Tullis and Hearne Broadcasting Co.

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to rates of pay, wages, hours of work, and other conditions of employment and, if an understanding is reached , sign a written contract cov- ering such .understanding. The employees in the appropriate unit are: All regular and part-time selling and nonselling employees employed at the Employer's Philadelphia store, but excluding guards and supervisors as defined in the Act. GRUBER'S FOOD CENTER, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered , defaced, or covered by any other material. If employees have any questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania 19107, Telephone 597-7617. Tullis and Hearne Broadcasting Company and American Fed- eration of Television and Radio Artists. Cases 21-CA-6569 and 6582. June 17,1966 DECISION AND ORDER On April 13, 1966, Trial Examiner Wallace E. Royster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommend- ing 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 Deci- sion and a supporting brief, and the General Counsel filed an answer- ing 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 [Chairman McCulloch and Members Brown and Zagoria]. 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 Respondent exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner.2 i The Respondent, in its exceptions and brief , disputes the Trial Examiner's credibility findings . It is the Board ' s policy, however, not to overrule a Trial Examiner 's resolu- tions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F2d 362 (CA. 3). 2 Respondent's request for oral argument is hereby denied , as the record , exceptions, and brief adequately present the issues and the positions of the parties . We find no merit in Respondent's contention that it did not receive a fair hearing and that a new hearing should be held. 159 NLRB No. 57. TULLIS AND HEARNE BROADCASTING COMPANY 641 [The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. Add the following to the-end of paragraph 1(a) of the Trial Examiner's Recommended Order. [", except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as amended, as modified by the Labor- Management Reporting and Disclosure Act of 1959." [2. Add the following paragraph 1(b) to the Recommended Order : [" (b) Discouraging membership in or activity in behalf of Amer- ican Federation of Television and Radio Artists by means of dis- charging or in any other manner unlawfully discriminating against employees in regard to hire or tenure of employment or any term or condition of employment." [3. Add the following paragraph 1(c) to the Recommended Order : ["(c) Conditioning any offer of employment upon a promise not to file unfair labor practice charges with the National Labor Rela- tions Board." [4. Substitute the following for the second indented paragraph of the notice attached to the Trial Examiner's Decision : [WE WILL NOT prophesy that there will be cutbacks in the announcing staff should a union be selected as bargaining repre- sentative or promise more considerate treatment if a union is rejected, or in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was tried before Trial Examiner Wallace E. Royster, in San Diego, California, on September 17 and October 4, 1965.1 At issue is whether Tullis and Hearne Broadcasting Company, herein the Respondent , has by the discharge of Michael C. Ambrose, Charles R. Daugherty, and Lawrence E. Boyer discriminated against these individuals because of their interest in or support of American Federa- tion of Television and Radio Artists, herein the Union, and has threatened employ- ees with lessened employment opportunity in the event the Union won a representa- tion election. 1 Charges were filed on March 17 and 24 , 1965. The complaint issued on ' June 15 following. All dates mentioned hereafter are in 1965 except as otherwise noted. 243-084--67-vol. 159-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the ' case, upon consideration of the briefs filed and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation which owns and operates radio sta- tion KDEO in El Cajon, California. During the year preceding the issuance of the complaint the Respondent did a gross volume of business exceeding $100,000. Dur- ing the same period of time through operation of station KDEO the Respondent provided services to customers outside the State of California valued in excess of $50,000. Respondent concedes, and I find, that it is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On February 8, the Union filed a petition with the National Labor Relations Board for certification as bargaining representative of all announcers employed by station KDEO. The election was held on March 10. Charles Daugherty, then employed as an announcer by the Respondent, testified that about a week before the election, James Price, Respondent's program director and a supervisor within the Act's meaning, said that the selection of the Union would ruin ail that the stalt had been working for and adversely affect the station. Price went on to say that if the Union won the election there might be some cutbacks in the staff. About the same time, according to another announcer Michael Ambrose, Price said that he opposed the Union and that should it be certified it was likely that there would be cuts in personnel. The testimony of Daugherty and that of Ambrose as to these conversations is undenied and is credited. On the day of the election shortly before the voting took place, Howard Tullis, Respondent's president and owner, in separate conversations told Daugherty, Ambrose, and another announcer, Lawrence Boyer, that he and his partner, John Hearne, had decided that the selection of a union would be detrimental to the sta- tion in that it would not be able to compete with other stations in the area.2 The Union won the election by a vote of seven to one .3 Learning of this, Tullis asked the Board agent to exhibit the ballots to Price. The ballots were produced and checked. Tullis then asked the Board agent what would happen if he went out of business or filed a petition in bankruptcy. The agent an- swered in effect that these were decisions for Tullis to make. Tullis then asked if the Union's certification would be affected if there was a change in staff. The agent answered that the certification was valid for 1 year. Tullis finally asked how soon he would have to sign a contract. The agent answered that the Act did not require the signing of a contract but merely good-faith negotiations toward such an end. Price became Respondent's employee as program director on January 15. At the outset he told the announcers that he desired them to achieve a certain "sound" and a few weeks later congratulated them for having accomplished this in such a short time. As part of his job, Price listened to the announcers as their voices came over the air from time to time and occasionally told announcers in writing of cer- tain habits or characteristics which he desired to have corrected. According to Announcer Daugherty, Price said at some one or more of these staff meetings that he was very pleased with the work that was being done and that he had no inten- tion of making any changes in personnel. Michael Ambrose and Lawrence Boyer testified to the same effect. On March 11, Price called a meeting of the announcing staff. He said that the station could compete in sales and facilities but not in talent. Price expressed the hope that everyone would "shape up" in the next 90 days and if not everyone would z El Cajon lies on the outskirts of San Diego, California. KDEO competes with San Diego radio station. 8 This reflects the ballots cast by the seven announcers and that of James Price who, by some arrangements , was permitted to vote. TULLIS AND HEARNE BROADCASTING COMPANY 643 "ship out." Immediately after this meeting, Price gave Ambrose a 2-week notice of discharge. Price said that he was sorry to take this action because he felt that Ambrose was trying to do what Price wished and offered to help Ambrose get another job. Ambrose suggested that the discharge was attributable to the fact that the employees had voted for the Union. Price denied that this was so. Charles Daugherty testified that at the staff meeting on the day following the elec- tion, Price said that the station was weak in talent and that if the individual announcers did not improve within 90 days, he would make some changes. On March 15, Daugherty was given notice of termination effective 2 weeks later. Price explained that Daugherty was being discharged because he had failed to get the "sound" that Price wanted. Lawrence Boyer began his vacation on March 13 and returned to work the eve- ning of March 22. The next day he was given notice of termination to be effective in 2 weeks. Price said on this occasion that Al Anthony,4 Respondent's ciireccor of operations, might give Boyer employment at another radio station owned by the Respondent in San Bernadino, California. Thereafter, Boyer had three telephone conversations with Anthony about employment. He testified that Anthony said he had persuaded the Respondent to give Boyer another chance and offered him a job on condition that he file no unfair labor charge with the Board. Boyer refused the offer. Howard Tullis testified that he had been dissatisfied with Ambrose, Daugherty, and Boyer for some period of time and that when he hired Price in January he told Price that he wanted these men discharged. Price answered, according to Tullis, that he wanted to make his own evaluation of the men in question and that any action looking toward termination should be delayed so that he might do so. In early February, Price told Tullis, both testified, that he was in agreement that the three men should be let go. Before any action was undertaken to implement this decision, however, Tullis testified, he learned of the filing of the representation peti- tion and was advised by some employee of the Board that it would be unwise to make any personnel changes with an election in prospect. Tullis then told Price, he testified, that discharges would be made right after the election no matter how the men voted. Tullis testified that Daugherty as an announcer at Respondent's station in San Bernadino had attained high ratings and was a "terrific employee." For reasons of economy, Tullis explained, Daugherty was discharged in San Bernadino and brought to KDEO in early 1963 at a lower salary. For a time Daugherty was rated as the number one announcer in the San Diego area, but his ratings fell off. Daugherty also became involved in such outside activities as running a radio school, Tullis testified, and became a problem because of debts which ripened into garnishments. Tullis explained in his testimony that, after more than 3 years' employment, Ambrose was discharged in May 1964, and rehired in November of that year. At the time of rehiring, Tullis told Ambrose that he was being given a job on a temporary basis and that he must prove he has ability to hold it. Tullis, speak- ing in general terms, said that Ambrose's work was unsatisfactory and that Ambrose, like Daugherty, had trouble with creditors. As to Lawrence Boyer, Tullis explained that Boyer had low ratings as an announ- cer and failed to take the meter readings required of him. James Price testified that in January, Tullis said the station should be provided with a new staff. Price then asked for opportunity to make his evaluation of the men and, at the end of January or early February, told Tullis that he agreed to the discharge of Daugherty, Ambrose, and Boyer. The discharges were delayed, accord- ing to Price, because of the problem of replacement and that he began looking for other announcers in early February. Shortly after the discharge the Respondent hired two new announcers, Frank Terry and Fred Kimmel. Until their hire by the Respondent, both were working for a radio station in Fresno, California, and both were known to Price by reason of previous employment relation. John W. Britt, who was in Respondent's employ at the time of the election as an announcer and who quit a few days before the hearing in this matter opened, testi- fied that on March 11, the day following the election, he heard Price offer employ- ment by telephone to Kimmel or Terry. About March 17, Charles Daugherty 4Actually named Almond -Fiori.. I have used Anthony throughout,this decision as be is so known In his occupation. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified he overheard Price telephone to Terry and Kimmel saying that they were -hired. The testimony of Daugherty and- Britt concerning these telephone conversa- tions stands undenied and is credited. • Al Anthony testified that he was "generally" dissatisfied with Boyer, Daugherty, and Ambrose and had recommended that the last two be discharged. He conceded -that he had spoken with Boyer about employment and that he had offered to give Boyer a trial -at the San Bernardino station. At some point Boyer said that he was not interested in the offer. Anthony denied that anything about filing charges was mentioned and explained that at the time he spoke with Boyer he knew of no such charges. It seems clear enough that the share of the listener market once enjoyed by sta- tion KDEO had been ebbing away . The Respondent attributed this loss in part at least to the lack of talent possessed by some of its announcers . Against this conclusion is the fact that at times Daugherty and Ambrose have had very high individual ratings as announcers in the San Diego broadcasting area. Ambrose testified that Price once told him that Ambrose was too good an announcer to be kept on an all night show . Price without explanation concedes that he said this. Ambrose and Daugherty both testified that prior to the holding of the election Price attributed the low standing of the station to its wattage and prophesied that when it was increased as expected , its competitive situation would improve. About -3 weeks before the election, according to the undenied and credited testimony of Daugherty, Price said that Daugherty had more talent than his principal com- petitor and would eventually exceed that competitor's ratings. There is testimony to indicate that employment by the Respondent carried with it an extraordinary hazard; that discharges were sometimes made for whimsical or capricious reasons. Boyer testified, and in the absence of contradiction, I credit his testimony, that a few minutes before the election Tullis told the announcers "Prior to this time this station has been known for letting people go, but all of this is going to change." The significance of this quotation is not crystal clear but considering the context of its utterance , it seems probable that Tullis was tell- ing the announcers that if they would forego the Union he would treat them with more consideration. I do not credit the testimony of Tullis and Price that the former told Price of his desire to discharge these three men in mid -January and that Price, a few weeks later, agreed to take that action . I am convinced that had the Respondent been so dissatisfied with Ambrose, Daugherty, and Boyer as it now claims that it was, Price would have indicated in some fashion to one or to all of them that because of such dissatisfaction their employment was in danger. On the contrary , Price praised his staff, told Daugherty that he would overcome his competitor, and expressed confidence that when the broadcasting strength of KDEO's signal was increased the station would regain its listeners . I also do not credit the somewhat vague testimony of Price that beginning in early February he sought to line up replacements for the men later discharged . He testified that he had an understanding with Kimmel and Terry antedating his actual employment with the Respondent to the effect that they would be interested in employment with KDEO when the opportunity arose. I am convinced and find that Price made no job offer to either of these men from the time that he started work on January 15 to March 11. The expressions of dismay coming from Tullis when the result of the election was made known to him are significant. What, asked Tullis, would happen if he went out of business , or filed a petition in bankruptcy, or made changes in the staff? On this occasion Tullis seems to have been casting about rather wildly to find some escape from the obligation to bargain with the Union. When there appeared to be none he turned to the weapon of discharge as a means to visit a penalty upon employees who had brought this misfortune upon him. Finally, Price had prophesied that a union victory would be followed by a cut in the staff. It was. A-consideration of all the evidence in the record leads me to conclude that Tullis, angered and disappointed with the election result, took retributive action against the three men who were discharged .5 I find that the Respondent discriminated against Ambrose , Daugherty, and Boyer by terminating them to discourage membership in and support for the Union and that the Respondent thus engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5I find that the decision to discharge Boyer was made before March 22. Thus, any failure to take meter readings on that date is irrelevant. TULLIS AND HEARNE BROADCASTING COMPANY 645 In denying that he mentioned filing charges along with whatever offer of employ- ment, tentative or otherwise , he made to Boyer, Anthony asserted that he could not have referred to any charge relating to Boyer because he knew of none. At the time when Anthony had his telephone conversations with Boyer, his office was in Respondent's headquarters in Los Angeles. On March 24, Boyer filed a charge with the Board asserting that he was unlawfully terminated . Notice of this filing was served upon the Respondent on March 25 . Boyer testified that he last spoke to Anthony concerning employment on March 29. There is nothing in the record to suggest that his recollection of the date is inaccurate and I accept his testimony in this particular . It was of course on this last occasion when Boyer refused what- ever offer of employment was made. Considering the circumstance that Anthony was then as he is now Respondent 's director of operations with an office at Respondent's headquarters , it is unlikely that by March 29 he was unaware of Boyer's charge. I find that when he last spoke to Boyer, Anthony knew that Boyer was asserting through the machinery of the Board that his discharge stemmed from unlawful considerations. I credit Boyer's circumstantial testimony that Anthony conditioned employment upon not filing or perhaps not pursuing a charge. By imposing such a condition through the agency of Anthony, the Respondent discrim- inated against Boyer and engaged in unfair . labor practices within the meaning of Section 8(a) (4) of the Act .6 By the discharges, by the condition attached to the job offer to Boyer, by threatening cuts in the staff in the event of union victory in the election, and by suggesting that employees would receive more considerate treatment if they rejected the Union, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent has discriminatorily discharged Michael Ambrose, Charles Daugherty, and Lawrence Boyer, it will be recommended that the Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges and make each whole for any loss of pay suffered as a result of the discrimination by payment to each of a sum of money equal to that which he would have earned in his employment from the several effective dates of discharge to the dates of offer of reinstatement less net earnings during such periods in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sums to be computed in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Tullis and Hearne Broadcasting Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of Television and Radio Artists is a labor organization within the meaning of Section 2(5) of the Act. 3. By the discriminatory discharges of Michael Ambrose, Charles Daugherty, and Lawrence Boyer, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. O The complaint alleges this conditioning of employment to be a violation of Section 8(a) (3) of the Act. I find it to fit more comfortably within the prohibitions of Section 8(a) (4). 646 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD 4. By attaching an unlawful condition to the employment offer to Lawrence Boyer, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (4) of the Act. 5. By the discharges, by threatening cutbacks in employment should the Union win the election, by conditioning the employment of Boyer upon his agreement not to file unfair labor practice charges with the Board, and by promising more con- siderate treatment if the Union was rejected, the Respondent has interefered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that Tullis and Hearne Broadcast- ing Company, El Cajon, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from prophesying a cutback in personnel should the employ- ees select the Union to represent them, or promising more considerate treatment should they reject the Union, or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Michael Ambrose, Charles Daugherty, and Lawrence Boyer and make each whole for any loss of earnings suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records which are neces- sary to a determination of the amounts due under the terms of this Recommended Order. (c) Notify Michael Ambrose, Charles Daugherty, and Lawrence Boyer if pres- ently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its radio station in El Cajon, California, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision, what steps it has taken in compliance .8 7In 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 further event that the Board's Order is enforced 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." In the event that this Recommended Order is adopted by the Board, this provision 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 herewith." NATIONAL CAN CORPORATION APPENDIX 647 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activity in behalf of American Federation of Television and Radio Artists by means of discharge or in any other manner unlawfully discriminate against employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT prophesy that there will be cutbacks in the announcing staff should a union be selected as bargaining representative or promise considerate treatment if a union is rejected. WE WILL NOT condition any offer of employment upon a promise not to file unfair labor practice charges with the National Labor Relations Board. WE WILL offer to Michael Ambrose, Charles Daugherty, and Lawrence Boyer immediate and full reinstatement each to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make each whole for any loss of pay resulting from the dis- crimination against him. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. TULLIS AND HEARNE BROADCASTING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Michael Ambrose, Charles Daugherty, and Lawrence Boyer if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone 688-5229. National Can Corporation and United Steelworkers of America, AFL-CIO, District 31, Sub-District 4 National Can Corporation and United Steelworkers of America, AFL-CIO, District 31, Sub-District 4, Petitioner. Cases 13-CA- 6861 and 13-RC-10399. June 17,1966 DECISION AND ORDER On February 16, 1966, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled consolidated proceeding, finding that 159 NLRB No. 66.