Fort Smith Broadcasting Co.

FORT SMITH BROADCASTING COMPANY 759 changes in employment status. As intermediaries between their de- partment foreman and the other employees in their respective depart- partments, they routinely distribute work on the foremen's specific instructions and relay to the foremen all grievances and requests for time off or requests for raises received from employees. They are hourly paid, punch timeclocks, do not attend supervisors' meetings, and have substantially the same hours, vacations, and other conditions of employment as the employees they assist. They collaborate with the foremen or the assistant foremen in instructing new employees. They report defective work, but their recommendations in that regard are not solicited. They seek to remedy defective work by warning and assisting employees in correcting their errors. Although they re- ceive slightly higher pay since their promotion to monitors, such pay merely reflects their greater skill and experience. On the basis of the foregoing, we find that the two monitors herein are not supervisors within the meaning of the Act and that they are properly includible in the established production and maintenance unit.5 [The Board granted the motion to clarify the bargaining unit filed by United Electrical, Radio and Machine Workers of America by including in the production and maintenance unit those employees classified as monitors.] 5 Photo PiaBtic8 Corporation, 127 NLB.B 1511. Fort Smith Broadcasting Company and International Brother- hood of Electrical Workers, AFL-CIO, Local Union 1304. Case No. 26--CA-1554. April 13, 1964 DECISION AND ORDER On December 11, 1963, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respond- ent 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 attached Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Deci- sion and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 146 NLRB No. 99. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with one addition. The following shall be added to para- graph 1: (d) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment, with International Brotherhood of Electrical Workers, AFL- CIO, Local Union 1304, as the exclusive representative of all the combination control-announcers and engineers employed ut Ra- dio Station KFSA, excluding all other-employees such as office clericals, professionals, guards and watchmen, and supervisors as defined in the Act. ' While Member Jenkins concurs in the affirmance of the Trial Examiner's findings of violation, he dissents from that portion of the remedy in which the Trial Examiner denies backpay to the employee found to have been discriminatorily suspended , but not dis- criminatorily discharged . He would award the employee backpay for the period between the discriminatory suspension and the discharge for cause on the ground that to do other- wise deprives the offended employee of earnings to which he is entitled , permits the Employer to benefit from his unlawful conduct, and in effect forces the employee , through the Employer's violation , to bear the financial costs of an investigation leading to his ultimate discharge . In Member Jenkins' view the fact that the employee's serious mis- conduct which justified the discharge was not discovered by the Employer until after the discriminatory suspension precludes the Board from withholding the backpay This result is required by well-established precedent . Syracuse Tank d Manufacturing Company, Inc., 133 NLRB 513, 544-545 . The fact that an employer may have good cause for dis- charging an employee clearly does not justify a discharge for an unlawful one. Nachman Corporation, 144 NLRB 473 ; Albert Simon, Inc., et al, 144 NLRB 1254. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge and amended charge filed on June 12 and July 19, I063, respec- tively, by International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1304, herein called the Union, a complaint was issued on July 26, 1963, alleging that Respondent, Fort Smith Broadcasting Company, had violated Section 8 (a) (1), (3), and (5) of the National Labor Relations Act. Respondent filed an answer deny- ing that it had engaged in any of the unfair labor practices alleged . A hearing was held before Trial Examiner Fannie M. Boyls on September 6, 1963, at Fort Smith, Arkansas. All parties were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to present pertinent evidence , to argue orally, and to file briefs None of the parties, however, has filed a brief. Upon the entire record in this case and from my observation of the witnesses at the hearing, I make the following: FINDINGS OF FACT I. THE RESPONDENT'S BUSINESS Respondent is a Nevada corporation having a place of business in Fort Smith, Arkansas, where it is engaged in the operation of radio station KFSA. In the course and conduct of its business during the 12-month period preceding the issuance of the complaint, Respondent had a gross income in excess of $100,000 and received directly FORT SMITH BROADCASTING COMPANY 761, from sources located outside the State of Arkansas in excess of $8,000 for services performed in the course and conduct of its business in Arkansas. During the same : period it purchased and received at its Arkansas location supplies and services valued in excess of $500 directly from points located outside the State of Arkansas. Re-. spondent concedes and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. . U. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1304, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues Between the time the Union requested Respondent to recognize and bargain with it' as the representative of Respondent's combination control-announcers and engineers and the date of a scheduled representation election, Respondent suspended, then, discharged, a union member , Jerry Pitcock, and engaged in other conduct which the General Counsel alleges to be in violation of Section 8(a)(3) and (1) of the Act. The issues are whether the suspension and discharge of Pitcock were discriminatorily motivated, whether Respondent, through its station manager , Bill Crews, coercively, interrogated and threatened an employee upon learning about the selection of the Union by some of the employees, and whether Respondent , in refusing to bargain with the Union, was motivated by a good-faith doubt of the Union's majority status' in an appropriate bargaining unit. The evidence relevant to these issues is set forth below. B. The Union's request for bargaining and Manager Crews' reaction thereto On May 8, 1963, after five of Respondent's employees had signed cards authorizing' the Union to represent them,- Union Representative Taylor Blair called Station Manager Bill Crews and informed him that he had signed up a majority of Respond ent's control-announcers and engineers, the only employees his union was interested, in representing, and requested that Respondent negotiate a contract . Crews stated that he knew one of the engineers had not signed a card because he was in a hospital and also that an announcer, Jim Pitcock, had not signed . Blair replied that Jim Pit- cock had signed . In response to questions whether , two other announcers, Jerry Pitcock and Cliff Walker, had signed , Blair replied in the affirmative. He offered to and did read off the names of all five employees who had signed. This number con- stituted a majority of the employees in the unit which the Union sought to represent. The telephone conversation was concluded with Crews stating that he would see about the matter and requesting Blair to call him back in about an hour. Being unable to reach Crews when he called back , Blair about 1 or 2 p.m. called John Whitt, the broadcast supervisor for four radio stations and two television' stations in the Donrey Media Group of which Respondent's KFSA radio station was a part. Blair had previously negotiated with Whitt in connection with TV station KFOY at Hot Springs, Arkansas (which was also in the Donrey Media Group), at which the Union had been selected as bargaining representative, and knew of Whitt's connection with Respondent . Blair told Whitt that the Union represented a majority of Respondent's control-announcers and engineers and requested that Whitt negotiate with the Union as the bargaining representative of those employees . Whitt replied, that he would talk to Crews about the matter and give Blair an answer the next' day. On the next day, May 9, Whitt wrote Blair, "This will advise that Fort Smith Broadcasting Company has declined recognition and requests that an election be held." On May 10, Blair wrote Crews a letter in which he purported to review the conversations he had with Crews and Whitt on May 8, again named the employees' who had signed union cards, claimed to be the bargaining representative of the control-announcers and engineers, and requested a meeting at which the cards could' be checked by Respondent to settle any representation question without the delay which a Board-conducted election would entail. On May 11, Blair replied to Whitt's letter of May 9, enclosing a copy of his letter to Crews and a representation petition he had filed with the Board 's Regional Office. He suggested a meeting at which the Union by a show of signed cards could demonstrate its majority status in the unit it represented and at which the parties' could start negotiating a contract. Neither Crews nor Whitt apparently replied to Blair's letters. However, on May 16, a stipulation for a consent election in the unit 762, DECISIONS -OF NATIONAL LABOR RELATIONS BOARD requested by the Union was signed by representatives of Respondent and the Union and an election was scheduled for June 13. Due to events which are described below and the filing of unfair labor practice charges by the Union, the election was not held.' C. Manager Crews' conversations with employee Jim Pitcock on May 8 - On May 8, when informed by Blair that the Union had signed up a majority of the control-announcers and engineers, including Jim Pitcock, Respondent's senior announcer and news director (hereinafter referred to as Jim to distinguish him from his brother Jerry Pitcock), Crews was at home preparing to leave on a 2-week vacation. He was concededly upset over Blair's report. He telephoned Jim at the station shortly after talking to Blair and told Jim in an angry tone, "I thought you were a loyal employee." Jim replied that he was loyal. Crews then asked, "Where do you think you will use a union card?" In asking this question, Crews testified, and I find, that he was referring to the well-known fact that Jim was planning to leave Respondent's employ soon but at a date as yet undetermined.2 Jim in turn was quite upset over the telephone call he received from Crews. The two had been very close friends. Jim was the fourth Pitcock to work for KFSA, either at the radio station or at the TV station, and Crews had been of assistance to Jim and other members of his family throughout the period Crews had been with the station. Crews had encouraged Jim to go to junior college and had arranged his work schedule so that he could attend. Jim testified that he had considered Crews one of the best friends he ever had. Mrs. Crews testified that she and her husband felt that Jim was a close friend of the family and both were very fond of him. Accordingly, as she testified, her husband was "totally heartbroken" and felt "be- trayed" upon learning that Jim had joined the Union. After finishing his work at the station on May 8 and consulting with a couple of friends as to what he should do about Crews' reaction to his having joined the Union, Jim drove out to Crews' house to see him. Crews at first protested against talking to Jim telling him he was not supposed' to do so. Jim was invited into the house only after insisting that they had been friends a ldng time and he did not want to let what had happened interfere with their friendship. They discussed the Union and who was in its Crews said that he could understand why employee Cliff Walker and Jim's brother Jerry would join the Union but could not understand why Jim or Stewart Hyden had joined because they had been such good friends and Crews and his wife had done so much for Hyden and his family. During the conversation, Mrs. Crews walked into the room and expressed sentiments similar to those voiced by her husband. At one point in the conversation Crews asked whether Bob Curtis, a salesman at the station, knew anything about the Union and when Jim replied that he did, Crews expressed the view that that made Curtis "one of the bunch" because he had not informed Crews of the union movement. Crews also commented that if he had been at the station that afternoon he "would have knocked a couple of heads." At one point Crews asked Jim, "How do you think I feel being the manager of the first radio station in Arkansas to go union?" He told Jim, in discussing future policy at the station, that "the first time someone goofed up that would be it." Jim told Crews that "he was doing something like playing follow the leader when he joined the Union" and that he did not want to have anything to do with the Union if Crews did not want him to because he valued Crews' friendship so much, adding, "Besides, I am leaving this station and it is sort of insignificant to me whether I join or not and it is significant whether I keep you as a friend." 4 Jim testified that as he left Crews' house that afternoon, he left with the impression, which he had conveyed to Crews, that he would not be a member of the Union. 1 There is no substantial dispute concerning the findings above set forth which are based upon the mutually corroborative or undisputed testimony of Blair, Crews, and Whitt. 2 Respondent thereafter received a letter of resignation from Jim on May 23, and his resignation became effective on June 5. 8 Jim testified that during the discussion Crews asked who was in the Union and Jim named the employees. Crews testified that he already knew who had joined the Union since Union Representative Blair had told him, and that he did not ask Jim who had joined. I do not think it important under the circumstances to resolve, and I do not resolve, this conflict for it would be unrealistic to isolate an incident of interrogation from its setting and base any unfair labor practice finding on that incident alone. I shall, rather, evaluate the entire conversation in determining whether it had an unlawfully coercive effect. 4 The above findings are based upon the mutually corroborative and undenied portion of the testimony of Crews and Jim. FORT SMITH BROADCASTING COMPANY 763 Crews at the hearing frankly conceded that he did not want a union at the radio station. He explained, "I think it was mostly an affront to my pride in that I could not deal with the personnel well enough that they would have to go out and seek other people or someone to bargain for them ." He had considered Jim, his senior announcer, as a leader of the employees at the station and it was obvious from his attitude toward Jim at the hearing that he never forgave Jim for his supposed act of disloyalty in joining the Union , especially without even consulting Crews before- hand about his intention to do so. Crews appeared to be a well -meaning but very emotional man. In telephoning Jim and characterizing Jim's act of joining the Union as an act of disloyalty, I am satisfied that he acted impulsively and not with any planned intent to restrain or coerce Jim in the exercise of his organizational rights. The same is true of his later statement to Jim that "the first time someone goofs up, that would be it." Neverthe- less, these statements were inherently coercive in their nature and Respondent must be held accountable for the coercive effect which they in fact had upon Jim and which they would tend to have upon other employees who may have learned of the state- ments. There is no evidence, moreover, that Crews in calmer moments ever did anything to reassure Jim or other employees of their right to engage in union activities without recrimination. To accuse an employee who is a close friend of disloyalty, it would appear to me, is a threat of withdrawal of a valued friendship and may be just as coercive as a threat of job reprisal-a type of threat which Crews also made. The coercive effect of Crews' statements to Jim was graphically illustrated by Jim's assurance to Crews that he would not remain in the Union if Crews did not want him to and his testimony at the hearing that he did not consider himself any longer a union member when he left Crews' house. I find that these statements were in violation of Section 8 (a) (1) of the Act. D. The suspension and discharge of Jerry Pitcock Jerry Pitcock, Jim's younger brother, started working at the radio station as an announcer about May 1962, at the age of 18. As already noted, he was one of the employees who joined the Union by May 8, but it does not appear that he was any more active in its behalf than any other employee. ' From almost the beginning of his employment until his suspension on May 22, 1963, Respondent had been having trouble with him of one sort or another, principally due to his immaturity and poor judgment and his apparent insensitivity toward the feelings of some of the people with whom he dealt . Jerry was also a problem child at home and his mother on more than one occasion had telephoned Crews and asked him to talk to Jerry and attempt to straighten him out. Crews had reprimanded Jerry on a number of occasions and testified that he had several times contemplated dispensing with Jerry's services . In late February or early March 1963, after Jerry had caused Respondent financial loss as the result of an erroneous announcement over the radio and a failure promptly to correct it, Crews told Jim that he was going to terminate Jerry's employment. Jim pleaded with him to give Jerry another chance and he decided to do so, according to Crews, because of his friendship for Jim, because of Jerry's physical handicap (apparently a malformed eye condition), and also because it was "extremely convenient to have someone in Fort Smith that you could call on, especially on weekends and when somebody was sick , someone who at least was familiar with the board operation . the board meaning the control room work, the actual production of the program." Coincidentally , on the day following Crews' initial determination to discharge Jerry, an experienced radio announcer, Stewart Hyden , applied for a job and Crews promptly hired him. When Hyden reported for work a few days later, Jerry was transferred to regular weekend announcing . Jerry was still working on this part- time basis at the time of his suspension on May 22. The incident precipitating Jerry's suspension was an altercation on 'May 21 between Jerry and Bob Curtis, a 27-year-old salesman employed by Respondent . Curtis de- scribed what happened as follows: Jerry came up behind me and pushed me, not hard , but it was annoying be- cause I wasn't in a playful mood . I was rather perturbed at the youngster to begin with and I didn't feel like playing with him and I said, "Leave me alone," and he made some remark about my shirt , which wasn't any degrading remark but it was, as I stated earlier, I was irritated and he knew it and I didn't want to play with him and I said, "Leave me alone. I don 't want to play with you." And he said something else that I don't even recall ' because I was upset at the time and I just knew that he was needling at me and I said , "Jerry, if you do not leave me alone , I am going to hurt you." 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The final thing that I recall him saying was something about, "Well, you just call your dad," or something like that of that nature. I think I did say something to his brother. I said, "Jimmy, tell Jerry to leave me alone." I think I did, I'm not sure, but it seems as though I did. So when he said this I grabbed him and I slapped him one time and I pushed him back and I said, "If you don't leave me alone, I'm not playing with you, the next time I won't slap you, I will use my fist." And I turned around and walked away and he picked up the phone and said he was going to call the police and I told him that I knew the number and that I would get my money's worth if he wanted to call. That it would be worth the fine. After' this, his brother and I, his older brother and I, whom I stated we were very good friends and we went outside and had a Coke and we talked the situation over. This account does not vary significantly from that of Jerry and Jim and has cor- roboration in the testimony of Sue Freeman, Respondent's bookkeeper, and Robert Platt, a self-employed radio engineer, who were working in adjoining rooms and overheard what was said. I accept Curtis' version as substantially accurate .5 Jerry did not call the police, as he had started to do, nor did he do anything else regarding the incident. Jim told Curtis he thought Jerry deserved the slap but urged Curtis not to tell Crews about the incident. Curtis, however, did report the matter to Crews that same afternoon. Crews understood from Curtis that only the office girls heard the altercation. He recalled them into his office and obtained from them written statements in which they included, in addition to their versions of the altercation, other complaints they had against Jerry. On the following day, Crews mailed Jerry a notice, informing him that as of that date, May 22, he was suspended because of his "alleged altercation with Bob Curtis" and that the suspension would remain in effect until an investigation could be completed. A copy of the notice was mailed to Respondent's counsel. Curtis was not suspended or otherwise disciplined for having slapped and threatened Jerry. According to Crews, it was 4 or 5 days later when Union Representative Blair talked to him about the matter that he first learned that anyone other than Curtis, Jerry, and the two office employees were present or in hearing distance during the altercation. However, a statement given him by Frances Bratty, one of the office girls, shows that on May 22, the date of the statement, Crews was informed of Jim's presence. After talking to Blair, Crews interviewed Jim and Platt to get their 'versions. When interviewing Jim, he took the bookkeeper, Sue Freeman, along as a witness. He at no time ever questioned Jerry about the incident. 0 Curtis appeared to be an earnest but perhaps oversensitive and emotional young man He had known Jerry well since the preceding fall when he sold Jerry a car, permitting Jerry to assume the payments on it He testified that he had experienced no serious difficulty with Jerry until about a week after the employees had joined the Union. On that occasion he and Jerry became angry with each other and Jerry used some abusive language after Curtis had revealed that he knew about the employees' union affiliations but refused to divulge who told him. Curtis, as a salesman, was apparently not considered eligible for inclusion in the unit represented by the Union Upon another occasion about 2 weeks before Jerry's suspension, Curtis missed his camera from a filing cabinet where he believed Jerry had seen him place it. Believing that "per- haps Jerry had hidden it as a joke" he called Jerry about it. Jerry at first appeared angry at what he interpreted as an accusation that he had taken the camera and said he did not know where it was, then later called Curtis back and said that Darell Ramey, who had worked for Respondent prior to April 15, had the camera. Curtis then threatened that if Jerry did not call Ramey and have the camera returned to him, he would have Jerry or Ramey arrested for stealing it. Soon thereafter Curtis Informed Crews about the matter and the latter got in touch with Ramey's sister who retrieved it from Curtis' desk where Ramey had hidden it and delivered it to Crews Curtis was also upset on the morning of May 21 when Jerry "in childish play" grabbed an autographed copy of a novel written by Respondent's commercial manager and re- marked, "Wby didn't the old s-o-b give us all a book?" Except for the camera incident, the record does not disclose that Curtis Informed Crews of these other grievances against Jerry but the facts recited above do tend to place in clearer focus the strained feelings Curtis had toward Jerry at the time of the altercation which precipitated Jerry's suspension. FORT SMITH BROADCASTING COMPANY 765 On the day following Jerry's suspension, his mother, Mrs. Leona Walls, called Crews at his home. She gave the following version of the conversation. When she asked Crews what had happened, he stated that he had not been at the station when the altercation occurred and suggested that she talk to Curtis. Mrs. Walls then asked Crews why he had not talked to Jerry about what had happened instead of listening only to Curtis. Crews replied, "Well, now, Mrs. Walls, . . . since Jerry joined the Union he is just another individual to me." During the course of the conversation, Crews asked her why she did not talk to her son Jim who, he stated, was not in the Union. She replied that Jim would be in the Union if he were not planning to leave the station. Crews was not questioned and did not testify regarding the conversation with Mrs. Walls. His wife, however, who heard his end of the conversation did testify with respect to it. She stated that Mrs. Walls did most of the talking but that she heard her husband tell Mrs. Walls, "that he had been more than a mother and a father to both her boys, primarily to Jim." Mrs. Crews denied that her husband had said that since Jerry had joined the Union he was just another individual to Crews. Mrs. Crews impressed me as a very sincere and honest woman and I credit her testimony that Crews did not make the latter statement, at least in so many words. On the other hand, I am convinced that Mrs. Walls was not fabricating her version and that she was probably testifying as to her interpretation of what Crews said and that, in substance, Crews indicated to her that since his employees had chosen a union to represent them he was no longer willing to act as a father and mother to her boys. Crews' suggestion that Mrs. Walls talk to Jim about the altercation, I believe, was prompted by his information that Jim was siding with Curtis rather than with his brother Jerry in the controversy.6 In view of Crews' forgiveness of Jerry upon prior occasions for his many acts of misconduct, even those causing Respondent substantial financial losses, it is not easy to understand why he would suspend Jerry on May 22 merely because of his teasing and needling of a fellow employee who had already punished Jerry by slapping him and threatening the use of further physical force against him. Crews' precipitate action against Jerry, and Jerry alone, without even a reprimand to Curtis and with- out first talking to Jerry or to Jim, who he knew had witnessed the altercation, suggests that Crews was seizing this incident as an opportunity to demonstrate to those employees who had selected the Union as their representative that they could no longer expect a tolerant and sympathetic understanding of their weaknesses and that, as he told Jim on May 8, the first time one of them "goofed up, that would be it." His conversation with Jerry's mother tends to confirm this interpretation of his action. It seems reasonable to conclude, and I find, that but for the selection by Jerry and others of the Union as their bargaining representative, Respondent would not have suspended Jerry on May 22 for his part in the altercation with Curtis. The conclusion I have reached in this respect, however, does not by any means solve the problem presented by Respondent's discharge of Jerry on June 4. While purport- ing to investigate the altercation which precipitated Jerry's suspension, Crews un- covered evidence of other shortcomings and misconduct on Jerry's part. He testi- fied that weighing the evidence of Jerry's responsibility for the altercation along with Jerry's record of past derelictions, he decided to convert the suspension into a discharge. He accordingly wrote Jerry a letter on June 4, terminating his sevices. Crews enumerated the following difficulties he had experienced with Jerry prior to the altercation which he says he took into consideration in terminating Jerry's employment. In September 1962, Jerry was extremely rude to the choir director of the First Presbyterian Church in Fort Smith, whose music the station regularly taped and-later broadcast. The director, Mrs. James Wilson, upon listening to the broadcast and concluding that it sounded like "an old victrola that needed winding" called the station to complain. Jerry answered the telephone and, after listening to her complaint, told her there was nothing wrong with the program. She insisted that there was and that if he would listen to it he would know there was something wrong with it. Jerry thereupon told her, "Well, if you could teach them to sing up there at the church in the right way, then maybe it would sound good when it comes out over the radio." Mrs. Wilson was quite upset about the conversation when it occurred. She did not report it to Crews until she was able to laugh about it. Crews soundly rebuked Jerry for his conduct upon this occasion. 9 Jim had told Curtis immediately following the altercation that Jerry deserved the slap Curtis gave him and he later told Curtis that his family was "mad" at him for taking Curtis' side. 766 DECISIONS OF NATIONAL LABOR RELATIONS - BOARD Crews testified that upon one occasion he felt compelled to make a refund to the First Assembly of God Church for broadcast time it had purchased when the program was off the air for 20 or 25 minutes one Sunday morning, and it was suspected that Jerry might have been asleep on the job. Although Crews did not testify with respect to it, Jerry conceded that he had indeed been asleep on the job in October 1962, during the broadcast of a football game, and that the station was off the air for about 10 minutes after the conclusion of the remote broadcast of the game. He was reprimanded by Crews upon this occasion. In late February or early March there occurred the incident following which Jerry was transferred from full-time work to part-time weekend work. On that oc- casion the Boonesville basketball tournament was to have been broadcast but due to inclement weather and anticipated difficulties in broadcasting it, Crews gave instruc- tions to Jim, which Jim transmitted to his brother Jerry , that an announcement should be made on the radio to the effect that the broadcast of the game was canceled. Jerry misunderstood the instructions and announced that the game itself was canceled. When the tournament chairman heard the announcement he immediately called the station and requested that the error be corrected. Jerry refused to do so unless so instructed by Station Manager Crews. Crews was then absent from the station and by the time he arrived it was too late fully to correct the impact of Jerry's prior announcement. Respondent made financial reparations to the tournament committee for the estimated loss of attendance fees attributable to Jerry's error and apparently would have terminated Jerry's employment at that time but for Jim's intercession. Another complaint which Crews testified he considered in terminating Jerry was that there had been occasions when Jerry had conducted contests in connection with his broadcasting which caused the listeners to use the telephones to such an extent that several people and the telephone company had complained about the tele- phone lines being tied up. Crews had to instruct Jerry to stop using that type of contest. Finally, Crews testified that he considered the fact that while on duty Jerry had repeatedly permitted unauthorized persons to visit the station in violation of a rule posted in February or March 1963, forbidding unauthorized visitors at the station after 6 p.m. Despite Crews' repeated warnings to Jerry, Jerry continued to ignore the rule. In addition to the incidents described above which Crews knew about at the time he suspended Jerry, he learned prior to discharging him on June 4 that Jerry, in order to attract more listeners to his boadcasts, had been conducting contests involving the cooperation of teenagers who, upon a signal in the music played by Jerry would simultaneously honk the horns in their cars all over town, and that Jerry had stopped this only after receiving complaints from a number of people. Crews also learned from the two office girls prior to June 4 that Jerry was boorish in his manners toward them and flippant, that he would sit at a desk in the office with his feet propped up practically in their faces, that he had sought to read over the shoulder of one of them a letter which she was typing, and that he had rudely slammed the door in the face of one of them and told her he was not the bookkeeper when she had inquired whether a customer had left any money with him. Respondent also learned of other misdeeds by Jerry following the suspension, but it is not clear whether these misdeeds came to its attention 'before the discharge and contributed to the decision to discharge Jerry or whether they were discovered dur- ing the course of preparing Respondent's defense to charges filed by the Union in Jerry's behalf. Some of these incidents appear to be of a serious nature. Thus, Ramey, whose employment with Respondent was, terminated on April 15, credibly testified that on one occasion previously mentioned when he hid Curtis' camera, he was with Jerry at the station after 6 p.m. in violation of Respondent's rule against unauthorized visitors, and that with Jerry's assistance, he had"searched the office files and desk drawers for correspondence or other matters pertaining to the proposed union election. Ramey further credibly testified that on one occasion in the spring of .1963, he saw Jerry remove the spark plug wires from Curtis' car. Curtis testified that on this occasion it cost him $25 to have the car fixed.? No useful purpose would be served by enumerating all the acts of misconduct attributed to Jerry by Respondent's witnesses. From those which have been described above, it is reasonable to assume that Crews would have discharged and refused to reinstate Jerry regardless of the advent of the Union upon discovering 7 Following Jerry's discharge and failure to pay a debt he owed Ramey, the latter apparently became bitter toward Jerry, instituted a suit against him, and informed Crews and Respondent's counsel of some of Jerry's acts of misconduct even though in doing so he also incriminated himself Jerry did not deny these accusations against him and I have no doubt that they occurred substantially as related by Ramey. 'FORT SMITH BROADCASTING COMPANY 767 the misconduct of a serious nature which came to his attention subsequent to the suspension and which was spread upon the record at the hearing in this case. I find it unnecessary to decide whether by June 4 Crews had discovered these serious misdeeds, for the nature of the belatedly discovered conduct is such that it would clearly not be appropriate to order Jerry's reinstatement or, in my view, to require that he be given backpay even between the date of his discriminatorily motivated suspension and the date of the discovery of these serious misdeeds. To be sure, had Jerry not lost his job and been unable to pay his debts, the misconduct about which Ramey informed Respondent might not have come to its attention, but Jerry prior to his suspension was guilty of those acts and, in my view, it would not effec- tuate the policies of the Act to provide him with the usual remedy for any unlaw- fully motivated discrimination against him. E. The refusal to bargain The General Counsel contends that Respondent's combination control-announcers and engineers-excluding all other employees such as office clericals, professionals, guards and watchmen, and supervisors as defined in the Act-constitute an appro- priate bargaining unit, and that on May 8, when Union Representative Blair informed Respondent that he had signed up a majority of the employees in that unit, there were seven employees in the unit, five of whom had authorized the Union to repre- sent them. The seven named by the General Counsel consisted of three engineers, Ray Whisenhunt, R. L. Sharp, and Morris Hill, and of four control-announcers, Cliff Walker, Jerry and Jim Pitcock, and T. Stewart Hyden. Five of these, Whisen- hunt, Walker, Jerry and Jim Pitcock, and Hyden, had signed union authorization cards which were introduced into evidence. At the hearing Respondent agreed that the unit requested by the Union was appropriate8 but contended that Whisenhunt should not have been included in the unit on May 8 and that its salesman, Bob Curtis, should have been. In all other respects Respondent agreed with the General Counsel's contention as to what employees were properly in the unit. Respondent's contention that Whisenhunt was not properly in the unit at that time is based upon the evidence that on May 8 he was working for Respondent only on a temporary basis while on layoff status at KFOY-TV station in Hot Springs, Arkansas. Whisenhunt did not become a permanent employee of Respondent until after the Hot Springs station was shut down. On the basis of the evidence adduced in this case, I agree that Whisenhunt should not be counted as a part of the appro- priate unit on May 8. Whether he is to be included must be determined on the basis of the situation existing on May 8 when the request for bargaining was made and not on the basis of his subsequent status with Respondent. Respondent's argument that Bob Curtis was properly in the unit is based upon the fact that, in addition to Curtis' regular work as a salesman, he on occasions assisted crews in remote control mobile unit broadcasts of sports events, sometimes acting as a stand-in for Crews. Curtis, however, had never worked as a control- announcer and never signed a log which Federal Communications Commission regulations require all announcers to sign when they go on the board. I am satisfied on the basis of the undisputed evidence that at the time of the initial request and refusal to bargain, he was not properly included in the unit agreed upon as appro- priate and I do not believe that Respondent ever seriously considered him as appro- priately in that unit .9 I find, therefore, that on May 8, when the Union requested recognition and bargaining, and on May 9, when Respondent refused to bargain, four of the six employees in the appropriate bargaining unit had designated the Union as their bargaining representative. Broadcast Supervisor Whitt testified that there was some question in his mind about the appropriateness of a unit which did not include the clerical employees. 8 The Board has found a similar unit to be appropriate in VIP. Radio, Inc., 129 NLRB 113 O There is evidence that for about 2 months prior 'to the hearing Curtis had been broad- casting at the station on Sunday mornings and on those occasions had signed a log. Although it appears doubtful that the small proportion of Curtis' time later spent in performing work in the unit could appropriately qualify him for inclusion In the unit (see Berea Publishing Company, 140 NLRB 516), I need not decide that question because for the purposes of this proceeding, his status, like that of Whisenhunt, must be determined as of the date of the Initial request and refusal to bargain. 744-670--65-vol. 146, , - 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He never communicated any such doubt to the Union, however, and on May 16 signed the consent-election agreement in which it was recognized that the unit requested by the Union was appropriate. I am satisfied that Respondent was not motivated, in refusing to bargain, by any doubt as to the appropriateness of the bargaining unit. Whitt also testified that in refusing on May 9 to bargain with the Union without an election, he was additionally motivated by the fact that Jim Pitcock, in his talk with Crews on May 8, had indicated uncertainty as to whether he wanted the Union to represent him. But as already pointed out, Jim's change of mind in this respect was brought about by Respondent's unfair labor practice. It was the fear of a loss of Crews' valued friendship, resulting from Crews accusing him of disloyalty and making other coercive statements, which caused Jim to express his willingness to give up his union membership. Respondent may not thus take advantage of its own unlawful conduct to avoid an obligation to bargain with the employees' chosen representative. I am satisfied that Respondent, by insisting upon an election to establish its obligation to bargain, was motivated by a desire to gain time in which to dissipate the Union's majority status and not by any bona fide doubt as to the appropriateness of the unit or the Union's majority status in that unit at the time of its refusal to bargain. Where, as here, the employer engages in unfair labor practices which make it impossible to ascertain the free choice of employees in an election, the Board must necessarily determine on the basis of the employees' indicated choice prior to the commission of the unfair labor practices whether a majority of them in the appro- priate bargaining unit have chosen the Union as their representative.10 I find that Respondent, by refusing to bargain with the Union on and after May 9, 1963, as the representative of its employees in the unit herein found appropriate, violated Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. By threatening reprisals against employees for joining the Union or designating it as their bargaining representative, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them under Section 7 of the Act, in violation of Section, 8(a)(1) of the Act. 2. By discriminating in regard to the tenure of employment of employee Jerry Pitcock because of the selection by Respondent's employees of the Union as their bargaining representative, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. All combination control-announcers and engineers employed by Respondent at its KFSA radio station in Fort Smith, Arkansas, excluding all other employees such as office clericals, professionals, guards and watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On and after May 8, 1963, the Union has been the exclusive representative of all the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on and after May 9, 1963, to bargain with the Union, upon its re- quest, as the exclusive representative of the employees in said appropriate bargain- ing unit, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, my Recommended Order will require Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the seriousness of certain misconduct engaged in by Jerry Pitcock prior to his suspension but which did not come to Respondent's attention until after Respondent's discriminatory action against him, I have found that it would not effectuate the policies of the Act to require Respondent either to reinstate him or to give him any backpay. The only affirmative remedy which I recommend for Respondent's unfair labor practice in this respect, therefore, is the posting of notices which will assure its employees of their right to engage in union and other pro- tected concerted activities without fear of job reprisals or other recriminations against them. 10 N.L.R B. v. Wheeling Pipe Line, Inc., 229 F. 2d 391 (C.A. 8). FORT SMITH BROADCASTING COMPANY 769 To remedy its unlawful refusal to bargain, Respondent will be required, upon re- quest, to bargain with the Union as the exclusive representative of its employees in the unit herein found to be appropriate. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening reprisals against its employees for joining International Brother- hood of Electrical Workers, AFL-CIO, Local Union 1304, or designating it as their bargaining representative. (b) Discouraging membership in the above-named labor organization or in any other labor organization of its employees by discriminatorily suspending or discharg- ing any employee or in any other manner discriminating against any employee in regard to his hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the combination control-announcers and engineers employed at radio station KFSA, excluding all other employees such as office clericals, professionals, guards and watchmen, and supervisors as defined by the Act, with respect to wages, hours, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its radio station in Fort Smith, Arkansas, copies of the attached notice marked "Appendix." 11 Copies of such notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith.ia 11 In the event that this Recommended Order be adopted by the Board, the words "A -Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing @n Order" shall be substituted for the words "A Decision and Order." 12 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations , Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten reprisals against our employees for joining Interna- tional Brotherhood of Electrical Workers, AFL-CIO, Local Union 1304, or designating it as their bargaining representative. WE WILL NOT discourage membership in the above-named labor organization or any other labor organization of our employees by discriminatorily suspending or discharging any employee or in any other manner discriminating against any employee in regard to his hire or tenure of employment or any term or con- dition of his employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, bargain collectively with the above-named labor organization in regard to wages, hours, and other terms and conditions of em- ployment in the unit composed of: All combination control-announcers and engineers employed by Re- spondent at its KFSA radio station in Fort Smith, Arkansas, excluding all other employees such as office clericals, professionals , guards and watch- men, and supervisors as defined in the Act and will reduce to writing and sign any agreement reached as a result of such bargaining. All our employees are free to become or remain members of International Brother- hood of Electrical Workers, AFL-CIO, Local Union 1304, or any other labor organi- zation, or to refrain from such membership. FORT SMITH BROADCASTING COMPANY, Employer. Dated --------- ----------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any questions concerning this notice or compliance with its provisions. Johnnie's Poultry Co. and John Bishop Poultry Co., Successor and District Union 99, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case No. 14-C A-2950. April 13, 1964 DECISION AND ORDER On May 21,1963, Trial Examiner Reeves R. Hilton issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint, and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Inter- mediate Report. Thereafter, the General Cpunsel filed exceptions to the Intermediate Report and a supporting brief and the Respondent filed a brief 1 in support of the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions as set forth below. Ac- cordingly, the Board adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent they are con- sistent herewith. 1. Contrary to the Trial Examiner, we find that Respondent violated Section 8 (a) (1) of the Net when, in the latter part of August 1962, John Bishop told employee Robert W. Haynes that the Union would ' Respondent's request for oral argument Is hereby denied as the record, the exceptions, and brief adequately present the issues and positions of the parties. 146 NLRB No. 98.