KLXA-TV

National Labor Relations Board - Board Decisions

Mar 19, 1968

170 N.L.R.B. 511 (N.L.R.B. 1968)

KLXA-TV 511
International Panorama TV, Inc., d/b/a KLXA-TV
and National Association of Broadcast Employees
& Technicians , Local #53, AFL-CIO, CLC and
American Communications Association. Cases
31-CA-594 and 31-CA-649
March 19, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 6, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , International
Panorama TV, Inc., d/b/a KLXA-TV, Hollywood,
California , its officers , agents, successors , and as-
signs, shall take the action set forth in the Trial Ex-
aminer 's Recommended Order.
The Respondent's request for oral argument is hereby denied as the
record , including the exceptions and brief, adequately presents the issues
and the positions of the parties
170 NLRB No 65-T-24
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: National As-
sociation of Broadcast Employees & Technicians,
Local #53,' herein called Nabet, on January 24,
1967,2 duly filed a charge in Case 3I-CA-594 and
on April 11 duly filed an amended charge alleging
that International Panorama TV, Inc., d/b/a KLX-
A-TV, herein called Respondent, since on or about
January 20, (a) has failed and refused to bargain
collectively with Nabet as the collective-bargaining
representative of Respondent's employees in a cer-
tain appropriate unit, although since January 20
Nabet has been the such representative; and. (b) by
certain stated acts and conduct of its general
manager and its station manager, has interfered
with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the
National Labor Relations Act, as amended from
time to time, herein called the Act.
On March 21, American Communications As-
sociation, herein called ACA, duly filed a charge al-
leging that Respondent discharged Dennis Wilson
in order to discourage membership in ACA,
thereby violating Section 8(a)(3) and (1) of the
Act.
Under date of June 28, the Regional Director for
Region 31 of the National Labor Relations Board,
herein called the Board, issued an order, pursuant
to Section 102.33 of the Board's Rules and Regula-
tions, Series 8, as amended, consolidating the
above-numbered cases for hearing.
On June 28 the General CounseI3 of the Board,
through the aforementioned Regional Director, is-
sued a consolidated complaint against Respondent
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1), (3),
and (5) of the Act.
Copies of the charges and the consolidated com-
plaint, together with notice of hearing thereon,
were duly served on Respondent, and copies of the
consolidated complaint and notice of hearing were
duly served on Nabet and on ACA.
Pursuant to due notice, a hearing at Los Angeles,
California, was held on September 21, before me.
All parties were represented by counsel and par-
ticipated in the hearing. Full and complete opportu-
nity was afforded the parties to be heard, to ex-
amine and cross-examine witnesses, to introduce
evidence material and relevant to the issues, to
argue orally on the record at the conclusion of the
taking of the evidence, and to file briefs on or be-
fore October 21. Briefs have been received from
the General Counsel and from Respondent's coun-
sel which have been carefully considered.
' Nabet was also represented at the hearing by Mr Fred Herrlen, vice
president of Local #53
z Unless otherwise noted, all dates mentioned herein refer to 1967
This term specifically includes counsel for the General Counsel appear-
ing at the heaing
170 NLRB No. 65
512- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and-from my
observation of the-witnesses, I make the following:
FINDINGS OF-FACT
I. RESPONDENT'S BUSINESS OPERATIONS
9(b), of the Act with respect to grievances, labor
disputes, rates of pay, wages, hours -of employment,
and other conditions of employment. I further find
that said unit insures to said employees the full
benefit of the right to self-organization, to collec-
tive bargaining, and otherwise effectuates the poli-
cies of the Act.
-Respondent, a• California corporation, is engaged
in the operation, of a television broadcasting station
known as KLXA, an, UHF station, which primarily
broadcasts taped, non-English programs. Respon-
dent is duly licensed to operate from Fontana,
California, and has been operating studios, located
in Hollywood, California, since about January 5.
Respondent's advertising revenue, most of which
is received from national advertisers, was in excess
of $15,000 monthly in January and February, and
its projected annual revenue is in excess of
$1'00,000. Respondent' is a- subscriber to United
Press International wire service.
- Upon the' basis of the foregoing facts, f find, in
line with established Board authority, that Respon-
dent is engaged in, and during all times material
was engaged in, a business affecting commerce
within the meaning of Section 2(6) and (7) of the
-Act, and that its business operations meet the stan-
dards fixed by the Board for the assertion of ju-
risdiction:
II. THE LABOR ORGANIZATIONS INVOLVED
Nabet and ACA are labor organizations ad-
mitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal To Bargain Collectively
1. The appropriate unit
The consolidated complaint alleged that all
technical, engineering, and production personnel
employed at Respondent's KLXA-TV, Hollywood,
California, broadcasting studios, excluding office
clerical employees, guards, and supervisors as
defined in the Act, now constitute and at all materi-
al times constituted a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b)
of the Act. The answer denies this allegation. Upon
the record as a whole,I find that all technical, en-
gineering, and production personnel -employed at
Respondent's Hollywood, California, KLXA-TV
broadcasting station, excluding office clerical em-
ployees, guards, and supervisors as defined in the
Act now constitute, and at all times material con-
stituted, a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section
" In some instances the cards were identified by the signers thereof and in
other instances by persons who witnessed the signing
s Gerald Llewelyn, James Burger, Paul Piscano , Robert Waters, C B
2. Nabet's majority status in the appropriate unit
As more fully set forth below, all eight technical,
engineering, and production personnel, employed
at Respondent's Hollywood broadcasting studios on
January 20, signed cards on that day expressly
authorizing Nabet to represent the signers thereof
for the purposes of collective bartgaining. These
eight signed cards are in evidence. The genuine-
ness of the signatures appearing on said cards was
not challenged. I find that, as of January 20, all
eight employees in the appropriate unit had signed
cards designating Nabet as their collective-bargain-
ing representative. I therefore find-that on January
20 Nabet was, and at all times since has been, the
duly designated representative of Respondent's em-
ployees in the unit hereinabove found appropriate.
Accordingly, pursuant to Section 9(a) of the Act,
Nabet was, and now is, the exclusive representative
of all the employees in said unit for the purposes of
collective bargaining with respect to grievances,
labor disputes, rates of pay, wages, hours of em-
ployment, and other conditions of employment.
3. The willful refusal to bargain
By prearrangement the eight unit employees5 at-
tended a meeting held about 9 a.m. on January-20,
at Nabet 's, Hollywood , California, - headquarters.
The meeting , presided over by Syd Rose, the then
Nabet regional director,' was called for the purpose
of informing Respondent 's employees of the ad-
vantages of joining Nabet and the necessary steps
to be employed to obtain recognition - for, Nabet
provided Nabet was designated the employees' bar-
gaining representative.
At the meeting referred to immediately above,
Rose told the eight unit employees , among other
things, that Nabet has been representing employees
in the broadcasting industry as 'their bargaining
representative for the past 30 years; that as such
representative Nabet "has done a ' good job in pro-
tecting employees and improving their conditions,
and it has set patterns with respect to rates of pay";
that Nabet "had a good staff and would be able to
service the people , and that [ Nabet] covered inde-
pendent stations as well as the networks and
represented production employees as well as
technical employees"; 'and that ` the employees
Briley, Jr., John Nafarrate , Bruce Solberg, and Oenms D Wilson
'' Since April 1967 Rose has been engaged in the labor relations-con-
suiting business
KLXA-TV 513
present were welcome to become Nabet members
and, in fact , Nabet would like to have them as
members.
Rose then stated that there were several ways to
secure employer recognition as bargaining
representatives-one being , " to go to the employer
and advise the employer that we represented a
majority of the employees in this unit and request
recognition ," and if the employer refused recogni-
tion then it would be necessary to file a petition
with the Labor Board to obtain an election.
According to Rose's credible testimony ,7 given
under cross-examination by Respondent 's counsel,
the following then ensued at said meeting:
I discussed the election procedures , advised
them that it was a secret election , that the
cards were confidential , and that through the
election they could obtain a certification which
would give a more binding legal status to their
rights but that if the employer did not consent
to an election that the proceedings might be
dragged out.
In answer to a number of questions about
Mr. Lerma's reaction to any information that a
meeting was taking place and what he would-
what his reaction would likely be, I suggested
that we ought to advise Mr. Lerman as quickly
as possible of the developments so that a claim
could not be made by the management that he
was unaware of the wishes of the employees,
and I was urged by several of the employees to
get to Mr. Lerma as quickly as possible if that
was the way to provide the added protection.
I assured the group that I would do so.
I suggested , also, that they select sort of a
shop steward or representative , kind of a liason
to keep in touch with the men and myself dur-
ing these proceedings , and as I recall it, they
did that.
I pointed out a method that we used for ar-
riving at contract 'proposals , that we would
have a committee made up of rank and file
members, that all of the people involved in the
group would participate in compiling contract
proposals . The results of those proposals would
have to have a majority consent before they
were submitted to the management . I talked to
them about the management-about the
method of constititional requirements for con-
tract approval and the constitutional require-
ments for striking and strike benefits.
Then there was a general question and
answer at that period.
Rose's cross-examination, on this point, con-
tinues:
Q. Did you tell them, other than what you
have already stated to the Examiner, that there
would be an election?
A. No.
I told them that there might be an election.
Q. And under what circumstances did you
tell them, if you recall, that there. might be an
election?
I am asking what-you, in fact, said to the em-
ployees on that occasion.
A. To the best of my recollection, I told
them- that if Mr. Lerma did not agree to recog-
nize the union that we would then file a peti-
tion for an election, that if there were a con-
sent that we could obtain an election within a
matter of a few weeks. -
I told them that failing to obtain a consent
the actual election might be delayed for six to
eight weeks or maybe more.
All eight employees signed cards at said meeting
in Rose's presence and in the presence of each
other expressly authorizing Nabet to represent
them as the collective-bargaining representative.
Shortly after the conclusion of aforementioned
meeting, Rose prepared and signed a letters ad-
dressed to Angel Lerma Maler which reads:
Please be advised that we represent your
technical and production employees, and wish
to meet at your earliest convenience for the
purpose of negotiating a labor agreement.
About noon on January-20 Rose went to Respon-
dent's Hollywood studios and there met with Maler
and Gary Greene, Respondent's station manager.
According to Rose, the following transpired on
the occasion referred to immediately above:
When Mr. Lerma and Mr. Greene appeared,
I greeted Mr. Lerma and told him that I have
here a letter10 which informs him that the
Union represents his technical and production
employees and that we want to commence
meetings with him for the purpose of negotiat-
ing a contract.
Mr. Lerma replied that he would not meet
with us, that he intended to start a station
union, and that he was going to talk to the em-
ployees about a profit-sharing plan and that
none of the people who were members of
NABET would be eligible either for the profit-
sharing plan or for a health program that he
was going to institute.
At that point Mr. Greene asked me whether
the Union had made the first advances to the
7 Corroborated, in the main, by the credited testimony of Piscano, Nafar-
rate, Burger, Llewelyn, and Wilson
"Angel Lerma Maier, Respondent's president, general manager, and
principal stockholder, is also referred to in the record as Angel Lerma.
The letter, dated January 20. 1967. was on Nabet' s letterhead and was
signed by Rose as "Regional Director "
10 Rose handed the letter requesting recognition to Maier at the outset of
this meeting
350-999 0 - 71 - 34
514 DECISIONS OF NATIONAL
employees or whether the employees had con-
tacted the Union first. I told him that this kind
of a situation movements start from both
directions. Sometimes the employees kind-
they contact the Union. Sometimes the Union
contacts the employees, and that I did not
know-didn't notice any difference between
this situation and any of my other organizing
experiences. Mr. Greene then asked if I would
answer his question specifically, and I told him
that at the moment I didn't care to.
I then turned to Mr. Lerma and told Mr.
Lerma that the employees had already made a
decision with respect to their desires for bar-
gaining representation, and they had already
selected NABET, and I urged him to recognize
the Union and to start bargaining and that if he
wouldn't that we would file a petition with the
National Labor Relations Board.
Mr. Lerma said that he would not recognize
the Union and that he would get rid of the
deadheads, and he said, "You know exactly
what I mean . I am going to send this letter to
my attorney."
Then the conversation ended.
Greene's version of what took place on January
20 between him, Maler, and Rose is reflected by
the following testimony given by Greene under
direct examination by Respondent's counsel:
Q. Will you tell what was said by all persons
present at that time as best you now recall?
A. As best I now recall, Mr. Rose ap-
proached us and stated-he first said hello.
TRIAL EXAMINER: Now, first of all-
THE WITNESS: The greetings.
TRIAL EXAMINER: Was Mr. Rose there when
you walked in?
THE WITNESS:Yes, he was already there. We
came downstairs to greet him.
TRIAL EXAMINER: You came down.
THE WITNESS: The greetings took place. Mr.
Rose said that he was asking to be recognized
at-.as the authorized person to be recognized
as the bargaining unit for our engineers.
Q. (By Mr. Isaac) Was any reply made to
that statement?
A. A puzzled, "Oh," and we asked him.
"Just what does that mean?"
He said, "Your engineers want to be recog-
nized by a union, and I am the representative
of that union and am here to ask you to
acknowledge the fact that I am the bargaining
agent for your employees in that union."
Q. Was a response made to that statement
of Mr. Rose's?
A. Again the same response: "What does all
this mean? What is going on in essence?"
TRIAL EXAMINER: Well, who made these an-
swers?
LABOR RELATIONS BOARD
THE WITNESS: Mr. Lerma was puzzled. I was
puzzled.
TRIAL EXAMINER: Who made the answers?
THE WITNESS: I believe the first questioning
was by Mr. Lerma of just what does all this
mean. I didn't understand it either, and said
the same thing.
Q. (By Mr. Isaac)" Then what was said?
A. I asked Mr. Rose if he could explain
what it meant, and he said no, he is not al-
lowed to.
So I said, "Well, what can you tell us?"
I asked him as to just what representation on
a collective bargaining unit agreement is. I
questioned him as to how he gained such
powers of collective bargaining.
I don't remember my exact words, but the
questions were of that nature, and he showed
us the letter somewhere along there. I don't re-
member the exact point, which as best I can re-
member states that this is to acknowledge that
someone, either his name or NABET is recog-
nized as a collective bargaining agent. I
questioned him on the facts stated: How do
you become a collective bargaining agent;
what does it mean; how is it arrived at?
He said that he couldn't tell me that.
I said, well, being fairly new in this business
and Mr. Lerma not understanding exactly what
he was presenting to us, we would have to turn
it over to our attorney and ask him what it
does mean.
There was no response from Mr. Rose ex-
cept a shrugging of the shoulders. With that, I
believe, there was just a thank you and good-
bye.
0. Is there anything else that occurred in
that conversation that you presently recall?
A. Well, my explicit point of questioning
Mr. Rose was to find out the reason that he
was given this power to be what is known as a
collective bargaining representative. That is
the phrase he used or that was the phrase that
was on the paper. It was a new term to me, and
I tried to get a definition.
Q. Was there anything else that you recall?
A. Not right at the moment.
Maler testified that Rose appeared at Respon-
dent's Hollywood studios on January 20 unan-
nounced; that when he first saw Rose in the lobby
of the studios, Rose "did like this: `Come here.'
Like I am a dog"; that when he asked Rose what he
wanted and when Rose replied, "I represent the
Union," he immediately called Gary Greene to
come to the lobby, which Greene did; that then
Rose said "Hello" and the three of them joked "a
" Respondent's counsel
KLXA-TV 515
little bit"; and that Rose again stated, to quote from
Maler's testimony, the following ensued:
He [Rose] say [sic], "I represent the
Union." He [Rose] say [sic] he went to the
National Labor [Relations Board,] blah blah
blah blah blah blah.12 -1 don't know that he
think [sic] he are [sic]. He act a-[sic]'like a
big guy, see. He come, in with envelope and do
like this.. 13
I open the envelope, and I say [sic], "What
is this?" [Rose said] "I represent the Union."
He no look to me in the face. He talk like that.
"I represent the Union." I say, "What Union? I
represent a union , too. I belong to the AF-
TRA."14 The guy give me the letter. I told Mr.
Greene "What this all about? What is this? He
say it is a union . Okay. Welcome the union to
my place."
I told him I don't care. I am a union
member. I be a union member many, many
years myself, and Mr. Greene asked question
of what is this, what is this.
The guy said, "I represent the Union," again
and again and again. So I listen ....
Well, everything Mr. Rose say I ask what is
this union for what? I say, "It is okay with me. I
am a union member. I like to be all the people
union, so let's go to make [sic] the election."
Later he say to me, "I represent the
NABET."
Many people I hear don't want to go to
NABET, want to go to different union. I put
this paper, and I give the letter to him, and I
say, "Okay, I am going to give the letter to my
lawyer. The lawyer going [to] take care of or
going to get in touch with you."
The guy go blah blah blah and like this ....15 Like
a German. I no like. I want nice talk, and he say
this: blah blah blah blah, like this.
In the light of the entire record, and from my ob-
servation of Maler, Greene, and Rose while each
was testifying,- I am convinced, and find, that Rose's
version of what was said and done during their
aforesaid January 20 conversation to be substan-
tially in accord with facts.16 - -
Upon the record as a whole, which clearly
establishes that at no time did Respondent attempt
to fulfill its statutory, obligation to bargain collec-
tively with the chosen representative of the majori-
ty of the employees in the appropriate unit, I find
that on January 20, 1967, Respondent failed and
refused, and at all times thereafter has failed and
refused, to bargain collectively with Nabet as the
duly designated representative of the employees in
the unit hereinabove found appropriate, in violation
of Section 8(a)(5) of the Act, thereby interfering
with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7, in
violation of Section 8(a)(1) thereof. It should be
noted that Respondent never questioned Nabet's
majority status nor the appropriateness of the unit
sought but, instead, completely ignored the Union's
demand for recognition. Respondent thus acted at
its peril and in violation of the Act. In fact, the
credible evidence, as more set forth below, dis-
closes that instead of fulfilling its obligations under
the Act to bargain collectively with the duly
designated representative of its employees, Respon-
dent engaged in serious unfair labor practices
designed to destroy Nabet's majority status and
thus interfered with its employees' organizational
and collective-bargaining activities.
B. Interference, Restraint, and Coercion; the
Discharge of Dennis Wilson
Dennis Wilson, a Respondent cameraman and a
unit employee, credibly testified that the same day
he signed a Nabet authorization card, Maler said to
him, during a conversation which took place in the
far corner of Respondent's Hollywood studios,
"Denny. the God damn engineers are going to join
the Union, Nabet. It is the same union that ruined
Channel 34, and anybody that joins this union will
be out," adding, to quote Wilson, "He would not be
able to participate in any profit-sharing plan or in-
surance plan, and that our dependents would not be
able to participate in the insurance plan either."
A day or two after the aforementioned January
20 meeting in Nabet's Hollywood headquarters,
Greene asked Gerald Llewelyn, a then Respondent
maintenance employee whose main duties were
"operations and editing with tape," if, to quote
from Llewelyn's credited testimony, "I had gone
over and talked to Syd (Rose) about getting the
union into this station"; and that he replied in the
negative, adding, however, that, to again quote from
Llewelyn's credited testimony, "I told him that I
had attended the (January 20) meeting, but I had
not gone over and talked to Syd (Rose) about or-
ganizing." -
About 11:30 a.m. on January 23, Respondent as-
sembled its 25 or so employees'' in the upstairs
12 At this point Maier arose from the witness chair and motioned with the
fingers of his right hand in a manner similar to that used by a person to in-
dicate a duck supposedly talking
1' Mater physically waved an envelope at this point
1' Maier testified that he had appeared on television for many years and
that he joined AFTRA some 10 or 15 years ago, "Because I need to belong
first to the Union If I no belong to the-Union, maybe I can't work "
15 At this point Maier arose from the witness chair and again imitated
with the fingers of his right hand a duck supposedly talking
11 It should be noted that Rose wava relatively disinterested witness as he
is no longer employed by Nabet While, on the other hand, Greene and
especially Maier were interested witnesses: former being Respondent's
station manager and the latter its president, general manager, and prin-
cipal stockholder.
17 These comprised all Respondent's "employees in every category "
516 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
outer- offices of its Hollywood studios. Greene
opened the meeting by stating that the purpose
thereof was to greet the employees, to give them an
opportunity to become acquainted with their
coworkers, and to inform them regarding company
policies, rules , and regulations.
Regarding _ this January 23 meeting Wilson
credibly testified"' that Greene stated, during the
course of his remarks,
He [Greene] said, "I have a letter here-from
the union."
I think he said from NABET, because he had
the letterhead stationery there. I could see it,
and he said that they, our employees, have
asked them to represent us, that the employees
of the station had asked NABET to represent
them, and that if the employees who did be-
long to this union were represented by NABET
would not be able to participate in the profit-
sharing plan or in the insurance plan, and that
our dependants would not be able to par-
ticipate in the insurance plan either.
Further he said that they would put up sug-
gestion boxes and that they were very happy to
get suggestions from all the employees.
After Greene concluded his remarks, Maier ad-
dressed , the assembled employees. During the
course of his remarks, Maier stated that Respon-
dent intended to institute a profit-sharing plan; that
he wanted the employees to cooperate with him
and have faith in him; that he was a union member
and if the employees wanted to join a union-any
union-said organization would be welcome at the
studios; that so far as he knew, the employees
"don't want Nabet. They don't want blab blab
blab"; that 'Respondent was losing money, but
eventually he expected the station would prove
profitable; and that if the station continues to lose
money, he would sell it.
Wilson credibly, and without contradiction,
testified that on January 27, while he, Anderson,
and Greene were in the studios' control room-the
following conversation took place:
Mr. Anderson said `Weren't you at that
meeting , Dennis?"
I said, "What meeting?"
Mr. Greene said, "At the NABET Offices."
I said, "No."
He said, "Did you sign a card?"
I said, "No."
He said, "Well, somebody signed those
cards, I have asked everybody in the station,
and nobody admits signing them."
I said, "Well, if the engineers do join a
union, I will have to also, because I operate
their equipment."
I believe that was all he said.
Wilson credibly testified further that on March
16, Maier, in the presence of John Nafarrate, a
then Respondent film editor who had signed a
Nabet authorization card at the January 20 meet-
ing, said to him, "Why don't you clean the., lights,
keep the studio clean?"; that he laughingly replied,
"Well, I do keep the studio clean. I just swept the
floor and the dust rises"; that when -Maier, said,
"well, if you don't like things the way they are here.
complain to NABET," he said, "Well,-there isn't
any NABET any more;" that Maier then 'stated,
"Well, I know you signed a card with NABET";
and that the conversation ended when he, asked
Maier, "Well, who else signed these cards?". and
Maier replied. "Well. I know Paul Piscano signed a
card, and about the others, well, -that is my
business."
Wilson credibly testified that the following day,
March 17, the following took place:'
I was called into Gary Greene's, office just
before I got off work. I had been paid. I
finished my work,,and he told me that I was
being let go because there was not enough
work to do.
I said , "Well, I am sorry to hear that, but
how can you get by?"I said, "Everybody else
in the station has quit,. all the engineers"-or
something to that effect I said-"have all quit.
Who is going to do the work?"
He said, "Well, we'll manage somehow."
I said , "Well, how about some notice? It is
customary to give some notice when a person
is let go."
He says, "No, it is not customary."
I said, "Well, I believe it is."-
Then I said , "Well, what about the overtime
you owe me?"
He says, "We don't owe you any overtime."
I said , "Yes, you do. , First of all, the payroll
clerk made a mistake and didn't pay me for six
hours, and furthermore, I have been working
here overtime many, many hours for which I-
have never received any renumeration. There
is a State law in effect that you have to pay
overtime for work over 40-hours."
He says, "No there is no such law.
I said , "Well, I believe there is, and .you are
going to have to pay me that money if I have to
i" Greene 's version of what he said at the meeting varies to a considera- addition, Wilson 's testimony is corroborated in the -main by Llewelyn's
ble extent to Wilson's Maler's version differs to some extent from both testimony and by that of Frank Anderson, Respondent's chief engineer and
Greene's and Wilson's I find that Wilson's version to be in substantial 'ac - concedely a superior within the meaning of the Act and who testified
cord with the facts This finding is based mainly , but not entirely , on the herein as a Respondent witness It is true that Anderson did not testify that
fact that Wilson impressed me as being a person who is meticulous in not Greene did not say that Nabet members would not be eligible to participate
enlarging his testimony beyond his actual memory of what was said on this in the profit-sharing plan or in the insurance plan. Except for those exclu-
occasion On the other hand, neither Greene nor Maier so impressed me. In lions, Anderson 's testimony corroborates Wilson's
KLXA-TV 517
go to the Wage and Labor Board or the Na-
tional Labor Relations Counsel or anybody I
can think of."
Greene testified that at a "meeting of manage-
ment,"' held just prior to March 17, it was de-
cided, because of lack of business and because of
"financial problems" to decrease the size of the
staff by cutting "one person from production and
technical area and a person from the clerical area";
that at said meeting it was decided to terminate
Wilson and Suzana Stohl. a clerical; and that Wilson
was selected for discharge "rather than some other
member of the engineering or production person-
nel" because
A. I can answer that in two ways. I don't
know which would be more appropriate.
Q. Well, answer.
A. The stated reason-
0. Whatever the facts are, you may state
them.
A. The stated reason and that which was re-
gistered with the California Department of Em-
ployment was a decrease in the size of staff due
to financial restrictions. ^
Q. Was there any other reason?
A. Only personal things that weren't stated
in that.
Q. What were they?
A. I had heard from other employees in the
station that Mr. Wilson didn't like working
there. He said that there were too many things
wrong, and nobody knew what they were do-
ing, and he didn't like the envioronment he
was working in,
Q. Did that influence your choice of him as
the one to be let go?
A. No. That was something that was never
discussed. That would only be secondary: The
practical reason was as far as we were con-
cerned justified from our standpoint.
Maier testified on direct examination that he and
Greene made the decision to discharge Wilson and
Stohl; that the discharges were necessary because
the station was losing money; and that Wilson was
selected because Wilson gave him "lots of
headaches" due to the fact that Wilson was a
troublemaker, in that Wilson (a) talked too much,
(b) did no work, (c) every day he changed his mind
as to what job he wanted, and (d) talked "blah blab
blah with the girls and the boys."
On,cross-examination by the General Counsel,
Maier testified about Wilson's discharge as follows:
Q. You have already said that one reason
you fired Wilson was because he was a trouble-
maker.
A. No, sir, because-he been a trouble-
maker in the station, yes, but I no fired for this
reason. I fire because I have no money to pay
to continue on the payroll. I no say I fire
because he is a trouble-maker.
He is a trouble-maker, yes, sir. I can repeat
100 per cent that he is a trouble-maker. Yes,
Any station in Los Angeles, he told me is a
trouble-maker, yes, sir.
0. And he made complaints, didn't he?
A. Yes, sir, he is a trouble-maker.
Q. He made complaints to the Labor Board,
didn't he?
A. I don't care about the Labor Board. I say
I fire him because we have no money to pay.
He is a trouble-maker. A person who make
problem in the company is no good. At the
time I come downstairs and I see him talking to
the girls, have a cup of coffee, and he go blah
blah blah all the time. He want to be an an-
nouncer. Tomorrow he want to be an electri-
cian.
All the time he want to be this; it is a
sickness. You are supposed to help others, not
to help the people who make trouble in the
company, sir. This what you are supposed to
be, because I am a member to the union. I am
American citizen. You need to tell us what we
need to do to these people who do these
things. You say these people give a chance.
You find out these people why this guy if he is
good or if he have ability, why not go to any
station to work. Can't work because he is
closed to any station here in Los Angeles. This
is what you are supposed to do, sir, find out the
people who work-the people. Where can you
get it if you have no money?
When asked by Respondent's counsel, whether
Wilson's duties were assigned to someone else after
Wilson's discharge, Maier testified as follows:
Q. What did you do about the work that he
[Wilson] was doing when he was working there
after he left?
A. Nothing, nothing.
Q. Well, who did the work that he was
doing before?
A. Nobody, nobody.
Q. He wasn't doing work that was-
A. Nobody. Nobody is indispensable. No
myself, no you, no nobody.
" The record is silent as to who attended this meeting The only persons
mentioned in this record as being members of "management" are Maler,
Greene, and Anderson
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's contention that Wilson was ment prepared by Respondent and submitted to
discharged for lack of work and for economic Board, which reads as follows:
reasons is belied, in part, by G. C. Exh. 4, a docu-
Date Start Employee Name Hours Worked Week of:
or Terminate and Title 3/17 3/24 3/31 4/7 (1967)
Part time to 22 Part time
4/2 Vernon C. Cotner, 22 22-1/2- 21-1/4 50-1/2 Reg.
4/2 T
XMTR Eng.
Setnhan Kamen, 43-1/2 43 45 22-
time
3/31 T
Op. Eng.
Paul Piscano, 47 52 37
4/2 T
Op. Eng.
George Zanuzoski, 54-3/4 42-1/2 53 23
On. Eng.
Bruce Solberg, 10
(Abs.)
ITI 41-3/4 73-3/4
3/21 S
Op. Eng.
Mario Licitra, 33-1/2 45 44
3/18 S
XMTR Eng.
- Arthur J. Magaro, -- 10 36 56
1/17 S
Op. Eng.
Martin J. McFaul, 9 40 41-1/2 .-45
3/17 F
Maint. Eng.
- John Nafarrate, 40
3/20 S
Film Editor
Richard Dayton, 40 40 40
3/17 T
Film Editor
Dennis Wilson, 50 --
4/3 S
Camera-Floor
Rodolfo Fushan, 45-1/2
20/
Op. Eng.
In addition, Respondent did not offer to prove its
purported poor financial condition by any of its
books or records but contended to solely rely upon
Maler's and Greene's unconvincing, conclusionary
testimony that it had to discharge two employees,
Wilson and Stohl, because of lack of business and
economic reasons.
This case presents the comparatively rare situa-
tion where the recitation of the facts leading up to
Wilson's discharge vividly reveals its discriminatory
character. The very sequence of the events sur-
rounding the discharge renders immediate suspect
of the Respondent's proffered explanation in justifi-
cation of its conduct. Thus, in the face of the
overwhelming credited evidence that the discharge
was plainly attributed to Respondent's animosity to
the employees' organizational activities, Respon-
dent urges that the true reasons for the discharge
were (1) economic problems, (2) lack of business,
and that (3) Wilson (a) talked too much, (b) did
not attend to his duties. and (c) was a
troublemaker. I am convinced, and find, that Wil-
son's purported short comings only became insur-
mountable in his Employer's eyes when Wilson
joined the other production, technical, and en-
gineering employees in Respondent's studios in sup-
porting their organizational campaign and that
Respondent's advanced reasons for Wilson's
discharge were merely pretexuous.
Upon the entire record as'a whole, which clearly
reveals Respondent's animosity to its employees'
union activities, I find that Wilson "was discharged
because of his union activities and ,not for' the vari-
ous reasons advanced by Respondent. In N.L.R.B.
v. May Department Stores Co., 154 F.2d 533 (C.A.
8), the court said, at p. 538, regarding a situation
2" An examination of this document discloses The week Wilson was
discharged, the production employees worked 276 hours The following 3
weeks the hours worked by the production employees were 283, 360, and
422, or an increase in the fourth week of 65 percent
KLXA-TV
similar to the one presented here, that there is a
"broad scope of inference open ... on questions of
motive and discrimination, where the evidence in-
dicates a desire to thwart or nullify unionizational
efforts, either generally or as to a particular em-
ployee-organization." And where, as here, the Em-
ployer has shown strong opposition to its em-
ployees' organizational efforts, "a very convincing
case of discharge for cause would have to be made
to make unreasonable a conclusion that (the)
discharge was because of union affiliation."21 Ac-
cordingly, I find that Respondent discharged Wil-
son, and thereafter refused to reinstate him because
he had engaged in protected activities on behalf of
Nabet and ACA. By so doing, Respondent violated
Section 8(a)(3) of the Act and since such conduct
necessarily interfered with, restrained, and coerced
Wilson and his coworkers in the exercise of the
rights guaranteed in Section 7 of the Act, Respon-
dent also violated Section 8(a)(1) thereof. I further
find that by (a) Maler's above-quoted remarks to
Wilson on January 20, "in the far corner" of
Respondent's studios; (b) Greene's above-quoted
remarks ,to Llewelyn on January 21, or 22; (c)
Maler's••and Greene's remarks on January 23 to
Respondent's assembled employees;22 (d) Greene's
and Anderson's above-quoted January 27 remarks
to Wilson; and (e) Maler's above-quoted remarks
to Wilson on March 16 were, under the circum-
stances of this case, violative of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate, and substantial relationship
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 Respondent has engaged in
unfair labor practices violative of Section 8(a)(1),
(3), and (5) of the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent on January 20,
1967, and at all times material thereafter, has
refused to bargain collectively with Nabet as the
duly designated representative of the employees in
d1 Dannen Grain and Milling Co v NLRB , 130 F 2d 321, 328 (C A
8)
"These remarks not only were clearly promises of benefits if the cm-
519
an appropriate unit, I will recommend that Respon-
dent, upon request, bargain collectively with Nabet
as the exclusive representative of said employees
and, if an agreement is reached, embody such un-
derstanding in a signed agreement.
Having found that Respondent has discriminated
in regard to the hire and tenure of employment and
the terms and conditions of employment of Dennis
Wilson, it is recommended that Respondent offer
him immediate and full reinstatement to his former
position, without prejudice to his seniority or other
rights and privileges. It is also recommended that
Respondent make Dennis Wilson whole for any loss
of pay he may have suffered by reason of Respon-
dent's discrimination against him by payment to
him of a sum of money equal to the amount he nor-
mally would have earned as wages from March 17,
1967, the date of his discharge, to the date of
Respondent's offer of reinstatement, together with
interest thereon at the rate of 6 percent per annum,
less his net earnings during said period.
Loss of pay shall be computed and paid in the
manner and to the degree set forth in F. W. Wool-
worth Company, 90 NLRB 289, and in Isis Plumb-
ing & Heating Co., 138 , NLRB 716.
The unfair labor practices found to have been en-
gaged in by Respondent are of such a character and
scope that, in order to insure Respondent's em-
ployees of their full rights guaranteed them by the
Act, it will be recommended that Respondent cease
and desist in any manner from interfering with,
restraining, and coercing its employees in their ex-
ercise of the rights of self-organization.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the mean-
ing of Section 2(2) of the Act, and is engaged in
commerce or in a business affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Nabet and ACA are labor organizations
within the meaning of Section 2(5) of the Act.
3. All Respondent's Hollywood, California, stu-
dios technical, engineering, and production em-
ployees, guards, and supervisors, as defined in the
Act, constitute, and at all times material con-
stituted, a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section
9(b) of the Act.
4. On January 20, 1967, and at all times since,
Nabet has been, and now is, the exclusive represen-
tative of Respondent's employees, in the aforesaid
ployees renounced Nahet, but were also threats that they would lose cer-
tain benefits if they remained Nabet members
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit, for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on and after January 20, 1967, to
bargain collectively with Nabet as the exclusive
representative of the employees in the aforesaid
unit , Respondent has engaged in, and is engaging
in, an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By discriminating in regard to the hire and
tenure of employment and the terms and conditions
of employment of Dennis Wilson at the time and in
the manner set forth in the foregoing findings of
fact, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
7, By the aforesaid discrimination, and by other-
wise interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed
by Section 7 of the Act, as found in the foregoing
findings of fact, Respondent has engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
8. By (1) unlawfully questioning its employees
about their union activities and sympathies of their
coworkers, and (2) unlawfully questioning its em-
ployees regarding the union memberships, activi-
ties, and sympathies, Respondent has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
9. By promises of benefits if the employees
would repudiate their support of Nabet and threats
of loss of benefits if they remained or became mem-
bers of Nabet, Respondent engaged in, and is en-
gaging in, unfair labor practices violative of Section
8(a)(1) of the Act.
10. The aforesaid unfair labor practices are un-
fair labor practices within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record as a
whole, I recommend that Respondent, its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Nabet
as the exclusive representative of all the employees
in the unit hereinabove found appropriate with
respect to grievances, labor disputes, rates of pay,
wages, hours of employment, and other conditions
of employment.
(b) Discouraging membership in, or activities on
behalf of Nabet, ACA, or any other labor organiza-
tion of its employees by discharging, laying off, or
in any other manner discriminating against any of
its employees, in regard to their hire or tenure of
21 In the event that this Recommended Order is adopted by the Board,
the words "a Deusion and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
'employment, or any term or condition of employ-
ment.
(c) Unlawfully interrogating its employees con-
cerning their activities and sympathies on behalf of
any labor organization.
(d) Promising its employees certain benefits in
order to discourage membership and activities in
support of Nabet.
(e) Threatening its employees with loss of cer-
tain benefits if they remained Nabet members.
(f) In any manner interfering with, restraining,
or coercing its employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist the National Association of
Broadcast Employees & Technicians, Local #53.
AFL-CIOCLC, or any other labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in other con-
certed activities for the purposes of mutual aid or
protection, as guaranteed by Section 7 of the
National Labor Relations Act. as amended, or to
refrain from any and all such activities.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Upon request, bargain collectively with
Nabet as the exclusive representative of the em-
ployees in the above-described appropriate unit,
with respect to grievances, labor disputes, rates of
pay, wages, hours of employment, and other condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Offer to Dennis Wilson immediate and full
reinstatement to his former position, without preju-
dice to his seniority or other rights and privileges
previously enjoyed.
(c) Make Dennis Wilson whole for any loss of
earnings he may have suffered as the result of
Respondent's discrimination against him in the
manner and to the degree set forth in the section
above entitled "The Remedy."
(d) Preserve and, upon request, make available
to the Board or its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Notify Dennis Wilson if presently serving in
the Armed Forces of the United States of his right
to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(f) Post at its studios in Hollywood, California,
copies of the attached notice marked "Appen-
dix. "23 Copies of said notice, on forms provided by
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order
KLXA-TV
the Regional Director for Region 31, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive 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 said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 31,
in writing, within 20 days from the receipt of this
Decision, what steps Respondent has taken to
comply herewith.24
IT IS FURTHER RECOMMENDED that unless on or
before 20 days from the date of receipt of this
Decision the Respondent notify said Regional
Director, in writing, that it will comply with the
foregoing recommendations, the National Labor
Relations Board issue an order requiring the
Respondent to take the action aforesaid.
s+ In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
After a hearing duly held, at which this Company
was represented by a lawyer, it was determined that
National Association of Broadcast Employees &
Technicians, Local #53, AFL-CIO, CLC (com-
monly known as Nabet), had been validly
designated by a majority of the employees in the
technical, engineering, and production unit, and
since it was then the exclusive collective-bargaining
agent for all the employees in said unit, it was, ac-
cordingly, found that this Company by refusing to
bargain with Nabet on request had committed an
unfair labor practice. It was also found that this
Company interfered with the guaranteed rights of
employees in other respects, such as Dennis Wil-
son's, discharge interrogation, threats, promises of
benefits, and other unlawful acts and conduct. To
remedy such conduct, this Company has been
required to discontinue the practices found to be
contrary to the National Labor Relations Act, to
take certain affirmative measures to carry out the
Act's policies, including that of bargaining with
Nabet, and to post this notice advising you of the
action we will take and assuring you of your
freedom from any future interference with your
rights guaranteed you by the Act. Accordingly, we
hereby assure you as follows:
WE WILL NOT discourage membership of any
employees in Nabet or any other labor or-
521
ganization of our employees, by discharging
employees or by discriminating in- any manner
in regard to their hire or tenure of employment
or terms or conditions of employment.
WE WILL NOT unlawfully interrogate our em-
ployees concerning their union membership,
activities, and desires.
WE WILL NOT threaten our employees with
reprisals or loss of benefits because of their
membership, assistance, or support of Nabet.
WE WILL NOT promise our employees
economic benefits if they refrain from becom-
ing or remaining members of Nabet or giving
any assistance or support to Nabet.
WE WILL NOT grant to our employees paid
insurance plans and other benefits and im-
provements in their terms and conditions of
employment, in order to induce them to refrain
from becoming or remaining members of
Nabet or giving any assistance or support to
Nabet.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
above-named or any other labor organization,
to bargain collectively with representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, and to
refrain from any or all such activities.
WE WILL offer reinstatement to Dennis Wil-
son to his former job, without prejudice to his
seniority or other rights and privileges, and WE
WILL make him whole for any loss of pay or
benefits suffered by him as a result of his un-
lawful discharge.
WE WILL bargain collectively upon request
with Nabet as the exclusive representative of
all our employees in the unit found appropriate
with respect to grievances, labor disputes, rates
of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, we will embody such
understanding in a signed agreement. The bar-
gaining unit is:
All our technical, engineering, and
production personnel employed at our
Hollywood, California, studios.
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of any labor organization.
INTERNATIONAL
PANORAMA TV, INC.,
D/B/A KLXA-TV
(Employer)
Dated By
(Representative) (Title)
Note: We will notify Dennis Wilson if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board 's Regional
Office, 10th Floor, Bartlett Building , 215 West
Seventh Street, Los Angeles, California 90014,
Telephone 688-5850.