WKRG-TV, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WKRG-TV, Inc. and The American Federation of Television and Radio Artists, AFL-CIO, New Or- leans Local. Cases 15-CA-3696, 15-CA-3753-1, and 15-RC-4287 April 29, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On November 18, 1970, Trial Examiner Lloyd Bu- chanan issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices and recommended that the alle- gations, in the complaint pertaining thereto be dis- missed. In addition, the Trial Examiner found that certain objections filed by the Union to conduct affect- ing the results of the election held on February 12, 1970, in Case 15-RC-4287, be sustained and recom- mended that the election be set aside. Thereafter, the Union filed exceptions to the Trial Examiner's Deci- sion, a supporting brief, and an addendum thereto; the Respondent filed cross-exceptions and 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 proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, cross-exceptions, briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein. 1. We agree with the Trial Examiner that the Re- spondent, in order to defeat the Union's organizational campaign, interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act, by promising wage increases and other benefits and subse- quently granting such benefits, by maintaining and en- forcing an unlawful no-solicitation rule,' by soliciting ' The rule prohibits employees from engaging in union activities on com- pany time and company property. Insofar as it affects employees' nonwork- ing time, it is an unduly broad no-solicitation rule and therefore invalid. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803; K-DManu- facturing Company, 169 NLRB 57, 58. We need not decide whether this rule was also disparately maintained and enforced, as found by the Trial 190 NLRB No. 34 grievances, and by engaging in coercive interrogation.2 Most of the foregoing conduct occurred after the Union filed its petition in the representation case on Novem- ber 21, 1969, and, as the Trial Examiner found, con- stituted sufficient interference to set aside the election held on February 12, 1970. 2. The Trial Examiner found that the Respondent did not violate Section 8(a)(5) of the At and that a bargaining order was not warranted. We do not agree. On November 21, 1969, the Union requested recog- nition as the bargaining agent of the Respondent's em- ployees in an appropriate unit.' The Trial Examiner found, however, that the Union's claimed majority status was tainted because of the activity of Keeney and Ellis, supervisors of the newsrooms and the file room, respectively. The Union submitted 22 signed authoriza- tion cards of the 34 employees in the bargaining unit, but 6 of these cards were rejected by the Trial Exam- iner, and he found that the Union had no majority. Accordingly, he concluded that the Respondent did not violate the Act by refusing the Union's demand for recognition. Concerning the conduct of Supervisors Keeney and Ellis, which allegedly tainted the authorization cards of Goodman, Smith, Bagwell, King, Engle, and Davis, the record shows that both Keeney and Ellis had also signed cards and attended union meetings. When asked about the Union by the employees, the comments of Keeney and Ellis were simply favorable. At the union meeting of November 19, there were remarks by Keeney and Ellis which tended to support the Union's organizational campaign. Goodman and Smith at- tended that meeting and Goodman signed a card at the meeting. Goodman's testimony, however, does not in- dicate to what extent he even heard Keeney's or Ellis' prounion remarks prior to signing the card. Smith's recollection of this meeting is that one of the men present said that he had been made a supervisor. A few days earlier, Bagwell was in the presence of several employees when, over coffee, Keeney and employee Formby spoke of the benefits of unionization. Keeney also talked about the Union with King, a personal friend, before the latter signed his card; according to King, "both seemed to feel the need for more represen- tation." Before Engle signed his card, Ellis was "talking it up" for the Union. Davis visited the newsroom before signing his card, where, in a discussion with Keeney, he learned that the Union provided members with advan- tageous insurance programs. Neither Keeney nor Ellis Examiner. 2 No exception was filed to the Trial Examiner's findings that the Re- spondent did not engage in surveillance or give the impression that it had engaged in surveillance . We therefore adopt these findings pro forma. ' We agree with the Trial Examiner that there is no substantial variance between the unit first requested by the Union and the unit found appropriate in the Regional Director 's Decision and Direction of Election issued on January 13, 1970, in Case 15-RC-4287. WKRG-TV, INC. 175 is shown to have approached any employee for the purpose of soliciting an authorization card. We are not persuaded that any of the six employees in question was induced to sign a card because of prounion remarks by Keeney or Ellis . But assuming that fact, we cannot find in the circumstances of this case that the cards were thereby invalidated. From almost the beginning of the Union 's organization cam- paign on November 10, the Respondent, particularly through its president, Giddens, made it plain to the employees that it was opposed to the Union ; indeed, as found by the Trial Examiner , Giddens and other man- agement officials sought to undermine or defeat the Union. It therefore must have been obvious to the em- ployees that, in matters concerning the Union, Keeney and Ellis in no way spoke for management . In their eyes, all were fellow employees whom the Union was seeking to organize; and Keeney and Ellis, like the rank-and-file in the group, were expressing their own personal views about the value of union representation. Therefore, no voice of management intimidated the employees into signing cards. In our opinion, especially in view of the strong opposition to the Union openly manifested by higher management officials, and the absence of any indication of such threat by Keeney or Ellis, this record does not permit a finding that the employees may have signed cards out of fear of future retaliation at the hands of Keeney or Ellis.4 Contrary to the Trial Examiner, therefore, we find that the Union represented a majority of the employees when it re- quested recognition and bargaining.' The Union's request for recognition and bargaining was rejected by the Respondent. After the advent of the Union and after its request for bargaining, the Re- spondent embarked upon a campaign of unlawful con- duct to undermine its employees' support for the Un- ion. Thus, Respondent maintained and enforced an unlawful no-solicitation rule, coercively interrogated and solicited grievances from employees , and promised and granted wage increases and other benefits to its employees . The first in a series of benefits was granted on November 20. After the Union had achieved its majority status and requested recognition and filed its petition for an election, further benefits were granted on December 13 and 28. On February 9, 10, and 11, 1970, before the election scheduled for February 12, the Respondent sent a series of letters to the employees reminding them of the earlier benefits granted and promising them more benefits in the future. The Union lost the election by one vote. ' Ellis supervised but a single employee. Both he and Keeney were in the lowest echelon of Respondent 's supervisory hierarchy. ' See Stevenson Equipment Company, 174 NLRB No. 128; William B. In our opinion, the Respondent's unfair labor prac- tices were so extensive that they had the tendency to undermine the Union's majority strength and impede the Board's election process. We find it unlikely that the lingering effects of the Respondent 's unlawful con- duct would be neutralized by resort to conventional remedies which would ensure a fair rerun election. We believe that employee sentiment , once expressed through the authorization cards, would , on balance, be better protected by the issuance of a bargaining order.' We find that the Respondent violated Section 8(a)(5) of the Act and shall order it to bargain with the Union. We shall also issue a broad cease -and-desist order to remedy the extensive unfair labor practices. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, WKRG-TV, Inc., Mobile, Alabama, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Promising benefits to employees; soliciting ex- pressions of grievances ; and granting wage increases and other benefits all to persuade employees not to engage in union activities. (b) Maintaining and enforcing its unlawful no-solici- tation rule. (c) Unlawfully interrogating employees, orally or in writing, concerning grievances or their union activities or desires. (d) Refusing to bargain collectively with The Ameri- can Federation of Television and Radio Artists, AFL- CIO, New Orleans Local, as the exclusive bargaining representative of its employees in the following unit heretofore found appropriate: All full-time and regular part-time directors, photographers, film department employees, news- men, announcers, artists, production crew, the television promotion employee, art and set design employees employed at the Employer's Mobile, Alabama, radio and television station; excluding engineers, salesmen, janitorial employees, the delivery employee, traffic employees, guards and supervisors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: Patton Towing Company, et al., 180 NLRB No. 16; Clay City Beverages, ' N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575 (1969); Inc., 176 NLRB No. 91. Colonial Knitting Corp., 187 NLRB No. 134. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Upon request, bargain collectively with the Un- ion as the exclusive bargaining representative of its employees in the appropriate unit concerning wages, hours, and other conditions of employment, and exe- cute a signed agreement as to any understanding reached. (b) Post at its place of business in Mobile, Alabama, copies of the attached notice marked "Appendix."' Co- pies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Com- pany to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the election held on February 12, 1970, be, and it hereby is, set aside, and that the petition filed in Case 15-RC-4287 be, and hereby is, dismissed. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX All full-time and regular part-time direc- tors, photographers, film department em- ployees, newsmen, announcers, artists, pro- duction crew, the television promotion employee, art and set design employees em- ployed at our Mobile, Alabama, radio and television station; excluding engineers, sales- men, janitorial employees, the delivery em- ployee, traffic employees, guards and super- visors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the right to self-organization, to form labor organizations, to join or assist The American Fed- eration of Television and Radio Artists, AFL- CIO, New Orleans Local, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid. or protection, or to refrain from any or all such ac- tivities. WE WILL bargain, upon request, with the above-named Union as the exclusive representa- tive of all employees in the unit described above concerning wages, hours, and other conditions of employment, and execute a signed agreement if any understanding is reached. All our employees are free to become or remain, or refrain from becoming or remaining, members of The American Federation of Television and Radio Artists, AFL-CIO, New Orleans Local, or any other labor organization. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce employees by promising benefits, soliciting expres- sions of grievances, or granting wage increases and other benefits to persuade them not to engage in union activities. WE WILL NOT maintain or enforce our unlaw- ful no-solicitation rule. WE WILL NOT unlawfully interrogate em- ployees, orally or in writing, concerning griev- ances or their union activities or desires. WE WILL NOT refuse to bargain collectively with The American Federation of Television and Radio Artists, AFL-CIO, New Orleans Local, as the exclusive bargaining representative of our em- ployees in the appropriate unit. The appropriate unit is: WKRG-TV, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued June 5, 1970; charges filed December 1, 1969, and February 24, 1970), as amended, alleges that the Com- pany has violated Section 8(a)(1) of the National Labor Rela- tions Act, as amended, 73 Stat. 519, by promising and an- WKRG-T:', INC. pouncing improvements and benefits , soliciting expression of grievances, granting wage increases and other benefits, main- taining and discriminatorily enforcing a no-solicitation and no-distribution rule, interrogating an employee concerning his union activities and desires, and creating the impression of surveillance of union activities; and Section 8(a)(5) of the Act by all of the acts noted above and by refusing to recognize and bargain collectively with the Union as the exclusive col- lective-bargaining representative of the employees in an ap- propriate unit. The answer questions certain findings by the Regional Director in his Decision and Direction of Election, the Board having thereafter denied the Company's request for review; and it denies the allegations of violation. Consolidated for hearing, ruling, and decision with the hearing and proceeding on the above issues was a hearing on objections to conduct affecting an election which was con- ducted by the Regional Director on February 12, 1970. The case was tried before me at Mobile, Alabama, on July 27 through 29 and August 3 through 5, 1970, all dates inclu- sive. At the close of the trial, the General Counsel and the Company were heard in detailed, thorough, and helpful oral argument. Pursuant to leave granted to all parties, a brief was thereafter filed as a supplement by the General Counsel. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I THE COMPANY 'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as an Alabama corporation, the nature and extent of its business as a radio and television broadcaster, and its engagement in commerce within the meaning of the Act are admitted; I find and con- clude accordingly. I also find and conclude that, as found in the representation proceeding, the Union is a labor organiza- tion within the meaning of the Act. II THE UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a)(1) Stripped of embellishment and irrelevancies, the issues before us (not passing again on several determined in the representation proceeding) remain whether the Company vi- olated Section 8(a)(1) as alleged, whether the Union had a majority of valid and untainted cards, whether the Union requested and was refused recognition, and whether a bar- gaining order should issue if there be a majority and if inter- ference found was such in nature and extent as to preclude the holding of a fair election, or if such an order be necessary to repair the effects of the interference found. After a brief organizational campaign, of which more be- low, the Union filed a petition for certification on November 21, 1969; it also sent to the Company a letter requesting recognition and bargaining, dated the same day and received by the Company on November 24. The promises and solicitation of November 15 alleged as violative in paragraph 12 of the complaint, the memorandum cited in paragraph 13, and the benefits described in paragraph 14 constitute a unified word-and-deed situation. With two slight changes, which are covered by the analysis herein, there is agreement on the facts alleged concerning the speech of November 15 except that the Company claims that the speech and what was said were pursuant to the request of employees. Such a request is significant for its bearing on the 177 Company's objective, which is material on the issue of inter- ference.' With respect to the allegations of paragraphs 13 and 19 as well as of paragraph 12, it should be noted that, without more, an attempt by an employer to please or placate em- ployees may be praiseworthy for its consideration of the em- ployees, for its generosity, and for its helpfulness in attaining that industrial peace and harmony which the Act seeks. But the same acts committed with the objective of interfering with organizational efforts are violative:' They run counter to another desideratum of the Act, "protection by law of the right of employees to organize and bargain collectively." If solicitation of grievances be illegal when accompanied by a promise of benefits aimed at interfering with organizational effort, it is a fortiori unlawful when that promise of benefits is realized in actual grant. Even were we not concerned with moral aspects of promises or grants which indicate immediate benefit, we may not overlook the impairment of employees' rights when combined with an objective so to impair. The facts largely agreed upon, we must make findings with respect to the company's objective. Without at this time going into the details of the Union's organizational campaign, which actively got underway with the signing of cards on November 10, it is clear that the most active protagonist was employee Formby, who himself had signed a card on October 26. He testified concerning a talk with Diamond , the Company's production manager at that time, which led to the return of Giddens, the company presi- dent, to Mobile from Washington, where he was on govern- ment assignment. The issue at the moment is whether, when he spoke to the assembled employees on November 15, Gid- dens did so at the request of some or all of them. Formby was not at all reliable on the stand; on the other hand, Diamond's recollection was limited although he im- pressed me as the more reliable. Beyond this, Formby' s asser- tiveness and his ready promise and performance in canvass- ing some 30 employees concerning their desire for a meeting with Giddens and their preference that Persons, the Com- pany's vice president and general manager, not attend, and his unauthorized question whether they preferred also that Trainor, the general manager of the radio station, not attend,' suggest that it was Formby, not Diamond, who initiated their conversation ; and, if this be significant, that it occurred on November 10 or 11 as Diamond testified rather than on November 12. Nor should we overlook the fact that not until November 24 did Diamond become personnel officer. There is no evidence that he had at any other time sought any employees out or solicited and discussed grievances; Formby was the leader in this respect and it is quite understandable, and I find that, as self-designated spokesman, he sought out Diamond and set in motion Giddens' decision to return and speak to the employees on November 15. From such testimony as that by employee Hodges there can be no question but that before the meeting was arranged with Giddens the employees, including Formby, "all dis- cussed a proposed meeting with Mr. Giddens-there was a lotta talk about a meeting with Mr. Giddens." I find that, even if this cannot be said of some of the statements made by Giddens at the meeting, the meeting of November 15 was held "pursuant to the request of certain employees.... " ITT Telecommunications, 183 NLRB No. 115 Standard Coil Products Company, Inc., 99 NLRB 899 The offense is hardly less if, concerned only with his own behoof and as several witnesses told us, he did not ask this question or did not discuss the matter at all with some of the employees whom he listed 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If, because of his own experience and for the reasons which he stated as testified to by several employees and as we shall soon see confirmed in the notes taken by his secretary at the Company's request, Giddens availed himself of the oppor- tunity to speak to the employees, the fact remains that he did so at their request. But who prompted or proposed the meeting is not deter- minative of the larger issue of objective. While Operations Manager Haug had in August suggested various elements of equalization of pay and benefits, this had not been reified and it does not appear that these ideas promoted Giddens' appear- ance on November 15. Separately alleged, the actual grant of benefits will be considered separately. With the finding that Giddens appeared pursuant to the request of employees, we must consider other testimony on the issue of company objective; testimony which is most sig- nificant but which was not received until just before the close of the trial. While not a complete or verbatim transcript of what Gid- dens said at the meeting, his secretary's report indicates that, inter alia, he in substance told the employees the following, referring first to their having voted to decertify another union a few months before: These broadcast institutions are a great part of my heart. I have not lost my interest in them and am disturbed about organizing a union among us. I hope it will not come about. It puts management on one side and you on the other side. When we joined the union we were ham- strung. Everything was then restricted. We could not use mini tapes. Finally the men voted themselves out and we have been freer since that time. The activities of the union cost us a lot of money and it cost the announcers a lot of money. Some people picketed our clients, with a loss of talent to our own people. It injects outsiders- It splits you away from me, has a tendency to stiffie flexibility. We just do not need to bring in outsiders to protect each other. We have taken care of our people. We have already discussed adjustments in salaries. We are going to have a personnel officer who will make agreements which the company will honor. We will evaluate jobs and see that our salary structure comes in line with similar positions in comparable markets. We will also institute some kind of insurance plan ip addi- tion to Blue Cross that we have now. Giddens' promise of benefits and his solicitation of expres- sion by the employees even while he undertook to persuade them that a union is unnecessary and undesirable constituted unlawful interference, restraint, and coercion.` While separately alleged in paragraph 14 of the complaint, the Company's grant of increases and various benefits on November 20 was in fulfillment of some of the promises made on November 15 and is part of a single overall and consistent pattern. Admitting the action taken, which we need not de- tail, the answer declares that the Company equalized various items for substantially all employees, and it is further admit- ted that such equalization was by grant of increases to some employees. There is some basis for a finding that there had been consideration of increases before the commencement of the Union's campaign. But it is unnecessary to detail here the analysis which I made, during the hearing, of the testimony concerning the history of other employees and their union, and the Company's concern with competitive conditions. Here the Company was living up to Giddens' violative prom- ises of November 15. The objective having been found, the realization was as violative as the promises. The very declara- ' ITT Telecommunications, 183 NLRB No. 115. tion and the connection indicated by Giddens between his concern over unionization and the proposed salary and other benefits provide a glaring instance of campaigning with be- nefits as the Company did when it implemented the promises made after months of slow study which, so far from produc- ing action, had seen cancellation of a slight step taken by Trainor, as we shall now see. So much could have been omitted at the trial! Whatever steps the Company had earlier initiated to grant benefits and whoever promoted the November 15 meeting and speech, Giddens clearly displayed an unlawful objective when, as brought out on the last day of the trial, he argued against union activity even while he now promised benefits. A series of events which might be deemed of further signifi- cance in this connection began with Trainor's announcement that the Company was going to pay for certain holidays and that announcers would be paid double time for working on Labor Day. When the extra pay was not included in the checks received after Labor Day, Trainor insisted that he had himself made a commitment and gave several of the men his personal check for the difference. Trainor had jumped the gun which the Company had not then intended to fire and which was not fired until these union activities were under way some 2-1/2 months later. If Trainor regarded with some definiteness earlier consideration given to various benefits and wage increases, his action was not sustained by the Company, and no support was lent to his statements concerning proposed increases and benefits until after the promises of November 15. Certainly Trainor's action shortly after Labor Day did not reflect the Company's attitude or decision at that time, both of which stand in marked contrast to the steps taken after commencement of the AFTRA campaign. The grant of benefits on November 20 was a violative followup of promises made by Giddens on November 15. Similarly a continuation and sequel to the earlier violative promises was a memorandum issued by the Company on November 24, in which it announced designation of a person- nel officer, retention of a personnel consultant, and promises of correction of inequities. Paragraph 15 of the complaint concerns itself with in- creases granted on December 13 and 28 to employees within and without the unit. While they can hardly be separated from Giddens' promises of November 15, consideration would here again be given to the background or historical explanation offered by the Company, going back to increases given to other employees in August, retroactive to June 1. Under other circumstances, testimony by Haug, Diamond, and Persons mighty be accepted as sufficient explanation de- spite the suspicious timing of the promises and actual in- creases. But an indisputable and unexplained fact speaks more loudly than the explanations offered: Neither in his November 15 speech nor in his memorandum of November 24 did Giddens make any reference to any earlier decision or studies long underway to improve wages and benefits. In contrast, while he stated in his speech that adjustments in salaries had already been discussed, the memorandum re- ferred only to future action, not any then under way, and to his November 15 promise that he "would retain a personnel consultant to conduct a job content and wage survey." ' The finding here makes it unnecessary to set forth my analysis of that testimony. Whatever the earlier intramanagement consideration, Persons was unwilling and less than alacritous in supporting increases and putting them into effect; an attitude which was evidently communicated to the employees and led first to the question and then to their expression of preference that he not attend the November 15 meeting. WKRG-TV, INC. These December increases are to be weighed also in the light of the election proceeding which was then pending, a factor which we shall next emphasize in connection with documents issued by the Company in February 1970, im- mediately before the election. It does not appear that these increases had in fact been contemplated for so many months that their announcement was necessitated before the elec- tion,' or that the Company acted without consideration of the effect on the election. They were violative. The election scheduled and held on February 12, the Com- pany on February 9 through 11 issued to its employees three memoranda and a letter. The answer declares that the docu- ments "speak for themselves." They do indeed, and are at- tached hereto as Appendixes B, C, D, and E. Whether or not these documents be deemed a continuation or followup or earlier activity found to be violative, the promises and other statements on February 9, 10, and 11 are violative, as is "the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged."' Neither with respect to the promises now made nor the December increases can it be said that established company practice was followed. The in- creases granted to other employees in August had not for several months led the Company to grant benefits to the employees here. No compulsion was shown, nor any sufficient reason, for action after the filing of the election petition or for referring to such action with promises for more immediately before the election itself. I find and conclude that these be- nefits were announced and granted with a purpose to influ- ence the election and that they reasonably tended so to influ- ence it,' at least to the extent that reference was made to benefits granted and other action which was violative. Not content with its earlier promises, and seeking maximum ad- vantage from the benefits already granted, the Company now sought to climax the election campaign with reminders of recent benefits and promises of more to come. With respect to the allegation that the Company has main- tained and discriminatorily enforced a rule prohibiting solici- tation or distribution on behalf of a union on company prop- erty, employee Young testified on cross-examination that he believed that right after the first union meeting (apparently referring to the noon meeting or the general evening meeting on that day) a memorandum was issued directing employees to quit using company stationery and telephones and discuss- ing the Union. Young's uncertain testimony hardly sustains the allegation. If there in fact was such a memorandum we heard no more about it; nor was it produced. Almost parenthetically, employee Howard testified that on the morning of November 10 (he signed a union card that evening), Supervisor Keeney' told him not to discuss the Union on company time but on his own time. Howard later explained that, inquiring concerning the Union, he asked whether Keeney would like the Union there, and that Keeney replied that he favored it but did not know whether he would himself be classified as a supervisor. This does not support the allegation of a disparate no-solicitation rule. It may be here noted that statements by Supervisors Keeney or Ellis, several times in response to employees' ques- tions, that they favored the Union were not alleged to consti- tute unlawful interference and cannot be found to be such. Aside from the element of initiation by the employees them- selves, the General Counsel, concerned with card validity, 6 Cf Standard Coil Products Company, Inc., 99 NLRB 899 NLR.B. v Exchange Parts Company, 375 U S 405 ° Cf Alton Box Board Company, 173 NLRB No 105, TXD at fn 5, where announcement of withholding of increases was held to be proper ' His status as supervisor will be considered below 179 minimized such statements and has not claimed that they were violative. Nor were they litigated; neither Kenney nor Ellis testified. While none of this is of great moment in view of the other proved allegations, I regard in a different light and violative Ellis' statement to employee Faggard on November 21 that Haug had told him to tell Faggard that the Company knew that he was organizing on company time and that if he did not stop he would be severely reprimanded; and that there were to'be no more union discussions there. While Faggard was less than reliable on the stand, and as much, or little, can be said for Formby, the former's testimony in this connection is uncontradicted as is Formby's that on November 21 he was called into Diamond's office where the latter, in Haug's pres- ence, warned him against soliciting on company time and using company property; and that he declared that there had been general conversation concerning the Union and that he did not know that it was against company policy, to which Haug replied that it was against company policy per se to discuss the Union on company time and/or to use company property. We need not here concern ourselves with the ques- tion of use of the telephone or company property by Formby beyond its reflection on his credibility, whatever its bearing on his relationship with the Company. But the objection to solicitation or discussion of the Union on company time con- stituted disparate maintenance and enforcement of an unlaw- ful rule. Such violation was repeated on December 16, when Dia- mond again warned Formby, and issued a written warning which cited the prior warning regarding Formby's "conduct- ing union activity on company time and property" and warned him against "using the company's time, equipment or property for union organizing purposes." As alleged in paragraph 18, Haug on November 13 accord- ing to Formby, on November 19 or 20 according to Haug, asked Formby how he felt about the Union. The latter replied that if it would help him, he was for it; if not, he was not. This admitted interrogation, in the context of the other acts, was violative. It is next alleged that on November 25 Alspaugh, who had been called in as personnel consultant as Giddens had prom- ised, told Faggard that the Company had pegged him and Formby as union organizers. It is claimed that this violated the Act as creating the impression of surveillance of em- ployees' union activities. If, as we shall see, Keeney and Ellis actively engaged in union activities and their knowledge as supervisors is imputed to the Company, and if company knowledge is in any event to be inferred in this small plant,i° a statement of such knowledge made to company an em- ployee who was apparently as cognizant of the law as were company representatives does not indicate any effort or sur- veillance by the Company to acquire such knowledge, or tend to create an impression thereof. The many open discussions here further negate any suggestion of surveillance or impres- sion of surveillance, and I so find and conclude. It is further alleged that in November and December Al- spaugh solicited grievances by interviews and questionnaires. On November 24 or 25 Faggard was directed to see Al- spaugh, who asked what his problems were. This prefaced the statement that the Company had pegged Faggard and Formby as union organizers. About the same time Formby filled out the questionnaire submitted to him by Alspaugh. The questionnaire was described as part of a company survey to gather information with respect to the establishment of salary rates. Regardless and aside from any relationship be- tween the Company and Alspaugh by virtue of his relation- 10 Wiese Plow Welding Co., Inc., 123 NLRB 616. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship and duties elsewhere, Giddens' motive having been ear- lier found, these questions, oral and in writing, constituted a sequel to Giddens' promises: the objective was here to dis- courage union activities and to defeat the organizing efforts. Unlike the survey in ITT Telecommunications," the aura of questioning and the written survey here were neither inde- pendent nor objective. I find and conclude that these con- stituted unlawful interference, restraint, and coercion. B. The Alleged Violation of Section 8(a)(5) I find and conclude that, as found in the representation proceeding, the following is an appropriate unit within the meaning of Section 9(b) of the Act: All full-time and regular part-time directors, photog- raphers, film department employees, newsmen, an- nouncers, artists, production crew, television promotion employee, art and set design employees employed at the Company's Mobile, Alabama, radio and television sta- tion; excluding engineers, salesmen, janitorial em- pldyees, the delivery employee, traffic employees, guards and supervisors as defined in the Act. Because the facts in several respects are clear and because of insufficiencies in necessary respects as will be noted, it is unnecessary now to expatiate on certain elements: findings will be made not so much "to complete the picture" (a too frequently dishonored and dishonorable phrase) as to provide a base for decision should there be disagreement on review with what will be declared below to be an insufficiency or valid cards. The answer points out that the Union's request of Novem- ber 21 for recognition and its petition filed that day with the Board vary in their unit description from the unit subse- quently found. Aside from differences in titles which do not seem to have caused any problem, the Union's letter and petition included "film directors." The Decision and Direc- tion of Election notes that there is a film director, James Ellis, and that "both parties seek to exclude him"; and he was excluded from the unit. There is thus neither a substantial variance between the unit first requested and that found, nor a determinative one since the Company was admittedly at the trial herein unwilling to bargain with respect to the unit as found by the Regional Director and the Board and as alleged herein. Clearly the request for recognition and bargaining has been and is a continuing one. We come now to consideration of the Union's majority. With 34 employees in the unit and 18 cards needed for a majority, 22 signed cards were offered and received. But for an admittedly incomplete investigation, we might here also have saved a great deal of the testimony-and might have effectuated settlement of the case without a bargaining order. The many and detailed references to instances of al- leged interference almost hid the vulnerability of various cards because of two supervisors' direct and personal influ- ence on the findings. Sartre-like discarding or ignoring the limitations of reality, Formby to a greater extent than did other witnesses carelessly splashed about in surmises and his own estimates of what he probably had done or said in connection with cards and other matters. But our concern is in fact with the activity of Keeney and Ellis, supervisors respectively of the newsroom and the film room. Aside from any stipulation and finding in representation proceedings with respect to the supervisory status of the latter two, there is no question but that the employees regarded 11 See fn. 1, above. them as supervisors and company representatives;" it had been established and recognized several months before and was no secret although attempts were made at the trial to minimize this. Admittedly the two, in many conversations with employees, solicited and encouraged support of the Un- ion. There is no suggestion or claim of company connivance or even knowledge which , if it created an estoppel against the Company, would not have lessened the impairment of the employees' free choice." In several cases, as we shall see, this was done prior to the signing of union cards . 10 Members of the Musicians Union and of IBEW, respectively, Keeney and Ellis also signed AFTRA cards. Employee Max Goodman testified that he signed his card at a union meeting on November 19, Both Keeney and Ellis attended that meeting, and by their presence and remarks lent support to the organizational activity . At the meeting Keeney offered to lend one of the employees $25 for payment to the Union on account of initiation fee, and Ellis, who had also made it clear that he supported the Union , asked several questions . We were told further that Keeney asked questions at this meeting . Witnesses testified that Goodman was present during various discussions with Ellis , all favoring the Union; one told us that he believed that one of these discussions preceded the November 19 meeting, another that such discus- sions took place both before and after he signed a card on that day. Max Goodman's card is rejected. Employee Bagwell testified that before he signed a card on November 13 Keeney and Formby spoke in support of the Union in the presence of several other employees , and that he gathered that Keeney was saying that it was the proper course to take to sign a card and also that it would be for the benefit of announcers and newsmen , that wages were not high enough, and that "there were some advantages to being repre- sented by AFTRA." Bagwell's card is rejected. Employee Smith testified that he was not yet on the payroll and was working elsewhere but "had been hired " and was training for a job here when he signed a union card on November 20. He went on the payroll on November 30. Not yet privileged to discuss with Keeney or Ellis the advantage or unionization, Smith had attended the union meeting which they likewise attended the day before he signed his card; he recalled that one of the men present said that he had been made a supervisor . The impression given throughout is of an atmosphere which was tainted by indiscriminate support of the Union and the welcomed support of these supervisors. Smith's card is rejected. Employee King testified that Keeney was a personal friend of his and never solicited support for the Union ; but that they had discussed it "mutually" before King signed his card and that while there was nothing "of any definite nature," both "seemed to feel the need for more representation ...... To argue that Keeney did not solicit King 's card is hardly to meet the issue before us . Encouragement by a supervisor which, where that issue is raised, may warrant a finding of interference and even unlawful support against an employer invalidates a card . King's card is rejected. Employee Engle minimized his conversations with Keeney concerning the Union before he signed his card . He told us that Keeney "seemed to be in favor of a union at the station" and had said that "that might be the only way" to obtain better wages and other benefits. Engle was less reluctant to Cf. Aero Corporation, 149 NLRB 1283, 1286. " Cf. N.L.R.B. v. Decatur Transfer & Storage, Inc., 178 NLRB No. 12, enfd. 430 F.2d 763 (C.A. 5, August 21, 1970). " We need not consider whether knowledge of the early prounion advice and encouragement by Keeney and Ellis reached or is to be imputed to other employees before they signed. WKRG-TV, INC. declare that both before and after he signed his card and in conversations with almost all employees Ellis declared that he was for union representation and "was talking it up." Engle's card is rejected. Employee Davis testified that he had a few conversations with Keeney, at least one of them before he signed on Novem- ber 20. While Keeney never asked Davis to sign a card, he did point out that the Union would provide $5,000 of insur- ance and that it was worth the money to get such insurance at their age. Davis' card is rejected. It becomes unnecessary to consider questions which may be raised' concerning valid- ity of other cards. Whether or not a supervisor's activity extends to the point where unlawful support might be found," our concern with a possible order to bargain and with employees' right of free selection of a collective-bargaining representative, especially where such selection is claimed on the basis of cards rather than a secret ballot election, demands rejection of cards signed under the circumstances noted herein. I cannot sub- scribe to a twitching acceptance of cards signed under cir- cumstances which surprised and at least momentarily dis- couraged their chief proponent at the trial. This is aside from any suggestion of general taint or effect on other employees16 who were not directly approached by Keeney or Lynch. To weigh, as the General Counsel suggests, "the impact of the misconduct ... as if the entire unit con- sisted of, at most."" the number of employees equal to the difference between the votes against and for the Union (in this case, one or, if the challenged ballot be assumed to have been cast against the Union, two) is to ignore the very point noted in Standard Knitting Mills that "the impact of such incidents was not necessarily limited to" the employees directly in- volved in the interference. On the issue of validity of specific cards, apart from any general taint, even in Clay City Beverages, 11 cited by the Gen- eral Counsel, the Board noted that, whatever the activity of the low level supervisor there, it was a rank-and-file employee who received the cards from the union, alone solicited signa- tures, and received all of the cards and submitted them to the union. Unlike the instant situation, the employee-solicitor in Clay City clearly, effectively, and alone solicited all of the cards. Unlike Clay City, we do have here evidence of encour- agement by supervisors to support the Union in contradis- tinction to the "unspecified nature" of the supervisor's state- ments and answers to questions in Clay City. If employees had opportunities to discuss the Union "prior to any supervisory influence" as the General Counsel has argued, we are still concerned with such influence prior to the signing of union cards; influence which under the circum- stances might result in findings of serious violation by an employer. It would be anomalous to hold, following the Gen- eral Counsel's position and argument, that conduct by super- visors as in this case which, imputed to an employer, would warrant a finding of unlawful support loses that element of support when considered for its tendency to affect the signing of a union card. Our concern must be and is to protect em- ployees from the influence of supervisors, whether in an elec- " The attack in this case is in the other direction as the two supervisors were acting on behalf of the Union and were even invited to attend the union meeting. The Union cannot escape the significance of their activity and their presence at the meeting by arguing that it did not encourage them to solicit cards 16 Welding & Industrial Products, Ltd, 167 NLRB 881 Cf also Stoutco, Inc., 180 NLRB No 11, at fn. 3 " Standard Knitting Mills, Inc., 172 NLRB No. 114 " Clay City Beverages, Inc., 176 NLRB No. 91 181 tion or in the signing of cards, whether for a union or against it. In Kane Bag Supply Company," statements allegedly made by a supervisor at a union meeting were not credited. The Trial Examiner there held that mere presence of a supervisor, whose earlier action had been specifically disavowed and au- thonty limited by the company, at a meeting does not invali- date a card, citing United Mineral & Chemical Corpora- tion.20 The facts in the latter case were quite different: Al- though the two disavowed supervisors were present at the union meeting, they did not approach the signers. This aspect in any event could bear only on the cards signed by Max Goodman and Smith. In connection with Max Goodman's card, it can be noted, aside from any discussions with Ellis before the meeting, that the cards having been mailed by the Union some 10 days before, Goodman did not sign until just before he left the meeting on November 19. As for Smith, we have an expectant employee who knew that a supervisor had attended the meeting. In the Steele Apparel case," also cited by the General Counsel, employee Evans' card was counted after what was evidently not considered to be a threat (conceivably violative under other circumstances) by Supervisor Peters rather than inducement. On the other hand, the Board rejected the finding that the same supervisor's inducement of employee Rose to sign a card "indicate[d] a friendly attitude toward union organization," and that the employees knew that such "remarks (friendly to the union) were not official company policy"; the Board refused to rely on the card. In the instant case, neither side comported itself in accord- ance with the requirements of the statute and decisions: the Company by its interference, the Union by permitting and seeking to obtain advantage through the efforts of Keeney and Ellis. It is one thing to hold that the Company must remedy its interference; quite another to permit the Union to obtain advantage from the supervisors' encouragement, sup- port, and influence . Certainly the Union and Formby, its moving spirit, indicated no qualms in accepting such efforts during the campaign and even at a meeting attended by coun- sel for the Union. The issue here is not whether these super- visors coerced employees but whether they interfered with the employees' free choice; and whether the designation by cards, thus influenced, should be relied on rather than the secret ballot election. Further, to say that a fair election is now precluded by the Company's interference is to ignore the many cases where, in the absence of a card majority (as I have here found) and after interference found (as here also), an election is directed at a time deemed appropriate by the Regional Director as he judges that the effects of the interference have been dissipated. Concerned as we are and should be with the rights and desires of the employees, the problem of conducting another election after the effects of the violations found have been overcome would be no greater, assuming a majority of cards, than it would be were there no card majority and the usual directive issued for another election when, in the opinion of the Re- gional Director, the effects of the interference have been dis- sipated. I find and conclude that the Company did not violate Section 8(a)(5) of the Act.22 " Jerome T. Kane, d/b/a Kane Bag Supply Company, 173 NLRB No 180 '° United Mineral & Chemical Corporation, 155 NLRB 1390, 1394 " Steele Apparel Company, Inc 172 NLRB No 95 " I reject the Company's argument that, despite the clearly stated desig- nation of the Union, some of the cards should be rejected as indicating only a desire to have an election or a visit to Mobile by a union representative 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE OBJECTIONS TO THE ELECTION As described in the Regional Director's Supplemental Decision and Order Directing Hearings on Objections, dated June 12, 1970, and as counsel have agreed, those objections are covered by the allegations of violation herein; they are also supported by the evidence concerning the violations found herein. [Recommended Order omitted from publication.] APPENDIX B MEMORANDUM TO ALL EMPLOYEES On Thursday, February 12, 1970, you have a decision to make which will affect you, your family, and the future of WKRG. You will decide on that day whether to entrust your future and the solution of your problems to union leaders who live in another city or to local union personalities such as Jimmy Burns, Louis "Blackie" Neira and W. O. Mozingo, or whether to continue your trust in a management that has shown a willingness to correct inequities and to solve meritorious employee complaints. There are certain truths about this election which you should know: 1. The entire election will be supervised by a representative of the National Labor Relations Board. 2. Your vote is secret-nobody will ever know how you vote. 3. You do not have to sign your name to anything in this election. Simply mark the box of your choice appearing on the ballot. 4. If you do not want the union, you have got to go to the election and vote NO. 5. Some of you have been told that if you signed a union card you have to vote for the union. You are completely free to vote "NO UNION" no matter what you have said or signed. The government recognizes that some of you may have signed a union card on the basis of false promises. You may have signed a union card before you knew what the union was all about. 6. Remember, nobody will be able to see you mark your ballot, no one will know how you vote unless you tell them. Weigh the facts carefully! Compare what you now have with the only things a union can guarantee ... dues, fines, assessments, and the right to call you out on strike. Vote to keep all of your pay check every week. Vote "NO UNION" on Thursday. Personnel Officer /s/Wes Diamond 2/9/70 APPENDIX C MEMORANDUM TO ALL EMPLOYEES Union advocates first told employees of WKRG that some of you would lose your job if AFTRA were defeated in the National Labor Relations Board election. This rumor has been stopped. Now, these same union advocates are saying that all raises given in December, 1969, will be rescinded after the election. WKRG has never rescinded any wage increase; WKRG will not rescind any of the wage increases that became effective in December, 1969. The truth is that many of you who received a wage increase in December will receive additional automatic step increases based on your length of service with WKRG. This is WKRG's way of rewarding employees for proficiency gained on the job. Personnel Officer /s/ Wes Diamond 2/10/70 APPENDIX D POST OFFICE BOX 2367 MOBILE, ALA. 36601 TELEPHONE 432-5501 162 ST. LOUIS ST., MOBILE, ALA. FEB. 10, 1970 TWD Tomorrow you are going to vote, in secret, for or against a union at WKRG. The decision on whether to support the union or not is a big decision for you to make for it can affect the whole future for you and your family. Even though you may have considered all of the facts before, I am going to state some of them again, so that they will be fresh in your mind when you mark your ballot. Union organizations may be necessary in some companies to attempt to force management to "do right" by its em- ployees. The management of WKRG has proven down through the years that it will be fair with its employees. Sometimes we haven't moved as fast as you may have liked, and sometimes you have not received an answer to your question or complaint that pleased you, but you must hon- estly admit that there has been improvement in earnings, benefits, and general working conditions. Complaints have been given consideration and management's promises to you have been kept. Wages have been adjusted based on compara- ble stations around the country ... there are many that pay more and many that pay less ; this will always be, as long as there is a big difference in income ... WKRG probably never will be able to pay on a scale comparable with New York, Boston, or even New Orleans. Any union that tries to make you believe they can deliver pay scales that are not compatible with the income of the station is misleading you. The "first and second class" employee situation as it pertained to vaca- tions, holidays, and other benefits has been corrected, and you now enjoy greater benefits in these areas than the engi- neers had even when they were represented by a union, and you did not have to pay dues, or assessments or go out on strike to get them. You registered a complaint that you could not get answers, and sometimes not even a fair hearing, on your problems. Management appointed a Personnel Officer, and gave the Personnel Officer the responsibility and au- thority to act on personnel complaints and grievances. I ac- cepted this responsibility and I have exercised my authority as Personnel Officer in several matters brought to my atten- tion. You indicated a dissatisfaction with the insurance pro- gram and were assured that a life insurance plan would be made available to you. This is still to be done, and will be done after the election is held. This management has proven to you that it will "do right" without outside interference. There is no law that requires the company to agree to anything a union negotiator requests or demands . The man- agement of the station must decide what is best for the eco- nomic security and continued success of the business. No union can get more than the company is willing to give. There is only one way a union representative can attempt to force his demands on the company and that is by calling a strike. During a strike, you and your family suffer from loss of wages and you run the risk of being replaced on your job. Many employees lost their jobs at WALA-TV when they went on strike in 1966. Now, what else can the union do for you? (1) AFTRA can and will take some of your hard-earned money in initiation fees, dues, special assessments, and fines, to pay the salaries and expenses of union officials. (2) The union can rob you of many individual freedoms which you now have. A few union politicians may run your working life. Take a careful look at the men who are pushing the union, and ask yourself if you want these men to be responsible for your welfare. You now WKRG-TV, INC. have the freedom to talk to anybody in the company about your work, job, future or personal affairs. The union wants to take over this freedom and tell you what to do. (3) The union will work toward eliminating the possibility of your progressing on your own efforts and merit and will try to substitute other criteria for success such as length of service, without regard to whether you are more capable and deserv- ing. (4) The union can increase operating costs and decrease efficiency by questioning and protesting management's day by day operating decisions . AFTRA may, like the IBEW, delay the effective date of a wage increase that WKRG would like to give to you; AFTRA has already complained to the Na- tional Labor Relations Board because you were given better vacations, holiday pay, and a wage increase . The continued success of the business from a profit making standpoint is the way that your job stability is insured. WKRG will not operate as a non-profit organization. Think carefully about these points and of the benefits that WKRG has provided for you. Then I believe you will vote "No" on election day . We can continue to build our relation- ships with each other by individual and open discussions for the mutual benefit of both you and WKRG. You do not have to belong to a union to hold a job in this state or with WKRG . I can assure you that you will never have to belong to a union to work at WKRG . Even if you signed a union card, you are under no obligation to vote for the union. Your vote is secret, and only you will know how you voted. By all means-vote-regardless of whether you have decided in favor of the union or WKRG . We sincerely believe that if all eligible employees vote, there will be a resounding defeat of the union. Sincerely, APPENDIX E MEMORANDUM TO ALL EMPLOYEES Some of you have been asking questions about a better insurance program . You have been assured that additions and 183 improvements would be made. Study of several proposals has been under way at management's direction. However, the union has seen fit to question the legality of practically every improvement which has been made by man- agement. On December 1, 1969, AFTRA filed charges with the National Labor Relations Board in New Orleans, Louisi- ana charging WKRG with unfair labor practices for appoint- ing a personnel officer , for equalizing vacations, and granting all employees six paid holidays each year without regard to whether the employee was regularly assigned to work on the holiday, and double time to those employees who are required to work on the holiday . When WKRG-TV granted wage increases in December , the wage increases were included in the charges . Had WKRG done what AFTRA says WKRG should have done, you would not have enjoyed a paid holiday on Thanksgiving, Christmas or New Years, and most of you would not have received a wage increase in December. Your supervisors spent many hours before an investigator of the National Labor Relations Board on January 30, Febru- ary 2, February 3 and February 4, 1970 , defending your wage increase and your improved holiday and vacation plans. Although we feel this is a poor way for an organization which is supposedly interested in the well-being of the em- ployees to act, nonetheless, their filing of unfair labor practice charges against us for giving wage adjustments, and correct- ing inequities regarding holiday pay and vacations, has made us reluctant to openly discuss insurance plan changes until after the election. Without regard to election results, you will have the oppor- tunity in the near future to participate in a life insurance program (with no physical examination required). Personnel Officer /s/ Wes Diamond 2/11/70