Gross Telecasting, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1960

129 N.L.R.B. 490 (N.L.R.B. 1960)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. However, the Teamsters indicated a willingness to proceed to
,an election in an overall unit if the Board should find such a unit
-appropriate. The Board has held that a union's jurisdictional or other
limitation concerning classifications of employees in no way restricts
the Board in its determination of the appropriateness of a bargaining
unit .4 As the record discloses that all employees at Tecumseh are
under the same supervision, are subject to the same working condi-
tions, and interchange, we find that an overall unit at the Tecumseh
pit is appropriate.
Accordingly, we find that the following employees of the Employer
constitute an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's sand
and gravel pit at Tecumseh, Michigan, including boatmen, inside plant
drivers, operator and driver, and crane operators; excluding office and
clerical employees, guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
'See Central Coat, Apron & Linen Service, Inc., et al ., 126 NLRB 958.
Gross Telecasting , Inc. and National Association of Broadcast-
ing Employees & Technicians , AFL-CIO. Case No. 7-CA-
f3358. October 31, 1960
DECISION AND ORDER
On May 9, 1960, Trial Examiner Henry S. Sahm 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 it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He found further that the Respond-
ent had not engaged in a certain unfair labor practice alleged in the
complaint and recommended dismissal of such allegation. There-
after, the Respondent and General Counsel filed exceptions to the
Intermediate Report and briefs in support thereof.
The Board had 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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
•case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
The General Counsel excepts, inter alia, to the Trial Examiner's
finding that the Respondent had not discriminatorily discharged
129 NLRB No. 59.
GROSS TELECASTING, INC. 491
Lloyd Garten. The Trial Examiner based his finding primarily upon
his credibility resolutions, and it is these resolutions which the
General Counsel urges are erroneous. We find it unnecessary to pass
upon the soundness of these credibility resolutions since even if we
were to credit the General Counsel's witnesses we would find that the
General Counsel had not sustained his burden of proving by a pre-
ponderance of the evidence that Garten had been discharged in vio-
lation of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent, Gross Telecasting,
Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Coercively or otherwise unlawfully interrogating employees
concerning their membership in, or activities on behalf of, National
Association of Broadcasting Employees & Technicians, AFL-CIO, or
any other labor organization, in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1).
(b) Threatening economic reprisals against its employees because
of their union sympathies and activities.
(c) Offering grants of economic benefits to its employees if they
would refrain from their union activities and affiliations.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its radio and television studio, station, and transmitter,
Lansing, Michigan, copies of the notices attached hereto marked
"Appendix A." 1 Copies of said notices, to be furnished by the Re-
gional Director for the Seventh Region, shall, after being duly signed
by the Respondent's representative, be posted by the Company im-
mediately after receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, 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."
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
Lloyd Garten was discharged in violation of the Act, be, and it hereby
is, dismissed.
MEMBERS FANNING and KIMBALL took no part in the consideration,
of the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, sentiments, or activities; threaten our employees with
reprisals because of their union affiliations and activities; offer
them benefits to induce them to withdraw or refrain from union
affiliations and activities in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
our employees in the exercise of their right to self-organization,
to form or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
that 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. We will not discriminate in regard to the
hire or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any labor organization.
GROSS TELECASTING, 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.
GROSS TELECASTING, INC. 493
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard in Lansing, Michigan, on October 28, 29, and 30 and No-
vember 12, 1959, on complaint of the General Counsel and answer of the Respond-
ent. All parties were represented at the bearing and accorded full participation.
Briefs were received from the General Counsel and Respondent on December 16.
Ruling was reserved upon the motion of the Respondent to dismiss the proceeding
and is hereby ruled upon in accordance with the findings and conclusions made herein.'
With respect to the alleged unfair labor practices, the complaint, as amended, avers
that Respondent interrogated employees, threatened them with discharge and re-
prisals, and promised them economic benefits if they refrained from engaging in
union activities. The complaint alleges further that, on April 30, 1959, Respondent
discharged employee Lloyd H. Garten for engaging in union activities.
Respondent in its answer admits the jurisdictional allegations of the complaint,
but denies the commission of unfair labor practices.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation located in Lansing, Michigan, where
it operates a radio and television station. During the calendar year 1958, the sta-
tion's gross revenues exceeded $1,000,000. It operates under license from the Federal
Communications Commission and transmits radio and television programs outside
Michigan. In the course of its normal business it performs services valued in excess
of $100,000 annually for enterprises, each of which produces and ships outside the
State in which they are produced, products valued in excess of $50,000 annually.
Respondent admits, and it is found, that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
National Association of Broadcasting Employees & Technicians , AFL-CIO, herein
referred to as the Union, is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background2
Sometime in November 1957, the Union initiated plans and began to organize
the employees of Respondent's radio and television stations. This organizational
campaign culminated in a Board-conducted election on April 9, 1958. Objections to
the election were filed. Before the Board ruled on the objections, Respondent and
the Union entered into a settlement on January 23, 1959, whereby it was agreed
that a pending unfair labor practice proceeding initiated by the Union against Re-
spondent would be terminated; the Union's representation petition withdrawn;
and the Respondent agreed to a consent election 60 to 150 days after Board approval
of the settlement. The Board approved the settlement agreement on March 23, 1959,
granting the Union's request for withdrawal of its petition and terminating the
unfair labor practice proceeding. On April 20, 1959, the Union filed a charge
against Respondent in the case at bar. On June 2, 1959, the Union filed a new
petition and request for representation with the Board and on June 26, 1959, a hear-
ing was held 3 The Board thereupon ordered an election which was held on August
28, 1959. The Union filed objections to the election which were not ruled upon
by the Board as of November 12, 1959, the date when the hearing in this proceeding
concluded.
1 The exhibit file shows Respondent's Exhibit No. 14 to have been received in evidence
This is incorrect It was reiected
2 The General Counsel made various offers of proof with respect to matters occurring
before the 6-month statutory period, some of which were refused The reason for these
rulings Is based on Board precedent that it is " in direct contravention of Section 10(b) of
the Act to rely on conduct occurring prior to the six-month statutory period as evidence
of unfair labor practices " Lloyd F Richardson, et al , d/b/a Richardson Manufacturing
Company 109 NLRB 136, 139. See also Mt Clemens Metal Products Company, 126
NLRB 1297; Local Lodge No 1424, International Association of Machinists , AFL-CIO;
,et al (Bryan Manufacturing Co ) v N.L.R B , 362 U S. 411.
Cases Nos 7-RC-4140 and 7-RC-4141 (not published in NLRB volumes).
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Issue
The Respondent contends it discharged the alleged discriminatee , Garten, for
legitimate business reasons, namely, improper attitude and bad work performance,
and that the General Counsel's charge alleging he was terminated because of his
union activities is without basis as Respondent never had knowledge of union
activity on the part of Garten.
C. The testimony
1. Alleged discriminatory discharge
Lloyd H. Garten, the alleged discriminatee, was hired by Respondent as a radio
and television announcer in September 1957. His starting salary was $110 per week
which was increased to $125 in January or February 1958, retroactive to January 1,
which is what he was earning at the time of his discharge on April 30, 1959.
Garten signed a union authorization card on January 5, 1958, and voted in the
first representation election held on April 9, 1958.
A year later, on April 6, 1959, Howard W. Coleman, Garten's supervisor, who is
manager of Respondent's radio station, and also assistant to Harold F. Gross, presi-
dent of Respondent, notified Garten that he was being discharged as of April 30,
1959. At the same time Coleman handed him a written termination notice which
read as follows:
As I believe you know, the new (January-February 1959) Hooper survey
released by Station WILS is particularly damaging to Station WJIM in the after-
noon period-a circumstance that for obvious business reasons indicates a need
for change in program content and personality during this time.
Because of this, and knowing your recent interest in moving to a larger
market, I believe it wise that we terminate your employment effective April 30.
Therefore, please consider this your official notification of release by Gross
Telecasting, Inc., as of that date.
Should you wish to move to a new position before that time, we would
appreciate adequate notification in order to arrange a substitute assignment
in your present on-the-air hours.
On April 10, Garten told Coleman that the reasons stated in his written termi-
nation notice, supra, would make it difficult for him to obtain employment else-
where in radio and television and would he, therefore, give him "something that
would counteract this notification of discharge," whereupon, Coleman, the same day,
gave Garten the following letter:
To Whom It May Concern:
Lloyd Garten has been a member of the radio and TV announcing staff of our
stations since September, 1957. His duties have included full "program per-
sonality" assignments, in all periods of the broadcast day; remote interviews and
D.J. duties at a number of locations in the Lansing area; TV booth duties, live
commercials for a variety of national spot clients, and program hosting.
His on-the-air work is full professional, and he is well liked both by the
listening and viewing audience and his staff associates.
Personally, I am reluctant to see him leave our stations; however , in all fair-
ness, he has reached the top salary bracket possible within our budgetary
structure, and is understandably ambitious in terms of moving to a larger
market.
I am happy to endorse Lloyd's work and professional abilities, and will
answer any questions upon request.
Analysis of Testimony
A Hooper rating is one type of a purported measuring of the radio audience tuned
to the broadcasting stations in a metropolitan or market area reflecting by percent-
age figures the portion of the total listening audience tuned to each measurable sta-
tion and recording these figures for various parts of the broadcast day and during
selected weeks or months of the year. The Hooper radio audio index for the Lansing
area for the afternoon period from noon to 6 p in. revealed that Respondent had lost
;half its listening audience for the period January-February 1959, as compared to
the same months in 1957. Gar-ten's radio program, which was inaugurated in No-
vember 1958, comprised 3 hours (noon to 3 p.m.) of this 6-hour period which began
at noon and ended at 6 p m. during the period January-February 1959. The pro-
gram for the period from 3 to 6 p.m. was handled by two announcers who were
hired on January 5, 1959.
GROSS TELECASTING, INC. 495'
On March 12, 1959, Coleman, who was Garten's immediate supervisor, discussed
with Gross, president of Respondent, these Hooper radio ratings which showed their
competitor (WILS) to have a 4-to-1 margin over them (WJIM) for the afternoon
hours from noon to 6 p.m. This was the forerunner of a series of discussions between
Coleman and Gross as to how to regain and increase their radio station's listening
audience as Respondent's competing radio station had issued a sales letter to radio,
sponsors in the Lansing area showing a decreasing audience for the Respondent's
station. Moreover, Respondent's local salesmen and their New York, Detroit, and
Chicago sales representatives had complained of "losing accounts to the [competing]
station because of the rating situation.. :. Gross also testified that from his "per-
sonal observation from listening to Gar-ten at various times he was not the type of
announcer that our new programing would want. " 4 Gross, in his testimony,
went on to explain that what he meant by this was that ". . . Garten is strictly the
D.J. [diskjockey] type of juvenile appeal audience; and this was not the policy of
our station and the type of audience that we were trying to appeal to. We had made'
the decision strictly on a business basis of appealing to the adult buying audience,
the audience that had the purchasing power to buy the products of the advertisers that
were clients of the station.. .. As a result of these discussions with Coleman on
how to increase the radio station's afternoon listening audience in order to stop,
losing accounts and retain sponsors, Gross decided on April 2, 1959, to discharge
Garten. Garten was given his termination notice on April 4, effective as of
April 30, 1959.
The General Counsel, in attempting to prove the allegations in the complaint that
Garten was discharged for union activity, elicited testimony from his witness, Irving
P. Bennett, Jr., who was employed by Respondent from September 1956 to January
3, 1959, as a radio and television announcer and for 1 month (October 1958) as
supervisor of radio and television announcers,5 that Garten was "an excellent disk-
jockey." Bennett testified that on the day of the first representation election, April
9, 1958, after the balloting had finished for the day, Gross called him into his
office and discussed who he believed had voted for and against the Union. Such
conversations with Gross, continued Bennett, took place at frequent intervals. Dur-
ing these frequent conversations, testified Bennett, Gross expressed his "conviction"
that "Garten had voted against him."
Gross denied having such a conversation with Bennett on April 9. He testified that
he left the station (where the election was held) and went home to take a nap be-
cause he "had been up practically all night the night before due to the birth of my
first grandchild."
Moreover, Bennett's testimony as to these "frequent" conversations with Gross.
is inconsistent and contradictory. At one point in his testimony he indicates these
conversations with Gross occurred from the time of the representation election on
April 9 until he left Respondent's employ on January 3, 1959. At another point in his
testimony it appears that these conversations occurred up until November 1, 1958,
when Coleman supplanted him as supervisor of announcers, and at still another point
in his testimony he states these conversations took place only during October 1958,
the 1-month period when he was acting supervisor of announcers.
Then, too, Bennett testified that "even before such time as I took over some of Mr.
Finch's duties," 6 Gross confided in him with respect to Garten having voted for the
Union and that Gross told him Garten would regret it as "he was going to get rid of
the troublemakers." It strains one's credulity to believe that Gross, president of the
Respondent, who was evidently versed in labor relations on the basis of his protracted
disputes and litigation with the Charging Union, would be so incredibly naive and
unsophisticated as to senselessly compromise his Company by the admittedly damag-
ing statements that Bennett imputes to him. Moreover, under these circumstances,
it is difficult to believe that Gross would have told Bennett some of these things at a
time when Bennett was still a rank-and-file announcer, the same as Garten, the
alleged discriminatee. Furthermore, Gross' knowledge of what he could and could
not do under the National Labor Relations Act, vis-a-vis, his employees, which he
undoubtedly learned by the plethora of proceedings in which he had been involved
before the Board, should have impressed upon him the importance of being cautious
about remarks made to his employees before an election or during a union organiza-
4 The radio station was then changing from a "rock-and-roll" type of music to a so-called
melodic "good music" policy having appeal for adults rather than adolescents.
5It was stipulated that Bennett was a supervisor of announcers from October 1 to
November 1, 1958.
9 Bennett assumed Finch's duties as supervisor of announcers when Finch left Re-
spondent 's employ on October 1, 1958.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional campaign so that it would seem incredible that he would have made these com-
promising statements to Bennett.
For the same reasons, Garten's testimony is not believed that Coleman told him at
the time he discharged Garten that Gross told Coleman "[Garten] was not with them
all the way and to get rid of me and clean house." It is incredible that Coleman, an
urbane witness, would have made such a harmful admission to Garten when he
discharged him.
In addition to this incredible and inconsistent testimony, Bennett, who left Re-
spondent's employ in January 1959, can be said to have severed his employment with
Respondent under conditions which may be characterized as less than amicable, as
Bennett was disgruntled at not having been promoted to the position of supervisor of
anouncers, in which capacity he acted during the month of October 1958, before being
relieved by Coleman. It may well be that his testimony was colored by dissatisfac-
tion and resentment because of this disappointment, as Bennett, on cross-examination,
admitted he was disappointed, testifying: "My dissatisfaction started when Mr. Cole-
man was hired for the job Mr. Gross told me I was to have." Under such circum-
stances, his testimony could very well be a reflection of the sometime displayed pre-
dilections of a witness whose testimony is colored by the various emotions to which the
human flesh is heir.
Moreover, Bennett had an antipathy for Gross as evidenced by an incident which
occurred when Coleman assumed the position to which Bennett had hoped to be
promoted. When Coleman reported on the job, Bennett warned Coleman that Gross
was "unethical"; that he makes and breaks promises; that Gross "cuts corners"; and
is "inconsiderate of the people whom he employed," and "treats his people with com-
plete disregard at times as to the basic rudiments of human existence and for the
rights of brotherhood among other men."
Then, too, Bennett acknowledged, and this is corroborated by Garten himself, that
as early as October 1958, Garten was dissatisfied with working conditions. The
evidence shows Garten, with the knowledge of Coleman and Gross, attempted to ob-
tain employment elsewhere during the fall of 1958, and again as late as March 1959,
about 2 weeks prior to the time he was discharged. A fair inference from this is that
both Garten and Respondent were disenchanted and discontented with each other
for some time prior to his discharge. Equally significant is Garten's testimony on
cross-examination that he was offered a lob in the fall of 1958 but refused it It
would seem that if Garten were apprehensive of his security with Respondent because
of the April 1958 election, he would have been impelled to accept this job offer.
Another incident of revealing significance is Garten requesting a letter of recom-
mendation from Coleman 4 days after he was discharged in order to "counteract"
his notification of discharge and to enable him to obtain employment elsewhere. A
few days after Coleman gave Garten the letter of recommendation which he re-
quested, Garten testified that Coleman asked him what he had done with it. Garten
told Coleman he had sent one copy to an Atlanta radio placement bureau and the
other to a New York radio placement bureau. However, on cross-examination, Gar-
ten admitted that he had turned over the letter of recommendation to Ray Miller, the
president of the local union of NABET, the Charging Union, the same day Coleman
gave it to him. When Garten was asked if this had all been prearranged, his answers
were equivocal and less than frank which would appear to indicate that he deceived
Coleman as to why he wanted a letter of recommendation from him and to whom
he had sent it.7
Nor does it seem plausible that if Gross had fired Garten for union sympathies,
Gross would have consented to giving him a letter of recommendation in view of
the General Counsel's contention that Gross had a virulent dislike of the Union
and its adherents. Rather, the reasonable explanation might be that Gross sincerely
believed Garten's personality to be unsuited for his radio station but not necessarily
so for another station which had a different programing format
The only union activity Garten engaged in, and this is conceded by the General
Counsel, was to sign a union card on January 5, 1958, 15 months before his dis-
charge. Nor is there any evidence that the Respondent knew Garten had signed the
union card. Voting in the April 9, 1958, secretly conducted Board representation
7It appears there were discrepancies in testimony with respect to this incident. At one
point Garten testified that his meeting with Miller was a mere coincidence when he went
to a restaurant to have coffee, but at another point his testimony apparently seems to
reveal that he had decided to give Miller the letter of recommendation in the afternoon
and that he went to the restaurant that night to meet with Miller That the latter
version is the true one appears to be confirmed by Carten's testimony that on April 10,
Gurganious, a fellow employee, told him Miller would be in Lansing that evening
GROSS TELECASTING, INC. 497
election cannot be considered a union activity in the context of the circumstances in
this case. The record does not even reveal that Garten was a union member. Sig-
nificant with respect to whether Respondent discharged Garten for union activities,
as the General Counsel contends, is the following testimony of Garten on cross-
examination as to what occurred when Coleman notified him he was being fired.
Q. You say that you didn't say [to Coleman] "he's [Gross] doing this be-
cause I've been working for the Union?"
A. No, I did not say that he was doing this because I was working for the
Union. I said that he was doing this because I was the last one left on the
announcing staff that remembered the past election.8
Q. Do you remember telling [Coleman], "I ,tell you Howard, I've never had
any part in this union thing?"
A. I can't recall making that statement, no.
Then, too, both Gross and Coleman denied they had any knowledge that Garten
had engaged in any union activities.
The General Counsel emphasizes that very few of those who had voted in the
April 1958 election were still employed by the Respondent when Garten was dis-
charged 1 year later in April 1959. It is true that there was a considerable turnover
of personnel at Respondent's radio and television station 9 and that dissatisfaction
was rife as evidenced by most of the announcers seeking employment elsewhere.
This excessive turnover of employees might indicate that Respondent's personnel
policies leave much to be desired but that is not within the competency of a Trial
Examiner to judge nor a violation of the National Labor Relations Act. It is,
however, a significant circumstance in that the inference which might be drawn
from this unusually high rate of employee terminations is that the alleged discrimi-
natee in this case, along with many other announcers who left Respondent's employ,
did so for reasons other than those proscribed by the Act. Corroborative of this in-
ference is Garten's testimony that "it was just my belief that he [Gross] meant to
clean house and get rid of everyone." It is just as reasonable to infer that the
Respondent's personnel policy, of what appears to be an unusually excessive number
of terminations, was based and determined on what Gross thought to be sound
business practice. To infer otherwise, with respect to the alleged discriminatee,
Garten, would be tantamount to the Trial Examiner placing himself in the position
of substituting his own ideas of business management for those of the Respondent.
This is not permissible.'°
Even assuming the General Counsel's contention that Gross wanted to rid himself
of union adherents, the trier of these facts is not prepared to say, in view of Gross'
testimony, that the appreciable decrease in radio audience, particularly during
the time Garten was on the air (as evidenced by the Hooper ratings) with conse-
quent loss of sponsors which compelled him to discharge Garten, is not substantial
evidence contradicting the General Counsel's interpretation. On the contrary, the
reason advanced by Gross would warrant the discharge of any employee, whether
prounion or antiunion. "The fact that there is evidence considered, of and by
itself, to support an administrative decision is not sufficient where there is opposing
evidence so substantial in character as to detract from its weight and render it less
than substantial on the record as a whole." ii
As was said by Judge Brown:
If the discharge was excessively harsh, if lesser forms of discipline would
have been adequate, if the discharged employee was more, or just as, capable as
the one left to do the job, or the like then, the argument runs, the employer
must not actually have been motivated by managerial considerations, and (here
a full 180 degree swing is made) the stated reason thus dissipated as pretense,
nought remains but antiunion purpose as the explanation. But as we have so
often said: management is for management. Neither Board nor Court can
second-guess it or give it gentle guidance by over-the-shoulder supervision.
Management can discharge for good cause, or bad cause, or no cause at all.
It has, as the master of its own business affairs, complete freedom with but
Compare this to the section entitled "Analysis of Testimony," supra, where Csrten
testified that Coleman told him at the time he discharged him that Gross had said
"Garten was not with them all the way and to get rid of me and clean house "
B Respondent's Exhibit No 13
10NLRB v. Blue Bell, Inc, 219 F 2d 796, 798 (CA 5)
u Russell H Williams v. U,8, 127 F. Supp. 617, 619, citing Universal Camera Corpora-
tion v N L R B., 340 U.S 474, 4S7.
586439-61-vol. 129-3 3
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one specific , definite qualification : it may not discharge when the real motivat-
ing purpose is to do that which Section 8(a) (3) forbids. .. .
Rotation in personnel is a common thing. The employer does not enter the
fray with the burden of explanation. With discharge of employees a normal,
lawful legitimate exercise of the prerogative of free management in a free
society, the fact of discharge creates no presumption, nor does it furnish the
inference that an illegal-not a proper-motive was its cause. An unlawful
purpose is not lightly to be inferred. In the choice between lawful and
unlawful motives, the record taken as a whole must present a substantial basis
of believable evidence pointing toward the unlawful one.12
Finally, the General Counsel argues, Garten was believed by Gross to have voted
against the Company in the April 1958 election and that he wanted to get rid of
Garten before the next election which was held in August 1959. Assuming arguendo,
this to be so, it appears wholly unlikely that Gross would have waited a year to
retaliate against Garten by discharging him in April 1959.
Discussion and Conclusions
Section 8(a)(3) forbids an employer to discriminate against employees in order
to encourage or discourage membership in any labor organization. This section
outlaws discrimination for this purpose "in regard to [their] hire or tenure of
employment or any term or condition of employment." However, the Act does
not circumscribe an employer's right to hire, discipline, or discharge an employee
for reasons not forbidden by the Act, even though the employee may be an active
union adherent or advocate. The employer can hire and fire at will, so long as his
action is not based on union membership or intent to interfere with the purposes
of the Act. And where a just ground of discharge appears, it is ordinarily a mere
matter of speculation to say that the discharge was because of union membership.13
Upon examination of all the facts, it must be determined whether the respondent
employer's discharge of the employee was motivated by a desire to discourage
union membership or other employee activities protected by the statute.
The burden of proving unlawful motivation rests with the General Counsel and
it must be determined whether the evidence supports the allegations of his complaint.
Section 7(c) of the Administrative Procedure Act (5 U.S.C. 1006), provides that
"the proponent of a rule or order shall have the burden of proof . and no
sanction shall be imposed or rule or order be issued except upon consideration of
the whole record or such portions thereof as may be cited by any party and as
supported by and in accordance with the reliable, probative, and substantial evi-
dence." 14 However, once the General Counsel has established a prima facie case
of unfair labor practices, the burden of going forward with defense evidence sufficient
to rebut the General Counsel's prima facie case falls upon the Respondent 15 More-
over, proof of an affirmative defense, such as a contention that the employee's
discharge was for cause, rests with the employer but it is not the burden of the
respondent to show the absence of discrimination but that of the General Counsel
to show its presence.18 However, the Board has held that the fact that a valid cause
for discharge exists does not excuse a violation of the Act, if the evidence shows that
the employer's real reason was to discourage union activities of the dischargee.
Nevertheless, an employer's antiunion disposition, standing alone, does not justify
a finding of unlawful discrimination in the face of evidence that an employee was
discharged for a good cause.17
The Court of Appeals for the First Circuit in a recent case 18 stated that substantial
evidence must be adduced in a discriminatory discharge situation which shows that
the employer knew the dischargee was a member of the union or engaging in union
activity and that he was discharged for this activity. The court went on to state:
19 Y L RD. v. T A McGahey, Sr, at al, d/h/a Column bits Marble Works, 233 F 2d 406,
412-413 (C A 5) See also NLRB. v. Hudson Pulp d Paper Corporation, et al, 273
F 2d 660 (CA. 5)
'IN L R B v Jones d Laughlin Steel Co , 301 U.S 1, 45.
14 See Local 3, United Packinghouse Workers, CIO v N.L R B. ( Wilson c5 Co., Inc ),
210 F 2d 325 (CA 8)
15 J H Lassing, at al, d/ b/a Consumers Gasoline Stations, 126 NLRB 1041, footnote 6.
'ON L R B v. Brady Aviation Corporation, 224 F 2d 23 (C.A 5).
17 Sixteenth Annual Report of the National Labor Relations Board, page, 161 and 162 ;
Seventeenth Annual Report of the National Labor Relations Board, pages 135 and 136
18 N.L R.B. v. Whitin Machine Works, 204 F. 2d 883, enfg. 100 NLRB 279.
GROSS TELECASTING, INC. 499
It need not be the only reason but it is sufficient if it is a substantial or motivat-
ing reason, despite the fact that other reasons may exist. Although the discharge
of an inefficient or insubordinate union member or organizer is lawful, it may
become discriminatory if other circumstances reasonably indicate that the
union activity weighed more heavily in the decision to fire him than did dissatis-
faction with his performance. Motivation is an elusive fact, and this gives rise
to the difficulty of assessing the strength of the inference that [the dischargee]
.was fired because of his union activity.19
Determining what is the motivation for these alleged discriminatory discharge
cases is a grave responsibility because of the elusive intangibles involved. The
legal principle that employee inefficiency is adequate cause for discharge is plain
enough. The difficulty arises in determining whether, in fact, the discharge is made
because of such a separable cause or because of some other concerted activities
engaged in for the purpose of collective bargaining or other mutual aid or protection
which may not be adequate cause for discharge.
Then, too, in these types of cases, consideration must be given to the proviso in
Section 10(c) of the Act, as amended, which forbids reinstatement of an employee
discharged "for cause." The legislative history of the Act reveals that when the
meaning of the phrase "for cause" was discussed in the Senate by Senator Taft, he
had the following to say with respect to it:
It merely states the present rule. If a man is discharged for cause, he cannot
be reinstated. If he is discharged for union activity, he must be reinstated.
In every case it is a question of fact for the Board to determine. [Emphasis
supplied.] 20
It would appear, therefore, in resolving this question of fact, that if upon the
"preponderance of the testimony taken," the proof creates an equipoise,21 or if any
essential element necessary to make a finding of an unfair labor practice is absent
or left to surmise, speculation, or conjecture, the trier of the facts is mandated by
Section 10(c) to dismiss the complaint.
The Court of Appeals for the Fifth Circuit in a recent case 22 stated:
. .. Where the Board could as reasonably infer a proper collateral motive as
an unlawful one, the act of the management cannot be set aside by the Board
as being improperly motivated.
The trier of these facts is not prepared to state whether this holding of the court
is in conflict with the Board decisions stating that where a clearly unlawful reason
is one of the motivating causes of a discharge, the coexistence of a separate valid
reason does not eliminate the unlawful aspect of the employer's action.23 It would
seem, however, that in evaluating whether an unfair labor practice has been com-
mitted, the legality of the employer's conduct in discharging employees involves the
problem of accommodating the rights of employees under Section 7 to engage in
concerted activities with the right clearly given an employer under Section 10(c)
to protect his business by discharging an employee "for cause." Southern Steamship
Company v. N L.R.B., 316 U.S. 31, 47.
Absent a situation where the facts are such that an inference may be drawn
ascribing both a proper and an improper reason for discharge, either rule, assuming
the Huber case (footnote 22) conflicts with Board decisions, would be inapplicable
where the evidence is such that there is no reasonable basis for inferring the dis-
charge was "for cause"; or conversely, where the evidence clearly indicates serious
employee misconduct or inefficiency.
ii Id at page 885.
20 93 Cong Rec , page 6518, column 2
n It might be noted parenthetically that a situation can arise where upon a study of
the entire record, including consideration of the witnesses' credibility, the trier of the
facts concludes that the evidence on both sides creates an equipoise. It would appear
that in such a situation, the complaint must be dismissed since the General Counsel has
not proved the allegations in his complaint by a preponderance of the evidence Such a
probability is neither an abstract nor academic proposition as evidenced by the frequency
with which juries in a court of law are unable to arrive at a verdict See Eastern Coal
Corporation v. N.L P B., 176 F. 2d 131, 135, 136 (C A 4), where the court said :
the test is not satisfied by evidence . . . which gives equal support to inconsistent
inferences." [Emphasis supplied.]
22 N L R.B v Huber d Huber Motor Express, Inc, 223 F. 2d 748, 749 See also
NLRB v. The Houston Chronicle Publishing Company, 211 F. 2d 848 (C A. 5).
2 Kingston Cake Company, Inc., 97 NLRB 1445, at 1451.
e5OO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These preliminary observations, then, are a prelude to the most difficult question
in this case: Whether the alleged discriminatee, Garten, was discharged by Re-
spondent, as contended by the General Counsel, in violation of Section 8(a)(3)
of the Act because of his union sympathies, or "for cause" as claimed by the
Respondent. In determining this question, the burden of proof was on the General
Counsel to establish and sustain the allegations of his complaint by a preponderance
of the probative evidence, and where a discriminatory discharge, as here, is charged,
then he must establish by a preponderance of the evidence that such discharge was
discriminatory.24 The General Counsel in order to prove a prima facie case must
show that the alleged discriminatee engaged in activities protected by Section 7 of
the Act; that the Respondent knew he engaged in such conduct prior to discharge;
and that he was discharged as a result of having engaged in such conduct. Moreover,
the burden of proof rests not upon the Respondent to convince the trier of the facts
that the discharge was not in violation of the Act but upon the General Counsel
to prove that the discharge was illegal 25 However, when the Respondent's explana-
tion of the discharges is a reasonable one, that the discharge was due to the employee's
unsatisfactory work performance, the burden of going forward with evidence shifts
to the General Counsel to establish the falsity of the explanation and the truth of
his own interpretation.26
The Respondent's asserted reason for discharging Garten which originated when
a competitor circulated the Lansing business community with advertising material
showing Respondent's listening audience to have decreased substantially, especially
,during the afternoon when Garten was on the air, is a reasonable explanation.27
Being fearfully aware of a continuing loss of radio sponsors, the Respondent ex-
amined his programing during the afternoon period, corollated it to those announcers
broadcasting during the afternoon hours, one of whom was Garten, and decided,
on the basis of both these objective considerations (Hooper rating and loss of
sponsors) and subjective considerations (Gross' and Coleman's evaluation of Garten's
performance), that Garten must be discharged.
What the Fifth Circuit Court of Appeals said in N.L.R.B. v. Birmingham Pub-
lishing Company, 262 F. 2d 2, 9, is particularly pertinent:
If a man has given his employer just cause for his discharge, the Board cannot
save him from the consequences by showing that he was pro-union and his
employer anti-union. We have no doubt that the Birmingham Publishing
Company was glad to get rid of Edwards. But the Company has a right to
operate its plant efficiently. If an employee is both inefficient and engaged
in union activities, that is a coincidence that does not destroy the just cause
for his discharge. We cannot say, and the evidence does not support the
conclusion that the Board can say: Edwards was fired because the Company's
officials had an anti-union animus against Edwards.
It is not within the competency of the trier of the facts to search the record for
subjective considerations upon which to base inferential conclusions when the
objective factors in the record are before him and point to where the truth lies.
Even assuming, as the General Counsel contends, that Gross believed Garten had
voted for the Union in the first election and was looking for a pretext to rid himself
of union adherents before the second election, the Trial Examiner is not prepared
to say, in view of the persuasive reasons given by Respondent for Gar-ten's dis-
charge, that this was only a pretext. On the contrary, the record shows a low
Hooper rating for Garten's program and a consequent loss of sponsors-grounds that
would warrant the discharge of any employee, whether prounion or antiunion.
The Supreme Court had held 28 before the enactment of the Labor Manage-
ment Relations Act of 1947 (61 Stat. 136) that the evidence necessary to make a
finding of an unfair labor practice must be "substantial." Substantial evidence is
such evidence as affords a substantial basis of fact from which the fact in issue can
be reasonably inferred 29 Substantial evidence must be such relevant evidence as
24 Indiana Metal Products Corporation v. N.L R B., 202 F. 2d 613, 616 (C.A. 7) ;
N L R B. v Deena Products Company, 195 F. 2d 330, 335 ( C.A. 7), cert. denied 344
U S. 827.
26 N.L R B. v Cleveland Trust Co., 214 F. 2d 95, 99 (C.A. 6) ; N.L.R B. v. Drennan
Food Products Co., 272 F. 2d 23 (CA. 5).
26 Martel Mills Corporation v N.L.R.B., 114 F. 2d 624, 631 (C.A. 4) ; N.L.R.B. v.
Entwistle Mfg. Co., 120 F. 2d 532, 535 (C.A. 4).
27 Respondent's EXhibits Nos. 8, 9A, 9B, and 10.
2s Consolidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197, 229.
N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, 299.
GROSS TELECASTING, INC. 501
a reasonable mind might accept as adequate to support a conclusion. Substantial
evidence must have rational probative force; it must carry conviction; it must be
more than a scintilla, and must do more than create a suspicion of the existence
of the fact to be established.30 Moreover, the substantiality of evidence must take
into account whatever in the record fairly detracts from its weight. This is what is
meant by consideration being given to the "whole record." 31 And the test is not
satisfied by evidence which gives equal support to inconsistent inferences.32
In N.L.R.B. v. Stafford Operating Company, 206 F. 2d 19 (C.A. 8), the court
said at pages 22 and 23:
The insertion of the word "substantial" in the Act by the amendment of
1947 did not, therefore, enlarge its meaning in that respect, but the insertion of
the words "on the record considered as a whole" and the historical background
of the Act and the amendment do have significance.... In construing the
amended Act, the Supreme Court said in Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474, 487.. .:
Whether or not it was ever permissible for courts to determine the sub-
stantiality of evidence supporting a Labor Board decision merely on the
basis of evidence which in and of itself justified it, without taking into
account contradictory evidence or evidence from which conflicting in-
ferences could be drawn, the new legislation definitively precludes such a
theory of review and bars its practice. The substantiality of evidence must
take into account whatever in the record fairly detracts from its
weight. .
The fact in issue is the intent, motive or reason in respondents' mind
for the discharge of the complainants. When the mental process actuating
a person in the performance of an act is the fact for determination, often
times circumstantial evidence is the only type available. Circumstantial
evidence, as such, is not to be relegated to an undesirable category. But
whether the facts and circumstances constituting such evidence be of such
weight as to be substantial depends upon the nature of the facts shown, the
consistency of those facts and circumstances with each other, their con-
sistency with the truth of the ultimate fact, and their inconsistency with
a reasonable inference of the truth of the converse of the fact sought to
be shown, when viewed in the light of the entire record. And these facts
may not be viewed "in isolation."
Although the circumstances may support the inference of a fact, if it is
shown by direct unimpeached, uncontradicted, and reasonable testimony
which is consistent with the circumstances that the fact does not exist, no
lawful finding can be made of its existence.. .
Granting that an inference may be drawn from the mere fact of par-
ticipation [in union activities] followed by discharge that such participa-
tion was its cause, the inference disappears when a reasonable explanation
is presented [for the alleged unlawful act]... .
In each case such membership may have been the cause, for the union
was not welcomed by the persons having authority to discharge and employ.
If no other reason is apparent, union membership may logically be in-
ferred. Even though the discharger disavows it under oath, if he can
assign no other credible motive or cause, he need not be believed. But it
remains true that the discharger knows the real cause of discharge, it is a
fact to which he may swear. If he says it was not union membership or
activity, but something else which in fact existed as a ground, his oath
cannot be disregarded because of suspicion that he may be lying. There
must be impeachment of him, or substantial contradiction, or if cir-
cumstances raise doubts, they must be inconsistent with the positive sworn
evidence on the exact point.
Judged by these tests and standards, it is concluded that there is not substantial
evidence that the Respondent discharged the alleged discriminatee Garten because
of his union activities for the reasons hereinabove and hereinafter indicated.
$' Del E. Webb Construction Company v. N.L.R.B., 196 F. 2d at 847 (C A. 8).
W Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 485, 488, 490.
as Eastern Coal Corporation v. N.L.R.B., 176 F. 2d 131, 135, 136 ( C.A. 4). See also
footnote 21, supra.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merely showing that Garten signed a union application card is not sufficient to
establish a prima facie case. A vital element necessary to prove a violation of
Section 8(a)(3) of the Act is knowledge by the Respondent of the dischargee's
union activities . In order to find that a discharge of an employee was motivated
by discriminatory purposes , it must be shown that the employer knew or believed
that the employee had participated in union or concerted activities . "Knowledge
by a respondent of a dischargee 's union membership is a prerequisite to a finding that
the discharge was made for that reason . The Board has the burden of proving this
knowledge and it is not sufficient that the proof be based on suspicion or surmise." 33
What then does the record disclose in this regard?
Merely showing that Garten signed a union card is not enough. Such evidence
did not relieve the General Counsel of his burden of affirmatively proving that Re-
spondent had knowledge of the alleged discriminatee 's interest in, and activity on
behalf of, the Union before his discharge . Diamond Ginger Ale, Incorporated, 125
NLRB 1173 ; N.L.R.B . v. Wagner Iron Works, et al ., 220 F. 2d 126, 137 (C.A. 7).
A study of the record reveals that the General Counsel failed to sustain his burden
of proof by a preponderance of the evidence that Respondent knew the alleged dis-
criminatee was a union adherent at the time of his discharge . Moreover , there is
no evidence in the record that Garten was active in the Union or even a union
adherent , so that the Respondent would be aware of his union sympathies. Nor is
there substantial evidence to controvert Respondent 's categorical denial that it was
aware of the union sympathies of the dischargee prior to his termination . To hold
that the evidence preponderates in favor of a finding that Respondent had such
knowledge and that Respondent discharged Garten because it suspected that he had
voted for the Union in a secret election a year earlier and was fearful he might
repeat that performance at some undetermined date in the future ,34 would be to
engage in attenuated rationale , specious reasoning , and to give effect to anemic
inferences . Speculation , surmise, conjecture , and unfounded conclusions cannot
be the basis for findings which the Act requires to be based on "substantial evidence."
The fact is that the record contains no indication of why Garten should have been
selected for discriminatory discharge in April 1959. Although he had voted in the
election a year earlier , there is no showing that he was outstandingly active on behalf
of the Union . In fact, the evidence conclusively shows that all Garten did was to
sign a union card. The record fails to reveal that signing this union card was the
motivating cause for his discharge . Furthermore , some of the reasons advanced by
the Respondent for Garten 's discharge are consistent with and corroborated by the
attendant circumstances in this proceeding and are clearly established on the record
as a whole.
There is no substantial evidence in the record to support the conclusion that Re-
spondent discharged Garten for proscribed reasons. The evidence "must do more
than create a suspicion of the existence of the fact to be established." Higher
standards than this are required in order for such evidence to attain the stature of
"substantial" evidence . 35 Therefore , the Trial Examiner is satisfied that the fore-
going facts and circumstances fail to expose by a preponderance of the probative
evidence that Respondent 's purpose for discharging Garten was discriminatorily
motivated.
Conclusions With Regard to the Alleged Discriminatory Discharge
It is found that the General Counsel has failed to prove by a fair preponderance
of the credible evidence that Respondent discriminatorily discharged Garten.
It is found that the weight of the evidence supports the Respondent's defense that
it did not discriminatorily discharge Garten for the following reasons:
1. For the reasons hereinbefore stated, the testimony of Bennett and Garten is
believed to be inconsistent with the inherent probabilities of the case, and therefore
not credited.
88 N.L R.B. v Shen-Valley Meat Packers, Inc , et al ., 211 F 2d 289, 292 (C A. 4) :
Tampa Times Company v. NLRB., 193 F. 2d 582, 583 (C.A 5). Cf Dan River Mills,
Incorporated, 125 NLRB 1006.
84 The General Counsel contended* " . . the employer had believed [Garten] to have
voted in the election for the Union in the April 1958 election and was truing to Let rid
of him prior to the forthcoming election." Such rationale is clearly "ton remote and
unrelated to have much probative force." N L.R.B. v. The Houston Chronicle Publishing
Company, 211 F 2d 848. 854 (C A. 5).
>m 17•niversal Camera Corpoi ation v. N.L.R B., 340 U S. 474, 477, 484; N L R B. v.
Tex-O-Kan Flour Mills Company, 122 F. 2d 433, 438 (C.A. 5).
GROSS TELECASTING, INC. 503
2. It has not been proved by a preponderance of the probative evidence that the
Repondent had knowledge that the alleged discriminatee, Garten, engaged in union
activity prior to his discharge, and that he was discharged for this activity.
3. The evidence does not preponderate in favor of a finding that Garten was
terminated for discriminatory reasons.
4. The Trial Examiner believes that the evidence introduced by the General
Counsel with respect to Gar-ten's discharge being for activities protected by Section 7
of the Act, fails to attain the stature of even mere suspicion. Argumentatively
assuming that it raises a suspicious pattern, nevertheless, suspicion is not proof and
a finding of a violation of the Act cannot be based on suspicion alone.36
5. Accordingly, it is recommended that the allegation of the complaint with re-
spect to the alleged discriminatory discharge of Garten be dismissed.37
2. The alleged interference, restraint, and coercion
The amended complaint alleges that subsequent to Garten's discharge, Coleman
threatened an employee with discharge and other reprisals, Gross offered another
economic benefits conditioned upon refraining from union activity, and a supervisor,
Onken, threatened reprisals if employee Gurganious showed sympathy toward the
Union.
Frank Imburg, a former employee of Respondent, testified that a few days after
the Board hearing which was held on June 26, 1959, on the Union's representation
petition, and at which he testified, he had a conversation with Coleman. Accord-
ing to Imburg, Coleman told him that "it was unfortunate that (Imburg] appeared
at the hearing; Mr. Gross was upset about seeing me there and surprised about seeing
me there. I can't say," continues Imburg's testimony, "for sure which one of us
mentioned it or how it came out, but in the gist of the conversation it was that
perhaps I should go see Mr. Gross and talk over my status with Gross Telecasting
Inc. But I don't think we decided that that was the thing to do."
Q. Do you recall anything being said about your future at Gross Tele-
casting, Inc.?
A. I implied from the conversation that my future was on the rocks... .
Well, he [Coleman] didn't threaten me with being fired directly. However,
he did mention the words "Kiss of death," and I interpreted that as meaning
that my future was on an unsteady basis. . . . That Mr. Gross was unhappy
with me now as an employee for having shown up at the hearing and testifying
against management.
Coleman's version of this conversation is that Imburg brought up the topic saying:
"'Some of the fellows around here have been saying that my goose is really cooked
with Gross.38 . ' I said, `Well, I don't think that's necessarily true.' And he
said, `Well, they all say that after I was at that hearing and Mr. Gross saw me there
he thinks I'm against him.' And I said, `I don't know. I think to be realistic any
employer under these circumstances probably wonders a little bit how you really
feel about him; and I would if I owned the Company.' "
Coleman testified that he asked Imburg if he wanted to see Gross, whereupon
Imburg stated: "1 think I'd best look for a job elsewhere"; to which Coleman replied:
"Well, if you feel that way then you'll have to make your own decision "
Miles Baskett. who is presently employed by Respondent as a radio and television
announcer, testified that on June 2, 1959, he spoke with Gross in the latter's office.
He had gone in originally to see Gross about a discrepancy in his pay. During the
conversation, Gross, according to Baskett. said: "What are all these nasty rumors
I've been hearing about you?" When Baskett told him he didn't know what he was
referring to, Gross, according to Baskett, said: "Well, I understand that you have
been active in union organizational activities." As the conversation proceeded,
Baskett testified that he told Gross he had been a member of "NABET" in Flint,
Michigan, the Charging Party. whereupon Gross asked "if [Baskett] were still
a member." When Baskett replied he was not, Baskett testified that Gross said:
"This is a pretty good idea. I think you deserve to know both sides of the question.
However, you do know that I am against unions."
31 Punch and Jiulu Togs, Inc. of California, 85 NLRB 499, 500. See also U S v Ross,
92 U S 281. 283-284
37 Southern Oxygen Co., Inc v. N.L R B , 213 P. 2d 738 (C A. 4)
11 Later in his testimony, Coleman recalled that Imburg said : "Some of the bops have
said to me that my appearance at the hearing was really the kiss of death as far as
Gross was concerned "
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baskett testified that Gross indicated there would be an opening of a managerial
nature in the future, which Baskett was anxious to get, and Baskett would be better
taken care of if he were to deal directly with Gross rather than through a union.
On cross-examination, Baskett testified as follows:
[Gross] asked me whether or not I was on his ball team; he asked me whether
or not I was still a member of the Union; he asked me whether or not I'd been
active in the Union at the present time.
The conversation concluded, Baskett testified, by Gross telling him to vote in the
Board election as he thought best.
Gross in his testimony denied that he questioned Baskett about "nasty rumors" that
he had been hearing about him, or that he made any promises to Baskett with respect
to the Board election.
A practical consideration impels the Trial Examiner to credit Baskett's version of
what was said by Gross during this conversation on June 2, 1959. Baskett was still in
the employ of Respondent Gross Telecasting, Inc., at the time he testified. As such,
he depended on his job for his livelihood and he understood that after testifying he
must continue in the employment of Gross. Nor is the trier of these facts unmindful
of the predicament of an employee who upon being interrogated by his employer with
respect to union matters and who subsequently testifies, is apprehensive and fearful,
with some measure of justification, as to the future possibility of retaliatory action.
These practical considerations coupled with the normal workings of human nature
have led the Trial Examiner to credit Baskett's testimony.
Moreover, Respondent's contention that the statements, detailed immediately above,
which Gross made to Baskett are privileged as free speech under Section 8(c) of the
Act because they are expressions of "views, arguments or opinion" within the mean-
ing of Section 8(c) is, it is believed for the following reason, not well taken. On the
contrary, they are verbal acts whose legality under Section 8(a)(1) are determined
without reference to Section 8(c).39 Gross was free to express his views, arguments,
or opinions in any way he liked: diffidently, decorously, politely, and discreetly, or
pungently, provocatively, and even rudely, as long as he did not interfere with,
restrain, or coerce Baskett in the exercise of the protected rights guaranteed in
Section 7. This, it is believed, Gross did.
Robert H. Gurganious, who is presently employed by Respondent as a transmitter
engineer, testified about a conversation on August 26, 1959, with Carl Onken, Re-
spondent's chief engineer and Gurganious' supervisor at the transmitting station.40
Gurganious testified that Onken asked him how employee morale was, and after that
subject had been exhausted, "Onken said that he didn't know how I was going to vote
[in the Board election 2 days hence] but that I should do some serious thinking and
make up my mind and vote the right way. I told Mr. Onken that I figured my only
chance of staying with Gross Telecasting was if the Union got in. He said that he
didn't agree with me, that if the Union got in Mr. Gross would replace every one of
us one by one. He said that Mr. Gross would sit back and wait until one of us made
a goof, when one of us slipped up he'd fire us. He also stated that he didn't think that
any employee could work continuously on a job without at one time or another
making a mistake." Gurganious also testified that Onken said Alex Uschuk, another
employee, "ought to quit, as it was just a matter of time and he would be fired."
It is against this testimony Onken denied that during this conversation with Gur-
ganious that the Union or Uschuk was ever mentioned by him.
For the same reasons indicated above in Baskett's conversation with Gross, the
testimony of Gurganious is credited.41
Conclusions
To summarize briefly, then, that part of the complaint which alleges Respondent
violated Section 8 (a)( I) of the Act avers that the employees were interfered with,
restrained, and coerced in the exercise of the rights guaranteed them under the Act
in the following respects: Threatened with discharge and reprisals because of their
union sympathies, promised economic benefits if they did not vote for the Union, and
89 Minnesota Mining and Manufacturing Co., 81 NLRB 557.
4° It was stipulated that Onken is a supervisor within the meaning of the Act.
41 Respondent's contention that the amendment contained in General Counsel's Exhibit
No. 17 ( Onken incident) should not have been allowed, is answered , it is believed, by the
record, which speaks for itself ( pages 139-144).
GROSS TELECASTING, INC. 505
interrogated concerning their union activities and membership. The Respondent,
however, denies that the employees were threatened, coerced, promised economic
benefits, or interrogated about their union sympathies.
In determining whether an employer's conduct amounts to interference, restraint,
or coercion within the meaning of Section 8(a)(I), the test is not the employer's in-
tent or motive, but whether the conduct is reasonably calculated, or tends, to inter-
fere with the free exercise of the rights guaranteed by the Act 42 Then, too, on the
issue of whether the Respondent violated Section 8(a) (1) of the Act, it is not re-
quired that each item of the Respondent Company's conduct be considered separately
and apart from all others but consideration must be given to all such conduct as a
whole.43
The Board has held 44 that while the act of questioning employees cannot abstractly
be declared to constitute a violation of Section 8(a) (1) of the Act, nevertheless, if
the setting, the conditions, the methods, the incidents, the purpose, or other probative
context of the particular situation can be appraised, in reasonable probability, as hav-
ing the effect of restraining or coercing the employees in the exercise of such rights,
such activity on the part of the employer is violative of this section of the Act.45
It is found, therefore, that Respondent, Gross Telecasting, Inc., committed un-
fair labor practices by (1) Coleman's conversation with respect to Imburg testifying
at the representation hearing; (2) Gross' coercive conversation with Baskett in which
he interrogated him with respect to his union activities and sympathies, and indicated
that the Company would be more kindly disposed toward Baskett's managerial aspira-
tions if he cast his lot with the Company; and (3) Onken's threatening and intimida-
tory conversation with Gurganious.
In applying the principles enunciated above to the conduct of Respondent detailed
above, not simply in isolation , but cumulatively and compositely as well, it is found
and concluded that it was intended and so timed as reasonably to have the effect of
interfering with employee rights guaranteed to and protected by Section 7 of the Act,
and constituted interference, restraint, and coercion in violation of Section 8 (a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I, above, occurring in connec-
tion with the operations of the Respondent described in section III, 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 Respondent has engaged in certain unfair labor practices, it
shall be recommended that the Respondent cease and desist therefrom and take cer-
tain affirmative action which it is found necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Union herein is a labor organization within the meaning of Section 2(5)
of the Act.
2. Gross Telecasting, Inc., is an employer who, at all times material hereto, was
engaged in commerce within the meaning of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, Respondent Company has engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Company has not committed the violation of Section 8(a) (3) of the Act,
alleged in the complaint. It is recommended that the allegations of the complaint
setting forth said violation be dismissed.
[Recommendations omitted from publication.]
0
sa N L R B. v. Illinois Tool Works, 153 F 2d 811, 814 (C.A. 7).
43 N L.R B v. Popeil Brothers, Inc, 216 F. 2d 66, 68 (C A. 7).
"Blue Plash Express, Inc., 109 NLRB 591; Graber Manufacturing Company, Inc., 111
NLRB 167; Lily-Tulip Cup Corporation, 113 NLRB 1267
45N.L.R.B. v. Protein Blenders , Inc., 215 F. 2d 749, 750 (C.A. 8).