KFSD-TV

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case the Petitioner in its organizing literature offered to each employee who returned a signed card to its headquarters a combina- tion key case and change purse. The Petitioner in its own literature carried a picture of this item which it described as "a handsome and useful" article. I have no doubt that my colleagues would dismiss this petition if it were established that even a nominal cash payment were made in ex- change for each of these signed cards. I, personally, can see no dif- ference in purpose or result where the card is purchased through an- other type of consideration having a definite cash value. Moreover, I am of the opinion that my colleagues would set aside an election wherein it was established that votes had been obtained in this manner. It seems to me, therefore, that the Board should be no less careful in this matter, since the petition is in reality a part of the Board's election processes and should, like the formal election itself, be kept as free as possible from any suggestion of fraud or misrepresentation. In the entire context of this case, therefore, I would dismiss the pe- tition both as failing to meet the Board's administrative criteria and, secondly, as serving to undermine and make a mockery of the ethical standards which this agency has consistently held must obtain in elec- tion matters. AIRFAN RADIO CORPORATION , LTD., D/B/A KFSD-TV and RICHARD CouRON, DIXIE D. LINDSEY AND JAMES J. CAMPBELL AIRFAN RADIO CORPORATION , LTD., D/B/A KFSD-TV and INTERNA- TIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, PETITIONER. Cases Nos. 21-CA-1864 and 121-RC-3404. February 10,1955 Decision and Order On August 27, 1954, Trial Examiner Martin S. Bennett 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 Inter- mediate Report attached hereto. The Trial Examiner also recom- mended that the election held on April 13, 1954, in Case No. 21-RC- 3404 be set aside. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 111 NLRB No. 97. KFSD-TV 567 rulings are hereby affirmed.' The Board has considered the Interme- diate Report, the exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act. We base this finding on the following conduct of the Respondent: (1) General Manager Merino's implied threat of reprisal against employee Choynacki for engaging in activity in behalf of IATSE; (2) the promulgation and maintenance of a rule prohibiting union activity on company property during nonworking hours; and (3) its own campaign, and its permission to NABET to campaign, against IATSE on company time and property while en- forcing the above rule.' We also find, in agreement with the Trial Examiner, that by the unlawful conduct described in (2) and (3) above, the Respondent unlawfully interfered with the election in Case No. 21-RC-3404.3 We shall therefore set the election aside. 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, Airf an Radio Corporation, Ltd., d/b/a KFSD-TV, San Diego, California, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Threatening its employees with reprisals because of union activities. (b) Restricting its employees by rule or otherwise from engaging in union activities on company property during nonworking time. (c) Unlawfully assisting National Association of Broadcast Em- ployees and Technicians, CIO, by permitting only that labor organ- ization to meet with its employees on company property.' 1 At the hearing, the Trial Examiner received in evidence as past recollection recorded the affidavit given to a Board field examiner on January 6, 1954, by witness Wayne Taylor The Respondent excepts to the ruling contending that this affidavit was obtained under duress As the record does not contain any evidence in support of this contention, the Trial Examiner 's ruling is hereby atRimed 2Johnson Loam iJon.er Co) potation, 110 NLRB 1955 3In view of the finding above, the Boaid deems it unnecessary to consider the applica- bility of the decisions in Ltisingston Shirt Co,poration, et al, 107 NLRB 400 and Peerless Plywood Company, 107 NLRB 427 , to the facts of this case The Board does not there- fore adopt the Tiial Examiner 's discussion of these matters The Trial Examiner found that the wage increases to McCoy , Phythian, and Horton, during the time that the question concerning representation was pending, did not violate the Act As no exceptions were filed to this finding, we adopt it without thereby passing on its merits S This Order does not apply to employees whom NABET represents in any unit not involidil in this case 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any like or related manner interfering with , restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, and 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) Post at its television studios at San Diego, California, copies of the notice attached hereto and marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty- first Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding 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 Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. IT IS FtRTIIER ORDERED that the election held on April 13, 1954, in Case No. 21-RC-3404 be, and it hereby is, set aside. IT IS FURTHER ORDERED that Case No. 21-RC-3404 be, and it hereby is, remanded to the Regional Director for the Twenty-first Region for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. I In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT threaten our employees with reprisals because of their union activities. KFSD-TV 569 WE WILL NOT restrict our employees by rule or otherwise from engaging in union activities on company property during non- working time. WE WILL NOT unlawfully assist National Association of Broad- cast Employees and Technicians , CIO, by permitting only that labor organization to meet with employees on company property. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Alliance of Theatrical Stage Employees and Mov- ing Picture Machine Operators of the United States and Canada, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and 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 organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. AIRFAN RADIO CORPORATION , LTD., D/B/A KFSD-TV, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding involves separate representation and unfair labor practice cases covering the employees of Airfan Radio Corporation, Ltd., d/b/a KFSD-TV, herein called Respondent, which the General Counsel of the National Labor Relations Board ordered consolidated on June 24, 1954, pursuant to 102.64 (b) of the Rules and Regulations of the Board. The unfair labor practice case, Case 21-CA-1864, is brought under Section 10 (b) of the National Labor Relations Act and is based upon a charge duly filed by various named individuals. Pursuant to said charge, the General Counsel of the Board issued his complaint, as amended on July 8, 1954, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, by various acts of interrogation, threats of discharge, and economic reprisals for activities in support of International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, herein called IATSE, by prohibiting employees from discussing IATSE outside of working hours; by denying access to the premises of Respondent to IATSE sympathizers and officials but granting such access to representatives of a rival labor organization; by in- structing supervisors to engage in surveillance of employee conversations pertaining to IATSE; by granting wage increases to several employees despite the pendency of an unresolved question concerning representation in Case 21-RC-3404, in order to influence the election results in that case; and by announcing on March 22, 1954, and installing on April 1, 1954, a health and accident insurance plan despite the pendency of the unresolved representation question, in order to influence the election result in same. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The representation proceeding stems from a petition originally filed by IATSE on November 16, 1953, seeking certification as the representative of all the employees of Respondent's television station, excluding watchmen, guards, and supervisors. An amended petition was filed on November 27, 1953, seeking certification in the same unit but, as an alternative, certification in a smaller undescribed unit should a contract with another labor organization constitute a bar to an election in a portion of the larger unit, as was later determined to be the fact. A second amended petition was filed on December 22, 1953. After a hearing held by a hearing officer, an election was directed by the Board on March 24, 1954, in a unit consisting of the unrepresented employees of the program department. The election was held on April 13, 1954, between 2 and 2.20 p. m. among 10 eligible voters. Of these, 5 voted for IATSE, none voted for National Association of Broadcast Employees and Technicians, CIO, herein called NABET, the Intervenor, and 4 voted against both participating labor organizations; 1 vote was challenged. On April 19 the Petitioner, IATSE, filed a number of objections to conduct allegedly affecting the results of the election. On June 1, the Regional Director recommended that the challenge to one ballot be overruled and that a hearing be directed by the Board on the objections. On June 21, no exceptions having been filed thereto, the Board adopted these recommendations As stated, the Regional Director on June 24, ordered the two cases consolidated for hearing. Copies of the charges, amended complaint, order directing hearing in the representation case, and order consoli- dating cases were duly served upon IATSE, NABET, and Respondent. Respondent thereafter filed its answer wherein it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at San Diego, California, on July 26 and 27, 1954, and at Los Angeles, California, on July 28, 1954, before Trial Examiner Martin S. Bennett, duly designated by the Associate Chief Trial Examiner. All par- ties save NABET were represented; participated in the hearing; and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce relevant evidence. At the close of the hearing the parties were given an op- portunity to argue orally and to file briefs. Oral argument was presented by the General Counsel and briefs have been received from the General Counsel and Respondent.' Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation, with its principal place of business and studios at San Diego, California, where it is engaged in the business of radio and television broadcasting for commercial purposes. It is affiliated with the National Broadcasting Company and broadcasts both radio and television network programs. The annual gross revenue of its television station is in excess of $200,000. I find that Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATIONS INVOLVED International Alliance of Theatrical Stage Employees and Moving Picture Ma- chine Operators of the United States and Canada (IATSE) and National Associa- tion of Broadcast Employees and Technicians , CIO (NABET), are labor organiza- tions admitting to membership the employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; sequence of events The issue herein is whether, following an attempt by IATSE to organize a group of the employees of Respondent's television station, late in 1953, Respondent unlaw- IIn his brief, the Geneial Counsel has moved for the first time to amend the complaint in two minor respects so as to more accurately portray the conduct relied upon by him herein ; Respondent opposes the motion as untimely. Inasmuch as this conduct as well as related factual matter was developed at the hearing without objection and litigated. and as it does not involve alleged violations of other sections of the Act so as to depart substantially from the theory of this complaint, I deem the matter as properly before me for consideration I therefore see no need for amending the complaint and deny the motion See American Newspaper Publishers Association v N. L. R B., et al, 193 F 2d 782 (C. A. 7), cert denied 344 U S 812, and Coca-Cola Bottling Company of Louisville, Inc, 108 NLRB 490. KFSD-TV 571 fully intruded itself into the picture and improperly curtailed the organizational ac- tivity as well as granted certain benefits calculated to affect the union activities of its employees This conduct in part is alleged to constitute unlawful interference, re- straint, and coercion and in part to have been such as to have improperly restrained and coerced employees in the exercise of a free choice in a Board-directed election. The original petition for certification as bargaining representative was filed by IATSE on November 16, 1953, and later amended. NABET intervened in that pro- ceeding and an election was ultimately directed by the Board on March 24, 1954, among the employees of the program department with both labor organizations on the ballot NABET, at the time of the direction of election, enjoyed a contractual relationship with Respondent covering a unit of its employees at the television sta- tion, apparently only in engineering classifications which are not directly involved herein, the record does not disclose when that contractual relationship came into existence, although it appears that the contractual status of NABET was in the pic- ture late in 1953 The election was held on April 13, 1954, between 2 and 2:20 p. m and IATSE received 5 of the 9 ballots counted. A tenth challenged ballot was later considered by the Board and the challenge was overruled, although it has not been counted. The evidence relied upon by the General Counsel in support of the allegations herein consists of the following (1) Wayne Taylor is a technical director on the staff of Respondent's television station and is in the engineer unit. He has no authority with respect to the hiring and firing of employees, makes no recommendations with respect thereto, and there is no evidence that he responsibly directs personnel There are a total of approxi- mately four employees in his employment category and I find that he is not a super- visory employee within the meaning of the Act. Taylor testified 2 that on Friday, November 20, 1953, the following conversation took place between General Manager Merino, of Respondent, admittedly a super- visor, and a group of employees who were on duty, including Taylor, Supervisors Bellwood and Raper, and several rank-and-file employees of the engineering depart- ment. This informal discussion, after treating with matters not significant herein, turned to the IATSE petition for certification of representatives. Merino stated that IATSE's petition had been turned down by the Board and that "We better forget this IATSE union and do it quick." Merino went on to state that employee Cher- naki,3 Respondent's art director, but a nonsupervisor, was one of "the people who had better avoid any more IATSE activity." Merino informed the group, which consisted substantially of technical or engineering employees, that employees of other departments were not to enter the engineering area and that engineers were not to enter other departments to talk about union' meetings. He stated his purpose was to "keep down the union talk" as the IATSE "recruiting going on was upsetting." Merino, on November 20, further stated that by keeping engineering personnel from talking with production personnel Respondent would stop "the union discussion and cut down the unrest." In an apparent reference to the NABET contract covering at least the nonsupervisory members of his audience, Merino said that so long as the contract was outstanding he "didn't want any other union men in the building or in the transmitter." Taylor elsewhere indicated that this was a reference to IATSE or IBEW, another AFL affiliate; the latter's role herein, if any, is not disclosed. Visi- tors, it may be noted, are customarily allowed in the station at all times save from 1 to 8.30 p. m. when they are excluded from the control room. On the following day, November 21, President Sharp spoke to the engineers on duty concerning the IATSE petition and claimed that the NABET contract was a bar to the broad unit it described, as was later determined to be the fact He announced his prospective appreciation "if people would come to me with their problems instead 2 His oial testimony herein was maiked by considerable hesitation, reluctance to re- spond to questions, absence of recollection, and has not been relied upon The findings herein are based upon his affidavit, given to a Board field examiner on January 6, 1954, which I received in evidence as past recollection recorded. Taylor, although claiming on the witness stand that the affidavit did not contain everything he told the field examiner, admitted that it contained "basically the thoughts that I gave him at that time" ; that the document, so far as it went, was reasonably accurate ; and that it "is my best recol- lection at that time" which, as is apparent, was over 6 months prior to the date of his oral testimony herein. Although under California procedure, it may be customary for the document to be iead verbatim in the recoid in lieu of its receipt as an exhibit, Anderson v. Souza, 38 C. 2d 825, I deem this a distinction of no substance See Wiginore par 754 (5) and Grove Shepherd Wilson & Kruge, Inc, et at, 109 NLRB 209 3 Appai ently a misspelling of Choynacki 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of going to another union." He also stated that the technicians (engineers) should not converse with employees of other departments in order that there would be "less of this union talk and things would quiet down." Either Merino on November 20 or Sharp on November 21, stated that certain discharged employees, the merits of whose discharges are not raised herein, were not to be allowed in the building and that engineers when not on duty were to get out of the building and not talk to anyone. (2) Charles Baldour was employed by Respondent through April 30, 1954, as production manager and was admittedly a supervisory employee. His superior was Program Director Jack Tolen. During the latter part of November 1953, Baldour approached General Manager Merino and stated that he had been advised by Tolen that Merino was displeased with his "union conversations " 4 Merino replied that Baldour was rather free with his speech around the station "concerning the union"; that Baldour should bear in mind that he was a representative of management; and that it was Baldour's duty to talk down any mention of unions to employees who raised the topic with him. After a nebulous reference by Merino that "the same thing" might happen to Baldour if he did not watch his step, Merino instructed Baldour that when he came upon any group of employees talking among themselves, "if I found out that they were talking about unions that I should break it up myself in some manner and then come and report to him about this group talk." Baldour testified initially that he considered the instruction as directed to talks during work- ing time but later indicated that what he may have had in mind was his own working time and not necessarily the working time of other employees. In the same talk, Merino referred to a meeting allegedly held with employees in the studio film room by an outside IATSE organizer. He stated that he intended to put a stop to such activity and that if it happened again he would see to it that the organizers "were thrown out." The record does not disclose any details concerning this alleged meeting. (3) Jack Tolen was Baldour's superior and program director until April 30, 1954. He testified vaguely and generally concerning a talk with Merino about unions. He initially placed the talk as taking place 8 weeks before the election of April 13, and therefore prior to the direction of election of March 24 as well, but added that he was most uncertain of the date and just did not know when it took place; he also indicated some uncertainty as to the content of the conversation. In any event, on this occasion according to Tolen, he informed Merino that he wished to stay out of the union activity. Merino replied that Tolen was a repre- sentative of management, had to take management's position, and was to report any union activities to him. He did instruct Tolen to speak to two named rank-and-file employees; to see to it that "these people do the right thing here and do not get mixed up in all this business"; and that it was Tolen's duty to convince them to do what management wanted. Tolen was asked specifically if Merino named any union in this talk but replied that he did not recall the specific mention of any and that he was uncertain whether IATSE was named Tolen added that on this occasion Merino stated, after a discussion of IATSE, that if any "union people" were in the studio, presumably outside organizers meet- ing with employees, Tolen was to break up the meeting or else inform Merino and Sharp of the meeting so that the latter two could break it up. Tolen further testified that the reference by Merino to JATSE was one by "inference" in view of the con- text of the conversation. (4) Douglas Brown, an employee of Respondent between mid-August and De- cember 3, 1953, testified that on one occasion in the latter part of November, he chanced to overhear a conversation between General Manager Merino and employee Jean Phythian. It is to be noted that the Regional Director recommended in his report on objections and challenged ballot dated June 1, 1954, that the challenge to the ballot of Phythian be overruled on the ground that she was not a supervisory employee and that the Board, in its order of June 21, 1954, directing a hearing on the objections, adopted this recommendation to which no exceptions had been filed. Brown testified that he chanced to stop at the desk of another employee some 15 feet distant from the location where he had previously observed Merino and Phyth- ian and that he heard "patches" of the conversation over an intervening 7-foot high partition. He was unable to hear Phythian's remarks, if any, but noted that she is customarily soft spoken. He heard Merino state that Phythian had been an em- ployee of Respondent for a good many years, that she had been well taken care of by Respondent, that Respondent "would appreciate no union activities from her," 4 The findings as to this incident are based upon the credited and uncontroverted testi- mony of Baldour . Respondent presented no testimony herein. KFSD-TV 573 and that "They would appreciate if she would not join it." When asked if Merino mentioned any specific union, Brown replied, "Yes he did. I believe he said IATSE." In repeating the conversation , Brown attributed to Merino the statement that Phythian had been in Respondent's employ for a good many years; she had not been in a union; and therefore "why should she join" at that time . Brown indicated that Merino had not necessarily referred to Phythian being "taken care" of by the Re- spondent, but did say she had been employed there; had experienced no difficulties with Respondent; had been happy; and asked "why should she join." (5) Jack McCoy worked for Respondent between August 1953 and the latter part of April 1954 as a director and floor manager, a nonsupervisory post. The General Counsel developed testimony concerning two pay raises given to McCoy. Although McCoy did request the first at an undisclosed date, he did not ask for the second which was given to him approximately 2 months before his employment was terminated and therefore about 11/ months before the election. McCoy learned of the second raise from the company bookkeeper and several days later, President Sharp, in a conversation with McCoy concerning the raise, stated, "It isn't very much but I wish you would keep it to yourself and just let things ride." In this connection the General Counsel also relies upon a wage increase given to employee Jean Phythian, a nonsupervisor, on February 16, 1954, under circum- stances not disclosed by the record as well as a wage increase given to Winter Hor- ton, Jr., a floorman and director , on January 1, 1954 . According to Horton, he did not solicit the increase but had assumed new duties shortly before. Sharp merely informed him that he was doing a good job and merited a raise. (6) President Sharp spoke to McCoy on the morning of April 13, some hours before the election held between 2 and 2:20 p. m. that day. In addition to the tim- ing of the conversation, discussed hereinafter, the General Counsel apparently also places reliance on the content thereof. Sharp , on this occasion , approached McCoy, who voted in the election, while the latter was at work. He discussed his work and asked McCoy whether he liked his work and if he had any complaints. Sharp stated that McCoy was "doing a good job" and that so long as he kept up his good work he would not have to worry about his job. Sharp went on to state, according to McCoy, that "after things were cleared up- I presume he meant the union election, and things were straightened out down there, that the raises would come bigger-he led me to believe that if I kept up my good work and things ran along smoothly and fine, that I would be apt to get a raise after things had been ironed out." McCoy was asked if Sharp mentioned the impending election in this talk, but replied that he did not recall whether or not Sharp had done so (7) The General Counsel attacks the promulgation of an insurance plan by Respondent, the precise details of which are not disclosed by the record. The testi- mony of Director and Floorman James Wade discloses that some talk on this sub- ject took place among the employees of Respondent who held several meetings during December 1953 or the previous month. It appears that these meetings were in no way related to union activities . A group of employees thereafter signed a petition to Respondent, either in December 1953 or January 1954, asking Respond- ent to install an insurance plan. A plan was formulated and announced by President Sharp, General Manager Merino, and a representative of an insurance company to the employees. Although the complaint alleges that it was announced on March 22 , effective April 1954, no definitive testimony was adduced with respect to the dates. Employee Wade vari- ously fixed the date of its announcement as subsequent to the first of the year (1954); during January or February 1954; and from 3 to 5 weeks before the election of April 13. Employee Choynacki placed the date of announcement of the plan as at least 1 month before the election. The plan, it may be noted, applied to all em- ployees of Respondent both in and out of the unit involved in the representation case. (8) John Choynacki is the art director for Respondent. At I p. m. on the day before the election, this being approximately 25 hours prior to the opening of the polls, President Sharp invited Choynacki to his office; Respondent's counsel herein was also present. Sharp stated, according to Choynacki, that he wished to point out the advantages of his side of the story concerning the election and that "the company would take care of the employees"; Choynacki also testified that Sharp "wanted to know if I thought the company would take care of the employees." Choynacki did not recall his own reply. Sharp did state that Respondent was going to "take care" of the employees but that it was impossible at the time "because of the fact that the election was coming up"; that it was "Impossible to get anybody increases"; and, in response to a leading 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question by the General Counsel, that Sharp could not grant any wage increase at that time because it would be called coercive. Choynacki also testified that Sharp brought up the subject of the insurance plan, pointing out that it was Respondent who had previously applied for it, as well as pointing out the dates that the action had been taken. (9) The next evidence relied upon by the General Counsel relates to certain conversations with employees on the day prior to the election The conversation by Sharp with McCoy, at the latter's place of work, has been previously set forth. The conversation with Choynacki at 1 p. in. in the office of President Sharp the day before the election, set forth above, is expressly not relied upon by the General Counsel insofar as its timing is concerned. Employee Wade was summoned to the office of Sharp on the day before the elec- tion at a time he had considerable difficulty in fixing He originally placed it as between 1 and 3 p. in., but later stated that it might have been as early as 1:30 p. in. and as late as 3-30 p m.; that it was prior to 2 p. in ; and that he doubted whether it was prior to 2 p.m. On this posture I am unable to find, on his testimony, that the speech took place later than 2 p in , the hour on the following day that the voting commenced. In this talk, Sharp announced that he wished to speak to Wade about the elec- tion and asked whether Wade knew the issues that were involved. It appears that Wade had been discharged by Respondent 11/2 or 2 weeks earlier, but had heard informally that the discharge had been rescinded. On this occasion Sharp asked whether Wade knew of the decision to rescind the discharge, and Wade indicated that he had. Sharp did not ask Wade how he intended to vote in the election or concerning his sympathies, but Wade volunteered to Sharp the information as to how he intended to vote, stating that he "wasn't going to vote for any union at that time " Sharp in effect stated that Wade could vote as he pleased. Sharp did refer to the insurance plan, stating that it had been put in for the benefit of the employees and that Respondent was bearing a substantial portion of the cost. Floorman and Director Horton, who voted in the election, was not summoned to the office by Sharp but, knowing that Sharp had spoken to others, took the initia- tive and approached the office. He then asked Sharp whether he wished to see him, Sharp proceeded to invite him in Although Horton attempted in his testimony to portray the episode as being more informal than it patently was, as well as to portray himself as the one who raised certain topics of discussion, rather than Sharp, testimony to which I do not attach reliance, the fact is that Sharp did not impose his presence or remarks upon Horton. I therefore place no reliance herein upon the Sharp-Horton talk, the content of which, in addition, in no way supports the allegations of the complaint herein The remaining interview was that of employee Virginia Valentine between 4 and 4:30 p. in. on the day before the election and was conducted in the presence of Respondent's counsel. Sharp stated that he realized he was not permitted to convene all the employees for a meeting, apparently a reference to Board policy, but added that he could speak to them individually and was doing so He stated that he appeared to be regarded with some disfavor because the insur- ance plan had allegedly come into existence after commencement of the representa- tion proceeding, but told Valentine that he wished to prove to her and others that he had actually started it prior to December. He stated that he had not brought up the plan to gain votes and that he could prove he had started it in the prior December; Sharp proceeded to show her certain forms he had used in this connec- tion at that time. Sharp asked Valentine if she was satisfied with her job and she replied that she was except for the fact that she needed more help; he replied that he would see to it that she got additional assistance and wrote a note to that effect to General Manager Merino. Sharp also told Valentine that he did not know how she intended to vote, but that she knew how he wanted the election to come out. (10) The final item of evidence herein consists of a meeting which took place in Respondent's television station between two men, identified only as representatives of NABET, and a group of Respondent's employees, primarily of the program department. This evidence is presented by the General Counsel as evidence of a policy discriminatorily favoring NABET in contrast with Respondent's alleged in- structions to employees in November of 1953 to exclude TATSE representatives from the building. On or about April 9, 1954, 4 days before the election, two men, identified only as representatives of NABET and whose precise status is not established by the record, appeared in the property room of Respondent's television station. The vari- ous members of Respondent's program department, the unit involved in this pro- ceeding, drifted in and out, although it appears that as many as four were there at KFSD-TV 575 one time One of the witnesses who testified concerning the incident, McCoy, believed that 2 engineers from the other bargaining unit may have been present, but 2 other witnesses, Tolen and Baldour, did not place any engineers on the scene. Production Manager Baldour who had been instructed in November by Merino, to break up any union discussions, chanced upon this informal meeting in which the NABET representatives were discussing the election, pointing out the desirability of NABET adherence, and also indicating what NABET could do for the em- ployees. Baldour promptly reported the matter to Merino, who stated that he would proceed to the prop room "in a couple of minutes and take care of it." After 20 minutes had elapsed, Merino proceeded to the prop room and Baldour, together with Program Director Tolen, followed several minutes later. The two men dis- covered both Merino and Sharp present as well as the NABET representatives and the personnel of Respondent's production department. Merino had his arm about one of the NABET representatives and was laughing. Neither Tolen nor Baldour heard any statements made by Sharp or Merino, whom they described as standing by and observing the proceedings. According to McCoy, Sharp entered the room while the NABET men were in the midst of an attempt to persuade the employees to vote for NABET in the election. The two representatives promptly called Sharp over and asked his opinion, whereupon Sharp stated, "Don't worry. Go ahead and talk to the people. I will talk to them later" Sharp then left the scene. B. Conclusions 1. As to Case 21-CA-1864 (a) Turning initially to the conversations held with employees on November 20 and 21, 1953, by General Manager Merino and President Sharp, I am of the belief and find that they were protected in some respects and unlawful in others. While Merino's statement that the employees had "better" forget IATSE "and do it quick" impresses me as somewhat ambiguous and is therefore found not to be coercive, I view differently his subsequent reference to John Choynacki as one of the "people who had better avoid any more IATSE activity." I find that by singling out Choy- nacki for specific attention in the indicated manner, Merino was clearly holding out the possibility of reprisal against Choynacki because of his IATSE activity and the statement was therefore coercive Merino's statement that employees of the engineering department were not to enter other departments and vice versa for the purpose of discussing union meet- ings, is, on this record, too broad While it is entirely understandable that this employer may have wished to avoid the disruption caused by two labor organiza- tions simultaneously organizing its employees , and I see nothing wrong in instruc- ing employees to stay out of other departments when at least some of the employees involved were not on their free time, Merino went further in this instance The record does not definitely disclose whether the respective departments had free time simultaneously during working hours but the instruction was broad enough to en- compass such time as well as time at the start and close of the workday. To the extent that Merino's instruction was applicable to times when all employees in- volved were off duty, I find it coercive of their rights under the Act. Although Merino advanced to the men as a basis for the rule that the IATSE activity in the studio was "upsetting" I believe the burden was on Respondent to establish herein the reasonableness for the rule. It is well established that, absent proof of special circumstances, employees may utilize nonworking time for union activities if they wish, such proof is lacking in this record Similiarly viewed as unlawful is the instruction to the employees to get out of the building when not on duty which was motivated by the "upsetting" IATSE activity. Entitled to weight herein is the fact, as appears below, that Respondent did not similarly regard activity in behalf of NABET which was directed to employees outside the unit represented by NABET. (b) While, standing alone and in another context, Respondent may have been justified in issuing instructions to keep outside representatives of TATSE out of its premises, there are other factors in this case which place the instructions in another light As Taylor testified, other visitors are allowed on the premises, the only re- striction being that they are not allowed in the "control room section" between 1 and 8 30 p. m. And Merino's remarks on November 20 made it clear that he was not extending the prohibition on visiting to NABET representatives. Thus, IATSE representatives were singled out for this treatment which I find to be discriminatory and unlawful 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, as set forth, when NABET representatives appeared in the studio on April 9, but 4 days before the election, Respondent's president and general manager approved of their presence, took no steps to exclude them, and, in fact, President Sharp authorized them to speak to the employees. It is significant that the group being thus propagandized by the NABET representatives on working time consisted primarily of program department employees who were to vote in the election. This is therefore not an instance of NABET entering the premises in order to service the employees it then represented in the engineering department, but is rather an in- stance of Respondent applying the discriminatory policy it promulgated in Novem- ber. Stated otherwise, Respondent from November 1953 on excluded only TATSE representatives from the studio, but in April 1954, ratified the attempt of a competing labor organization, NABET, to propagandize the employees 4 days before the elec- tion, an application of discriminatory standards which I find to have been unlawful assistance to that organization. International Association of Machinists v. N. L. R. B, 311 U. S. 72, 78-80, Harrison Sheet Steel Company v. N. L. R. B., 194 F. 2d 407 (C. A. 7) ; and Sterling Cabinet Corp., 109 NLRB 6. (c) The General Counsel claims herein that Merino unlawfully instructed two supervisory employees, Baldour and Tolen, to engage in surveillance of IATSE ac- tivities. In November, Baldour was reminded by Merino that he was a member of management and was instructed to break up any talks about "unions" and report such incidents to Merino. His testimony is conflicting with respect to whether the instruction was directed to the employees' working time or not; I do not find there- fore that it applied to nonworking time. Tolen was most uncertain of the date of his talk with Merino but it was apparently some weeks prior to the election. Merino reminded Tolen as well as that he was a representative of management, to report any union activities to Merino, and to speak to two named rank-and-file employees and urge them to follow management's desires with respect to unionization. Tolen was instructed to break up any meetings by outside organizers or inform Merino and Sharp so that they might do so. The evidence will not support a finding that Merino's talks with Tolen and Baldour constitute unlawful conduct. Respondent was within its rights in requiring the al- legiance of supervisory personnel in its relations with labor organizations. Inasmuch as Respondent was entitled to give its side of the question to employees, it was equally entitled to have its supervisory personnel do likewise. On this record, Respondent was also entitled to have its supervisory employees break up any meetings, union or otherwise, during working hours and to report the matter to it. I do not deem this to be tantamount to an instruction to engage in unlawful surveillance of union activities, as the General Counsel contends. (d) The General Counsel contends, as stated in the complaint, that Respondent warned employee Jean Phythian that her treatment by Respondent would become less favorable if she joined IATSE. However, the record demonstrates firstly, that the conversation in question took place in November and was overheard only in part by witness Douglas Brown. Secondly, the content of the conversation, as re- ported by Brown, does not support the allegation of the complaint. Merino, ac- cording to Brown, commented on Phythian's tenure with Respondent, the fact that she had been "well taken care of" and that Respondent would "appreciate" her ab- stinence from union activities. A subsequent repetition of the conversation by Brown was even more innocuous. I find that the foregoing does not support this allega- tion of the complaint and more specifically that Merino's remarks on this occasion were protected. (e) The complaint alleged that wage increases to three employees were given for the purpose of influencing the result of the election. It is the burden of the Gen- eral Counsel herein to establish not only that the wage increases were granted but that, on a preponderance of the evidence, they were unlawfully motivated. In this case, employee McCoy asked for one raise and it was granted; he received an unso- licited second raise sometime in February 1954. This raise was accompanied solely by a comment from President Sharp that the raise was small and that Respondent wished him to keep it to himself. Employee Horton was given an unsolicited pay raise on or about January 1, 1954, shortly after his duties increased. Employee Phythian was given a wage increase on February 16, 1954, under circumstances not disclosed by the record. This evidence will not support a finding adverse to Respondent. (f) Also failing of proof is the allegation of the complaint that Respondent un- lawfully installed a health and accident insurance plan while an unresolved question concerning representation was pending. The evidence demonstrated however, that in December 1953 or earlier, a group of employees spontaneously became interested in such a plan and held several meetings unrelated to union activities to further the KFSD-TV 577 idea. A written petition for such a plan was submitted to Respondent by this group of employees either in December 1953 or January 1954. Respondent thereafter formulated such a plan and announced it to the employees on a date variously esti- mated as falling between the first of the year and 3 to 5 weeks prior to the election. The plan applied to all employees of Respondent, both in and out of the unit involved in this proceeding. In view of the sequence of events, the record will not support a finding that the plan was installed and announced for the purpose of interfering with the pending election. Respondent's conduct herein is at the very least equally sus- ceptible of the explanation that Respondent was complying in due course with a benefit requested by employees. I find that the evidence does not preponderate in favor of this allegation of the complaint. (g) Another conversation presented herein for evaluation was between President Sharp and employee Jack McCoy on the morning of the election. Although this is attacked herein primarily because of its timing, the facts of the conversation were litigated and I deem them to be before me. President Sharp approached McCoy on the morning of the election; discussed his work, stated that McCoy was doing a good job and that with continued good work he had nothing to worry about; and sought to ascertain whether McCoy had any complaints. McCoy apparently having none, Sharp went on to state that after "things were straightened out down there that the raises would come bigger" and that McCoy "would be apt to get a raise after things had been ironed out." However, as McCoy was unable to state, in his testimony, whether or not Sharp had mentioned the impending election, the record will not support a finding that Sharp unlawfully attempted to influence McCoy's vote in the election by promising a wage increase. The incident is equally susceptible of the explanation that Sharp was merely, as he had the right to do, setting forth his prog- nosis of things to come. I find, therefore, that the evidence does not preponderate in favor of a finding that Sharp's remarks, as such, were unlawful on this occasion. (h) In a similar status is a conversation between Sharp and employee John Choynacki approximately 25 hours before the election. Sharp asked Choynacki if he thought Respondent "would take care" of the employees and added that it was impossible to grant anyone wage increases because of the impending election; Sharp stated that such an act would be deemed "coercive." He pointed out that Respondent had established an insurance plan for the employees. Insofar as Respondent took credit for what it had done for the employees, namely establishment of the insur- ance plan, I fail to see anything improper in its conduct. Similarly, by pointing out that it was unable, in view of the impending election to grant wage increases, Re- spondent was merely stating established Board policy. I do not think that this con- versation, although somewhat close to the line, will support a finding that McCoy was offered a wage increase so as to affect his vote in the election, a sine qua non to rendering the conversation unlawful. Similar conversations with employees Wade, Horton, and Valentine, set forth above, and held shortly before the election, con- tained nothing remotely resembling an unlawfully motivated promise of a benefit, and as a result no adverse finding is made with respect to their content. (i) The question is presented whether President Sharp's talk with employees on the day of the election and the preceding day fall within the scope of the exception specifically preserved in the rule laid down by the Board in Livingston Shirt Corpo- ration, et al., 107 NLRB 400, where the Board stated: Accordingly we are convinced that, absent special circumstances as hereinafter indicated there is nothing improper in an employer refusing to grant to the union a right equal to his own in the plant. We rule therefore that, in the absence of either an unlawful broad no-solicitation rule (prohibiting union access to com- pany premises on other than working time) . . . an employer does not com- mit an unfair labor practice if he makes a pre-election speech on company time and premises to his employees and denies the union's request for an oppor- tunity to reply. [Emphasis supplied.] ' It has been found that Respondent promulgated a rule prohibiting IATSE access to its premises on other than working time. Has Respondent as a result thereof come within the exception set forth in the Livingston decision by, in the face of such a rule, engaging in preelection speeches on company time and premises? The preelection speeches considered by the Board in the Livingston decisicn as well as in the Peerless Plywood Company case, 107 NLRB 427, were speeches made to massed employees. Although the talks in the present case were made to em- ployees individually, I see no basis for a distinction on that score. If it is improper for an employer to electioneer, under the indicated circumstances, before a substan- tial number of employees en masse, it would appear to be equally violative of the Act, if not more so, to single out a group of employees for individual and specialized 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attention I so find. See- United Biscuit Co. of America, 101 NLRB 1552, 1565, enfd. 208 F. 2d 52 (C. A 8), cert denied 347 U. S. 934. The next issue is whether or not Sharp's conduct constituted electioneering as such. In other words, did he expound his point of view concerning the election to Re- spondent's employees, although done in a noncoercive manner? Turning to Sharp's actual conduct, his talk with McCoy, although not found to contain any promise of benefit, indicated that the timing of the talk was motivated by the impending elec- tion. His talk with Choynacki, referring to the impossibility of granting a wage increase because of the impending election as well as to the 'insurance plan installed by Respondent, clearly constituted electioneering as I understand the term. In his talk with employee Wade on the afternoon before the election, Sharp flatly stated he wished to discuss the election and proceeded to do so In his talk with employee Valentine, Sharp discussed the insurance plan Respondent had installed, Valentine's working conditions, and made a clear reference to the election, namely, that she could appreciate how he wished the election to turn out. It is noteworthy herein that these four people constituted 40 percent of the unit involved in the election. It is true, as found. that none of the foregoing talks were coercive as such. How- ever, if I correctly interpret the exception left open in the Livingston decision, Re- spondent has engaged in electioneering in the face of an unlawful broad no-solicita- tion rule it follows therefore, on the basis thereof, that by speaking to the above- named employees, Respondent has further engaged in unlawful conduct. See N L. R B. v American Tube Bending Co, 205 F. 2d 45 (C A 2), and Blue Bell, Inc., 107 NLRB 514 5 2 As to Case 21-RC-3404 In addition to such of the foregoing conduct as is pertinent herein, there is also raised the possible application of the Peerless Plywood rule wherein the Board for- bade all speech-making on company time to massed assemblies of employees when conducted by an employer within 24 hours prior to the election. In the present case, President Sharp spoke to at least two employees, McCoy and Valentine, within 24 hours prior to the election, they constituting 2 of the 10 in the Union, or 20 percent thereof. The record will not permit a finding that the conversations with the others took place within the 24-hour period. I would assume that the Peerless Plywood rule is applicable, all other conditions being met, to a situation where a speech is made to 20 percent of a complement of personnel who are massed for the occasion. In this case, although the two employees were spoken to separately, they constitute a significant percentage of the complement of per- sonnel, particularly in view of the vote in this election, where the prounion vote led the antiunion vote by 5 to 4 but did not receive a majority due to a tenth chal- lenged ballot. On balance, although the case is not a strong one in terms of numbers of personnel as well as the methods utilized by Respondent, I believe and find that the facts bring this case within the logical purview of the Peerless Plywood doctrine. See Texas City Chemicals, Inc., 109 NLRB 115; Fletcher-Eichman Com- pany, 109 NLRB 170, and Ottenheimer Bros Mfg Co., Inc., 109 NLRB 183. See also Foreman & Clark, Inc. v. N. L R B, 215 F. 2d 396 (C. A 9). There is the additional factor of Respondent's unlawful imposition of a rule not only restricting the organizational activity of IATSE during working time, but in addition by granting favorite-son treatment to NABET. This discriminatory rule, insofar as the record indicates, continued up to the election. I believe and find that it not only created conditions improperly curtailing the organizational activity of IATSE during a period extending beyond the direction of election and up to the date of the election, but that it also was a restriction reasonably calculated to affect the results of the election, particularly in view of the preferential treatment demon- strated to NABET. See Johnston Lawninower Corporation, 107 NLRB 1086. In view of the foregoing considerations, I find that Respondent's conduct improperly interfered with the election herein and will recommend that it be set aside.6 6I ain not unawaie of the recent decision of Al L B B v. F W Woolwotit, 214 F. 2d 78 (C A 6). but I deem the Boaid decision in the Livingston case to be binding upon nie 6 Tluree of the five objections to the election by IATSE aie not pressed herein by the General Counsel Although the i ecoinmendation to set aside the election is predicated on conduct raised only inferentially by the iennamnig two objections, the Board has stated in analogous ciicumstances that the light of employees to express their choice in a poll entnely flee of interference from any source is controlling and has proceeded to considei improper election conduct The Ci os.s Company, 107 NLRB 1267; Rainer Die Fixture Co, 107 NLRB 1332 , and Hainiltoi Watch Company, 107 NLRB 1608 MICHIGAN LUMBER FABRICATORS, INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 579 The activities of Respondent, set forth in section 111, above, occurring in con- nection with its operations, described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices. I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that the election in Case 21-RC-3404 be set aside. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (IATSE) and National Associa- tion of Broadcast Employees and Technicians, CIO (NABET), are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair laboi practices within the meaning of Section 8 (a) (1) of the Act 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act [Recommendations omitted from publication I MICInGAN LUMBER FABRICATORS. INc. and LOCAL 128. I NTERNATIONAL UNION, UNITED Au,roiroBiir; WoR ii ris of, A-inlA cA, AFL. Case No. 7-0'4 -901. February]O, 1955 Decision and Order On September 1I, 1954, Trial Examiner IV. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, recommending that the complaint herein be dismissed. as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel filed exceptions r to the Intermediate Report with a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except as modified herein. Wire find, as did the Trial Examiner,' that the work stoppage of March 19, 1953, during the working hours was not for the purpose of I No exceptions were taken by the General Counsel to the Ti ial Examiner s recom- mendation that the complaint as to Arattice should be dismissed 2 In agreeing with the Tual Examiner's finding that the concerted activity in which Fritz was engaged was not protected, we do not rely on his finding that "the Union de- 111 NLRB No. 95. 334050-55-vol 111-38