KVST-TV

National Labor Relations Board - Board Decisions

Apr 16, 1975

217 N.L.R.B. 419 (N.L.R.B. 1975)

KVST-TV
Viewer Sponsored Television Foundation , Inc., d/b/a
KVST-TV and National Association of Broadcast
Employees & Technicians , AFL-CIO,CLC; Local
53. Case 31--CA-4692
April 16, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon charges duly filed, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 31, issued a complaint and notice of
hearing October 23, 1974, against Viewer Sponsored
Television Foundation, Inc., d/b/a KVST-TV. The
complaint alleged that the Respondent had engaged in,
and was engaging in, certain unfair labor practices af-
fecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the National Labor Rela-
tions Act. Copies of the charge and of the complaint
and notice of hearing were duly served on the parties.
The Respondent filed its answer to the complaint, deny-
ing the commission of unfair labor practices and re-
questing that the complaint be dismissed, October 29,
1974.
Thereafter, the parties entered into a stipulation of
facts and jointly moved to transfer this proceeding di-
rectly to the Board for findings of facts, conclusions of
law, and an appropriate order. They agreed that the
charge, complaint and notice of hearing with an at-
tached summary of standard procedures in formal
Board hearings, answer, and stipulation of facts along
with the exhibits attached to it, constituted the entire
record in this proceeding. The parties waived hearing
before and the making of findings of fact, conclusions
of law, and the issuance of a decision, by an Adminis-
trative Law Judge; stipulated that no oral testimony
was necessary or desired by any of the parties; and
agreed further that the motion should not affect the
Board's jurisdiction in this proceeding.
The Board, by the Executive Secretary, issued its
Order December 18, 1974, granting motion, approving
stipulation, and transferring the proceeding to the
Board.' Briefs in support of their respective positions
have been filed by all parties.
Pursuant to the provisions of Section 3(b) of the
National- Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the stipulation, including
exhibits, briefs, and the entire record, and hereby
makes the following:
I January 14, 1975, the Board issued an Executive Secretary Order cor-
recting its December 18, 1974, Order -
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
419
The Respondent is a nonprofit California corpora-
tion with its office and principal place of business in
Hollywood, California. It operates a noncommercial
television station, KVST-TV, and has been granted tax
exemption by the State of California and the Internal
Revenue Service as a charitable or educational organi-
zation. KVST's Broadcast range is from Santa Barbara
to San Diego, California, and does not extend to any
other State. It does not sell broadcast time for commer-
cial advertising, does not subscribe to any national wire
service, has no news bureau, and no employees in any
other State or in any foreign country.
The Respondent received some $291,000 from Sep-
tember 1, 1973, to August 31, 1974, and during that
time paid in excess of $4,000' for the rental of films
from suppliers located outside California. Approxi-
mately $105,000 of the amount received during that
period was in the form of loans, $62,800 is character-
ized by the Respondent as grants with strict limitations
on use, $13,523 represents memberships in the Re-
spondent purchased by "viewer-sponsors," $32,894
was received from an individual donor conditioned on
the receipt of matching donations, and the remainder
came from various other sources.
The Respondent contends that it does not meet the
Board's monetary standard of $100,000 for, like com-
mercial enterprises, it is a noncommercial and charita-
ble enterprise that is essentially local, and the Board
should decline to exercise jurisdiction.
In support of its argument that its gross revenues do
not reach the applicable standard, the Respondent
argues that the amounts itemized above, totaling some
$214,000, should be excluded, leaving only $77,000 of
the $291,000 it received during the year. It submits that
those amounts cannot be classified as "income" and
should not be considered "gross revenue" for the pur-
pose of the Board's discretionary jurisdictional stand-
ards. That suggests a misunderstanding of the purpose
of those standards and what it is that the Board seeks
to measure.
We have explained repeatedly3 that with limited re-
sources we must allocate them in the most effective and
practical manner to carry out the task assigned to this
Agency by Congress. To achieve that goal, the Board
2 Contrary to the Respondent's contention, it is well established that
$4,000 is not de mrntmis for the purpose of establishing statutory ,jurisdic-
tion E.g, Arlington Ridge Development Co., 203 NLRB 787 (1973), and
cases cited therein. Moreover, radio and television broadcasting almost
peculiarly require, and are subject to, broad Federal regulation. Such broad-
casts do not respect political boundaries and their effects are not limited to
their normal or intended area of reception
3 E g, National Labor Relations Board Rules and Regulations, Series 8,
as amended, Part 103.
217 NLRB No. 70
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercises its discretion to determine whether statutory
jurisdictions, although present, should be asserted, ei-
ther on an ad hoc basis or by establishing for a particu-
lar class or category of employers a standard which will
reach those employers whose activities have a signifi-
cant impact on commerce and, at the same time, not
overstrain the resources of the Board.
It is, we believe, self-evident that to litigate anew in
every case the impact of particular, employers on com-
merce and the merits of asserting jurisdiction on the
basis of those factors peculiar to each case would also
place an unbearable financial and administrative strain
on the Board. For that reason the Board has established
monetary standards for various classes of employers
which in our judgment will best permit the fullest ex-
tension of our jurisdiction with the resources available.
We have used "gross revenue" in certain instances as
an easily determined and understood gauge of an em-
ployer's impact on commerce. However, it should be
clear that the impact of an employer and its activities
on commerce is independent of the source or nature of
the funds available to it. Purchases and expenditures
for operating purposes by a nonprofit organization
have no less impact on commerce than those made by
a purely commercial enterprise. In relation to "gross
revenue," the impact may well be greater; for in most
commercial enterprises some portion of their revenue
is profit, which will enter into commerce only by some
other avenue, while most nonprofit enterprises devote
their entire revenue to their operations.
With the foregoing in mind, it may be seen that all
funds available for operating expenses may properly be
considered in determining whether or not the assertion
of the Board's jurisdiction is warranted, without regard
to their source or their denomination for other pur-
poses. However, we need not decide whether loans
which may have been used for operating expenses, a
"grant" from the City of Los Angeles to broadcast city
council-hearings, or state and Federal funds provided
for the rehabilitation or training of certain employees,
should be considered for the purpose of exercising dis-
cretionary jurisdiction. Even excluding those amounts,
the Respondent easily satisfies the jurisdictional stand-
ard for similar commercial employers.
The Respondent contends that money received from
"viewer-sponsors" should be excluded on an analogy to
stock purchases and that money received in either kind
of transaction should be treated the same. Although
"viewer-sponsors" are entitled to nominate and vote
for the Respondent's board of directors, the term ap-
plies only to "donors who have contributed" certain
specified amounts to the Respondent within the
preceding 12 months. It is clear that they are donors,
not stockholders in a corporation, and that these funds
are available for operating expenses and properly in-
cludable in determining gross revenue for jurisdictional
purposes.4
We also conclude that there is no reasonable basis for
excluding the sum of $32,894 which the Respondent
received conditioned on matching donations. The Re-
spondent contends that it would be speculative to con-
clude that a similar donation of that magnitude would
recur. In support it cites Magic Mountain, Inc., 123
NLRB 1170 (1959), where the Board declined to assert
jurisdiction on the sole basis of a one-time capital pur-
chase of goods from out of State valued at less than
$100,000 without any evidence of the anticipated
volume of the employer's future business. The Board
noted that it had long held that it would not assert
jurisdiction on the basis of nonrecurring capital expen-
ditures.
There is no real similarity between Magic Mountain
and the facts here. It is clear that the Respondent is
largely dependent upon grants and contributions to
maintain its operations. The only aspect of this particu-
lar transaction which is arguably unusual is the size of
the donation. Although the Board does not include in
gross revenue amounts contributed with limitations on
their use so that they are not available for operating
expenses, there is no showing of any limitation on Re-
spondent's use of this contribution.
The Respondent concedes that $76,923 it received
during the year is cognizable for jurisdictional pur-
poses. Adding to that sum the $13,523 received from
viewer-sponsors and the $32,894 the Respondent re-
ceived as a matching donation, gross revenues easily
exceed the $100,000 standard established by the Board
for like commercial enterprises.'
The Respondent argues alternatively that its broad-
cast operations are intimately connected with its educa-
tional and eleemosynary objectives and have no impact
outside its local area. It finds support for the proposi-
tion that in those circumstances the Board should de-
cline jurisdiction in our decision in Ming Quong Chil-
dren's Centel8 and later cases. In Ming Quong the
Board reviewed the legislative history and its treatment
of religious, eleemosynary, and educational employers
in conjunction with the rationale for its decision in
Cornell University, 183 NLRB 329 (1970), and con-
cluded that in the absence of the special considerations
involved in Cornell it had erred in departing from the
Board's general practice of declining jurisdiction over
nonprofit charitable organizations.
But the Board specifically noted that it had not as-
serted jurisdiction over the kind of child care facility
involved in Ming Quong as a class and, therefore, was
4 See Pacifica Foundation-KPFA, 186 NLRB 825 (1970)
5 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958)
6 210 NLRB 899 (1974), Member Kennedy concurring in the result,
Member Fanning dissenting Member Jenkins did not subscribe to Ming
Quong and does not adopt the discussion of it contained in the text.
KVST-TV 421
free to decline jurisdiction even though it would not
distinguish between profit and nonprofit members of a
class over which jurisdiction had been asserted.' The
Board has long asserted its jurisdiction over radio and
television stations and has asserted jurisdiction over an
employer operating a nonprofit educational broadcast-
ing; facility which is distinguishable from the Employer
here only in the extent of its operations .' But that dis-
tinction is irrelevant for the purpose of determining
whether or not the Board has asserted jurisdiction over
employers in a particular class.
In view of the foregoing we find that the Respondent
is an employer engaged in commerce or an industry
affecting commerce and that it will effectuate the pur-
poses of the Act to assert jurisdiction in this proceed-
ing.
II THE LABOR ORGANIZATION INVOLVED
National Association of Broadcast Employees &
Technicians , AFL-CIO,CLC, Local 53, is a labor or-
ganization within the meaning of Section 2 (5) of the
Act.
III THE UNFAIR LABOR PRACTICES
Following the filing of a petition for a representation
election, the Respondent's station manager, Ponce, and
its general manager, Stouffer, both of whom have been
stipulated to be supervisors within the meaning of the
Act, asked an employee on or about August 5, 1974, to
request the Union to withdraw its petition. It is stipu-
lated that no threats or promises of benefit were ex-
pressed.
Around that same date Stouffer had a telephone con-
versation with O'Sullivan, the Union's business repre-
sentative, concerning a union contract. During the con-
versation, Stouffer explained the Respondent's
financial problem and told O'Sullivan that it could not
afford to increase wages in the foreseeable future.
The Respondent circulated a notice to the employees
August 13 announcing a salary increase and stating
that the employees all knew that it had hoped to make
a $100 across-the-board wage increase if an "auca-
thon," designed to raise $100,000, were successful. The
"aucathon," however, raised only $8,624. The notice
recites that the Respondent had received a loan and
that, although in no position to increase salaries, there
was a need for some relief.
The wage increase, effective August 16, was given to
all paid staff employees with 6 months' seniority. In-
creases ranged from $360 to over $2,100 per year. The
7 See Drexel Home, Inc., 182 NLRB 1045 (1970).
8 Pacifica Foundation-KPFA, 186 NLRB 825 (1970)
Respondent had not previously granted an across-the-
board increase to paid staff members.
Both the solicitation of an employee to request the
Union to withdraw its petition and the wage increase
are alleged to have violated Section 8(a)(1) of the Act.
The Respondent argues that it only "asked" an em-
ployee to "request" the Union to withdraw the petition,
without voicing any threat or promise of benefit. It
reasons that this is more akin to a view, argument, or
opinion than it is to an instruction or direction to re-
quest withdrawal and is therefore protected by Section
8(c),of the Act.
On the basis of the facts which Respondent has stipu-
lated to, however, we can only conclude that its request
was not a view, argument, or opinion. There is nothing
to suggest an attempt to persuade the employee to ac-
cept or adopt the Respondent's point of view by means-
of either reason or emotion, or to make the Respon-
dent's position on the issue known to its employees.
Because the Respondent's request cannot reasonably be
classified as either propaganda or as stating the Re-
spondent's position, we conclude that it is not protected
by Section 8(c).
We find that the Respondent's request that an em-
ployee seek the Union's withdrawal of its petition inter-
fered with the employees' exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act. The
Board has frequently held that employer solicitation of
withdrawal from a union, of assistance in persuading
other employees to forswear a union, or of employee
assistance in securing withdrawal of a union's petition
for an election, and other analogous conduct, violates
Section 8(a)(l).9
We also conclude that the Respondent's precipitate
grant of an across-the-board pay increase on the heels
of the Union's election petition and after its assertion
to the Union that it could not afford to increase wages
was intended to influence its employees' choice in an
election. Although the Respondent asserts in its brief
that it had decided to raise wages before the Union
appeared on the scene, there is no support for that
assertion in the facts stipulated to by the parties. The
notice to employees announcing the raise recites that
all the employees knew that the Respondent had hoped
to grant an increase, but the fact that the Respondent
made that statement does not establish as fact either
that there was a prior determination, or that the em-
ployees were aware of any earlier intention to grant a
wage increase. It may well be true, but it is not a fact
9 E g., Crawford Sprinkler Company of Hickory, Inc., 199 NLRB 300
(1972); G.L. Gibbons Trucking Service, Inc., 199 NLRB 590 (1972); Acme
Paper Box Company, 201 NLRB 240 (1973), Howard Johnson Company,
201 NLRB 376 (1973), Collins & Aikman Corp., 143 NLRB 15 (1963),
enfd. in pertinent part 338 F 2d 743 (C.A 5, 1964); Elias Brothers Big Boy,
Inc., 137 NLRB 1057 (1962), enfd. in pertinent part 325 F 2d 360 (C.A 6,
1963).
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of record, and we are bound to the facts which are in
the record. And, even were it true that the Respondent
had intended to increase wages if the "aucathon" were
successful, the "aucathon" was not a success and the
notice states that the increase was given despite the fact
that the station was in no position to increase salaries.
We are constrained to fmd, therefore, that the raise was
granted with an eye to the Union's organizing cam-
paign to persuade or coerce its employees to reject
union representation, in violation of Section 8(a)(1) of
the Act.10
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section
III, above occurring in connection with its 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 the Respondent has engaged in,
and is engaging in, certain unfair labor practices, we
shall order it to cease and desist therefrom and to post
the notice attached as an appendix to this Decision and
Order. We shall not, however, order the Respondent to
rescind the wage increases.
CONCLUSIONS OF LAW
1. Viewer Sponsored Television Foundation, Inc.,
d/b/a KVST-TV, is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. National Association of Broadcast Employees &
Technicians, AFL-CIO, CLC, Local 53, is a labor or-
ganization within the meaning of Section 2(5) of the
Act. -
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act, the Respondent engaged in, and is
engaging in, unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. Those unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
-10 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964)
Board hereby orders that the Respondent, Viewer
Sponsored Television Foundation, Inc., d/b/a
KVST-TV, Hollywood, ,California, its officers, agents,
successors, and assigns, shall:
1. Cease-and desist from:
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of their rights under Section 7
of the Act, by asking them to request the National
Association of Broadcast Employees & Technicians,
AFL-CIO, CLC, Local 53, or any other labor organi-
zation, to withdraw a petition for a representation elec-
tion, or by granting a wage increase to influence their
selection or rejection of union representation.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at Respondent's place of business copies of
the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 31, after being duly signed by an author-
ized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights under
Section 7 of the Act by asking them to request any
labor organization to withdraw a petition for a
representation election, or by granting a wage in-
crease in order to influence their selection or rejec-
tion of representation by a labor organization.
KVST-TV - 423
NVE WILL NOT in any like or related manner inter-
fere with, restrain , or coerce employees in the ex-
ercise of the rights guaranteed them in Section 7
of the Act.
VIEWER SPONSORED TELEVISION
FOUNDATION INC, d/b/a
KVST-TV