Radio Station KPOL

RADIO STATION KPOL Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL and American Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO Coast Radio Broadcasting Corporation, Employer- Petitioner and American Federation of Television and Radio Artists , AFL-CIO, Union and Gary Brandt, Edmonde Haddad, et al., Intervenors. Case 31-CA-61 (formerly 21-CA-6615) and Case 31-RM-3 (formerly 21-RM-1172) June 30, 1967 DECISION, ORDER, AND DIRECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 19, 1966, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent, Coast Radio Broadcasting Corporation, d/b/a Radio Sta- tion KPOL (hereinafter Respondent or KPOL), had not engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, and recommending dismissal of the complaint, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that the Board overrule the challenges to the ballots cast in the representation election by George Crofford, Rod Farrell, Clyde Cadwell, Al Mallicoat, and David Woods. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Ex- aminer's Decision and supporting briefs, the Respondent filed exceptions and cross-exceptions to the Trial Examiner's Decision and supporting briefs, and answering briefs were filed by the Inter- venors, the Respondent, and the Charging Party. The Charging Party requested oral argument. I Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this' case to a three-member panel. 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 en- tire record in this case, including the Trial Ex- aminer's Decision, the exceptions, the cross-excep- tions, and the briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommen- dations only to the extent indicated below. The facts, which are more fully developed in the Trial Examiner's Decision, are essentially as fol- The Charging Party's request for oral argument is hereby denied as, in our opinion, the record, including the Charging Party's exceptions, briefs, and answering briefs, adequately presents the issues and positions of the parties ' The Regional Director dismissed the decertification petition in view of the refusal-to-bargain charge. 359 lows. KPOL is a music and news radio station. Prior to the April 5, 1965, discharges that are the subject of Section 8(a)(3) charges here, KPOL em- ployed five newsmen and seven music announcers (the two functions were not interchangeable). KPOL had entered into agreements with Amer- ican Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO (hereinafter AF- TRA), for its announcers and newsmen before 1961, and had negotiated and signed a 3-year AFTRA agreement in 1961 with a termination date of April 30, 1964. A decertification petition had been filed, and a complaint had issued based on a refusal-to-bargain charge against KPOL.2 In March 1965, the Board dismissed the complaint.3 During a break in negotiations in 1964, KPOL ordered "automated" equipment that could broad- cast prerecorded music, commericals, and program aids-everything except newscasts-in the desired sequence without an attendant, thus eliminating the need for an announcer on duty whenever the station was on the air. On the basis of estimates by equip- ment manufacturers, KPOL determined that it would be able to supply all announcing require- ments for the new system with three men.4 The equipment was ordered before the resumption of negotiations, and in January 1965 two announcers approached their supervisor, Program Director Robertson Scott, for information about the new machines. Scott made a lunch appointment with an- nouncer George Crofford, at which time he re- peated the assurance he had made when first ap- proached by Crofford, that no announcer would lose his job because of the new equipment since there would be work enough for all. Announcer Rod Farrell also spoke to Scott about the new machines. Farrell thought fewer announcers would be needed, but Scott assured him that KPOL would retain the full announcing staff. On January 29, Scott sent all announcers a memorandum stating that the equipment would be installed in a few weeks but that "[o] ne thing is certain: no one will be out of a job." The expanding needs of the KPOL organization would provide work "in production, in recording music tapes, in television." (The televi- sion work referred to was in connection with a recently acquired television station.) A tentative schedule of work assignments under the new system was given, and Scott wrote that announcer Clyde Cadwell had been offered a news job,. Negotiations were resumed February 8, 1965, at a meeting attended by a representative of IBEW, for KPOL's engineers, as well as by KPOL and AFTRA representatives. At this and subsequent ' 151 NLRB 1101. The newscasting function and the five-man news staff were not af- fected by the new equipment 166 NLRB No. 72 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sessions, the KPOL representative , Frederick Custer, again assured AFTRA that all announcers would be retained when the automatic equipment was installed. Custer testified that he asked nothing in return for the assurance of continued employ- ment, although he did ask AFTRA's permission for announcers to perform new duties (some of which were currently being done by employees in the IBEW unit) and for KPOL to broadcast announc- ers' voices off their regular shifts without paying a premium. In explaining his promise to retain all announcers , Custer mentioned employment at the new television station. On February 19, KPOL filed the present petition for a representation election in the staff announcers' unit (Case 31-RM-3). Two events in March affected the economic need for announcers. An outside contractor, Alto Fonic, approached KPOL with an offer to prepare music tapes for use on the new equipment and to furnish the full-time services of one of its employees. Alto Fonic offered these services at a low price , asser- tedly because the prestige of a KPOL contract would attract other work . KPOL accepted the bid. The new KPOL-owned television station began broadcasting , but instead of the 50 to 100 advertis- ing accounts Custer had anticipated when he said there would be announcing work connected with television, the station had only 4 or 5 accounts. On April 2, at another bargaining session , Custer nevertheless repeated his offer to retain all an- nouncers. Later that day, six of the seven announc- ers and two of the five newsmen in the AFTRA unit struck in support of AFTRA's bargaining demands. KPOL hired one announcer the night of April 2; although this man, Vanderhurst , was a fulltimer, he was assertedly the permanent replacement for a part-time announcer. KPOL also ordered the final steps in the hookup of its new equipment, which had been delayed until then because IBEW had threatened to strike when the new machinery was put into use. On Monday, April 5, the parties met for a previ- ously scheduled negotiation session , which KPOL broke up when it refused to continue to deal with AFTRA as the announcers' representative, al- legedly because AFTRA had sent the Board's Re- gional Director a telegram on April 2 disclaiming representation of KPOL announcers. On the after- noon of April 5, however, KPOL revealed its true motivation when it sent striking newsman McElroy and four of the striking announcers, Cadwell, Crof- ford, Farrell, and Mallicoat, the following discharge telegram: ACQUISTITION OF AUTOMATIC EQUIPMENT HAS OPENED THE WAY FOR KPOL TO OPERATE WITH REDUCED PERSONNEL REQUIREMENTS ALTHOUGH PREVIOUSLY PREPARED TO OFFER JOB SECURITY TO THE COMPLETE STAFF OF 12 MEN OUR POSITION IS NOW THAT THE TOTAL COMPLEMENT OF AIR WORKERS WILL NUMBER 7. THIS IS TO ADVISE YOU DIRECTLY IN AS MUCH AS AFTRA HAD NOTIFIED THE NLRB THAT IT DISCLAIMS REPRESENTATION OF THIS STATION'S ANNOUNCERS THAT YOUR SERVICES ARE NO LONGER REQUIRED FOR EFFICIENT OPERATION AND YOUR EMPLOYMENT IS HEREBY TERMINATED. Frederick D. Custer McElroy was dismissed, even though the new equipment was never intended to change newscast- ing procedures. On April 7, after auditioning several applicants, KPOL hired announcer Woods, assertedly as a per- manent replacement for striking announcer Harris. After this point, KPOL was operating the new equipment with three announcers; the one an- nouncer who had not joined the strike and the two permanent replacements. The three-man staff proved inadequate , and KPOL hired a fourth an- nouncer a month later. AFTRA filed Section 8(a)(3) and ( 1) charges April 7, 1965 , and amended them April 29 by ad- ding an 8(a)(5) charge . A consent election was held April 15, resulting in three votes for AFTRA, three against, and eight challenges. The Regional Director issued the complaint on February 18, 1966, charging violation of Section 8(a)(3) and (1) of the Act; the General Counsel affirmed the Re- gional Director's refusal to issue a complaint alleg- ing a violation of Section 8(a)(5). The determination of five of the eight election challenges was later con- solidated with the unfair labor practice case.5 The Trial Examiner found that the Respondent had not unconditionally promised continued em- ployment to the discharged announcers , despite the telegram quoted above and prior assurances. Because he considered an unconditional promise of job security an essential element in finding a viola- tion, he recommended dismissal of the 8(a)(3) com- plaint. We disagree . We find that the Respondent's promise or assurance of continued employment was 5 A group of nonstriking employees of KPOL intervened in the representation proceeding , supporting their Employer on the issue of the challenges, and filed a brief with the Board. RADIO STATION KPOL 361 not on any condition, such as the conclusion of a satisfactory collective-bargaining agreement, but was wholly unconditional.6 We further find that the violation turns on whether the Respondent discharged the four announcers for reasons linked to the April 2 strike. We conclude that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by its discharge of an- nouncers Crofford, Farrell, Cadwell, and Mallicoat on April 5,1965. Ever since the new equipment was delivered to KPOL, early in 1965, Respondent had assured the announcers that their employment would be unimpaired, despite the new methods the machines made possible. The Respondent concedes this fact, and frankly admits that the April 2 strike was the precipitating event that brought about the discharges. The Respondent argues, however, that the discharges were lawful because they were not punishment or retaliation for striking, but were responses to a change in the economic situation brought about by the strike. More specifically, KPOL's argument is that the discharges were justified because based on anticipa- tion of costs which KPOL judged would flow from the strike. "A strike is costly to an employer," it ar- gues, and "threat of a strike is a powerful bargaining weapon." Therefore, KPOL claims to have balanced the costs that might be expected, as an in- herent part of a strike, against business considera- tions; and it decided before the strike, to continue paying unneeded announcers for an unspecified time in order to put off the threatened strike.7 When the strike came, however, Respondent no longer held back the discharge of the announcers. Re- spondent asserts, in effect, that it was legally en- titled, on its appraisal of the economic factors, to discharge the announcers because they changed the economic situation by going on strike. We find no merit in this argument. In the first place, the instant record plainly refutes Respondent's assertion that the discharges were precipitated by changed economic conditions resulting from the strike. Respondent has offered no objective evidence of any such changes. Indeed, no such changes occurred between April 2, when Respondent again assured AFTRA in uncondi- tional terms that automation would not result in job displacement, and April 5, when the discharges oc- curred. Both the strike and any economic con- sequences thereof were within Respondent's an- ticipation on April 2. Nevertheless, Respondent ap- parently was unconcerned with strike-caused costs at the negotiation session that morning. Its failure at that time to condition in any way its assurances of continued employment, despite the imminence of the strike, strongly suggests that the guaranteed tenure extended the announcers was neither condi- tioned upon nor influenced by an avoidance of costs inherent in strike action. Respondent's rescission of this guaranteed tenure a few days later was not ac- tuated by a genuine desire to reduce costs, as is further indicated by the plain fact that absolutely no savings could be realized by the precipitate discharge of strikers who were not even on payroll status at the time of their termination. Also signifi- cant to an assessment of Respondent's motive is the discharge of a striking newsman on the same ground as the announcers, even though the newsmen were not affected by the installation of automated equip- ment. In our opinion, these factors, particularly the timing of the discharges in relation to the com- mencement of the strike, the absence of any cogent explanation of Respondent's action other than as a strike reprisal, and the fact that Respondent, on April 5, had strong basis for suspecting that the em- ployees in the unit would support the Union in the impending election, amply establish that Respond- ent terminated the four announcers in reprisal for their union and strike activities. In any event, we wish to note that our result herein would not be altered even if we were to find that anticipated strike costs were in fact the basis for Respondent's decision to terminate the announc- ers. Insofar as the Respondent' s argument is based on its anticipation of strike costs, it must be emphasized that here the economic calculations which led to the discharges resulted from the very fact of the strike. It is in the nature of a strike to threaten disruption of business, and to produce ad- verse publicity, all potentially costly to an em- ployer. To permit employers to plead economic justification for discharging strikers because the strike removed the incentive for withholding the discharges, would, in practical effect, permit out- and-out retaliatory discharges. Employers, when- ever they chose to treat strike threats as KPOL did here, could promptly discharge striking employees, even informing them that they lost their jobs because they went on strike, and still not violate Section 8(a)(3). The instant case provides a glaring illustration of the impact of such conduct on em- ployees who exercise their protected right to strike. The Respondent repeatedly promised job security for announcers, even after it contracted for the recording of music tapes and discovered there would be little television work-right up to the day 6 In finding that the promise was not conditional, we rely on the fact that said assurance was concededly made to employees and to the Union in unconditional terms, and under circumstances which clearly disclose that Respondent sought to avoid any bargaining on this issue by assuring the Union that job security of its announcers would be preserved not- withstanding any reduction in jobs resulting from the installation of new automated equipment Respondent's conduct in no way reflected an inten- tion to relate its assurances either to the outcome of bargaining or to the absence of a strike. ' There was no attempt to spell out the costs the Respondent feared, or to show what costs did, in fact, result. Respondent, although it paid un- needed announcers for months to avert a strike, chose to dismiss them when, as strikers, they were not drawing any salary . The dismissals added a new strike issue, thus tending to prolong the strike. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strike. Three days later, the Respondent told four strikers that their jobs were gone, "although [KPOL had been] previously prepared to offer job security...." Only the strike had intervened. Since we have found that the discharges of George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat prior to the April 15 representation election violated Section 8(a)(3) and (1), we will overrule the Employer's challenges to the ballots cast by these employees. The Respondent's commission of an unfair labor practice (the April 5 discharge of four announcers), which had the natural effect of tending to prolong the strike, converted what had previously been an economic walkout into an unfair labor practice strike.8 When David Woods was hired as a replace- ment 2 days later, he replaced one or more unfair labor practice strikers entitled to reinstatement.9 We therefore find that Woods was not eligible to vote April 15, and we will, contrary to the Trial Ex- aminer's recommendation , sustain the challenge to his vote. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Since we have found that the Respondent discharged George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat because of the strike in which they were participating, we shall order the Respondent to rescind the discharges, and, upon application, offer them immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, if it has not already done so,10 dismissing, if necessary, any employees hired B See Baldwin County Electric Membership Corporation, 145 NLRB 1316, 1318. 9 The parties were in dispute as to whether Woods exclusively replaced Harris, who was not terminated but remained on strike, or also replaced, in part, two of the discharged strikers. Even if we accepted Respondent's position that Woods replaced only Harris- as the Trial Examiner found-we would still reach the result that Woods is ineligible, since the after their discharge. The requirement for reinstate- ment is limited to the level of employment in the ap- propriate positions which is called for by the Respondent's current equipment and methods of operation, since there was no violation found (or, indeed, alleged) concerning the Respondent's shift to new equipment and procedures that changed the method of performing the unit work and the number of employees needed in the unit. We will, however, order the Respondent to place discriminatees for whom work is not immediately available, after their replacements have been dismissed, on a preferential hiring list, to be hired for suitable openings ahead of employees who were hired subsequent to their discharge (i.e., after April 5, 1966), or new appli- cants. Distribution of jobs to the discriminatees pursuant to this Decision shall be in accordance with nondiscriminatory practices heretofore applied by the Respondent in the conduct of its business. We shall also order the Respondent to make whole the employees discriminatorily discharged on April 5, 1966, for any losses they may have suf- fered because of the Respondent's discrimination, by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages from the date of application for reinstatement to the date of the offer of reinstate- ment, or placement on a preferential list, as the case may be, less his net earnings during said period, the backpay to be computed on a quarterly basis, in ac- cordance with F. W. Woolworth Company, 90 NLRB 289, with 6 percent interest per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Earnings in one quarter shall have no effect upon the backpay liability for any other such period. We shall also order the Respondent to preserve and, upon request, make available to the Board its payroll and other records necessary to determine employment rights and the amount of backpay due. As it is possible, however, that work might not have been available for one or more of these em- ployees even if the Respondent had not engaged in any unfair labor practices, this possibility will be taken into consideration in determining the amounts of backpay due to these employees in compliance with our Order herein. In accordance with our conclusions respecting the challenges to the ballots of Crofford, Farrell, Cadwell, Mallicoat, and Woods, we shall direct the Regional Director to open and count the ballots of Crofford, Farrell, Cadwell, and Mallicoat, but not strike was an unfair labor practice strike on the date Woods was hired, and Hams was an unfair labor practice striker entitled to reinstatement upon application. 10 Although the Respondent sent Crofford a job offer on May 12, 1966, which Crofford declined, this offer-made while the strike was in progress - does not satisfy the Respondent's duty as set forth in the Order following. RADIO STATION KPOL that of Woods, and to issue an appropriate certifica- tion. ADDITIONAL CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in this case, we hereby adopt the Trial Examiner's Conclusions of Law 1 and 2, and, in addition, make the following Conclusions of Law: "3. By discharging George Crofford, Rod Far- rell, Clyde Cadwell, and Al Mallicoat because they participated in the April 2, 1966, strike, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." 4. The unfair labor practices found in Conclu- sion of Law 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from discouraging member- ship in American Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO, or in any other labor organization of its employees, by discharging or in any other manner discriminating against employees in regard to hire or tenure of em- ployment or any term or condition of employment. 2. Take the following affirmative action which we find will effectuate the purposes of the Act: (a) Upon application, offer to George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat im- mediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired sub- sequent to their discharge, subject, however, to the provisions set out in the section above, entitled "The Remedy." If there are not sufficient suitable positions available to permit immediate and full reinstatement of some or all of the above-listed dis- criminatees' after dismissal of subsequently hired employees, offer placement to those discriminatees not fully reinstated on a preferential hiring list for employment in suitable new openings , under which they will be hired for such openings in preference to employees who were hired subsequent to their discharge, or new applicants. (b) Make whole George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat for any losses they may have suffered because of the discrimina- tion against them, in the manner set forth in the sec- tion herein entitled "The Remedy." 363 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary for deter- mination of the amount of backpay due and the rights of reinstatement under the terms of this Order. (d) Notify any of the above-named employees 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. (e) Post at its offices and radio studios copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 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. (f) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. WE HEREBY DIRECT the Regional Director for Region 31 to open and count the ballots cast in the representation election of April 15, 1965, by George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat, and thereafter to issue an appropriate certification of the results of the election. 11 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in American Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO, or in any other labor organization of our employees, by discharging or in any other manner dis- criminating against employees in regard to hire or tenure of employment or any term or condi- tion of employment. 364 DECISIONS OF NATIONAL LABDR RELATIONS BOARD WE WILL offer to George Crofford, Rod Far- rell, Clyde Cadwell, and Al Mallicoat im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any em- ployees hired subsequent to their discharge, to the extent that we currently require the ser- vices of employees in their former or substan- tially equivalent positions. If there are not suf- ficient suitable positions available to permit im- mediate and full reinstatement of some or all of the above-listed discriminatees after dismissal of subsequently hired employees, we will offer to those discriminatees not fully reinstated placement on a preferential hiring list for suita- ble new openings, under which we will hire them for such openings in preference to em- ployees who were hired subsequent to their discharge, or new applicants. WE WILL make whole George Crofford, Rod Farrell, Clyde Cadwell, and Al Mallicoat for any losses they may have suffered because of the discrimination against them. COAST RADIO BROAD- CASTING CORPORATION D/B/A RADIO STATION KPOL (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to reinstatement under the terms set forth above upon application in ac- cordance 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 consecu- tive 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, Bartlett Building, 215 West Seventh Street, Los Angeles, California 90012, Telephone 688-5801. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR M. GOLDBERG, Trial Examiner : Upon an amended charge filed on April 29, 1965, by, the American Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO (herein called AFTRA or the Union), the complaint herein issued on February 18, 1966, alleg- ing that Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL (herein called the Respondent or KPOL) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act), by discharging four named employees because they par- ticipated in a strike against KPOL.1 Respondent's defense, in substance, is a denial that the discharge of the four employees was in reprisal for their protected activi- ties. Rather, Respondent asserts that their termination was occasioned by the automation of KPOL's broadcast facilities which enabled Respondent to operate with less than half its former announcing staff. By order dated May 2, 1966, the National Labor Rela- tions Board (herein called the Board) consolidated for hearing with the unfair labor practice complaint, chal- lenges to certain ballots cast in a representation election conducted among Respondent's employees on April 15, 1965, in Case 31-RM-3. The challenged ballots were those of the four alleged discriminatees in Case 31-CA-61 and that of a strike replacement hired by Respondent who, the Union claims, was a replacement for a discriminatorily terminated employee and, there- fore, an ineligible voter. All parties participated in the hearing conducted by me at Los Angeles, California, on May 3 through 5, 1966, and were afforded full opportunity to be heard, to in- troduce evidence, to examine and cross-examine wit- nesses, to present oral argument, and to file briefs.2 Oral argument was waived and briefs were filed by all parties. Respondent's motion, made at the close of the General Counsel's case to dismiss the complaint, on which I reserved ruling until issuance of this Decision, is disposed of in accordance with my findings below.3 Based upon the entire record in the case, my reading of the briefs, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleged, the answer did not controvert, and I find the Coast Radio Broadcasting Corporation is, and has been at all times material herein, a corporation with its principal place of business in Los Angeles, I The Union's amended charge alleged violation of Section 8(a)(5) of the Act as well as the matters alleged in the complaint . The refusal-to-bar- gain charge was dismissed on November 8, 1965 , by the Regional Director for Region 21. On appeal to the Board's General Counsel, this dismissal was affirmed on December 22, 1965 2 At the opening of the hearing Attorney William J. Bird appeared and moved to intervene in Case 31-RM-3 in behalf of certain presently em- ployed employees of Respondent. Mr. Bird was permitted to intervene "to the extent of [his ] interests." Thereupon Mr. Bird moved to dismiss Case 31-RM-3, the case in which he had just intervened, and sought to file a petition for a decertification election in its stead . Following denial of this motion, Mr Bird participated no further in the hearing . Just prior to the close of the consolidated hearing , it appearing that the Intervenors had no interest in Case 3 I-RM-3 other than to secure its dismissal , the Trial Ex- aminer, sua sponte, removed the Intervenors as parties to Case 31-RM-3 On June 30, 1966, by direction of the Board, an order was en- tered granting the Intervenors' request of June 6, 1966, for special permis- sion to appeal from this ruling, reversing the ruling and restoring the Inter- venors as parties. Accordingly, Mr. Bird's briefs have been read and con- sidered with those of the other parties 3 A stipulation to correct errors in the transcript of the proceedings, en- tered into by General Counsel, the Respondent, and the Charging Party, is hereby accepted and the corrections ordered. RADIO STATION KPOL 365 California, where it is engaged in the business of radio broadcasting and time sales. Respondent owns and operates Radio Station KPOL in Los Angeles, Califor- nia, and annually receives a gross revenue in excess of $500,000, of which revenue in excess of $50,000 is derived from advertising nationally advertised products. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Television and Radio Artists, Los Angeles Local, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. Respondent's operations 9 a.m. to 12 noon, "Rhapsody," featuring semiclassical music with, in Scott's words, "great emphasis on the full, rich sound of an orchestra." 12 noon to 3 p.m., "Cloud Nine," featuring soft and gentle music for afternoon siesta time. 3 to 6 p.m., "Commuter's Carousel," featuring bright music similar to that on Morning Magic. 6 to 9:30 p.m., "Music A La Carte," a program of dinner music. 9:30 to 10 p.m., "Musical Comedy Theatre," a scripted show written by Scott, featuring music from one show each night. 10 p.m. to Midnight, "String Shift," featuring soft music with no vocals. Midnight to 6 a.m., the "Big Show," featuring the modified good music played by KPOL. On Saturday the 3 to 6 p.m. program is called Saturday Carousel. The regular schedule does not apply to Sunday; the entire day's programming was entitled "Holiday in Hi-Fi," the morning portion being devoted to sacred music, the afternoon to KPOL good music. KPOL is principally a "good music" station with hourly news reports. The news' inserts at 8 a.m., 12 noon, and 6 p.m. run for 15 minutes each with commentary. All others are 5 minutes each. Until the events of the instant case, KPOL employed 12 staff announcers who supplied the voices on the air. Of this group, five were newsmen and seven were announc- ers for the music programming, the group directly in- volved in the proceeding. The newsmen, who write the commentaries, are selected for training in journalism, news gathering, reporting, and analysis and not on the basis of voice quality. The music program announcers (here called announcers as against newsmen) are chosen by Respondent for their voice qualities, reading ability, delivery, knowledge of music, and their general knowledge of production. At KPOL the newsmen are not employed interchangeably with the announcers. KPOL's regular broadcasting day was broken into 15- minute segments, all but 3 or 4 minutes of each was unin- terrupted music. In each such 15-minute block there was a break, called a cluster, during which the announcer gave the time and title of the show and three commercials were presented. During the same cluster the music just played was identified, as was the station, and special material, called production aids, prepared by Robertson Scott, Respondent's program director, was read by the an- nouncers. The production aids, described by one witness as being like poetry and by Scott as KPOL's "romancing" of Los Angeles, were written to be tied into each particular show and served as an introduction to continue the musical por- tion. In developing the station format, Scott stressed the program content rather than the personality of the an- nouncer. During the day Respondent's advertising rate structure varies according to the time. In descending order of cost the various segments of the day for advertising purposes are: tragic time, daytime, nighttime, and late nighttime. There is no traffic time designation on Saturday or Sun- day. Respondent's daily broadcasting schedule, the program name, and program emphasis were as follows: 6 to 9 a.m., "Morning Magic," featuring bright, cheer- ful music with more announcements than other programs during the day. 2. The prior dealings of KPOL and AFTRA Prior to 1961 the independent stations in Los Angeles had bargained as an informal group with the Union. After agreement had been reached on general proposals the in- dividual stations would take up issues unique to them which would be negotiated separately. However, the negotiations in 1961 for the agreement which expired in April 1964 were between Frederick Custer, vice pres- ident and general manager of Respondent, and Claude McCue, executive secretary of the Union, with no other employers or unions present. On April 30, 1964, the last collective-bargaining agree- ment between the parties expired. Prior thereto, in March, a decertification petition had been filed and on March 6, 1964, the Union filed a refusal-to-bargain charge against Respondent. In June 1964, McCue and Custer met, at which time McCue presented written proposals on behalf of the Union. Though Custer said he had not yet prepared his counterproposals, one would be the elimination of the union-security clause. A few days later at a formal bargaining session Custer gave his reac- tion to the Union's proposals, there was a full presenta- tion of KPOL's proposals which were then fully discussed, and Respondent sought union agreement to modification of a contract clause limiting the employment of announcers to duties ordinarily performed. Custer ex- plained KPOL's wish to use the announcers on television and sought agreement to a wide definition of announcers' duties. Further, Respondent wished a change in the provision requiring additional compensation to an an- nouncer when his voice was used outside of his regular shift. McCue expressed the fear that permitting maximum utilization of announcers could include their sweeping floors. However, McCue did agree to allow newsmen's voices to be used off shift without an extra payment, Ad- ditionally, a wage proposal was made. Thereafter, negotiations broke off until February 8, 1965. In the interim a hearing was held on the complaint al- leging that Respondent had "bargained directly and in- dividually with the employees . . . concerning rates of pay, wages, hours of employment, and other terms and conditions of employment." The Trial Examiner's Deci- sion issued on November 3, 1964, recommending dismis- 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sal of the complaint.4 The Trial Examiner found that despite repeated efforts by the staff announcers Respond- ent "remained steadfast and ... refused direct bargain- ing with the employees as long as the employees were represented by the Union."5 3. KPOL determines to automate In the fall of 1964, Respondent decided to automate the operation of the radio station. The equipment ordered, if fully utilized, permitted hours of broadcasting without the presence of announcers . All material, music, commer- cials, production aids, and station identification could be prerecorded and, by the use of electronic signals, played in a predetermined cycle through the broadcast day. Under the existing operation procedure the presence of a "live" announcer was required at all times to read material, and to select, identify, and play the recorded material. Respondent determined that the operation of the fully automated station would require the employ- ment of only three announcers instead of the seven then on its payroll. In fact only five and a fraction announcers were needed to staff the unautomated operation. In addi- tion it was determined that the required number of newsmen would remain unchanged at five. Thus, KPOL determined that the minimum employment in the unit represented by AFTRA could shrink to eight, three an- nouncers and five newsmen. Accordingly, during the hiatus in negotiations Respond- ent ordered the equipment necessary to automate its operation. Respondent first advised the Union of the plan to automate in February 1966. B. The Events ofJanuary 1965 1. Scott reassures announcers Crofford and Farrell By early January announcers were beginning to ex- press interest and concern in Respondent's automation plans. Announcer George Crofford accosted Scott as the latter was leaving the station one day early in January and asked about the workings of the automation equipment. Scott said the machinery would make work easier for everybody and that Crofford would like working with it. When Crofford asked if any announcers would be ter- minated because of the automation, Scott replied that no one would be let go as there would be work enough for all. Scott then suggested that he and Crofford have lunch together at a later date to discuss further the effects of the automation on Crofford. Sometime before January 29 (Crofford was able to establish this timing as he recalled it was before distribu- tion of Scott's memorandum of that date, infra, Scott and Crofford lunched together, at which time they discussed 4 I hereby take official notice of the Board's Decision and Order of March 24, 1965, 151 NLRB 1101 , adopting the findings, conclusions, and recommendations of the Trial Examiner. 5 151 NLRB 1101, 1106. 8 KPOL broadcasts 24 hours a day, 7 days a week, except for a 6-hour shutdown Sunday morning for equipmen[ maintenance . Total airtime is 162 hours per week. As each announcer puts in only 30 of his 40 working hours on the air, five announcers cover 150 hours, requiring the services of a part-time announcer for the 12 remaining hours of airtime. ' Farrell, as well as Crofford, was able to place the conversation in rela- tion to his receipt of Scott's January 29 memorandum. in detail the workings of the automatic equipment. Scott explained that with the equipment Crofford could record his material during the day for broadcast at night and thus not have to work at night. Scott again told Crofford there would be plenty of work for all and that no one would lose his job because of the new equipment. At no time, during either of the conversations, did Scott place any conditions on his assurances of uninterrupted employment for all of the announcers. Rod Farrell had first been hired by KPOL as a part- time announcers When illness prevented announcer Clyde Cadwell from working, Farrell was put on a full schedule and Brian Bastian was hired on a part-time ba- sis. Farrell testified to a conversation with Scott concern- ing the effects of automation in the first or second week of January.' This conversation took place at the station. To Farrell it was apparent that fewer announcers would be required. However, Scott said that Respondent would retain the full staff." 2. Scott's January 29 memorandum On January 29, Scott caused to be distributed to all em- ployees, including all staff announcers the following memorandum: January 29, 1965 TO: ALL PERSONNEL This is an announcement which I think all of you will consider interesting and important. It's the sort of an- nouncement I would prefer to make at a meeting, but it's so difficult to set a time when everyone can at- tend. So read the following, then let's get together at your convenience individually or collectively for questions and answers. Fred and I have become convinced that recent technological advances in our industry have made it possible for machines to do some things as well as men can do them. The word for this, of course, is au- tomation. There is much work to be done in our expanding or- ganization. We believe that the additional functions can be effectively and efficiently performed with a very limited increase in personnel. One thing is cer- tain: no one will be out of a job. There will be more than enough for everyone to do -in production, in recording music tapes, in television. We will probably begin with Rhapsody. The choice of Rhapsody for our first step is made because of the time it is on the air, a time when there will be plenty 8 In crediting Crofford and Farrell as to the fact and subject matter of their conversations with Scott, I do not thereby discredit Scott. Scott re- called the luncheon conversation with Crofford, stated that Crofford's testimony as to what was said was "essentially" correct, but thought it had occurred in early February. As to the other conversation with Crofford, it appears logical that it occurred as Crofford stated, for it was a necessary predicate to the luncheon meeting. In reference to the conversation with Farrell, Scott did not deny the occurrence, but only that he could not re- call any conversation with him on the subject of automation , though he re- membered such talks with announcers Gary Brandt and Bob Harris. RADIO STATION KPOL 367 of fingers around here to stick in holes in the dike. Probably the last program to be automated will be Morning Magic. And it may be that Morning Magic will continue to be done live because traffic an- nouncements , time, weather and the like make for certain problems. Although nothing is concrete as yet, my general thinking is that each man will serve as host for one show. A couple of men may host two shows. The line could be something like this: Big Show- Al Morning Magic- Rod Rhapsody- Bob Cloud 9 - George Commuters Carousel-Gary Music ala Carte - Al String Shift-George Holiday in Hi Fi- Several Hosts Clyde may want to fill a vacancy in the news depart- ment where there is less need for physical exertion. I have spoken to him about this and the idea ap- parently appeals to him. The equipment has been ordered and will be installed in a few weeks. Fred is meeting today with the en- gineers to explain to them the course we are going to take. McCue of AFTRA, who, Custer understood, was not objecting to the introduction of the automatic equipment, then asked how automation would affect the announcers' unit. Custer replied that the change would not affect their employment and all announcers would be retained. While Custer testified that he asked nothing in return from the Union for this assurance of continued employ- ment for all announcers, he repeated his 1964 request to use announcers' voices off shift. Additionally Custer asked for agreement permitting announcers to perform certain duties formerly done by employees in the IBEW unit. McCue conditioned his agreement to the latter request on Draghi of IBEW first giving up the work. This Draghi would not do. Custer further testified that his assurance to McCue in February went no further than that in Scott's January 29 memorandum to the employees, which Custer stated, was itself unconditional. At a bargaining session on February 15, Custer again gave the same assurance of continued employment for the announcers to the AFTRA representative. Again on February 19, Custer, at a negotiation meeting, stated there would be no reduction in the number of announcers employed by KPOL, explaining he expected to use the announcers in a more diversified way, including their em- ployment on the ultrahigh frequency television station which Respondent had purchased. On February 19 Respondent filed a petition for a representation election in the staff 'announcers unit, Case 3 1-RM-3. I'll be available to answer any questions any time. Please call or come by when it's convenient. Bob Scott The same day that the memo was distributed it was posted by an unknown person on the bulletin board in the announcers' lounge where it remained for a month or longer. Scott explained that his purpose in publication of the memo was to maintain high morale among the employees. He imagined that rumors would circulate as a'result of Custer's meeting with the engineers and their union representatives and "preferred that the information come from me particularly to the announcers and not from out- siders." At the time it was Scott's understanding that Respondent was operating under a union contract with AFTRA, but did not direct that a copy of his memoran- dum be sent to the Union. C. Events Preceding the Strike 1. The February negotiations On February 9, 1965, in an effort to resume negotia- tions, Respondent, AFTRA, and Mr. Draghi, a repre- sentative of IBEW, met at the offices of the Los Angeles County Federation of Labor. Custer testified that Draghi objected to introduction of the new automation equipment. Draghi expressed con- cern that employees in the IBEW unit would lose work if he were to agree to relinquishing jurisdiction over the new equipment. Custer and Draghi had a long discussion dur- ing which Custer assured the engineers' representative that none of them would lose their employment because of the changed operations. Custer assured Draghi that all engineers would retain their jobs. 2. Respondent contracts out the recording of music tapes and commences TV broadcasting In his January 29 memorandum to the employees, Scott stated: . One thing is certain: no one will be out of a job. There will be more than enough for everyone to do-in production, in recording music tapes, in television. [Emphasis supplied.] Around the beginning of March 1965, Respondent was approached by Alto Fonic Tape Service, Inc. (herein called Alto Fonic), which proposed to prepare for KPOL the music tapes to be used in the automated operation. Scott testified that Alto Fonic wanted to use KPOL's reputation in selling its products to stations in other mar- kets and thus was willing to perform the work at terms ad- vantageous to Respondent and at a loss to itself. Apparently Alto Fonic began recording tapes for Respondent about the middle of March as Alto Fonic billed KPOL for one-half month's service for March. The agreement between Alto Fonic and Respondent, dated April 2, 1965, required Alto Fonic to provide at its own premises a full-time employee to produce programs, or parts of programs, on tape for KPOL. For the services of this employee, who was to be available for Respondent's work 8 hours per day, 5 days per week, KPOL was to pay Alto Fonic $400 per month. In addition the agreement set forth the various fees KPOL was to pay for materials. On March 29 Respondent's television station began broadcasting. At that time the TV station had 5 commer- cial accounts rather than the 50 to 100 accounts Custer testified had originally been anticipated. 3. The happenings of April 2 At 5 p.m. on April 2, 1965, AFTRA and IBEW struck KPOL. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That morning the two unions met with Respondent in a negotiation session. Present in addition to the usual bar- gaining spokesmen were attorneys representing AFTRA and Respondent. Custer testified that he tried to reassure the Union that continued employment of the announcers was not an is- sue. He repeated this assurance even though Respondent had already entered into its arrangement with Alto Fonic for production of the music tapes. At no time, Custer testified, did he say to McCue or to any other AFTRA representative that his offer to retain the full staff of an- nouncers was based on reaching a contract. Custer further testified that he did not wish job security to become an issue during the negotiations and it had not. As noted, on April 2, AFTRA declared a strike against Respondent. Of the 12 staff announcers then employed in the unit, 8 honored the picket line. Of these, two were newsmen, Paul McElroy and Ray Owen . The other strikers were announcers, Robert Harris, Brian Bastian, and the four alleged discriminatees , George Crofford, Al Mallicoat, Rod Farrell , and Clyde Cadwell. Also on April 2, AFTRA sent the following telegram to the Director of the Board 's Region 21: RE CASE NUMBER 131-RM-3I. RECENT BOARD AC- TION ON UNFAIR LABOR PRACTICE COMPLAINT AGAINST COAST RADIO BROADCASTING HAS UN- DERMINED AFTRA MEMBERSHIP. ADDITIONAL EM- PLOYER INFLUENCES HAVE ALSO REDUCED SOME STAFF ANNOUNCERS TO DISAVOW THEIR DESIRE TO BE REPRESENTED BY AFTRA. CONSEQUENTLY AFTRA DISCLAIMS REPRESENTATION OF KPOL STAFF AN- NOUNCERS AT THIS TIME AND REQUESTS DISMISSAL OF EMPLOYER'S REPRESENTATION PETITION. ANY AFTRA STRIKE AT THE STATION SHALL NOT BE FOR RECOGNITION AND SHALL BE CONFINED TO PUBLICA- TION OF SUB-STANDARD CONDITIONS AT KPOL. Claude L. McCue Executive Secretary AFTRA -L.A. Local A copy of this telegram was received at the office of Respondent's attorney the following day, April 3. Friday night, April 2, Fred Vanderhurst was hired by Respondent as a full-time permanent employee to replace Brian Bastian, a part-time employee who had joined the strike. D. The poststrike events At the time of the April 2 strike the automatic equip- ment had been partially installed and required only final wiring to be operative. Immediately following the strike Respondent directed the equipment supplier to complete the installation which required only a few days' work. On Monday , April 5, the parties met for a previously scheduled negotiation session. Respondent asked what the Union's disclaimer telegram of April 2 meant and the Union's counsel replied that for the purposes of bargain- ing AFTRA still claimed to represent the announcers but, at the NLRB , the Union did not make that claim. Respondent's representatives refused to continue to meet unless AFTRA adopted one of the two positions for all purposes and the meeting ended. Monday morning as well AFTRA sent a telegraphic withdrawal of its April 2 disclaimer to the Board's Re- gional Director. This was received in the Regional Office on April 5, but Respondent did not receive notice of the withdrawal of disclaimer until April 7. That day, or on the previous Friday, April 2, Custer was informed by an agent of the Board 's Regional Office that a conference on KPOL 's petition for election would be held on April 7. During the afternoon of Monday , April 5, Respondent sent to newsman Paul McElroy and to announcers Cad- well, Crofford, Farrell, and Mallicoat the following discharge telegram: ACQUISITION OF AUTOMATIC EQUIPMENT HAS OPENED THE WAY FOR KPOL TO OPERATE WITH REDUCED PERSONNEL REQUIREMENTS ALTHOUGH PREVIOUSLY PREPARED TO OFFER JOB SECURITY TO THE COMPLETE STAFF OF 12 MEN OUR POSITION IS NOW THAT THE TOTAL COMPLEMENT OF AIR WORK- ERS WILL NUMBER 7 . THIS IS TO ADVISE YOU DIRECTLY IN AS MUCH AS AFTRA HAD NOTIFIED THE NLRB THAT IT DISCLAIMS REPRESENTATION OF THIS STATION'S ANNOUNCERS THAT YOUR SERVICES ARE NO LONGER REQUIRED FOR EFFICIENT OPERATION AND YOUR EMPLOYMENT IS HEREBY TERMINATED. Frederick D. Custer The following day Respondent offered employment to McElroy by telegram reading: KPOL WOULD LIKE YOU TO RESUME YOUR DUTIES AS A NEWSMAN ON THE BASIS OF THE COMPANIES [SIC] LAST OFFER TO AFTRA WHICH INCLUDED $210.00 PER WEEK PLUS OTHER BENEFITS PLEASE REPLY BY NOON APRIL 8, 1965. McElroy refused the offer. David Woods was hired by KPOL as a full-time per- manent employee on April 7 after an audition the preced- ing day. (See section IV, The Challenged Ballots.) The April? conference on Respondent's petition for election lead to a stipulation for certification upon con- sent election providing for an election to be held April 15, 1965. The election on April 15 resulted in three votes for continued AFTRA representation , three opposed, and eight ballots were challenged. McElroy voted without challenge. Newsman Ray Owen abandoned the strike on April 17 and returned to Respondent's employ. Though all of the engineers joined in IBEW's strike, none has been ter- minated. In the weeks following the strike and installation of the new equipment the machines did not work to Respond- ent's satisfaction. It was decided to hire an additional announcer and on May 12, Scott sent a wire to Crofford advising there was "a job opening at KPOL for position of staff announcer if you are interested in accepting this position please contact me tomorrow morning. " Crofford did not accept the proffered position. Thereafter KPOL hired Larry Reed who remained until some time in 1966. Some weeks after Reed left Respondent's employ, Harris gave up the strike and returned to KPOL. E. Conclusions and Findings General Counsel urges the simple theory that the four announcers were discharged because they participated in the strike. As seen by General Counsel, it is crucial that RADIO STATION KPOL I find Respondent unconditionally promised to continue the employment of all its announcers. For, it is argued, at the moment of discharge, other than the onset of the strike, surrounding conditions were unchanged from those when Respondent enunciated its assurances of job security. Ergo, argues General Counsel, it was solely their participation in the strike which precipitated ter- mination of the four employees. Important also to General Counsel is a finding that the assurances of con- tinued employment were not made as contract proposals in the context of collective bargaining. Respondent rejects any suggestion that job security was not part of the contract negotiations as resting "on a myopic view of the bargaining process." Respondent states it was willing to forego the obvious economic ad- vantages of automation and not cut its employment rolls but only as a quid pro quo for an acceptable collective- bargaining agreement. But, the offer of job security was not unconditional. Like all other contract proposals, it was conditioned upon final agreement on all terms of a new contract. Thus, Respondent urges, when the strike occurred and bargaining broke down, it was free of its offer of continued employment. Free therefore to reap the economic advantages of the new equipment, Respondent pared its "featherbedded payroll," but in so doing was motivated only by the economics obtained. Thus, in substance, Respondent and General Counsel are in essential agreement as to the threshold issue. Preliminary to any finding of violation is a conclusion as to the nature of Respondent's assurances of job security for the announcers. Were the assurances submitted as a contract proposal conditioned on the parties' reaching agreement on a total contract as urged by Respondent; or, as argued by General Counsel and the Union, was the promise put forward in an effort to remove the issue as a subject for bargaining on the terms of a new contract? Though not without considerable doubt, I cannot ac- cept General Counsel's hypothesis of an unconditional offer by Respondent to continue the employment of all announcers regardless of all other factors in the relation- ship among KPOL, the Union, and the announcers. This is not to bar such a finding in other circumstances. Thus, I can conceive of a party to collective bargaining making an unconditional offer on a mandatory subject of bargain- ing, seeking nothing in return other than removal of a potential area of disagreement from the bargaining table. However, the facts of this case do not lead to such a find- ing. As early as June 1964, Respondent sought modifica- tion of the contract restrictions on utilization of the an- nouncers' services and their voices off shift. In the con- text of the 1965 negotiations, Respondent during the same bargaining sessions at which it put forward as- surances of continued employment for all announcers again asked for the right to use announcers' voices off shift and to employ announcers at duties formerly per- formed in the IBEW unit. McCue's agreement to use voices off shift was limited, restricting his consent to the newsmen but not to the announcers. As to AFTRA peo- ple performing work from the IBEW unit, McCue condi- tioned his agreement upon prior release of the work by IBEW. Such release obviously was not forthcoming. 9 The timing and terms of the Alto Fomc-KPOL contract precludes any argument that this contracting cut was within the court 's rationale excul- pating such an agreement if made in contemplation of a strike. Hawaii Meat Co. v. N.L.R.B, 321 F.2d 397 (C.A. 9). 369 Thus, I conclude that the assurances of continued em- ployment put forward in negotiating sessions starting on February 8, 1965, were in the context of the give and take of collective bargaining. Accordingly, and in view of the parties' failure to reach a collective bargain, I cannot conclude that, but for the strike, Respondent would have maintained unbroken the employment of all announcers. In so resolving the narrow issue presented to me by the complaint, I am not unmindful that Respondent's conduct in the months before the strike raises serious doubts con- cerning its devotion to collective bargaining. Scott's con- versations with Crofford and Farrell and his January 29 memorandum to the employees were offered as evidence of an unconditional promise to the employees of con- tinued employment. They were that and more. I see this conduct as evidence of direct bargaining with the em- ployees in the face of Respondent's demonstrated aware- ness of its obligation to deal only with the employees' ex- clusive bargaining representative. But this indication of bad-faith bargaining does not broaden the narrow issue concerning unlawful discharge presented to me by General Counsel. Additionally, Respondent's contract with Alto Fonic for production of music -tapes casts doubt on Respond- ent's adherence to the statutory scheme. Thus, without notice to the Union, KPOL unilaterally entered into an agreement removing work from the bargaining unit and having a substantial impact on unit employment.9 See Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB 1574, 1576. However, repetition of its as- surances of continued employment for all announcers at times subsequent to the Alto Fonic contract, lends cre- dence to KPOL's assertion that it offered job security, at potential cost to itself, as bait for AFTRA agreement to contractual provisions favorable to Respondent. In their briefs General Counsel and the Union for the first time raise the proposition that the four announcers were discharged to affect their eligibility to vote in the forthcoming representation election. With the arithmetic of the situation in mind a fair inference of such motivation may be drawn. But, the complaint does not allow for such a finding; General Counsel on the record limited the is- sues to discharge occasioned by the employees' participa- tion in the strike; and, Respondent was not called upon to present any defenses to such a charge. Moreover, though the instant 8(a)(3) charge was filed on April 7, the Union did not file objections to the April 15 election. Thus in April 1965, the Charging Party apparently did not view the terminations as interfering with the election. Ac- cordingly, since Respondent was entitled to try its case by reference to the issues framed by the pleadings and in reliance upon General Counsel's delineation of those is- sues at the hearing, I will find no violation of the Act based on this unlitigated theory of unlawful discharge. Northeastern Indiana Building and Construction Trades Council, et al. v. N.L.R.B., 352 F.2d 696 (C.A.D.C.).10 Upon the record as a whole, I do not find that the al- legations of the complaint charging Respondent with violation of Section 8(a)(3) and (1) of the Act are sup- ported by substantial evidence. Accordingly, I shall recommend that the complaint be dismissed. ' In view of this ruling I do not deem it necessary to pass upon Respond- ent's motion to strike those portions of the cited briefs raising this theory o€ violation. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE CHALLENGED BALLOTS As previously noted, by order dated May 2, 1966, the Board consolidated for hearing with the unfair labor prac- tice complaint challenges to certain ballots cast in the representation election held on April 15, 1965, in Case 31-RM-3. KPOL challenged the ballots of the four an- nouncers whose discharges generated Case 31-CA-61. Respondent argued that the four were ineligible to vote because their jobs had been eliminated for economic reasons. The Union contended the four were unit em- ployees on strike at the time of the election and therefore eligible voters. As to David Woods, an issue has been raised as to whether he was a replacement for a dis- criminatorily discharged employee and therefore ineligi- ble to vote. For the reasons stated below, I recommend that the Board overrule the challenges to the five ballots in question. A. David Woods I have found above (section III, THE ALLEGED UNFAIR LABOR PRACTICES) that KPOL did not unlawfully discharge the four named announcers. It must necessarily follow that Woods' ballot was not tainted on the grounds that he replaced a discriminatorily discharged striker. As- suming arguendo that Woods had replaced one or more of the four named announcers he would be eligible to vote in the election as a permanent replacement for an economic striker. See e.g., Booth Broadcasting Com- pany, 134 NLRB 817. On this basis alone I would recom- mend that the Board overrule the challenge to his ballot. In any event, I further find that Woods was hired as a replacement for Bob Harris, an announcer recognized by all parties to have been an economic striker at all times material herein. The production aids written by Scott (the pseudo-poetry whereby KPOL romances Los Angeles) varies to conform to the type of music customarily played on the station's programs. 11 For example, as described by Scott, the Morning Magic program featured bright, cheer- ful music. To read the production aids for this show Scott selected an announcer with a bright and cheerful presen- tation as opposed to one with the soothing, soft delivery which one would expect at bedtime. The Rhapsody show, which Harris handled on Monday through Friday before the strike, featured semiclassical music emphasizing "the full, rich sound of an orchestra." Scott testified that the production aids he wrote for Rhapsody were "schmalt- zy." The announcer on Rhapsody, Scott felt, needed a big voice and dynamic delivery with the ability to read with great enthusiasm and movement. Shortly after the strike began Scott visited Harris at his home in a vain attempt to induce Harris to abandon the strike and resume his duties at KPOL. After this failed, Scott began auditioning applicants for employment as an- nouncers, using for the test Rhapsody and Commuter Carousel production aids which had been used by Harris. When Woods was hired following such an audition, he was placed on two programs which Harris had handled before the walkout. While it is true that Woods was able to handle as well the Saturday Carousel and Rhapsody programs done before the strike by one or more of the 11 See section III, A, 1, above, Respondent's operations. 12 Woods was able to announce the Saturday Carousel and Rhapsody programs as they were recorded and Respondent had unilaterally dischargees, this Saturday recorded work was peripheral to Woods' main assignment, which I conclude was replacement of Harris on the two programs named.12 Indeed, when Harris did abandon the strike Woods con- tinued with the Rhapsody and Carousel programs and Harris was given other duties. Thus, without regard to the status of the alleged discriminatees, based on my finding that Woods was a permanent replacement for Harris, I recommend that the challenge to his ballot be overruled. B. George Crofford, Rod Farrell, Clyde Cadwell, andAl Mallicoat Though I have found that the discharges of the four named announcers did not violate Section 8(a)(3) and (1) of the Act, I further conclude, based on the record made before me, that my examination of the challenges to their votes cannot stop at that point. The Employer contends that the four announcers were ineligible voters because their jobs had been eliminated. The record as a whole does not support that position. Briefly stated, for full, nonautomated operation, KPOL required the services of five full-time announcers and one part-time announcer. Harris, Brandt, Crofford, Mallicoat, and Cadwell were the five full-time announcers. Farrell was the regular parttimer. Due to Cadwell's illness and his excused absence from work, Farrell worked full time and Bastian worked the 12 hours needed to round out the broadcast schedule. Thus, it is against a complement of five and two-fifths announcers that we must measure the number of jobs eliminated by automation of KPOL. Following the strike the Employer had the full-time ser- vices of the Alto Fonic employee assigned by that con- tractor to work exclusively on music tapes for KPOL. That this is announcers' work is shown by Scott's Janua- ry 29 memo listing the work as such and by KPOL's ex- planation that work for announcers had been cut by the contracting out to Alto Fonic. Additionally, KPOL had the full-time services of Brandt, who did not strike; Van- derhurst, who was hired as a full-time announcer to replace Bastian, a part-time announcer; and Woods, who I have found to have replaced Harris; and, by May 12,' KPOL found it necessary to hire an additional an- nouncer, first offering the job to Crofford and when he refused to give up the strike hiring Larry Reed. In time Reed left and was replaced by the returning Bob Harris. Thus, KPOL had five full-time employees doing announc- ers' unit work; Brandt, Woods, Vanderhurst, Reed, and the Alto Fonic man. As well, on a regular basis, Woods was carrying the load of the former part-time announcer. In addition to replacing Harris on the Monday through Friday Rhapsody and Commuter Carousel programs, Woods replaced Crofford and Farrell on the Saturday versions of these shows. If further evidence is needed to establish that the jobs of the dischargees were not abolished, Scott testified to the use of his "wee small voice on the wee small hours," midnight to 6 a.m. In effect, there were more, not fewer, jobs available in the announcers' unit after automation. Automation of KPOL's operations took place only after the strike commenced; the announcers were discharged subsequent to the strike; automation has not abrogated the contractual limitation on use of announcers' voices off shift. Cf. Bethlehem Steel Company (Shipbuilding Division), 136 NLRB 1500, 1501-02. RADIO STATION KPOL 371 resulted in elimination of their jobs; and, with Scott planning to replace himself as an announcer, there is chance of their reemployment. Cf. Booth Broadcasting Company, 134 NLRB 817, 823. I conclude that on April 5, 1965, KPOL assumed that it had permanently replaced the four announcers, not with other announcers subject to human foibles but with the theoretically perfect replacement, a machine.' 3 And when the machine, despite Scott's and Custer's high expecta- tions noted in the January 29 memo, could not do "things as well as men can do them," the permanent replacement became transient. Accordingly, the four announcers are in the same posture as any permanently replaced economic striker (Union Bus Terminal of Dallas, Inc., 98 NLRB 458), including the right to vote in the instant elec- tion. Accordingly, I recommend that the challenges to the ballots of the four named striking announcers be over- ruled. CONCLUSIONS OF LAW 1. Coast Radio Broadcasting Corporation., d/b/a Radio Station KPOL is engaged in, and during all times material has been engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The complaint should be dismissed in its entirety. RECOMMENDED ORDER On the basis of the foregoing findings of fact, and upon It is recommended that the Board enter an order the entire record in the case, I make the following: dismissing the complaint in its entirety. " A machine is not covered by wage and hour laws; does not insist on coffee breaks; has no funerals to attend on Opening Day; does not seek early retirement; and is impervious to the blandishment of union agents.