Eastman Broadcasting Co., Inc.

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eastman Broadcasting Company, Inc. and Robert East- man, Its President and National Association of Broadcast Employees and Technicians , AFL-CIO- CLC, and its Local No. 46. Case 7-CA-7843 January 25, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On August 21, 1970, Trial Examiner Arthur M. Goldberg issued his decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Decision with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief and the entire record in this case, and hereby adopts the find- ings, conclusions, and recommendation of the Trial Examiner. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to a Sec- ond Amended Order Consolidating Cases, Third Consol- idated Amended Complaint and Amended Notice of Hearing issued on April 24, 1970,' by the Regional Director for Region 7, a hearing was held in Flint, Michigan, on May 25 and 26. Prior to the opening of hearing the parties reached agreement on the terms of a settlement disposing of all allegations of the Third Consolidated Amended Com- i Unless otherwise noted all dates herein were in 1970 2 The original charge in Case 7-CA- 7843 was filed on March 25 and a first amended charge was filed on April 21. plaint other than those raised by Case 7-CA-7843. After the hearing opened the General Counsel moved to sever from the Amended Complaint all allegations pertaining to Cases 7-CA-7500(2), 7-CA-7684, 7-CA- 7684(2), and 7- CA-7564. With the agreement of all the parties this motion was granted and there remained for hearing and decision only those complaint paragraphs which allege that on March 13, Eastman Broadcasting Company, Inc. (herein called Respondent or the Company), by its president and agent, Robert Eastman (herein called Eastman), discharged Charles Wallace because he refused to initiate, sponsor, or participate in a union deauthorization proceedl>^zg 3 or to engage in other conduct detrimental to the National Associ- ation of Broadcast Employees and Technicians, AFL-CIO- CLC, and its Local No. 46 (herein jointly called NABET or the Union). By its conduct toward Wallace, Respondent is alleged to have violated Section 8(axl) and (3) of the Na- tional Labor Relations Act, as amended (herein called the Act). Respondent admitted the discharge of Wallace but denied that it had violated the Act by that act or by any other conduct. All parties partici ated in the hearing and were afforded full opportunity to be heard, to introduce evidence, to ex- amine and cross-examine witnesses, to present oral argu- ment, and to file briefs. Oral argument was waived and the Respondent filed a brief on June 22. Upon the entire record in the case, my reading of the Respondent's brief, and from my observation of the wit- nesses and their demeanor, I make the following: Findings of Fact I THE BUSINESS OF RESPONDENT Eastman Broadcasting Company, Inc., a Michigan cor- poration, maintains its principal office and place of business in Flint, Michigan, where it is engaged in the business of radio broadcasting under the name WTRX-Radio. The parties stipulated that during the fiscal year ending March 31, 1969, which period is representative of its opera- tions during all times material herein, the Respondent, in the course and conduct of its business operations, attained gross revenues in excess of $200,000 from its broadcasting business. The parties further stipulated that during the same fiscal period the Respondent, in the course and conduct of its business operations, received revenue from the sale of time for commercial advertising and furnishing of material or services for advertisers valued in excess of $100 ,000, of which revenue in excess of $100,000 was obtained from advertisers of national products. I find that the Company is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for assertion of its jurisdiction. 3 Section 9(exl) of the National Labor Relations Act, as amended, pro- vides. Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 8(ax3), of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer. 188 NLRB No. 13 EASTMAN BROADCASTING CO., INC. 81 11. THE LABOR ORGANIZATION INVOLVED National Association of Broadcast Employees and Tech- nicians, AFL-CIO-CLC, and its Local No. 46, are and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent owns and operates a radio station in Flint, Michigan. For a number of years the Union has represented a unit of Respondent's employees including all fulr time and regular part-time announcers, and continuity and traffic department employees, which unit definition includes engi- neers. Following an impasse in negotiations looking toward a new collective-bargaining agreement, the employees went out on strike on March 1 , 1969, returnin after 7-1 /2 weeks when the old contract was reexecuted fgor a new term. In June 1969, Charles Wallace, the alleged discnminatee herein, was promoted from the position of staff engineer to that of chief engineer, a status he retained until his discharge on March 13. Sometime after renewal of the collective-bargaining agreement which contains , inter alia, a union-security clause, Michael Gaylord, Respondent's operations manag- er, filed apetition seeking a union deauthorization election. This petition was dismissed by the Regional Director based upon his finding that Gaylord was a supervisor within the meaning of the Act. Subsequent thereto a second petition for union deauthorization election was filed ° leading to an election on November 6, 1969 , which resulted in a tie vote and a certification that a majority of the employees eligible to vote had not voted to withdraw the Union's authority to enter into a union-security agreement. At the time of the hearing herein there was pending a third petition for union deauthorization election filed on March 2 by Don Powers, a staff engineer hired by Respondent in late December 1969 or early January. B. The Discharge of Charles Wallace The Complaints alleged that Respondent discharged Charles Wallace "because Wallace refused to initiate, spon- sor, or engage actively in a UD proceeding among the engi- neering employees and in other conduct or activity hostile to the Charging Par ty Union. For the reasons set forth below I find that General Counsel has not proved these allegations by a preponderance of the evidence and shall recommend dismissal of the complaint. 1. Wallace's supervisory status Robert E. Eastman, II, Respondent's president, testified without contradiction that as chief engineer Wallace sched- uled and posted the day's staff engineers where to work, was responsible for assigning and scheduling all overtime, was responsible for checking the pay slips of all engineers to 4 Case 7-UD-73. s After deletion of those allegations disposed of by the settlement agree- ment. In an on-the-record discussion the parties agreed that only the allega- tions contained in paragraphs 20 and 21(d) were to be considered by me in determining whether a violation occurred. ascertain their accuracy, and was to bring to Eastman's attention any disciplinary matters that Eastman should be aware of and take action upon. Wallace agreed that as chief engineer it was part of his regular duties to make out the schedule of days and hours the staff engineers were to work, assign overtime in the engineering department, and at the end of each week check on the number of hours worked by each engineer , initial the figures, and give them to the payroll department. As chief engineer, Wallace was paid the top of the con- tract scale for engineers plus a 15-percent premium. Wallace further testified that he conducted approximate- ly 10 interviews of prospective engineers while he was chief engineer. In one instance, that involving the application of Ryan, a former full-time engineer, for reemployment on a part-time basis, Wallace "reluctantly" recommended that Ryan be hired for the position . Wallace's reluctance was based on his understanding that such part-time employment violated the collective-bargaining agreement. Based upon Wallace's authority to schedule days and hours of work for the engineering staff, his power to assign overtime, his higher pay, his responsibility to determine the accuracy of the engineers' time records upon which they were paid, and his authority to interview job applicants and to recommend their hire, I find that at all times material herein Wallace was a supervisor within the meaning of the Act. Sea Life, Inc., 175 NLRB No. 168 ; Cosby-Hodges Mill- ing Co., 170 NLRB No. 50; Sheet Metal Workers, Local 49 (General Metal Products, Inc.), 178 NLRB No. 24; Okeh Caterers, 179 NLRB No. 84. 2. The alleged unlawful motivation Despite my finding that Wallace was a supervisor within the meaning of the Act, were Ito find that his discharge was occasioned by his refusal to initiate or engage actively in a UD petition I would find that his termination violated the Act. Talladega Cotton Factory, Inc., 106 NLRB 295, enfd. 213 F.2d 208 (C.A. 5); I. D. Lowe d/b/a Thermo-Rite Manu- facturinf Company, 157 NLRB 310, enfd. 406 F.2d 1033 Wallace testified that sometime after December 17, 1969,6 Eastman approached him in the work area and asked Wallace to initiate a UD petition. Wallace replied that he would not do so. Eastman added that since Wallace was the chief engineer it would be good if he initiated the petition as the other men would follow him. Wallace said he would think about it. Eastman denied that he had asked Wallace to initiate a UD p' :ition or that he had said the other engineers would follow Wallace in such a move. The second instance which General Counsel looks to to establish that Respondent terminated Wallace be,Lause of his refusal to participate in a union deauthorization move- ment allegedly occurred at a lunch meeting between Wal- lace and Eastman in March. Wallace testified that at Eastman's invitation he and Eastman had lunch at the Pan- cake House in Flint in March at which time Eastman dis- cussed how tight business conditions had become and asked Wallace to hold down the overtime and to work more close- ly with Eastman in scheduling the men. Then, Wallace claimed, Eastman said, "Oh by the way, you didn't sign the petition did you, you [obscenity ]." Wallace testified that he replied he didn't think Eastman needed his signature to get 6 Wallace was unable to pinpoint the date , setting it as after John Redmond's discharge . The Second Amended Consolidated Complaint in the allegations pertaining to Redmond 's discharge (paragraph 18, which was disposed of in the settlement agreement) sets the date of Redmond's termina- tion as "on or about December 17, 1969." 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other employees in the department under control. Dur- ing cross-examination Wallace stated that Don June, a sta- tion employee who handles the payroll, was in the restaurant while he and Eastman were having their discus- sion. Eastman not only denied the conversation but denied as well that he had lunch with Wallace in March 1970. Don June was not called to testify. The period in March within which this alleged luncheon conversation could have occurred was between Monday, March 3, and Thursday, March 13, when Wallace was dis- charged. The Federal Communications Commission cita- tion of violations b7 the station which triggered the events leading to Wallace s termination was received by Respon- dent on March 3. The record is replete with evidence that all of Respondent's attention and energy was devoted to consideration of the FCC citation following its receipt. Eastman immediately communicated with Stephen C. Rid- dleberger, executive vice president of Respondent's parent company, their attorneys in Washington, and the station's outside consulting engineer. Eastman spent considerable time investigating the circumstances of the alleged viola- tions of FCC regulations, was in constant communication with the parties named above, Riddleberger came to Flint to take part in the deliberations concerning the FCC cita- tion, and the Company looked to Wallace as a primary source for information upon which to base its reply to the FCC. Under these circumstances I find it inconceivable that Eastman would not have referred to the FCC citation in any conversation he had with Wallace following its receipt. Yet, in Wallace's account of his March luncheon conversation with Eastman there is no reference at all to the communica- tion from the FCC. Accordingly, I credit Eastman's testimo- ny denying that such a conversation or luncheon meeting had ever occurred. At the time of the alleged request by Eastman that Wal- lace initiate a UD petition the engineering staff had been reduced to Wallace, Staff Engineer Gale, who had joined the staff during the week of November 26, 1969, and Ryan, who was working part-time.' General Counsel sought to create the impression that Gale, who was promoted to chief engineer following Wallace's discharge despite the fact that Gale had been personally cited by the FCC for violation of its regulations , had been favored by the Company because of his loyalty to it. General Counsel also stated that the engineers who had been separated by the Company prior to the employment of Gale and Powers had been let go be- cause of their union adherence and Respondent followed their separation with that of Wallace under the principle that one starts with "ten little Indians" and disposes of them "until the whole Indian tribe [of union adherents] is gone." Under these circumstances I do not credit Wallace's testi- mony that Eastman wanted him to initiate the UD petition because the other men would follow Wallace as Chief engi- 7 Redmond had been discharged and Powers was not hired until the end of December 1969 or early in January. neer. If one follows General Counsel's theory at that point in time there were no union adherents on the engineering staff who would be influenced by Wallace's actions. Finally, General Counsel elicted evidence that Wallace signed a number of grievances during December 1969 and was in effect acting union steward for the engineering de- artment at the time of Eastman's alle ed attempt to have him initiate a UD petition . In light of allace's open sup- port of the Union I "have some doubt" that Eastman would have turned to Wallace to effectuate his purpose to oust the Union Cf. Central Electronics, Inc., 179 NLRB No. 145. Accordingly, I find that General Counsel has failed to prove by a preponderence of the evidence that Respondent was moved to terminate Wallace because of his refusal to cooperate with it in an effort to do away with the Union's authorization to enter into a union-security agreement. I further find that a lengthy discussion of the FCC cita- tion and Wallace's responsibility for any of the 10 specific violations set forth therein would add nothing to this deci- sion as the essential element of a violation, an unlawful motive and effect, is missing. I have however carefully con- sidered all of the evidence pertaining to the FCC citation and the events it engendered and find nothing therein to buttress General Counsel's claim that Wallace was termi- nated because of his noncooperation in the UD movement. Moreover, my finding that General Counsel has failed to prove by a ppreponderance of the evidence that Eastman sohciteWallace to initiate a UD petition and thereafter castigated him for not joining in a petition for such an election was made with full consideration of certain evi- dence that Eastman and Operations Manager Gaylord ex- pressed satisfaction that employees they viewed as union voters had been terminated and that Eastman stated to former Chief Engineer Rheingans his plans for the station when he was rid of the Union. I shall therefore recommend that the complaint be dis- missed. CONCLUSIONS OF LAW 1. Eastman Broadcasting Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Robert E. Eastman II, president of Eastman Broad- casting Company, Inc., is an agent of the Respondent within the meaning of the Act. 3. National Association of Broadcast Employees and Technicans, AFL-CIO-CLC, and its Local No. 46, are la- bor organizations within the meaning of Section 2(5) of the Act. 4. Respondent has not committed unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint herein be dis- missed.