Rogue Valley Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1951

93 N.L.R.B. 949 (N.L.R.B. 1951)

ROGUE VALLEY BROADCASTING CO., INC. 949
All employees at the Employer's Valdosta, Georgia, plant, engaged
in wood preserving, cross-tie loading, sawmill, garage, machine shop,
and naval stores operations, including tractor operators,? but exclud-
ing all workers engaged in timber production," farmers and con-
tractors, office and clerical employees, professional employees, and
supervisors as defined in the Act .9
[Text of Direction of Election omitted from publication in this
volume.]
4 These individuals spend approximately three-quarters of their time In "timber produc-
tion" activity in the Employer's forest, which is agricultural activity, and about one-
quarter of their time in maintenance work at the Valdosta plant . As agricultural laborers,
the tractor operators are, of course , excluded from the unit found appropriate, but as
ordinary employees performing nonagricultural duties, they are included in the unit ar.d
may be represented by the Petitioner with respect to that part of their work which Is not
agricultural in character. However, as these tractor operators spend less than 50 percent
of their time doing work which qualifies them to be in the unit , they are not eligible to
vote in the election directed herein . Delaware Broadcasting Co., 82 NLRB 727 ; L. Maxey,
Inc., 78 NLRB 5.25.
8 The individuals in this category , whom the parties have agreed to exclude , are engaged
in the Employer ' s tree farming operation.
9 While the parties stipulated that guards be excluded , it appears that there are no
individuals in this classification . The naval stores employees rotate the performance of
such duties when the plant is not operating.
ROGUE VALLEY BROADCASTING CO., INC . ( KWIN ) and LOCAL No. 49,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL.
Case No. 36-CA-113 . March 27, 1951
Decision and Order
On November 10, 1950, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report in the above-entitled proceeding, find-
ing 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 Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a sup-
porting brief.
The Board 1 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 In-
termediate Report, the exceptions and brief, and the entire record in
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Murdock , and Styles].
93 NLRB No. 164.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Rogue Valley Broadcast-
ing Co., Inc. (KWIN), Ashland, Oregon, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local No. 49, International
Brotherhood of Electrical Workers, AFL, or in any other labor or-
ganization of its employees, by discharging and refusing to reinstate
any of its employees or by discriminating in any other manner in
regard to their hire and tenure of employment or any term or con-
dition of employment.
(b) Interrogating its employees in regard to their union senti-
ments; and threatening its employees with discharge or other eco-
nomic reprisals because of their union affiliation or activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local No. 49, International
Brotherhood of Electrical Workers, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose of collective
bargaining 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 organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
.of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Ralph S. Click immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Make whole Ralph S. Click, in the manner set forth in the
section of the Intermediate Report entitled "The remedy," for any
2 However , in adopting the Trial Examiner 's conclusion that the Respondent violated
Section 8 ( a) (1) of the Act, we do not rely on Barnett 's statement to employee Smith
that the Respondent could not afford to grant a ' pay increase at that time See A.
Kravitz & Company, 89 NLRB 1415.
In addition , we do not adopt the Trial Examiner 's statement that Barnett's alleged
reluctance to discharge Click during the pendency of the representation proceeding was
incompatible with the Respondent 's position that Click was a supervisor . As noted
elsewhere in the Intermediate Report , at the time of the election , the Respondent took
the position that Click was not a supervisor However , the Respondent ' s later position,
in its answer and at the hearing , that Click was a supervisor is clearly incompatible with
its position throughout the representation proceeding.
J
ROGUE VALLEY BROADCASTING CO., INC. 951
loss of pay he may have suffered as a result of the Respondent's dis-
crimination against him.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary to an analysis of the amount
of back pay due and the right of reinstatement under the terms of
this Order.
(d) Post at its station at Ashland, Oregon, copies of the notice
attached hereto and marked "Appendix A." 3 Copies of said notice, to
be furnished by the Regional Director for the Nineteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Nineteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Libor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in LOCAL No. 49, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or in any
other labor organization of our employees, by discharging and
refusing to reinstate any of our employees or by discriminating
in any other manner in regard to their hire and tenure of em-
ployment or any term or condition of employment.
WE WILL NOT interrogate our employees in regard to their
union sentiments; or threaten our employees with discharge or
other economic reprisals because of their union affiliation or
activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist LOCAL No.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
49, INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining 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 agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Ralph S. Click immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay he may have
suffered as a result of our discrimination against him.
All our employees are free to become, remain, or refrain from
becoming or remaining, members of LOCAL No. 49, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORIKERS, AFL, or any other labor or-
ganization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the Act. We
will not discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because
of membership in or nonmembership in any such labor organization.
ROGUE VALLEY BROADCASTING CO., INC. (KWIN),
Employer.
By -----------------------------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Hubert J. Merrick, Esq, for the General Counsel.
A. P. Blair, Esq, of Medford, Oreg., for the Respondent.
R. F. Renoud, Esq., of Portland, Oreg., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Local No. 49, International Brotherhood of Elec-
trical Workers, AFL, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board,' by the Regional Director of the Nineteenth Region
(Seattle, Washington), issued a complaint dated June 6, 1950, against Rogue
Valley Broadcasting Co., Inc. (KWIN), Ashland, Oregon, herein called the Re-
spondent, alleging that the Respondent had engaged in and was engaging in un-
fair labor practices within the meaning of Section 8 (a) (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat.
1 The General Counsel and his representative at the hearing are referred to as the General
Counsel. The National Labor Relations Board is herein called the Board.
ROGUE VALLEY BROADCASTING CO., INC. 953
136, herein called the Act. Copies of the charges, complaint, and notice of hear-
ing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) On or about September 2, 1949, discriminatorily dis-
charged and thereafter refused to reinstate Ralph S. Click, because of his mem-
bership in and activities on behalf of the Union, and (2) interrogated its em-
ployees concerning their purposes and activities in advocating, supporting, and
joining the Union, cautioned its employees against engaging in such activity,
and by these and other similar acts and conduct interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of
the Act. The complaint alleged that by the foregoing conduct the Respondent
engaged in violations of Section 8 (a) (1) and (3) of the Act.
Thereafter, the Respondent filed an answer and motion to dismiss. The answer,
further elaborated at the outset of the hearing, denied that the Respondent had
engaged in any unfair labor practices alleged in the complaint and affirmatively
alleged that Click was a supervisor. The Respondent accordingly moved that
the complaint be dismissed.
Pursuant to notice, a hearing was held on August 22, 1950, at Medford, Oregon,
before Frederic B Parkes, 2nd, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the outset of the hearing, the Re-
spondent filed another motion to dismiss on the ground that the Respondent was
not subject to the Board's jurisdiction. This motion and that contained in the
Respondent's answer were denied without prejudice to their subsequent renewal.
At the conclusion of the hearing, the undersigned granted a motion by the Gen-
eral Counsel to conform the pleadings to the proof as to dates, spelling, and minor
variances. Ruling was reserved upon the Respondent's motion to dismiss the
complaint's allegations that the Respondent had engaged in violations of Sec-
tion 8 (a) (1) of the Act. The motion is disposed of in accordance with the find-
ings of fact and conclusions of law hereinafter made.
Upon the conclusion of the hearing, the undersigned advised the parties that
they might argue before, and file briefs or proposed findings of fact and conclu-
sions of law or both with, the Trial Examiner The pasties waived oral argu-
ment. Thereafter, the Respondent and the General Counsel each filed a brief
with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Rogue Valley Broadcasting Co., Inc., an Oregon corporation with its principal
office and place of business at Ashland, Oregon, is engaged in the operation of
Radio Station KWIN. The Respondent's station is at Ashland, Oregon, 15 miles
from the California border. In the operation of its radio station, the Respondent
receives communications, intelligence, and information by means of instrumen-
talities of interstate commerce and thereafter transmits the same as its broadcast
program. The Respondent broadcasts radio signals in interstate commerce and
uses the facilities of the Pacific Telegraph and Telephone Corporation in broad-
casting. Two programs, amounting to a total broadcast time of 30 minutes a day,
6 days a week, originate in Los Angeles, California. The cost for these programs
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid to organizations located outside the State of Oregon , is $2,500 annually. Ap-
proximately 3 or 31/2 percent of the Respondent ' s broadcasts are remote broad-
casts, utilizing lines of telephone companies . The annual purchases of the Re-
spondent total approximately $5,000. Its total sales of advertising range between
$50,000 and $60,000 a year . Most of the Respondent 's sales of advertising is
to local concerns ; more than 50 percent of such advertisements are for goods
manufactured outside the State of Oregon . The Respondent operates under a
license and regulations of the Federal Communications Commission . A monthly
frequency check is made with a station at Point Reyes , California . Upon the
basis of the foregoing , the undersigned finds, contrary to the Respondent's con-
tentions , that the Respondent is engaged in_ commerce within the meaning of the
Act?
II. THE ORGANIZATION INVOLVED
Local No. 49, International Brotherhood of Electrical Workers is a labor
organization affiliated with the American Federation of Labor, admitting em-
ployees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The supervisory status of Ralph S. Click
Before detailing the course of events which lead to the discharge of Click,
it will be helpful at the outset to consider the Respondent's affirmative defense
in respect to the termination of Click's employment ; namely, that Click was a
supervisor and accordingly that his discharge was not violative of the Act.
Exclusive of the station manager, admittedly a supervisory employee, the
Respondent employed nine employees in four departments, as follows :
1. The engineering and announcing department employed Ralph Click, Charles
Fields, Philip George, and Donald Smith, who held licenses as radio engineers
from the Federal Communications Commission, hereinafter called the F. C. C.
Click's position was termed chief engineer.
2. The program department consisted of one full-time employee, Don Berg,
and Charles Fields who worked part of the time in the department as its pro-
gram director, as well as serving as an announcer and engineer as above
mentioned.
3. The commercial department embraced three employees.
4. The "front office" was comprised of one employee who served as a reception-
ist and stenographer.
As chief engineer, the primary responsibility of Click was the maintenance
and operation of the station's equipment. Like the three other employees of
the engineering and announcing department, he worked as an announcer and
engineer-operator on a regular shift. He instructed employees in their duties and
in their operation of the equipment and directed repairs to the equipment,
performing physical labor himself in such maintenance.
Click made out work schedules for the employees in the engineering and an-
nouncing department, but before the schedules became effective they were subject
to the approval of the station's manager, Edward P. Barnett. Click had no
authority to authorize employees to work overtime without first obtaining the
approval of Barnett. Although Click was authorized to make purchases of minor
2 WBSR, Inc, 91 NLRB 630. See also , Veterans' Broadcasting Company Radio Station
XNUZ, 87 NLRB 199; Joe V. Williams, Jr., et al, 85 NLRB 752; Nebraska Broadcasting
Company, Inc, 85 NLRB 694; Central Broadcasting Co , 81 NLRB 422; Western Gateway
Broadcasting Corporation, 77 NLRB 49.
ROGUE VALLEY BROADCASTING CO., INC. 955
maintenance supplies, such as tube replacements, he had to obtain the approval
of Barnett for major purchases.
Click received the same salary as Charles Fields, a nonsupervisory employee
of the engineering and announcing department, and their salaries were between
$30 and $50 more than the other two employees of the department. According
to Click's credible and undenied testimony, he did not know the amount of the
salaries of the other employees of the department and had no authority to give
such employees pay increases.
Applicants for positions were interviewed by Barnett and not by Click Al-
though on occasion Barnett sought Click's opinion in regard to applicants for
positions, Barnett did not effectuate Click's suggestions in these matters. On
one occasion, Click recommended that Barnett discharge an employee; and on
another, he protested the hiring of an applicant. His recommendations were
not followed'
In Barnett's absence, his duties were assumed by Lane Bardeen, commercial
manager of the station. In December 1947, in the absence of Barnett's prede-
cessor as station manager, Click discharged an announcer-engineer who appeared
for work in a state of intoxication. At that time, it appears that in the absence
of the station manager or in emergency situations, Click had authority to hire
and discharge employees. Barnett denied that such authority had been revoked.
Click testified, however, that he did not have the same authority after Barnett
became station manager, that when Barnett left on a trip shortly after becoming
manager, he informed Click "that Mr. Bardeen was in charge of the station,"
and that shortly after Barnett became manager, Click told him that he was going
to discharge an employee who in Click's opinion was unsatisfactory, but Barnett
replied that "he would do all the hiring and firing at the station" and declined to
discharge the employee.
Click's testimony was, in effect, corroborated by the position taken by Barnett
at a conference with Roy F. Renoud, business representative of the Union, and a
field examiner of the Board on August 29, 1949, prior to the conduct of a consent
election. During the conference, the field examiner inquired as to the Respond-
ent's position as to the supervisory status of Click. Barnett replied that "Click's
position as chief engineer, in compliance with Federal Communications regula-
tions was to see that the equipment was maintained. He had no power to do
anything else as laid out by the Act as a supervisory employee" and that Click
should vote in the election.' His ballot was not challenged.
Upon the entire record and his observation of the witnesses, the undersigned
credits the testimony of Click and finds Barnett's testimony unworthy of
credence. The undersigned further finds that Click was not a supervisory em-
ployee within the meaning of the Act ` and that the record supports the following
description made by Click of his job :
. . . at a large station like KNX in Los Angeles, for example, the chief
engineer is the next man to the manager In a small station, like KWIN,
the chief engineer is merely a glorified mechanic I mean by that, he's
really the chief technician The term engineer is a misnomer.
3 These findings are based upon the credible testimony of Click For the reasons here-
inafter indicated, Barnett's testimony that Click had the authority to recommend the
hiring of employees and that "The occasion never came up when his recommendation was
different than mine" is not credited.
d The findings as to the preelection conference are based upon the credible and uncon-
troverted testimony of Renoud.
'Louis G. Baltimore, 57 NLRB 1611; Radionic Transformer Company Not Inc., 70
NLRB 1186 ; Radio Station KTBS, Inc, et at., 90 NLRB No 218.
0
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Advent of the Union; interference, restraint, and eoeicion
In July 1949, employees of a radio station in Medfoid, Oi egon, espi essed an
interest in self-organization to Roy F Renoud, business agent of the Union. and
Renoud came to Medford to consult with them. The latter also made arrange-
inents for Renoud to meet employees Click and Fields of the Respondent's station.
After discussing the Union with Renoud, the same evening Click and Fields
signed authorization cards and applications for membership in the Union.
Renoud gave them two application cards in the event the other two announcer-
engineers of the Respondent's station desired to join the Union Click subse-
quently succeeded in enlisting the meinbeiship of employee Smith in the Union
and mailed his application for membership to Renoud.
Upon receipt of Smith's application, Renoud sent the following letter to the
Respondent on July 25, 1949:
This is to advise you that Local 49, International Brotherhood of Elec-
trical Workers, represents a majority of your employees and we are filing
as of this date with the National Labor Relations Board a petition asking
for recognition, as directed by Section 9 (c) (1) of the Labor Management
Act of 1947.
We would like to know your position in regards to recognizing Local 49
of the I. B. E. W. as the collective bargaining agency for all of your broadcast
technicians and announcers employed in your station Any discharges or
attempts to coerce or intimidated (sic) will be viewed as an unfair labor
act and such steps will be taken as directed by the Labor Management
Act of 1947... .
The day Barnett received the above-quoted letter from Renoud, Barnett sum-
moned Click to Barnett's office, and, according to the credible testimony of-Click,
the following conversation ensued:
[Barnett] asked me first what I thought about this union deal, and I told
him I thought it would be a good thing for the eniplo^ ees, and lie said that
anyone "who is not satisfied here, can quit. We don't want any damned
union around here. They leave a very bad taste in my mouth, and it would
if you joined the union behind my back" This continued for some time,
very repetitious. Obviously, the man didn't like the idea of our joining
the union. I told him that the union had made no demands on him and
didn't intend to make any demands on the station. I also suggested they
wait until demands were made before he started jumping too far to conclu-
sions . . . He said it left a very bad taste in his month. He repeated that
a number of times and finally he said he wouldn't rest until it died.
About August 19, 1949, Manager Barnett asked employee Fields what the latter
"thought about the union " When Fields stated that he was in favor of the
Union, Barnett said that "lie hoped that [Fields would] keep [his] views with
the station and their ideas."
About the same time, or a few days later, Barnett asked employee Donald E.
Smith what the latter "thought of the union" and how he would benefit by being
a member of the Union. Barnett further stated that "he didn't feel the station
could afford another pay raise at that time" and that Sinith would have to make
up his "own mind as far as the union vote was concerned."
Shortly thereafter, Barnett brought a letter to Smith from the Respondent's
counsel. The letter advised the employees, according to Smith, that "if we
[joined the Union] it would be turning our powers to bargain over to the Port-
land local and we wouldn't have any say in the union at all. The people up there
ROGUE VALLEY BROADCASTING CO., INC. 957
would make the laws and we would have to abide by them " During this con-
versation, Barnett told Smith that if the latter "voted against the union [lie]
wouldn't have anything to fear from Mr. Click because he wouldn't be there."
About the same time, Barnett inquired of employee Philip R George as to his
sentiments in regard to the Union.'
On August 29, 1949, pursuant to the terms of a consent-election agreement, the
Boai d conducted an election among the employees of the, engineering and an-
nouncing department to determine whether they desired to be represented by
the Union for the purposes of collective bargaining. The Union won the election,
and on September 7, 1949, was certified as the -statutory representative of the
employees of the engineering and announcing department.
Upon the entire record, the under signed concludes and finds that by (1)
Barnett's inquiries of the employees in regard to their sentiments as to the Union
and in respect to the benefits which they hoped would ensue from affiliation with
the Union, (2) his announcement to employee Smith. following such inquiries,
that the Respondent could not grant an increase in pay at that time, (3) his state-
ment to Click after such inquiries that dissatisfied employees "can quit We
don't want any damned union around here" and that the union activities of the
Respondent's employees "left a very bad taste in his mouth . he wouldn't
rest until it died," and (4) his observation to employee Smith that if the latter
"voted against the union [lie] wouldn't have anything to fear from Mr. Click
because he wouldn't be there," the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 8 (a) (1)
of the Act.
C. The dascraninatory discharge of Ralph Click
1. Sequence of events
Click, who had many years of varied experience in the radio engineering field,
entered the Respondent's employ on February 4, 1947, as an announcer-engineer,
when he was hired by Robert Reinholdt, who.at that time was manager of the
Respondent's radio station, to assist in the rebuilding of the station following a
disastrous fire of the preceding December. On March 9, 1947, the station re-
sumed operation. In August 1947, Click became chief engineer. In September
1948, Reinholdt left the Respondent's employ and Barnett succeeded him as sta-
tion manager. Click continued as chief engineer after the change in managers.
As noted above, Click and employee Fields launched the Union's organizational
campaign among the Respondent's employees and Click enlisted the membership
of another employee in the Union and solicited the membership of two other em-
ployees. As heretofore found, Manager Barnett interrogated Click in regard to
his union activities and sympathies and told him that dissatisfied employees
could quit, that "we don't want any damned union around here. They leave a
very bad taste in my mouth, and it would if you joined the union behind my
6 The findings in this and the preceding four paragraphs are based upon the credible
testimony of Click, Fields, Smith, and George. Their testimony was not specifically
denied by Barnett. The latter admitted that he inquired of the employees in regard to
their views as to the Union and informed them that the Respondent could not afford to
giant them a wage increase Barnett testified that he informed the employees that these
opinions were his own , that " their opinion was as good as" his , and that he "made it very
clear that [he] wasn't interested in how their vote was coming out That was up to
them, one thing that should be decided in their own minds." He denied generally that
lie attempted to intimidate any employees in connection with the consent election Upon
the entire record and his observation of the witnesses, the undersigned credits the testi-
mony of Click, Fields, Smith, and George and finds Barnett's testimony unworthy of
credence to the extent that it is at variance with the testimony of the witnesses found to
be reliable.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back," and that the Union "left a very bad taste in his mouth ... he wouldn't
rest until it died."
The Union won the consent election held on August 29, 1949. On September
2, 1949, Click was summoned to Barnett 's office and was summarily discharged
without prior warning. When Click inquired as to the reasons for his dismissal
from the Respondent 's employ, Barnett informed him that he was inefficient,
uncooperative, incompetent, unqualified, and dishonest, that he was a trouble-
maker and had caused dissension among the employees, keeping them in such
a state of turmoil that they were unable to do their work, that Click had talked
to members of the board of directors "behind [Barnett's] back," and that Click
had sought employment elsewhere? Barnett requested that Click obtain his
tools and leave the station within 20 minutes . Click testified credibly and with-
out contradiction that Barnett then "ran into the control room, grabbed my license
,off the wall before I was able to get to it, took it into the office and was in such
a haste he couldn 't wait to take the padding off the back to get at my license
that he took a knife and cut it out" of its frame . On the back of the license,
which had been issued to Click by the F. C. C , Barnett wrote the word, "unsatis-
factory," in the space allotted to indicate the radio station's endorsement as to
the services of the license holder!
2. Reasons for Click' s discharge advanced by the Respondent prior to the hearing
Immediately after his discharge , Click informed Business Agent Renoud that
the Respondent had terminated Click's employment. A few days later, Renoud
telephoned Manager Barnett, protested Click's discharge, requested his reinstate
ment, and asked for a statement of the basis for the discharge. According to
the credible and uncontroverted testimony of Renoud , Barnett informed him that
the reason for Click 's discharge "was that he created dissension among the men
and that he had not maintained the equipment properly." No mention of specific
instances of such conduct on the part of Click was given and nothing was said
by Barnett in respect to Click's alleged willful neglect of duties.
The record shows that in response'to an inquiry by the F.C.C. in regard to
the endorsement of unsatisfactory on Click's license , the Respondent gave the
following reasons for such endorsement :
1. During the months of May and June, 1949, a Mr. Wallace C. Clark
was employed at KWIN as a "man on the street" reporter. Mr. Clark used
a wire recorder to record a daily program from the streets of the business
district. For some unknown reason Mr. Click disliked Mr. Clark. As Chief
Technician for KWIN it was the duty of Mr. Click to properly maintain the
equipment used by Mr. Clark on his program. Never-the-less the equipment
was constantly out of order in some fashion. Either the recorder itself was
not in good operating condition or the wire cartridges used were being
broken. Naturally Mr. Click blamed Mr. Clark for the trouble and con-
stantly recommended that the man be discharged. It is true Mr. Clark
was no technician, however he was fully capable of operating a wire
recorder. Mr. Click admittedly disliked the man and stated to the manage-
ment he would not cooperate in the maintenance of the equipment used by
Mr. Clark.
7 The findings in this sentence are a synthesis of the mutually reconcilable testimony
of Click and Barnett
8 Barnett admitted that the effect of such an endorsement was that Click "cannot
become employed by another radio station unless they want to overlook the fact or didn't
realize they were getting an unsatisfactory man."
ROGUE VALLEY BROADCASTING CO., INC. 959
2. On July 15 and 16, 1949, KWIN did a remote broadcast of the annual
local rodeo. For the broadcast we were using two microphones. One was
placed in the broadcast booth where the remote console and the Chief
Engineer would also operate. The other microphone was placed about a
hundred yards away to be near the judges stand. There was a sportscaster
at each mike. Mr. Click was engineering from the console in the booth.
Sportscaster Ned Liebman was the man at the mike near the judges stand.
A few days prior to this Mr. Click had taken a dislike to Mr. Liebman be-
cause of some differencd of opinion and had complained to the management
about having the man in the employ. During the broadcast from the rodeo
most of the action was to be described from the judges by Mr. Liebman, yet
the broadcast from that point was practically lost because of poor control by
the engineer. Mr. Click was perfectly capable of proper operation from the
control booth yet during the times when Mr. Liebman was announcing the
proper gain was ignored.
In a letter dated November 10, 1949, to a field examiner of the Board, Barnett
ascribed as the reasons for Click's discharge "incompetency and willful neglect
of duty."
3. Respondent 's position as to Click's discharge at the hearing
In respect to the background leading to Click's discharge, Manager Barnett
gave the following testimony :
Well, I had been rather dissatisfied with the services of Click and his
general attitude toward the station since I became manager. . . . However,
even though I felt as though he was not the man that I myself would have
hired originally, nevertheless I would not discharge a man unless there were
specific reasons for discharge, but at the same time I would be watching
that rather closely to make sure that his operation was the type of operation
that I wanted at the station. 'So, there were many things, such as per-
sonality differences and dissention in the station that was overlooked for
a long time by myself, overlooked as far as the discharging of a man for it,
but not overlooked in my own mind, as far as what my own opinion of the
man and the discharge of his duties were.
The specific incidents which were the reasons for Click's discharge were as
follows, according to Barnett's testimony :
1 As referred to above in the reasons given the F. C. C. for the endorsement
of unsatisfactory on Click's license, the initial incident occurred in May and
June 1949, in regard to the broadcast of a "man on the street" program by
Wallace C. Clark. He used a wire recorder to record his interviews with people
on the streets of the business district. During this period, an inordinate number
of wire cartridges in the equipment used by Clark was broken and Barnett lay
the blame for such breakage to Click because "it was the job of the chief engineer
to keep the equipment in good repair." However, Barnett admitted that he
made no investigation to determine the cause of or the responsibility for the
breakage of the cartridges.
2. Shortly after Barnett became manager, be made arrangements with a gaso-
line station so that Click might charge to the Respondent's account purchases
of gasoline and oil used by Click in driving his personal car on business of the
Respondent About June 1949, Barnett received a monthly statement for these
purchases and noted that Click's purchases reached a rather large total He
summoned Click and inquired as to the nature and amount of the purchases.
Click frankly admitted that some of his purchases of gasoline was for his per-
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonal use and stated that he had made these purchases because he believed that
he was entitled to some reimbursement for gasoline and oil which he had used on
the Respondent's business before Barnett became manager and instituted these
credit arrangements. Barnett reprimanded him and then, according to Barnett's
testimony, "dismissed him from the office at that time and let it go at that because,
while actually I should have discharged him on the spot right at that time, I
still thought, well, I'll think it over and see what kind of action I should take."
About June 23, 1949, Wallace Clark complained to Barnett that the night
previous, Click had ordered Clark from the station' after 11 p in., the hour the
station ceased broadcasting. Clark inquired whether he might remain in the
station and work after the closing hour Barnett replied that Clark might do so.
When Barnett questioned Click about the matter, Click stated that it had been
a policy that "nobody of the station staff works after eleven o'clock " Barnett
replied, "I don't believe you're correct in that assumption because anybody on
the station staff, as long as they have woik to do, anybody can work after eleven
o'clock at night even though we go off the air at eleven o'clock." Click became
angry and retorted, "From this date on, I'll never be responsible for the technical
equipment of this station as long as that policy lasts" Barnett further testified
that on the next day, June 24, 1949, "I decided I was going to discharge Ralph
[Click] on . . . the following Monday," June 27, 1949
On June 24, 1949, Barnett, according to his testimony, informed Mark S.
Hamaker, president of the Respondent, of the decision to discharge Click ° How-
ever, on June 26, 1949, Click became ill and underwent an emergency apjendec-
tomy operation. In view of this circumstance, Barnett was not disposed on
June 27, 1949, to "discharge a man who was in the hospital" and determined "to
wait until the man was out of the hospital and back on his feet" before dis-
charging him. According to Barnett, lie "intended to wait approximately thirty
days, or whatever time it was that Click felt better. The exact date wasn't set
after that one postponement on that particular Monday "
About a week later, Click returned to work Shortly thereafter, according
to Barnett, Hamaker stated that he had heard Click broadcasting on the Re-
spondent's station and inquired as to the reason he was still in the Respondent's
employ in view of Barnett's previously expressed intention of discharging Click.
Barnett explained that Click had been ill and that his discharge had been
postponed.10
Barnett gave the following explanation for his failure to effectuate the dis-
charge of Click in July, based upon the above incidents occurring in May and
June:
And then the latter part of July. I received the notice from the I B E W.
that the employees-that they had-I guess they were signature cards that
the employees had signed and that there would be an election held at the
station later, and that any attempts to discharge a man would be held as
an unfair labor practice, or words to that effect. . . . So, when I received
that, the first thing I thought of was the fact that, well, I guess that ties
my hands and I can't replace my chief engineer now. . . . I went to Mr.
Hamaker, the President of the Corporation, and he recommended that I get
in touch with the Industry Council, Mr. Pat Blair, and talk the situation
over with him.... And I immediately told Mr Blair of the situation, and
the first thing I asked him was "What shall I do in the case of our chief
engineer?" And he said, "Well," he said not to discharge the man until
after the election had been held, make sure it's a fair election, and "After
9 ftamaker's testimony corroborated that of Barnett on this conversation
10 Hamaker's testimony corroborated that of Barnett on this conversation
ROGUE VALLEY BROADCASTING CO., INC. 961
the election is held, why, as long as you have cause to discharge a man, why,
then the man can be discharged." So, the election, it went through, and the
election was held, and I discharged the man on the 2nd of September.
In view of Barnett's testimony that he determined to discharge Click the
latter part of June 1949, it would appear that the rodeo broadcast of July 15
and 16, 1949, referred to as one of the reasons set forth above for the endorse-
ment of unsatisfactory on Click's F. C. C. license, was not a significant factor
in the incidents leading to Click's discharge. In respect to this matter, Barnett
testified that his observation that the broadcast "was practically lost because
of poor control by the engineer," namely, Click, was based upon Barnett's listen-
ing to the broadcast He admitted, however, that he never discussed the matter
with Click or with the announcer s, Liebman and Seely.
4. Other evidence in respect to the above incidents ; conclusions
Having set forth a summary of the evidence adduced by the Respondent in
support of its contention that the discharge of Click was not violative of the
Act but was made for proper cause, there remains for consideration other
evidence in respect to these incidents and a resolution of the resulting conflicts
in the evidence.
The testimony of employees Click, Smith, Fields, and Seely, who impressed
the undersigned as reliable witnesses worthy of credence, establishes that the
quality of Clark's on-the-street broadcasts was poor and that during the
31/ -month period of his employ by the Respondent, an excessive amount of
wire cartridges on the recorder operated by him was broken. Although Click
had given Clark instructions in the proper operation of the wire recorder, it
is clear that Clark did not follow such instructions and that the breakage of
the wire cartridges was due to his improper operation of the recorder. The
undersigned credits the testimony of these employees and in view of these
findings, as well as the fact that Barnett admitted that he made no investiga-
tion to determine the cause for the breakage of wire cartridges, it is found
that such breakage was due to Clark's inefficient operation of the equipment
and that Barnett's reliance upon this incident as a reason both for the discharge
of Click and for the endorsement of unsatisfactory on his license was without
basis of fact.
As to the use of the gasoline credit card by Click for his personal use, his
testimony in regard to the incident was substantially in accord with Barnett's
version set forth above. Barnett's testimony in regard to this incident is ac-
cepted as summarized above. It is noteworthy that following their discussion
Click considered the matter "dropped" and Barnett "let it go at that."
In respect to the incident on June 23, 1949, when Click expelled Clark from
the station after closing hours, Click's version, as follows, was considerably
different from that of Barnett. After the station was rebuilt after the fire, a
policy was established that no one would be permitted access to the building
after closing hours but the manager, chief engineer, and watchman." Em-
ployee George and watchman William Sellens had reported to Click that Clark
had been in the station after closing hours and had attempted "to turn on
" Watchman William Sellens testified that such was the rule and that he had been
informed of the rule by former manager Reinholdt Click testified that President Hamaker
instituted the rule. The latter denied that he had been responsible for such a rule For
the purpose of this Report, it is unnecessary to resolve this conflict in evidence as to the
identity of the person promulgating the rule The testimony of Click and Sellens in
respect to the existence of the rule is credited.
943732-51-62
962 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
some of the equipment after hours after we had left."2 This action was in
violation of the regulations of the F. C. C. One night after closing hours in
late June 1949, Click found Clark in the station and asked him to leave. The
next day Barnett inquired of Click as to the reason he had expelled Clark
from the station and Click replied that so far as he knew the rule that no
employees but the manager, chief engineer, and watchmen were to be allowed
in the station after hours had not been rescinded and that he had had reports
that Clark had attempted to turn on equipment after hours. Apparently,
Barnett stated that Clark should be permitted access to the building
after, closing hours for Click admitted that he told Barnett that he would not
be responsible as chief engineer for the technical equipment in the station if
employees were allowed to remain after closing hours. Upon the entire record
of his observation of the witnesses, the undersigned credits the testimony of
Click, as corroborated by Sellens, in respect to this event and does not credit
Barnett's version to the extent that it was at variance with that of Click.
In respect to the rodeo broadcasts of July 15 and 16, referred to in the
Respondent's reply to the F. C. C.'s inquiry as to the endorsement of unsatisfac-
tory on Click's license , employee Fields testified that he heard the broadcasts
and had no criticism to make of them and that the voice level of the an-
nouncers was the same. Liebman, according to Smith, had a tendency to wander
from the microphone and to speak softly, thereby giving difficulty to the en-
gineer in controlling the voice level. George testified that he heard no com-
ments by Barnett in regard to the rodeo broadcasts. Click testified that he
had heard no criticism of these broadcasts. In view of the testimony of these
witnesses, who impressed the undersigned as reliable and truthful, as well
as Barnett's admitted failure to discuss the broadcasts with Click or the an-
nouncers, it is found that Barnett's testimony in regard to this event and his
statement to the F. C. C. ascribing the rodeo broadcasts as a reason for the
endorsement of unsatisfactory on Click's license, had no basis in fact. Barnett
is not credited on this issue.
In conclusion, it is thus clear that the facts do not support two of the four
reasons advanced, at various times, by the Respondent as the basis for its dis-
charge of Click. That is, the breakage of wire cartridges in May and June
1949 was due to the inefficiency and inaptitude of Clark and not Click and
the rodeo broadcasts of July 15 and 16, 1949, were not "lost because of poor con-
trol" by Click. As to the third reason, the expulsion of Clark from the sta-
tion after closing hours in June 1949, Click's version of the incident has been
credited and it has been found that his expulsion of Clark was based upon
a rule, in existence since March 1947, which prohibited access to the station
after hours to all persons except the manager, chief engineer, and watchman.
At the conclusion of Click's discussion of the incident and rule with Barnett
when the latter stated that Clark should be permitted to remain after closing
hours, Click stated that as chief engineer he would not be responsible for equip-
ment in the station if employees were allowed access to the station after hours.
The Respondent argues that the position taken by Click in the matter con-
stituted a willful neglect of duties inasmuch as one of his principal duties and
responsibilities was for the condition of the station's equipment. The Respond-
ent's argument is clearly without merit. In the undersigned's opinion, Click's
statement was made (1) to support his advocacy of the theretofore existing
rule forbidding employees access to the station after hours and (2) to absolve
'a Sellens corroborated Click's testimony in this regard . Sellens also testified that he
requested Clark to leave the station on this occasion.
ROGUE VALLEY BROADCASTING CO., INC. 963
himself of any responsibility for damage to equipment or the station or for in-
fraction of regulations of the F. C. C. resulting from the presence of employees
in the station after hours and in the absence of Click. The fact that Click sought
to define his responsibility for equipment of the station and for the station's
observance of F. C. C.'s regulations to a period when the station was in opera-
tion cannot be said to be unreasonable or to be a willful neglect of duty on
his part.
The remaining reason urged by the Respondent for Click's discharge involved
his unauthorized use of a gasoline credit card for his personal use in June
1949 Since both Barnett and Click regarded the incident at an end fol-
lowing the former's discussion with and criticism of the latter, it seems im-
probable that this incident, occurring in June, was the motivating factor in the
discharge of Click over 2 months later, in September. (The same improbability
extends to the other reasons urged by the Respondent but rejected by the under-
signed as being without merit.) Barnett's somewhat ingenious, but uncon-
vincing, attempt to relate Click's discharge in September to incidents occurring
in June and to justify the more than 2 months' delay in making the discharge
necessarily falls when considered in the light of another contention of the
Respondent, namely, that Click was a supervisor. Thus, Barnett insisted that
he determined to discharge Click late in June, to be effective on Monday, June
27, 1949. However, Click's sudden illness and operation on June 26 impelled
Barnett to postpone the termination of Click's employment until such time as
Click had recovered his health. Late in July, by which time Click had recuper-
ated, the Union requested that the Respondent grant it recognition and warned
the Respondent that "any discharges or attempts to coerce or intimidate will
be viewed as an unfair labor act and such steps will be taken as directed by
the Labor Management Act of 1947." According to Barnett, he was advised to
delay the discharge of Click further until after the representation issue had
been settled by an election. Consequently, on September 2, 1949, 4 days after the
consent election, Barnett at last effected the release of Click from the Respond-
ent's employ. Barnett's alleged reluctance to discharge Click during the pend-
ency of the representation issue is not compatible with the Respondent's posi-
tion that Click was a supervisor and that his discharge was not violative of
the Act. If indeed the Respondent believed Click to be a supervisor and, in
fact, had cause to discharge him, it seems highly improbable that it would have
postponed his discharge more than 2 months, pending the resolution of the
representation question, since the discharge of a supervisor would not be viola-
tive of the Act or concern the representation issue. In view of this circum-
stance, as well as his impression of the witnesses, the undersigned does not
credit Barnett's explanation for the delay in making the discharge of Click.'3
That the reasons advanced for Click's discharge were mere pretexts to cover
its illegal motivation is clear in view of the more than 2 months' interval exist-
ing between the incidents relied upon and Click's ultimate discharge in Sep-
tember, and also of the shifting reasons for the discharge advanced by the
Respondent from time to time. Thus, in answer to the F. C. C. 's inquiry in
regard to the endorsement of unsatisfactory on Click's license, the Respondent
replied that the endorsement was based upon the incident involving Clark and
the breakage of wire cartridges in May and June 1949, and upon the rodeo
broadcasts of July 15 and 16, 1949. Yet, at the hearing, Barnett testified that
the reasons for Click's discharge encompassed the wire-cartridge incident, the
unauthorized use of the gasoline credit card for personal use, and the ex-
13 The same considerations impel the rejection of Hamaker's testimony elicited in
corroboration of that of Barnett.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pulsion of Clark from the station after hours in June 1949. Barnett further
testified that he determined to discharge Click on June 24, 1949, the day after
their discussion about the latter incident, and obviously several weeks prior
to the rodeo broadcasts on July 15 and 16. In addition, there was variance
in the reasons advanced by Barnett to the Board and to the Union 's business
agent: Also, it is significant that Click was discharged without prior warn-
ing and that the reasons given him for his discharge were in general terms.
However, it seems clear that contained in those general reasons given Click
and also Renoud was the motivating one which impelled the Respondent to
terminate Click's employment ; namely that he was a troublemaker and had
caused dissension among the employees. The record amply supports the in-
ference, which the undersigned makes, that Barnett's characterization of Click
as a troublemaker and creator of dissension among the employees was based
upon Click's union activities and membership, which were known to the Re-
spondent-in view of the small size of the station and Barnett's prompt inter-
rogation of the employees after they evidenced interest in self-organization.
Click was one of the two employees responsible for the self-organization of
the Respondent's employees and actively lent assistance to the Union's cause.
Shortly after the employees signed applications for membership in the Union,
Barnett interrogated Click and other employees in regard to their union ac-
tivities and sympathies, told Click that dissatisfied employees could quit, and
warned him that "we don't want any damned union around here. They leave
a very bad taste in my mouth, and it would if you joined the Union behind my
back." Barnett further stated that the Union "left a very bad taste in his
mouth . . . he wouldn't rest until it died " Indicative of the Respondent's
motivation in the termination of Click's employment 4 days after the Union
won the consent election was Barnett's statement to employee Smith, shortly-
before the election, to the effect that if Smith "voted against the union [he]
wouldn't have anything to fear from Mr. Click because he wouldn't be there."
Upon the entire record, the undersigned concludes and finds that the Re-
spondent discharged Ralph S. Click because of his membership in and activi-
ties on behalf of the Union and that the reasons advanced by the Respondent
for his discharge are without merit and at most were a pretext to conceal its
illegal motivation for his discharge. By thus discriminating against Click, the
Respondent has violated Section 8 (a) (3) of the Act and has discouraged
membership in the Union and interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
The undersigned has found that the Respondent violated the Act by interro-
gating its employees concerning their union sympathies and activities, by making
other coercive statements and threats to its employees, and by discriminatorily
discharging Ralph S. Click on September 2, 1949. In view of these findings, it
will be recommended that the Respondent take certain affirmative action de-
signed to effectuate the policies of the Act.
ROGUE VALLEY BROADCASTING CO., INC. 965
Having found that the Respondent discriminated with respect to the hire
and tenure of employment of Ralph S. Click, by discharging him because of his
union membership and activities, it will therefore be recommended that the
Respondent offer Click immediate and full reinstatement to his former or
substantially equivalent position," without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him. Consistent
with the Board's new policy in the method of computing back pay," it will be
recommended that the loss of pay be computed on the basis of each separate
calendar quai ter, or portion thereof, during the period from the discriminatory
action to the date of a proper offer of reinstatement The quarterly periods,
hereinafter called quarters. shall begin with the first day of January, April,
July, and October Loss of pay shall be determined by deducting from a sum
equal to that which he would normally have earned for each quarter, or por-
tion thereof his net eainuigs,u if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. It will also be recommended that the Respondent
make available to the Board, upon request, payroll and other records to facili-
tate the checking of the back pay due.
In view of the Respondent's discriminatory discharge of Click, and its other
acts of interference, restraint, and coercion, there is danger tbat'the commission
of unfair labor practices generally is to be anticipated from the Respondent's
unlawful conduct in the past The undersigned will therefore recommend that
the Respondent not only cease and desist from the unfair labor practices found,
but also cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The operations of Rogue Valley Broadcasting Co , Inc. (KWIN) constitute
trade, traffic, and commerce among the several States within the meaning of
Section 2 (6) and (7) of the Act.
2. Local No. 49, International Brotherhood of Electrical Workers, AFL, is a
labor organization within the meaning of Section 2 (7) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and
is engaging in unfair labor practices within the meaning of Section S (a) (1) of
the Act.
r* In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See The Chase National Bank o f the City of New York, San Juan, Puerto
Rico , Branch, 65 NLRB 827
IsF W Woolworth Company, 90 NLRB 289.
i6 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the Respondent, which would not have been incurred but for the
unlawful discrimination and the consequent necessity of his seeking employment elsewhere
See Crossett Lumber Company, 8 NLRB 440 Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as
earnings . See Republic Steel goiporation v N. L R B, 311 U. S 7
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By discriminating in regard to the hire and tenure of employment of Ralph
S. Click, thereby discouraging membership in a labor organization, the Respond-
ent has engaged and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this vojume.]
UNITED STATES G YPSUM COMPANY and LOCAL 504, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL. Case No. 1-CA-466. March 27, 1951
Decision and Order
On August 30, 1950, Trial Examiner George A. Downing issued
his Intermediate 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
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in unfair labor practices
by discharging David Mingo or by refusing to,reinstate him as
alleged in the complaint, and recommended that the complaint be
dismissed as to him. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel,[ Chairman Herzog and Members
Reynolds and Murdock].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Respondent's request for oral argument is,
hereby denied, inasmuch as the record and brief, in our opinion,
adequately present the issues and positions of the parties. The Board
has considered the Intermediate Report, the exceptions and brief, and
the entire record in the case, and hereby adopts the findings and
conclusions of the Trial Examiner with the following modifications.
1. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (1) by Bledsoe's statements made during contract negotia-
tions with the Independent and at the meeting of employees on
August 13, 1949.
(a) The Board certified the Independent as the collective bargain-
ing representative of the Respondent's employees on August 31, 1948.
Bargaining negotiations between the Independent and the Respond-
93 NLRB No. 149.