WGOK, Inc.

WGOK, INC. 959 CONCLUSIONS OF LAW 1. Respondents constitute a single employer which is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. It has not been established by a preponderance of the evidence that Respondents ,engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act,as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the complaint herein be dismissed in its entirety. WGOK, Inc. and Carl F. Bouler and William Langley WGOK, Inc. and Radio Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL- ,CIO. Cases Nos. 15-CA-2299(1), 15-CA-2299(2), and 15-CA- 2357. May 27, 1965 DECISION AND ORDER On June 25 , 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above -entitled proceeding, finding that Respondent had engaged in and was engaging in unfair labor practices , and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. There- after, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has -delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown , and Jenkins]. 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 Trial Examiner 's Decision, the exceptions and brief , and the entire record in these cases, and hereby adopts the findin gs, conclusions, and recom- mendations of the Trial Examiner, except as herein modified. We find merit in Respondent 's exception to the finding of the Trial Examiner that Respondent , in violation of Section 8(a) (5) and (1) of the Act, unilaterally changed the working conditions of employee Nations after the Union had become the collective -bargaining repre- sentative of the technical employees of station 1VGOK . In doing so we find, contrary to the assertion of the Respondent , that the complaint is sufficient to establish the matter as an issue in these proceedings. 152 NLRB No. 104. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, we conclude from our examination of all the evidence that the facts do not clearly establish that Nations' wages were changed after the union demand for recognition. We reach this conclusion because of Nations' acknowledgment that the change was discussed with him before it went into effect 1 and because the payroll records show that the changed rate was in effect for the biweekly payroll period beginning August 29, 1963. We find that, at the very least, this com- bination of testimony and record evidence raises a substantial question as to whether the change was in fact unilaterally instituted and put into effect only after the September 4 recognition demand. Nor does the uncertain testimony of Respondent's station manager, Grimes, with respect to this matter suffice to overcome our doubts.2 Therefore, because a preponderance of evidence does not support a finding that a unilateral change in working conditions was made after the demand for recognition of September 4, we do not adopt the Trial Examiner's 8 (a) (1) and (5) finding in this regard and we shall so modify the Order recommended by the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that Respondent, WGOK, Inc., Mobile, Alabama, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Exam- iner's Recommended Order with the following modifications. 1. Delete subparagraph (b) of paragraph 1 and reletter subpara- graphs (c), (d), and (e) accordingly. 2. Delete subparagraph (b) of paragraph 2 and reletter subpara- graphs (c) and (d) as subparagraphs (b) and (c), respectively. 3. Delete "George W. Nations" from relettered subparagraph (c) of paragraph 2. 4. Add the following as new subparagraph (d) of paragraph 2: "(d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 5. Delete the second indented paragraph of Appendix B. 'At the time of the change , Nations was not only a member but also the treasurer of the Union 2 While at one stage Respondent' s witness Grimes on cross-examination conceded he had changed Nations' pay after the September 4 demand, other portions of his testimony indicate Grimes' uncertainty as to the actual date, without his records We find his testimony only of value to establish the change was sometime near the demand for recognition and of less probative value than the actual payrolls for the period. WGOK, INC. 961 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE In the above-entitled proceeding designated as Case No. 15-CA-2299(l) and 15-CA-2299(2), the complaint l alleges that Respondent, which operates a radio broadcasting station in Mobile, Alabama, violated Section 8(a)(3), (4), and (1) of the National Labor Relations Act, as amended (herein called the Act), by termi- nating the employment of the Charging Parties because of their union membership and activities and, as to Bouler, because he testified in a Board hearing. Respond- ent's answer denied that it was engaged in commerce within the meaning of the Act and, while admitting that it had discharged the Charging Parties, denied that the discharges were for the reasons set forth in the complaint. A hearing on the issues so raised was held before Trial Examiner Sidney D. Goldberg at Mobile, Ala- bama, on September 30 and October 1, 1963, at which all parties were represented and afforded an opportunity to adduce evidence, cross-examine witnesses, and argue upon the facts and the law. Briefs were thereafter filed by the General Counsel and Respondent. Prior to issuance of a Trial Examiner's Decision in this case, a complaint in Case No. 15-CA-2357 was issued 2 alleging that Respondent was violating Section 8(a) (5) of the Act by refusing to bargain with the Charging Party in that case (herein called the Union) as the collective-bargaining representative of Respondent's employees in an appropriate unit. By its answer to that complaint Respondent again denied that it was engaged in commerce and it denied all the other allegations of the complaint. Upon joinder of issue in Case No. 15-CA-2357, the General Counsel filed a motion to reopen the record in Case No. 15-CA-2299(1) and 15-CA-2299(2) and to consolidate the cases for hearing and disposition. The motion was granted and a further hearing was held before me at Mobile, Alabama, on February 4, 1964, at which all parties in the consolidated case were represented and afforded an opportu- nity to adduce evidence, cross-examine witnesses, and argue upon the facts and the law. A supplemental brief in the consolidated case was filed by the General Counsel. For the reasons hereinafter set forth in detail, I find that Respondent's discharge of Bouler and Langley was in violation of Section 8(a) (3), (4), and (1) of the Act and that it has refused to recognize and bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act. Upon the entire record 3 in these cases, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BACKGROUND AND JURISDICTION Respondent is an Alabama corporation operating radio station WKOG in Mobile, Alabama. On April 15, 1959, it entered into a collective-bargaining contract with Channel 5 Technicians Association (which soon changed its name to Electronics Engineers Union and is herein referred to as EEU), representing the station's engi- neers. The original contract term was 2 years and thereafter automatically extended from year to year in the absence of termination notice by either party not less than 90 days prior to the expiration date. Although no notice of termination was served by either party to the contract prior to April 15, 1963,4 on the following May 12,5 EEU voted to dissolve. It thereafter distributed the funds in its treasury in accord- ance with an agreed formula and notified the two radio stations with which it had contracts (WGOK and WKRG) of its action. About the same time, the members of EEU individually applied for membership in the Union, which represents the radio technicians at the other stations in Mobile. On May 13, the Union filed a petition with the Board requesting certification as collective-bargaining representative of Respondent's employees in the unit described as "All technicians up to and including the rank of chief engineer" but excluding 1 Issued August 28, 1963, on charges filed June 11, 1963. 2 December 13, 1963, on a charge filed September 26, 1963. The transcript of testimony is hereby corrected in the following particulars: on page 69, line 10, for "Trial Examiner" substitute "Mr. Darby" ; on page 328, line 23, after "anything" insert "not"; on page 409 , line.13, for "bull scrap" substitute "bootstrap". ' There was testimony that changes in wage rates were under discussion. 5 All dates, unless otherwise specified , are in 1963. 789-730--66-vol. 15 2-6 2 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "announcers and all other employees." 6 A hearing on the petition was held before a hearing officer of the Board on June 6 and 7. The testimony at the representation case hearing shows that Respondent is one of six affiliated radio broadcasting stations known as the "OK Group." The others in this group are WBOK at New Orleans, WXOK at Baton Rouge, KAOK at Lake Charles, KYOK at Houston, and WLOK at Memphis. Each is operated by a sepa- rate corporation in which Jules J Paglin and Stanley W. Ray, Jr., together, own the the controlling interest and each of the operating licenses issued by the Federal Com- munications Commission names them as principals. In each of these corporations Paglin is president and secretary and Ray is executive vice president and treasurer. The manager of each station holds stock in the corporation operating it and is a vice president thereof. During the calendar year 1962, WGOK's business amounted to $89,000 and that of each of the other stations amounted to more than $100,000. The books of account of all six stations are kept at the office in New Orleans and all bills for services are sent from there. The bank account of each corporation is kept in the city Where it operates its station and the singe comptroller deposits its revenues there. From payrolls compiled by the respective station managers, the comptroller prepares salary checks drawn on those individual accounts and sends them to the respective managers for distribution. Ordinary expenses of each station are paid by its manager out of the local bank account but unusual expenses-such as the purchase of a new transmitter-are incurred in consultation with Paglin and Ray. There is also a single accountant for all the corporations and each of them pays its share for office services. Sales for all the stations in the group are made by a national representative chosen by Paglin and Ray. Some national advertising is carried but the stations do not subscribe to any international news service. In addition to the facts set forth above relating to the organization, operation, and commerce of the OK Group, the testimony at the representation hearing also dis- closed that Jack M Yerkes is chief engineer for WGOK and George Nations is the other regular engineer; that WGOK's license authorizes it to broadcast between sun- rise and sunset and that, during the period from April to October when the daylight hours per week exceed the 80 that would constitute a full week's work for each of the regular engineers-and when they would take their vacations-additional techni- cal help has been obtained for the past few years by part-time employment of Carl F. Bouler, George Langley, and other qualified engineers in the area whose principal employment is at other stations.? At the representation hearing and in his brief to the Regional Director, Respond- ent's counsel opposed that proceeding upon the grounds that: 1. The Employer's operations do not have a pronounced impact on commerce. 2. The unit requested consists of only one employee and is, therefore, in- appropriate. 3 The Employer's contract with EEU is a bar, and 4 Local 1294 includes supervisors and, therefore, is disqualified to represent employees. By his Decision, dated August 22, the Regional Director overruled the objections and directed that an election be held among the employees in the following unit, which he found appropriate: All engineering and technical personnel in the engineering department at Employ- er's Mobile, Alabama, operations, excluding office clerical employees, announcers, sales representatives who have no technical duties, watchmen, guards, and supervisors as defined in the Act. Respondent thereafter filed with the Board a request for review of the Regional Director's Decision. It made, in general, the arguments that it had made before the O Case No 15-RC-2729. The petition , the transcript of testimony , the brief of Em- ployer, the Regional Director's Decision , the request for review , and the Board 's Order dated September 23, 1963 , were introduced into evidence herein and have been given full eonsideration in reaching this Decision 7 Figures showing these hours of broadcasting , as well as other data which I have considered in making findings herein , appear in the attached summary table marked "Appendix A " All figures In the table not otherwise identified are taken from the daily transmittal logs of station WGOK for the calendar year 1962 and the portion of 1963 prior to September 15 (Respondent 's Exhibits Nos. 24 and 21 in evidence ). These logs are maintained pursuant to requirements of the Federal . Communications Commis- sion and all parties and witnesses concerned with them agree, that ., the data ;in them, is accurate WGOK. INC. 963 Regional Director and stated, as it did to the Regional Director, that neither Bouler nor Langley was any longer employed by it. On September 23 the Board denied the request for review except with respect to the unit issue and stayed the election pend- ing its decision on review No further proceedings have been taken in connection with the review proceeding and no decision thereon has been issued by the Board. The foregoing steps in the Union's proceeding for certification have a certain effec- tiveness in this case. Section 102.67 of the Board's Rules and Regulations, dealing with petitions for certification, provides in part as follows Denial of request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. There can be no doubt that this consolidated proceeding is related to the representa- tion proceeding and that I am bound by the Regional Director's findings insofar as the Board has denied the request for review thereof 8 Accordingly, I find that Respondent is an employer engaged in commerce and that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The discharge of Bouler and Langley 1. The facts At the representation hearing on June 6 and 7, Bouler testified at some length under direct examination by the Union's counsel and cross-examination by counsel for the Employer, now Respondent herein. He testified that for the past 4 years he had worked part time at WGOK during the period from May until September when extra technical help was needed because of the longer daily broadcasting period and that Langley had similarly filled in; that he had been originally hired by Station Manager Grimes in 1959 and that in subsequent years Chief Engineer Yerkes had called him when part-time assistance was required. Bouler also testified that Langley, whose principal employment was with him at WKRG, also performed some of the part-time work at WGOK; and that it was necessary for them to adjust their relief work at WGOK to conform to their duties at WGRG but in 1963 tried to split the extra work at WGOK evenly between them. Bouler testified that in 1962 he had been the chief officer of the EEU and had engaged in wage negotiations concerning WGOK with Grimes and Stanley Ray. He also explained that EEU had been unsuccessful in obtaining wage increases from WGOK and indicated that one of the reasons for the dissolution of EEU and the applications by its members for admission into the Union-which represented the engineers at all stations in Mobile except WKRK and WGOK-was to reinforce the strategic position of the WGOK engineers in wage negotiations. Shortly after the close of the hearing on Friday, June 7, Grimes instructed Yerkes to inform Bouler and Langley that their services as relief engineers would not be required during the approaching weekend or at any time thereafter. Yerkes testified that Grimes gave him no reason why Bouler and Langley were being discharged and that he did not learn what it was until the hearing of this case a At the same time, Grimes also told Yerkes that the man he had chosen for the part-time work would'-be in the next day and that Yerkes was to train him. A man named Gibbons relieved Yerkes for part of the time on the Saturday, Sunday, and Monday which followed. Beginning the next weekend and for 7 weeks thereafter, one Fred Taylor performed all the relief work, as well as part of the daily work during the first week in August when Nations appears to have been on vacation. During the sedofid• week in August and on the weekend following, one Westfall relieved and, on Sunday, August 25, Taylor returned. Thereafter Yerkes and Nations were on duty continuously until September 14, when the engineers of WGOK went on strike 8 The only occurrence since the representation hearing that might constitute a change in Respondent's operations is the discharge of Bouler and Langley. These discharges appear to have contributed to the Board's decision to grant review on the unit question as well as to its suspension of the review proceedings upon the issuance of the complaint in Case No 15-CA-2299(1) and 15-CA-2299(2) Both the validity of these discharges and the unit question are for decision herein "Grimes testified that he told Yerkes why Respondent would no longer employ Bouler and Langley. For the reasons stated hereinafter, I do not credit Grimes' testimony. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent's explanation of the discharge According to Station Manager Grimes, Elkins' testimony at the representation hearing that on the first four Sundays in September 1962 he had stood engineer watches at WGOK and had been paid by Bouler, whereas he (Grimes) had never seen Elkins at the station except in connection with some union negotiations, was the first intimation he had that the payroll records might not at all times accurately reflect the identity of the engineer on watch. Upon returning to his office after the hearing, Grimes testified, he checked the transmitter logs for that period against the payrolls and found Elkins' name on the logs but not on the payrolls. He testified that he also checked some of the same records for 1963 and other years and found discrepancies in connection with Bouler and Langley. After making this investiga- tion and talking with his lawyer, he instructed Yerkes to tell Bouler and Langley that their services would no longer be required. Grimes insisted that he discharged Bouler and Langley solely because the engineers-Yerkes, Nations, Bouler, and Lang- ley-had "thrown him in violation of the Wages and Hour Laws." 3. Discussion and conclusionary findings concerning the discharges There are so many defects in Grimes' justification for the discharges and so many inconsistencies between it and his other testimony that I cannot accept it as the real reason. (a) Grimes testified that: Upon his return from the hearing, he first checked the payroll records for September 1962 against the transmitter logs to see whether Elkins had worked as he testified; he then compared payrolls and logs for 1963, 1962, and 1961 and found that there were discrepancies between the payroll records and the transmitter logs reflecting the services of Bouler, Langley, Nations, and Yerkes; and he talked with his lawyer and then gave instructions to Yerkes to tell Bouler and Langley that they were no longer to work at WGOK. Yerkes testified that it was at 4:30 or 4:45 in the afternoon on June 7 that Grimes gave him these instructions and Bowler testified that it was at 5 p.m. that Yerkes called and told him not to report at WGOK.10 The transcript of testimony in the representation case shows that the hearing closed at 4:30 p in. on June 7 with Grimes as the final witness. For Grimes to have returned to his office from the hearing room, made the investigation into Respondent's records which he described, conferred with his lawyer and, at 4:45, given Yerkes instructions to discharge Bouler and Langley cannot be said, on this record, to have been phys- ically impossible. If it was done, however, I am convinced that it was done in form only and I cannot accept it as an authentic succession of events because it appears to me inherently improbable within these established time limits. (b) Yerkes testified that Grimes gave him no reason why Bouler and Langley were being discharged and that the only other discussion between them at that time was concerning the Union. On this latter point the testimony of both Grimes and Yerkes shows that they discussed Yerkes' application for membership in the Union; that Grimes said that Yerkes was a supervisor and a "company" man who could not belong to the Union, and that the Union had "stipulated" Yerkes out of the unit 11 Agreement that this was the topic of conversation is another of the considerations that lead me to find that Grimes did not refer to the payroll discrepancies as his reason for discharging Bouler and Langley 12 and to draw the inference-to be discussed here- "Both Yerkes and Bowler gave testimony carefully and in a straightforward manner and I have found no important inconsistencies within or between their statements I regard them as credible witnesses. 11 Yerkes was not a witness in the representation hearing and the transmitter logs show him to have been on duty at WGOK on June 6 from 11:45 a in. until 7 15 p m. and on June 7 from 3 30 until 4:15 a in and from 11 45 a in. until 7 •15 p in It is unlikely, therefore , that he knew what had occurred there. 11 It is also to be noted that the transmitter log sheets, both current and past, were kept in the drawer of the engineer's desk or in a cabinet in the same room Yerkes was on duty at that post all during the afternoon of June 7 and, if Grimes had taken theme sheets for checking, as he said he did, Yerkes would have been aware of Grimes' in- vestigation and, probably, its purpose. I am also convinced that, had Grimes taken the log sheets from Yerkes' desk, he would have pointed out that fact in his testimony to contradict Yerkes' statement that Grimes gave him no reason for it when he ordered the discharge of Bouler and Langley. WGOK, INC. 965 after in greater detail-that the matter really on Grimes' mind at this time was the union membership of the engineers at WGOK and the composition of a bargaining unit covering them. (c) Grimes testified, repeatedly and emphatically, that Chief Engineer Yerkes was the supervisor in charge of the engineers and all engineer work at WGOK ; that Yerkes had full authority to hire part-time engineers , to set schedules for all engineers and to prepare the payrolls covering them ; and that he had the "utmost faith in Yerkes' judgment." Consistent with this position is other testimony of Grimes , as well as that of Yerkes, Bouler, Langley, Nations, Chandler, and Riggs, that Grimes asked the engi- neer on duty to perform the various tasks expected of the technician at that part without appearing even to notice which man was there at the time . It is clear from the testimony, and I find, that Respondent , through Grimes and Yerkes, was aware of the limited supply of licensed radio engineers in the Mobile area and that, if WGOK was to be able to draw on that supply for part-time relief work, a certain flexibility was necessary to adjust to the commitments of other engineers at their principal jobs . I also find that Respondent accepted these conditions and, concerned only that the transmitter be manned as required by FCC regulations , relied upon Yerkes to assure compliance with these regulations in the operation of the transmitter. It appears that Yerkes approved the arrangement between Bouler and Langley for splitting the part-time work in 1963 and that several of the exchanges of time not shown on the payroll involved Yerkes personally. Elkins testified that it was at Yerkes' request that he had worked at WGOK in September 1962. In view of Respondent's complete delegation of this function to Yerkes, Grimes must have real- ized that he was bound by the manner in which Yerkes discharged his duties.13 Moreover, it is important to note that , although Respondent had delegated complete supervision of the engineers to Yerkes, relied upon Yerkes for preparation of the payroll data covering the engineers and knew that Yerkes had knowledge of the arrangements Grimes professed to find so prejudicial , Respondent did not discipline Yerkes or even direct him to see that these deviations did not recur but simply dis- charged Bouler and Langley. (d) Although in his testimony in this case Grimes expressed indignation that serv- ices performed for WGOK did not appear on the payroll and, conversely , that the payroll authorized payment to persons who had not personally performed services at those specific times, he admitted that there was one occasion, after he had given a personal friend, Errol Oliver, some weekend relief time, that he told Bouler not to put Oliver's name on the payroll but to compensate him out of his, Bouler 's, wages for the entire period. Also, according to uncontradicted testimony by another engineer, Chandler, on August 3, 1962, while he stood watch at the WGOK transmitter , he asked Grimes how he was to be paid for his service and Grimes said, "Carl [Bouler] will pay you. No use to go through this bookkeeping work for just a little bit of money." In addi- tion to this conciete evidence , Grimes' demeanor during his professions of indigna- tion at having been "put in violation of Federal law .... The Wage and Hour Compensation ..." had an unconvincing ring-as if he were merely simply repeat- ing, without understanding , a supplied formula.14 Mrs. Arterburn, who was in charge of the office at WGOK for several years prior to June 1963 and was a disinterested witness, testified to the casual manner in which the payrolls were prepared .'5 She stated that both she and Grimes often inserted the initials of employees who were not available when the payrolls were being pre- pared. Inspection of the payroll sheets in evidence shows that entire columns of ini- tials, supposed to be those of the individual employees, were in the same handwriting. 13 Respondent's argument on this subject appears to be predicated upon the assumption that Grimes was the only official of Respondent at WGOK In this it is mistaken ; any action taken by Chief Engineer Yerkes, within the limits of his authority in that position, is binding upon Respondent. 14 Grimes' credibility is seriously also impaired by his testimony that his investigation into the accuracy of the payroll records was undertaken as a result of Elkins' testimony that he had performed the engineer's work at WGOK on four Sundays in September 1962 whereas he , Grimes, had never seen Elkins there except once on union business , because Grimes also testified that on "Sundays I don't go to the station unless it's absolutely necessary , which it very , very seldom is . . . . 161 raise no implication that there was any wrongdoing in their preparation : only that their treatment was not any stricter than is consistent with their function as a tool for internal management. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I cannot and do not accept as credible Grimes' statement that the so-called "discrepancies" in the payroll records was the real reason why Respondent discharged Bouler and Langley. On the other hand, Executive Vice President Ray testified, at the representation hearing, that WGOK was the only one of Respondent's stations that had a collective- bargaining contract and that, although he "emphatically" did not want to, he signed it at Grimes' request. Ray also described his interviews with Bouler in the negotia- tions for this contract and said that, in expressing his refusal to grant wage increases, he "may have been a little more explicit" in his language. On the basis of Ray's testimony, there can be no doubt of Respondent's union animus and its unwillingness to have the engineers at WGOK represented for collective bargaining. In view of this background and Bouler's testimony, also at the representation hearing, that EEU had been dissolved so that its members could (and he, at least, did) apply for mem- bership in the Union and that this maneuver was designed to obtain the backing of a united union for the wage demands of the WGOK engineers, it is a justifiable infer- ence, and I find, that Respondent's discharge of Bouler and Langley on June 7 was because of their membership in and activity on behalf of the Union and that it was in violation of Section 8(a)(3) and (1) of the Act. Since Bouler's activity on behalf of the Union consisted, in part, of testifying in the representation proceeding, his discharge also violates Section 8(a) (4) of the Act.16 As an additional reason for finding the discharge of Bouler and Langley violative of Section 8(a)(3) and (1) of the Act, it is to be noted that during the representa- tion hearing Respondent contended that: (a) These engineers were not "part-time" employees but only "occasional" employees who should not be included in the unit; (b) Yerkes, as a supervisor, must also be excluded; and (c) the unit, now consisting of only one employee, Nations, would be considered inappropriate for certification under the Board's standards. The discharge of Bouler and Langley, I find, was-at least in part-to bolster Respondent's argument that the services of relief engineers were "occasional," rather than "part-time," because the personnel rendering such services was constantly changing 17 and, if this argument should be rejected, as the basis for a claim in the representation case that-whether the services of Bouler and Langley had theretofore been "occasional" or "part-time"-such services were no longer being rendered by outside engineers and the unit, being reduced to only one man, would be, theiefore, inappropriate. 18 B The refusal to bargain 1. The appropriate unit In the representation proceeding, the Board rejected Respondent's request for review of the Regional Director's Decision which held that the unit described above was appropriate for collective bargaining by the Respondent' s engineers at WGOK. Sec- tion 102 67 of the Board's Rules and Regulations, Series 8, as amended, set forth in section I hereof, precludes relitigation of that issue in this proceeding. Accordingly, I find that the following unit is an appropriate one for the purpose of collective bargaining: All engineering and technical personnel in the engineering department at Respond- ent's Mobile, Alabama, operations, excluding office clerical employees, announcers, sales representatives who have no technical duties, watchmen, guards, and super- visors as defined in the Act. 2. Composition of the unit The single question upon which the Board granted review in the representation proceeding-and which must be decided in this case-is whether "the unit sought now consists of only one employee and, therefore, is inappropriate " Although the Board's use of the word "now" in the foregoing excerpt strongly implies that it was the factual reduction of the nonsupervisory engineer force to a single employee that posed the question of a one-man unit and that Bouler and Lang- 16 Park Edge Sheiidan Meats, Inc, et a1, 146 NLRB 2S9 17I make this finding as to Respondents purpose notsiithstanding my con%fiction that such action on its part was both unconvincing in fact and inadequate in law. 1s In this connection, it is to be noted that in the representation proceeding Respondent stated, in its brief to the Regional Director and its request for review to the Board, that "since neither Bouler nor Langley are now employed by the employer there is nothing before the Board for decision" but it fails to refer to the fact, disclosed by the evidence in this proceeding, that three other engineers, Gibbons, Westfall, and Price, continued to supply Respondent with the same services previously supplied by Bouler and Langley. WGOK, INC. 967 ley, during their employment, had a status as employees that would have required their inclusion in the unit were they still employed, that implication is not so clear that I can safely consider this point foreclosed by the Board's decision and that further comment thereon is unnecessary here. Reference to the table, Appendix A, shows that a total of 514 hours of duty were actually performed by part-time engineers in 1962 and that in 1963 (using the 1962 figures for September to December, since there are no 1963 figures for these months in the record) the total was 533. These totals, compared with the 2,080 hours con- stituting a year's work (52 weeksX40 hours) for a full-time employee, show that the part-time work is equivalent to 25 percent of one full-time employee.19 It follows, therefore, that Respondent had sound reason to rely, as it did, upon part-time technical employees and that the unit herein must necessarily consist, as a matter of fact, of more than one engineer in addition to Yerkes.20 As a matter of law, pait-time technical employees, such as those in this case, drawn from the local pool of men who perform this function as a full-time occupation, doing identical work and having the same responsibilities as Respondent's full-time employee, have a community of interest with such full-time employee and, with him, should be included in the unit. The Board has recognized this principle in its deci- sions concerning part-time engineers in the radio broadcasting industry and custom- arily includes them in the unit.21 Accordingly, I find that they should be included here and that there is, therefore, more than one employee in the appropriate unit. It is not disputed that George W. Nations was the full-time nonsupervisory engi- neer employed by Respondent at WGOK during 1962 and until the strike began in September 1963. The record shows that in 1963, prior to June 7, the part-time engi- neers at WGOK were Carl F. Bouler and William Langley, and that they divided the work almost equally between them (1011/4 and 1031/4 hours, respectively). It also shows that most of the part-time work in 1962 was performed by Bouler (410 hours) and that others, including Langley, performed the balance required (104 hours).22 Accordingly, I find that during 1963 Nations, Bouler, and Langley were non- supervisory technical employees of Respondent at WGOK and are properly included in the unit above described.223 3 The Union's status as representative of Respondent's employees Nations testified that he applied for membership in the Union on May 8, that he was initiated May 25, and that, as of the date of the hearing (February 4, 1964), he was still a member. Bouler testified that he applied for membership in the Union 19 Reduction of the hours in a full year for regular employees by the 40 or 80 represent- ing vacations of 1 or 2 weeks raises this percentage 20 Respondent's contract with EEU recognized the existence of at least one such part- time position. n See Booth Broadcasting Company, 134 NLRB 817, in which a technician, holding a full-time position elsewhere, who worked 8 hours every Saturday for the past 3 months and had a reasonable expectancy of continued employment on that basis, was included in the unit, see also VIP Radio, Inc, 128 NLRB 113, 116, in which the Boaid held that three part-tune engineers , holding full-time jobs elsewhere, who put in stated hours on weekends doing work similar to that done by the full-time employees, were regular part-time employees properly included in the unit. 22 Record of part-time work performed in 1962: Month Bouler Langley Marble Chandler Elkins April-------------------------------- 58% X X X X l1ry-------------------------------- 71 X X X X June-------------------------------- 86% X X X X July--------------------------------- 92 12 29 X X August ------------------------------ 76% 32% X 4 X September -------------------------- 23 X 2% X 23 October----------------------------- 2 X X X X Totals------ ------------------- 410 45% 31% 4 23 23 In view of the nature of these cases and the result reached , it is not necessary to- and I do not-pass upon any questions concerning eligibility to vote. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on May 1, that he was initiated May 25,24 and that as of the hearing date he was still a member. Langley testified that he applied for membership in the Union on May 1, that he was initiated on July 7, and that, as of the hearing date, he was still a member. It thus appears, and I find, that from July 7 forward all the nonsupervisory technical employees of Respondent at WGOK were members of the Union and that the Union was their executive representative for collective-bargaining purposes. 4. The Union's demand for recognition and Respondent's refusal On September 4, J. R. Goldthwaite, a member of the law firm of Adair, Gold- thwaite and Stanford, who appeared for the Union at the representation hearing and actively participated there, wrote a letter to Robert Grimes, as vice president of "Radio Station WGOK, Inc.," referring to the Regional Director's Decision and Direction of Election in the representation proceeding and to the issuance of the com- plaint in Case No. 15-CA-2299(1) and 15-CA-2299(2). The letter then states: Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO, again requests recognition as the collective bargaining representative of the engineering and technical personnel in the engineering department of Station WGOK in Mobile, that is in the unit specified in the Decision and Direction of Election issued by Mr. LeBus and excluding those employees excluded by him. The representatives of your employees and of the local union are ready to meet with you in collective bargaining negotiations at any time. This letter was received by Respondent about the same time. Grimes admitted that Respondent did nothing with respect to the letter except turn it over to its counsel and that Respondent had not, to the hearing on February 4, 1964, bargained with the Union. At the hearing, Respondent objected to the admission into evidence of the Gold- thwaite letter, on the ground that there was no evidence that Goldthwaite was author- ized by the Union to write it. At the end of the hearing, Respondent moved to dis- miss the portion of the complaint alleging violation of Section 8(a) (5) of the Act on the ground that the General Counsel had failed to prove: (a) an appropriate unit; (b) a demand; or (c) the Union's representation of a majority.25 Decision was reserved on Respondent's motion to dismiss. It is now denied and I hold that the letter from the Union's counsel constituted an adequate demand for recognition and bargaining. In N.L.R.B. v. Columbia Enameling & Stamping Co., Inc., 306 U.S. 292, the Supreme Court laid down the basic rule that an employer cannot be held to have violated its duty to bargain in the absence of a demand there- for. In so doing, the Court pointed out (page 296) that the persons who made the request for bargaining in that case were- ... not members or official representatives of the Union and who, so far as the testimony discloses, did not then appear to the president to be authorized to speak for the Union. Here, on the contrary, Goldthwaite had no function except as the representative of the Union. He had participated in the representation hearing as its spokesman. The demand for recognition in his letter of September 4 was a continuation of the Union's effort to gain recognition as the collective-bargaining representative of Respondent's employees in the designated unit. Whether Goldthwaite is regarded as a general representative of the Union or as its attorney whose apparent authority, established by the conduct of the Union's officers during the representation proceeding,26 must be regarded as continuing unimpaired in pursuit of the same objective, I hold that Goldthwaite's letter constituted an adequate demand for recognition.27 u The date shown on his application card in the Union's files and adopted by the witness. Respondent did not file a brief after the hearing of February 4, 1964, and did not develop its argument on this point. =0 See Restatement (Second), Agency § 8 (1958). 27 See Bar ney's supercenter, Inc (128 NLRB 13255 ; enfd 296 F. 2d 91 (C.A. 3) in which the Board stated. A request for recognition need not follow a prescribed form so long as it is clear from the entire situation that all essential elements of a valid demand are present. Considering Ammond's [the union business agent] remarks on June 6 in the light of the relationship between the parties prior to that date, we are satisfied that the Respondent was aware that the Union was claiming to represent a majority of the employees in an appropriate unit and was requesting recognition. WGOK, INC. 969 The record shows, therefore, that the Union represented a majority of Respond- ent's employees in an appropriate unit when the demand for bargaining was made on September 4 but Respondent nevertheless refused to comply with the demand. Accordingly, I find that, since September 4, 1963,28 Respondent has refused to bar- gain with the Union in violation of Section 8 (a) (5) and (1) of the Act. 5. Respondent's change of working conditions Respondent conceded that a day or two after receiving the Union's demand for recognition and without bargaining with the Union on the matter, it reduced the pay of its full-time engineer, George W. Nations, from $2.835 to $2.57 per hour. In making this change in working conditions, unilaterally, at a time when the Union was the collective-bargaining representative of the technical employees of WGOK, Respondent violated Section 8 (a) (5) and (1) of the Act 29 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II and found to be unfair labor practices occurring in connection with the operations of Respondent, as described in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily terminated the employment of Carl F. Bouler and William Langley to discourage their membership in the Union and, with respect to Carl F. Bouler because he gave testimony under the Act, I shall recommend that Respondent: (1) offer them reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging if necessary any person hired since June 7, 1963, and (2) make them whole for any loss of earnings they may have suffered because of the discrimination against them in the manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289, and with interest at the rate of 6 percent per annum in accordance with the Board's rule in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent has refused to bargain with the Union as the col- lective-bargaining representative of the employees in the unit described herein, I shall recommend that Respondent, upon request, bargain with the Union as such repre- sentative with respect to rates of pay, wages, hours of employment, and other condi- tions of employment and, if an understanding thereon is reached, embody such understanding in a signed agreement. Having also found that Respondent, by uni- laterally reducing the wage rate of George W. Nations, failed to bargain with the Union, I shall recommend that Respondent rescind such reduction and make said George W. Nations whole for any loss of wages suffered as a result thereof, also with interest thereon. In view of the nature of the unfair labor practices committed, which go "to the very heart of the Act," 30 the commission of other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent cease and desist from infringing in any manner upon rights guaranteed its employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. WGOK, Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Radio Broadcast Technicians Local 1264, International Brotherhood of Elec- trical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ra The complaint alleged that "on or about May 13 and thereafter," the Union requested that Respondent recognize and bargain with it. During the hearing the General Counsel stated that such requests were made at the representation hearing. I have been unable to find any such request in the transcript of the representation case and the General Counsel has not directed my attention to it. 2D N.L.R B. v. Benue Katz, d/b/a Williamsburg Steel Products Co., 369 U.S. 736. 80N.L.R.B. V. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 The employees of Respondent described as follows. All engineering and tech- nical personnel in the engineering department at the Respondent 's Mobile, Alabama, operations, excluding office clerical employees , announcers , sales representatives who have no technical duties, watchmen , guards, and supervisors as defined in the Act constitute, and at all times material herein have constituted , a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 of the Act. 4. The said Union was, on September 4, 1963, and at all times since has been, the exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining 5. By refusing to bargain collectively with the Union as the exclusive repre- sentative of the employees in the aforesaid appropriate unit since on or about Septem- ber 4, 1963 , Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (5) of the Act. 6. By unilaterally reducing the wage rate of George W. Nations, an employee in the aforesaid appropriate unit, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 7. By discriminatorily terminating the employment of Carl F. Bouler and William Langley because of their union activity, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act 8. By discharging Carl F. Bouler because he gave testimony under the Act, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8 (a)(4) of the Act. 9. By discharging Carl F. Bouler and William Langley as aforesaid , by engaging in said refusal to bargain , and by unilaterally changing the wage rate of George W. Nations, Respondent has interfered with, restrained , and coerced its employees in the exercise of their statutory rights and has engaged in an unfair labor practice within the meaning of Section 8(a) (1) of the Act. 10. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that Respondent, WGOK, Inc, Mobile, Ala- bama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Refusing to bargain collectively with Radio Broadcast Technicians Local 1264, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit. All engineering and technical personnel in the engineering department at the Respondent's Mobile, Alabama, operations, excluding office clerical employees, announcers, sales representatives who have no technical duties, watchmen, guards, and supervisors as defined in the Act. (b) Refusing to bargain collectively with the above-named Union by unilaterally changing the wage rate of any employee in the above-described unit. (c) Discouraging membership in the above-named Union, or in any other labor organization of its employees, by discharging employees or by discriminating in any other manner in regard to their hire, tenure of employment, or any term or condition of employment because of their union or concerted activities (d) Discharging any employee for giving testimony under the Act. (e) In any other manner interfering with, restraining, or corecing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act: (a) Upon request, bargain collectively with Radio Broadcast Technicians Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described above, with respect to their rates of pay, wages, hours of employment and other conditions of employment and, if an agreement is reached, embody it in a signed contract (b) Rescind the unilateral change of the wage rate of George W. Nations. (c) Offer Carl F. Bowler and William Langley immediate and full reinstatement to the positions they held at the time they were discharged, or to equivalent positions, discharging, if necessary, persons employed since June 7, 1963, in such positions. WGOK, INC. 971 (d) Make Carl F. Bouler, William Langley , and George W. Nations whole for any loss of pay suffered by any of them as a result of the discrimination against them in the manner set forth above in the section entitled "The Remedy." (e) Preserve and, upon request , make available to the Board or its agents, for examination and copying , all payroll records , social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount ,of backpay due under the terms of this Recommended Order. (f) Post in conspicuous places at its place of business in Mobile, Alabama , includ- ing all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix B " 31 Copies of said notice , to be furnished by the Regional Director for Region 15 of the National Labor Relations Board, shall, after being signed by a duly authorized representative of the Respondent , be posted by it immediately upon receipt thereof , and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced , or covered by any other material. (g) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision , what steps Respondent has taken to comply therewith.-2 31 In the event that this Recommended Order is 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 additional event that the Board 's Order is en- forced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." 3J In the event that this Recommended Order is adopted by the Board , paragraph 2(g) thereof shall be modified to read "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply therewith." APPENDIX A Summaries of Selected Data in Transmittal Logs of Station WCOK (Respondent 's Exhibits Nos 20 and 21) Broadcasting hours Total Hours of duty per engineer month performed Hours of hours Overtime by part-time Month Daily Sunday broadcasting required hours engineers per week per per month _ week (4 weeks) am pm a m. pm (3% added) 1962 1963 January ---- -- 6 45-5 15 7 00-5 15 73% 76% 0 0 0 February ---_ 6 30-5 45 7 00-5 45 78% 81% 7 0 0 March -- ----- 6 00-6 00 7 00-6 00 83 86% 26 0 14% April--------- 5 30-6 - 15 7 00-6 15 87% 91 3/4 44% 58% 47 May --------- 5 00-6 45 7 00-6 45 94% 97% 71 71 118% June--------- 5 00-7 00 7 00-7 00 96 993% 78 86% 90% July ---------- 5 00-7 00 7 00-7 00 96 993 78 133% 79 August ------- 5 15-6 30 7 00-6 30 91 94% 58 113% 130 September--- 5 30-6 00 7 00-6 00 86 89% 38 48% October------ 6 00-5 15 7 00-5 15 773% 81% 5 2 November --_ 6 15-5 00 7 00-5 00 74% 78 0 0 December ---- 6 45-5 00 7 00-5 00 71% 75 0 0 NOTES: 1. The figures in the column "Overtime hours per month" are, as noted , based upon the conversion of weeks into months by multiplying by 4 and, therefore , are not absolutely accurate . They serve sufficiently, however, for illustrative purposes with the important exception that they do not reflect the need for outside help during the summer vacations of the regular engineers 2 The "Total engineer hours requited per week" figures are based upon the daily broadcasting interval plus 31/ hours ( 15 minutes at the beginning and end of each day required by the EEU contract). Neither this figure nor the "Hours of duty per month performed by part-time engineers" figure takes into account the times outside regular broadcasting hours when transmittal of a test signal required that an engineer be on duty or when other work was required to be performed by engineers 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B 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 Rela- tions Act, as amended, we hereby notify our employees that. WE WILL, upon request, bargain collectively with Radio Broadcast Technicians Local 1264, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all our engineering and technical personnel in the engineering department at our Mobile, Alabama, operations, excluding office clerical employees, announcers , sales representatives who have no technical duties, watchmen, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other conditions of employment and, if an agreement is reached, embody it in a signed contract. WE WILL NOT, without bargaining with the aforesaid Union, change the wage rate of any employee in the above-described unit and WE WILL make George W. Nations whole for any loss of pay suffered as a result of our unilateral change of wage rates. WE WILL NOT discourage membership in or activities on behalf of the afore- said Union, or any other labor organization, by discharging or refusing to rein- state any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT discharge any employee for giving testimony under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Carl F. Bouler and William Langley immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as result of the discrimination against them. All our employees are free to become or remain or to refrain from becoming or remaining members of Radio Broadcast Technicians Local 1264, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. WGOK, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees, if presently serving in the Armed Forces of the United States, of their rights to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, T6024 Federal Building (Loyola), 701 Loyola, New Orleans, Louisiana, Telephone No. 529-2411, Extension 6396, if they have any question concerning this notice or com- pliance with its provisions.