Station KDRO

National Labor Relations Board - Board Decisions

Apr 17, 1951

93 N.L.R.B. 1440 (N.L.R.B. 1951)

1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MILTON J. HINLEIN, AN INDIVIDUAL, D/B/A STATION KDRO and AMER-
1CAN FEDERATION OF RADIO ARTISTS, AFFILIATED WITH ASSOCIATED
ACTORS AND ARTISTES OF AMERICA, AFL, AND INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, ACTING FOR ITSELF
AND IN BEHALF OF AMERICAN FEDERATION OF RADIO ARTISTS, AFL,
Case No. 17-CA-293.April 17, 1951
Decision and Order
On December 28, 1950, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Murdock].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the modification noted in the margin.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Milton J. Hinlein, doing
business as Station KDRO, Sedalia, Missouri, his agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of
Radio Artists, affiliated with Associated Actors and Artistes of Amer-
ica, AFL, as the exclusive representative of the employees at his radio
i In adopting the Trial Examiner's finding that the Respondent violated Section 8 (a)
(3) of the Act by discriminatorily discharging Harvey, the Board agrees with his con-
clusion that the "threatening manpower shortage" was not the motivating cause for the
discharge, but it does not agree that the manpower shortage would not have constituted
a logically plausible reason for discharge absent the Respondent's antiunion motivation.
Specifically, we reject the Respondent's defense based on the threatened manpower short-
age because, as found by the Trial Examiner, Hinlem's testimony on this point was "con-
fused," this defense represented "a shifting of reasons" for Harvey's discharge, and the
record as a whole shows that Harvey's discharge was due to his "admission to Respoddent
that he had joined the [Union] movement
93 NLRB No. 250.
STATION KDRO 1441
station in Sedalia, Missouri, with respect to rates of pay, wages, hours
of employment, and other conditions of employment, in the following
appropriate unit: All announcers, excluding supervisors as defined in
the Act.
(b) Discouraging membership in American Federation of Radio
Artists, affiliated with Associated Actors and Artistes of America,
AFL, or any other labor organization by discharging, or refusing to
reinstate, any of his employees, or by discriminating in any other
manner in regard to their hire and tenure of employment, or any
term or condition of employment.
(c) Interrogating his employees concerning their union affiliation,
activities, or sympathies; or requesting them to comply with any
contract not to become members of any union.
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist American Federation of Radio
Artists, affiliated with Associated Actors and Artistes of America,
AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : ,
(a) Upon reggest, bargain collectively with American Federation
of Radio Artists, affiliated with Associated Actors and Artistes of
America, AFL, as the exclusive representative of his employees in the
aforesaid appropriate unit at his radio station in Sedalia, Missouri,
with respect to rates of pay, wages, hours of employment, or other
conditions of employment.
(b) Offer to Robert Younger and James R. Harvey immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make each of them whole for any loss of pay he may have suffered
by reason of the discrimination against him, in the manner provided
in the section of the Intermediate Report entitled "The remendy."
(c) Post at his radio station in Sedalia, Missouri, copies of the
notice attached to the Intermediate Report and marked Appendix A.2
2 This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words , "The recommendations of a Trial Examiner" and substitut-
ing in lieu thereof the words, "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be inserted before the
words, "A Decision and Order" the N^ords, "A Decree of the United States Court of Appeals.
Enforcing "
943732-51-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the said notice, to be furnished by the Regional Director for
the Seventeenth Region, shall, after being duly signed by the Respond-
-ent'srepresentative, be posted by Respondent immediately upon receipt
thereof and maintained by him for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of the receipt of this
Order of the steps the Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
Mr. Witham J. Scott, for the General Counsel.
Mr. William. F. Brown and illessrs. Lamm, Barnett, and Wolfe, by Mr. Chester
L. Wolfe, of Sedalia, Mo, for the Respondent.
Mr. John J. Manning, of Kansas City, Mo., for the Unions.
STATEMENT OF THE CASE
Upon charges duly filed by the American Federation of Radio Artists, affiliated
with Associated Actors and Artistes of America, AFL, herein called AFRA and
on occasion the Union, and International Brotherhood of Electrical Workers,
AFL, herein referred to as IBEW, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Seventeenth Region (Kansas
City, Missouri), issued a complaint dated August 30, 1950, against Milton J.
Hinlein, an individual, doing business as Station KDRO, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint,
the charges, and notice of hearing were duly served upon'the Respondent and
the charging parties.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent : (1) On or about May 16, 1950, and June 9, 1950, discharged
Robert Younger and James R. Harvey, respectively, because they had joined or
assisted the Union or engaged in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection; (2) on May 15, 1950,
and at all times thereafter refused to bargain with the Union as the exclusive
representative of his employees in an appropriate unit; and (3) since on or
about May 15, 1950, has expressed disapproval of the Union, has interrogated
his employees concerning their union affiliation ; has urged, persuaded, threatened,
and warned his employees to refrain from assisting, becoming members of, or
remaining members of the Union, has caused his employees to execute contracts,
has requested his employees to comply with previously executed contracts, and
used other means to prevent his employees from becoming members of the
Union, or of any union.
In his answer, duly filed, the Respondent has denied generally the commission of
any of the unfair labor practices alleged in the complaint and has fprther alleged
affirmatively that: (1) Robert Younger was discharged for the reason that he ex-
hibited a domineering and aggressive attitude toward his fellow employees, and
used profane and abusive language toward his fellow employees, and by his acts
STATION KDRO 1443
and conduct caused a disruption of the normal and customary relationships be-
tween his fellow employees and management; (2) since the date of his discharge
Younger has engaged in acts of violence against employees of Respondent and has
attempted to induce sponsors of programs at Respondent's radio station to have
no further business dealings with Respondent; and (3) James R. Harvey was dis-
charged because of economic pressure and threatening manpower shortage which
compelled Respondent to alter his type of operation and to eliminate the use of
radio announcers and to substitute therefor a "combination man" type of opera-
tion which is customary in small town radio stations throughout the United States.
Pursuant to notice, a hearing was held on October 24 and 25, 1950, at Sedalia,
Missouri, before John Lewis, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. All parties were represented by counsel, participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine the witnesses, and to introduce evidence bearing on the issues.
At the conclusion of the hearing, the undersigned granted a motion by the
General Counsel to amend the pleadings to conform to the proof as to names,
dates, and other formal matters. The undersigned reserved ruling on a motion
by Respondent made at the conclusion of the hearing to dismiss the complaint
as not having been sustained by the weight of the evidence. Said motion is
disposed of in accordance with the findings, conclusions, and recommendations
hereinafter made. A motion by the Respondent, made at the close of 'the hearing,
to delete from the record all reference to an existing strike at Station KDRO
was denied by the undersigned. Opportunity was afforded all parties to argue
orally before the undersigned and to file briefs or proposed findings of fact and
conclusions of law, or both. Respondent and the charging parties waived oral
argument. The General Counsel made the brief oral argument on the record.
Since the close of the hearing a brief has been received from Respondent and
has been carefully considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent operates Station KDRO , a radio broadcasting station, at
Sedalia, Missouri . The station is affiliated with the Mutual Broadcasting System.
National and regional -wide programs are broadcast over the station, as are
commercial recordings received by mail or express from outside of the State of
Missouri Many of these programs are sponsored by advertisers of products
sold Nation -wide . A large percentage of the local programs consists of trans-
criptions and recordings that are sent to the station from outside the State of
Missouri The annual gross revenue obtained by the Respondent from his broad-
casting operations amounts to more than $50 ,000 The Respondent admits and
the undersigned finds that Respondent , in the operation of the aforesaid radio
station , was, at all times material, and now is , engaged in commerce within the
meaning of the Act.'
II. THE ORGANIZATIONS INVOLVED
American Federation of Radio Artists, affiliated with Associated Actors and
Artistes of America, AFL, and International Brotherhood of Electrical `Yorkers,
AFL, are labor organizations within the meaning of Section 2 (15) of the Act.
i The above findings are based on the allegations of the complaint which are admitted
in the answer.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Backgrownd and chronology of events
During the period at issue Respondent employed at his radio station three-
staff announcers and three engineers. The announcers, Robert L. Younger,
James R. Harvey, and James J. Johnston, performed the-usual duties of staff"
announcers in a small radio station, including the making of news broadcasts,,
commercial and market announcements, and acting as "disc jockey." The engi-,
neers performed the mechanical and related duties incident to the physical'
aspects of radio broadcasting. In addition to these rank-and-file employees
Respondent employed a general manager, Herbert Brandes, and an advertising
manager, James Glenn. Brandes prepared the station's daily log or programs
sequence, and handled all correspondence. Glenn, in addition to selling adver-
tising, did some broadcasting of sports events.
The engineers at the station were affiliated with the International Brotherhood
of Electrical Workers (IBEW) with whom Respondent had entered into a col-
lective bargaining agreement in 1943 for a period of 2 years, expiring in May
1950. There is no evidence of union activity among the announcers employed
at the radio station prior to the spring of 1950. Between March and May 1950,
Younger, after discussing the matter with the other two announcers, communi-
cated with officials of the Kansas City Local of the American Federation of
Radio Artists (AFRA) concerning the possibility of that Union's representing
the announcers as bargaining agent. Although the union officials indicated their
willingness to represent the employees, no definite action was taken in the be-
ginning because the announcers were concerned about a clause in the existing
contract between the Respondent and IBEW which gave Respondent the option
of assigning the duties of the announcers to the engineers, who would then.
receive an increase in pay of $10 per week. The combining of the duties of
announcers and engineers, which is referred to in the industry as a "combination
man" type of operation, is not uncommon in radio stations located in smaller
communities where the studio and transmitter are located on the same premises.
.Because of the announcers' concern that Respondent might "go combination,"
thereby dispensing with their services, it was decided to wait until the expiration
of the existing IBEW contract before taking any formal action to affiliate with.
AFRA.
On May 12, 1950, after their contract with the station had expired, the engineers
went on strike and began picketing the station The station remained closed
from May 12 until the afternoon of May 15, when Respondent replaced the strik-
ing engineers with three new employees On May 15, prior to the reopening of
the station on the afternoon of that day, Younger, Johnston, and Harvey flew
to Kansas City and signed formal applications for membership in AFRA. Fol-
lowing their return from Kansas City, the announcers learned that 'the station
had resumed broadcasting and were told by Hinlein to return to their regular
schedules. Johnston, who was scheduled to work the night shift on May 15,
worked the entire shift without incident. Younger, who was scheduled to work.
the morning shift on May 10, reported for work on that day and was discharged
after having worked for about 2 hours. Harvey, who worked the afternoon shift,
performed his regular duties and continued to be employed as an announcer until
June 9, 1950, when he too was discharged. Johnston has remained in the Re-
spondent's employ, although his salary has been increased from $30 to $45 a week
and he now has the title of "program director." Since the discharge of Younger
and Harvey, Respondent has not employed any new full-time announcers. How-
ever, two of the engineers who were hired since the strike now perform com-
bination engineering and announcing duties. For a period of several months,.
STATION KDRO 1445
Respondent also employed a combination salesman-announcer, who spent about
3 hours a day in announcing and the balance of the day in selling advertising.
Shortly after the discharge of Younger, Respondent was notified by AFRA that
it represented the announcers and although several meetings were held no
agreement was ever reached
B. The discharge of Younger
Younger started to work for Respondent in July 1948 and, after leaving in
.July 1949 to take another position, he returned to Respondent's employ in Febru-
ary 1950 When Younger first entered Respondent's employ, lie was required
to sign a written statement agreeing, among other things, not to "become
affiliated with any union organization having a branch in KDRO." 2 As pre-
viously mentioned, Younger took an active part in the efforts to unionize
Respondent's announcers He had discussed unionization with Harvey and
.Johnston at various times in the spring of 1950 and they authorized him to com-
municate with AFRA on their behalf. On several occasions Younger conferred
with Don Roberts, executive secretary of the Kansas City local of AFRA, and
Bruce Grant, its president, but formal action on the part of the Union to
represent the announcers was delayed, as previously indicated, because of the
-clause in the engineers' contract permitting the use of "combination men "
In the latter part of April 1950 Hinlein came into the studio one day and
asked Younger "if the announcers had been talking about a union." Younger
told him that they had talked about it, but had made no decision and had taken
no action at that time. As Hinlein left the studio, he reminded Younger that he
had signed an agreement not to affiliate with any union.'
As previously mentioned, Younger signed an application for membership in
AFRA on May 15, 1950. On May 16, following the resumption of broadcasting
.activities at Station KDRO the previous afternoon, Younger reported for work
on his regular shift at 6 a. in. He worked until S a. in. when the station joined
.the program of the Mutual Broadcasting System, at which time there was a
lull in his work. As was his custom, Younger was about to go across the
street for some breakfast and stopped off at the office of Brandes, the station
manager, to see if the latter wanted him to bring back some coffee. Hinlein,
lvho was in the office at the time, told Younger he wanted to talk to him a few
minutes and closed the door. Younger gave the following 'account of this
.meeting :
He [Hinlein] said he had on reliable authority that I had been nego-
tiating with the union. He said he wanted a frank answer to a frank
question, which I replied that I had been negotiating with the union. Then
he says, "Well, I guess you know what that means" And he told 1\Ir.
Brandes to write out my termination pay. He expressed the thought that
he didn't see how I could do that to him, that I had seen what the guys
2 The complete statement , which is dated July 3, 1948, reads as follows .
TO THE MANAGEMENT OF KDRO
As an inducement to my receiving radio training with KDRO as an announcer and
radio time salesman , I will abide by my guarantee to KDRO not to accept a position
-tinder either capacity with any commercial radio station originating its signals in
the KDRO primary signal area , within two years of severing my connections with
XDRO . .
For the same reasons as above , namely that I look upon KDRO as a school, I will
not during my employment at KDRO become affiliated with any union organization
having a branch in KDRO
8 The findings with respect to this incident are based on Younger 's uncontradicted and
credited testimony
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out front 4 had done to the station, that they were breaking up the "happy-
family," as he referred to it, and that he didn't see how I could, after
seeing what they had done. He didn't see how I could do that to him.
In his answer Respondent denied that Younger was discharged for union
activity and alleged as the reason for his discharge the fact that:
. . the said Robert Younger did exhibit a domineering and aggressive
attitude toward his fellow employees. and used profane and abusive lan-
guage toward his fellow employees, and that the said Robert Younger by
his acts and conduct caused a disruption of the normal and customary
relationships between his fellow employees and management.
To substantiate these allegations Respondent offered his own testimony and
that of Charles Miller, one of the replacing engineers . Miller claimed that.
Younger displayed a "belligerent" attitude toward him on the morning of May
16, basing this conclusion on the fact that when Younger brought some phono-
graph records into the control room for Miller to play as part of the broad-
casting program that morning he "placed the records on the control room table
in such a manner that they made a loud pop" and that Younger at the same
time told him to : "Make sure you keep the god damn records in their proper
slots " According to Miller, Younger also caused him "some anxiety" that
morning by giving him contradictory signals as to how he [Younger] wanted
various records played.5 Hmlein testified that he too observed Younger in
the "cross signaling" to which Miller referred, and that Younger exhibited a
"snarling attitude" in his work. According to Hinlein, Miller reported to him
Younger's lack of cooperation and he later had a discussion with Younger about
the matter in Brandes' office. Hinlein gave the following account of his meeting
with Younger, which as apparently the same meeting about which Younger
testified :
A . . . It was shortly after 8 o'clock relief, Mr. Younger was in the office
and I asked him to sit down in front of Mr. Brande's desk, or I motioned
a chair, to pull up a chair facing him , and I said , "Bob, I want you to level
with me, I want you to put all your cards on the table. What is your gen-
eral attitude? What is going to be your general attitude toward these new
men?" I just about got that out of my mouth when Bob, he just seemed to
burst-that's the only way I can describe it, jack-in-the-box jumping out-
Mr Scorr (interrupting) We object to that kind of testimony.
Q. (By Trial Examiner Lewis) Something seemed to burst out. What
was it?
A. The announcers weren't getting paid right, that if they had a union,
they would get some real money, that the station wasn't run right, that
we were pretty-well, he didn't get much out except a roar that the an-
nouncers weren't getting paid enough, and they felt that it was a thing they
should do, should get paid. It was just a roar, it was quick. I don't think
he got more than two or three sentences out.
Q (By Mr. Brown) Did he make any explanation to you, attempt to ex-
plain or condone his action and conduct that morning up to that time?
A. None whatsoever.
Q What did you do?
A. Having anticipated an explanation and not getting it, and that was
what he was in there for, I turned to Heib when he got the first couple of
* This reference is to the striking engineers who were continuing to picket the station
5 According to Miller's testimony, Younger would signal to him that he wanted a record
"faded" and that when he started to tone down the record, Younger would shake his head
and indicate that he didn't want the record "faded "
STATION KDRO 1447'
words of this is wrong and that is wrong, I said, "Herb, make out his check.
He doesn't want to work for us, it's obvious. Make out a check for two-
weeks' pay."
Conclusions
From a careful consideration of the testimony as a whole the undersigned-
is not convinced that Younger engaged in any misconduct on the morning in
question and, in any event, whatever Younger may or may not have done on the
morning of May 16, the undersigned is satisfied that he would not have been.
discharged but for the fact that Respondent became aware of his interest in the
Union The undersigned found the testimony of Respondent ' s witnesses re-
garding Younger 's alleged misconduct on the morning of May 16 exaggerated,
unconvincing , and in some instances contradictory . With respect to the so -called
"cross signaling" of which Miller claimed Younger was guilty , it is significant
that, although Miller testified this took place on a sufficient number of occasions
between 6 and 8 a. in . to "cause me some anxiety ,"
6 he never even reported this-
conduct to Hinlein.' Although Hinlein claimed that it was unnecessary for
Miller to report this misconduct to him since he himself had seen Younger en-
gaging in the cross -signaling early that morning and observed his "snarling
attitude ," it may be noted that Hinlein said nothing to Younger at the time but
apparently permitted Younger to continue on his merry way causing confusion
and woe for several hours more. It is difficult to believe that if Hinlein had
actually observed Younger in any serious misconduct he would have permitted
him to continue it unchecked .' Hinlein's testimony with regard to the incident
involving the slamming of records and the use of profanity by Younger was also
unconvincing . On direct examination he testified specifically that Miller had
reported to him the fact that Younger had "slammed down records on my-
[Miller ' s] desk" and had used the expression "[ b]e god damn sure that those-
records get back in the right slots." On cross-examination Hinlein testified just
as definitely that Miller had reported to him only Younger ' s use of profanity
and that the "slamming " of the records "wasn't reported to me." Although
Hinlein spoke to Younger soon after Miller allegedly reported to him the latter's-
misconduct , it is significant , according to Hinlein 's own testimony , that he said
nothing to Younger about his having been accused of any wrongful conduct! It
was only later, when Brandes arrived at the station , that Hinlein purported to
talk seriously with Younger about his alleged misconduct . Even at that time,
so far as appears from his testimony , he did not tell Younger what he was
accused of doing or ask for an explanation , but merely asked Younger what his.
"general attitude toward the new men was going to be ." Hinlein 's testimony
as to what occurred thereafter at this meeting was confused and lacked the
ring of verisimilitude.10
O According to Miller, on more than half the occasions between 6 and 8 a in. when
Younger signaled to hum, he gave him contradictory signals
All that Miller reported to Hinlein, according to his own testimony, was the single
incident in which Younger allegedly slammed some records and used profanity
6 According to Hinlem's testimony he first observed Younger's conduct when he arose
that morning, having spent the previous night sleeping at the radio station Hinlein
testified that for about 15 or 20 minutes while lie was lying on his couch and while dress-
ing he could observe Younger engaging in this misconduct
° Younger also testified to having had a conversation with Hinlein prior to the one which
resulted in his discharge According to Younger, Hinlein told him "to help the boys out
as much as I could, that ever} thing was new to them, that they would probably have a bit
of trouble and lie asked me to bear with them, which I consented "
10 Hinlein testified on the one hand that Younger "didn't get much out except a roar
that the announcers weren't getting paid enough" and that it "was just a roar, it was
quick" and, on the other hand, he testified that Younger "roared criticism at everybody,
Herb [Brandes], me, and everybody else"
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds it unnecessary to make any detailed findings concerning
Younger's conduct on the morning of May 16 It may be noted, however, that
according to Younger's testimony any confusion in signaling which existed arose
primarily from Miller's lack of experien@e and not from any deliberate miscon-
duct on Younger's part." Younger was frank to admit that he might have told
Miller to put the records back in the proper jackets but pointed out that this
was the engineer's job and that if they had gotten into the wrong jackets it
would be impossible for the announcer to locate them when a listener requested
a particular record on a request program. Younger denied having used any
profanity, however, and, with respect to the claim that he had slammed the
records, he called attention to the fact that many of the records were breakable
and would have crackbd if laid down as claimed by Miller.
In any event, whatever Younger may or may not have done on the morning
of May 16, the undersigned is satisfied from the testimony as a whole that it was
Hinlein's becoming aware of Younger's affiliation with the Union rather than any
alleged misconduct on Younger's part which was responsible for his discharge.
According to Younger's testimony it was his affirmative answer to Hinlein's
question whether he "had been negotiating with the union" which precipitated
his discharge. Younger impressed the undersigned as an honest and forth-
right witness and his testimony regarding the meeting with Hinlein at which
he was discharged is credited. Hinlein's testimony, on the other hand, was not
characterized by its directness He disclosed a propensity for giving long-
winded explanations for his conduct and was several times cautioned to answer
questions directly. His testimony in many respects was confused and uncon-
vincing, not only with respect to the Younger incident but with respect to other
aspects of the case, as will appear. Significantly, General Manager Brandes,
who attended the meeting at which Younger was discharged and who could pre-
sumably have corroborated Hinlein's version of this meeting, was not called as a
witness although present in the hearing room during most of the hearing.
Younger's version of his discharge comports with Hinlein's earlier conduct toward
him and the Tatter's hostile attitude toward the unionization of his announcers.
It is undenied that Younger was required to sign an agreement not to affiliate with
any union and that within a month prior to his discharge Hinlein called his
attention to this agreement when he inquired from Younger whether the an-
nouncers had been talking about a union. Hinlein's opposition to an announcers'
union was expressed on several occasions when he stated that Sedalia was "too
small for an announcer's union." 12 Even if Hinlein's version of his meeting with
Younger was accepted, it seems evident that Younger's reference to the Union
11 Younger testified that when Miller started playing the National Anthem at the open-
ing of the program it was audible over the studio monitor but was not coming over the
radio and that he signaled to Miller trying to call his attention to this fact. He also
-testified that on several occasions when the former engineer would automatically "fade"
a record Miller failed to do so and it was necessary to signal to him, and that on one occa-
sion when he signaled he got no response from Miller and that it was necessary to signal
again Although Miller denied that his own inadequacy was responsible for any of the
difficulty, he did admit that the equipment at the station was "new" to him and that "my
dexterity was somewhat poor."
12 Johnston, who is still employed by Respondent, testified without contradiction that
shortly, after the strike of the engineers occurred, Hinlein remarked to him in a conversa-
tion that Sedalia "was just too small and there was no place in such a small station and
such a small community for labor organization among the announcers " Royal Cowger,
a business representative of the Teamsters' Union in Sedalia who had been designated by
APRA to represent its interests in that community, also testified without contradiction
that in a conversation with Hinlein the latter expressed the view that Sedalia was "too
small for an announcers' union "
STATION KDRO 1449
played a vital part in the decision to discharge him 13 Any scintilla of doubt as-
to the real reason for Younger's discharge is dissipated by admissions made by
Hinlein after Younger's discharge which indicate that it was the latter's affilia-
tion with the Union which was the real reason for his discharge.14
The undersigned finds and concludes from the preponderant weight of the-
credible testimony that Younger was discharged because of his sympathy and
affiliation with the Union." It is found that by so discharging Younger, Re-
spondent discriminated with respect to his hire and tenure of employment, in
violation of Section 8 (a) (3) of the Act, and thereby interfered with, restrained,.
and coerced his employees in the exercise of the rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (1) thereof. It is further found that
by reminding Younger of the agreement which he had signed not to affiliate with
any union and by interrogating him as to whether the announcers were interested
in a union, Respondent likewise interfered with, restrained, and coerced his em-
ployees in the exercise of the rights guaranteed by Section 7 of the Act, thereby
violating Section 8 (a) (1) thereof.16
C. The discharge of Harvey
Harvey was employed by Respondent as a staff announcer from January 1946-
until his discharge on June 9, 1950. He was senior announcer in point of service
and also had the title of "chief announcer," which gave him the responsibility
for assigning the other announcers to their respective shifts in addition to per-
forming the regular duties of an announcer. He signed an application for mem-
bership in AFRA on May 15, 1950, when he, together with Younger and John-
ston, flew to Kansas City and conferred with officials of the Union.
On the day following Younger's discharge Harvey was overheard by Hinlein
asking Brandes why Younger had been discharged and was called into Hinlein's
office. Harvey testified that when he got into the office Hinlein "launched out--
13 According to Hinlein, his question to Younger regarding his "general attitude" brought
a response from Younger that the announcers needed a union and that the station wasn't
being run right. As soon as Younger got "the first couple of words out" (including, ap-
parently, the reference to it union) Hinlein told Brandes to make out his check
14 Harvey testified, without contradiction, that in a discussion with Hinlein the day
following Younger's discharge the latter told him. "Bob [Younger] was affiliated with-
the union in union activities and he couldn ' t be tolerated in our organization anymore "
Johnston also testified without contradiction that the day following Younger's discharge-
Hinlein, in explaining to him Younger's discharge, stated that he had called Younger-
into his office to question him "regarding his sympathies in the labor dispute" and that
he (Hinlein) could see from Younger's reply that lie "couldn't co-operate with the replac-
ing engineers " Cowger also testified credibly that in a discussion with Hinlein as to the
reason for Younger's discharge the latter advised him that Younger "was too active in
soliciting the other boys in the union."
15 In its brief Respondent argues that the discharge of Younger on May 16 could not:
have been based on discriminatory motives since Hinlein did not receive formal notifica-
tion from the Union that it represented the announcers until May 20. The undersigned,-
finds this argument without merit since , although the Union's request to bargain was not
received until after Younger's discharge, Hinlein was aware on May 16 that Younger had'-
been negotiating with the Union or, at least, that he was sympathetic toward it The
fact that an employee has not actually joined a union does not make his discharge any
the less discriminatory where it is motivated by his sympathy with a union or even by his
employer's mistaken belief that he is a union member or sympathizer (N L. R B v. Vin-
cennes Steel Corp , 117 F 2d 169 (C A 7), enfg as mod , 17 NLRB 825 ; Republic Azia--
tion Corporation, 61 NLRB 397, 414; Industrial Cotton Mills Company, Zaic, 50 NLRB 855,
870)
16 No finding of violation is made based on the execution of the agreement of July 3,
1948, since such incident occurred outside the period of limitation established by Section
10 (b) of the Act However, it may properly be considered as background for events
occurring within 6 months of the serving and filing of the charge (Sun Oil Company, 89•
NLRB 833).
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a talk about loyalty" and told him: "[t]hose bastards on the picket line don't
care for you, they are only interested in themselves" , that Hinlein then spoke
at length about the fact that the striking engineers were "breaking up our happy
family" and didn't care anything about the announcers ; and that "Bob [Younger]
was affiliated with the union in union activities and lie couldn't be tolerated in
,our organization any more " Hinlein then asked him, according to Harvey,
"where my sympathies were," to which Harvey replied that his sympathies were
"with the boys on the picket line," resulting in the retort from Hinlein • "How in
God's name can you be in sympathy with those bastards out front." When
Brnlein finished speaking Harvey volunteered the information that he too "had
taken steps to affiliate myself with the union," whereupon, according to Harvey,
Hinlein-
.. was really dumbfounded. And I think he was more or less crying a
little bit, and then he asked me, "Johnston too?" I said, "Yes Sir, I am
afraid so." He said "Get out of my sight."
From that point on Harvey was forbidden to enter Hinlein's office or the station's
general offices.
Harvey's testimony regarding this incident was largely corroborated by Hin-
lein , except that the latter denied having used any expression regarding the
striking engineers which reflected unfavorably on the legitimacy of their parent-
age. Hinlein's explanation for talking to Harvey was the fact that he had over-
heard the latter asking Brandes why Younger had been fired and because "we
knew we had seen Mr. Harvey outside talking to Younger, talking to the group
[the strikers]." During the course of the conversation, while he was telling
Harvey that the striking engineers "don't give a damn about you," the latter
interrupted and told him: "Well, look, I am going to stop you there. I have joined
the union." According to Hinlein he "got pretty dizzy, sick for a moment"
because of all that he had done for Harvey.17 He admitted asking Harvey to stay
away from his private office and from the general offices of the station after that
-conversation because it was his "definite feeling that Mr. Harvey should not know
too much of the inner workings of the radio station."
Harvey continued to work without further incident until June 9. On that
day he was scheduled to work from 2: 30 p. in until 10 p in. According to
Harvey, around 5 p in. he either went into the office or was called in by Brandes,
who handed him a check and a letter of termination, stating to him, "I was in-
structed by Mr. Hinlein to give you this " No reason was given to him by Brandes
as to why lie had been discharged.
In its answer, Respondent alleges that Harvey was separated from his employ-
ment for economic reasons, viz, that "because of economic pressure and threaten-
ing manpower shortage" it was compelled to eliminate the use of separate radio
announcers and to substitute therefor the "combination men type of operation,
such being usual and customary in the business operation of most small town
radio stations throughout the United States " In support of this defense, Re-
spondent offered the testimony of Hinlein . Brandes, who actually effected the
discharge, was not called as a witness. Hinlein testified that the station had
experienced financial losses between December 1949 and February 1950; that
he, Brandes, and Glenn had discussed the matter during that period and decided
their overhead was too great ; that they decided the only solution was to change
to a "combination man" type of operation (thereby eliminating announcers'
salaries), plus some "extra heavy work on the part of the sales group" so as to
17 Hinlein testified that he had previously been making arrangements for setting up
Harvey in a separate business venture which would augment his income from the radio
station. ,
STATION KDRO 1451
increase the station's revenues ; that the decision to go on a "combination" basis
was finally put into effect in June 1950 because only one man would then be hurt
by the change inasmuch as the three new engineers (lid not oppose the change,
Younger had already been discharged, and one of the two remaining announcers
would continue as a "program director"; and that he decided to discharge Harvey
and keep Johnston because the latter was better qualified for the new position of
a)rogram director.
Conclusions
As in the case of his testimony regarding Younger's discharge, the undersigned
found Hinlein's explanation of the circumstances leading to Harvey's discharge
confused and unconvincing. Although the financial losses occurred between
December 1949 and February 1950 and the decision to change to a "combination"
basis was apparently made during that period, the actual changeover did not take
Tlace until June 1950 after Hinlein had become aware of his announcers' inter-
est in the Union. One reason for this delay, according the Hinlein, was that in
December, January, and February six people would have been involved in the
change, viz, three engineers and three announcers, whije in June only one man ,
would be "hurt" by the change. Hinlein's explanation of how the fate of six men
would have been involved when the plan was first considered was utterly con-
-fused and contradictory Since the three engineers would receive an increase of
'$10 per week under the contract with IBEW in the event the station went "com-
bination" it is difficult to understand how they would have been "hurt" or af-
fedted When this fact was called to Hinlein's attentiop he testified : "Even
though it was in the contract they might not want to be combination men, and I
'figured. don't disturb the operation " However, when he was asked on cross-
examination if the delay in "going combination" was due in part to his concern
about the possible opposition of the engineers, Hinlein testified :
It wasn't that. I didn't feel any opposition from the engineers because I
shad stipulated in that contract that they were to get more. I think they get
'$10 more a week, if they would get $10 more a week, they would like it.
'Still later when the General Counsel referred to Hinlein's testimony that the
announcers would not have objected to the change because they would receive a
$10-a-week increase, Hinlein questioned whether he had ever so testified.
Another apparent reason, according to Hinlein's testimony, for the delay in
-putting into effect the changeover to a "combination man" type of operation was
the fact that during March and April there was an upsurge in business but that
a decline during May and early June again brought the need for economy to the
fore However, his testimony regarding the decision that was reached by him-
self, Brandes, and Glenn during the period of the December-February slump ap-
pears to indicate that an improvement in business and a change to a "combination
man" type of operation were both decided upon as concomitant solutions to the
station's economic problems.18 Therefore. the fact that there was an improve-
ment in business would not appear to account for the delay in putting into effect
the combination-type operation. Morever, it is unclear from the testimony
whether the decline in business during May was a temporary condition due to
rthe strike or was the beginning of a long-range trend. Respondent made no
effort to call as a witness Brandes, who was more familiar with the details of
18 Hinlein's testimony in this respect was as follows :
The only possible recourse, or two possible recourses, one was a change in our busi-
ness due to an economic surge and extra heavy work on the part of the sales group,
combined with turning over into what's known as combination men operation . . .
[Emphasis supplied ]
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's business operations , or to produce his books in order to substanti-
ate his claim , although such procedure was indicated as a desirable one by the
undersigned.
Although in his testimony Hinlein gave as the sole reason for the decision
to change to a combination -man type of operations the "economic pressures"
which had begun to develop in December 1949, January and February 1950, in
the form of financial losses, the answer which he filed in this proceeding also
alleged the "threatening manpower shortage " as an additional reason for the
decision to eliminate the use of radio announcers and to substitute a "com-
bination man type of operation ." No reference to this latter consideration,
however, was made by Hinlein in his direct testimony . When this subject was
adverted to by counsel for the Union on cross-examination , the following confused
explanation resulted :
Q (By Mr. Manning) What threatening manpower shortage was there on
June 9, 1950 , if there was one?
A. Well, about that time, as far as I know , I had been back east and it
seems to me , from what I was told , there was some shortage of engineering
and combination man teams.
Q. Back east or here?
A. Well, that ' s what I-I am a little downfield from the center of action,
and I can only get that back east. I was shooting for combination, for a
combination man setup , and it seemed to be a scarcity as I saw it . It began
to develop . Engineers you can get a lot of . Announcers you can get a lot of.
Combination med, you can't. So-
Q (Interrupting ) So with that scarcity facing you , you went ahead and
fired Harvey , is that right?
A. No question about that , but there were other reasons for my pro=
gram-
It seems evident that a manpower shortage could hardly account for a change-
over from a category of personnel which was abundant to one which was in
short supply. Apparently Respondent's awareness of the incongruity of ascrib-
ing the alleged change in his mode of operation to the threatening manpower
shortage was responsible for the lack of reference to this factor in Hinlein's
direct testimony. However, the fact that it was adverted to in Respondent's
answer and later dropped is indicative of a shifting of reasons for the discharge
of Harvey, which reflects unfavorably on the Respondent's motive 19
Casting further doubt on Respondent's claim that Harvey's discharge was
made necessary by the changeover to a "combination-man" type of operation, is
the fact that one of the announcers, Johnston, was retained in Respondent's
employ at the time Harvey was discharged. According to Hinlein's initial testi-
mony the change to a combination basis would entail the discharge of all three
announcers and it was the harshness of this result which was responsible, in
part, for the delay in making the change. Yet when the day of decision allegedly
arrived, Respondent continued to employ the services of at least one full-time
announcer. Hinlein's explanation for this phenomenon was the fact that he had
decided to set up a new position of program director which, in addition to,
announcing, would involve some programming work and handling of corre-
spondence, thereby relieving the station manager of some of his onerous duties.
This position was offered to and accepted by Johnston. However, it is apparent
19 Al L R B v. Condenser Corporation of America, 128 F 2d 67 (C A 3) ; N L R B
V Somerset Shoe Co, 111 F 2d 681 (C A 1) , Tex-O-Kan Flour Mills Co, 26 NLRB 765;
Sandy Hill Iron and Brass Woi ks, 69 NLRB 355; A. C. Fletcher, etc, 78 NLRB 1215:
Fulton Bag and Cotton Mills, 79 NLRB 939.
STATION KDRO 1453
-from the testimony of both Hinlein and Johnston that the change in Johnston's
-job after he became "program director" was nominal. The only change in his
duties, according to Johnston's credited testimony, was the handling of some
correspondence which took up a "negligible amount of time per day" With
respect to his assumption of some of Brandes' programming duties, which was
the main purpose of setting up the job, it is undenied that as of the time of the
hearing (some 41/2 months after his change of title), Johnston had not under-
taken any of this work. Some insight into Hinlein's motive in assigning John-
ston to the so-called new position was his statement to Johnston at the time of
the transfer that Johnston could now join any union he wanted to since he was
-no longer an announcer but an "announcer-program director," just as the re-
placing engineers were no longer engineers but "announcer-engineers," and that
he also contemplated hiring a combination "announcer-salesman." 20
Even accepting Hinlein 's explanation that the setting up of a new position of
"program director" was responsible for his continuing to employ a full-time
announcer after the alleged change to a "combination" basis, his choice of
Johnston rather than Harvey for that position raises further doubt as to the
legitimacy of his motives. At the time Johnston was offered the new position he
had been with the station 10 months, as compared to Harvey's 41/ years of
service. Harvey was known as the "chief announcer" and although his title
was mainly an honorary one, it did involve responsibility for assigning the an-
nouncers to their respective shifts. Hinlein somewhat grudgingly admitted that
Harvey was "a very good announcer." Harvey was 30 years of age, while
Johnston was 19. Harvey was receiving $42.50 a week, while Johnston's salary
was $30. On the surface, at least, the fact that the new position was offered
to Johnston while Harvey was earmarked for discharge would appear to be
contrary to ordinary business practices 21
The undersigned found Hinlein's explanation for his choice utterly confused
and unconvincing. According to Hinlein, a factor which weighed large in his
choice of Johnston over Harvey was the fact that the new job of program
director would involve a knowledge of typing and that he had seen Johnston
use the typewriter in his work frequently22 However, as previously mentioned,
at the time of the hearing, some 41/2 months later, Johnston had not taken over
any of this program work which allegedly required a knowledge of typewriting.
Although he did do some typing in answering correspondence, this accounted for
only a negligible portion of his time Despite the alleged importance of a
knowledge of typing in the new job, Hinlein admittedly had no definite knowledge
that Harvey could not type and had made no inquiry to ascertain whether he
-could. When Hinlein was asked whether Johnston's knowledge of typing was
the "primary" factor which determined his choice, he testified that it played
a "partial role." When asked what factor was "more important," he replied
that nothing was more important but that a knowledge of typing was "equally
as important ." An effort to ascertain what else was as important finally
yielded the response that Johnston was a "clerical type of man" and that Harvey
20 It was apparently Hinlein's belief that if all of his jobs were "combination" none of
the employees would fall under the jurisdiction of any one union
21 Apparently Johnston was also struck with the incongruity of the situation when Hin-
lein offered him the new job, about a week prior to Harvey's discharge, and when he men-
tioned it to Hinlein the latter told him "I think that you don't have to worry about
Bob Harvey, I think lie will be quitting in a week or two anyway
22 Hinlein testified that :
One of the things he would have to do would be to make out the program log even-
tually. The program director as such, I wanted him to take some of the work from the
general manager's show business. That meant using a typewriter I had seen
Mr. Johnston use a typewriter frequently and he could , I knew he rather liked to.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not. After additional questioning as to what he meant by "clerical type"
Hinlein finally testified that he meant "managerial judgment" When asked
whether those were the factors that he took into account, managerial judgment.
and ability to do typing, Hinlein came forth with the following nebulous
answer:
Of watching the boys work. I watch them work. Mr. Harvey never
took any of that type of thing over I watched the thing. There was only
one way of choosing, and that was for me to pick to the best of my ability,,
and the fact I didn't save myself any money" of doing it is practically-
obvious. I brought his price up to what the other price would have been.
Hinlein's explanation for his choice between Harvey and Johnston left the-
undersigned unconvinced His emphasis on Johnston's typing ability as a key
factor in the choice impressed the undersigned as exaggerated in view of the-
nature of the position which he described where experience in the field of broad-
casting, and ingenuity and imagination would seem to be of greater consequence-
than possession of some manual skills. With respect to Johnston's possession
of "managerial judgment" and Harvey's lack of it, it is significant that prior-
to. Hinlein's becoming "sick" at learning that Harvey had joined a union he had-
enough confidence in Harvey's business ability to consider taking him into a
business venture which would entail no investment by Harvey 24
Even assuming that legitimate business reasons motivated Hinlein's decision,
to change to a "combination man" operation and that his choice of Johnston-
over Harvey for the position of program director was based on a good-faith
evaluation of the qualifications of the two men, his failure to offer Harvey another
new position which lie was setting up, that of announcer-salesman, is indicative-
of his desire to get rid of Harvey at all costs. According to Johnston's un-
contradicted and credited testimony, at the time Hinlein offered him the position
of program director lie told him lie was going to try to get a man who would,
work 3 hours in the morning as an announcer and spend the afternoon selling.
radio time. At or about the time of Harvey's discharge Hinlein hired Zig-
Dillon as an announcer-salesman,26 who was later replaced by Paul Swann.
Significantly, although in choosing between Johnston and Harvey, Hinlein indi-
cated that he considered the former more of the managerial type and Harvey
more of the sales type, when it came to filling a job calling for experience is
both announcing and salesmanship, he made no effort to offer the job to Harvey
who would be obviously qualified for the position.
Whatever doubt may remain as to whether legitimate business reasons were
responsible for Harvey's discharge, would appear to be set at rest by the precipi--
tate and unexplained manner in which his discharge was accomplished. Ordi-
narily where in employer undertakes a basic change in his mode of operation
requiring the discharge of employees, he informs them of the reason for their-
discharge and, in the absence of an emergency situation requiring an immediate
change, he allows the employee to finish his workweek. In this case Harvey was.
23 This reference is to the fact that Johnston received an increase to $45 per R eek as
program director
24 As previously noted, Hinlein had been considering setting up a record-selling shop an.
which lie. Harvey, and another individual would participate Harvey would not be re-
quired to put up any money but would receive 25 percent of the profits
25 Johnston fixed Dillon's hning as after the discharge of Harvey. Hinlen at first testi-
fied that the hiring of Dillon occurred after Harvey's discharge but later indicated that he-
v,as not sure whether it took place before or after the discharge of Harvey Although
claiming his records would reveal the correct information he made no effort to produce
them.
STATION KDRO 1455.
discharged in the middle of the week and in the middle of his work day,26 and
he was given no explanation for his discharge. Hinlein was unable to explain
the precipitate manner of the discharge but shifted the responsibility to Brandes
who, as has already been indicated, was not even called as a witness!'
Considering the fact that Hinlein was admittedly aware Harvey had taken,
steps to affiliate with the Union, that according to his own testimony he became-
"pretty dizzy, sick" upon receiving this information, and the hostile attitude
which he displayed toward Harvey thereafter, as evidenced by the fact that
the latter was forbidden to enter the Company's offices, and in view of the
precipitate circumstances surrounding the discharge only a few short weeks•
following I3inlein's learning of Harvey's interest in the Union, and the dubious
nature of Respondent's explanation for the discharge, the undersigned is con-
vinced and finds that it was Harvey's affiliation with the Union which was the
precipitating cause of his discharge. Although it is possible that Hinlein may
have in the past given consideration to changing to a "combination man" type
of operation, the undersigned is convinced that the decision to put such change
into effect at the particular time in question was influenced by the nascent union
activity among his announcers, and that the decision to discharge Harvey in
particular was due to his admission to Respondent that lie had joined that
movement, which thereafter made him persona non grata to Respondent 2a
The undersigned finds and concludes that by discharging Harvey because of
his interest in and activities on behalf of the Union the Respondent discrimi-
nated in regard to his hire and tenure of employment, thereby discouraging
membership in the Union; and that by such conduct and by the interrogation
as to whether Johnston had also joined the Union, the Respondent interferred'
with, restrained, and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act. By reason of the foregoing, Respondent
violated Section 3 (a) (3) and (1) of the Act.
D The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
The complaint alleges that all announcers employed by Respondent in the
operation of his radio broadcasting station at Sedalia, Missouri, constitute a
unit appropriate for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act. The Board has held that staff announcers in a
radio station constitute an appropriate unit for purposes of collective bargain-
21 Harvey's workweek began on a Tuesday and he was terminated on a Friday His
shift ran from 2 30 p in to 10 p in , and on the day in question he was discharged at
5 p in
27 Hinlein ' s testimony in this respect was as follows
I didn ' t even know when lie got the letter that I wrote and signed and gave to Mr.
Brandes I just turned it over to Mr Brandes to give why he got it at that particu-
lar time and moment, why it was tendered to him , I don ' t know I didn ' t make any
stipulation as to when he was to get it, when it was to be given to him. I inferred
that it be given to him after his shift but I didn 't say anything about it to Mr.
Brandes, so . . .
It is true that Johnston was also a union member and was not discharged How-
ever, the fact an employer retains a few union employees while discharging others in an
effort to prevent unionization is of no overriding significance (Duro Test Corporation,
81 NLRB 976) If it were necessary to attempt to fathom Hinleui's motives in retaining
Johnston while letting Harvey go, it may be surmised that Hmlein considered Johnston
more pliable and amenable than Harvey because of his youth, and thought that once
Harvey was discharged the union movement would die out among the announcers, par-
ticularly since Johnston would not technically be an announcer but an "announcer-program
director
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-ing.R9 No evidence was offered by Respondent at the hearing to show that such
-unit is inappropriate. Under all the circumstances, the undersigned finds that
the unit alleged is appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
The complaint alleges that on May 15, 1950, a majority of the employees in the
appropriate unit had designated or selected the Union as their representative
for the purpose of collective bargaining. The record discloses that the three
announcers employed by Respondent all made applications for union membership
on May 15, 1950. It thus appears, and the undersigned so finds, that on May 15,
1950, and at all times material herein, the Union was, and now is, the duly
designated representative of the majority of the employees in the above-men-
tioned appropriate unit and that, by virtue of Section 9 (a) of the Act, it was
at all times material and still is the exclusive representative of all the employees
in such unit for the purposes of collective bargaining with respect to rates of
,pay, wages, hours of employment, and other conditions of employment.
2. The refusal to bargain
The complaint alleges a request to bargain by the Union on or about May 15,
1950, and at various times thereafter, and a refusal by Respondent to so bargain.
Respondent in its answer denies generally the allegations of the complaint and
alleges affirmatively that the Union did not request Respondent to bargain "on
or about May 15, 1950, or any date prior thereto." [Emphasis supplied.]
The first contact between Respondent and the Union was in the form of a
telephone call on May 16, 1950, from Royal Cowger who sought to ascertain from
Hinlein why Younger had been discharged3° Cowger's telephone conversation
with Hinlein related primarily to Younger's discharge and it is not clear there-
from that any request to bargain was made at that time. However, the record
discloses that a written communication was subsequently sent by the Union
to Respondent which was received on or about May 20, 1950 31 This letter, which
was addressed to Respondent and signed by Don Roberts, executive secretary of
the Kansas City local of AFRA, reads as follows :
This is to again advise you that American Federation of Radio Artists
represent your radio announcers, who are employed to perform services in
connection with radio station KDRO.
I must and do ask that you meet with our representative in Sedalia, Mr.
Royal Cowgar, for the purpose of negotiating for a collective bargaining
agreement. Refusal to do so will leave me no alternative other than filing
a complaint with the National Labor Relations Board.
It is my understanding that Mr. Cowgar has been and is now attempting
to get you to bargain. I must and do ask that you refrain from committing
any act, that is not within the spirit of the "Labor Management Relations
Act, 1947."
Although this letter suggests that there was an earlier request to bargain by
Cowger, the latter's testimony is too indefinite to permit of any such finding.
^ WCAU Broadcasting Co, 72 NLRB 537; Seaboard Radio Broadcasting Corporation,
92 NLRB No 55
30 As previously indicated, Cowger is a business representative of the Teamsters Union
and was designated by AFRA to represent its members in the Sedalia area.
31 The letter to Respondent is dated May 13, 1950. For some reason, not appearing in
the record, this letter was not mailed until May 19 and was received in Sedalia on May
20, 1950.
STATION KDRO 1457
According to Cowger the first time that he requested recognition on behalf of the
Union was about 2 weeks after Younger's discharge The record discloses a
letter by Cowger dated May 22, 1950, addressed to Hinlein requesting that
Hinlein meet with him to "work out an agreement satisfactory to all concerned."
According to Cowger's uncontradicted and credited testimony he met with
Respondent and with his attorney on a number of occasions after the letter of
May 22, that during the course of the meetings lie presented a proposed agree-
ment to Respondent, and that Respondent would not agree to any of the terms
and conditions proposed because Hinlein claimed that Sedalia was too small a
town for an announcers' union No counterproposals were ever submitted by
the Respondent to the Union The president of the Union, Bruce Grant, also
testified without contradiction, and his testimony is credited, that during the
latter part of May or the early part of June he conferred with Hinlein in Sedalia
and the matter of recognition was discussed. According to Grant's ciedited
testimony Hinlein informed hint that he either "couldn't" or "wouldn't" sign
an agreement with the Union. Respondent offered no evidence to indicate his
willingness to recognize and bargain with the Union or to explain his failure to
do so.
Although the evidence does not disclose a request and refusal "on or about
May 15, 1950," as alleged in the complaint, it does disclose a deniand for collective
bargaining and recognition of the Union on or about May 20 and thereafter, aiid a
refusal by Respondent to recognize or negotiate in good faith with the Union.
The undersigned therefore finds and concludes that on or about May 20, 1950,
and at all times thereafter Respondent refused to bargain collectively with the
Union as the exclusive representative of his employees in the appropriate unit
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and that by such refusal Respondent inteifeted with, restrained,
and coerced his employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section S (a) (5) and (1) thereof"
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to ti ade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the tree flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be iecoinniended that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act
Having found that the Respondent from on or about May 20, 1950, and at all
times thereafter has failed to bargain with the Union as the exclusive repre-
sentative of his employees in an appropriate unit, it will therefore be reconl-
32 At the hearing Respondent s counsel suggested that the variations between the (late
alleged in the complaint, May 15. 1950, and the date established by the testimony, Mar
20, 1950, would be fatal to the General Counsel's case of ietusal to bargain It should
be noted, in this connection, that the complaint does not pin-point the date of the request
and refusal as May 15 but as "on or about" that (late and "at various tines thereafter "
In any event this slight variation in dates is in no way fatal to the charge that Respond-
ent refused to bargain with the Union ( See Atlanta Metallic Casket Co, 91 NLRB
1225.
943732-51-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended that the Respondent, upon request, bargain collectively with the Union-
Having found that Respondent on May 16, 1950 , and June 9 , 1950, discrimi-
natorily discharged Robert Younger and James R Harvey, respectively, because
of their known or suspected membership, affiliation, or sympathy with the Union,
the undersigned will recommend that Respondent offer to each said employee
immediate and full reinstatement '' to his former or substantially equivalent
position '* without prejudice to their seniority or other rights and privileges, and
that the Respondent make each of said employees whole for any loss of pay which
he may have suffered by reason of the discrimination against him, by payment
to each of them of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of Respondent's offer
of reinstatement , less his net earnings 3' during said period . It is recommended
that the loss of pay for each employee be computed on the basis of each separate
calendar quarter or portion thereof during the period from Respondent's dis-
criminatory action to the date of a proper offer of reinstatement The quarterly
periods, herein called "quartets," shall begin with the first clay of January,
April, July, and October. Loss of pay shall be determined by deducting from
a sum equal to that which each employee would normally have earned for each
such quarter, or portion thereof, his or her net earnings, if any, in other employ-
ment during that period Earnings in one particular quarter shall have no effect
upon*the back-pay liability for any other quarter. In order to insure compliance
with the foregoing back-pay and reinstatement provisions, it is recommended
that the Respondent shall be required upon reasonable request to make all per-
tinent records available to the Board and its agents''
In the opinion of the undersigned, Respondent's conduct discloses a fixed pur-
pose to defeat self-organization and its objectives Because of Respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced, that
the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and that the danger of their commission
in the future is to be anticipated from the course of Respondent's conduct in the
past. The preventive purposes of the Act will be thwarted unless the recom-
mendations are coextensive with the threats. In order, therefore, to make effec-
tive the interdependent guarantees of Section 7, to prevent a recurrence of unfair
labor practices , and to minimize strife which burdens and obstructs commerce,
and thus to effectuate the policies of the Act, it will be recommended that the
Respondent cease and desist from infringing in any manner upon the rights
guaranteed by Section 7 of the Act."
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the undersigned makes the following:
31 In his answer and brief Respondent contends that Younger is not entitled to reinstate-
ment because he engaged in an illegal secondary boycott by requesting sponsors of pro-
grams on Station KDRO not to have any further business dealings with the station after
his discharge The undersigned finds this position without merit Although Younger
admittedly engaged in such activity , his requests were directed to employers , not em-
ployees , and, were therefore not illegal ( Sealright Pacific, Ltd., 82 NLRB 271 ; Conway's
Express , 87 NLRB 972 ) By requesting other employers not to use Respondent 's services,
Younger did not forfeit his right to reinstatement (The Hoover Company, 90 NLRB 1614;
Lewis Karlton d/b/a Consolidated Frame Co., 91 NLRB 1295
' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827
35 See Crossett Lumber Company , 8 NLRB 440 , 497-8.
'IF. W. Woolworth Company , 90 NLRB 289.
27 See May Department Stores v. N. L R. B , 326 U. S 376.
FERRO STAMPING AND MANUFACTURING CO . 1459
CONCLUSIONS OF LAW
1. American Federation of Radio Artists, affiliated with Associated Actors and
Artistes of America, AFL; and International Brotherhood of Electrical Workers,
AFL, are labor organizations within the meaning of Section 2 (5) of the Act.
2. All announcers employed by Respondent at his Radio Station KDRO, in
Sedalia, Missouri , constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. American Federation of Radio Artists, affiliated with Associated Actors
and Artistes of America, AFL, was on May 15, 1950, and at all times material
herein, the exclusive representative of all the employees in the above -described
unit for the purposes of collective bargaining within the meaning of Section
9 (a) of the Act.
4. By refusing on or about May 20, 1950 , and at all times thereafter to bargain
with American Federation of Radio Artists, affiliated with Associated Actors
and Artistes of America, AFL, as the exclusive representative of the employees
in the above-described appropriate unit, the Respondent has engaged in, and is
engaging in, unfair labor practices affecting commerce within the meaning of
Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Robert
Younger and James R. Harvey , thereby discouraging membership in American
Federation of Radio Artists, affiliated with Associated Actors and Artistes of
America, AFL, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (3) of the Act.
6 By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommended Order omitted from publication in this volume.]
FERRO STAMPING AND MANUFATURING Co. and MARY MIRANDA
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 753, C. I. 0.,
and MARY MIRANDA
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 753, C. I. 0.,
and BLANCHE WOODIN. Cases Nos. 7-CA-182, 7-CB-32, and
7-CB-23. April 17, 1951
Decision and Order
On October 25, 1950, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
93 NLRB No 252.