Radio Station WFHR

In the Matter of WILLIAM F. HUFFMAN, D/B/A RADIO STATION WFHR and RADIO BROADCAST TECHNICIANS' LOCAL UNION No. 175, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. ol, L. Case No. 18-C-1183.-Decided October 31, 1916 Dlr. Stanley D. Kane, for the Board. Mr. Theodore W. Brazeau, of Wisconsin Rapids, Wis., f,)i- tile respondent. Mr. Raymond H. Bridge, of Milwaukee, Wis., for the Union. Mr. Samuel M. Kaynard, of counsel to the Board. DECISION AND ORDER On June 14, 1946, Trial Examiner, R. N. Denham issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had onot engaged in any unfair labor practices affecting commerce, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, counsel for the Board filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and, to the extent consistent with the Decision and Order herein, hereby adopts the findings; conclusions, and recommendations of the Trial Examiner. 1. In his brief and exceptions, counsel for the Board excepts to the conduct of the Trial Examiner at the hearing, and charges that the "Trial Examiner's Report is the fruit of bias and prejudice.'. In view of the gravity of the charges levelled at the Trial Examiner's conduct, we have carefully scrutinized the record, and we are satis- 3 In the fourth paragraph of Section III, A, of the Intermediate Report, the Trial Exam- iner inadvertently stated that the conversation in question was between Frechette and Bowker in March 1940. The record shows that the conversation occurred in October 1940 and was between Frechette and Nickel, and we hereby correct the Intermediate Report in this respect. 71 N. L. R B., No. 80. 518 RADIO STATION WFHR 519 fled that the Trial Examiner conducted a fair and impartial hearing and that there is no basis for counsel's charge of bias and prejudice. 2. The complaint alleges, inter alia, that from on or about June 8, 1945, the respondent engaged in certain conduct violative of Section 8 (1) of the Act. The Trial Examiner found that this allegation of the complaint was not supported by the evidence. We do not agree. The record shows, as set forth more fully in the Intermediate Re- port, that on or about October 8, 1945, the Union claimed to represent a majority of the employees at the respondent's transmitter station and sent the respondent a proposed exclusive bargaining contract which it desired to conclude. Upon receipt of the contract, the re- spondent's general manager, Frechette, visited the transmitter station and questioned Bowker and the other operators concerning their mem- bership in the Union. In an ensuing conversation with Bowker as to the advantages and disadvantages of union membership, Frechette stated that "the bonus would certainly not be made a part of the con- tract [between the respondent and the Union], that anything * * * [the respondent] did as to the bonus was a gratuity and would not be included in any contract." 2 At about the same time, Frechette again approached Bowker and stated that "he [Frechette] would like to work up a contract himself without dealing with outsiders" and that "he would like to meet the three [employees] * * together and talk it over, iron it out." 3 o The foregoing facts convince us, and we find, that Frechette's re- marks concerning the bonus constituted more than a discussion of what the proposed contract should cover. The record discloses that, for the past 5 years, the respondent has consistently paid bonuses to his employees, even at times when there was no profit realized from the operation of the station. Thus, the bonus, in effect, was an integral part of the respondent's wage structure and of the employees' gross earnings 4 Viewed in this light, Frechette's statement, that the bonus was a gratuity and would not be included in any union agreement, led the employees reasonably to believe that they were faced with the choice of either bargaining through the Union and losing the bonus, or maintaining the existing bonus plan by abandoning the Union. We accordingly find that Frechette's remark constituted a threat of economic reprisal should the employees continue in their collective bargaining efforts. That the respondent sought to undercut the Union and to thwart self-organization is further established by Frechette's proposal to deal 2 This statement is based on the testimony of Frechette, whom we credit, as did the Trial Examiner. 3 This statement is based on the undenied and uncontradicted testimony of Bowker„ which we credit. 4 This is even more pronounced in the case of Bowker, who was told at the time of his employment that his small salary would be augmented by bonuses. 11 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly with the employees in the face of the Union's claim of majority representation and its efforts to conclude a collective bar- gaining agreement. Finally, apart from this conduct, Frechette's in- terrogation of employees as to their union membership was per se violative of the Act. We accordingly find, contrary to the Trial Examiner, that the re- spondent, by the above statements and conduct of Frechette, nlter- fered with, restrained, and coerced his employees, within the meaning of Section 8 (1) of the Act. 3. We agree with the Trial Examiner that no unfair labor practice findings should be made with respect to the events which occurred be- fore June 8, 1945, for the reason that they are not covered by the complaint. We also agree with the Trial Examiner that the wage increase of November 1, 1945, and the demotion of Bowker were not violative of the Act. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order him to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER O 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, William F. Huffman, d/b/a Radio Station WFHR, Wisconsin Rapids, Wisconsin, and his agents, successors, and assigns shall: 1. Cease and desist from interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Radio Broadcast Technicians' Local Union No. 715, International Brotherhood of Electrical Work- ers, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining, or other mutual aid or protection, by interrogating his employees as to their union membership; by threatening to withdraw the bonus plan or to take any other economic reprisal; or by proposing to deal directly with his employees in the face of a claim of exclusive recognition by their duly selected bargaining representative. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at his radio studio and transmitter station in Wisconsin Rapids, Wisconsin, copies of the notice attached hereto marked "Ap- RADIO STATION WFHR 521 pendix A."' Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immedi- ately upon receipt thereof, and maintained by him for sixty (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 the Eighteenth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated against Garth N. Bowker within the meaning of Section 8 (3) of the Act, and insofar as it alleges that the respondent, by granting a wage increase, interfered with, restrained, and coerced his employees within the meaning of Section 8 (1) of the Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT Stanley D. Kane, Esq, of :Minneapolis, Minn., for the Board. Theodore W Brazeau, Esq. of Wisconsin Rapids, Wis , for the Respondent. Raymond H. Bridge, Vice President, of Milwaukee, Wis., for the Union. STATEMENT OF THE CASE 0 Upon a charge duly filed on November 3, 1945, by Radio Broadcast Technicians' Local Union No 715, International Brotherhood of Electrical Workers, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board , by its Regional Director for the Eighteenth Region (Minneapolis, Minne- sota), issued its complaint dated March 20, 1946, against William F. Huffman, an individual doing business as Radio Station WFHR, herein called Respondent, alleging that Respondent had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section S (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with notices of hearing thereon were duly served upon Respondent and the Union. With respect to unfair labor practices, the complaint alleges in substance that on or about October 8, 1945, and February 15, 1946, Respondent refused to bargain with the Union as the representative of a majority of his employees within an alleged appropriate unit, and thereby has engaged in an unfair labor practice within the meaning of Section 8 (5) of the Act; that on or about October 31, 1945, Respondent demoted and transferred Garth N Bowker from his position as chief operator to the position of operator and has since that time failed and refused to restore him to his previous employment for the reason that he and other employees joined and assisted the Union and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection, and by such action has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act; that from on or about June 8, 1945, until the date of b In the event that this order is enforced by a decree of a Circuit Court of Appeals, there shall be inserted , before the words "A Decision and Order " the words "A Decree of the United States Circuit Court of Appeals Enforcing." 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the issuance of the complaint, Respondent has urged and warned his employees against affiliation with or activities on behalf of the Union, has advised, urged and warned his employees to refrain from engaging in concerted activities for the purpose of collective bargaining and other mutual aid and protection, has made threats that employees would lose their bonus payments and other special privi- leges if the Union became their bargaining agent or if his employees joined or assisted the Union, has offered special privileges to employees if they would refrain from joining or assisting the Union, has made inquiries of employees concerning their union activities, has offered and given his employees a wage increase in order to discourage activity on the part of such employees for the purposes of collective bargaining and has by statements and conversations dis- couraged activity on the part of his employees for the purposes of collective bargaining and other mutual aid and protection. and by such conduct, together with the conduct previously described, has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. The answer of Respondent, duly filed, admits the allegations of the complaint pertaining to the character and extent of the business transacted by Respondent, the allegations with reference to the character of the Union in that it is a labor union within the meaning of the Act, and that on or about October 31, 1945, he had demoted Bowker from the position of chief engineer or chief operator, the terms being synonymous, for good cause and because of Bowker's inability to satisfactorily fill the requirements of that position. The answer denies all the allegations of the complaint pertaining to the commission of any unfair labor practices. Pursuant to notice duly served. a hearing was held on May 21 and 22, 1946, at Wisconsin Rapids, Wisconsin, before the undersigned R. N Denham, a Trial Ex- aminer, duly designated by the Chief Trial Examiner. The Board and Respondent were represented by counsel. The Union was represented by its vice president. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues Before offering any evidence, counsel for the Board moved to dismiss all those portions of the complaint pertaining to the allegation that Respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. The motion was granted without objection. At the close of all the testimony, the motion of counsel for the Board to conform the pleadings to the proof as to such matters as pertain to the correction of names, dates and other matters not going to the issues, was granted without objection. Counsel for the Board and for Respondent presented oral argument on the record. All parties waived the privilege of filing briefs with the Trial Examiner. On the basis of the foregoing and on the entire record, after having heard and observed the witnesses and considered all the evidence offered and received, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent stipulated on the record that he is engaged in commerce within the meaning of the Act ; that he is a sole trader engaged in the operation of radio broadcasting station WFHR at Wisconsin Rapids, Wisconsin; that he also has another studio located at Stevens Point, Wisconsin, and that he causes radio programs, news, press releases, advertising, and intelligence to be sent from his station in Wisconsin Rapids, Wisconsin, from, into, and through States of the United States other thaq the State of Wisconsin, and similar radio material to be received and distributed at his station, from like points in the United States. RADIO STATION WFHR II. THE ORGANIZATION. INVOLVED 523 Radio Broadcast Technicians' Local Union No. 715, International Brother- hood of Electrical Workers, A. F. of L., is a labor organization admitting to membership certain of the employees of Respondent at his studio in Wisconsin Rapids, Wisconsin. III. THE ALLEGED UNFAIR LABOR PRACTICES The establishment of the studio and the construction of the transmitter for WFHR was started in August, 1940, and the station's first program was put on the air on November 1, 1940. William F. Huffman, the proprietor and owner of the station, had been a newspaper publisher in the city of Wisconsin Rapids, Wisconsin, for over 15 years previous to the opening of the radio station but, aside from such study and investigation as he has been able to make generally con- cerning the operation of radio stations, he had no experience in the technical operation of such a business. WFHR is a 250 watt station, which appears to be about standard size for the local installations in that part of the country. Having obtained the necessary license from Federal Communications Commis- sion, in the middle of 1940, Huffman began to put his organization together for the operation and maintenance of the station. Early in the year, he had em- ployed George D. Frechette to be general manager of the station. At the same time he had been in correspondence with Garth N. Bowker, a licensed transmitter operator, who had been employed for approximately 7 years at various small radio stations about the size of the contemplated station WFHR in Wisconsin and adjacent states in the capacities of operator, announcer, and salesman On August 15, 1940, Bowker was employed by Huffman to take the position of Chief Engineer, sometimes called Chief Operator, of Station WFHR, and in that capacity to assist in planning the arrangement and equipping of the studio and the transmitter station, located several miles outside Wisconsin Rapids. Under Bowker's general supervision and with the assistance of Hufiimin and Frechette together with the technical assistance, drawings, and installation instructions supplied by the sales organization of the concerns from whom the equipment was obtained the station was installed and began operation on November 1, 1940. In late September or early October 1940, Victor Nickel was hired to serve as an operator, and about two or three months later, Bert Zielesch, a second opera- tor, was employed. These two together with Bowker constituted the entire staff charged with the operation of the transmitter.' A. The alleged interference, restraint, and coercion The only evidence concerning alleged restraint and coercion by Respondent consists of alleged statements made long prior to the advent of the Union, which, 1 The term "operator" as used herein refers to the employees of Respondent who held the first class operator's license issued by the Federal Communications Commission which en- titled the holder thereof to operate transmitter stations for radio broadcasting . The regu- lations of the Federal Communications Commission have, until recently , permitted only the holders of such licenses to serve as transmitter operators ; but more recently a special license has been created , known as a third class license, which permits a less qualified per- son to operate a transmitter provided his license is endorsed by the chief engineer of the station. In this case there is also another type of employee known as a "trainee" who is employed by Respondent under a contract with the Veterans Administration for purposes of training and instruction along lines which are designed , within a period of 3 years, to qualify the trainee for a first class operator 's license . At least in the early days of the trainee course, the trainee is not permitted to have any part in the operation of the tians- mitter except in the course of his instruction and under the direct supervision of the insti uc- tor designated by the station. In this case, Bowker was the instructor. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if believed would indicate no more than that Huffman preferred not to have the employees at the station organized, and some alleged statements by Frechette concerning the possible fate of a customary bonus to employees in the event the Union insisted on a formal contract with a fixed pay scale Huffm,rn's back- ground gives no support to It, contention that he entertained an anti-union bias. For 22 years, as publisher of the daily newspaper in Wisconsin Rapids, he has enjoyed contractual relations with two of the printing trade unions The rec- ord reflects that these relations have consistently been friendly and that his newspaper has also maintained a fair and impartial attitude toward labor when controversies between unions and local industries arose. Bearing directly on the instant case, with the exception of one or two incidents which are hereinafter considered, the record presents no substantial evidence of bias or prejudice on the part of Huffman against any of his radio station employees becoming members of or actively supporting any labor organization. Frechette, on the other hand, does not i eflect such a complete freedom froni prejudice, although even in his case, such conduct as he engaged in does not support the complaint Bowker testified that in 1938, shortly after Huffman had made his applica- tion for the establishment of station WFHR, he called on Huffman at the latter's invitation in Wisconsin Rapids to discuss the possibility of employment as chief engineer for the new station ; that Huffman explained to him he was then merely looking over the field of possible employees, that no large salaries would be paid in the first instance but that they would be increased as the business of the station increased and that the Chief Engineei, the Program Director, the Com- mercial-Manager and the General Manager would mike their money out of bonuses he expected to pay from station profits to these men upon whom the burden of running the station would largely rest. He further testified that during this conversation Huffman asked him whether lie belonged to a union and that when he told him that lie had never been a union member, Huffman stated that he did not want any union in the station Huffman denied having made any such statement concerning unions in any of his conversations with Bowker or to any other person Bowker further testified that in March 1940, he again called on Huffman in Wisconsin Rapids ; that at that time Frechette had been employed as General Manager and was working with Huffman in setting up the prospective station ; that in the course of questions by Frechette as to his background, Frechette asked Bowker whether he belonged to a union and when Bowker stated that he did not, Frechette replied "That's good" and added that they did not want any union in connection with the Station. Frechette testified that lie could not remember all that transpired in this meeting and that possibly some mention was made of unions but that lie was quite sure he had riot made the statement attributed to him by Bowker. Bowker also testified that in 1944. he and the other two operators 2 frequently discussed unions and in the fall of that year reached the conclusion that they would not join any labor organization However they did discuss among them- selves the possibility of getting an increase in their wage rate and delegated Bowker to speak to Frechette about such a raise Bowker did so. He told of their decision not to join the Union but neverthless asked for a wage increase. Frechette replied that because of War Labor Board freezes, no increase in wages would be possible at that time and also that he did not like the idea of the opera- tors getting together and having one man speak for them but would preter to 2 By this time Zielesch had Entered the armed service and Arnold Strope had taken his place as operator. RADIO STATION WFHR 525 talk to each one separately on the subject. Notwithstanding this, a short time thereafter these three men received increases of 10 cents per hour which raised the wages of the operators to 6.5 cents an hour and that of Bowker to 75 cents per hour In his testimony Frechette did not dwell on this incident. Sometime after the above incident but still in the fall of 1944, Bowker and the other operators yveie approached by the Union Bowker reported this to Frechette and asked his opinion as to whether they should become members. Frechette stated that the management had no objection and would be quite willing to sign a contract with the Union but, according to Bowker, added that the moment a contract was signed their bonus would stop' Frechette in testifying concerning this conversation denied saying that the bonus would stop, but explained that in their discussion concerning the possible adjustment of wages under a union contract, the bonus would not be made a part of any contract, since anything done as to it was a gratuity on the part of Huffman and would not be included in any contract. In June 1945, Huffman suliered an injury which hospitalized him for some considerable time and incapacitated him from actively attending to any business affairs until the lattei part of October In June or July 1945 the two regular operators and Bowker joined the Union. At this time the total number of employees at the transmitter station consisted of Nickel and Strope, the two regular operators, Bowker. and two of the "trainees" heretofore referred to who, because of their contracts with the Veterans Administration and the fixed basis of their employment set by such contracts, regarded themselves as ineligible to join any union On or about October 8, 1945, the Union prepared and mailed to Respondent a claim of representation and enclosed therewith a formal contract which they desired to negotiate as the representative of the transmitter em- ployees This appears to have been the first intimation Frechette or Huffman had that the transmitter employees had interested themselves in this Union to the point of joining it At this time, Frechette was in complete charge of all the operations of the station due to Huffinan's disability. On receiving this letter and contract lie visited the transmitter station where he talked with Bowker and one of the other operators and asked whether they had joined the Union and if so who else, if any, were members. Bowker told him. This was followed by a discussion of the benefits of union membership in their case, of which Frechette expressed the opinion that the men had no reason for wanting to join a union ; that their jobs were wholly secure; and that they had nothing to worry about According to Bow•kei, Frechette added, "Of course you know your bonus is all done with " Frechette confimnied much of this conversation but denied having made any statement that the bonus would be suspended as a result of these men joining the Union He explained that the contract, as submitted, was apparently a standard mimeographed form in which had been interlined a clause "that the benefits of the employer's bonus plan shall continue," and that in discussing this with Bowker, he had said in effect, that the bonus being a voluntary contribution by Huffman, could not be included in the contract, but would have to continue to remain discretionary with Huffman A few (lays after October 8, Frechette asked Alfred Beyer. one of the trainees, whether lie had been approached by the Union. Beyer replied that he had but 8 Upon the inception of the station operations in November 1940 , and up to the time of the hearing, Huffman has consistently paid bonuses to all the employees of the station whether the operations showed a profit or otherwise There appears to have been no fixed yardstick by which the bonus was determined, a number of intangible factors being con- sidered in determining the amount of bonus to he.paid each man In the case of the Chief Engineer, Program Director, Commercial Manager and General Manager, however, the ratio of the bonus to the annual wage or salary has been substantially greater than in the case of the ordinary employee. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he did not know whether it applied to him and whether he would be eligible to join if he wanted to. Frechette assured him that he had nothing to worry about and that if at a later date he became eligible, there would be no reason why he should not join.' Beyer further testified that in the fall of 1945, he and the other trainee were invited to Huffman's house during the latter's convalescence, to dis- cuss the progress of their training program. Frechette was present. These men generally discussed the training program for several hours at which time Beyer complained that he did not feel he was getting adequate instructions from Bowker, his designated instructor, and that he felt instruction and training were being hampered by lack of equipment with which to work for experimental and instructional purposes. Beyer also testified that, during their conversation, either Frechette or Huffman asked the trainees what they thought about the Union and whether they intended to join; that he stated he intended to go with the majority and to join the Union if lie were eligible ; that Huffman then told them about his relations with the unions on his paper and stated that he was in favor of the men joining the Union if they desired to do so, but that in the radio station, with the adN•ent of a union, the friendly relations that had always existed would be changed and thereafter all relations between employees and management would have to be "all business" ; that Huffman further stated that in his opinion, with wages based on a fixed union scale, incentives would be diminished. Beyer further testified that when he was going home that evening with Frechette in the latter's car, he asked Frechette whether the scale of pay provided in his contract with the Veterans Administration would be maintained if there should be no union in the shop, so that he would eventually reach 75 cents an hour. According to Beyer, Frechette's answer was that it would cer- tainly reach the 75 cents an hour provided for and maybe more. On cross- examination Beyer repeated that neither Frechette nor Huffman had objected but had said that it would be satisfactory to them if the trainees joined the Union.` Concerning this meeting of the two trainees with Huffman and Frechette in the latter part of October, Huffman testified, and his testimony is credited, that there was some conversation concerning unions in the course of which Beyer stated that on another occasion he had been a member of a union but that his experiences had not been satisfactory; and that he further stated that in the instant situation he did not consider himself eligible because of his contract with the government which prescribed the conditions under which he was to work. In this connection Huffman further testified that he stated that he had no objections to Beyer joining the Union and that when and as he became eligible 4 Beyer testified that Frechette's statement was "that if at a later date he saw fit for me to join a Union he would see that I got in." Frechette's testimony was in substance in line with the statement contained in the body of this report. Under all the circumstances Frechette's testimony is accepted as the more reasonable of the two interpretations put upon the conversation. 5 After Beyer had been excused and the hearing had gone into a short recess, during which the parties involved on both sides engaged in the usual recess parleys, Beyer was recalled to the stand and asked whether he could recall anything further that had taken place during the above conference with Huffman and Frechette. He then testified that at some stage during the 3 hours that they were together, Huffman had made a statement substantially that "there is an agitator here I am going to get rid of." On further exam- ination as to circumstances under which this statement was made, it developed that Beyer was unable to recall any part of the conversation in which this occurred or to place it with reference to any other subject pf discussion or statement that had been made either before or after the statement above quoted. In my opinion, this bit of testimony has all the ear marks of an inspired afterthought, in view of the inability of the witness to connect it with any part of the discussions that took place. Huffman denied it and his denial is credited. As a result, it has been disregarded in all considerations of the controversy here. RAD10 STATION WFf-IR 527 Huffman and Frechette would "see that he got all the benefits." I am unable to find in these incidents described by Beyer anything proscribed by the Act On October 31, 1945, following a major failure of equipment just recently installed by Bowker, the latter was given a 2 weeks' notice of his demotion from his job of Chief Operator to that of ordinary operator. At the same time he was advised that the wage of all the operators was to be increased to $1 per hour effective the pay period (two weeks) ending November 18, 1945 According to Huffman, this increase in the wage rate was brought about by the fact that Bert Zielesch, who had been a first class operator in the employ of Respondent since January 1941, had entered the Aimed Services and in October 1945 had returned and made a tentative application for reinstatement to his old job At the time not only was Zielesch entitled to i einstatenient, but there was a vacancy and his services were required. However, Zielesch, who had received an offer of a similar job in a neighboring city at the rate of $1 per hour refused to return to employ ment with Respondent unless he could be paid the same rate that had been offered him by the other station. Huffman and'Fiechette reached the con- clusion that they would be justified in paying Zielesch the higher rate of $1 per hour but decided also, that if one operator was to receive that rate, the other operators should have their rates increased to a similar amount. On this basis, the new rate of $1 per hour went into effect with Zielesch's return to employment on November 15. Since that time all operators including Bowker have been receiving pay at the $1 rate. There is nothing to indicate any relation between this pay increase and the union activities of any of the employees On November 1, 1945, it party was given by Huffman at one of the local taverns in celebiation of the fifth anniversary of the station Liquor was served and speeches made lluf nian spoke in honor of the event. Zielesch, who had just rejoined the staff, was present and testified, concerning Huffman's remarks: Well, no mention was made of unions as far as I can recall, though I believe there was some statement made about an outsider, he did not prefer to have an outsider coining in and telling him what to do. On the same subject, Huffman testified : "I explained the bonus system to the guests, or staff, many of whom I had never seen before and who had been hired during the period of my absence and illness, and I explained that to them It had come to my atten- tion, and I told them that, that others had said that I was not going to pay my bonuses and not live tip to my word, and I made the statement that no one could speak for nie since I was the one who paid the bonuses and it was out of my generosity " Huf nau denied that he used the term "outsider Zielesch testified that although he, bald been drinking at the party, he did not believe that affected his recollection. However, it is to be noted that his testi- mony above-quoted reflects a hazy recollection that would not be inconsistent with the vei lion given by Huffman. The latter is in keeping with the general back- ground as developed in the record It is found that, at the November 1, 1945, party, whatever remarks Huffman made that might be pertinent to the issues, were substantially along the line testified to by him as above-quoted. 9 Zielcsch testified that he mentioned the pending union activities when he was discussing his reemployment about November 1, and then stated that while he did not belong to a union , he would go along with the majority of the group. 717714-17-vof 71 .;5 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B The demotion of Bowker Bowker was employed in August 1940 to be chief engineer of the radio sta- tion In that capacity he woiked from August 15, 1940, up to November 1, 1940, in collaboration with the representatives from the suppliers of equipment, on the designing of the station and the laying out of the equipment in the studio and at the transmitter and genera l ly supervising the construction and installa- tion of the transmitter station . Bowler had completed a course of instruc- tion on the operation of the transmitter some years previous in the Federal Radio Institute at Milwaukee, Wisconsin . and had about 7 years of experience working in radio stations as has been heretofore outlined Following the open- ing of the station on November 1, 1940, Bowker continued as chief operator and in that capacity was the supervisor of the other operators and the instructor of the trainees who were later assigned to the station for instruction. There is no definite evidence Of unusual mechanical failures in the operation of the station during the first 3 years of its existence although it was the testimony of Frechette and Huffman that neither of them was wholly satisfied with Bowker's ability to serve as chief engineer and carry the responsibility for the maintenance of the operations so as to avoid going "off the air, " almost since the beginning of his employment . Huffman testified that he became convinced of Bowker's lack of competence in late 1943; and that in 1944, he began efforts to secure a replacement for him These consisted of advertisements in the trade journals and inquiries of other people in the industry who might be in contact with persons qualified for the job. The record discloses that the most serious thing that can happen to a radio station is to have its equipment fail and to be forced " off the air" for repairs. A survey of the experience of a group of other stations of 350 watts power constituting the Wisconsin Network , discloses that (hiring 1944 and 1945, WFI1R suffered more stoppages of its programs and lost more time because of mecham- eal failures that fell into the area of Bowker 's responsibility , than any other station, with one exception . In the 60 days preceding October 31, 1945, when Bowker was demoted, there were two such failures o1 more than :in hour's dura- tion each , both of which stemmed back to B,owker 's failure to maintain the concentric cables in working condition . The record discloses other mechanical failures of more or less minor degrees No purpose would be served by review- ing these since the record , as it deals with the failures of the concentric line r presents an adequate foundation , standing alone, for the disposition of this phase of the controversy. As has already been noted , no effort will be made to view all the claims of ineptitude on the part of Bowker , since the question of his demotion turns, not on the mechanical perfection of his woik , but upon the good faith of Huffman and Fi echette in their belief that he was not qualified to continue to bold the job even though he had been ,on it for 5 years In view of this and because it R The concentric line is the main artery through which the broadcast program passes from the tiansmitter to the an It consists of a copper tube with a copper wire inside and held in place in the tube by porcelain disks through the center of which the copper wire runs The tube is the ground medium and the inner wire is the convening medium for the energy which results in the broadcast The installation and maintenance of the concentric line is one of the most important functions of the maintenance engineer and, together with the maintenance of the relays and tubes, as well as the other equipment is his re- sponsibility In 1945 there were 13 failures at WFHR. totaling 8 hours and 3 minutes, of which 8 were power failures accounting for 4 hours and 411/2 minutes, 4 were concentric line failures , and 1 was a tube failure This history of failnie greatly exceeded.any other station whose records were referred to Bowker's demotion followed within 3 dti , the last major concentric hue fail iii e RADIO STATION WFHR 529 is not the function of the Trial Examiner to determine whether the mechanical principles applied by Bowker were correct or incorrect, no effort will be made to do more than to review the circumstances and arrive at a conclusion as to whether the circumstances developed in the record support Respondent's contention that he honestly believed the man to lack the qualifications necessary for the job and therefore was entitled to demotion. The importance of the concentric line or cable has already been pointed out. Ordinarily radio stations have on hand a usable spare cable which can be in- stalled in a matter of a few minutes if the one in use should fail This sta- tion had such a spare. In the summer of 1945 the spare cable went out of re- pair. It was Rowker's duty to see that this cable was promptly put into repair and kept available for immediate use in an emergency On discovering the con- dition of the spare cable, Bowker made some examination of it, in the course of which the couplings between the joints of the cable were destroyed. He did not have on hand sufficient couplings to replace those he had damaged and others were not readily available from the usual supplies Bowker did not re- port this condition to either Huffinan or Frechette, but attempted to borrow some couplings from Nickel who, in addition to his work as operator at WFHR, was also servicing the County police radio as radio maintenance man Nickel had none but stated he expected a shipment within about 2 weeks. During this period, the spare cable was wholly out of commission and its condition did not come to the attention of Frechette until September 5, 1945, when the main cable failed and he discovered these was. no usable spare available This incident resulted in a considerable loss of time on the air and a reprimand to Bowker from Frechette On October 23, 1945, Bowker undertook to install a new concentric cable at the transmitter This cable was 220 feet long and consisted of 7/8 inch copper tubing with the customary enclosed wire. In installing the cable, Bowker made no allowance for the expansion and contraction of the cable due to changes in temperature and as a result of these changes the cable was pulled off from its connection with the ground wires and threw the station off the air for 1 hour and 13 minutes while the cable was being repaired.' This failure occurred on October 28, 5 days after its installation and at just about the time Huffman returned to Wisconsin Rapids from hospitalization and treatment for his pre- vious injury. On October 31, after consultation between Hutfman and Frechette, Bowker was advised that he was being demoted, effective 2 weeks hence, because ,of his inability to fill the job and his incompetence on the job. There is no reasonable infeience to be drawn from the fact that the Union had presented a demand tor a contract to Frechette on October S. and that Bowker was demoted on October 31 It is uncontradicted that Respondent had been attempting, for more than a year. to find a competent man to take over Bowker's duties as chief operator This demotion (lid not remove Bowker or his influence from the small group who were involved in the union organizational activities and, in the absence pf definite anti-union prejudices, does not reflect any effort to discourage membership in the Union Bowker was unquestionably 8 Bowker testified that although this cable was laid in an open wooden trough and was outside where it was exposed to all weather changes, he knew of no way in which the usual variations due to expansion and contraction could be compensated in the installation while the writer makes no pretense at being an expert , the response of copper to heat and cold is a matter of such common knowledge and the necessity for making allowances to com- pensate for this is too well known to permit this statement by Bowker to be ignored when evaluating the good faith of his employer in relieving him of the responsibilities of chiet engineer. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remiss in his handling of the maintenance of the equipment and showed an "off the air" record for his station greatly in excess of that suffered by any of the other stations of similar type in the Wisconsin Network. Because of the foregoing, it is found that, in demoting Bowker from the position of chief operator to operator, Respondent did so under a good faith conviction that Bowker had shown himself incapable of successfully carrying on the maintenance of the station's technical and mechanical equipment; that this action was not taken as a result of any union activities in the station but had been under consideration for more than a year before such union activities started, and that in such demotion, Respondent has in no respect discriminated against Bowker because of his union activities Following Bowker's demotion, Respondent did not hire a new chief operator, nor did he promote either of the other operators then in his employ. Nickel, the logical successor, was then on the verge of resigning to devote his entire time to the maintenance of the county police radio system and did actually resign for that reason on November 1, since which time he has been doing some part-time work for Respondent instructing Trainee Beyer. On the occasion of his resignation, Nickel was offered the job of chief operator but declined it. Zielesch, who announced his decision to renew his employment with Respondent on November 1, has been assigned the job of maintaining the equipment and is also acting as operator, but has received no increase in pay over the $1 per hour paid all operators, including Bowker Respondent explains that lie has not yet employed a new chief operator for the reason he has been unable to find a satisfactory person and in the meantime is getting along with only such supervision over the operators as Frechette can supply In the opinion of the undersigned the allegations of the complaint that the Respondent advised and urged his employees against affiliation with the Union, threatened that they would lose their bonus payment if they should join the Union, offered special privileges to employees if they refrained from joining the Union, made inquiries of employees concerning their union activities, or gave his employees a wage increase all for the purpose of discouraging activity on the part of the Union, are not sustained by substantial evidence The con- versations testified to by Bowker as- having been held with 1-Liftman and Frechette in 1938 and 1940 are not only too remote from the incidents of 1945 to have a material bearing on the issues here, but in themselves do not con- stitute violations of Section 8 (1) of the Act when considered in the back- ground and setting in which they were held The convem sation testified to by Bowker as having been held with Frechette in 1944 when he, on behalf of himself and the other operators, approached Frechette for the purpose of seek- ing a wage increase, in the absence of other substantial similar acts cannot be said to constitute a violation of Section S (1) even if Bowker's testimony is ac- cepted as a literal quotation of what transpired Bowker's testimony concerning his conversation with Frechette in the fall of 1944 when he attributed to Frechette the statement that if the company signed a contract with the Union the "bonus would stop" might conceivably be construed to be a threat if it is accepted that the language used by Frechette is the language quoted by Bowker. On the other hand, Frechette's testimony which does not attempt to deny that there was some conversation on the subject of the disposition of bonuses in the event a union contract would be signed, reflects a much more reasonable and to be accepted type of conversation to be held under such circumstances, bearing in mind that the so-called bonus was not a measurable amount but was definitely of the nature of a flexible gratuity habitually paid by Huffman over the life of the operation of the station And in these circumstances RADIO STATION WFHR 531 Frechette's testimony that his comments , if any, on the subject were to the effect that if a contract should be negotiated it could not include provisions for the bonus since that was a gratuity from Huffman , is persuasive This was not a threat, but a discussion , after the Union had; established itself, of what the proposed contract should cover The same is true with reference to the conversation between Bowker and Frechette immediately following the i eceipt of the Union 's proposed contract in early October 1945 . In short, in the opinion of the undersigned , the testimony of Frechette represents a more reasonable presentation of the conversation that took place and is credited as such This is also to some extent influenced by the incredibility of some of the testimony of Bowker in attempting to explain the installation of the con- centric cable in October 1945 insofar as it bore on the impossibility of making allowances for expansion and contraction of a 220 foot copper tube. While it is apparent from the record that Frechette was unwilling to en- thusiastically welcome the Union there is no showing that he warned or threat- ened the employees or took any other action which would justify the entry of an order against Respondent It is to be noted that the unit claimed to be represented by the Union in- cluded two operators amid their admitted supervisor who, with full authority over and responsibility for their conduct and activities , was responsible for the operation of the station with authority effectively to recommend disciplinary action against them. Respondent did not raise a question as to such eligibility of Bowker at the time, but the fact can hardly be ignored that, in a small organization of this type. Respondent and his general manager may be , expected and are entitled to exercise a wider degree of freedom in discussing the Union with this supers isor than they would if the same discussions had taken place with one of the ordinary non-supervisory employees . The contentions of the Board that the increase of wages announced on October 31 and made effective weeks thereafter was designed to discourage membership in the Union is without merit The occasion for this increase and the necessity for it was amply described by Huffman and was uncontroverted . It is therefore found that there is no substantial evidence that any of the acts alleged in the com- plaint reflecting restraint or coeicion of his employees have been committed by Respondent and that Respondent has engaged in no other unfair labor practices within the meaning of Section S (1) of the Act. From the foregoing findings of fact and upon the entire record in the case, the undersigned reaches the following CONCLUSIONS OF LAw 1 Radio Broadcast Technicians Local Union No 715, International Brother- hood of Electrical Workers, A. F of L, is a labor organization within the meaning of Section 2 (5) of the Act 2 Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3 Respondent has engaged in no unfair labor practices within the meaning of the Act Upon the foregoing findings of fact and conclusions of law and upon the entire record heiein, the undersigned recommends: 1. That the complaint herein be dismissed As provided in Section 33 of Article, II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from 532 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board Any party desiring to suomit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. R. N. DFNHAbf, Trial Examiner. Dated June 14, 1946.