Gulfcoast Broadcasting Co.

GULFCOAST BROADCASTING COMPANY Gulfcoast Broadcasting Company and American Fed- eration of Labor and Congress of Industrial Organizations. Case 23-CA-3844 December 8, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 24, 1971, Trial Examiner Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding, pursuant to Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on May 18, 1971, at Corpus Christi, Texas. The charge was filed on January 5, 1971, and the complaint in this matter was issued on March 31, 1971. The essential issues concern whether four individuals were discriminatorily discharged (because of union or related type activities) by the Respondent on January 4, 1971, in violation of Section 8(a)(3) and (1) of the Act. All parties were afforded full opportunity to participate in the proceeding, and the General Counsel and Respon- dent filed briefs which have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: 1 The facts are based on the pleadings and admissions therein 2 There was no direct involvement by the AFL-CIO in the efforts of the employees to have a union. Bancroft and Keenan did, however, discuss the FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER' 481 Gulfcoast Broadcasting Company, the Respondent, is, and has been at all times material herein, a Texas corporation with its principal office and place of business located in Corpus Christi, Texas, where it is engaged in the business of television broadcasting. Respondent, at all times material herein, has been engaged in the business of television broadcasting, and during the 12-month period preceding March 31, 1971, a representative period, received gross revenue in excess of $100,000, of which at least $50,000 was received by Respondent from sales or the performance of services for customers located outside the State of Texas. Respondent is a subscriber to the National Broadcasting Corporation services and, as such, causes to be broadcast nationally syndicated news service programs and nationally adver- tised products. As conceded by the Respondent and based upon the foregoing, it is concluded and found that the Respondent 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. H. THE LABOR ORGANIZATION2 American Federation of Labor-and Congress of Industri- al Organizations, the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Supervisory status The pleadings establish and I so find that the following- named persons are supervisors of the Respondent within the meaning of Section 2(11) of the Act: T. Frank Smith, president, and Buck Johnston, chief engineer. B. Introduction The question presented in this case is whether the General Counsel has established that Respondent discrimi- natorily discharged George Bancroft, Gary Keenan, Melvin Kolodziej, and Joseph Morgan on January 4, 1971, because of their union activities, and thus thereby violated Section 8(a)(3) and (1) of the Act. The Respondent is a Texas corporation engaged in the operation of a television broadcasting station at Corpus Christi, Texas. The alleged discriminatees were employed at the television station at the time of their discharge on January 4, 1971. Gary Keenan commenced his employment at Respon- dent's station on February 17, 1970, and worked thereafter on a progression of jobs as camera trainee, cameraman, on procedures and apparent preliminary steps for organization with Keenan's father, and with a Mr. McCool, both connected in some official capacity with subordinate or local unions connected with the AFL-CIO. 194 NLRB No. 83 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the audio board, as a projectionist, and around the last of October or first of November 1970 as a director.3 Keenan worked thereafter as a director until he was fired on January 4, 1971. Keenan's initial pay rate on February 17, 1970, was $1.60 per hour, was increased to $1.75 per hour on September 1, 1970, and was increased to $1.85 per hour on December 1, 1970. During Keenan's tenure as a "director," apparently around the first of November 1970, President Smith told Keenan that he liked the way Keenan was doing the job.4 From that point on Keenan received no praise from any supervisor. It is clear that President Smith became upset about a number of things concerned with Keenan's duties as a director, that Smith relayed such complaints to other supervisors and to Keenan, and that Keenan was aware that Smith was upset over his job performance. Some of these complaints were about operational errors in Novem- ber and prior to Keenan's last raise on December 1, 1970. In addition to Smith's complaints, Keenan was made aware of complaints by both Chief Engineer Johnston and Vice President Mrs. Van Johnson. The complaints involved questions of job performance relating to "punching up" color for "black and white" movies, the insertion of slides at certain places in movies, and other crew operational complaints. It appears that the complaints to Keenan, after November, were limited to crew operational complaints rather than specific com- plaints about his mechanical functioning duties. In addition to the aforesaid type complaints, Mrs. Van Johnson had meetings with Keenan and the crew about crew problems during the several months that Keenan was a director .5 During the period of time that Keenan was a director, he rarely, if ever, called in to top supervisors for instructions as to how to handle problems. During this same time other directors did call in to top supervisors for instructions as to how to handle problems. Although the facts reveal that President Smith spoke repeatedly to supervisors and employees about the subject of trim hair, and the supervisors relayed such remarks to employees, there is no evidence that Keenan was the subject of any criticism or complaint about his hair during the tenure of his employment. George Bancroft commenced working for Respondent on August 22, 1970, at a rate of $1.60 per hour. He initially started as a camera trainee. However, at first he also helped Chief Engineer Johnston in the erection of a television tower, the setting up of a microwave system, the setting up of a transmitting tower, and the setting up of a radar unit 3 None of the witnesses appeared to have a good and precise recollection of dates in general. It is clear that Keenan placed his December 1, 1970, raise as being about a month after becoming a director and as being around the last of October or first of November 1970. Smith testified that the first shock that he remembered after the "hurricane" was when he woke up and found "Gary" directing The questioning did not pursue the timing of when Keenan became a director otherwise so as to make clear Smith's testimony. Smith's testimony otherwise was phrased in terms of "several months." Considering all of the foregoing , I credit Keenan's testimony as to the timing. Keenan's and Smith's testimony reveal Keenan to have been "director" at tune of discharge Johnston's testimony classified Keenan as a "director trainee." Although, in this case, the title is not essentially material, I credit Keenan's and Smith's testimony to the effect that Keenan was a "director," especially since the facts reveal that he was left alone substantially without immediate supervision. on top of the tower at the station. Bancroft dug holes, swept floors, painted, and did other odd jobs. He worked on the camera and later on the audio board and in the projection room. Most of his work appears to have been in connection with the audio board. At first, with respect to Bancroft's work with the camera, Chief Engineer Johnston told Bancroft that he was doing a good job on camera, that he thought Bancroft had "a lot of brains with working with cameras and equipment," and that Bancroft would probably go far with Respondent. On the audio board, and in the projection room, Bancroft was criticized by both President Smith and Chief Engineer Johnston. Both told Bancroft that he could stand a little improvement on his job. Chief Engineer Johnston criticized Bancroft's work on the audio board, telling him that he should snap up a little bit on performance on his own, that he could do better. Johnston criticized Bancroft about not loading slides properly. Johnston told Bancroft, in effect, to pay more attention to his work. As indicated, Respondent President Smith was con- cerned about the length of hair of both supervisors and employees. Bancroft was told by Chief Engineer Johnston about Smith's desires at the time of Bancroft's commence- ment of employment. Smith's desires were repeatedly made known to employees. Around December 1, 1970, Chief Engineer Johnston either told Bancroft that he thought he could get him a raise because he (Johnston) had told President Smith that Bancroft was getting a haircut, or told Bancroft that he thought he could get him a raise because he (Johnston) had told President Smith'that Bancroft had got his hair cut 6 Around the first of December 1970, Bancroft talked to Chief Engineer Johnston about the possibility of being able to do something about employee rights regarding their hair and "things like that." Bancroft told Johnston that he did not think that employees' jobs should be in jeopardy because of President Smith's constant bickering about their hair. One or the other of the two (Bancroft or Johnston) mentioned that the only way to alleviate such a situation would be by having a union at the station.7 From the logical consistency of all of the facts, it appears that Bancroft cut his hair, and as a result received a pay raise on or about December 16, 1970, to $1.75 per hour and worked at such rate until he was discharged on January 4, 1971. Melvin Kolodziej commenced employment at Respon- dent's station in October 1970 and worked thereafter until January 4, 1971, when he was discharged. His job was that of audio operator, and his initial and final rate of pay was 4 Keenan had also been told by Chief Engineer Johnston, when Keenan was on audio, that Keenan was doing a good job and that Johnston liked the way that he was doing it. 5 Smith credibly testified to calling Keenan 8 to 10 times a week about problems Keenan, although testifying that Smith called all the time, denied that he received calls every week or in any great number. I found Smith to be a more frank, forthright , and truthful witness as to the complaint calls and credit his testimony as indicated in the facts found. B Bancroft testified to both versions and it is impossible to determine which is accurate from the record. 7 Bancroft's total testimony reveals an unsureness as to who brought up the subject of a union. Johnston denies bringing the subject up. It is clear that the subject of a union was brought up. I find it unnecessary to make a more detailed and precise finding since the overall results would not be changed GULFCOAST BROADCASTING COMPANY $1.60 per hour. During the time of Kolodziej's employment, Chief Engineer Johnston spoke to him about his hair, as Johnston did to all employees, and told him to get it cut short like Gary Kennan's. This did not appear to be a big problem insofar as Kolodziej was concerned, and the evidence does not reveal the question of his hair to be a contributing reason for his discharge. There is no evidence of individual praise or criticism of Kolodziej's work while employed by Respondent. Joseph Morgan commenced work for Respondent on or about December 7, 1970, and worked thereafter until he was discharged on January 4, 1971. He worked for 4 or 5 days as a cameraman trainee and thereafter as a cameraman on live transmission. His rate of pay through- out the period of his employment was $1.60 per hour. Chief Engineer Johnston told Morgan during his first few days of employment that he was not doing too good but to keep practicing and practicing. During his employment, the director on the night shift spoke to him as to small mistakes he made. As to Morgan's hair, Chief Engineer Johnston told him prior to his employment that he should get a haircut. There is no evidence that Morgan was talked to individually about his hair during the time of his employment. The evidence clearly reveals that President Smith's views as to "hair" were well known and repeatedly made known to all employees by both President Smith and Chief Engineer Johnston. Morgan's testimony as to his query about "hair" to Johnston after Morgan's discharge reveals that Morgan must have considered his "hair" to at least approach the borderline of acceptability by President Smith. In addition to the foregoing facts, it should be noted, basically speaking, that Keenan, Bancroft, and Kolodziej worked on the same crew, and that for part of the time of each shift which these employees worked, Morgan worked with them. President Smith credibly testified to the effect that he found this crew to be one that would not work out as is revealed by the following credited excerpts of his testimony. Q. (By Mr. Kendrick) Just tell us about them being fired. A. All right. For a long time Buck Johnston had two jobs. One of them he is extremely well qualified for; the other one, well, I couldn't do anything with him on. He is a very well-qualified, hard working, able engineer. I tried to use him in the operating field. But he just doesn't understand people, and how to motivate people well. Well, I stayed with him for a long time to try to see if I couldn't develop him into a better working knowledge of people. But I finally had to give up. I had kept on discussing these boys with him, giving specific examples and everything else. He was going to do something about it, going to do something about it, and going to do something about it. But nothing ever happened. 8 The facts are based upon a composite of the credited aspects of the testimony of Bancroft, Keenan, Morgan, Kolodziej, and Johnston. It is clear that the testimony supports the facts found herein. It is noted, 483 So, finally this thing had been on my mind so much that- Well, we had one crew that was outstandingly unable to work with each other, constantly showing up worse on the air and never calling anybody for any instructions. They know nothing about FCC rules. They, know nothing about our commitment to our customers. They know nothing about rating periods, audience ratings, or anything of that kind. In other words, they are just not all-around qualified. There are a number of things that come up in the course of the operation that they are just not qualified to answer. Most crews constantly call those people who are qualified to tell them what to do. Well, these boys never did. I have no knowledge of- Now, I have called them. But Gary has never called me about anything, asked me what to do, or anything. So, I finally realized this thing wouldn't work. Now, I have never in my life ever fired any employee that worked for another employee-I mean for a department head. So, I could not fire those men without first pulling Buck off the job and telling him to go with them. So, I just told him, "If you want to keep these boys you will have to put them on your payroll and you pay them." C. Union or Protected Activity8 During the.last week in December 1971, Bancroft spoke to Chief Engineer Johnston about the problem between employees and President Smith over hair and the need for protection that might be afforded by a union. Johnston either suggested or agreed to the need for union. Johnston either suggested or agreed to the need for unionization and cautioned about the necessity of being careful so as to keep President Smith from knowing about efforts to get a union. Thereafter Bancroft attempted to learn of procedures abdut the formation of a union from Johnston by a telephone call, by talking to other employees, by talking to employee Keenan's father, and thereafter by talking to a union official named McCool. The facts are clear that Bancroft was the moving impetus in the attempt to learn of and to join a union. Bancroft soon found an ally in employee Keenan. From this there followed contacts with Keenan's father, who was active with a local union, and with a union official, McCool. Bancroft and Keenan were clearly the leaders in attempting to learn about and to join a union. One or the other or both engaged in discussions with fellow employees, with Johnston, and with Keenan's father and McCool as to the type of union desired for representation. As part of their efforts, one or the other, or both, and others contacted the 20 to 25 employees who worked for Respondent. A list was made and indications were made thereon as to the desires of such employees as to union representation. Of the 20 to however, that the testimony of the witnesses was presented in incomplete stones, fragmented in nature, and of msufficient detail to show precise chronological events. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 25 employees contacted, over half of the employees indicated a desire to have a union. One or the other or both kept Chief Engineer Johnston advised of developments throughout the time involved up to January 4, 1971. Johnston's actions were of such a nature as to indicate that he agreed with and was friendly to the idea of unionization. No actual union cards were signed, no meetings were held otherwise, and no union representatives approached employees except as indicated by the conversa- tions between Bancroft and Keenan with Keenan's father and McCool. Thus the union activity or protected activity of the employees prior to the discharge of the four employees involved herein on January 4, 1971, may be said to be of a beginning stage. The facts reveal that Morgan's and Kolodziej's activities were essentially limited to having been contacted by Bancroft or Keenan, to having indicated a desire to have a union, and to having had their names listed in such regard by Bancroft or Keenan. D. Events Circa January 1, 19719 Apparently either on January 1 or 2, 1971, President Smith made a statement to some employees about "hair." What occurred is revealed by the following credited excerpts of Bancroft's testimony: A. There was one warning dung the last week in December of 1970 that I recall. Mr. Smith came into the control room and told those present that he had made a New Years resolution regarding hair, and he said that there would be no more hair problems in.the studio or he would not sign their paychecks. E. The Events of January 4, 1971 On several occasions, President Smith had complained to Chief Engineer Johnston about the job performances of Keenan's crew (which included Keenan, Kolodziej, Ban- croft, and Morgan). It appears that Johnston had in effect on such occasions taken up for such employees. As an example, it is undisputed that Johnston thought that Bancroft was smart and capable of improvement, that he could help him become a good employee, and that he so told Smith. On January 4, 1971, President Smith again spoke to Chief Engineer Johnston and complained about the work of Keenan's crew. President Smith in effect told Johnston that he had to fire the crew. It appears that Smith uses an expression of "putting them on your payroll" to get a message of firing across. On January 4, 1971, Chief Engineer Johnston fired Keenan, Bancroft, Kolodziej, and Morgan. He fired each separately but in effect with the same message-that the official reason for their firing was "incompetence" but that they knew the real reason. I discredit Bancroft's testimony to the effect that Johnston told him that the old man had found out about the Union and that Johnston said that he had told Bancroft to be careful. All of the facts reveal that Johnston in effect 9 The facts are based upon the credited aspects of Bancroft's testimony. Bancroft placed the conversation as occurring during the last week in conducted himself virtually as a fellow employee regarding the idea of unionism. There is no evidence to indicate that he had reported on the employees' organizational efforts. Nor is there evidence otherwise that President Smith knew of the organizational efforts . I credit Smith's testimony to the effect that he did not know of the employees' union activities. Johnston's remarks to Morgan, Kolodziej, and Keenan certainly do not indicate that he was being coy with the employees at the time of discharge. Further, Kolodziej credibly testified that January 4, 1971, was his day off, that prior to his getting fired, Bancroft, Morgan, and Keenan came by his house and informed him that they all had been fired, that they discussed the reason for the firing and concluded that it was for the union activities, that he went in to see Johnston, was fired, asked the reason why, and was told by Johnston in effect that the reason given was "incompentence" but that "you know as well as I do what the reason is." If Johnston had told Bancroft that Smith had found out about the union activities, I find it hard to believe that Bancroft would not have related such remarks to Keenan, Morgan, and Kolodziej, and I find it hard to believe that Kolodziej would not have included the same in his testimony as regards the employee discussion and conclusion that the union activities were the reason. I further find it hard to believe that Kolodziej would not have adverted to the alleged remarks when he discussed his discharge with Johnston. In short, I do not believe Bancroft s testimony that Johnston alluded to the fact that President Smith had discovered the employees' union activities. Conclusion Considering all of the foregoing, I conclude and find that the evidence is insufficient to establish that Respondent discharged Keenan, Bancroft, Kolodziej, and Morgan because of their union or protected activities. The credited evidence reveals that President Smith was the one who decided that the employees had to be discharged. The credited evidence does not reveal that he knew of their union activities or that union considerations were utilized as a basis for selection. The question of competence or incompetence of employees is not the real issue in this case. It is the Respondent's belief, whether right or wrong, which is material. President Smith very well may have had his judgment as to competence or incompetence affected by his ideas concerning hair. It is sufficient to say that the totality of evidence reveals that the combination of his complaints about job performance, individually and as a crew, and his attitude about hair warrant a finding that he believed that . the four employees involved herein gave unsatisfactory performances as employees. In sum, the evidence is insufficient to establish that Respondent has violated the Act as alleged. Considering the foregoing, I conclude and find that the evidence is insufficient to establish that the Respondent violated Section 8(a)(3) and (1) of the Act, as alleged. December The context of the conversation alluded to, however, would clearly indicate that the conversation occurred after January 1, 1971. GULFCOAST BROADCASTING COMPANY 485 CONCLUSIONS OF LAw 3 . The evidence does not establish that the Respondent has violated (as alleged) Section 8(a)(3) and (1) of the Act. 1. Gulfcoast Broadcasting Company is an employer engaged in commerce within the meaning of Section 2(6) ORDER and (7) of the Act. 2. American Federation of Labor and Congress of Industrial Organizations is now, and has been, at all' times Upon the foregoing , findings of fact, conclusions of law, material herein, a labor organization within the meaning of and the entire record, I hereby recommend that the Section 2(5) of the Act. complaint in this matter be dismissed in its entirety.