Radio Broadcast Technicians

RADIO BROADCAST TECHNICIANS 507 Radio Broadcast Technicians, Local Union No. 1264 of the Inter- national Brotherhood of Electrical Workers , AFL-CIO, and J. C. Burns, its Business Agent and WKRG-TV, Inc. Case No. 15-CB-9223. April 1, 1959 DECISION AND ORDER On August 21, 1958, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in any unfair labor practice and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed a brief in support of the Intermediate Report.:' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in these proceedings, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 In agreement with the Trial Examiner, we find that the General Counsel has failed to establish by a preponderance of the credible evidence that the Respondents have violated Section 8(b) (1) (A) of the Act.3 [The Board dismissed the complaint.] The Charging Party requested oral argument . The request is hereby denied as the record , exceptions, and briefs , adequately present the issues and positions of the parties. 2 Member Fanning concurs in the result reached herein only for the reasons expressed in his dissenting opinions in Andrew Brown Company, 120 NLRB 1425 , and Machinery Overhaul Company, Inc., 121 NLRB 1176. 3 The Charging Party asserts that the Trial Examiner was biased and prejudiced pri- marily because he resolved factual conflicts in favor of the Respondents ' witnesses and against the General Counsel's witnesses . We find this contention to be without merit. ". . . [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of n trier of fact." N.L.R.B. v . Pittsburgh S.S. Company, 337 U . S. 656, 659. Moreover, in accord with the Board's established policy not to overrule a Trial Examiner's resolutions as-to credibility except where the clear preponderance of all the relevant evi- dence convinces it that the resolutions were incorrect , we find, contrary to the General Counsel's and Charging Party's contention , no basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3). 123 NLRB No. 55. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges, but the answer of the Respondents denies, that since July 31, 1957, the Respondents have committed unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Relations Act, in that they attempted to force or require WKRG- TV, Inc., the owner and operator of a radio and television station in Mobile, Alabama, to recognize, bargain with, and enter into a contract with the Re- spondent Union as the exclusive collective-bargaining agent of WKRG's engineer- technicians and film department employees, by picketing WKRG's offices and studios and by urging WKRG's customers and others to cease or refrain from doing business with WKRG, although at no time since July 16, 1957, when it lost a consent election conducted by the Board's Regional Director among these employees, has the Respondent Union been the majority, statutory, or certified representative of any of WKRG's employees. Pursuant to notice, a hearing was held in Mobile, Alabama, on March 18, 19, 20, and 21, 1958, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, WKRG, and the Respondents appeared by counsel and were afforded full opportunity to be heard, to examine and cross- examine witness, and to introduce evidence bearing upon the issues. Since the close of the hearing, the Trial Examiner has received briefs from each of the parties. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER WKRG-TV, Inc., an Alabama corporation with its- principal office and place of business in Mobile, Alabama, owns and operates radio station WKRG-AM-FM and television station WKRG-TV in Mobile, Alabama, and is affiliated with the CBS Network. During the calendar year 1957 WKRG received in excess of $500,000 for its broadcasting and telecasting services. The Trial Examiner finds that WKRG-TV, Inc. is engaged in a business affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Radio Broadcast Technicians, Local Union No. 1264 of the International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Undisputed general facts and the issue To a great extent, the basic background facts have been presented by stipulation or uncontradicted evidence and are therefore undisputed. In all, there are six radio stations and two television stations operating in the Mobile area, including WKRG's radio station and its television station. For a number of years, the Respondent Union has held, and still holds, separate con- tracts with each of these stations other than WKRG's, as the exclusive bargaining representative of their respective units of engineer-technicians. Each of these contracts has provided (among other things) that the radio stations' control boards are to be manned only by engineer-technicians. Until the end of March 1957, the Respondent Union was also recognized by WKRG as the exclusive bargaining representative of its radio and television engineer-technicians under contracts the last of which was to expire by its terms on June 1, 1957, unless renewed by the parties. Each of these contracts with WKRG, like those with the other stations, has contained the provision for the exclusive manning of the radio control boards by engineer-technicians. In September 1955, William Baskerville, who had operated radio stations in other sections of the country, became the general manager of WKRG's AM and FM station. In November 1955, Baskerville called and held several conferences with the managers of all the other radio and television stations in the Mobile area in an attempt, as he put it in his testimony, "to get relief from" the Respondent Union, with whom they all had contracts. One of his specific proposals was that RADIO BROADCAST TECHNICIANS 509 they eliminate the existing practice of using only engineer-technicians on the radio control boards and substitute a combination or "combo" operation whereby an- nouncers as well as technicians would operate the boards. Since 1955, Baskerville has been asked by the other general managers what he has done with respect to this proposed change and has, on a number of occasions, discussed the matter with some of these men individually. WKRG did nothing toward effecting such a change, however, until, in negotia- tions with the Respondent Union in the spring of 1957 for a renewal of their last contract, WKRG proposed that a "combo" operation be permitted, and the Re- spondent Union refused. This was the issue upon which these negotiations foundered. For, on March 28, 1957, according to the testimony of Mortimer Freeman, one of WKRG's attorneys, Freeman told Respondent James C. Burns (the Respondent Union's business agent) that President Kenneth R. Giddens of WKRG doubted the Respondent Union's majority and wanted an election before continuing negotiations, although Freeman believed (as he also told Burns) that he could "prevail upon Mr. Giddens to obviate the necessity of [an] election and go ahead and renew [the] contract" if the Respondent Union would agree to a "combo operation." Burns rejected this solution, and WKRG and the Respondent Union thereupon exchanged mailed notices of their intentions to terminate their contract on May 31 or June 1, 1957. In its letter, dated March 28, WKRG expressed its doubt as to whether the Respondent Union represented a majority of the engineer-techni- cians and stated that certification by the Board would be required before there would be any further negotiations. In its letter, dated March 30, the Respondent Union withdrew from the negotiations, stating that an attempt to reach an agree- ment had proved to be "futile." On April 10, 1957, the Respondent Union filed charges against WKRG with the Board's Regional Director, alleging a refusal to bargain on the part of WKRG in violation of Section 8(a)(1) and (5) of the Act. On April 29, 1957, WKRG filed a petition with the Regional Director in Case No. 15-RM-97, asking for an investigation of the question of representation under Section 9(c) of the Act. Following a notice from one of the Board's field examiners to WKRG that the representation petition would not be processed until there had been a disposition of the unfair labor practice charge, Attorney Freeman met with Respondent Burns and, as a result, the Respondent Union's charges were withdrawn and a consent- election agreement was executed. At the election held by the Regional Director on July 16, 1957, the Respondent Union was rejected as exclusive bargaining representative by the vote of a majority of WKRG's engineer-technicians who constituted the stipulated appropriate unit. Accordingly, the Regional Director certified this fact to the parties and, since the Respondent Union had been the only labor organization on the ballot, he further certified that no labor organization was the exclusive bargaining representative of WKRG's employees in the appropriate unit, within the meaning of Section 9(a) of the Act. At a meeting in the latter part of July 1957, the Respondent Union's members authorized a campaign to induce WKRG's advertisers to transfer their advertising to the other Mobile stations with whom the Respondent Union still had contracts, and turned over the entire matter to the executive board. Accordingly, the Respondent Union thereupon began attempts to induce a boycott by the public of the products or services of advertisers on WKRG and to induce the advertisers to transfer their advertising to the local "union" stations. Acting principally through the Respondent, Burns, its business agent who was made chairman of its "adver- tising committee," its efforts in this direction began approximately on July 22, 1957, have continued up to the time of the hearing, and have consisted of: (1) Letters to WKRG's advertisers, setting forth briefly the Respondent Union's. version of its bargaining history up to and including its loss of recognition as. bargaining representative as the result of the election. Attributing the breakdown. of contract negotiations in March to WKRG's asserted insistence that the Re- spondent Union "make concessions which would have given [WKRG] an unfair- competitive advantage over all of the other stations in Mobile and would have seriously weakened and undermined the position of its union employees," the letter made the following request: In an effort to try to preserve the decent wages and working conditions. that we have been able to establish through good-faith negotiations at one television and five radio stations covering the greater Mobile-Prichard area, we respectfully request that you cooperate with us to the extent of placing: your advertising with a union station or stations. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .(2) Visits by Respondent Burns, and in some instances also by other members of Respondent Union's "advertising committee," upon approximately 100 or 125 of WKRG's advertisers. ( 3) Visits to the membership meetings of the various unions in the Mobile area. (4) The posting, on the bulletin boards at the halls of these unions, of notices setting forth the names of firms who "persist[ed ] in advertising over WKRG, the only Non-Union Station in Mobile and Prichard." (5) The distribution among union members and their friends of small cards which to be were left with WKRG 's advertisers and which stated: WKRG NON-UNION AS A MEMBER OF ORGANIZED LABOR AND A FRIEND OF YOUR .FIRM, I REQUEST THAT YOU REFRAIN FROM ADVERTISING OF THIS ONE NON-UNION STATION. THANK YOU. (6) The distribution of automobile stickers: "WKRG-RADIO-TELEVISION -NON-UNION." (7) The distribution among union members and their friends , and the eventual mailing to WKRG's advertisers, of petitions which stated that WKRG's radio and television stations were the only ones in the Mobile area which were "operating non-union," and asked that the advertiser "discontinue [his] support of WKRG by refusing to further advertise over its facilities." (8) The distribution of post cards addressed for mailing to various advertisers on WKRG and containing essentially the same message as that set forth in the petitions. In the beginning of August 1957, after the Respondent Union's "advertising committee" had visited a number of advertisers and the membership meetings of other Mobile unions , the Respondent Union's members decided to picket WKRG in furtherance of its objective because, as reported by their committee, the advertisers and the other unions' members "couldn't understand why we were calling on the advertiser with no picket line. It didn 't make sense to them." Accordingly, on or about August 15, 1957, the Respondent Union began picketing in front of the entrance to WKRG's studio and office in Mobile. At any given time, not more than two pickets patrolled the sidewalk with signs reading: "W.K.R.G.-NON-UNION-ENGINEERS & ANNOUNCERS-LOCAL UNION 1264-I.B.E.W.-A.F.L.-C.I.O." All of these pickets were members of the Respondent Union but none was an employee of WKRG. At first , the picketing was without definite schedule, with a day or two missed occasionally. For the 4 or 5 months immediately preceding the hearing , however, the pickets were there every weekday from 8:30 to 10:30 in the morning and from 3:30 to 5:30 in the afternoon, when traffic was heaviest. Under instructions from Business Agent Burns, the pickets did not speak to any of WKRG's employees and when a delivery man refused to cross the picket line ( on the single such occasion shown by the record), his union was informed by the Respondent Union that it was its intention merely to publicize the fact that WKRG was "non-union" and not to keep people from crossing the picket line. The various other Mobile unions were also informed of this by the Respondent Union and the pickets were instructed by Burns to give only this answer to any inquiries made of them , after the secretary of President Giddens of WKRG came up to Burns on the picket line and asked him what the purpose of the picketing was. There is evidence of only one incident-and that was denied by the picket and is accordingly hereinafter dis- cussed-when a picket allegedly violated these instructions by telling a passerby "that they were going to keep on picketing until they got a union there." Whatever objective the Respondent Union may have had for its picketing and its other conduct affecting WKRG's advertising, it is undisputed that, since the loss of the election in July 1957, it has made no request that WKRG bargain with it, or recognize it as the exclusive bargaining representative of any of WKRG's employees. Nor has it solicited membership applications from any of these employees. Several other undisputed facts should also be noted. Although WKRG had planned for several years to initiate a "combo" operation in its radio station and had sought the support of the other stations against the opposition of the Re- spondent Union, it did not actually make the change until January 25, 1958, 6 months after the Respondent Union had lost the election . However, within 2 or 3 weeks after the election, Business Agent Bums received an oral request from the manager of WKIB, one of the radio stations in Prichard , requesting a change in its contract with the Respondent Union: in order to permit WKIB the same RADIO BROADCAST TECHNICIANS 511 advantages in its operations as were being "enjoyed" by WKRG in its nonunion operation. Similarly, on August 13, 1957, station WKAD, a radio station operated in Mobile by Pursley Broadcasting Service, Inc., also wrote to Burns, asking for a modification of its contract with the Respondent Union, in the form of "a clause that would guarantee to Pursley Broadcasting Service that any privileges gained by a competitor who is operating nonunion, then these same rights and privileges would be granted by the union to Pursley Broadcasting Service, Inc." The General Counsel and WKRG contend that the object of the Respondent Union's conduct has been to force and require WKRG to recognize and enter into a contract with the Respondent Union. The Respondent Union denies that this has been its objective. In substance, it asserts that its only objective for its picketing and other conduct has been to strengthen its bargaining position in dealing with the other stations for the preservation of the wage standards and working conditions gained by it for these stations' employees (whom it still represents), by procuring increases in the advertising revenues of these stations as "union" stations in lieu of satisfying their expected demands for concessions in working terms and conditions equal to the competitive advantages available to WKRG in its "non-union" operation. The ultimate, material issue thus presented in the present case is the Respondent Union's motivation for its conduct.' Decision of this issue turns not only upon consideration of the significance of the undisputed general facts which have already been summarized, but also upon the credibility of direct testimony given by Respondent Union's witnesses and their testimony contradicting testimony given by the General Counsel's witnesses as to what was said concerning the Respondent Union's objective (1) by the picket, William Dolan, on one occasion; (2) by Business Agent Burns in several conversations with Freeman, WKRG's attorney; and (3) by Burns, Doug Raybon, and DeWitt Allen during their visits to WKRG's advertisers, as members of the Respondent Union's advertising committee. B. The critical evidence bearing upon motive 1. The general testimony of Respondents' witnesses The Respondent Union's explanation of the motivation for its conduct is set forth at length in Business Agent Burns' testimony. Doug Raybon and DeWitt Allen, who were also on the Respondent Union's committee which visited WKRG's advertisers, gave consistent testimony on the same subject, although not in the detail, presented by Burns' testimony. The essence of their testimony can be briefly summarized as follows: Following its loss of the representation election, the Respondent Union feared that WKRG's imminent institution of the "combo operation" would cause the other Mobile stations to press for the same change under their contracts, thereby threatening a decrease of the number of jobs for the engineer-technicians whom the Respondent Union still represents. According to all three of the Respondent Union's key witnesses, the only objective of the Respondent Union's picketing and other conduct was (by direct appeal to the advertisers as well as by generally publicizing the fact that WKRG was the only "non-union" station in the Mobile area), to secure the transfer of advertising from WKRG to the other Mobile stations whose employees it still represents, and thus to demonstrate to these other stations that, despite any possible competitive advantages that WKRG might gain through "non-union" operation, it still would be just as profitable for them to continue to operate as "union" stations. In short, according to Burns and the other witnesses for the Respondent Union, its objective was not to regain recogni- tion and a contract from WKRG but rather to protect its bargaining position in dealing with the other union radio stations and television stations in the Mobile area, and thus to preserve for their employees, whom it still represents, the wage standards and working conditions gained for them by the Respondent Union under existing contracts. According to Burns, the Respondent Union's members made their decision authorizing action by the Respondent Union for this purpose and not for the purpose of regaining recognition or a contract from WKRG, on the basis of advice previously given to Burns on July 18 or 19 by Thomas Adair, the Respondent Union's attorney. For Burns testified that Adair told him that it would be "impossible" for WKRG to offer the Respondent Union a contract under the circumstances; that Adair said "that the only thing that we could do was what ' See Curtis Brothers,. Inc., 119 NLRB 232; Alloy Manufacturing Company, 119 NLRB 307. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we are doing now"; that Burns thereupon relayed this information to some of the Respondent Union's members who had suggested the possibility of forcing WKRG into a contract; and that this possibility was never again considered or discussed. . Despite vigorous cross-examination, Burns, Raybon, and Allen maintained that the only objective of the Respondent Union's conduct was to enable it (in the manner already described) to preserve the level of working conditions obtained by it for the employees it still represented under contracts with all the Mobile stations, other than WKRG. Thus, when questioned specifically, the Respondents' witnesses not only denied that it was the Respondent Union's objective to force recognition or a contract from WKRG, but also denied that it was an objective of the Respondent Union either (1) to cause a loss of income by WKRG; (2) to force WKRG out of business; or (3) by causing WKRG to lose advertising revenue, to bring pressure upon WKRG's employees to authorize the Respondent to act again as their bargaining representative. When these last three possible effects or consequences of Respondent Union's conduct were suggested to Burns by cross-examining counsel and he was asked whether any of them had occurred to, or had been considered by, him or the Respondent Union's committee, Burns admitted that he had considered the possible economic effect of Respondent Union's activity on WKRG's income, but not upon WKRG's employees. He reiterated, however, that it was not his or the Respondent Union's objective to cause loss to WKRG or to put it out of business and further explained that, in any event, he never has considered it possible that WKRG would be actually driven out of business. because, in his opinion, the Respondent Union was not big enough nor strong enough in view of the facts that WKRG is one of only two television stations in Mobile and is affiliated with the CBS network. As to WKRG's technicians and announcers, Burns said, that he did not consider the effect upon them because "they didn't particularly care about the economic effect [of their rejection of the Respondent Union as their bargaining representative] upon the members of our local." In answer to similar questions, Raybon testified that he had never seriously considered what the ultimate effect of the Respondent Union's conduct might be, that WKRG might be forced out of business, or that, in such event, WKRG's employees would lose their jobs. According to Raybon he was not concerned with WKRG's possible loss of income, nor, as he understood it, was Respondent Union trying to prove anything to WKRG. For, as he explained, "We are not too concerned with what happens over there. We are more concerned with what happens at the other stations and our bargaining powers with the other stations." Raybon and Burns were also questioned as to whether any "goal" had been set for the Respondent Union's picketing and other activity so that, upon its attain- ment, the Respondent Union would cease its activity. Raybon, who is a radio technician at station WABB in Mobile, answered simply that, as a member of the Respondent Union's executive committee, he would not recommend cessation of the picketing until the "danger" to his job was removed. He said, however, that he had not considered in what way this "danger" might be removed as a result of the picketing because the Respondent Union was actually concerned with what would happen in its bargaining negotiations with the other stations. Burns testified that there was no "goal" set for the Respondent Union's activity in the sense suggested by cross-examining counsel's questions. He stated that he did not know what combination of circumstances would have to occur before he would recommend to the executive committee that the picketing be stopped. He said that there was nothing that WKRG could do to stop the Respondent Union's campaign. He also said, however, that he thought he would recommend a cessation of the Respondent Union's activity if WKRG went out of business. According to Burns, aside from the general objective of protecting its bargaining position with the union stations, Respondent Union's plans are "indefinite. We have no set time in this thing. We don't know what we are going to do." The most that Burns would say was that, according to a resolution passed by the members, the Respondent Union would "continue as long as it was legally permissible." 2. Picket Dolan's alleged statement to Patterson Allen Patterson, nephew of an employee of WKRG, testified that in January 1958 his uncle requested him to visit the picket line, engage a picket in conver- sation, and report the substance of the conversation. According to Patterson, his uncle said that the pickets "had been voted out"; that they would not tell "anybody on the inside that worked at the place" why they were still picketing; and that Patterson, therefore, was to ask one of the pickets about it. RADIO BROADCAST TECHNICIANS 513 Patterson testified that, at about 10:30 in the morning of January 13 , 1958, he asked "the time of day" of one of the pickets , whom he identified as William Dolan from photographs shown to him at the hearing ; that, in the ensuing con- versation which lasted 15 or 20 minutes and during which Patterson said he belonged to Local No. 600 of the Iron Workers' Union in Mobile , Patterson asked Dolan if they were picketing "to get a union" and Dolan said , "Yes"; that Patterson then asked "Weren 't you all voted out?" and Dolan again said , "Yes"; and finally that , upon Patterson 's asking Dolan how long "they were going to stay there," Dolan replied that "they were going to keep on picketing until they got a union there." In his testimony, Dolan, who was a member of Respondent and was then employed at station WABD , recalled Patterson's coming up to him on the picket line, speaking to Dolan , and then coming up to Dolan again as Dolan continued to walk along . Dolan testified that he stopped walking; that Patterson said he was a member of a steelworkers ' or ironworkers ' union and asked what "the situation was"; and that Dolan told him that the picketing was "not to prevent anybody from going in. It's just to let the people walking in the street or riding in cars at that particular time know that WKRG was non -union." Dolan also denied that Patterson said anything about the picketing being for the purpose of getting a contract with WKRG or that he ( Dolan ) said anything to Patterson or others who had spoken to him on the picket line , to the effect that, by picketing, they were trying to get recognition or a contract from WKRG. The Trial Examiner credits Dolan's version of his conversation with Patterson and his denials that he had made the remarks attributed to him by Patterson. 3. Conversations between Burns and Freeman To support their contention that the Respondent Union has picketed and engaged in its advertising campaign for the purpose of forcing recognition and a contract from WKRG, the General Counsel and WKRG also rely upon testimony given by Mortimer Freeman, one of WKRG 's attorneys, and William Baskerville, gen- eral manager of its radio operations , as to certain statements allegedly made by Burns to Freeman both before the election ( i.e., on March 28 and June 22, 1957) and also after the election (i.e., on September 17, 1957 ). In his testimony, Burns denied ever having made any such statements as those attributed to him on March 28, June 22 , or September 17, 1957. As to the March 28 conversation, it will be recalled that this was before the Respondent filed its unfair labor practice charge and before WKRG filed its petition for an election . It will also be recalled ( as the Trial Examiner has already found upon Freeman 's uncontradicted testimony with respect to a part of this conversation ), that Freeman told Burns on March 28 that WKRG would insist upon an election unless the Respondent agreed to a "combo operation," and that Burns rejected this suggested solution of the problem . According to Free- man's testimony, Burns, in his reply , told Freeman that "the union has already set up a strike committee. We are not going to let [WKRG ] operate non-union. We are not going to let them do that. It means that we are going to have to contact the advertisers . It is going to be costly to [WKRG]." Burns testified that he could not recall having made such a statement in the March 28 conversation. According to Freeman , Burns made the second significant statement to him on June 22, 1957 , after the Respondent Union had withdrawn its unfair labor prac- tice charge and during their discussion of the appropriate unit for insertion in the consent-election agreement . Freeman testified that in this conversation he told Burns he did not think that the Respondent Union would be able to win the election, and that Burns said that "they were going to win or picket until the contract was obtained." Burns flatly denied having made any such statement at that time or at any other time. A late afternoon telephone call made to Burns by Freeman from WKRG's office on September 17, 1957, and a visit by Burns to Freeman's hotel room that same evening at Freeman's request , furnished the occasions for the remaining two conversations concerning which Freeman's testimony was offered by the General Counsel and WKRG. Although Burns protested against having his telephone conversation recorded and was assured by Freeman that this was not being done, he was unaware and was not told that Baskerville was in fact listening in on that conversation . Therefore , Baskerville as well as Freeman and Burns gave testimony as to the telephone conversation . Only Freeman and Burns could , and did, give testimony as to the evening conversation between them in Freeman 's hotel room. 508889-60-vol. 123-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freeman testified that, in the telephone conversation on the afternoon of Septem- ber 17, he told Burns that the Respondent Union's picketing was illegal; that Burns replied that, according to Attorney Adair's advice , the picketing was legal; that Freeman asked why the Respondent Union was picketing ; that Burns an- swered, "We are picketing to advertise to the public that WKRG is non-union"; that Freeman's comment was, "That differs from what you have told me at the time were talking settlement and at other times in March, April , May, and June, that you were picketing WKRG for a union contract , and you were going to picket until the date this time next year or until you get a contract and you are not going to let WKRG operate non -union"; that Burns said , "I don't remember those exact words, but if I said anything like that, I didn't say it since the date of the election"; and that Freeman then said , "That's right, Jimmy, you didn't say it since the election," but asked Burns to come to see him at the hotel that night to "talk about it." Baskerville , however, testified that in this telephone conversation , Freeman asked Burns, "Jimmy, how long are you going to be picketing here [?]"; that Burns replied, "We are going to picket here until we get WKRG back with the union"; that Freeman said, "You remember you made that statement once before"; and that Burns then said , "If I made that statement it was before the election." As to his conversation with Burns in the hotel room that same evening , Freeman testified that he again told Burns that the picketing was illegal; that he attempted to persuade Burns to withdraw the picket line, saying that the president of Respondent Union 's International had been notified and a suit might be filed against the International , the Respondent Union, and Burns; and that Burns replied that as long as he was informed that the picketing was not illegal, they were going to continue to picket until they got their contract and would not let WKRG operate nonunion. With respect to the afternoon telephone conversation on September 17 (the date of which he could fix only as being some time in September ), Burns testified that he could not recall Freeman 's asking him why the Respondent Union was picketing at WKRG; that Freeman did remind Burns of Burns' alleged statement in March, April, May, and June that the Respondent Union would picket until it got a contract; that Burns did not recall saying that if he had made such a statement it was before the election, because Freeman continued to talk as was his habit in their conversations ; that Freeman said that the Respondent Union was engaged in illegal picketing for a contract after losing an election ; and that Burns said that the Respondent Union 's conduct was perfectly legal and invited Freeman to inspect its files. With respect to both the afternoon telephone conversation and the evening conversation at the hotel on September 17, Burns denied that he ever told Burns at any time since the election that he intended to continue picketing at WKRG until the Respondent Union was recognized or until it got a contract , even if it took a year. In addition to these flat denials by Burns, several other elements in the record raise serious doubts as to the reliability of the General Counsel's evidence con- cerning what Burns told Freeman in their conversations on March 28 , June 22, and September 17, 1957. The most obvious is the discrepancy between Freeman's and Baskerville's versions of the telephone conversation on September 17. Freeman testified that in this conversation Burns merely admitted the possibility that before the election , but not after the election , he might have threatened to picket for a contract. According to Freeman, it was only in the evening conversation that Burns made any statement indicating any impropriety in Respondent Union's motive for the post-election picketing by saying that, in spite of Respondent Union's loss of the election, it would continue to picket until it got a contract with WKRG. Yet Baskerville, who overheard only the afternoon telephone con- versation, testified that Burns had then bluntly stated that the Respondent Union's objective in its post-election picketing was to "get WKRG back into the union." Like Freeman, Baskerville testified that he made a contemporaneous note of the substance of the telephone conversation , and offered to submit it at the hearing to support the accuracy of his recollection . Thus Freeman and Baskerville not only gave materially different versions of Burns' statements in the telephone con- versation on September 17, but each asserted that his contemporaneous memo- randum supported his own version. Further doubt concerning the reliability of Freeman's evidence is raised by self-contradictions in his testimony and by his references to his own pretrial memoranda, i.e., his diary entry for September 17 (which was introduced in evidence as an exhibit for the Respondents ) and an affidavit which he testified RADIO BROADCAST TECHNICIANS 515 was given by him to the General Counsel on September 19, 1957, but which, because of the Board's Rule,2 counsel for the General Counsel refused to submit for inspection or other use at the hearing. To understand the importance and significance of the diary entry and the affidavit, it is necessary to turn briefly to a consideration of the circumstances and manner in which Freeman's testimony as to the September 17 conversations was given. On the day before Freeman's appearance as a witness, a question arose con- cerning the relevance of evidence offered by the General Counsel during his cross- examination of Burns. The offers consisted of Respondent Union's letter to WKRG dated March 30, 1957, and WKRG's letter to the Respondent Union dated March 28, 1957, in which (as has already been found) each notified the other of his intention to terminate their then current contract. Against the objec- tion of Respondent's attorney, the General Counsel urged the admission of these letters, arguing that their relevancy would later be shown by Freeman's testimony that, following the exchange of these letters, Burns made a number of statements to him indicating that the motive of Respondent Union's picketing was to obtain a new contract with WKRG. In discussing these matters with counsel, the Trial Examiner asked the General Counsel whether Freeman would testify that any such statements were made by Burns after the date of the election on July 16. Freeman having voluntarily left the hearing room during this discussion, the General Counsel stated that, in reliance upon notes made by him from Freeman's pretrial affidavit, he expected Freeman to testify only that Burns had made such statements in April, May, and June 1957 (and thus before the election), although Freeman would also testify that in a conversation on September 17, 1957, he reminded Burns of these previous statements and Burns thereupon replied that they were made before the election. Despite this, Freeman testified the very next day that, in their evening con- versation on September 17, Burns told him that the Respondent Union was going to picket until it got a contract from WKRG. On cross-examination, Freeman stated that he thought he had set forth this statement of Burns in the affidavit which he gave the General Counsel only 2 days later, but that he was "sure" he told the field examiner to whom he gave this affidavit. Freeman admitted, how- ever, that he had told the Respondents' attorney, Thomas Adair, during the week of the hearing, that if he were called as a witness, he would have to admit that the only times Burns ever told him anything about Respondent Union's picketing until it got a contract, were before the election. In explanation, he stated that, on the morning before taking the witness stand and thus shortly after he had spoken with Adair, he had "found" the entry in his diary for September 17, 1957, which stated: 7 pm. Burns 6 pm. / Discussed pickets. Asked be withdrawn. Burns said would picket until this time next year until contract received. Not violating law. [Italics and insertion appear in the original as shown.] 3 But shortly after he gave this explanation for the inconsistency of his testimony and his statement to Adair, Freeman completely reversed himself by denying that his finding the diary entry after he had spoken with Adair had reminded him of Burns' statement on the evening of September 17 that the Respondent Union would picket until it received a contract. Not only did Freeman thus wipe out 2 Sec. 102.87, Rules and Regulations, Series 6 as amended February 1, 1956. 8 The pertinent questions and answers at this point in the transcript are the following : Q. (By Mr. Adair.) Did you tell me this week that if you took the witness stand in this case that you would have to admit that the only times that Burns ever told you anything about the picketing until they get a contract, was before the election was held? A. Yes, I told you that, but I since looked at my diary, and that was when I told about the suit that might be filed against the international as well as the local, and I had overlooked that item and found in my diary that he said, "We will picket until we win." Q. When did you discover that in your diary? TRIAL EXAMINER: Wait a minute, now, Mr. Freeman. Are you now saying that Mr. Burns' statement to you, as you now recall it, after having looked at your diary, is that "We will picket until we win"? The WITNESS : A contract. You asked me when I first found out in my diary? Q. (By Mr. Adair.) Yes. A. Yesterday morning when I started to put these yellow slips in here. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his previously offered explanation of the inconsistency of his testimony and his admitted to statement to Adair, but his accompanying testimony as to what he did find in his diary after talking with Adair, is extremely confusing and certainly suggests no reason or explanation at all for the inconsistency.4 Upon the foregoing consideration of all the pertinent evidence, the Trial Exam- iner credits Burns' denials that he made any such statements concerning the Re- spondent Union's or his motive on March 28, June 22, or September 17, 1957, as have been attributed to him by Freeman and Baskerville in their testimony. Accordingly, the Trial Examiner rejects the contention of the General Counsel and WKRG that the evidence shows that statements made by Burns to Freeman indi- cate that the Respondent Union has picketed and engaged in its advertising cam- paign for the purpose of forcing recognition or a contract from WKRG. 4. Statements to advertisers by members of Respondent Union's "advertising committee" To support the General Counsel's and WKRG's contention that the Respondent Union's objective was to force a contract or recognition from WKRG, testimony concerning the visits and statements then allegedly made by members of the Respondent Union's "advertising committee" was also given by six advertisers and the sales manager of one of them, viz, Floyd Luttrell, owner of a tractor company; E. A. Bornefleth, his sales manager (who was called in on this par- ticular conference by Luttrell); Spurgeon N. Roche, president of a furniture company; Anthony M. Naman, coowner of a food market; L. A. West, manager of a home construction company; John W. Morrison, a milk processor and dis- tributor; and Norman L. Carnahan, manager of B. F. Goodrich Company's branch in Mobile. In all these visits, except the visit to West, Burns was the Respondent Union's spokesman and was accompanied by Doug Raybon. The visit to West's 4 Freeman's testimony at this point was the following : Q. (By Mr. Adair.) Dir. Freeman, didn't you testify earlier or a short while ago that this [Burns' alleged statement to Freeman on the evening of September 17] had just come to your attention this week, that it was in your diary, that that was the reason you hadn't ,mentioned it earlier? A. No, sir. . . . The information I said that just came to my attention was not violating law, when you asked me that, and that not violating the law was what Burns told me. He said that he was not violating the law, and I marked that down as the reason for this. I don't know whether I put that in the statement [affidavit] or not. The "7 :00 p.m." was not on this page at this date in this diary. Q. Didn't you tell me a little earlier that it was only night before last, I might be wrong about it, it may be in the morning, but night before last when you were going into your diary that you first discovered this particular entry? A. I said I found out that I din'•t have the "7:00 p.m." on it, and I remembered that item, that meeting went for about an hour, and I inserted the "7 :00 p.m." here, night before or day before. Q. So, it was not the subject matter of the statement, it was the "7 :00 p.m." that you discovered just a day or two ago? A. No, I didn't have this information at hand, not violating the law underscored. Q. You have also added some underscoring? A. No, that was put in to remind me that Burns said he was not violating the law, that is the reason why he was picketing. TRIAL EXAMINER : Well, Mr. Freeman, didn't you testify,that sometime during this week you told Mr. Adair that the only time that Mr. Burns has said that the union would picket until it got a contract was before the election? You testified to that effect, didn't you? The WITNESS: That's right. TRIAL EXAMINER: And then you said that since then you had gone through your diary, and you had seen this entry which now reminded you that a similar or same statement had been made on September the 17th? The WITNESS: No, I did not. I gave the September 17th testimony as to what took place without having to refer to my diary. I did find something in there on June the 24th, as I looked at the diary. TRIAL EXAMINER : Oh, all right. Q. (By Mr. Adair.) Well, now, without answering-wait a minute. A. June the 22nd I discovered that I had lunch with him, and he [Burns] said that they were going to win or picket until the contract was obtained. I had omitted that information. RADIO BROADCAST TECHNICIANS 517 place of business was made by Burns and DeWitt Allen , and, in this instance, Allen was the spokesman. All seven of the General Counsel's witnesses testified at length concerning their full conversations with the Respondent Union 's visiting committee. Luttrell, Mor- rison, and Carnahan testified (but Roche , Naman, and West denied ) that they had previously received the letter generally outlining the Respondent Union's position and its desire to explain it in greater detail when its representatives called upon the advertiser. According to the testimony of each of the General Counsel 's seven witnesses concerning these visits , the Respondent Union's committee asked him to withdraw his advertising from WKRG and, in the course of conversations lasting from 30 minutes to an hour, discussed the Respondent Union 's difficulties, answered questions , and made various statements to the effect that the ultimate objective of the Respondent Union's advertising campaign and its picketing was to force recognition or a contract from WKRG. In their testimony , Burns, Rabon, and Allen denied that they had made any such statements concerning the Respondent Union's motion as were thus attributed to them by the General Counsel's witnesses, or that they had otherwise said, specifically or in substance, that the Respondent Union's objective was to obtain recognition or a contract from WKRG. According to their testimony , they had a set, prepared talk which they gave to each advertiser to the extent that they were permitted to do so, and also answered questions as they arose . They further testified that in their conversations with the General Counsel's witnesses, they adhered to the substance of the prepared talk. Their testimony, therefore, consisted of a summary of the prepared speech and their consistent versions of their state- ments in their conversations with the advertisers who appeared as witnesses for the General Counsel. The Prepared Speech Respondents' exposition of the prepared or "canned " speech was given by Burns in his testimony, with support on various points from Rabon and Allen who were not, however, asked to give all the details as was Burns . According to Burns, the visiting committee introduced themselves to the advertiser as representing "the radio and broadcast technicians and announcers of the various radio stations in Mobile and Prichard" with which the Respondent Union had contracts; asked the advertiser if he had received the Respondent Union's letter and, if he had, whether he had any questions ; and then, if permitted , proceeded "to amplify and give reasons why we are taking the stand with regard to WKRG's non-union operation." According to Burns, upon reaching this main portion of his prepared talk, he told the advertiser that: (1) In applying to the Federal Communications Commission for a license for the use of a television channel, the predecessors of the present owners of WKRG had expressed their intention of negotiating "a contract with this union that would be more favorable to the company than normally exists not only in Mobile but in IBEW agreement throughout the country." (2) Upon the issuance of an erection permit to WKRG for a television station in 1955, "We had a strike in order to maintain the contract we had in existence for a number of years." (3) When WKRG hired additional technicians for its television operation after the strike, it "screened" the applicants on the basis of their records with respect to labor unions and "did not employ a single man from this local union." (4) Taking advantage of the Respondent Union's resulting loss of a majority among WKRG's employees , WKRG was able to cancel its contract with the Respondent Union. (5) WKRG had "asked us for certain competitive advantages over the other stations. . . . And when the union refused to grant [WKRG ] these competitive advantages , which they had to do because if we were to give them to the company, WKRG, these advantages would have affected jobs and caused this local union and its membership their jobs in practically every station in the city of Mobile and Prichard . When the union would not go along with this, they petitioned for an election. We went into this election and we knew that we couldn 't win." ( 6) The Respondent Union lost the election, 2 to 1. (7) To meet the claim of WKRG that the Respondent Union does not have the support of organized labor since it lost the election, it has been put "in the posi- tion where we have to send a delegation to the various local unions at their meet- ings throughout Mobile seeking signatures on petitions. . (8) Finally, that they were asking the advertiser "if he would remove his ad- vertising from WKRG in order to help us to protect and preserve decent wages 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .and working conditions that we have striven (sic). over so many years to gain or that we now have"; "to balance and equalize the competitive advantage which WKRG has or was enjoying"; and "to prove to the other stations that it is more profitable to operate with the union than without." Evidence Concerning the Conversation with Floyd Luttrell Burns and Raybon visited Floyd Luttrell, the owner of the tractor company, at Luttrell's office on January 14, 1958, and asked Luttrell to withdraw his adver- tising from WKRG. After their conversation had gotten under way, Bornefleth, the sales manager, was called in by Luttrell, was informed by Luttrell of what had already been said, and then listened to the rest of the conversation. Both Luttrell and Burns testified that they talked with each other for about an hour. According to Luttrell and Bornefleth, Burns said in the course of this conver- sation, that the Respondent Union's "objective was to prove to station WKRG and its owners that it was more economical to operate with the union than without the union." Luttrell further testified that Burns also told him that the Respondent Union's objective was "to gain a contract, to get back in. I don't know that he said a contract, but he said to get back in with WKRG and get back what he lost." Bornefleth, touching on the same point testified that Burns said that WKRG "was a non-union station and he wanted to get WKRG back into the union.. . On the other hand, Burns and Raybon denied making any such statements and insisted that, despite interruptions by Luttrell, Burns adhered to the substance of the prepared speech, including the explanation of the Respondent Union's purpose, even in answering Luttrell's questions and arguments. In resolving this square conflict in the testimony, it should be noted that, although Burns apparently did most of, if not all, of the talking for the Respond- ent Union, all four of the men who were present at this conversation agreed in their testimony that Burns' remarks were repeatedly interrupted by Luttrell, not only with questions but also with lengthy statements of Luttrell's views, couched at times in the form of advice to Burns. Counsel for the Respondent argues (and incidentally also makes the same argument with respect to the testimony of the other advertisers) that Luttrell's and Bornefleth's testimony shows a lack of understanding, an uncertainty, and confusion as to what was actually said to them, and a disposition to express their own erroneous impressions and conclusions. Consequently, in deciding whether or not Burns made the statements attributed to him by Luttrell and Bornefleth, it is necessary to consider the evidence as to the substance and course of the rest of the conversation and the manner in which this testimony was given. Luttrell, Burns, Bornefleth, and Raybon agreed in their testimony that, in the course of his remarks Burns told Luttrell of the Respondent Union's loss of the election and of its disagreement with WKRG on the "combo operation," and that both of these subjects prompted questions and suggestions by Luttrell and ex- pressions of his views in opposition to the positions the Respondent Union was taking on these matters. With respect to the Respondent Union's loss of the election, Luttrell testified that he said, "Mr. Burns, you are wasting your time talking to me, I can't vote. You had better be out there trying to win the employees of WKRG"; that Burns replied, "[W]e are wasting our time picketing and we are wasting our time talk- ing to the employees of WKRG. We have got to bring economic pressure to bear on the station [WKRG] . . where we are going to accomplish our pur- pose" which was "to prove to station WKRG that it was more economical to operate with the union than without the union"; that Burns further said, in re- sponse to Luttrell's next suggestion of an appeal to the employees in another elec- tion, "Well, we can't have another election for a year ..."; that Luttrell then said, "Well, I guess you are going to have an election exactly one year from now"; and that, to this, Burns replied, "Well, no, not until we know that we are going to win the election, we won't have another election. Until [Mr. Giddens, presi- dent of WKRG] had had a change of heart and quits influencing those people, they never will. The employees of WKRG will never vote for us." According to Luttrell, he said, "Mr. Burns, I disagree with you. I don't believe anybody could control the voting of its own employees," and cited the advice and experience of one of his friends who had held a private poll of his employees which, to his surprise, indicated their dissatisfaction with their employer. It was in this block of testimony, just summarized, that Luttrell first referred to any statement by Burns concerning the Respondent Union's motive. Immediately thereafter, he was asked whether Burns "at any time during this conversation [told Luttrell] what his union expected to gain from this," and Luttrell's reply RADIO BROADCAST TECHNICIANS 519 (already referred to) was, "Yes, they expected to gain a contract, to get back in. I don't know that he said a contract but he said to get back in with WKRG and get back what he lost." Luttrell was then asked by counsel for the General Counsel whether Burns had mentioned "any other radio station or television stations." His answer was, "Yes, sir, because I was getting a little confused. Now, he told me specifically that they were not monitoring the radio programs. We have a radio program at the same time. He said that we are not monitoring the radio programs, we are only monitoring the T.V. programs. I said, `Well, now what does this concern the T.V. stations or radio stations because there is only one other T.V. station in town.' He [Burns] kept speaking of the group as a whole, radio stations and T.V... . [Emphasis supplied.] Proceeding further, in answer to questions by the General Counsel as to whether he asked Burns "point blank," what were Burns' purpose and objective in soliciting Luttrell's cooperation, Luttrell answered that he had asked this question and that Burns had said that it was "to cease doing business with WKRG . . . Mr. Burns said his objective was to prove to station WKRG and its owners that it was more economical to operate with the union than without the union. That is his specific answer." When he was then asked by the Trial Examiner whether Burns had in so many words also said that the Respondent Union wanted "to get back in" sta- tion WKRG or whether that was only Luttrell's impression of what was said, Luttrell replied, "Yes, he did, as I recall it. As I recall it, it was to get back into the station WKRG." As has been noted, Luttrell said on direct examination that, as the conversa- tion progressed, he was "getting a little confused" by Burns' references to the "groups as a whole, radio stations and T.V." On cross-examination, he again mentioned Burns' references "to the other union stations" in connection what Luttrell described as a discussion of "featherbedding." According to Luttrell, the subject came up as a result of his asking Burns what the Respondent Union was "requiring at the station [WKRG]." Luttrell testified at this point that he asked whether it was a matter of wages; that Burns said, "No, it is not wages. They pay the same wages at the other stations"; that Luttrell then said, "Well, now, Mr. Burns, if you are making an unfair charge against them for instance, . if I had to have an electrician to turn on my switch and you are making that kind of a charge, I don't believe would want to support you and go along with you and pull my advertising off the air"; and that Burns replied, "Look, we can't talk about featherbedding because that is a violation of the law. We don't talk about featherbedding but they were doing things that is unfair to the other union sta- tions. The other union stations are doing certain things that the people are not doing and that is the bone of contention." According to Luttrell, "I questioned him [Burns] and it was something about the control board thing. To tell you the truth, apparently they are using two men someplace. I mean, WKRG was using one man somewhere where the other stations were using two. When asked by Respondents' counsel whether Burns told him that his purpose was to keep "that practice" (i.e., the "combo" operation) from spreading to the other stations, Luttrell answered, "I don't recall that he did. He could have but I don't recall it." Luttrell further testified that, during the conversation, he made notes, but only of the names of the advertisers who Burns said had withdrawn their advertising. According to his testimony, Luttrell did not take notes of all that was said in the hour's conversation, "because it didn't concern me. That was none of my business and I wasn't the least bit concerned. In fact of the business, I kept telling Mr. Burns that this whole thing was none of my business. It was a matter between Mr. Burns and the radio station and I said all of you, I didn't want to get involved in it." Luttrell testified, however, that he did make an affidavit concerning the substance of the conversation on the following day at the request of Thomas Greaves, one of WKRG's attorneys. The affidavit, which was produced by the General Counsel at the request of Respondents' counsel, was admitted in evidence and is consistent with Luttrell's testimony. Luttrell said he did not know how it happened that Greaves called him to request this affidavit. When asked by Re- spondents' counsel whether Greaves told him "what they wanted to prove up here today and what they would go into," Luttrell replied, "No, I don't think Mr. Greaves told me. Mr. Greaves asked me if I understood the point with which I was familiar with. . . He didn't tell me [the joint]. He asked me what I knew and I told him the things that transpired." According to Luttrell, he himself drafted the affidavit, and not Greaves. Bornefleth testified on direct examination that, upon being called into Luttrell's office, he was told by Luttrell of Burns' request that they take their television 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD program off the air, and that he thereafter listened to the conversation concerning "featherbedding," including some reference to the light switch in the office, and also Burns' explanation of the Respondent Union's objective. With respect to the Respondent Union's objective, Bornefleth testified that Burns stated that WKRG "was a non-union station and he wanted to get WKRG back in the union... . He also testified, "I remember Mr. Luttrell asking Mr. Burns, telling him that he should [desist] in trying to get him to go off the station, he should go and work on the employees at WKRG. Those are the ones that he has to talk to. They have to make up their own minds whether they want to be union or non-union and Mr. Burns said that they could picket, that they could talk to those men from now on and it wouldn't do any good, twenty years or something like that, but they had to put enough pressure to bear on the management of the company so that they would understand their purpose, what they are trying to do, to get them to realize that it's more profitable to operate with a union than without a union." On cross-examination, Bornefleth stated that he did not recall any mention by Burns of control boards in connection with the discussion of "featherbedding"; that he had never previously heard the term, "featherbedding"; but that he believed that the discussion came about as a result of Burns' reference "to putting the pressure on the management of the station [WKRG] because they were using one man to do two men's jobs...." According to Bornefleth, he did not recall Burns' saying anything about how many men the union stations were using for this operation. He did recall, however, that Burns asked Luttrell to patronize a union station, without specifying any particular station, and that Burns also said that "they" were trying to preserve their wages, hours, and conditions at the union stations in Mobile. According to Bornefleth, he made no notes of the conversation but Luttrell did, and when Luttrell had drafted his own affidavit for Greaves, he showed it to Bornefleth who placed stars at various points on the affidavit and signed a statement at the bottom to the effect: "I have read the above statement and was a witness except those parts marked with a star." An examination of the affidavit shows that the unstarred portions are consistent with Bornefleth's testimony. However, not only did Luttrell thus procure Borne- fleth's signed partial corroboration but, according to Bornefleth, Luttrell also "has made suggestions to me but [as Bornefleth added] I have worked with the man for two years and I think he knows me by now, that I more or less have a mind of my own." When asked what these suggestions were, Bornefleth said, "Well, he referred to things that he thinks pertinent to this case which I probably wasn't present at and I just can't testify to something that I didn't hear. I listen and pass it off, pass it off and forget about it . . . I don't tell him anything, I just listen." When Bornefleth was then asked whether Luttrell had talked to him about the case, Bornefleth answered, "No, certain things that he [Luttrell] that I was present at were discussed and his certainly didn't coincide with mine sometimes probably. . . . Well, as to many things I guess. I don't know. I just don't recall it too well. It passed through my mind as fast as I heard it probably. . We didn't discuss this thing after the time that I had read this document [Luttrell's affidavit] that I recall at any great length. We discussed many things about the case occasionally." Bornefleth concluded this block of his testimony with the statements that he "wouldn't say" that there were a good many points on which Luttrell and he did not agree but that, "My memory isn't as good as Mr. Luttrell's is. I don't imagine." As has been noted, Burns and Raybon denied telling Luttrell or any of the other advertisers that the Respondent Union's objective was to get back into WKRG or to show WKRG that it was more economical or profitable to operate with a union than without a union. According to Burns and Raybon, Burns was able to deliver the prepared speech or "spiel" as summarized in the last section of this Report. Burns testified that Luttrell "listened pretty closely" in the beginning of the conversation and that, in spite of Luttrell's later interruptions, he and Raybon were able to give Luttrell the entire talk. According to Raybon, this was done "in spurts" between Luttrell's interruptions. Thus, both Burns and Ray- bon testified that they told Luttrell, as they told the other advertisers, that the Re- spondent Union's objective was to procure a transfer of adverising to the union stations, and thus to "balance and equalize the competitive advantage" of WKRG in its nonunion operation, and show the union stations that it was more economical or profitable to operate with the Union than without the Union. Burns further testified that his and Raybon's statements to Luttrell in explana- tion of the Respondent Union's objective were made not only the course of their RADIO BROADCAST TECHNICIANS 521 delivery of the prepared speech, but also in connection with Luttrell 's questions and arguments concerning "featherbedding" and the propriety of the Respondent Union's approaching the advertisers rather than the employees of WKRG. Thus, according to Burns , the "featherbedding" discussion resulted from statements by Raybon "that announcers were being placed on the control board at WKRG, and that this meant that if we permitted such in the other stations , it would mean that we would be losing technicians' jobs at the various other radio stations in Mobile. The other stations would naturally expect us to give them the same advantages that had been gained at WKRG by the elections ." Burns testified that it was at this point that Luttrell argued that the Respondent Union was try- ing to force "featherbedding" on WKRG in violation of the law; and that Burns and Raybon thereupon assured Luttrell that the Respondent Union was not trying to obtain illegal clauses in its agreements but "that if we give the other employers the economical, as they might call it , advantage that WKRG had as a non-union operation , it would mean the sacrificing of jobs at five other radio stations that we have in Mobile." Finally, with respect to Luttrell's suggestion that the Respondent Union should not appeal to the advertisers but only to WKRG's employees , Burns testified that, "Mr. Luttrell . . wanted to argue about going over and organizing the engineers at WKRG, which we told him we were not interested in. . Well, he told us that he thought we were in the wrong place and that we should be over talking to the engineers of WKRG.... We told him that we had spent considerable number of hours with the technicians of WKRG, and as a fact , at the time of the elec- tion, approximately fourteen of the group were members of this union. That we weren't there to argue a point . The fact that we had lost an election or whether it was legal or not, that we were there to ask him to remove his advertising in order to help us, in order to more or less equalize the situation that now existed between the stations." Evidence Concerning the Conversation with Spurgeon Roche Burns and Raybon visited Spurgeon Roche, the furniture man, at Roche's place of business in October or November 1957,5 and asked him to withdraw his advertising from WKRG. According to Roche, Burns told him that the Respond- ent Union was "trying to get ... advertisers over WKRG to withdraw their support from the station thereby forcing [WKRG] back into union shop." Burns and Raybon denied having made such a statement to Roche and testified that they gave him the explanation of the Respondent Union's motive which was part of the prepared speech. In addition to this conflict in the testimony as to what Burns and Raybon told Roche about the Respondent Union's objective , there is an additional conflict as to whether , as Roche testified and Burns and Raybon denied, they introduced Raybon to Roche as an employee of WKRG who had voted for the Respondent Union in the election and who was "on strike." In his testimony as to the manner in which Raybon was introduced to him, Roche testified that Burns' companion told Roche "that he had been one of those employees who had left , was on strike." After repeating this on cross -examination, Roche then stated, "I don't know that he [Raybon ] said he was on strike, but I think he said he was a former employee of WKRG. I am sure he told me that . . . I assumed and I think that my assumption was correct that he told me that he was out, that he was one of the ones that voted for , I mean against voting the union out. I think I am right." On this point , Burns and Raybon denied that Raybon said that he was an em- ployee of WKRG and on strike. According to their testimony , Roche asked them whether either of them worked for WKRG and Raybon said that he had been employed by WKRG several years before that. On cross-examination, Raybon said that he had twice worked for WKRG, the second period of such employment ending in June 1952 , and that since 1952, he had not worked for WKRG even as a part-time employee. During the course of the General Counsel's rebuttal, however, it was stipulated that WKRG's social security tax return for the quarter ending September 30, 1955, shows that Raybon had earned taxable wages from WKRG in the sum of $40 during that quarter. Turning now to the general substance of the conversation , Roche testified that Burns and Raybon told him that "their mission was to ask that we withdraw our advertising from WKRG." Roche further testified that he asked Burns and Raybon "why they were picketing the station and also why I should be asked to 5 Roche was able to identify Burns but not his companion . Burns and Raybon both testified that they made the visit together. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdraw my advertising when they had admitted to me that they had had an election and they had been voted out"; that he also said that, "if it was a fair election, it seems to me they should be governed by the decision of the ma- jority"; and that Burns and Raybon "said that they were trying to get ... adver- tisers over WKRG to withdraw their support from the station thereby forcing them back into union shop." Asked by the Trial Examiner whether Burns used the phrase, "union shop," Roche said, "I made no notes. That was my interpretation of his meaning." Upon General Counsel's questioning, Roche stated that he was "certain" that Bums said "that he wanted to cause the company to have an election or wanted to force them back into the union shop." Upon then being asked by the Trial Examiner whether this was a reference to "another election," Roche said, "That would be hard for me-I don't want to state other than what I believe to be the facts and I think that is what he said." To the next question by the General Counsel as to whether Burns stated "that he wanted to get the union back into the com- pany," Roche replied, "yes," that he was sure about that. At the end of his direct examination, Roche testified that, "I asked Mr. Burns when the election was held and he gave me the date. I think it was in July. He said that the year would not be up until the following July unless they could bring pressure to cause [Mr. Giddens, WKRG's president] to reconsider and call the union back in." On cross-examination, Roche said that he gave his testimony to this conversa- tion upon a combination of his impressions, conclusions, and his recollection of what had been said to him, but that his testimony concerning Burns' statements about bringing pressure upon WKRG's president and forcing WKRG into a union shop were based upon statements actually made by Burns. On cross-examination, Roche was also questioned about other statements which were or might have been made by Burns concerning the Respondent Union's in- terest in the Mobile stations other than WKRG. On this subject, he testified that Burns told him that all other stations in town were union shops; that he thought, but "wouldn't be certain," that Burns told him something about the difference between the working conditions at these stations and those at WKRG; and that he also thought that there was a discussion (although he could not recall its extent) of the Respondent Union's requesting a withdrawal of the advertising from WKRG because of Respondent Union's interest in maintaining the working conditions existing at the union stations. Burns and Raybon both denied that they told Roche that they were trying to force Giddens or WKRG back into a "union shop," or that they would bring pressure on Giddens to sign a contract. According to their testimony Roche was disturbed about his receipt of petitions and post cards of the type which have been described, and questioned them as to the extent of their support from "labor." Finally, both Burns and Raybon testified that Burns had given Roche the full substance of the prepared speech, including the statement of the Re- spondent Union's objective. Evidence Concerning the Conversation with Anthony Naman Burns and Raybon also visited Anthony Naman, the coowner of the food market, and asked Naman to withdraw his advertising from WKRG. Naman said the visit occurred in July 1957; Burns, that it was in October 1957. Following the visit, Naman did withdraw his advertising from WKRG. On direct examination, Naman testified that Burns and Raybon "visited me with the intention of informing me that the union and the station WKRG were at [odds] due to the fact that the station had not signed a contract with the union. They did tell me that the station at one time did have a contract but at the time of their visit there was no such contract in effect. The only way the union knew of bringing the station into signing the contract was for its advertisers to refrain from advertising on that station." On cross-examination, Naman testified that although he could not quote Burns' remarks verbatim after such a length of time, he was positive that Burns said that he was trying "to get the company to sign a union contract," and that "the only way they could get the union in to sign a contract was for its advertisers to refrain from advertising with that station." Naman further testified that he did not believe there was any mention by Burns of the other stations in Mobile, nor of the working conditions at these stations, nor of the difference in methods of operation at WKRG and at the other stations, so far as the technicians were concerned. Burns denied that he or Raybon told Naman that the only way the Respondent Union knew of having WKRG sign a contract was to have the advertisers cease RADIO BROADCAST TECHNICIANS 523 doing business wih WKRG. According to Burns, "we explained [to Naman] ... what had happened at WKRG and in the end we asked that he place his adver- tisement with one or more of the union stations here in Mobile or Prichard and to refrain from advertising over this nonunion station. We pointed out to him, as we did to the others, that we are doing this to protect our jobs at the other stations." Raybon was not asked, during his appearance as a witness, about his and Burns' visit to Naman. Evidence Concerning the Conversation with L. A. West L. A. West, the manager of the Home Construction Company, testified that he had come to Mobile in September or October 1957; that Burns and Allen visited him 3 or 4 weeks before the hearing (that is, in February 1958); and that he had not previously received any letter from the Respondent Union although he had received post cards of the type already described. Burns testified that the Re- spondent Union had mailed its letter to West's company on November 11, 1957 and that Burns and Allen's visit to West was made shortly thereafter. As has been noted, Allen, an announcer for station WALA-TV and a shop steward and member of the Respondent Union's executive committee, was the Respondent Union's spokesman on this occasion. West testified that Burns and Allen explained the purpose of their visit "in a very elaborated sort of way. They were talking way too fast for me at first and I had to caution them about it and I didn't know what they were saying for the first few minutes they were in the office"; that Allen "first rattled off a bunch of initials and I told him I didn't even know what that meant and I asked him what that meant in English. Then he went back and said the name of a local union. He said that we are here to represent them and we want to get you to help us in settling some trouble that we have got down at the TV station"; and that, upon West's asking what those troubles were, Burns and Allen "said that they wanted to get the union, get the TV station back on the union station or words to that effect." According to West, it was only in answer to continual questioning by him that Burns and Allen gave him a history of the Respondent Union's trouble. Thus West stated that in answering his questions , Burns and Allen said "that when the station first opened or when they sold the station . . . they agreed to take the channel on the basis of being a union shop and so on ... they agreed to take West's question, "Well, didn't they do that," Burns and Allen replied, "Yes, they did that"; and that in answer to West's repeatedly asking the question, "Then what happened," Burns and Allen said WKRG expanded and "replaced a lot of union people with non-union people" and that the Respondent Union lost the representation election. According to West, he then asked, "Was that election crooked or dishonest or anything like that?" and Burns or Allen replied, "No, the election was honest just like it was supposed to be," except that they were "but- Voted by non-union personnel." West testified that at this point he told the two men, "Well, to me that doesn't look very fair that if you had an honest election that you lost and now you are trying to dig up a deal to make a fight out of something you lost on it, that doesn't look right to me. . . . What do you want me to do?" According to West, "they asked me to stop advertising with the company, the television company" and "said they were going to see if they could get all the advertisers to quit ad- vertising with them." Upon then being asked by the General Counsel whether Burns and Allen had told him what their purpose or objective was, West said, "No." However, West then testified that he asked Burns and Allen, "If I quit my .advertising with the company what do you expect to accomplish?" and that Burns .and Allen answered, "They said `We want to get a union contract."' On cross-examination, West testified that it sounded as though Allen's remarks had been memorized; that it seemed like 10 minutes, but might have been just a minute or 2, before West stopped them and asked what they meant; that they then proceeded more slowly in what still seemed to be a rehearsed talk; and that after this was finished, West asked some further questions. On cross-examination, West also said that Burns and Allen told him something about the status of union organization in the other six radio-TV stations in town but did not say anything about a difference in working conditions at the unionized stations and those at WKRG, nor about any difference in the use of technicians. According to West, Burns and Allen's reference to the union stations prompted him to make "the statement right along in the first of the conversation or at the first part of it, somewhere along the front, after we kind of got reconciled 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to what was going on. . . .: `Now fellows, let me make my point clear. I don't know what your purpose or method is but I want it understod that we are not for or against . When I came to Mobile, I went to the people that were advertising and appeared to be able to do me the best job. They did the job for me that I needed to have done .' " Supplementing this answer , West said, "I made the statement that I was advertising over WALA, the Press Register and over the radio stations of the town . I didn't ask them whether they were or were not union shop. I went to the places that were in a position to do me the job that I needed to have done. I was trying my best to distribute it equally wherever it might be, whether it be union or non-union. Both Burns and Allen denied that either of them told West that they were try- ing to get a union contract with WKRG , or that they made any statement to the effect that they wanted to get WKRG back as a union station. They also agreed in their testimony that Allen started on the prepared speech but that West did not seem "concerned" about what their purpose was, asked no questions about it, and refused to transfer his advertising , saying that he was well satisfied with WKRG. Evidence Concerning the Conversation with John W. Morrison Burns and Raybon visited John W. Morrison, the milk processor and distributor, about 4 months before the hearing. Burns was the Respondent Union's spokes- man. Morrison testified that Burns asked him "to quit advertising with WKRG"; that the visit of the two men lasted "for a pretty good while . We just talked until Mr. Burns got through"; that he told Burns that he "had a contract that lasted until about the middle of this year and that he "had no complaints on the service of the account"; and that, "I asked them if there was anything I could do to settle the argument. I certainly hated to see an argument over the station that I was doing advertising. As well as I can remember , he didn't tell me how that could be settled except that he did want , he had the station in his union at one time and he would like to get it back." However, Morrison added, "Well, I just derived from the conversation that was [Burns'] intention . I don't remember any specific statement that he said just word for word, verbatim." Burns testified that, "I spent a good hour with [Morrison], I had a good oppor- tunity and did go through the entire thing, the entire situation at WKRG as what had transpired from the time we (sic ) made application for a license up until the time that they were successful in removing the union from their opera- tion." Burns further testified that, with respect to what they hoped to achieve by a withdrawal of advertising , he made "only the usual statement , that by [Mor- rison's] removing his advertising and placing it with a union station, that it would help to balance the economical difference that now existed between the stations and would help us maintain the jobs and conditions that we had at the other stations." Burns denied that he told Morrison that he would like to get back in WKRG. Evidence Concerning the Conversation with Norman L . Carnahan Burns and Raybon also visited Norman L. Carnahan , B. F. Goodrich Com- pany's Mobile manager, and asked that their advertising be withdrawn from WKRG. Here again , Burns was the Respondent Union's spokesman. Carnahan testified that they discussed "the present situation at WKRG and [what] was going on at WKRG. That the station was non-union and they were making an attempt to contact all the advertisers , get them to stop advertising and cancel their advertisement with WKRG"; and that Burns spoke of the "number of union people . that he was going to get the support of." When asked whether Burns said what he or his union expected to accomplish through a dis- continuance of WKRG's advertising, Carnahan said, "I asked the question specifi- cally since I was rather confused myself. I told him that I understood that the union had had an election and had lost. That if they had lost, it seemed to me that that was it. You have to wait and have another election. I couldn 't under- stand all this. He stated that if enough of the advertisers of WKRG would cancel their advertising and being in sympathy with the union , they could get the union back into the station." On cross-examination , Carnahan was asked whether Burns gave the "whole background of this matter, the setup of the local union and the other stations in the Mobile area ." His answer was, "As far as I can recall, [Burns ] merely RADIO BROADCAST TECHNICIANS 525 brought up the fact that the other stations were union . That they were organized and that this station was not. I don't recall that he brought up the whole matter of any background or anything like that." Nor did Carnahan recall any dis- cussion of whether WKRG used announcers or technicians in certain work or what the other stations did. He did remember, however , that there was a dis- cussion of the fact that Carnahan 's Company's nonunion employees had bene- fited from the rubber workers ' union contracts with the company in that they received the same concessions. Carnahan testified further on cross-examination that he told Burns that he was confused, and that "I could not see why that I was even involved in this situation. That there had been representatives of the company come to me and told me their side of the story and the union men had told me their side and I still didn't know which side was right or wrong and I didn't know why I was particularly concerned . I felt like I didn't want to take sides and I wanted to stay completely out of it." Both Burns and Raybon denied that they told Carnahan that they hoped to get enough advertisers to cancel their advertising so that they could get the Union back into the station. Burns testified that he went through his prepared speech and wound up "by asking [ Carnahan ] to reconsider and place his advertising with the union stations in order to help us [protect] the decent wages and working conditions that we have at the other stations in Mobile, the other union stations." Findings Concerning the Conversations Between the Respondent Union's Committee and the Advertisers The material conflicts in all this testimony concerning the conversations be- tween the Respondent Union's visiting committee and the six advertisers who appeared as witnesses for the General Counsel, present a rather narrow issue which may be stated quite briefly in spite of the detail in which the evidence was given. According to the testimony of the advertisers , the Respondent Union's visiting committee told each of them , in substance , that the objective or purpose of the Respondent Union 's picketing and advertising campaign was to force recog- nition or a contract from WKRG. On the other hand , according to the testimony of Burns, Raybon, and Allen, the Respondent Union 's committee made no such statements to the advertisers but told them , in substance, that the Respondent Union's purpose or objective was to enable it to preserve and maintain the level of working conditions which it procured for the employees of the other union stations in Mobile, whom it still represents. In this connection , according to Burns, Raybon, and Allen, they explained to the advertisers that, because of WKRG's clear determination to install a "combo" operation of its radio control boards, the Respondent Union was faced not only with the prospect of being pressed by the union stations for concessions of that and other competitive ad- vantages available to WKRG in its nonunion operation, but also with the conse- quent necessity of countering such pressure and thus avoiding a lowering of the level of working conditions which it had secured, and still hoped to maintain, for the union stations' employees. Burns impressed the Trial Examiner as being honest and meticulous in his testi- mony, and his accounts of the conversations with the advertisers were not only corroborated by Raybon's and Allen's testimony, but were consistent with the expression of the Respondent Union's objective in its letter sent to the advertisers before the Respondent Union's committee visited them. Furthermore, under the circumstances shown by the record, the objective thus asserted by the Respondent Union in this letter and (according to Burns, Raybon , and Allen ) also by its committee in their visits to the advertisers, appears to the Trial Examiner to have been at least one, if not the only , natural and reasonable objective on the part of the Respondent Union. But each of the advertisers also apparently endeavored, to the extent of his ability , to present an accurate , complete account of his con- versation with the Respondent Union's representatives , and their accounts, as we have seen , contradict the testimony of Burns, Raybon , and Allen as to what was actually said by the Respondent Union's representatives concerning its motive or objective. However, counsel for the Respondents questions the testimony of these advertisers as showing on its face that they were confused and unable to understand the Respondent Union 's explanation of its motive , remembered only parts of the conversations, placed their own interpretations upon what the Respondent Union was doing, and substituted their erroneous impressions and conclusions for what was really said to them. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Addressing himself to this situation in his brief, counsel for the Respondents argues that: Burns' denial of the particular statements attributed to him was emphatic and entirely credible. In weighing Burns' testimony against that of General Counsel's witnesses it is important to keep in mind that Burns' recollection of his statements and activities would necessarily be more vivid and more accurate than that of the advertisers who had only a casual interest in the controversy. Whereas Burns talked to 125 to 150 advertisers, and, admittedly, followed a "canned" or prepared statement, the few individual advertisers who were used as witnesses were attempting to recall conversations occurring, in some instances, many months before, and were relying in large part on their impressions and conclusions rather than on what was actually said. It is easy to understand that the advertiser, whose only experience with labor disputes had been in terms of strikes against an employer to force or require him to do something, would conclude, despite what was said to him, that this was the case here. Recollection, imperfect as it is, and absent real con- centration on the events in question at the time they are happening, is a weak basis for factual conclusions under these circumstances. A consideration of the testimony of the advertisers has convinced the Trial Examiner that counsel for the Respondents is correct in his appraisal of this evidence. Brief references to the preceding summaries of this testimony will indicate the strong bases for this conclusion. From their own testimony, it appears clear that Luttrell, Roche, and West were so certain in their own minds that the Respondent Union's conduct could mean only, that the Respondent Union was trying to get back its contract with WKRG, that fiom' the 'very beginning of the conversations, they closed their minds to any other possible explanation which the Respondent Union's committee might offer. Thus, according to the testimony of each of these three men, his conversation with the committee consisted to a great extent of his own argumentative questioning of the committee, his insistence that the solution of the Respondent Union's difficulties lay in an appeal to WKRG's employees, and his expressions of disagreement with what he construed to be the position of the Respondent Union. Moreover, each of these three witnesses, when questioned about other possible subjects of the conver- sation, said in substance that he was not concerned with the rest of the conversation because it was none of his business, and admitted that he was confused by some of the things that were said by the Respondent Union's representatives. According, to Luttrell's and Roche's testimony, they were particularly confused by the com- mittee's references to the "combo" operation and to working conditions at the stations in Mobile, other than WKRG. For Luttrell admitted that the committee might have said that the Respondent Union's objective was to avoid the spread of the "combo" operation to the union stations. Roche, too, testified that he thought that Burns had said something on this subject and had said that the Respondent Union was requesting a withdrawal of advertising from WKRG because of its interest in maintaining the work conditions existing at the union. stations. And Bornefleth, witness to the conversation with Luttrell, testified that. Burns had said that "they" were trying to preserve their wages, hours, and condi- tions of employment at the union stations in Mobile. Finally, at various points in. the .testimony given by each of them, Luttrell, Roche, and West admitted that they were testifying in part upon the basis of their impressions and interpretations of the Respondent Union's statements, although they definitely did recall that the statements attributed by them to the committee concerning the Respondent Union's. motive were actually made by the committee. However, the Trial Examiner is not impressed by these statements of definite, partial recollection on the subject of" the Respondent Union's motives when the very same witnesses, although admitting. possible references by the committee to the "combo" operation and the Respondent Union's interest in the working conditions at the union stations in Mobile, say that- they are unable to recall the content of these references and that they were confused by them. Obviously, in the conversations with Luttrell, Roche, and West, the Respondent Union's committee had no chance at all of getting these men to understand and remember any explanation of the Respondent Union's conduct: other than that it was for the purpose of getting recognition and a contract from WKRG. Accordingly, the Trial Examiner has concluded that Luttrell's, Borne fleth's, Roche's, and West's testimony concerning the Respondent Union's com- mittee's statements about the Respondent Union's motive, is unreliable; that Burns', Raybon's, and Allen's testimony is to be credited; that the members of the Respondent Union's committee did not make the statements as to the purpose- or objective attributed to them by these advertisers; but that, on the contrary,. RADIO BROADCAST TECHNICIANS 527, the Respondent Union's committee gave these men the explanation of the Re- spondent Union's conduct as summarized by Burns in his testimony concerning the prepared or "canned" speech. Finally, the testimony of Morrison, Carnahan, and Naman also seems to the Trial Examiner to be too weak to be regarded as reliable. Morrison, who testified very briefly although he said that Burns' visit lasted "for a good while," and that "we just talked until Mr. Burns got through," obviously testified merely that his net impression was that Burns wanted to get WKRG back for the Respondent Union. For he not only gave none of the details of Burns' remarks in the lengthy conversation, but volunteered the comment, "Well, I just derived it from the conversation that was his intention. I don't remember any specific statement that he said just word for word, verbatim." Carnahan frankly admitted that he was confused by Burns' remarks and explained, as he told the Respondent Union's committee, that he could not see why he was involved, that the representatives of WKRG as well as the representatives of the Respondent Union had each told him their side of the story; that he still did not know who was right or wrong; and that he wanted "to stay completely out of it." Naman, in a similarly brief account of his July 1956, conversation with Burns, stated that he was positive that Burns had said that he was trying "to get the company back at WKRG to sign a union contract," and that "the only way they could get the union in to sign a contract was for its advertisers to refrain from advertising with that station." He pointed out, however, that "after 6 or 8 months," he could not give any of Burns' language verbatim. Thus, Naman, like Morrison and Carnahan, testified months after the conversation took place only to the barest skeleton of the conversation consistent with the General Counsel's and WKRG's position, and apparently could not recall any of the other details of the conversation which he said lasted 30 minutes. When compared with Burns' and Raybon's clear and certain testimony as to the scope and substance of these conversations, and when considered in the light of the difficulty apparently encountered by the Respondent Union's committee in getting the advertisers to understand them, the testimony of Morrison, Carnahan, and Naman does not appear to the Trial Examiner to warrant a finding in accordance with their testimony. The Trial Examiner therefore credits Burns' and Raybon's denials of the statements attributed to Burns by Morrison, Carnahan, and Naman, and finds that in the conversations with these men Burns gave the explanation of the Respondent Union's conduct summarized by Burns in his testi- mony concerning the prepared or "canned" speech. C. Conclusions There is no dispute, and the Trial Examiner accordingly finds and concludes, that the Respondent Union has not at any time since July 16, 1957, been designated as collective-bargaining representative by a majority of WKRG's engineer-techni- cians in the appropriate unit which it had previously represented under contracts with WKRG. There is also no dispute, and the Trial Examiner accordingly further finds and- concludes, that among the normal, foreseeable consequences of the Respondent Union's picketing and its campaign to induce advertisers to with- draw their business from WKRG, were a direct economic loss to WKRG, an indirect adverse effect upon the economic interests of its employees, and a resulting tendency or readiness on the part of both WKRG and its employees to seek or accept a resumption of the station's collective bargaining and contractual rela- tionship with the Respondent Union and of the representation of WKRG's em- ployees thereunder. The only remaining issue under the Curtis Brothers Inc.,6 and Alloy Manufacturing Company 7 decisions is whether, as the complaint alleges, but the Respondents deny, the actual motive for the Respondent Union's conduct was to bring such pressure upon WKRG and its employees and thus to force recognition and a contract from WKRG in disregard of the employees' wishes in the matter. If so, a violation of Section 8(b)(1)(A) of the Act has been proved; otherwise, it has not been proved. The Respondent Union has squarely denied the allegations of the complaint as to its motive or objective. As has been noted and fully developed in the discussion of Burns', Raybon's, and Allen's testimony in section III B, 1, supra, it not only denies that its objective was to force recognition or a contract from WKRG, but asserts that, faced with the threat that WKRG's nonunion operation would create pressure from the competing union stations in Mobile to lower the local level of working conditions, its sole object was to protect its bargaining position with these 0119 NLRB 232. 7 119 NLRB 307. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD competing union stations by increasing their advertising revenues through a transfer to them of WKRG's advertising , and, by this showing of advantage in operating under union conditions , to enable the Respondent Union to preserve for the union stations' employees their existing wages and working conditions. As has also been noted , in support of the opposing contention that the object of the Respondent Union was to force recognition and a contract from WKRG, the General Counsel and WKRG rely upon evidence of (1) the Respondent Union's acts and the circumstances under which they were committed ; and (2 ) statements by picket Dolan to Patterson , by Respondent Burns to Attorney Freeman, and by the Respondent Union's visiting committee to certain advertisers , in all of which the General Counsel and WKRG contend that the Respondent Union's agents said in substance that their objective has been to force WKRG to recognize and enter into a contract with the Respondent Union. The Trial Examiner , however, has already found upon a discussion of the pertinent evidence that the Respondent Union's agents did not make the statements thus attributed to them and that, on the contrary , in their statements to the adver- tisers they gave the same explanation of the picketing and advertising campaign which the Respondents have now asserted in the present proceeding . Consequently, the only questions which remain are whether the direct testimony of the Re- spondent Union 's representatives as to its motive is credible, or whether the very nature of the Respondent Union's acts and the circumstances in which they were committed show that its actual motive was to secure recognition and a contract with WKRG. It is true , as the Trial Examiner has found , that one of the normal, foreseeable results of the Respondent Union's picketing and its advertising campaign, was to induce a willingness or readiness on the part of WKRG and its employees to resume contractual recognition of the Respondent Union as the employees' ex- clusive bargaining representative . It does not necessarily follow, however, that this was the Respondent's objective or motive. For the presumption that the normal, foreseeable consequences of an act indicate the motive of the actor, is a rebuttable presumption . And in the present case , the Trial Examiner is of the opinion that the presumption has been clearly rebutted not only by the Respondents' witnesses' denials, but by their explanations-consistent with and even supported by the undisputed facts in the case-that their sole motive was entirely different and that the possible effect of the Respondent Union's acts upon WKRG and its employees was purely incidental. The uncontradicted evidence in the record presents a situation in which the testimony of Burns, Raybon , and Allen as to the Respondent Union's objective for its picketing and advertising campaign , appears to be completely credible. Respondent Union had just lost the election and the right to represent WKRG's employees . But of greater concern to the Respondent Union than the loss of WKRG's employees was the possibility that its representation of the employees of all the other stations in Mobile might be seriously affected. For, as the record shows, it had good reason to believe that WKRG would institute the "combo" operation for which it had pressed in its recent contract negotiations with the Respondent Union and might also institute other changes in its existing working conditions and thus gain advantages that the competing union stations would also demand of the Respondent Union as the representative of their employees . Indeed, such demands were in fact made of the Respondent Union by two of the union stations . Therefore, it appears natural that, as the Respondents ' witnesses testified, the Respondent Union was primarily concerned with the problem of dealing with such demands, countering them in some fashion , and continuing its effective representation of the union stations' employees . In this setting , it is also quite believable that , as Burns, Raybon, and Allen testified , the Respondent Union decided to picket WKRG and attempt to induce a transfer of business from WKRG to the union stations , in order "to prove to the other stations that it is more profitable to operate with the union than without " and thereby to enable it in its dealings with the union stations to preserve for their employees the existing level of wages and working conditions. The Trial Examiner accordingly credits the testimony of the Respondents ' witnesses and finds , as the Respondents contend, that the Respondent Union's objective was to enable it to preserve and maintain the level of wages and working conditions for the employees of the union stations in Mobile whom it represents. The Trial Examiner credits the further testimony of the Respondent Union's witnesses that it was not also one of the Respondent Union 's objectives to bring pressure upon WKRG and its employees in order to gain recognition or a contract with WKRG. In this connection , the Trial Examiner credits the testimony. of Burns that early consideration of such a possibility was rejected as improper upon AMERICAN LIFE AND ACCIDENT INS. CO. OF KENTUCKY 529 Attorney Adair's advice, and that, upon Adair's further advice, the Respondent Union entered upon its campaign solely for the purpose of protecting the working conditions of the union stations' employees whom the Respondent Union still represents. Furthermore, it appears clear from the evidence that at no time since its loss of the representation election has the Respondent Union approached WKRG in an attempt to secure either recognition or a contract, that it has not attempted to organize or secure bargaining authorizations from WKRG's employees, and that it has taken no steps which could possibly be regarded as showing an interest in resuming its representation of WKRG's employees. Upon the foregoing considerations, the Trial Examiner finds and concludes that: (1) The evidence does not support the allegation of the complaint that the object or purpose of the Respondent Union's picketing and advertising campaign was to force WKRG to recognize or enter into a contract with the Respondent Union as the exclusive bargaining representative of any of its employees. (2) On the contrary, the evidence shows that, faced with the threat that WKRG's nonunion operation would create pressure from the competing union stations in Mobile to lower the local level of working conditions, the Respondent Union's sole object and motive for its action was to protect its bargaining position with these competing union stations by increasing their advertising revenues through a transfer of WKRG's advertising and, by this showing of advantage in operating under union conditions, to enable the Respondent Union to preserve for the union stations' employees their existing wages and working conditions. (3) Under the Board's decisions in the Curtis Brothers and Alloy Manufacturing Company cases (supra), the evidence does not warrant a finding or conclusion that the Respondents or either of them committed an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. WKRG-TV, Inc., an Alabama corporation, is engaged in a business affecting commerce within the meaning of the Act. 2. Radio Broadcast Technicians, Local Union No. 1264 of the International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of the Act. 3. Neither the aforesaid labor organization nor J. C. Burns, its business agent, has engaged in unfair labor practices within the meaning of the Act. [Recommendations omitted from publication.] American Life and Accident Insurance Company of Kentucky and Insurance Agents' International Union , AFL-CIO. Case No. 8-CA-1364. April 1, 1959 DECISION AND ORDER On October 15, 1958, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, a supporting brief, and a request for oral argument.1 1 Because in our opinion the record , exceptions , and brief adequately set forth the issues and positions of the parties, this request is hereby denied. 123 NLRB No. 64. 508989-60-vol. 1:3 3-3 5