Dunkirk Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1958

120 N.L.R.B. 1588 (N.L.R.B. 1958)

1 x588 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
Dunkirk Broadcasting Corporation , James Broadcasting Co.,
Inc., and Lake Shore Broadcasting Company , Inc. and Na-
tional Association of Broadcast Employees and Technicians,
AFL-CIO, Local #25. Case No. 3-CA-1017. June 23, 1958
DECISION AND ORDER
On October 10, 1957, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled. proceeding, finding that
the Respondents had engaged in and were engaging in certain-unfair
labor practices and recommending that they cease and desist there-
from and ,take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has, delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing' and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions hereinafter noted.
1. We agree with the Trial Examiner that at all times material
-herein the National Association of Broadcast Employees and Tech-
nicians, AFL-CIO, hereinafter referred to as the Union, was the
exclusive bargaining representative of the Respondents' employees
in an appropriate unit, and that by refusing to bargain with the Union
on and after January 10, 1957, the Respondents violated Section 8
(a) (5) and (1) of the Act.
The Respondents do not challenge the fact that the Union was
certified by the New York State Labor Relations Board on September
.5, 1956, as the exclusive bargaining representative of the employees
of the Respondent Dunkirk. As set forth in the Intermediate Report
and the record herein, the Union was certified after receiving 10 out
of 13 valid votes cast in a secret election conducted by responsible
agents of the State Board. We have held that, absent any irregular-
ity in the same proceeding, the employer is required to honor the
certification issued by the State agency for the period of 1 year,
precisely as we have held in cases involving our own certifications,
unless there are present unusual circumstances warranting the
suspension of the 1-year rule.'
1 Bluefield Produce & Provision Company, 117 NLRB 1660.
120 NLRB No. 196.
DUNKIRK BROADCASTING CORPORATION 1589
The Respondents contend, in substance, that the State certification
is not binding upon them on the following grounds: (a)' a new em-
ployer "entity" resulted from the Respondent James', purchase of
stock in the Respondent Dunkirk and the change in management and
methods of operations of Dunkirk; (b) the unit in which the State
Board election was held was inappropriate because it included super-
visory and confidential employees; and (c) in any event, the unit,
after the Respondent James secured control of Dunkirk, became
inappropriate because of changes in Dunkirk's operations 2 which
became integrated with the Respondent James' operations.
As to its first contention, we hold with the' Trial Examiner that
no "new entity" was established.- Certainly, the change in stock
ownership alone did not work a change in corporate identity.' The
only organization authorized to operate the Dunkirk radio station
was the Respondent Dunkirk Broadcasting Corporation and there
is no contention that any other person or corporate organization suc-
ceeded to the license held by Dunkirk. Moreover, while it is true that
a change in management of Respondent Dunkirk occurred and some
changes in methods of operation. were made, the significant fact
remains that these changes did not alter the fundamental character
of the business.
As to their unit contention, the Respondents argue that the inclusion
of three alleged supervisors, B. F. Goodrich, Anthony James, and
James Grace, and an alleged confidential employee, Patricia Tworek,
makes the unit inappropriate because such inclusion is contrary to
Board policy. Like the Trial Examiner, we find that at the time of
the State Board election, Goodrich, James, and Grace were not super-
visors within the meaning of the Act, and that Patricia Tworek was
not a confidential employee.
Goodrich, who had the title of commercial or sales manager, was
engaged primarily in the sale of radio, time and the servicing of certain
house and national accounts. The record shows that he had no author-
ity to hire, discharge, or otherwise affect the personnel status of em-.
ployees.4 Nor does the record establish that he had authority to make
effective recommendations in these respects. - The record also shows
that he had no authority to assign work or responsibly direct the work
of other salesmen. Goodrich was required, as part of his duties as
2 On April 16, 1957, Dunkirk 's name was changed to'Lake Shore Broadcasting Company,
Inc.
8Illmois Malleable Iron Company, et at., 120 NLRB 451; West Boylston Manufactur-
ing Company of Alabama, 87 NLRB 808, 851 . Cf. M. B . Farrin Lumber Co ., 117 NLRB
575. .
• When Goodrich was first employed as a commercial manager, he undertook to hire,an
employee apparently on his own responsibility . The evidence shows, however, that Good-
rich was admonished by Schmidt , Dunkirk 's president and general manager, for hiring,
the salesmen without further consultation with Schmidt . Schmidt ratified the hiring,
but only after it was made clear to him that financial advantages would accrue to the
Company as a result of the hire.
1 -90 DECISIONS'UF` 1VATIONAI;i^.A$OR RE TIONS BOARD
sales manager; to interview applicants for employment for the purpose
of securing necessary information concerning the, applicant's qualifica-
tions. The information thus obtained, together with Goodrich's
opinion concerning the applicant's qualification, was submitted to
Schmidt who independently made the decision whether` or not to hire
the applicant .6
James, whose title was that of program' director, was originally
hired as a sportscaster and announcer. The record shows that he con-
tinued performing the ordinary duties of an announcer after being
made program director. As program director, he was required to
handle the continuity. There is 'no evidence that this duty involved
the exercise of any supervisory authority. While James was required
to interview and audition applicants for employment as announcers,
it was Schmidt who made the decision to hire the applicant after re-
viewing a recording of the audition or listening to the applicant in
person. James did not have the authority to hire or discharge em-
ployees or make effective recommendations in that regard. Nor is
there evidence that he had the authority to make any but routine
assignments of work, or responsibly to direct the work of other
announcers.
Grace, who was classified as chief engineer, had the primary duty
of keeping the transmitter and other equipment in working order.
He performed most of the maintenance and repair work. In addition,
he worked part of a shift as a transmitter engineer, reading trans-
mitter instruments and' keeping the required records and log. As in
the case of Goodrich and James, Grace was also called upon to inter-
view applicants for employment and submit opinions concerning their
qualifications. But Grace had no authority to.hire or discharge em-
ployees or effectively to recommend such action. Although his duties
also included the preparation- of work schedules, there is no evidence
that this- function involved more than routine assignments. In the
matter of scheduling or assigning overtime work, only Schmidt had
the authority to do so.. Moreover, as Schmidt testified, it was com-
pany policy to try to schedule overtime so that each employee received
an equal share of it, thus limiting the area for the possible exercise of
independent judgment in such matters .6
5 The contention that Goodrich 's authority to set up national rate cards establishes
supervisory status is without merit . Goodrich was specifically authorized by Schmidt
to esiablish'a series of national rate cards for the sale of broadcasting time . This action
involved neither the delegation nor the exercise of supervisory authority . Moreover, the
record shows nothing more than that a routine change In local rates was involved.
As to the contention that Grace recommended the hiring of two employees , the record
shows that these employees previously worked for Dunkirk , that they and their qualifi-
cations were well known to Schmidt , that all Grace did was to Inform Schmidt that these
employees were seeking reemployment , and that Grace was instructed by Schmidt to per-
form purely ministerial acts in connection with hiring them . As to the contention that
Gi"ace ' recommended the discharge of Buckles , the'evidence shows that Grace only reported
to Schmidt that the continued employment of Buckles would endanger the safety of the
transmitter and other equipment, a matter of which Schmidt bad been previously ad-
vised by other employees.
DUNKIRK BROADCASTING CORPORATION 1591
As to Patricia,Tworek,c the,, evidence shows that she performed'a
variety of tasks including handling some correspond'ence `for Schmidt,
writing program continuity,-,and news reporting.' However; there is
no credible-' evidence that she' acted in a confidential capacity to
Schmidt in the field of-labor relations.
There remains for-consideration the Respondents'-contention that
the unit was no longer appropriate. Specifically, the Respondents
maintain that, as a result of changes in operations and the integration
between Respondent Dunkirk and Respondent James, the only appro-
priate unit is one consisting of the technical and engineering employees
and announcers of the Dunkirk and James radio stations.
The evidence discloses that, although certain operational changes
were instituted by Goldman, who controlled both Respondents, a
large measure of autonomy, was nevertheless reserved to Respondent
Dunkirk. Thus, the record shows that Respondent Dunkirk main-
tained its separate transmitter and studio, payroll, records, and cor-
porate books. In addition, there has been no interchange of employees
between the two stations, each radio station maintaining its separate
staff under separate immediate supervision. - While it is true that a
certain number of employees were transferred from Respondent James
to Respondent Dunkirk, the evidence shows that such transfers were
for the specific purpose of enabling Dunkirk to resume its broadcast-
ing operations after Goldman discharged all Dunkirk's` employees.
Following resumption of operations, the employees of Respondent
James either returned to their former jobs or accepted permanent
employment with Dunkirk. _ In the circumstances, we find that the
unit certified by the State Board as an appropriate unit was not made
inappropriate by the operational changes thereafter instituted by
Goldman.
-'-We find, therefore, in agreement with the Trial Examiner, that at
all times material herein, the Union was the majority representative
of the Respondent Dunkirk's employees in an appropriate unit, and
that on and after January 10, 1957,'the Respondents' refused to bar
gain with the Union as the exclusive bargaining representative of the
employees in such unit within the meaning of'Section 8 (a) (5) and
(1) of the Act. - '
- - 2. We "agree with the Trial Examiner that the Respondents on Janu-
ary 21, 1957, discriminatorily discharged all of Dunkirk's employees
listed in Schedule A of the Intermediate Report, and thereafter re-
fused to reinstate them, in violation of Section.8 (a) (3) and (1) of
the Act. As indicated in the Intermediate Report, at that time the
employees were on strike in"protest against the Respondents' continued
unlawful refusal to bargain-with the employees'. representative. As
strikers, they were, immune from discharge for engaging in this pro-
tected concerted activity. In addition, as unfair labor practice strikers
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were entitled to reinstatement, on application, dismissing, if
necessary, employees hired to replace them.
The Respondents, however, seek to justify the discharge and the
denial of reinstatement, as they do with respect to their unlawful
refusal to bargain, on the ground that a new entity resulted from
James' stock purchase and from the operational changes which have
taken place. We find no merit in this contention. , As previously
found, Dunkirk has at all significant times continued in existence, and
exists today, under the name of Lake Shore Broadcasting Company,
Inc., although under the control of James. Moreover, the evidence
does not establish that such a change in operations has taken place
that jobs which the strikers were capable of performing are no longer
available. Indeed, the record shows that shortly before discharging
all of the employees Goldman solicited some of them individually,
while they were on strike, to return to work. In addition, it appears
that about four discharged strikers were later hired by the Respond-
ents as new employees.
In view of the foregoing, we find, as did the Trial Examiner, that
the Respondents discriminatorily discharged the striking employees
and refused to reinstate them in order to penalize them for their pro-
tected concerted activity and to avoid bargaining with the Union.
Accordingly, we find that the Respondents "violated Section 8 ( a) (3)
and (1) of the Act.
THE REMEDY
Having found that the Respondents have engaged in and are en-
gaging in unfair labor practices in violation of Section 8 (a) (5),
(3), and (1) of the Act, we shall adopt the Trial Examiner's remedy
provisions with the following modifications : 7 ,
The Respondents having discriminatorily discharged the 13 em-
ployees,8 we shall order the Respondents to offer them immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other.rights and privileges.
The record shows that the Respondents have already reinstated four
of these employees (Robert T. Spaulding, Bernard F. Goodrich,
Donald Novelli, and Margarita Jagoda), but as new employees. As
to these employees, therefore, we -shall order the Respondents to re-
store them to their former or substantially equivalent positions with-
out loss of seniority or other rights and privileges.
4 The Trial Examiner recommended that the Respondents bargain with Local # 25. How-
ever, as the International was certified as the bargaining agent by the State Board, we
shall , accordingly, direct the Respondents to bargain with the International.
e These employees are Bernard F. Goodrich, James P. Grace, Margarita Jagoda, Anthony
James, Fred M . Loeb, Donald Novelh, Anthony Sedota, Robert T. Spaulding, Henry
Stranz, Larry H. Sands, Patricia Tworek, Virginia Kaltenbach, and Daniel Neaverth. ,
DUNKIRK BROADCASTING CORPORATION , - - 1593
We shall also direct the Respondents, to reimburse the foregoing
employees for any loss of pay they may have suffered by reason of
the'Respondents' discrimination against them; Ordinarily, a discrimi-
natorily discharged employee is entitled to back pay from the date of
his discharge. However, in cases where employees are discharged
while on ,strike, it is-the Board's established practice to,award back
pay from the date on which the employees make an unconditional
application for reinstatement on the theory that it cannot be said
that- there was a loss of pay caused by the Employer's conduct until
the strikers indicated a willingness to return to work.. The record
,shows that on January 23, 1957, the Union applied for unconditional
reinstatement on behalf of 9 of the 13 employees discriminatorily
discharged and that the Respondents declined to reinstate them. There
is no evidence that the remaining four employees, Larry H. Sands,
Patricia Tworek, Virginia Kaltenbach, and Daniel Neaverth ever
applied for reinstatement. For this reason, unlike the Trial Ex-
aminer, we shall order the Respondents to pay each of these employees
A sum of money equal to the amount that he or she normally would
have earned as wages from the date following his or her unconditional
application for reinstatement, or, where no application has been made,
from 5 days from the date of this Order, to the date of the Respond-
ents' offer of reinstatement, less his or her net earnings during said
period.
The, Respondents contend that in no event should back pay antedate
February 11, 1957, the date on which the Dunkirk station resumed
operations. We do not agree. There is no evidence that the Respond-
ents' operations at Dunkirk could not have been resumed at an earlier
date had the Respondents not discriminatorily discharged and then
unlawfully refused to reinstate the employees upon receipt of their
request for reinstatement on January 23, 1957. Furthermore, the
Respondents admitted that they were in a,position to, and in fact did,
hire employees at Dunkirk as early as February 7, 1957.-
In view of the nature and extent of the unfair labor practices com-
mitted, the commission by the Respondents of similar and other unfair
labor practices may be anticipated. The remedy here provided for
should therefore be coextensive with the threat. It will,therefore be
ordered that the Respondents cease and desist from infringing in any
other manner on the rights guaranteed employees in, Section 7 of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents James Broad-
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casting Co., Inc., Jamestown, New York, and Lake Shore Broadcast-
ing Company, Inc. (formerly Dunkirk Broadcasting Corporation),
Dunkirk, New York, their officers, agents, successors , and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in National Association of Broad-
cast Employees and Technicians, AFL-CIO, or in any other labor
organization of their employees, by discharging or refusing to rein-
state any of their employees because of their union membership or
activity, or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of employment,
except to the extent permitted in Section 8 (a) (3) of the Act.
(b) Refusing to bargain collectively with National Association of
Broadcast Employees and Technicians, AFL-CIO, as the exclusive
representative of all employees of Respondent Lake Shore Broad-
casting' Company, Inc. (formerly Dunkirk Broadcasting Corpo-
ration) at their 'Dunkirk, New York, radio station, excluding all
professional employees, guards, and supervisors as defined in the Act.
(c)' In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist National' Association of
Broadcast Employees and Technicians, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their-
own choosing,' and to engage in other -concerted activities for the
purpose of collective bargaining or other mutual aid or protection;
or to refrain from any or all 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) Offer Bernard F. Goodrich, Margarita Jagoda, Fred M.- Loeb,
Anthony Sedota, Henry Stranz, Patricia Tworek, Daniel Neaverth,
James P. Grace,, Anthony ' James, Donald Novelli, Robert T.
Spaulding, Larry Sands, and Virginia Kaltenbach, immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy" as modified by the provisions of "The
Remedy" section of the Board's Decision.
(b) Make whole the employees named in the preceding paragraph
for any loss of pay they may have suffered or may suffer by reason
of the Respondents' discrimination against them in the manner set
DUNKIRK BROADCASTING CORPORATION 1595
forth in "The Remedy" section of the Intermediate Report as modified
by "The Remedy" section of the Board's Decision.
(c) Upon request, bargain collectively with National Association
of Broadcast Employees and Technicians, AFL-CIO, as the exclusive
bargaining representative of all employees in the aforesaid appro-
priate unit with respect to wages, rates of pay, hours of employment,
and other conditions of employment and, if an understanding is
reached, embody such understanding in a signed agreement.
(d) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(e) Post at their radio stations in Dunkirk, New York, and James-
town, New York, copies of the notice attached hereto marked
"Appendix." e Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by a
representative or representatives of the Respondents, be posted by
them immediately upon receipt thereof, and be maintained by them
for sixty (60) consecutive days in conspicuous places, including the
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, as to what steps the
Respondents have taken to comply herewith. _
9In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words, "Pursuant to a Decision and. Order," the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the,policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in National Association of
Broadcast Employees and Technicians, AFL-CIO, or any other
labor organization of our employees, by discharging or refusing
to reinstate any of our employees because of their union member-
ship or activity, or in any other manner discriminate against them
in regard to their hire or tenure of employment, or any term or
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment, except to the extent' permitted in Sec-
tion 8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the "exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist National Asso-
ciation of Broadcast Employees and Technicians, AFL-CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
mutual aid or protection, or to refrain from any or all such activi-
ties, 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. I
WE WILL, upon request, bargain.collectively with National As-
sociation of Broadcast Employees and Technicians, AFL-CIO,
as the exclusive collective-bargaining representative of. all em-
ployees in the appropriate unit described below, with respect to
wages, rates of pay, hours of employment, or other conditions of
employment and, if an understanding is reached, we will embody
such understanding in a signed agreement. The bargaining unit
is :
All employees of Lake Shore Broadcasting Company, Inc.
(formerly Dunkirk Broadcasting Corporation) at our Dun-
kirk, New York , radio station excluding all professional em-
ployees, guards, and supervisors as defined in the Act.
WE WILL offer Bernard F. Goodrich, Margarita Jagoda, Fred
M. Loeb, Anthony Sedota, Henry Stranz, Patricia Tworek, Daniel
Neaverth, James P. Grace, Anthony James, Donald Novelli, Rob-
ert T. Spaulding, Larry H. Sands, and Virginia Kaltenbach im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges.
WE WILL make whole Bernard F. Goodrich, Margarita Jagoda,
Fred M. Loeb, Anthony Sedota, Henry Stranz, Patricia Tworek,
Daniel Neaverth, James P. Grace, Anthony James, Donald No-
velli,•Robert T. Spaulding, Larry H. Sands, and Virginia Kalten-
bach for any loss of pay they may have suffered or may suffer by
reason of our discrimination against them.
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of any labor organization . We will not dis-
criminate in regard to the hire or tenure of employment , or any term
or condition of employment , against any employee because of member-
ship in or activity on behalf of any labor organization , except as such
DUNKIRK BROADCASTING CORPORATION 1597
right is affected by an agreement as authorized in Section 8 (a) (3)
of the Act.
JAMES BROADCASTING CO., INC.,
Employer.
Dated---------------- By --------------------------------------
(Representative )' ( Title)
LAKE SHORE BROADCASTING COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board , and an answer having been filed by the Respondents, a
hearing involving allegations of unfair labor practices ih violation of Section 8 (a)
(1), (3), and (5) of the National Labor Relations Act, as amended , 61 Stat. 136,
herein called the Act , was held in Buffalo , New York , on August 5, 6, 7, and 26,
1957, before the duly designated Trial Examiner.
As to the unfair labor practices , the complaint alleges and the answer denies that:
(1) The Respondents Dunkirk and James, on January 23, 1957, and thereafter,
refused to bargain collectively with the Charging Party, although that labor organ-
ization at all times since September 1956 , has been ' the exclusive representative of
all employees in an appropriate unit , within the" meaning of the Act ; (2) the
Respondents Dunkirk and James, on January 21, 1957 , discriminatorily and, to
discourage union and other concerted activities terminated the employment of certain
named employees ( listed in schedule A attached hereto ); (3) since January 21, 1957,
the Respondents Dunkirk and James and since April 16 , 1957 , the Respondent
Lake Shore have discriminatorily refused- reinstatement to the employees listed- in
schedule A; (4) by their unfair labor practices the Respondents Dunkirk , James,
and Lake Shore have prolonged a strike begun by employees of the Respondent
Dunkirk in October 1956 ; and (5 ) by such conduct the Respondents Dunkirk,
James, and Lake Shore have interfered with , restrained , and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act.
At the hearing all parties were represented and were afforded full opportunity
to be heard , to examine and cross-examine witnesses ; to introduce evidence pertinent
to the issues , to argue orally upon the record , and to file briefs and proposed findings
of fact and conclusion of law . Counsel for General Counsel and the Respondents
argued on the record . The filing of briefs was waived by all parties.
Disposition of the Respondents ' motion to dismiss the complaint , upon which
ruling was reserved at the conclusion of the hearing , is made by the following
findings, conclusions , and recommendations.
Upon the entire record , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Until on or about April 16, 1957, the Respondent Dunkirk was a New York
corporation , with office and place of business in Dunkirk , New York, where it had
been continuously engaged in the operation of a radio broadcasting station . During
the calendar year of 1956 its gross revenue was in excess of $50 ,000 but less
than $200,000.
On or about April 16, 1957 , the corporate name of the Respondent Dunkirk was
changed to Lake Shore Broadcasting Company , Inc., as a result of a certificate of
change of name issued by the State of New York.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent James is now,, and at all material times has been, a New York
corporation, with office and place of business at Jamestown, New York, where it
has continuously been engaged in the operation of a radio broadcasting station. Its
gross revenue annually is in excess of $200,000.
On or about January 10, 1957, the Respondent James purchased about 85 percent
of the outstanding shares of stock of the Respondent Dunkirk, and from January 10
until on or about April 16, 1957, the Respondents Dunkirk and James constituted
a single Employer within the meaning of Section 2 (2) of the Act, and by reason
thereof were engaged in commerce within the meaning of the Act.
Since the change of name to Lake Shore, on or about April 16, 1957, the Respond-
ents Lake Shore and James have constituted, and now constitute, a single Employer
within the meaning of Section 2 (2) of the Act, and by reason thereof the Respond-
ents Lake Shore and James are engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
National Association of Broadcasting Employees and Technicians , AFL-CIO,
Local #25, is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Relevant events and issues
1. Control transactions
First, as to the connection between the three named Respondents.
In July 1956, only two of the Respondents were in existence: Dunkirk and James,
the former operating a radio station in Dunkirk, New York, and James operating
one at Jamestown, New York. Alois Schmidt was then president of Dunkirk, and
Simon Goldman was president of James. At this same time Schmidt owned 161
and Goldman owned 91 of Dunkirk's 500 shares of outstanding stock. On October
15, 1956, Goldman entered into a stock-purchase agreement with Schmidt and other
stockholders of Dunkirk to purchase control (61.6 percent of the capital stock) of
Dunkirk. This purchase agreement contained, among others, two provisions relevant
to this case; (1) its terms and conditions were subject to, approval by the Federal
Communications Commission;. and (2) the Sellers., would "not enter or cause
Dunkirk Broadcasting Corporation to enter into any other contracts, agreements, or
understandings, either express or implied, from the date of the execution of this
Agreement without the knowledge and consent of .the Buyer." [Emphasis supplied.]
On October 26.Goldman agreed to sell to James his own stock in Dunkirk and
assigned to James his purchase rights of other Dunkirk stock as set out in the agree-
ment of October 15, noted above.. Completion of the several transactions gave
James ownership of 85 percent of Dunkirk stock.
On November 8 Dunkirk and James filed, with the Federal Communications Com-
mission an application for transfer of control of Dunkirk, licensee of .Station WFCB,
to James. In this document, which is in evidence, in the column requiring applicants
to state:
Describe' fully and give present values of any properties, equipment,' or other
assets, exempted from, or liabilities not involved in, the proposed transfer
"together with resulting effect on net worth shown in balance sheet of licensee.
the applicants stated: • , , ,
Inapplicable-only stock in licensee being sold. • f '
As a witness, Goldman admitted that statements made in this application were true.
On December 5, 1956, the-Federal Communications Commission issued its official
consent to the proposed transfer of control; 'requiring that the actual transfer of
stock must be made within 45 days.
On January 4, 1957, the Charging Union in this case filed with the Federal Com-
munications Commission a petition for a stay of approval of the transfer. Dunkirk
and James filed opposition to the petition 'for stay. On January 30, 1957, the
Commission dismissed the petition.
On January 10,. 1957, before the Commission's action. on.the'petition, the parties
acted, purchase of control of Dunkirk was made, and James took over control.
- 'The above findings` rest upon allegations of the complaint admitted by the-answer,
with but one exception. The answer disclaims knowledge as to the amount of revenue
'received by the. Respondent Dunkirk during-the calendar year 1956. During the hear-
ing counsel for the Respondents joined in 'a stipulation that during that year -the Re-
spondent Dunkirk had a gross revenue of about $66,000.
DUNKIRK BROADCASTING CORPORATION 1599
Ownership of the license to operate Station WFCB , however, remained in Dunkirk,
and such ownership continued to remain in the name of Dunkirk Broadcasting Cor-
poration until April 16, 1957. • On the latter date, by filing with the Secretary of
State of the State of New York, the appropriate documents, the name Dunkirk
Broadcasting Corporation was changed to Lake Shore Broadcasting Company, Inc.,
and Goldman became president of it.
2. Material events
Following a petition filed by the Charging Party with the State Labor Relations
Board, State of New York, the Union's representative and Schmidt, then president
of Dunkirk , signed a consent-election agreement on July 25, 1956 , stipulating that
the 13 individuals listed in schedule A, attached hereto, were eligible to vote, all
being employees of Dunkirk.
The election was conducted by the State Board on August 22, 1956. On the
same date a representative of the State Board issued his report on the balloting,
finding that 10 votes had been cast for the Union, and 3 against. No objections
to the election were filled by either Dunkirk or the Union, and on September 5,
1956, the State Board certified the Union as the exclusive representative of all
Dunkirk's employees for the purposes of collective bargaining.
On September 10 Edward-M. Lynch, the Union's Regional Director, called
Schmidt and asked for a negotiating meeting. After 1 or 2 preliminary meetings
of the parties, a negotiating conference was scheduled for October 15. Dunkirk's
counsel, one Seeberg, at first postponed that meeting until later the same day, and
then called it off altogether. 'Counsel informed Lynch that Schmidt was selling
Dunkirk's stock and that he was no longer being retained as counsel. Lynch replied
that he was familiar enough with FCC regulations to know that stock transfer could
not be made so quickly, and that if by 6 o'clock that day he was not communicated
with by some representative of Dunkirk a strike would be called, on the ground that
no one from the Company would meet with the Union to negotiate a contract.
It is here noted that on that same day, October 15, by the stock-purchase agree-
ment described above, Schmidt bound himself not to enter any- contract with the
the Union, and Goldman assumed actual control over future negotiations. Learning
from the local press on the same day that Goldman was purchasing Dunkirk's stock,
Lynch calledGoldman at Jamestown. 'Lynch asked Goldman to bargain, but Gold-
man refused, stating that although he was aware of the State Board's certification
of the Union, he would not bargain because he was not yet in actual control, of the
stock. When Lynch' told him a strike was being called, Goldman 'replied 'that he
was not particularly worried, for if Dunkirk did enter into any contract, with the
Union, he could and would- "back out" of the stock purchase. `- .
As threatened, 'the employees of Dunkirk struck that night, 'and the 'station went
off the air. Lynch met with Schmidt' about a week' later, and Schmidt refused to
sign a contract of any kind with the' Union on the plea that'if,he did Goldman would
withdraw from his purchase agreement. " - .
On November 15 Lynch finally met with Schmidt and Ely Roth, a new counsel
retained by Dunkirk. Roth asked for time to look over the proposed collective-
bargaining agreement, assuring Lynch, however, that having been certified by the
State Board the Union was entitled to a contract. Lynch met with Roth on 2 or 3
occasions in December, and some terms of the proposed contract were discussed.
Roth informed Lynch that Goldman was being informed of these discussions, and
that any agreement reached must have Goldman's approval. On December 19 Roth
told Lynch that Goldman would be elected to the Board of Directors of Dunkirk
before he took over. control, so he could have an active part in negotiations., On
January 4, 1957, Roth informed Lynch .that Goldman had been made a director.
In-fact Goldman was made a director on January 3. On January 7 Roth again
communicated with Lynch and told him that neither, he nor Goldman would bargain
further with the Union because that organization had, on January•4, as noted above,
filed with the FCC a petition for stay of the stock transfer. •
As noted in the section, above, control of Dunkirk was formally assumed by,
James on January 10, 1957.
On January-21, 1957, Goldman, signing as president of James, sent to each -of the
13 individuals-named in the complaint the following letter:
Please be advised that as of January 10, 1957, the James Broadcasting Cor-
poration, of Jamestown, New York purchased the Dunkirk Broadcasting Cor-
poration, which operated radio station WFCB in Dunkirk, New York.
As a result of this sale, there is now a new ownership and management of
the Dunkirk Broadcasting Corporation. ; It is the position of the present owners
that the corporation is a new entity.
1600 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
' Thus, any former employee 'of the prior company operating station `WFCB
is not deemed to be an employee of the new firm.
On January 22, Lynch sent to Dunkirk and James the following letter:
The striking employees of Dunkirk Broadcasting Corporation who are in the
bargaining unit certified by the State Labor Relations Board and who are
represented as a result of that certification by the National Association of
Broadcast Employees and Technicians, AFL-CIO-CLC have referred to me
as their representative the several letters which were sent to them dated January
21, 1957, over the signature of James Broadcasting Company, Inc., Simon
Goldman, President.
Each of those employees, whose names follow, has authorized me as his or
her representative, to offer on his or her behalf to return, to his or her employ-
ment without any conditions or reservations of any kind.
Kindly be advised, herefore, that each of those employees is at this time
ready, willing and available to return to your employment.
The names of the-employees, together with the addresses at which they might
be reached by you are as follows: .
Goodrich, Bernard ------------- - ------- 18 Leverett, Fredonia, N. Y.
Grace, James P_________332 Park Ave., Dunkirk, N. Y.
Jagoda, Margarita_____________________ ' 801 Central Ave., Dunkirk, N.Y. -
James, Tony ___------------- _----------- 76 Lincoln Ave., Dunkirk, N. Y.
Loeb, Fred M--------- ------ 85 W. 4th St., Dunkirk, N. Y.
Novelli, Dohald-------- ---------- 317 Eagle St., Dunkirk,-N. Y.
Sedota, Anthony.-----------__________177 W. Main St., Fredonia, N. Y.
Spaulding, Robert T____________________ 431 Woodrow Ave., Dunkirk, N. Y:
Strahz, Henry------------------------- Bennett-Road, Dunkirk, N. Y.
If you are unable to contact any of the above, kindly advise and we shall be
available to help in that respect.
On January 29 Goldman replied to the above letter from Lynch as follows, in
material part: -
Please be advised that 'as of January 10, 1957, the Dunkirk Corporation was
purchased by the Jaihi!s Broadcasting Company, Inc. This resulted in a com-
plete change of owhership of the radio station, as well as new directors and
officers Of the corporation. Hence, the new owners do not consider that any
of the strikers, or other employees of the former company, are its employees, nor
are they entitled to employment as a matter of right with the new organization.
It is the intention of the new company to commence operations 'as soon 'as
possible in accordance with revised plans to put 'the- station on 'a profitable
basis. The new management intends to hire , as new employees, any persons
who may qualify for the particular job classifications to be established under
this revision. This will be done solely on the basis of qualifications of indi-
viduals for 'the new positions . No individual will be denied employment on
the basis of his former conduct in respect to the old Dunkirk radio station, nor
because of his or her affiliation with the National Association of Broadcast
Engineers and Technicians.
The undersigned is notifying, in writing, each of the individuals mentioned
in your letter of January 22, 1957, where to apply for employment as new
employees in accordance with the foregoing.
On January 23, during the above-quoted eexchange of correspondence between
Lynch and Goldman, the union representative learned from two of the strikers
that they had been communicated With by someone identifying himself as the new
manager of the Dunkirk radio station. Lynch promptly called that individual, one
Burt, who referred him to an attorney named Naimark, in Buffalo. Lynch called
Naimark, who admitted that he was representing the Employer. Lynch asked if
the Company was offering reinstatement to the strikers. Naimark said that he
doubted it, on the ground that he would claim it to be a "new entity." Lynch then
asked Naimark, as counsel for the Employer, to meet with him for negotiations,
Naimark refused, claiming that the Employer was under no obligation to bargain
with the Union.
On February 7 Lynch wrote again to Goldman, as follows:
We request that you meet with us on Monday, February 11, 1957, at 10:30
A. M. in our office in the Andrews Building , Room 444, 35 Court Street,
Buffalo New York for the purpose of bargaining concerning a contract
DUNKIRK BROADCASTING CORPORATION 1601
covering the unit at Dunkirk Broadcasting Corporation for which' we have been
certified.
If that date, time and place are not agreeable to you, kindly advise at your
earliest convenienc,, what other date, time and place are agreeable to you.
On February 12 Goldman replied:
Please be advised that the new owners of the radio station at Dunkirk, New
York, will meet and confer with any union which is certified by the National
Labor Relations Board as the bargaining representatives of the new employees
hired by the present owners and operators of station WDOE.
Since your union has not yet been certified as the majority representative of
the new employees hired, and to be hired, by station WDOE, the present
management and owners feel compelled to refuse your request at this time.
As a witness, Goldman admitted that since he first became manager of the
Respondent James, in 1941, he has never recognized a labor organization as the
bargaining representative of his'employees. - ,
The Dunkirk radio station resumed operation on February 11, using some em-
ployees brought over from James, certain strikers hired as, new employees, and
new employees hired from outside. According to Goldman's own testimony, none
of these new employees were hired until February 7, long after his receipt of
Lynch's above-quoted letter of January 22, on behalf of nine employees, offering
their return to work. Also on January 22, Goldman admitted he caused to be
inserted in a local newspaper an advertisement seeking new employees to operate
the station.
3. The issues
General Counsel claims, in substance, that the same responsible employer entity
existed after the transfer of stock control on January 10 as before that date. This
the Respondents deny.
Although General Counsel concedes that no unfair labor practice within the
meaning of the Act may be found against any of the Respondents until January
10, when Dunkirk and James became a single employer and the gross revenue
standards of the Board were met, it is his contention that the refusal to bargain after
that date, and that the discharge and refusal to reinstate the striking employees all
were and are violations of the Federal Act. On the basis of a claim of a new and
separate entity as,of January 10, the Respondents deny having had any obligation
under -the Act to bargain with the Union or to reinstate the employees. Counsel
for the Respondent also claims that the unit certified by the New York State Board
was inappropriate under standards observed by the National Labor Relations Board,
urging that certain of the individuals permitted to vote were in fact supervisors as
defined by the Act.
B. The refusal to bargain
Turning first to the last issue noted above-that of alleged supervisors. Although
in the opinion of the Trial Examiner counsel for the Respondents consumed a great
deal of time at the hearing on this point, in an apparent effort to becloud the real
issues, since during negotiations the Respondents never raised the question, it may
be disposed of quickly here. While the record does contain some evidence, par-
ticularly in the confused and self-contradictory testimony of Schmidt, to the effect
that employees Goodrich, James, and Grace, before the date of the State Board
election, had some minor supervisory authority, and held the imposing titles,
respectively, of sales manager, program director, and chief engineer, the credible
testimony of these individuals establishes that on July 25, shortly after signing the
consent-election agreement, Schmidt informed them that whatever. supervisory
authority they had possessed was being withdrawn, and that they could and would
vote at the election. As noted above, the consent-election agreement specifically
named these individuals as eligible to vote. At the hearing counsel for the Re-
spondents claimed also that Patricia Tworek was a "confidential employee," and
should not have been in the unit. The claim is without credible support in the
record, even in Schmidt's testimony. It appears that she was a bookkeeper, and
did various other jobs about the station as need arose, including continuity, news,
typing the log and letters for the salesmen and Schmidt, and acting as corresponding
secretary for the corporation.
The Trial Examiner concludes and finds that there is no merit in counsel for the
Respondents' contention that the State Board's certification is invalid under the
Federal Act because the above-named individuals were permitted to vote. The
483142-59-vol. 120-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credible evidence makes it clear that at the time of the election there was but a
single genuine supervisor at this station employing only 13 employees, and that he
was Schmidt himself. In any event, the majority status of the Union would remain
the same, since even if it be assumed that all 4 voted for the Union, and these 4
be subtracted from the total of 10 casting votes for the Union, the result would be
6 for and 3 against. Nor will the record support a finding that the certification is
defective under the Federal statute because the consent-election agreement specifically
included in the appropriate unit the classification of supervisors. As heretofore
noted, the agreement spelled out all 13 as employees eligible to vote. Furthermore,
there is no evidence that at any time, up to the issuance of the complaint, was any
claim made by Schmidt, Goldman, or their various attorneys, that they would not
bargain with the Union because "supervisors" had been included in the unit.
The Trial Examiner concludes and finds, as alleged in the complaint, that an ap-
propriate unit for the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act, consists of all employees of the Respondent Dunkirk and since April
16, 1957, of the Respondent Lake Shore, excluding all professional employees, guards,
and supervisors as defined in the Act. It is also concluded and found, on the basis of
the State Board's certification, that as a result of an election conducted by that Board
the Union has been and now is the exclusive representative of all employees in the
said appropriate unit for the purposes of collective bargaining , within the meaning of
Section 9 (a) of the Act.
Reverting to the question of the Respondents' responsibility under the Act to bar-
gain with the duly certified Union, from the profusion of oral and documentary evi-
dence introduced into the record, a single revealing fact emerges. Insofar as a bar-
gaining relationship with the Union as representative of Dunkirk's employees is
concerned, there has been but one human individual-no matter how many so-called
corporate beings are involved-who has defeated and continues to defeat the exercise
by the employees of their rights under either the State or Federal law. That individ-
ual is Simon Goldman.
As narrated in full above, it was Goldman, in effect, who forced Schmidt, under
threat of'withdrawing from his purchase agreement , to refuse to bargain in October
1956. From October 15, 1956, up to the date of the hearing, a number of corporate
hats have appeared at the Employer's side of the bargaining table, but under each of
them has appeared the one, unchanging countenance of Simon Goldman, adamantly
refusing to accord employees their bargaining rights. The belated claim of a "sepa-
rate entity" is unconvincing fiction. The claim itself was apparently first made to
the Union by Attorney Naimark, on January 23, when Lynch called him. It is di-
rectly contrary to representations made by the parties to the stock transfer in their
application to the Federal Communications Commission, as noted in a preceding
section, for there it, is stated (and Goldman as a witness swore it was a true statement)
that "only stock in the licensee being'sold." In its opposition to the Union's petition
for a stay of the Commission's approval of the stock transfer, the Respondents ap-
parently persuaded the Commission that no "separate entity" was involved, for in its
Memorandum Opinion and Order, dismissing the petition for stay and dated January
31, 1957, the Commission said, in part: -
Unlike Greater Huntington Radio Corporation, 14 Pike & Fischer RR 270, where
we found the same petitioner to be a party in interest, on a showing that its rights
under the Federal Labor Management Relations Act might be adversely affected
by the assignment of a broadcast station license to a new employer, the instant
case involves a transfer of control of an existing corporation, and it has not been
shown that such a change in the ownership of the present employer would in
any way adversely affect the petitioner's rights under either federal or state laws.
[Emphasis supplied.] - '
It seems quite-clear that the Respondents have misrepresented the facts to one or,
the other of *two Federal agencies.,
• While it is'true that Goldman has made some changes in technical operation of the
Dunkirk station, and has hired new employees, there has not been sufficient funda-
mental change. to' identify a "new entity." As General Counsel pointed out in his
oral,argument:
After the transfer of stock and after the station went back on the air, it still
operated with the approximate same number of employees, and as before it dis-
charged employees, and [is]'doing substantially similar work.
And he appropriately cites, the Trial Examiner believes, Board language in The M. B.
Farrin Lumber Co., 117 NLRB 575: . - - . , ,
The change iii stock ownership resulted in new management for the Employer;
however, there has been little if any change among the rank-and-file employees,
DUNKIRK BROADCASTING CORPORATION 1603
and the Employer has continued the same type of lumber business operations.
We do not agree that such change in the internal structure of the managerial
hierarchy brought into existence a new and separate company. The stock sale
had no manifest effect upon the legal identity or responsibility of the corporate
employer. The stock transfer merely had the same effect as any change in
corporate control resulting from a stranger's or minority stockholder's acquisi-
tion of the majority of a corporation's stock. It is also significant that there
was no change in the composition of the contract unit of employees or in the
operations of the Company.
In summary, the Trial Examiner concludes and finds that the claim of a "new
entity" is without merit. Dunkirk still exists, although its name was changed to Lake
Shore. There was change in corporate control, and actually in managerial control,
so far as labor relations are concerned, but this change was made in October 1956,
when Goldman took over effective control of such relations.
It follows, and the Trial Examiner concludes and finds, that the obligation to bar-
gain with the Union was upon the Respondents, under the Act, on and at all times
since January 10, 1956, and that since that date the Respondents, by and through
Goldman, have refused to bargain within the meaning of Section 8 (a) (5) of the
Act. And by such refusal the Respondents have interfered with, restrained, and
'coerced employees in the exercise of rights guaranteed by Section 7 of the Act.
C. The discharges and refusals to reinstate
As alleged in the complaint, and as concluded from Goldman's letter of January
21, 1957, to all 13 employees named in schedule A, attached hereto, the letter being
quoted above, the Trial Examiner finds that the Respondents terminated the employ-
ment of all 13 employees on January 21, 1957. The final statement in that letter:
. any former employee of the prior company operating station WFCB is
not deemed to be an employee of the new firm.
was an unmistakable announcement of discharge.
It is further concluded and found that the same individuals-were on strike from
January 10, 1957, until their discharge on January 21, the strike having been pro-
longed by the Respondents' refusal to bargain. The discharge of unfair labor prac-
tice strikers and refusal to reinstate them; upon application, has long been found by
the Board and courts to be a violation of Section 8 (a) (3) of the Act. In any event,
Goldman's own testimony makes it clear that he hired no new employees until Febru-
ary 7, long after his letter of discharge.2
Although it appears that at various times, after resumption of'the station's opera-
tions, 5- of the 13 were hired as new employees, Goldman's own testimony makes it
plain that none of -the 5 were reinstated-with-full rights and privileges, as required by
the Act under the prevailing circumstances.
In summary, the Trial Examiner concludes and finds that the Respondents, Dun-
kirk and James, on January 21, 1957; discriminatorily; discharged the 13 employees
in order to discourage union membership. and other protected concerted activity.
By such discriminatory discharges and refusals to reinstate the Respondents James,
Dunkirk, and Lake Shore have interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in con-
nection with their business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found, that the Respondents have committed certain unfair labor practices,
the Trial Examiner will-recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
In view of the above findings, the Trial Examiner considers. It unnecessary to pass
upon the question, also raised In the complaint,' of refusal to 'reinstate the employees
after' the Union made, on their behalf„ formal offer' to return to' work. Goldman's letter
of January 21 makes it clear that so far as management was concerned, it,declared itself
that day as considering the'13 not to be employees in any capacity. '
1604 DECISIONS OF: NATIONAL LABOR RELATIONS BOARD
Since the Respondents have refused to bargain with the Union, the Trial Examiner
will recommend that they bargain with the Union, upon request, and if an under-
standing.is reached embody such understanding in a signed agreement.
Because the Respondents have been found to have discriminatorily discharged and
refused reinstatement to 13 named employees, it will be recommended that the
Respondents offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, by payment to each of them a sum of
money equal to that which he or she would normally have earned between January
21, 1957, and the date of offer of reinstatement, less his or her net earnings during
said period, such back pay to be computed in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. The Respondents are an employer within the meaning of Section 2 (2) of
the Act.
2. Since January 10, 1957, the Respondents have been and are engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
3. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
4. By discriminating in regard to the hire and tenure of employment of the 13
individuals listed in schedule A, attached hereto, thereby discouraging union mem-
bership and activity, the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
5. All employees of Respondent Dunkirk (and since April 16, 1957, of Respondent
Lake Shore), excluding all professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
6. At all times since September 5, 1956, the Union has been the exclusive repre-
sentative of all employees in the above unit for the purposes of collective bargaining,
by virtue of Section 9 (a) of the Act.
7. By refusing, on and after January 10, 1957, to bargain with the Union as the
representative of all employees in the aforesaid unit, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5)
of the Act.
8. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
SCHEDULE A
Bernard Goodrich Fred Loeb Anthony Sedota
James Grace Daniel Neaverth Robert Spaulding
Margarita Jagoda Donald Novelli Henry Stranz
Anthony James Larry Sands Patricia Tworek
Virginia Kaltenbach
Reading Tube Corporation and United Steelworkers of America,
AFL-CIO, Petitioner. Case No. 4-RC-3501. June 23, 1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Morris Mogerman,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
120 NLRB No. 206.