, "He
has gone." Bradley asked what Fitzgerald had said to Mel-
vin. Fitzgerald said, "Well, I told him you said he couldn't
leave . He went down the back stairs and I asked him who
was going to take over the board , and he said Carl will
handle it . As he said that , the last thing I saw was one leg
going out the back door ." Bradley called Eaton at home and
told him what had happened . Eaton told Bradley to find out
why Melvin had left so precipitously when Melvin returned
and, if Melvin's explanation satisfied him, let Melvin return
to work.
Melvin left the station a little before 8 p.m. and re-
turned around 9 p.m. He arrived at the hospital a few min-
utes before visiting hours ended . He spent approximately 20
minutes with Mrs. Kelly . In his absence, Leahy performed
the work Melvin would have performed if he had been there
without incident . This consisted of "switching the breaks,"
i.e., performing the necessary operations , at the appropriate
times , to cause local commercials, promotional materials,
and station identifications to go on the air when breaks
occurred between network programs . Leahy indicated that
each of the items aired in this manner had, in fact , gone on
the air properly by placing a checkmark next to it on the
program log . This is the manner in which the person who
is "on the log," i.e., the person who is responsible for main-
taining the program log required of television stations by the
Federal Communications Commission , indicates that the
material aired as logged . However, Leahy did not place his
initials on the pages on which his checkmarks appeared as
the regulations required . Neither did he indicate by signing
on the cover sheet in the appropriate places that he had been
responsible for the log during the hour Melvin had been out
of the station. Thus, at the end of WPTZ's September 8
broadcast day, its log for that period indicated that Melvin
had been responsible for the log during the period of an
hour when Leahy had, in fact, been keeping it. If the log had
been kept properly , Melvin would have signed off on the
cover sheet as of the time he turned the log over to Leahy
and Leahy would have signed on and they would have
reversed the process on Melvin's return . (Melvin was not on
the log for those hours on the evening of September 7 during
which he also left the station in order to visit Mrs. Kelly in
the hospital.)
When Melvin returned to the station , Fitzgerald was in
the control room . He took Melvin upstairs to Bradley's
office. Bradley said , "Jim, where did you go?"
Melvin said , "I went to the hospital , you know that."
Bradley said, "Jim, did you have permission to leave?
We had work to do tonight."
Melvin said, "Stop this [obscenity] and get to the point.
How much of this [obscenity ] am I supposed to take up
with? Can't this company give a guy time off to see some-
body in the hospital?" -
Bradley said, "Did you have permission to leave?"
Melvin said, "No."
Bradley said, "Jim, are you fully prepared to assume
your responsibilities downstairs again?"
Melvin said, "Of course."
Bradley said , "All right, thank you." Melvin returned
to the studio, where he finished his shift without incident.
The production work scheduled for that evening was done.
Bradley telephoned Eaton at home again and informed him
that he had let Melvin return to work.
The next morning, September 9, Bradley checked the
log for the preceding day in his customary manner. He
discovered the aforementioned discrepancies for the first
time. He reported to Eaton . Eaton telephoned Atlanta and
conferred with Respondent's authority on FCC regulations
ROLLINS TELECASTING, INC. 621
relating to the maintenance of program logs. He was ad-
vised on how to rectify the discrepancies so that the FCC
would not penalize WPTZ if it discovered what had hap-
pened. Pursuant to this advice, Bradley prepared and signed
a To Whom It May Concern memorandum explaining what
had happened, which was attached to the front of the log.
That evening, when Leahy was again on duty, Bradley
asked him to sign and initial the September 8 log. Leahy said
he wanted time, in view of Melvin's discharge earlier that
day, to get some legal advice before he did so. Leahy was
summoned to the station the next morning, September 10,
by Eaton. Leahy checked with Mousseau before he went.
He arrived at the station a little after noon. He signed and
initialed the September 8 log. He demanded and received 4
hours' pay for being called in 4 hours before his normal 4
p.m. starting time.
Meanwhile, on September 9, Melvin reported for work
at 3 p.m. He was summoned to Eaton's office. Eaton said
he was sorry but, due to what had happened the night
before, he had no alternative but to dismiss Melvin. He gave
as his reason the fact that Melvin had left the station with-
out permission and committed a serious FCC log violation
the previous evening. Melvin, upset, said he hoped Eaton
was glad he had finally got Melvin. He added that his only
regret was that he had let his professionalism slip to the
point where he made a mistake in logging. Melvin asked if
he was to receive 2 weeks' pay. Eaton said no, when a person
is fired for cause, he is not entitled to 2 weeks' notice,
Melvin was to leave immediately. Eaton asked Melvin for
his keys. Melvin gave them to Eaton and left.
Melvin returned to the station on September 16 in or-
der to find out whether he was going to receive pay he
thought he was entitled to for showing up for work on
September 9. Eaton saw him and told him visitors were not
allowed in the station. Melvin said he had simply come in
to fill out his timesheet. Eaton threatened to throw Melvin
out if he did not leave the building immediately. As Melvin
was leaving the building he was stopped by Lincoln Dixon.
While Melvin was in Dixon's office, Eaton called Dixon on
the intercom. Dixon told Melvin he had better leave the
building. Melvin did so.
It is not uncommon at WPTZ for the person who is on
the log to leave the studio-control room area for short peri-
ods of time to go to the Dairy Queen, or to the toilet, or to
offices on the second floor without signing off and then
back on the log. Similarly, it is not uncommon, although it
happens less frequently, for a technical director to miss a
break because he happens to be out of the control room at
the time for one reason or another and for someone in the
control room to switch it for him and make an appropriate
check mark or marks on the log without initialing the log.
In those cases, the person who has been technically on the
log has been in a position to be personally aware that the
items which the log says were aired were, in fact, aired, as
required by FCC regulations. However, no person who was
on the log has ever turned over the log to another person
under circumstances analogous to the evening of September
8, for example , when he was called home in an emergency
during his shift, without signing off the log when he left and
back on when, and if, he returned. On the other hand, no
employee of WPTZ was ever discharged prior to September
9 for failure properly to perform his duties in connection
with the log. The only instance, prior to September 9, in
which an employee was disciplined involved Donald Col-
born, another technical director. Colborn received a letter
of reprimand for failing to sign off the log at the end of the
broadcast day on several occasions and for switching breaks
in a sloppy manner.
Paragraph (a) of section 73.669 (general requirements
relating to logs) of FCC regulations reads:
The licensee or permittee of each television broad-
cast station shall maintain program, operating and
maintenance logs as set forth in §§ 73.670, 73.671, and
73.672. Each log shall be kept by the station employee
or employees competent to do so, having actual knowl-
edge of the facts required, who in the case of program
and operating logs shall sign the appropriate log when
starting duty, and again when going off duty.
Paragraph 1 of section 17-04.11 (program logs) of
Respondent's operations and precedure manual reads:
Falsifying program logs shall constitute sufficient
grounds for dismissal of the individual or individuals
concerned.
Mrs. Kelly was discharged from the hospital on the
afternoon of September 9. She called Eaton and told him
she was going away for a few days and would probably be
back the middle of the following week. Eaton told her to
take the whole week off if she needed it. He told her to get
better, she had a job with WPTZ for the rest of her life if
she wanted it. While Mrs. Kelly was out sick he arranged
with Roddey for a waiver of Respondent's sick leave rules
so that Mrs. Kelly could be paid for the entire time she was
off. Mrs. Kelly was paid. Eaton and Bradley also held a
meeting of several of the female members of WPTZ's staff,
apparently those with whom Mrs. Kelly had had some per-
sonality conflicts prior to her breakdown, and discussed
with them a compassionate attitude toward her when she
returned.
On Tuesday, September 14, Mrs. Kelly received a call
from Melvin. Melvin told her Bradley was trying to get in
touch with her. Mrs. Kelly called Bradley. Bradley asked
her to come to the station because Eaton and he wanted to
talk to her about coming back to work, her work was piling
up. She went. The upshot of the conference was that Mrs.
Kelly returned to work on the afternoon of September 15.
Mrs. Kelly did not have an easy time of it between
September 15 and the termination of her employment on
November 9. Two additional meetings of female employees
were held after her return. The first was held by Eaton 2 or
3 days after September 15 and was similar to the one held
while Mrs. Kelly was out sick. The second was held around
October 1 as a result of Mrs. Kelly's complaint to Bradley
that the other women were picking on her. Mrs. Kelly,
Bradley, and Eaton were all present at this one. Mrs. Kelly
and the other women aired their grievances. Bradley and
Eaton essayed the role of conciliators. (I do not credit Mrs.
Kelly's testimony that she does not recall participating in
such a meeting around October 1.)
Around October 12 Mrs. Kelly had an exchange with
Bradley illustrative of the strain she was feeling . Bradley
came into the office and asked Mrs. Kelly if she had seen
the sign at the Big N, a discount store across the street from
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WPTZ. Mrs. Kelly said she had not. Bradley said the Big
N was taking applications. Mrs. Kelly asked Bradley if he
had applied. Bradley replied, "Why don't you quit before
we have to discharge you, it would make it simpler." (I have
credited Mrs. Kelly over Bradley as to the direct quotation
for purposes of this Decision. Bradley testified that he re-
plied, "Oh, you don't really mean that." However, I have no
doubt, as Bradley emphasized and as even Mrs. Kelly's
testimony of what led up to the quotation confirms, whatev-
er Bradley said was said in a bantering manner. In view of
Mrs. Kelly's medical history and what I observed of her
emotional state at the hearing, I suspect she heard words
more menacing than Bradley actually spoke.)
7. Other events in October
In October Janet Newbegin's father was seriously ill.
She was given Friday, October 8, off in order to go home
to see him. She was ill on Thursday, October 7, and took off
to consult a doctor, apparently without notifying Respon-
dent. Lincoln Dixon, one of her bosses, went looking for her
and was informed by a neighbor, incorrectly, that she was
at an infirmary. Dixon called the infirmary and was told
that she was not there. When Miss Newbegin returned to
work on October 12, she was called in by Robert Connelly,
her other immediate supervisor. He told her that Eaton had
instructed him to find out why she had been absent without
leave and, if her explanation was unsatisfactory, to fire her.
She explained that she had been given Friday as a day off.
Connelly pointed out that she had been absent on Thursday
also and had not provided a doctor's certificate as required
by Respondent to justify the day off as excused sick leave.
Miss Newbegin interjected the strained situation which ex-
isted at the station as a result of the organizing campaign
which had not yet been resolved by pointing out to Connelly
that Respondent had tried to bribe her to vote for it and
accused Connelly, implicitly if not explicitly, of threatening
to discharge her because of her union activities. Connelly
said that he had heard about the bribe, alluding the conver-
sation with his wife which I have set forth above in connec-
tion with the credibility conflict between Miss Newbegin
and Lincoln Dixon. The result of the incident was that Miss
Newbegin obtained a doctor's certificate explaining her ab-
sence on Thursday, October 7, and was not discharged. She
remained in Respondent's employ until January 5, 1972,
when, apparently, she left of her own volition.
Sometime between September 28 and October 22 a
document fell into Eaton's hands which purported to ana-
lyze, from the Charging Party's point of view, how each
employee had voted in the Board election on the former
date. On the latter date Eaton sent Roddey a personal and
confidential letter which read:
Following is a brief appraisal of all station person-
nel in or out of the voting unit including various opin-
ions as how they may have voted where applicable:
Bird Berdan-Opinion is unanimous , including
the planted or misplaced notes mentioned to you as
reflecting an opinion from the other side, that Bird
voted Company.
Ann Bowen-Although her vote has never been
opened there is no doubt how she voted or where she
stands, and she has been a great and loyal help through
it all.
Mike Kandis-All parties including previously
mentioned one from the other side count him as a Com-
pany vote.
Leon Kelly-Again unanimous opinion that he vot-
ed Company.
Ed Kozlowski-By opinion from all quarters a
Company vote, and he acted as Company observer
during the balloting.
Dick Krause-He was not shown on the list from
the other side at all, I am confident that he is and was
Company all the way and all others who know him well
enough to express an opinion agree.
Pete Premo-Classified as Company by all parties
including the list from the other side.
Bonnie Shea-Also, classified as Company by all
parties including the list from the opposition.
Andy Chance-He was not reflected one way or
the other on the opposition list, and as you know his
challenged ballot is still unopened. Larry, Art and I feel
confident that when opened his ballot will be Compa-
ny. I might add that when vote count is discussed with
or by anyone miscellaneous opinions seem to agree
that he voted Company.
Dave Hart-Link and I both feel that he voted
Company, the opposition list said Union, Art Bradley
says Union or for which ever side did the last pitch job,
and Larry doesn't feel qualified to have an opinion. I
personally feel that Link is close enough to him, and
that he fed enough comments back to Link about
Henry's and others effort to convert him that I go along
with Links Company position opinion. I don't feel he
is complex enough to attempt to be an actor or that he
would have commented as he did to Link if he were
Union oriented.
Denis McDowell-Link and I both feel he was a
Company vote, the opposition list indicated Union,
when pressed to state an opinion one way or the other
Art and Larry both said they would have to go Union
on him although they aren't strong in their opinions. If
he voted Union he has got to be a fantastic double
agent in my opinion on the basis of various conversa-
tions Link and I have had with him both before and
since the election.
Rod Wilson-The opposition list said Union, I had
him as a question mark before the vote was count-
ed and now for Union. Larry feels he was a Union vote
and Art feels he voted Company. Regardless of vote he
has worked hard keeping film up by himself.
Lucius Smith-Classified as Union all the way
from all quarters. His carpenter work continues as a
real asset.
Al Melite-I had him as a question mark prior to
the election and now feel he was a Union vote, the
opposition list didn't show his name. Art and Larry
when pushed to say one way or another feel he went
Company. Link says he was a Union vote.
Carl Leahy-The opposition list and all parties
before and after agreed that he voted Union. He was
Union observer in the balloting area, and at least he
was open as to where he stood.
ROLLINS TELECASTING , INC. 623
Charley Burnell-Before the election I had him as
a question mark and now feel he definitely went Union.
The opposition list and Larry both said Union, but
Shawn and Art both feel he voted Company. Shawn
seems strong in his conviction that Charlie voted Com-
pany.
Dick Maynard-I had listed as question before
and have no doubt now that he voted Union. The
opposition list, Larry and Art all agree-Union.
Henry Premo-Union all the way including the
opposition list.
George Ryan-Union in all opinions , but he was
not named in either direction on the opposition list.
H. L. Kelley-If it is ever opened and counted
there is no doubt it will be Union.
Jan Newbegin-Definately [sic] Union in the
opinion of all parties including the opposition list. Pres-
ent attitude leaves something to be desired.
Don Colborn-Union all the way including the
opposition list. Attitude has been miserable during all
of this period:
John Ryan , Pat Connelly and Jim Melvin can all
be lumped together with no doubt about their votes if
and when counted.
That covers the twenty five ballots cast , and pres-
ent attitudes among them are surprising. With the ex-
ception of Don Colborn and Jan Newbegin I feel
present attitudes are very good among what I class as
the Pro Union people . A lot of the Company people
feel frustrated presently waiting to see what happens
next . In my present opinion we would be much better
off if we could get rid of Colborn, Newbegin and H. L.
Kelly . H. L. is very intelligent, is presently doing a good
days work, but is just too weird to contribute to orderly
operation of the station. Colborns attitude stinks and
is not likely to change, and Jan Newbegin is not doing
what she is capable of putting out. Beyond those three
if their are others that we would be better off having
work for some other company I would OK them going
up the list from bottom to top starting above H. L.
Should we have another election the following
would now be added to the list of eligible voters: Doro-
thy Matthews , Fred Delaney, Joe Campos & Bob
Shimko . Of these four the Company could count on
Dorothy Matthews and Fred Delaney . I'm not sure at
this point about the other two.
Now let's touch on supervisors and their involve-
ment:
Link Dixon-Link is tired at present and suffering
from moving bone fragments in his airplane crash bat-
tered jaw. In spite of this he gave the Company full
support through all of this and has been pushing hard
on our construction activities.
Nev Dunn-Pushes hard for the Company all the
way.
Frank Kennedy-I don't feel took an active part
in either direction during the preelection period. He has
been giving all out effort during and since on the con-
struction projects in the station.
Art Bradley-Did exactly what he was told or
asked to do during the preelection period and contri-
buted greatly by filling in on air , and in various open
shots.
Shawn Fitzgerald-Came to life and made an all
out effort during the preelection period . Has been
working very hard since getting ready in the studio for
color cameras to be activated.
Larry Bender-Made an all out effort prior to the
election and has put in many extra hours in effort to
plug the holes in the news department . Strain of news
department problems and personal problems is show-
ing.
In a category all by herself in more ways than one,
Ellen Wells has been truly both a "confidential" and
dependable staff member through all of this activity. I
don't want her face to get too red typing this memo, but
it is a shame that more families don't turn out daugh-
ters that measure up to her standards.
8. The discharge of H. L. Kelly
Around 1 p.m. on November 11 Mrs. Kelly was work-
ing at her desk in Bradley's office when she overheard Ann
Bowen say to Bradley, "When am I going to get the Aubu-
chon continuity report out?" The Aubuchon continuity re-
port is a monthly document sent to an advertiser. As of
November 11 the report covering the month of October was
several days overdue . Most of it had already been prepared
by an employee other than Mrs. Kelly and Miss Bowen.
Approximately 30 minutes ' work remained . Preparation of
the Aubuchon continuity report was not one of Mrs. Kelly's
regularly assigned tasks . Mrs. Kelly considered it to be Miss
Bowen's work. Miss Bowen was one of the female employ-
ees at the station whom Mrs. Kelly thought was persecuting
her. Bradley 's reply to Miss Bowen was that he would have
Mrs. Kelly do it.
Around 4:30 p.m., when Mrs. Kelly was busy with one
of her regular tasks , Bradley told her to finish the Aubuchon
continuity report. She told him that she was too busy with
what she was doing . She finished the task she was working
on at 5 p.m., her regular quitting time, and prepared to leave
the station. Bradley asked about the Aubuchon continuity
report . An emotional scene ensued in the course of which
Mrs. Kelly asked Bradley if he was going to use force to
keep her at the station past her quitting time and Bradley
took the position that she must give him a yes or no answer
immediately whether she was going to finish the report.
Mrs. Kelly said she would think about it and let him know
in the morning. Bradley said that, if she did not answer his
question, there was no point in her returning in the morning.
Mrs. Kelly left and never returned.
Mrs. Kelly and Miss Newbegin live together. The next
morning, Miss Newbegin gathered up the personal effects
which Mrs. Kelly had left at the office . She began leafing
through a stenographer 's notebook which Mrs . Kelly had
used in the course of her work and tearing out pages which
contained material which she considered to be Mrs. Kelly's
personal property. Bradley ordered her to stop . A few acri-
monious words passed between them.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and Conclusions
1. Section 8(a)(3)
a. The discharge of Patrick Connelly and John Ryan
Respondent's ostensible reason for discharging Patrick
Connelly and John Ryan on July 16 is that Eaton decided
to eliminate daytime news programs because of the instruc-
tions he had received in Atlanta the preceding weekend in
order to reduce the payroll. It is so obviously a pretext that
setting forth the basis for my conclusion is almost an act of
supererogation.
In the first place, Respondent does not contend that
Eaton was ordered to reduce the payroll at WPTZ by dis-
charging employees. Roddey's testimony about what he said
in Atlanta at the conference of television station managers
makes it clear that salaries were only mentioned in the
aggregate sense of not letting them get out of line with
anticipated revenues. Eaton's own account of his Monday
morning staff conference reflects this same approach. And,
most significantly, Bradley's account of the WPTZ staff
conference shows that, if the payroll was mentioned at all,
it was only in passing, thus:
Q. Tell the Trial Examiner what happened at the
meeting?
A. That meeting was primarily devoted to eco-
nomics within the station , itself.
Q. Tell him what was said?
A. As I recall, the main thrust of the meeting was
that the month of August, I believe, is going to be a very
tight month economically because it is going to be an
example not only to our television operations but to our
corporate office of just how well we can control our
budget and how we can cut what we feel are unneces-
sary expenses, and what we can do as individual de-
partment heads within the station to reduce
expenditures.
He did mention several things,' specifically. I think
one of the things hardest hit was the use of telephone
toll calls. Each one of us or each department, respon-
sibility of each department head has a budget for the
telephone, among other budgets within the shop, and
it was stressed very highly among other things that we
will endeavor to do everything humanly possible to
stay within and hopefully under our telephone budget
and that included the personnel in our budget who
were directly responsible to us as department heads.
Q. Was there any specific discussion of layoffs or
personnel cutback?
A. To my knowledge, no, sir.
Next, the time sequence of Thomas Beardsley's hopes
of becoming a newsman and the dashing thereof is most
significant . On Tuesday, July 13, after the Monday staff
conference but before Connelly's and Ryan's visit to the
Charging Party's office, Beardsley was not told that a third
newsman would not be added to the staff, only that the date
was being postponed.
Finally, there are such traditional indicia of discrimina-
tory motivation as the fact that Connelly and Ryan were
discharged in the middle of the day, the fact that Eaton
escorted each of them from the station, the fact that the
major part of the work each performed continued to be
done by others after they left, and the fact that Wilson, the
man with whom Connelly worked, had to go on overtime
and eventually had to use his stepson part time to keep up
with the work.
The main string to Respondent's bow is the argument
that Eaton, while admittedly being aware of a "rumbling"
of union activity among its employees, was unaware of
Connelly's and Ryan's overt union activities which began in
the late afternoon of Wednesday July 14, when he made his
decision to eliminate the morning newscasts. This argument
turns on the significance to be attached to four lines in the
transcript, thus:
Q. At what point did you make the decision or
consider a reduction in the work force?
A. To the best of my recollection probably about
Wednesday of that week.
At no point in the record does Eaton specifically deny
knowledge of Connelly's and Ryan's activities. At one point
prior to asking the above question, counsel for Respondent
took the following position:
TRIAL EXAMINER: Are you asserting that part
of your defense was a lack of Company knowledge of
Union activities at the time Pat Connelly and John
Ryan were discharged?
MR. BACHELLER: No, our evidence will show
that we had some evidence of Union activities-at least
one day before they were terminated.
I find, on this state of the record plus Eaton's account
of his phone conversation with Dick Krause on the evening
of July 15, that Eaton had knowledge of Connelly's and
Ryan's overt union activities when he decided to eliminate
the morning newscasts. Eaton's personal animosity against
the Charging Party is revealed by his October 22 letter to
Roddey. When Eaton learned that Connelly and Ryan were
the ringleaders of an effort to organize WPTZ's employees,
he have the classic knee-jerk reaction and fired them for it,
seizing on economics as a pretext. When he did so, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
b. The discharge of James Melvin
James Melvin is a more difficult case . The evidence for
and against the General Counsel's pretext theory is closely
balanced. On the one hand, for example, is the fact that no
employee was ever discharged, before Melvin, for his han-
dling of the program log. On the other is the fact that Don
Colborn was officially reprimanded for doing precisely
what Melvin was, in part, ostensibly discharged for doing on
the evening of September 8, i.e., failing to sign off the log
when he left the station for an appreciable period of time.
The Melvin and Colbom cases cannot be equated, of
course, for Melvin's act was much more egregious than
Colborn's. Colborn's sin lay in forgetting to sign off the log
when the station closed down. Melvin's lay in turning re-
sponsibility for the log over to someone else while the sta-
tion was operating and leaving the log in a condition where
it did not reveal on its face that someone other than he had
been responsible. Similarly, all of the haggling in the record
over what persons on the log did when they slipped out for
a cup of coffee or went to the toilet does not shed any real
ROLLINS TELECASTING, INC. 625
light on the issue before me. If there is one thing that is
crystal clear in this record, it is that James Melvin's dis-
charge was unique in the annals of Station WPTZ.
This proceeding contains several strong elements in the
General Counsel's favor. Melvin was discharged not too
long before the election. As the results of the voting estab-
lish, the issue was a close one at the time. Respondent was
strongly opposed to the Charging Party. Melvin was clearly
and obviously identified with the prounion side. His con-
cern for Mrs. Kelly was linked to his attitude toward Re-
spondent as an employer, as his angry, obscene exchange
with Bradley when Bradley returned from the hospital on
September 7 demonstrates. Emotions on both sides were
deeply involved. All the elements are, I think, 'present to
justify an inference that Respondent seized on the events of
September 8 to rid itself of a union advocate if Respondent's
ostensible reason for discharging Melvin will not stand the
most rigorous scrutiny.
Moreover, in the General Counsel's favor are such
items as the fact that WPTZ's programming went on the air
without incident while Melvin was away from the station,
thanks to Carl Leahy, the fact that Bradley permitted Mel-
vin to go back to work when he returned from the hospital,
the fact that production work scheduled to be done on the
evening of September 8 was done, and the fact that Respon-
dent suffered no real harm as a result of Melvin's failure to
sign off and back on the log. In the latter connection, I was
not impressed by the stress Eaton sought to place on the dire
consequences which would surely have resulted if an FCC
inspector had walked info the station on the evening of
September 8. The simple fact is that none did. And, as
Eaton himself conceded, if the log had not been corrected
and a To Whom It May Concern memorandum attached to
it on September 9, it would have been virtually impossible
for an inspector thereafter to discover what happened.
Respondent does not claim that Melvin was discharged
for leaving the station without permission. If it did, the fact
that he did so on the evening of September 7 when he was
not on the log would assume greater significance even
though there is no evidence that Respondent learned of that
incident. Rather, Respondent has consistently maintained
that Melvin was discharged for dereliction of duty while on
the log on the evening of September 8. All of its actions,
including Eaton's statement at the discharge interview that
Melvin was being discharged for leaving the station without
permission and for committing a serious FCC log violation,
were consistent with such a motive. Therein lies the key to
this issue.
The General Counsel introduced into evidence a por-
tion of the FCC regulations relating to logs to rebut the
testimony of Respondent 's witnesses that Melvin's dere-
liction exposed it to serious penalties. The portion in the
record simply establishes the requirement that television
stations maintain daily program logs and sets forth, in de-
tail, what they shall contain. I left the record open to give
Respondent an opportunity to insert other specific portions
of the FCC regulations relating to penalties. Respondent
has not availed itself of this opportunity, although it has
included in an appendix to its brief several FCC decisions
and other documents which bear on the seriousness of log-
ging violations. (Although these are not, literally, "a copy of
the FCC regulation which purports to be on logging which
is not contained in" the exhibit introduced by the General
Counsel, I hereby, pursuant to the commitment I made at
the hearing, designate them as Trial Examiner's Exhibit 1
and receive them into the record of this proceeding.) Never-
theless, it is common knowledge that the FCC holds the
power of life and death over television stations and that
television stations are, with good reason, concerned about
its regulations. In my view, the most significant fact in this
record is the call which was immediately made to Atlanta
when the discrepancies in the September 8 log were discov-
ered and the dispatch with which Eaton and Bradley fol-
lowed the instructions they received to correct them. The
picture I get from all the evidence before me, including the
FCC cases submitted by Respondent, is two executives of
a television station seriously concerned about a violation of
FCC regulations and not thinking, at least for the moment,
of the upcoming election. For that reason I find the General
Counsel has not established by a preponderance of the evi-
dence that Respondent's ostensible motive for discharging
James Melvin on September 9 was a pretext.
c. The discharge of H. L. Kelly
If there is a continuum that runs from the most obvi-
ously illegal discharge in Board history to the most obvious-
ly legal, the case of H. L. Kelly must be as close to one end
as the case of Patrick Connelly and John Ryan is to the
other. The first witness called by the General Counsel was
William Eaton. The first piece of evidence the General
Counsel put into the record was Eaton's personal and confi-
dential October 22 letter to James Roddy. At the end of the
General Counsel' s case I solicited a motion to dismiss from
Respondent so I could throw out that part of the complaint
which alleged Mrs. Kelly's discharge as a violation of the
Act. I did so on the ground that the General Counsel had
failed to make out a prima facie case. The General Counsel
took a special appeal while the hearing continued. The
Board reversed. The only evidence in the record which
might conceivably justify a finding of discriminatory moti-
vation in Mrs. Kelly's case is the references to her in Eaton's
October 22 letter to Roddey. It was my opinion when I
granted Respondent's motion to dismiss that those refer-
ences, taken in the context of all the statements in the letter,
and weighed agains Mrs. Kelly's own account of what hap-
pened on November 11, were not enough to support even
a prima facie case. Nothing that has happened since, includ-
ing the Board's reversal of my ruling, has caused me to
change my mind. I find, therefore, that Respondent dis-
charged H. L. Kelly on November 11 for insubordination
and not for a reason proscribed by the Act.
2. Section 8(a)(1)
a. Miscellaneous allegations
The complaint contains long and elaborate allegations
of independent violations of Section 8(a)(1) of the Act by
Respondent. At the end of the General Counsel' s case I also
dismissed an allegation, predicated on Eaton's October 22
letter to Roddey, that Respondent had created an impres-
sion of surveillance among its employees. The General
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel did not appeal this ruling . On the basis of the
record as a whole , I find no support for an allegation that
Respondent interrogated its employees by the acts of Wil-
liam Eaton, Lincoln Dixon , and James Roddey , in the sense
in which that term of art is used in Board law. (The General
Counsel would infer violations by Eaton and Dixon from
the October 22 letter . I do not think the wording of the letter
will support inferences that conversations with employees,
for instance , in the paragraph on Dennis McDowell, were
coercive in nature . The allegation as to interrogation by
Roddey is predicated on his August 11 speech to the em-
ployees of Station WPTZ . Other allegations of the com-
plaint based on that speech are discussed in more detail
below.)
Another paragraph alleges that Eaton withheld a wage
increase from an employee on or about August 3. This
allegation is predicated on Janet Newbegin 's conversation
with Eaton about a raise . I have found that the conversation
took place in mid-August, based on Miss Newbegin 'a testi-
mony that Eaton gave both the wage freeze and the union
situation as reasons why he could not give her a raise at that
time . No violation occurred at that time since Eaton was not
motivated by the union activities of employees and the Gen-
eral Counsel has not established a pattern of raises which
would have resulted in one for Miss Newbegin around that
time if the election had not been pending even though the
wage freeze might have postponed its implementation. The
fact that Eaton also expressed antiunion sentiments (a strike
elsewhere had caused Respondent to bring in replacements)
in the same conversation does not aid the General Counsel's
case . In any event , the remarks made by Eaton on that
occasion did not exceed Respondent 's free speech rights
under Section 8(c) of the Act . However, allegations that
Respondent violated the Act by promising wage increases
are proved in the record. I find that Respondent violated
Section 8(a)(1) in this respect by Dixon's remarks to Miss
Newbegin on September 16 (she would get a raise to $100
a week if the Charging Party lost the election ) and Septem-
ber 28 ("Remember, I have committed you to the compa-
ny") and by Roddey's remark to her on September 26 or 27
(he would see to it that any promises which had been made
to her would be kept.
Another paragraph alleges threats to discharge em-
ployees by Arthur Bradley , Robert Connelly , and William
Eaton . The allegation as to Eaton is based , once again, on
the October 22 letter . I find no support in it for this part of
the complaint. As with my ruling at the hearing on impres-
sion of surveillance , I find nothing illegal in a supervisor and
manager writing a personal report to his superior which was
seen only by the confidential secretary who typed the fair
copy for him until other employees retrieved the torn pieces
of his handwritten draft from a trash bin and taped them
together . As to Bradley and Connelly , the allegations are
based on their conversations in October with H. L. Kelly
and Janet Newbegin , respectively. The Bradley -Kelly inci-
dent was a joking exchange. Connelly did not threaten to
discharge Miss Newbegin because of her union activities.
Respondent did not violate the Act on either occasion.
Two other parts of this proceeding deserve more de-
tailed treatment . They are Roddey's August 11 speech and
H. L. Kelly's transfer.
b. James Roddey's August 11 speech
Various employees testified and Roddey conceded
that he made the following points either in his opening
remarks to them on August 11 or in the question and answer
period which followed:
1. He countered the argument that the Teamsters are
a powerful union which could get benefits for the employees
by pointing out that on the only occasion when the Team-
sters had organized one of Respondent's enterprises, Re-
spondent had closed it rather than deal with the Teamsters.
He was as hard a bargainer as the Teamsters and would be
capable of resisting the Teamsters' demands for benefits
which Respondent did not want to give.
2. He cautioned employees that, if the Teamsters re-
sorted to a strike, the only legal means available to them to
force Respondent to give in to their demands, they would
be replaced, temporarily or permanently depending on the
circumstances that prevailed at the time.
3. He suggested that the employees organize a commit-
tee to deal with Respondent about their grievances. He
attempted to persuade them that such a course would be
better for them than going union by assuring them he would
act if their claim that they were grossly underpaid proved
accurate by area standards.
The complaint alleges this speech violated the Act be-
cause Roddey suggested to employees that they deal direct-
ly with Respondent rather than through a union, that he
told them another of its "stations" had closed rather than
give in to a union, and that he created an impression among
employees that it would be futile to select the Charging
Party as their bargaining representative . I agree . Roddey
obviously intended to stay within the bounds of permissible
campaign propoganda under Board law. His reference to
temporary or permanent replacements proves that. Howev-
er, when it is coupled with his ready admission that he did
not elaborate on the difference because no employee
pressed the point, it indicates that he intended to come as
close as possible to the line which separates free speech from
illegal statements. When viewed in the context of the meet-
ing as a whole, as well as the total situation which existed
at WPTZ at that time, it is clear that point 1, above, was
reasonably understood by the employees to be a veiled
threat to close the station if the Charging Party won the
election, that point 3 was reasonably understood by the
employees to be a veiled promise of benefits if they rejected
the Charging Party, and that all three points taken together
were reasonably understood by the employees as a message
that it would be futile for them to vote for the Charging
Party. Lincoln Dixon's remarks to Dennis McDowell
around July 21 ("it was too bad the only people who would
get hurt would be the employees, the company was already
making arrangements to bring people in in the event of a
strike, and the station could keep running a lot longer than
the employees who would go on strike") were also coercive,
when considered in context, for the latter reason. Each mes-
sage was violative of Section 8(a)(1) of the Act.
c. H. L. Kelly's transfer
As already indicated, the facet of this proceeding at
ROLLINS TELECASTING, INC.
which I disagree with the General Counsel most profoundly
is the treatment accorded by Respondent to Mrs . Kelly. The
complaint alleges violations of Section 8(a)(1) in that Re-
spondent changed Mrs . Kelly's job classification and duties
in order to keep her from voting in the election and changed
her working conditions because of her adherence to the
Charging Party. If Respondent did such things for such
motives, of course, they would constitute violations of Sec-
tion 8(a)(3) of the Act as well. In fact, the General Counsel
in his brief argues for a Section 8 (a)(3) type remedy even
though the complaint does not allege violations of Section
8(a)(3) in this regard . There is, of course , no legal inconsis-
tency between the General Counsel's pleadings and his
brief, for there is no bar to a Section 8 (a)(3) type remedy for
an appropriate Section 8(a)(1) violation . The point does,
however, point up the basis of my disagreement with the
General Counsel's theory.
The General Counsel emphasizes Respondent's mo-
tive. He points to Janet Newbegin 's comments about Ann
Bowen acting like a 5-year-old and Arthur Bradley's re-
sponse that she should tell Miss Bowen her view that Re-
spondent had made Mrs. Kelly a confidential secretary in
order to kill her vote as the clearest indication in the record
of Respondent's discriminatory motive . I do not read this
testimony as an indication of anything other than that the
employees viewed the transfer in this way and that Bradley
told Miss Newbegin to tell it to Miss Bowen and not to him
when Miss Newbegin brought the subject up. The record as
a whole permits no conclusion but that Respondent acted
toward Mrs . Kelly from motives of compassion throughout.
There is much testimony by Mrs. Kelly in the record,
relied on heavily by the General Counsel, to the effect that
Bradley did not give her any work to do after she became
his private secretary and that various persons at the station
persecuted her. I have not included it in my findings of fact,
above, because I do not believe it. When Mrs. Kelly was on
the witness stand she was obviously a seriously disturbed
young woman. Even if Miss Newbegin's remark to Bradley
about Ann Bowen acting like a 5-year-old is taken as objec-
tive evidence that Miss Bowen and other female employees
treated her shabbily and not as simply a manifestation of
Mrs. Kelly's neurotic point of view, it does not establish that
Respondent, in the person of any of its supervisors , did so.
Every incident in the record which relates to Mrs. Kelly's
personal troubles indicates Respondent 's concern for her as
a human being ; from Bradley's visiting her in the hospital
the day after she tried to kill herself to the meetings he and
Eaton held with employees in order to smooth her path. For
these reasons , I conclude that Respondent's sole motive for
transferring Mrs. Kelly to the job of Bradley's private secre-
tary was its desire, as stated , to fill the job of continuity
secretary in the most effecient manner following the res-
ignation of Cindy Bromley.
The conclusion that Respondent transferred Mrs. Kel-
ly for a nondiscriminatory reason does not, however, dis-
pose of the question of whether Section 8 (a)(1) has been
violated, for the question of Respondent 's motive ceases to
be controlling when the incident is viewed from the stand-
point of what was said to Mrs . Kelly and its effect on her
and other employees . Eaton told Mrs. Kelly that the trans-
fer made her a confidential employee, that confidential em-
627
ployees were barred from the unit , and that she would there-
fore not be able to vote in the election . Regardless of his
motive for making this statement, Eaton was wrong about
her becoming a confidential employee , as the Board has
already ruled in Case 3-RC-5218 . The effect reasonably to
be anticipated from such a statement on employees situated
as were Mrs. Kelly and the other employees of WPTZ was
a restraint on them in the exercise of their Section 7 rights.
When Eaton made this statement to Mrs . Kelly around
August 20 , therefore, Respondent violated Section 8(a)(1) of
the Act.
3. Section 8(a)(5)
At all times relevant to this issue , there were 28 em-
ployees , including Patrick Connelly, John Ryan, and James
Melvin, in the all-employees unit agreed to by the parties in
Case 3-RC-5218. On July 16, the day on which the Charg-
ing Party mailed and Respondent received the Charging
Party's demand for recognition , the Charging Party had
authorization cards from 14 of those employees . On July 19,
the day before William Ford, Respondent's attorney,
opened and replied to the Charging Party's demand letter,
it had 16 . On July 30, it had 18. The only one of these cards
which Respondent contends does not validly designate the
Charging Party as the signer 's representative for purposes of
collective bargaining is that of Dennis McDowell. McDo-
well signed a card for Carl Leahy on July 14. McDowell's
testimony as to what Leahy said to him on that occasion is
as follows:
Q. (By Mr. Bacheller) Referring to the card which
you signed on July 14th and your conversation with
Mr. Leahy, do I understand that he said that the card
is only to find out about the Union?
A. He said that the card was to show that the
employees were interested in having a Union come in
and that this would petition them to come in, but it
didn't necessarily constitute the fact they would get in.
He said we would have meetings with the Union and
we would decide whether we wanted them in there;
that there would be an election ; that signing the card
did not mean that the Union was in or that necessarily
we wanted them in; that we wanted them to petition the
company and talk to them.
Q. Only for that purpose?
A. Right.
In other words , Leahy told McDowell that his authori-
zation card was for an election only. As an "election only"
card, it cannot be counted in determining whether the
Charging Party represented a majority of Respondent's em-
ployees . Eliminating it from the calculations leaves the
Charging Party with 13 valid authorization cards on July 16,
15 or July 19 , and 17 on and after July 30, all in a unit
totaling 28 employees . The Charging Party thus achieved
majority status on July 19, before Respondent rejected its
demand for recognition. Therefore , all the prerequisites to
bargaining required under the Gissel doctrine (N.LRB. v.
Gissel Packing Company, 395 U .S. 575)--i.e., a demand for
bargaining in an appropriate unit a majority of whose mem-
bers have authorized the demanding union to represent
them for purposes of collective bargaining as evidenced by
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valid authorization cards executed by those employees-are
present here in the event Gissel is otherwise applicable.
The Supreme Court's test as set forth in Gissel at 614
that, "[i]f the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election (or
a fair rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once ex-
pressed through cards would, on balance, be better protect-
ed by a bargaining order," then a bargaining order should
issue is met here. Respondent's principle unfair labor prac-
tice was the discharge of Patrick Connelly and John Ryan
for seeking to organize its employees. No violation is more
destructive of the employee rights the Act is designed to
protect. Even if the traditional remedy for discriminatory
discharges results in Connelly and Ryan one day walking
back into the station waving their backpay checks over their
heads to the cheers of an assembled multitude,
Respondent's employees will not soon, if ever, forget the
price they have been forced to pay and the ordeal they have
been put through because of Respondent's violation of the
rights of its employees. I find, therefore, that Respondent
has violated Section 8(a)(5) and (1) of the Act by refusing,
on and after July 20, to bargain with the Charging Party.
III. THE CHALLENGES AND THE OBJECTIONS TO THE ELECTION
Of the three challenged ballots still outstanding in
Case 3-RC-5218, I recommend that those cast by Patrick
Connelly and John Ryan be opened and counted, that the
one cast by James Melvin not be opened and counted, and
that a second revised tally of ballots be issued.
Three objections to the election held on September 28
were referred to me for hearing. The first related to the
discharge of Melvin. Since I have found that the General
Counsel has failed to prove that Melvin's discharge violated
the Act, I recommend that this objection be overruled. The
second related to events which took place on election day.
The third related to events • not specifically alleged by the
Charging Party but uncovered during the investigation of
Cases 3-CA-4538, 4591, and 4636 which occurred during
the critical period; i.e., those events alleged as violations of
Section 8(a)(1) in the complaint in this proceeding which
occurred between the filing of the petition in Case 3-
RC-5218 on July 22 and election day.
The gravamen of the second objection is that Respon-
dent destroyed the so-called laboratory conditions neces-
sary for a fair election by locking the back door to the
station, thus forcing employees to approach the polling
place by a route which led past the offices where executives
and supervisors were working. The back door was, in fact
locked during the election. There was a sign on it which read
"Please use front door from 2 to 4 p.m.," the period during
which the poll was open. The front stairs debouch onto a
second floor reception area. Ellen Wells, who is private
secretary to William Eaton, the station manager, and appar-
ently doubles as receptionist, has a desk in this area. Eaton's
office lies just off it. So does the office of Arthur Bradley,
the operations manager. Eaton was working in his office
during the election. He went into the reception area four or
five times. Bradley was in his office during part of the time.
He greeted several employees as they went by and asked if
they had voted yet. William Ford, Respondent's attorney
who was at the station for the election, waited in the recep-
tion area while the poll was open.
In order to reach the sales office where the poll was set
up, employees had to walk through the reception area and
down a hall past the film department, the newsroom, and
the restrooms . Before the election , Ford placed masking
tape across the hall at the reception area end and at a point
beyond the entrance to the sales office . He issued strict
orders that no one other than employees on their way to the
poll was to cross the tape between the hours of 2 and 4 p.m.
These orders were not violated. By sticking one's head out
the sales office door, it is possible to see down the hall and
into part of the reception area.
There is nothing in these arrangements and/or events
which in any way affected the outcome of the election. I
recommend that the second objection be overruled.
With respect to the third objection referred to me for
hearing, I have already found that Respondent violated
Section 8(a)(1) of the Act by Lincoln Dixon's conduct on
September 16 and 28 and James Roddey's conduct on Sep-
tember 26 or 27 in promising Janet Newbegin a raise if she
voted against the Charging Party; by Roddey's conduct on
August 11 in threatening to close the station if the Charging
Party won the election, in promising employees benefits if
they rejected the Charging Party, and in telling employees
it would be futile for them to vote for the Charging Party;
and by William Eaton's conduct around August 20 in telling
H. L. Kelly that she was being transferred to a confidential
employee's position and would, therefore, not be able to
vote in the election. All of these events took place during the
critical period. Together they interfered with the election
sufficiently to invalidate the September 28 election. I rec-
ommend that the third objection be sustained.
If the second revised tally of ballots issued in Case
3-RC-5218 after the ballots of Patrick Connelly and John
Ryan are opened and counted shows that a majority of the
valid votes cast on September 28 were cast for the Charging
Party, I recommend that the Charging Party be certified. If
it does not, I recommend that the election held on Septem-
ber be set aside and that, in conformity with my recommen-
dations below in Cases 3-CA-4538, 4591, and 4636, all
proceedings in Case 3-RC-5218 be vacated.
Upon the foregoing findings of fact, and upon the en-
tire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Rollins Telecasting, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local Union No. 648, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees of Respondent at its Television Sta-
tion WPTZ, Plattsburgh, New York, and at Terry Moun-
tain, New York, including office clerical employees, but
excluding sales personnel , managerial employees, confiden-
tial employees, watchmen and guards, professional employ-
ees, and supervisors as defined in the Act constitute a unit
ROLLINS TELECASTING, INC.
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times on and after July 19, 1971, the Charging
Party has been and is now the representative for the purpose
of collective bargaining of the employees in the unit de-
scribed above within the meaning of Section 9(a) of the Act.
5. By refusing, on July 20, to recognize the Charg-
ing Party as representative of the employees in the unit
described above for the purpose of collective bargaining
and by refusing at all times thereafter to recognize and
bargain with the Charging Party, Respondent has violated
Section 8(a)(5) and (1) of the Act.
6. By discharging Patrick Connelly and John Ryan on
July 16, 1971, for engaging in union activities, Respondent
has violated Section 8(a)(3) and (1) of the Act.
7. By promising an employee a raise on September 16,
26 or 27, and 28, 1971, if she voted against the Charging
Party; by threatening to close the station if the Charging
Party won a Board representation election and promising its
employees benefits if they rejected the Charging Party, both
on August 11, 1971; by telling its employees, on July 21 and
August 11, 1971, that it would be futile for them to vote for
the Charging Party in a Board representation election; and
by telling an employee on or about August 20, that she
was being transferred to a confidential employee's position
and would, therefore, not be able to vote in a Board repre-
sentation election, Respondent has violated Section 8(a)(1)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
James Melvin on or about September 9, 197.1, and H. L.
Kelly on or about November 9, 1971, have not been sus-
tained.
10. The allegations of the complaint that Respondent
violated Section 8(a)(1) of the Act by various acts and con-
duct not expressly found violative herein have not been
sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and remedy them. As
already indicated, I will recommend that Respondent be
required to recognize and bargain with the Charging Party
as the duly designated representative of its employees and,
-if an understanding is reached, embody it in a signed agree-
ment in the event that further processing of Case 3-
RC-5218 by the Board does not result in the same duty
being imposed on Respondent by a Board certification.
Since the discharge of Patrick Connelly and John Ryan for
engaging in union activities , the basis for my recommenda-
tion that Respondent be required, in any event, to recognize
and bargain with the Charging Party, was such an egregious
violation of the Act, I will also recommend entry of a broad
rather than a narrow order. With respect to Connelly and
Ryan , I will recommend the usual remedy of reinstatement
and backpay computed on a quarterly basis, plus interest at
629
6 percent per annum, as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716. Finally, I will recommend that Respondent
be required to post appropriate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER2
Rollins Telecasting , Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) In the event Case 3-RC-5218 does not result in
certification of Local 648, refusing to recognize and bargain
with Teamsters Local Union No. 648, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of its
employees in the unit found appropriate herein.
(b) Discharging employees for engaging in union activ-
ities.
(c) Promising employees raises and other benefits if
they reject union representation.
(d) Threatening to close television stations if employees
vote for union representation.
(e) Telling employees it would be futile for them to vote
for union representation.
(f) Telling employees they are being transferred to a
confidential employee's position and thus are ineligible to
vote in a Labor Board representation election when, in fact,
their transfers are not to confidential positions.
(g) In any manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, in the event Case 3-RC-5218 does
not result in certification of Local 648, bargain collectively
with Teamsters Local Union No. 648, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the
employees in the unit found appropriate herein and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Offer Patrick Connelly and John Ryan immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions and
make them whole for any earnings they lost as a result of
their discharge on July 16, 1971, plus 6 percent interest.
(c) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
2 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Section
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its television station in Plattsburgh, New
York, copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
3 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith .4
IT Is ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations by Respondent of Section 8(a)(3)
and (1) of the Act by discharging James Melvin or or about
September 9, 1971, and H. L. Kelly on or about November
9, 1971, and insofar as it alleges violations by Respondent
of Section 8(a)(1) by acts and conduct not expressly found
violative herein.
° In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 3, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."