KVST-TV

KVST-TV Viewer Sponsored Television Foundation, Inc., d/b/a KVST-TV and National Association of Broadcast Employees & Technicians, AFL-CIO,CLC; Local 53. Case 31--CA-4692 April 16, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 31, issued a complaint and notice of hearing October 23, 1974, against Viewer Sponsored Television Foundation, Inc., d/b/a KVST-TV. The complaint alleged that the Respondent had engaged in, and was engaging in, certain unfair labor practices af- fecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the National Labor Rela- tions Act. Copies of the charge and of the complaint and notice of hearing were duly served on the parties. The Respondent filed its answer to the complaint, deny- ing the commission of unfair labor practices and re- questing that the complaint be dismissed, October 29, 1974. Thereafter, the parties entered into a stipulation of facts and jointly moved to transfer this proceeding di- rectly to the Board for findings of facts, conclusions of law, and an appropriate order. They agreed that the charge, complaint and notice of hearing with an at- tached summary of standard procedures in formal Board hearings, answer, and stipulation of facts along with the exhibits attached to it, constituted the entire record in this proceeding. The parties waived hearing before and the making of findings of fact, conclusions of law, and the issuance of a decision, by an Adminis- trative Law Judge; stipulated that no oral testimony was necessary or desired by any of the parties; and agreed further that the motion should not affect the Board's jurisdiction in this proceeding. The Board, by the Executive Secretary, issued its Order December 18, 1974, granting motion, approving stipulation, and transferring the proceeding to the Board.' Briefs in support of their respective positions have been filed by all parties. 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 au- thority in this proceeding to a three-member panel. The Board has considered the stipulation, including exhibits, briefs, and the entire record, and hereby makes the following: I January 14, 1975, the Board issued an Executive Secretary Order cor- recting its December 18, 1974, Order - FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER 419 The Respondent is a nonprofit California corpora- tion with its office and principal place of business in Hollywood, California. It operates a noncommercial television station, KVST-TV, and has been granted tax exemption by the State of California and the Internal Revenue Service as a charitable or educational organi- zation. KVST's Broadcast range is from Santa Barbara to San Diego, California, and does not extend to any other State. It does not sell broadcast time for commer- cial advertising, does not subscribe to any national wire service, has no news bureau, and no employees in any other State or in any foreign country. The Respondent received some $291,000 from Sep- tember 1, 1973, to August 31, 1974, and during that time paid in excess of $4,000' for the rental of films from suppliers located outside California. Approxi- mately $105,000 of the amount received during that period was in the form of loans, $62,800 is character- ized by the Respondent as grants with strict limitations on use, $13,523 represents memberships in the Re- spondent purchased by "viewer-sponsors," $32,894 was received from an individual donor conditioned on the receipt of matching donations, and the remainder came from various other sources. The Respondent contends that it does not meet the Board's monetary standard of $100,000 for, like com- mercial enterprises, it is a noncommercial and charita- ble enterprise that is essentially local, and the Board should decline to exercise jurisdiction. In support of its argument that its gross revenues do not reach the applicable standard, the Respondent argues that the amounts itemized above, totaling some $214,000, should be excluded, leaving only $77,000 of the $291,000 it received during the year. It submits that those amounts cannot be classified as "income" and should not be considered "gross revenue" for the pur- pose of the Board's discretionary jurisdictional stand- ards. That suggests a misunderstanding of the purpose of those standards and what it is that the Board seeks to measure. We have explained repeatedly3 that with limited re- sources we must allocate them in the most effective and practical manner to carry out the task assigned to this Agency by Congress. To achieve that goal, the Board 2 Contrary to the Respondent's contention, it is well established that $4,000 is not de mrntmis for the purpose of establishing statutory ,jurisdic- tion E.g, Arlington Ridge Development Co., 203 NLRB 787 (1973), and cases cited therein. Moreover, radio and television broadcasting almost peculiarly require, and are subject to, broad Federal regulation. Such broad- casts do not respect political boundaries and their effects are not limited to their normal or intended area of reception 3 E g, National Labor Relations Board Rules and Regulations, Series 8, as amended, Part 103. 217 NLRB No. 70 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercises its discretion to determine whether statutory jurisdictions, although present, should be asserted, ei- ther on an ad hoc basis or by establishing for a particu- lar class or category of employers a standard which will reach those employers whose activities have a signifi- cant impact on commerce and, at the same time, not overstrain the resources of the Board. It is, we believe, self-evident that to litigate anew in every case the impact of particular, employers on com- merce and the merits of asserting jurisdiction on the basis of those factors peculiar to each case would also place an unbearable financial and administrative strain on the Board. For that reason the Board has established monetary standards for various classes of employers which in our judgment will best permit the fullest ex- tension of our jurisdiction with the resources available. We have used "gross revenue" in certain instances as an easily determined and understood gauge of an em- ployer's impact on commerce. However, it should be clear that the impact of an employer and its activities on commerce is independent of the source or nature of the funds available to it. Purchases and expenditures for operating purposes by a nonprofit organization have no less impact on commerce than those made by a purely commercial enterprise. In relation to "gross revenue," the impact may well be greater; for in most commercial enterprises some portion of their revenue is profit, which will enter into commerce only by some other avenue, while most nonprofit enterprises devote their entire revenue to their operations. With the foregoing in mind, it may be seen that all funds available for operating expenses may properly be considered in determining whether or not the assertion of the Board's jurisdiction is warranted, without regard to their source or their denomination for other pur- poses. However, we need not decide whether loans which may have been used for operating expenses, a "grant" from the City of Los Angeles to broadcast city council-hearings, or state and Federal funds provided for the rehabilitation or training of certain employees, should be considered for the purpose of exercising dis- cretionary jurisdiction. Even excluding those amounts, the Respondent easily satisfies the jurisdictional stand- ard for similar commercial employers. The Respondent contends that money received from "viewer-sponsors" should be excluded on an analogy to stock purchases and that money received in either kind of transaction should be treated the same. Although "viewer-sponsors" are entitled to nominate and vote for the Respondent's board of directors, the term ap- plies only to "donors who have contributed" certain specified amounts to the Respondent within the preceding 12 months. It is clear that they are donors, not stockholders in a corporation, and that these funds are available for operating expenses and properly in- cludable in determining gross revenue for jurisdictional purposes.4 We also conclude that there is no reasonable basis for excluding the sum of $32,894 which the Respondent received conditioned on matching donations. The Re- spondent contends that it would be speculative to con- clude that a similar donation of that magnitude would recur. In support it cites Magic Mountain, Inc., 123 NLRB 1170 (1959), where the Board declined to assert jurisdiction on the sole basis of a one-time capital pur- chase of goods from out of State valued at less than $100,000 without any evidence of the anticipated volume of the employer's future business. The Board noted that it had long held that it would not assert jurisdiction on the basis of nonrecurring capital expen- ditures. There is no real similarity between Magic Mountain and the facts here. It is clear that the Respondent is largely dependent upon grants and contributions to maintain its operations. The only aspect of this particu- lar transaction which is arguably unusual is the size of the donation. Although the Board does not include in gross revenue amounts contributed with limitations on their use so that they are not available for operating expenses, there is no showing of any limitation on Re- spondent's use of this contribution. The Respondent concedes that $76,923 it received during the year is cognizable for jurisdictional pur- poses. Adding to that sum the $13,523 received from viewer-sponsors and the $32,894 the Respondent re- ceived as a matching donation, gross revenues easily exceed the $100,000 standard established by the Board for like commercial enterprises.' The Respondent argues alternatively that its broad- cast operations are intimately connected with its educa- tional and eleemosynary objectives and have no impact outside its local area. It finds support for the proposi- tion that in those circumstances the Board should de- cline jurisdiction in our decision in Ming Quong Chil- dren's Centel8 and later cases. In Ming Quong the Board reviewed the legislative history and its treatment of religious, eleemosynary, and educational employers in conjunction with the rationale for its decision in Cornell University, 183 NLRB 329 (1970), and con- cluded that in the absence of the special considerations involved in Cornell it had erred in departing from the Board's general practice of declining jurisdiction over nonprofit charitable organizations. But the Board specifically noted that it had not as- serted jurisdiction over the kind of child care facility involved in Ming Quong as a class and, therefore, was 4 See Pacifica Foundation-KPFA, 186 NLRB 825 (1970) 5 Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958) 6 210 NLRB 899 (1974), Member Kennedy concurring in the result, Member Fanning dissenting Member Jenkins did not subscribe to Ming Quong and does not adopt the discussion of it contained in the text. KVST-TV 421 free to decline jurisdiction even though it would not distinguish between profit and nonprofit members of a class over which jurisdiction had been asserted.' The Board has long asserted its jurisdiction over radio and television stations and has asserted jurisdiction over an employer operating a nonprofit educational broadcast- ing; facility which is distinguishable from the Employer here only in the extent of its operations.' But that dis- tinction is irrelevant for the purpose of determining whether or not the Board has asserted jurisdiction over employers in a particular class. In view of the foregoing we find that the Respondent is an employer engaged in commerce or an industry affecting commerce and that it will effectuate the pur- poses of the Act to assert jurisdiction in this proceed- ing. II THE LABOR ORGANIZATION INVOLVED National Association of Broadcast Employees & Technicians, AFL-CIO,CLC, Local 53, is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES Following the filing of a petition for a representation election, the Respondent's station manager, Ponce, and its general manager, Stouffer, both of whom have been stipulated to be supervisors within the meaning of the Act, asked an employee on or about August 5, 1974, to request the Union to withdraw its petition. It is stipu- lated that no threats or promises of benefit were ex- pressed. Around that same date Stouffer had a telephone con- versation with O'Sullivan, the Union's business repre- sentative, concerning a union contract. During the con- versation, Stouffer explained the Respondent's financial problem and told O'Sullivan that it could not afford to increase wages in the foreseeable future. The Respondent circulated a notice to the employees August 13 announcing a salary increase and stating that the employees all knew that it had hoped to make a $100 across-the-board wage increase if an "auca- thon," designed to raise $100,000, were successful. The "aucathon," however, raised only $8,624. The notice recites that the Respondent had received a loan and that, although in no position to increase salaries, there was a need for some relief. The wage increase, effective August 16, was given to all paid staff employees with 6 months' seniority. In- creases ranged from $360 to over $2,100 per year. The 7 See Drexel Home, Inc., 182 NLRB 1045 (1970). 8 Pacifica Foundation-KPFA, 186 NLRB 825 (1970) Respondent had not previously granted an across-the- board increase to paid staff members. Both the solicitation of an employee to request the Union to withdraw its petition and the wage increase are alleged to have violated Section 8(a)(1) of the Act. The Respondent argues that it only "asked" an em- ployee to "request" the Union to withdraw the petition, without voicing any threat or promise of benefit. It reasons that this is more akin to a view, argument, or opinion than it is to an instruction or direction to re- quest withdrawal and is therefore protected by Section 8(c),of the Act. On the basis of the facts which Respondent has stipu- lated to, however, we can only conclude that its request was not a view, argument, or opinion. There is nothing to suggest an attempt to persuade the employee to ac- cept or adopt the Respondent's point of view by means- of either reason or emotion, or to make the Respon- dent's position on the issue known to its employees. Because the Respondent's request cannot reasonably be classified as either propaganda or as stating the Re- spondent's position, we conclude that it is not protected by Section 8(c). We find that the Respondent's request that an em- ployee seek the Union's withdrawal of its petition inter- fered with the employees' exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. The Board has frequently held that employer solicitation of withdrawal from a union, of assistance in persuading other employees to forswear a union, or of employee assistance in securing withdrawal of a union's petition for an election, and other analogous conduct, violates Section 8(a)(l).9 We also conclude that the Respondent's precipitate grant of an across-the-board pay increase on the heels of the Union's election petition and after its assertion to the Union that it could not afford to increase wages was intended to influence its employees' choice in an election. Although the Respondent asserts in its brief that it had decided to raise wages before the Union appeared on the scene, there is no support for that assertion in the facts stipulated to by the parties. The notice to employees announcing the raise recites that all the employees knew that the Respondent had hoped to grant an increase, but the fact that the Respondent made that statement does not establish as fact either that there was a prior determination, or that the em- ployees were aware of any earlier intention to grant a wage increase. It may well be true, but it is not a fact 9 E g., Crawford Sprinkler Company of Hickory, Inc., 199 NLRB 300 (1972); G.L. Gibbons Trucking Service, Inc., 199 NLRB 590 (1972); Acme Paper Box Company, 201 NLRB 240 (1973), Howard Johnson Company, 201 NLRB 376 (1973), Collins & Aikman Corp., 143 NLRB 15 (1963), enfd. in pertinent part 338 F 2d 743 (C.A 5, 1964); Elias Brothers Big Boy, Inc., 137 NLRB 1057 (1962), enfd. in pertinent part 325 F 2d 360 (C.A 6, 1963). 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of record, and we are bound to the facts which are in the record. And, even were it true that the Respondent had intended to increase wages if the "aucathon" were successful, the "aucathon" was not a success and the notice states that the increase was given despite the fact that the station was in no position to increase salaries. We are constrained to fmd, therefore, that the raise was granted with an eye to the Union's organizing cam- paign to persuade or coerce its employees to reject union representation, in violation of Section 8(a)(1) of the Act.10 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in, and is engaging in, certain unfair labor practices, we shall order it to cease and desist therefrom and to post the notice attached as an appendix to this Decision and Order. We shall not, however, order the Respondent to rescind the wage increases. CONCLUSIONS OF LAW 1. Viewer Sponsored Television Foundation, Inc., d/b/a KVST-TV, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Association of Broadcast Employees & Technicians, AFL-CIO, CLC, Local 53, is a labor or- ganization within the meaning of Section 2(5) of the Act. - 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Sec- tion 7 of the Act, the Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Those unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations -10 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964) Board hereby orders that the Respondent, Viewer Sponsored Television Foundation, Inc., d/b/a KVST-TV, Hollywood, ,California, its officers, agents, successors, and assigns, shall: 1. Cease-and desist from: (a) Interfering with, restraining, or coercing its em- ployees in the exercise of their rights under Section 7 of the Act, by asking them to request the National Association of Broadcast Employees & Technicians, AFL-CIO, CLC, Local 53, or any other labor organi- zation, to withdraw a petition for a representation elec- tion, or by granting a wage increase to influence their selection or rejection of union representation. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at Respondent's place of business copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Direc- tor for Region 31, after being duly signed by an author- ized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 11 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 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 interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act by asking them to request any labor organization to withdraw a petition for a representation election, or by granting a wage in- crease in order to influence their selection or rejec- tion of representation by a labor organization. KVST-TV - 423 NVE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. VIEWER SPONSORED TELEVISION FOUNDATION INC, d/b/a KVST-TV