F. M. Broadcasting Corp.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. M. Broadcasting Corp. and Radio and Television Broadcast Engineers Union , Local 1212, Interna- tional'Brotherhood,,of Electrical Workers,AFL-CPO. Case 29-CA-3497 June 13, 1974 DECISION AND ORDER. BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 5, 1974, Administrative Law Judge Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed an answering brief to General Counsel's exceptions and a brief in support of the Administra- tive Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 Administrative Law Judge and hereby orders that Respondent, F. M. Broadcasting Corp., Hempstead, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Administrative Law Judge: This case, initiated by a charge filed on August 1, 1973, and a complaint issued on October 17, 1973, was heard before me in Brooklyn, New York, on January 7 and 8, 1974. The issue presented by the pleadings and the evidence is whether Respondent, in violation of Section 8(a)(1) of the Act, unlawfully interfered with, restrained, and coerced employees in the exercise of their Section 7 rights by urging and encouraging them to decertify their collective-bargain- ing representative and promising them economic benefits to induce them to sign a decertification petition. Subse- quent to the hearing, the General Counsel and the Respondent filed briefs. Upon the entire record in this case, upon my observation of the demeanor of the witnesses, and after a careful consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent is a New York corporation, having its principal office and place of business in Hempstead, New York, where it is engaged in the operation of an AM and FM radio broadcasting station. During the fiscal year preceding the issuance of the complaint, which is a representative period, Respondent, in the course and conduct of its business operations, derived gross revenues therefrom in excess of $500,000, more than $50,000 of which was from the sale of advertising of nationally known products and services performed for firms located outside the State of New York. On the basis of these undisputed facts, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO, herein called the IBEW or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Prior Unfair Labor Practice Case and Other Related Background Facts During the periods pertinent herein, Respondent has had collective-bargaining agreements with two labor organiza- tions at its Hempstead, New York, radio broadcasting station. One of these was with AFTRA which represented Respondent's announcers, newsmen, and disc jockies (herein collectively referred to as the announcers) and the other was with IBEW, which represented Respondent's engineers. The AFTRA contract was due to expire on June 19, 1973, and the IBEW contract was due to expire on October 14, 1973. In a prior unfair labor practice case against Respondent (Case 29-CA-3330), Administrative Law Judge Dyer issued his Decision on September 5, 1973, finding, inter alia, that Respondent had violated Section 8(a)(1) of the Act by urging and encouraging employees to decertify AFTRA as their bargaining representative by holding out vague promises of wage increases, retirement and profit- sharing plans, and other benefits and improvements in their working conditions; by threatening employees with discharge or other reprisals if they remained members of the Union; and by threatening reprisals if employees testified against Respondent in an unfair labor practice proceeding. Respondent filed no exceptions to his Decision and it was adopted by the Board. Common to the prior case and the instant case is the General Counsel's contention that Respondent was initiat- ing steps to have both AFTRA and IBEW decertified at appropriate times prior to the expiration of its contracts with those unions, in order to enable Respondent to curtail its engineering force and operate more profitably for itself, as well as for the remaining announcers and engineers. As Respondent's president and general manager, Paul Godof- 211 NLRB No. 79 F. M. BROADCASTING CORP. 561 sky, in late 1972 and early 1973 explained to announcers Fox and Robinson, Respondent was required under contracts with both AFTRA and IBEW to operate a "split- board" and could not use a "combo" operation for more than 5 hours a day. Thus, although a competent announcer was qualified to operate the control board while perform- ing his other duties, Respondent was required under the union contracts to employ engineers to operate the control board for a substantial part of the time. If Respondent could combine the duties of the announcer and engineer at the control board and terminate some of its engineers, it could split the wage savings between itself and the announcers or engineers who remained. To illustrate the point, Godofsky told Robinson that if an announcer and engineer were each making $4 an hour under the split- board system Respondent would be paying $8 an hour to produce a program which it could produce for $4 an hour under a combo system, and that if the engineer were eliminated there would be $2 an hour extra for the announcer and $2 an hour extra profit for Respondent. The only way Respondent could operate under a combo system, Godofsky told Robinson, was first to rid itself of AFTRA and IBEW.1 The charge in the prior case was filed by AFTRA, whose contract with Respondent expired several months prior to that of IBEW. That case was concerned in large part with alleged attempts by Respondent to get AFTRA decertified. Though, as already shown, there is evidence in that case that Godofsky had alluded to the fact that it would be necessary to have IBEW, as well as AFTRA, decertified in order to institute the combo operation and grant substan- tial wage increases, the General Counsel in the prior case appears to have concentrated on evidence tending to support AFTRA's charge. The IBEW had not yet filed its charge at the time of the hearing in the prior case. In this case, the General Counsel has concentrated on evidence tending to support the charge filed by IBEW and by way of background has adduced further evidence of statements by Godofsky occurring more than 6 months prior to the filing of the charge which, the General Counsel claims, tends to show Godofsky's efforts to have IBEW decertified. There is testimony by Robinson, for instance, that in his early January meeting with Godofsky, when the latter sought to have him take steps to decertify AFTRA, Godofsky told Robinson that he felt the IBEW had little support among the engineers and that he was in the process of seeing that some sort of decertification petition or drive was under way for that Union, mentioning his prospective son-in-law, Leonard Sebel, as "the person who would be most liable to feel out the engineers" on their sympathies toward the IBEW. I do not find, as Respondent's counsel asserted at the hearing, any inconsistency in Robinson's testimony at the prior hearing and at the instant hearing I The above findings are based upon the testimony of Fox and Robinson in the prior case, which Administrative Law Judge Dyer credited, and upon Robinson 's similar testimony, which I credit, in the instant case. 2 Godofsky, while categorically denying that he made any statements attributed to him by Robinson regarding the decertification of IBEW or about Sebel, did not purport to relate what he did say in this January interview . Robinson testified under subpena and did not appear to me to be unfriendly toward Respondent or even fundamentally in disagreement with about Godofsky's statements in this regard at the early January conference. At the first hearing, Robinson testified that: "Mr. Godofsky made it quite plain that to carry out this idea [a combo operation] he felt he had to be rid of AFTRA and IBEW" and "he mentioned that IBEW would most likely have to go and that was being taken care of as well." Respondent's role in an attempt to decertify IBEW was not an issue in the prior case and Robinson was not asked and did not volunteer information as to whether Godofsky mentioned any particular person who might take the leading role in an attempt to decertify IBEW.2 It is noted that Godofsky is not alleged to have said that Sebel would feel out the IBEW members or lead the decertifica- tion drive but only that he was the person "most liable" to feel out the engineers. Sebel, as he testified at the hearing, and as he told fellow engineers , had reasons of his own to want to decertify IBEW and it would not be unusual at a small station like Respondent's for Godofsky to have learned of Sebel's dissatisfaction. I do not regard Robin- son's testimony as evidence that Respondent directed or authorized Sebel to act as its agent in the decertification drive. There is further testimony by Robinson, not alleged in the complaint as an unfair labor practice and apparently introduced as background, about a conversation he had with Godofsky on or about April 23, during which the two discussed Robinson's need for a wage increase, the possibility of AFTRA being decertified, the announcers and engineers whom Godofsky thought had a lot of potential and particularly wanted to keep in Respondent's employ, and a rumor spread by engineer Xenakis to the affect that Vice President Sternberg had told his former employer of a plan to get IBEW decertified by hiring and firing a new engineer every 90 days, the length of the probationary period, in order to eliminate a "fifth vote." Robinson testified that Godofsky was "taken aback" by this Xenakis story and said he did not think anything like that would happen and that he would check on the accuracy of this story. According to Robinson, Godofsky reported back to Robinson that he had checked with Sternberg and that there was no basis for Xenakis' story. Godofsky denied that he had any conversation with Robinson such as that described by Robinson. Robinson, in general, impressed me as a credible witness. However, I need not and shall not resolve the credibility issue here presented for I do not find the conversation to which Robinson testified has any particular relevancy to the issues in this case. There is also background evidence that as early as September 1972 vice president in charge of engineering, Norman Sternberg, had in mind the possible decertifica- tion of IBEW. When interviewing an applicant, Xenakis, for an engineer's position and after informing Xenakis of Respondent's union-shop contract with IBEW, he asked Godofsky in the latter's alleged views about decertifying the Unions. Although Robinson had a tendency to testify about the substance of conversations he had with Respondent's representatives and others, rather than attempting to quote them verbatim, and he sometimes interspersed his narrative about a conversation with background explanations, he impressed me as sincerely attempting to give an accurate account. I credit his testimony regarding the January meeting with Godofsky. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Xenakis how he felt about unions. When Xenakis stated that he really did not care for unions, Sternberg responded, "that was good because it was a possibility that the union would be decertified." Sternberg similarly interrogated and informed another applicant, Perez, in January 1973. Perez stated that he had not worked with unions and knew nothing about them but would join if he had to. Sternberg then volunteered that he had hopes that when the IBEW's contract expired in October 1973 the employees "would be able and willing, among themselves," to decertify it .3 These background facts clearly show that Respondent, prior to the events covered by the complaint in this case, had made known to its employees its hope that both AFTRA and IBEW would be decertified and had taken coercive steps to accomplish its desires. They are relevant to an understanding of the events which took place during the period covered by the complaint but cannot in themselves form the basis for an unfair labor practice finding. Let us turn now to a consideration of the evidence asserted by the General Counsel as supporting the allegations of the complaint. B. Coercive Interrogation Attributed to Vice President Sternberg The General Counsel contends that Vice President Sternberg unlawfully interrogated employee Laurie Rich- man about her union sympathies during her employment interview on or about May 24, 1973. Richman testified that Sternberg, after having her fill out an application and asking some questions regarding the Federal Communica- tions Commission, asked her what she thought of unions and whether she liked them or not. She replied that if a union was good she liked it, and if it was not she did not like it. Sternberg told her that whether she thought unions were good or bad, she would have to join the IBEW after 30 days because of a union-shop contract Respondent had with that Union. Then, in showing her the control room and board, he remarked that the disc jockies might be "comboing" in October. Sternberg's account of his interview with Richman, I believe, is not basically inconsistent with her account. He testified that he made substantially the same statements about union membership to Richman during his pretrial interview with her that he makes to other applicants. He tells them: "I don't know what your feelings are about unions or perhaps, how do you feel about unions because you're going to have to join one if you work here. This station is bound by contract with Local 1212 and a stipulation of the contract is at 30 days from the start of employment the employee must become a mP^,ber of Local 1212." Likewise, Sternberg's testimony on this subject is not basically inconsistent with the testimony of employees Perez and Xenakis, already referred to, that during their employment interviews and in connection with informing them of the union-shop contract Sternberg asked them how they felt about unions. I find that Sternberg did question Richman, during her employment interview, about her union sympathies as she testified. Sternberg testified that any question he may have asked Richman and other applicants for employment about how they felt about unions was only his informal way of letting them know that they would have to join the IBEW by reason of the union-shop provision in the contract. I cannot view Sternberg's inquiry, however, as merely a rhetorical question to which no answer was required or expected. Richman did answer the question in a noncom- mittal way, as had Perez in his January 1973 interview, and Xenakis had expressed dislike for unions. As the General Counsel points out, it was not necessary for Sternberg to inquire of the applicants as to their union sympathies in order to inform them that, as employees, they would be required to join the Union after 30 days of employment. Richman was being interviewed and hired as a temporary employee to work during the summer or vacation period and she could well feel, as she apparently later did feel, that her attitude about the Union might have something to do with her opportunities for selection later as a permanent employee. Although Sternberg did not at the time he hired Richman expressly mention the decertification movement then in progress, he did mention as he showed her around the station that "disc jockies may be comboing in October," a situation which, as already pointed out, would not have been permissible under the union contracts. The Board has long held that the interrogation by an employer as to his employee's union sympathies, without having a good reason which he imparts to the employees, and without assurances against reprisal, will be considered coercive and an unlawful interference with the employee's organizational rights. I am constrained to find that, under the circumstances of this case, Sternberg's interrogation of Richman, during her employment interview, as to her union sympathies was coercive and in violation of Section 8(a)(1) of the Act. Rochester Cadet Cleaners, Inc., 205 NLRB No. 121; Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB 789, 791-792; Tesoro Petroleum Corporation, 174 NLRB 1285, 1286-87; Consolidated Rendering Company, 161 NLRB 1, 16, enfd. sub nom. N.L.R.B. v. Burlington Rendering Co., 386 F.2d 699, 703 (C.A. 2, 1967). C. Alleged Coercive Statements Made by Sternberg to Employee Dillon The General Counsel also contends that Respondent, through Vice President Sternberg, violated Section 8(a)(1) of the Act in connection with coercive statements made to an engineer, William R. Dillon. According to Dillon, Sternberg approached him at the station on or about April 1, 1973, and told Dillon that he, Sternberg, was going to remove his eyeglasses and look Dillon straight in the eyes. Having done so, he told Dillon that he felt Dillon "was a big boy now," that Sternberg thought very highly of Dillon and believed he "was big enough not to need a union to represent" him and "could stand on his own two feet." Sternberg added "that in the event there was no longer any union representative," he was planning to retain Sebel, Silvera, and Dillon to perform the engineering duties along 3 The findings in this paragraph are based upon the credited testimony credible than Sternberg's denial that he mentioned decertification during his of Xenakis and Perez, both of whose testimony impressed me as more interviews F. M. BROADCASTING CORP. with himself. Sternberg also mentioned that the engineer- ing department operated on a fixed budget and that if he could reduce the engineering staff, there would be more money to go around for the remaining engineers. Sternberg conceded that he told Dillon that he was a big boy now and did not need a union to protect him, but explained that he had merely wanted to express satisfac- tion with Dillon's work and reassure him that as long as Dillon satisfied Sternberg his job was secure. Sternberg further testified that he believed he said something to the effect that Dillon could see that a certain automated system under which Respondent had been operating for about a year was not going to deprive anyone of a job, but he later conceded that his remarks to Dillon had "not really" had anything to do with his desire to assure Dillon that he was not going to lose his job on account of the automated system. Sternberg explained that he was merely trying to give Dillon a pat on the back because Respondent was not in a position to give anyone a raise-which would be the normal way of expressing appreciation for a good job. Sternberg's explanation does not jibe with his admitted remarks about Dillon not needing a union to represent him and does not have the ring of truth. Dillon impressed me as thoughtfully and conscientiously attempting to recall the remarks made to him by Sternberg and I believe his account is accurate. I am satisfied that Sternberg's statements were intended to let Dillon know that Respondent opposed the continued representation of its engineers by the IBEW and hoped that Dillon would join in the movement then under way to rid the engineers of union representation by decertifying that Union. In view of President Godofsky's proposal, previously mentioned herein, to employees Fox and Robinson that if AFTRA and the IBEW could be decertified Respondent could institute a "combo" system at its control boards, then limited by union contracts, which would enable Respondent to terminate some of its engineers and divide the savings in wages between itself, the remaining engineers and the announcers , Sternberg, I am satisfied, felt it necessary to reassure Dillon that he wound not be one of those engineers to be terminated under the combo plan. This assurance of job security would not likely be sufficient to induce Dillon to go along with the decertification movement, as Sternberg must have realized, because the IBEW contract required that Respon- dent employ as many as four permanent full-time engineers and Dillon's seniority would be sufficient guarantee to him that he would be one of those retained under the union contract. It is manifest that for this reason Sternberg pointed out to Dillon, as a further inducement for him to help decertify IBEW, that if Respondent could reduce the engineering staff, there would be more money to go around for the remaining engineers. It is accordingly found that Respondent, through its vice president and agent, Sternberg, offered Dillon job security and increased wages to induce him to abandon support of IBEW and join 4 1 do not regard this statement as sufficient to constitute Sebel Respondent's agent in general or with respect to the decertification movement. As Sternberg explained, when he, the chief engineer, is not present, he tries to see that one of his first-class engineers, such as Silvera or 563 in the decertification movement, in violation of Section 8(a)(1) of the Act. D. Alleged Responsibility of Respondent for Decertification Efforts of Leonard Sebel The complaint alleges that Respondent, acting through Leonard Sebel as its agent, urged and encouraged its employees to decertify the IBEW as their bargaining representative, offered employees time off from their work in order to file a decertification petition, and offered its employees job security, a hospitalization plan, and other benefits and improvements in their working conditions and terms of employment in order to induce them to refrain from giving any assistance or support to the Union and to induce them to abandon their membership and activities on its behalf. Sebel was hired as an engineer in October 1971. Except for Bailey, a permanent part-time engineer, he was the most senior among Respondent's approximately nine engineers. Another engineer, Silvera, though having less tenure with Respondent than Sebel, had more technical education and knowledge than Sebel and his advice was sought by other less experienced engineers, including Sebel, at times when Chief Engineer and Vice President Sternberg was not present. Both Sebel and Silvera held first-class FCC licenses. Although no formalized chain of command was announced prior to the filing of the decertification petition on July 26, when a notice was posted to the effect that Silvera would be in charge in Sternberg's absence, Sternberg had told one third-class engineer, Perez, prior to that time that Sebel was "third in command" and that if neither Sternberg or Silvera were at the station Perez should consult Sebel about engineering problems .4 Sebel was the engineer designated to train new engineers during the first week of their employment, at the end of which time he would report to Sternberg on their progress. The General Counsel does not contend that this or any other duty assigned to Sebel made him a supervisor within the meaning of the Act. Indeed, it is conceded that Sebel is an employee, not a supervisor, and that he is in the appropriate bargaining unit. Sebel became engaged to the daughter of Paul Godofsky, Respondent's president and general manager, in Novem- ber 1972 and they were married in June 1973. Although Godofsky's family owned all the stock in Respondent corporation, his daughter was not one of the stockholders and held no position with Respondent. Sebel likewise owns no stock in Respondent and holds no official position. He is not even the highest paid engineer and has received no increase in pay since he became engaged to Godofsky's daughter. When the engagement was announced, Stern- berg called Sebel into a closed room at the station and told him that his marriage to the president's daughter would make no difference in his job, that he would not get any more consideration than he had been getting, and that, if anything, Sternberg would expect more of him, that Sternberg expected him to take an interest in the radio Sebel, are on duty when a less experienced third-class operator, such as Perez, is on duty so that if any technical problem should arise the third-class or inexperienced operator will have someone to assist him or tell him how to solve an engineering problem. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station without any special consideration and to work harder. Sternberg later informed Godofsky of what he had told Sebel and Godofsky approved. The General Counsel's argument that Sebel was acting as an agent of Respondent in taking the leading role in attempting to have the IBEW decertified rests in part upon his contention that Godofsky in January indicated that Sebel would be acting for Respondent when Godofsky told Robinson that Sebel was the person "most liable" to feel out the engineers about the decertification of IBEW. I have rejected the General Counsel's interpretation of this remark by Godofsky for I believe it was well known that Sebel, for reasons of his own, did not like the IBEW, or perhaps unions in general, and was, indeed, the most likely person to lead the decertification movement. Sebel had been annoyed with the IBEW for having forbidden him and other union members to take a lie detector test about a year previously and, as he told Robinson, he could not see what the IBEW had done for the engineers. Moreover, during his previous employment at a telephone company, he had crossed the picket lines to go to work during a strike. In pressing his agency theory, the General Counsel also relies upon his contention that in view of Sebel's relation- ship to the Godofsky family, first as fiancee, then husband of President Godofsky's daughter, certain statements made by Sebel to announcer Robinson, and engineers Richman, Perez, and Dillon were reasonably construed by them as demonstrating that Sebel was acting as an agent of management in attempting to have IBEW decertified. Let us now consider this evidence. While renting a house together, Sebel and Robinson had a number of discussions between January and June 1973 about the problem of decertifying their respective bargain- ing representatives. Robinson testified, among other things, that in these conversations Sebel had mentioned that he was in "a rough situation." Robinson agreed and stated that he was too-that he was "in the middle of a thing, being pulled on one end by a man that [he] enjoyed working for, and on the other end by a union." Sebel replied that he "was in a tougher spot, in that he was marrying into" Godofsky's family "and had very little choice but to do what Godofsky wished." Sebel also stated that he agreed with Godofsky that there seemed to be little support for the IBEW and that it was hard to figure what either AFTRA or IBEW were doing for the employees. Sebel, however, did not say that Godofsky had told him these things and it may well be that Sebel made these statements based on what Robinson had related to him. Sebel testified that, although he could not remember all the conversations he had with Robinson about decertifica- tion, he did not tell Robinson that he had been authorized by Godofsky to decertify the IBEW. He further testified that neither Godofsky or Sternberg had suggested or asked him to take any part in the decertification movement. I do not regard Robinson's and Sebel's testimony as necessarily in conflict on this issue. Robinson did not expressly say that Sebel told him that Godofsky asked him to do anything about decertification. Both Robinson and Sebel knew from what Godofsky had told Robinson and other employees that Godofsky preferred to operate without AFTRA and IBEW and hoped that those Unions would be decertified. The statement attributed to Sebel by Robinson, that Sebel felt that he was in an even tougher spot than Robinson because he, Sebel, was marrying into the Godofsky family and had little choice but to do what Godofsky wished, may well have been the mere expression of a feeling of moral obligation to do what he felt would please his future father-in-law. I do not, in the circum- stances, interpret Robinson's testimony as attributing to Sebel a statement that Godofsky had requested Sebel to do anything. Nothing in Robinson's testimony regarding his discussions with Sebel persuades me that Sebel was purporting to act as Respondent's agent in pursuing his decertification efforts. Laurie Richman, who was hired on May 23, 1973, as a temporary third-class broadcast engineer and was termi- nated on August 31 , 1973, testified that Sebel on one occasion had replaced her at the control board with another engineer while Sebel talked to her about the steps he had taken to have IBEW decertified. In this connection, he told her that management was against the Union and that, for personal reasons , he was too, expressing his displeasure over the Union's having forbidden its members to take he detector tests in connection with the Respon- dent's attempt about a year prior thereto to investigate the disappearance of some equipment from this station. He stated that if the engineers got rid of the Union "maybe" management would give them some insurance . In making these statements, Sebel let her know that he was speaking for himself and not for management . When Richman expressed concern about job security if a combo operation was instituted, Sebel told her not to worry, that there would always be some production work, and that she could work the control board during "crush" hours. Thereafter, in another conversation with Sebel, she told him about a conversation she had had with engineer Dillon in which the latter had said that Vice President Sternberg told him that if IBEW was ousted only three engineers, Dillon , Sebel, and Silvera, would be retained. Sebel replied that he did not know what Sternberg's plans for the future were. Richman then told Sebel that she felt "confused" and "wishy-washy" about the decertification question. On August 29, in discussing with Sternberg the reasons for her termination which was to be effective as of August 31, Richman informed Sternberg that she did not believe the assigned reason (that she did not have a first-class license) was the real reason and that she believed she was in fact being terminated because she felt "wishy-washy about decertification." On the following day, she talked to Sebel about her termination and he offered to talk to Sternberg and told her that she could talk to Godofsky about it. He then asked her why she had to mention the Union to Sternberg. (Richman had not told Sebel about mentioning the Union to Sternberg.) Sebel conceded that after Richman had been notified of her termination and came to him weeping, he might have told her that Sternberg liked her and that he, Sebel, would speak to Sternberg. Sebel testified that he made this statement only to calm her down and did not in fact speak to Sternberg. He did not remember asking Richman why she had to mention the Union to Sternberg, but I am convinced that F. M. BROADCASTING CORP. 565 he did ask her this. I do not, however, regard this question as particularly significiant since the engineers at this small station appeared to communicate freely with each other and it would not, I believe, be unusual for occurrences such as what went on during Richman's interview with Sternberg to become common knowledge among the engineering staff. Clayton Perez, another temporary third-class engineer, credibly testified that on July 26, the day Sebel filed the petition seeking decertification of IBEW, Sebel took him from the control board where he was then working and had Richman fill in for him . Sebel had never before taken him off the control board except for relief purposes, luncheon breaks, or for some reason having to do with the operation of the station . Sebel told Perez that he, Sebel, and engineers Silvera and Bailey were going to the National Labor Relations Board offices to file the petition and asked if Perez would like to go too. Sebel stated that management could give Perez time off to make the trip. He also stated that "once the Union was out, that management could do more for us without a union, than with a union, and they were not thinking of discharging anyone that was then working." Perez testified that he understood that Sebel was speaking for management because: By the mere fact that he said the station had not planned on discharging anyone, whether or not we decertified or not. This to. my knowledge could not be made unless he has already spoken with someone of management, that could give him this reassurance. The General Counsel also contends that Sebel was acting as an agent of management when , in May and again in July 1973, he told engineer Dillon that without the IBEW the engineers could probably get additional health benefits, increased salaries, and other benefits. These statements by Sebel, however, appear to be merely expressions of his own views and were not attributed by him to management. Sternberg and Godofsky each testified that he had never requested Sebel to do anything about the decertification petition. Sternberg testified that, when he heard rumors that Sebel was circulating a decertification petition for the IBEW, he told Sebel that he did not want to know anything about it. Godofsky testified that he was not aware of Sebel's efforts to have IBEW decertified before the petition was actually filed. Sebel confirmed the testimony of both Sternberg and Godofsky in these respects. According to Sebel, he called the Labor Board's offices to ascertain how to go about getting the IBEW decertified and followed the instructions given him by a Board agent. He attempted to make it clear to the engineers with whom he talked that decertification was his own idea and told them what he thought would happen if IBEW were decertified. I have no doubt that Sebel, because of his marriage to the president's daughter, was regarded by some of the employees as having a special status and that they suspected or believed that he was acting under instructions from management in seeking to have the IBEW decerti- fied. Thus, Richman, despite Sebel's assurance to her that he was speaking for himself and not for management in urging her to join the decertification movement , neverthe- less believed he was acting pursuant to some special authority in having her relieved at the control board so that he could talk to her about decertification and in volunteer- ing to talk to Sternberg about her discharge. Perez, too, thought it was significant that Sebel had taken him from the control board and suggested that he could get time off to accompany Sebel and Silvera to the Board's offices to file the decertification petition and that Sebel had assured him that Respondent was not planning to discharge anyone then working as a result of decertification. The fact that management representatives themselves had expressed a desire to rid themselves of IBEW and had pointed out benefits that could inure to the employees if Respondent was not obliged to deal with the Union lent plausibility to the employees belief that the president's son-in-law was acting as an agent of management. Nevertheless, I do not believe that a preponderance of the evidence warrants a conclusion that Sebel was acting as Respondent's agent in leading the decertification move- ment. As Sebel credibly testified, there was nothing unusual about his asking one engineer to relieve another engineer at the control board or about himself being asked by another engineer to relieve someone. He and Silvera who took the decertification petition to the Board offices did so on their own time and he did not tell anyone else whom he invited to go that they would be paid for the time taken from their work . Sebel may have felt some moral compulsion by reason of the family relationship to get the decertification movement under way. He had good reasons of his own, however-which he publicized among his fellow employees-for not wanting the IBEW to represent him and he expressed his own views as to the benefits the employees could have without union representation. Even assuming that some of the statements he made could reasonably have been interpreted by the employees as indications that he was speaking for management, it is axiomatic that an agency relationship cannot be estab- lished merely on the basis of a purported agent's extrajudicial statement as to the existence of his authority. Restatement of the Law, Agency, 2d ed., sec. 285. The statute excludes an individual employed by his parent or spouse, but not by his father-in-law, from the definition of employee. Sebel was an employee within the meaning of Section 2(3) of the Act. Although it might have been the better part of wisdom, in order to avoid suspicion by employees of management participation, for him not to have taken the leading role in the decertification drive, Sebel had a legal right to do so. I am not persuaded that the General Counsel has established by a preponderance of the evidence that Sebel was acting as an agent of Respondent in attempting to get the IBEW decertified and in making statements to employees about benefits which he believed would inure to them as a result of decertification-statements which might be viewed as unlawfully coercive if Sebel had been authorized by management to make them. In any event, even if Sebel's conduct, considered against the background of Respondent's attempts to initiate a decertification movement and Sternberg's coercive conduct, should be considered as warranting an inference that Sebel was acting as Respondent's agent, no substantial purpose 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be served in holding Respondent responsible for Sebel's conduct, for the order herein necessary to remedy Sternberg's coercive statement to Dillon is , I believe, broad enough to cover any action by Respondent and its agents designed to coerce employees into abandoning the IBEW or joining in the decertification movement. CONCLUSIONS OF LAW 1. By coercively interrogating an employee about her union sympathies and by offering job security and wage increases to an employee to induce him to abandon union representation and join in a decertification movement, Respondent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 3. A preponderance of the evidence does not support the allegations of the complaint that Respondent engaged in other unfair labor practices not specifically found herein. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(axl) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirmative action of the kind normally required to remedy the unfair labor practices found. Upon the foregoing findings of fact and conclusions of law, upon the entire record , and pursuant to Section 10(c) of the Act, there is hereby issued the following recom- mended: ORDERS F. M. Broadcasting Corp., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees or applicants for employment in regard to their union sympathies. (b) Offering job security, wage increases, or other benefits to employees to induce them to abandon union representation or join in a movement to decertify Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL- CIO, as their bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its Hempstead , New York, radio station copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found. S In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event that the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our employees or applicants for employment in regard to their union sympathies. WE WILL NOT offer job security , wage increases, or other benefits to our employees to induce them to abandon union representation or join in a movement to decertify Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO , as their bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. F. M. BROADCASTING CORP. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212- 596-3790.