Crescendo Broadcasting, Inc.

CRESCENDO BROADCASTING, INC. Crescendo Broadcasting, Inc., WATV Radio andlnter- national Brotherhood of Electrical Workers, Local Union 253, AFL-CIO.' Case 10-CA-10768. May 2, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 19, 1974, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs, and Re- spondent filed a brief in opposition to General Coun- sel's exceptions. 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings of the Administra- tive Law Judge but, for the reasons set forth below, has decided to dismiss the complaint in its entirety. 'We do not agree with the Administrative Law Judge's conclusion that the reduction of the two-man radio technician unit to one employee was temporary, and therefore find that Respondent did not violate Sec- tion 8(a)(5) of the Act when it refused to bargain with the Union over terms and conditions of employment within that unit. ;Pursuant to a secret ballot election, the Union was certified on May 22, 1974, as the exclusive bargaining representative of a unit of radio technicians at Respon-, dent's radio station. At the time of both the election and certification, the unit consisted of only two, radio technicians, Gordon Bishop and Oscar Roy Harrison, both of whom were licensed by the Federal Communi- cations Commission (herein FCC) as first-class radio- telephone operators.' On May 26, the Union, by let- ter, requested Respondent to bargain over terms and conditions of employment within the unit. Four days later, Harrison, who had been ill and not at work since the election, died. Respondent never having responded to the request to bargain, the Union filed charges alleg- ing an 8(a)(5) violation by Respondent and the instant complaint issued. At the hearing, Respondent defended its refusal to bargain, arguing that upon Harrison's death Respondent had no intention of replacing him I Herein the Union 2 The FCC licenses three classes of radiotelephone operators The more sophisticated and complex operations associated with radio station opera- tion are reserved to first-class operators Tasks demanding a decreasing level of skill can be performed by second- and third-class operators Each of the three classes of licenses is granted only after the applicant passes an exami- nation. 697 but planned to operate permanently with only one ra- dio technician, Bishop. Since the bargaining unit now contained only one employee, Respondent contended that it no longer had a duty to bargain. In Crispo Cake Cone Company, Inc.,' we held that in situations where a multiemployee unit has been re- duced to one employee the respondent has the burden of proving that the reduction is permanent to establish a termination of its duty to bargain with the exclusive bargaining representative of that unit. The Administra- tive Law Judge, after analyzing the evidence, con- cluded that Respondent failed to meet its burden of proof. Specifically, the Administrative Law Judge found that Respondent intended to hire another first class radiotelephone operator in order to comply with section 73.93 of the rules and regulations of the FCC which requires, in part, that radio stations such as Re- spondent must insure that a first-class radiotelephone operator is readily available at all times to perform complicated maintenance and repair work on the trans- mitter and other electronic equipment whenever needed.' The Administrative Law Judge reasoned that with the departure of first-class operator Harrison it would be extremely difficult, if not impossible, to have only one remaining first-class operator, Bishop, "readily available at all times" to perform transmitter repair work. Bishop worked only 40 hours per week, while the station operated from 6 a.m. to 7 p.m. 6 days a week, and 6:30 a.nl. to 7 p.m. on Sundays, 90-1/2 hours per week in all. There is no evidence that Re- spondent could insure the availability of another first- class operator if Bishop was indisposed while off duty, e.g., sick, on vacation, etc. Therefore, the Administra- tive Law Judge concluded, Respondent knew it could not operate for long with only one first-class operator working less than 50 percent of the time the station was on the air and surely must have intended to hire another first-class operator to take up the slack. We do not agree. The Administrative Law Judge has erroneously substituted his own business judgment for that of Respondent in concluding that it could not operate its radio station in compliance with FCC regu- lations with only one first-class operator. The record does not support his conclusion. The type of work which first-class operators like Bishop and Harrison are uniquely and exclusively qualified to perform, i.e., transmitter repair and maintenance, arises relatively infrequently. The uncontroverted testimony of Respon- dent's station manager, Thomas Whitley, indicates that first-class type work would be performed by Bishop only in the rare isolated instance where the radio trans- 3 190 NLRB 352 (1971) An earlier version of this regulation was more stringent in that it re- quired a radio station to maintain a first-class operator on duty at all times the station was operating. However, in January 1973, the rule was amended to provide that a first-class operator need only be available at all times. 217 NLRB No. 110 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitter or other piece of technical equipment malfunc- tioned: Most of Bishop's worktime, as was Harrison's is taken up with tasks of a more routine nature, such as program volume control, broadcast monitoring, phonograph needle replacement, and splicing of tapes, tasks which other employees of Respondent, announc- ers, are qualified, as third-class operators, to perform.' This being the case, there is no reason why Respondent cannot operate with just one-first-class op- erator. In the unlikely event that a need for emergency repair might arise while Bishop was off duty and could not be summoned on an on-call basis, Respondent could, consistent with FCC regulations, call on the services of any other first-calss operator throughout the Birmingham metropolitan area.' From the time of Harrison's death, on June 1, 1974, until the time of the instant hearing, in mid-September, there was no indica- tion that Respondent experienced any difficulty operat- ing with only one first-class operator. Furthermore, the FCC conducted an investigation of Respondent's radio station during the summer of 1974 without finding anything untoward about the employment of a single first-class operator. In sum, we find, contrary to the Administrative Law Judge, that the reduction of the radio technician unit to one employee was permanent. General Counsel, in his exceptions, advances an al- ternative theory to that of the Administrative Law Judge which would support the existence of a multiem- ployee radio technician unit and the consequent duty of Respondent to bargain with the Union certified to represent such a unit. Specifically, General Counsel argues that after Harrison died Respondent brought in other employees to do unit work, thereby perpetuating a multiemployee radio technician unit. The record does show that a large portion of Harrison's work was, in the ensuing few months, assumed by radio announcers Bill Woody and Lewis Christian. While the major portion of Woody's and Christian's time has been spent per- forming announcers duties, they have, as third-class license holders, spent a substantial portion of their time doing many of the same routine technical operations at the studio that Bishop and Harrison performed, such as broadcast monitoring, record changing, and volume control. However, they have performed no first-class duties. Since Harrison and Bishop spent but a small portion of their time performing first-class duties, and the bulk of their time performing the more routine 5 In order to comply with that portion of sec. 73 93 of the FCC rules and regulations which requires that an employee holding at the minimum a third-class license must be on duty at all times, Respondent, in July 1974, instituted the requirement that all newly hired announcers hold third-class licenses Even before that time, most of Respondent' s announcers were third-class operators 6 Sec. 73 93 provides that on-call services of a first-class operator other than those employed by the radio station could be contracted for. third-class duties, General Counsel argues that the per- formance of these same third-class--duties by Woody and Christian dictates their inclusion in the technician unit :long with Bishop. While we do not dispute General Counsel's argu- ment on the facts, we note that this issue has been litigated in a preelection hearing,- wherein the Union had sought to include announcer Woody in the unit for the same reasons it puts forth now, substantial time spent in performance of technician's duties identical to those performed by Harrison and Bishop. The Re- gional Director did not accept the Union's argument, however, and excluded Woody from the unit. As the nature of the present duties of Woody and, for that matter, of Christian, is not substantially different from Woody's duties prior to Harrison's death,' we see no reason to reverse the Regional Director and include either announcer in the unit. There is the remaining question as to when Respond- ent decided not to fill the position vacated by Harrison. Whitley testified that the decision was made immedi- ately upon Harrison's death. The Administrative Law Judge cites testimony of Whitley to the effect that the decision not to hire another first-class operator was not made until mid-July.' Whichever time might be ac- cepted, it is clear that the Union's bargaining request of May 26 occurred when Respondent's intention to operate with a two-man unit was still a possibility. However, we do not attach any significance to the fact that for a short time, be it 4 days or 6 weeks, there was an outstanding request to bargain on behalf of a possi- ble two-man unit, given our finding that at least no later than mid-July, Respondent had determined to operate permanently with a one-man radio technician unit. It would not effectuate the policies of the Act to proceed further in this matter inasmuch as the Board will not require an employer to bargain in a unit perma- nently consisting of only one employee.' We shall therefore dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it-hereby is, dismissed in its entirety. I Woody's 40-hour workweek was temporarily extended to 60 hours for some time following Harrison's death in order that he, along with Bishop, could assume Harrison's workload However, contrary to General Counsel, we do not regard this as a change in the nature of Woody's Job Woody was not performing any of Harrison's first-class duties, but merely performing more in the way of third-class duties, the nature of which had earlier been found insufficient to place him in the unit of first-class operators Bishop and Harrison B However, there is no such testimony by Whitley in the transcript 9 Westinghouse Electric Corporation, 179 NLRB 289 (1969) CRESCENDO BROADCASTING, INC _ 699 DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge : This case was tried before me on September 18, 1974,' at Binning- hamm, Alabama. The charge was filed on June 20 by Interna- tional Brotherhood of Electrical Workers, Local Union 253, AFL-CIO (herein called the Union), and duly served on Respondent the following day. Complaint issued August 16. The primary issue is whether Respondent violated Section 8(a)(5) of the National Labor Relations Act, as amended (29 U.S.C. Sec 151 et seq.), herein called the Act, by refusing to recognize the Union since May 26 for collective-bargaining purposes. Upon the entire record', including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent , I make the following: FINDINGS AND CONCLUSIONS I RESPONDENT'S BUSINESS The complaint alleges, the answer admits , and I find that Respondent is an Alabama corporation engaged at Birming- ham, Alabama, in the commercial operation of radio station WATV, licensed by the Federal Communications Commis- sion; that during the 12 months immediately preceding the complaint Respondent received in excess of $100,000 from the sale of air time for commercial advertising of national brand products and subscribed to an interstate news service including the CBS network ; and that Respondent is an em- ployer engaged in commerce within the meaning of, Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Facts 1. The Union's certification Following an election, the Union was certified on May 22 as bargaining representative for: All radio technicians employed by the Employer at its Birmingham, Alabama, facility' excluding all other i All dates are in 1974 except as otherwise stated 2 The following corrections of the transcript of testimony are hereby made to clarify the record : p 7, 1 12, from "knowledge" to "license," p 85,1. 15, from "leaders" to "needles;" p. 151 1 2, from "Roy" to "Bill." 3 It was stipulated that the facility uses "a non-directional antenna with nominal power of 10 kilowatts or less" within the meaning of sec. 73 93 of the rules and regulations of the Federal Communications Commission. Sec 73 93 reads in pertinent part as follows employees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. At the time of certification the unit consisted of the two employees who were on the Excelsior list4 and had voted in (a) One or more operators holding a radio operator license or per mit of a grade specified in this section shall be in actual charge of the transmitting system, and shall be on duty either at the transmitter location or at the remote control point. . (b) With the exceptions set forth in paragraph (f) of this section, adjustments of the transmitting system, an (sic) inspection, mamte- nance, required equipment performance measurements, and required field strength measurements shall be performed only by a first-class radiotelephone operator, or, during the periods of operation when a first-class radiotelephone operator is in charge of the transmitter, by or under the direction of a broadcast consultant regularly engaged in the practice of broadcast station engineering (c) A station using a non-directional antenna with nominal power of 10 kilowatts or less may employ first-class operators, second-class oper- ators, or operators with third-class permits endorsed for broadcast sta- tion operation for routine operation of the transmitting system if the station has at least one first-class radiotelephone operator readily avail- able at all times This operator may be in full-time employment, or, as an alternative, the licensee may contract in writing for the services, on a part-time basis, of one or more such operators Signed contracts with part-time operators shall be kept in the files of the station and shall be made available for inspection upon request by an authorized represen- tative of this Commission. * * * * * (f) Subject to the conditions set forth in paragraphs (c), (d), and (e) of this section, the routine operation of the transmitting system may be performed by an operator holding a second-class license or third-class permit endorsed for broadcast station operation. Unless, however, per- formed under the immediate and personal supervision of an operator holding a first-class radiotelephone license, and operator holding a sec- ond-class license or third-class permit endorsed for broadcast station operation may make adjustments only of external controls, as follows (1) Those necessary to turn the transmitter on and off, (2) Those necessary to compensate for voltage fluctuation in the primary power supply; (3) Those necessary to maintain modulation levels of the transmitter within prescribed limits, (4) Those necessary to effect routine changes in operating power which are required by the station authorization; * * * * * (g) It is the responsibility of the station licensee to insure that each operator is fully instructed in the performance of all the above adjust- ments, as well as in other required duties, such as reading meters and making log entries Printed step-by-step instructions for those adjust- ments which the lesser grade operator is permitted to make, and a tabulation or chart of upper and lower limiting values of parameters required to be observed and logged, shall be posted at the operating position. The emissions of the station shall be terminated immediately whenever the transmitting system is observed operating beyond the posted parameters, or in any other manner inconsistent with the rules or the station authorization, and the above adjustments are ineffective in correcting the condition of improper operation, and a first-class radiotelephone operator is not present * * * * * (i) The operator on duty at the transmitter or remote control point, may, at the discretion of the licensee and the chief operator, if any, be employed for other duties or for the operation of another radio station or stations in accordance with the class of operator's license which he holds and the rules and regulations governing such other radio stations. Provided, however, that such other duties shall not interfere with the proper operation of the standard broadcast transmitting system and keeping of required logs. (j) At all standard broadcast stations, a complete inspection of the transmitting system and required monitoring equipment in use, shall be made by an operator holding a first-class radiotelephone license at least once each calendar week. The interval between successive required inspections shall not be less than 5 days. This inspection shall include such tests, adjustments, and repairs as may be necessary to insure operation in conformance with the provisions of this subpart and the current station authorization 4 Excelsior Underwear, Inc., 156 NLRB 1236 (1966) 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election, Gordon- Bishop and Oscar Roy Harrison, both of whom held first-class FCC licenses as radiotelephone operators.' The Union's contention in the representation proceeding that Bill Woody also belonged in the unit was rejected by the Regional Director who, despite the fact that Woody, a third-class FCC permit holder, punched the trans- mitter on and signed the transmitter log,' concluded that "the record discloses that Woody is indeed an announcer [as contended by Respondent], and contains no evidence that he is a radio technician."' 2. The refusal to bargain By letter of May 26, the Union requested bargaining in the certified unit. On June 1, Harrison, who had become ill and never returned to work after the election, died.' Respondent thereupon took the position that the unit now consisted of only one man and that its bargaining duty had consequently terminated, and has declined to bargain since. 3. The work involved Respondent's transmitter is about 3 miles from its studio located in downtown Birmingham. They are linked together by telephone lines so that the transmitter can be controlled from the studio, the remote control point. This involves monitoring the emissions by ear and observing the four me- ters maintained at the studio. Once a week the FCC requires "a complete inspection,of the transmitting system and re- quired monitoring equipment in use" by a first-class operator. This entails calibration of the studio meters to preserve con- formity with similar meters at the transmitter, and requires a first-class license holder to visit the transmitter and call in his readings for the necessary adjustments at the studio, which can be and are made by third-class permit holders who record the changes on the so-called transmitter log. Only first-class operators may maintain or repair the transmitter. Prior to Harrison's departure both he and Bishop worked 40 hours a week, including weekends, but their duty hours did not coincide generally, so that at least one or the other was on duty whenever the station was on the air. As of the time of the representation hearing, according to Whitley, Mr. Harrison's duties and Mr. Bishop's duties ostensi- bly were one in the same. Their basic duty, and basic reason for their being there was to maintain the equip- ment and maintain the transmitter if it went off the air. 5 Respondent's initial contention that Bishop was not an employee but an independent contractor had been rejected by the Regional Director's Deci- sion and Direction of Election 6 All parties have adverted to "the transmitter log," evidently referring to what the FCC rules call the "operating log," as distinguished from the "maintenance log" whose entries may be made only by a first-class licensee 47 CFR 73.113,and 73 114 7 Respondent's general manager, Whitley, had taken the position that Woody performed "no technician or engineering work whatsoever," and that if he was to be included in the unit then its other third-class permit holders also deserved inclusion Although he testified in the representation proceeding that "some" of the employees, "other people" than Woody, had third-class permits, his testimony in the instant case indicated that only Glass (who is pnniarily a salesman) held such a permit at that time and that one other employee then on the payroll (announcer Pumphrey) did not get his permit until July or August. And do this sort of thing. Do repairs on all of our techni- cal equipment. All of our technical equipment was under their maintenance. Woody also worked a 40-hour week at that time. Immedi- ately upon the cessation of Harrison's employment, and con- tinuing until around mid-July, Bishop and Woody split Har- rison's hours,- each working 60 hours a -week. Since then Bishop has been working an 8-hour day, Monday through Friday, performing exactly the same duties he did previously; and Woody, whose third-class permit had expired, was removed, following an FCC inspection, from all contact with the operation of the transmitting system until such time as his permit is renewed. Meanwhile, other employees have been performing the same control duties of the station involving the operation of the transmitter that Woody had performed since Harrison's departure. For some period this was done by Lewis Christian (hired in mid-July) who in turn was followed by Frank Chester (hired in mid-September). According to Bishop, whom I credit, this entailed many of the functions he himself performed which were outside the scope of those controlled by his first-class license, and indeed some wholly uncontrolled by the FCC. Thus included were turning the transmitter on and off, observing the meters, playing tapes, monitoring the sound, adjusting the volume, and making the necessary operating log entries.' The performance of some of such duties required at least a -third-class permit, and accordingly since about mid-July Whitley has required his newly-hired announcers' to have third- class permits. In this connection the following colloquy occurred at the conclusion of Whitley's cross-examination: JUDGE HERMAN Mr. Whitley, how long did Bishop and Woody . . . THE WITNESS Work the logs, sir? JUDGE HERMAN Yes. THE WITNESS I guess, Your Honor, maybe four or five weeks, something like that; after Mr. Harrison's death. JUDGE HERMAN Up to that point, had the company required its announcers to have a Third Class license? THE WITNESS No, sir, no, sir, we did not require this. JUDGE HERMAN When did you decide on that require- ment? THE WITNESS All of our announcers don't have them right now, sir. JUDGE HERMAN I understood you to testify earlier that you required your announcers to. THE WITNESS I don't require; we're asking, we're hop- ing that we get most of them to have it because if some- body gets sick and we're not covered with a man, but we have, still some who do not have it.9 8 Although the announcers' turntables and microphones are in a so-called announcers' room, similar equipment is also kept in the production room, where the announcer-operators also work. 9 If the statement in Respondent's brief (p. 6) that "Not all of Crescendo's announcers are required to have third-class licenses" is intended to apply to announcers hired since mid-July, I do not so read Whitley's testimony above quoted on which it purports to rest His earlier testimony both on direct and cross-examination made clear that Respondenthad imposed such a requirement. To the extent that his later testimony may be deemed contra- dictory, I would not credit it, and it can be read to mean only that some of the older announcers do not have such permits. CRESCENDO BROADCASTING, INC. JUDGE HERMAN Well when did you decide on trying to get announcers with Third Class licenses? THE WITNESS I'd say in the last six weeks or so. JUDGE HERMAN That takes us back to around the beginning of August? THE WITNESS Somewhere in that period, maybe the middle of July. JUDGE HERMAN But the union requested to bargain on May 26 and you refused. Why was that? THE WITNESS The union requested we bargain on May 26? JUDGE HERMAN Yes. - THE WITNESS I think you'd find, sir, that, was that when the hearing was held, on May 26? JUDGE HERMAN No, the certification was issued on May 22. THE WITNESS. Now at what point did they ask me to bargain? Was this in the form of a petition written to me on May 26? JUDGE HERMAN The complaint alleges that on May 26, the union requested you to bargain and that you refused. And the answer admits it. THE WITNESS I hadn't refused until after Mr. Harrison died. After Mr. Harrison died, we took the position that we had had one man, Mr. Bishop, who in fact, had been retired prior to that time and the NLRB said Look, you let the man work for a period of two-or three months, so you can't classify him as being retired. But after Mr. Harrison died, I still said well all right, two minus one, best of my calculation equals one. We've got one man left there and that's it. And . . . . JUDGE HERMAN But you had other people doing work at that point and ... . THE WITNESS. No, sir, we didn't have anyone taking Mr Bishop's, Mr. Harrison's place. I'll contend that. I'll argue that with you. - JUDGE HERMAN Well what were Woody and-Bishop doing then, putting in the sixty hours? THE WITNESS. Woody is an announcer, Bishop was performing technical duties. Mr. Woody has never per- formed technical duties, sir. JUDGE HERMAN But what required them to go on the sixty hour week at that point? THE WITNESS Because we had to have somebody with at least a Third Class ticket working the board. But that's not to be confused with a First Class ticket. The law now says we cannot, we must have somebody with at least a Third Class ticket on duty at all times. Third, First, Second, makes no difference. But you must have somebody with a Third Class. Now I had Woody and I let Bill work the overtime until such time as we could add additional folks, announcers, round out our staff. JUDGE HERMAN But you weren't contemplating then that your additional announcers would have Third Class tickets, you didn't contemplate that until around the end of July, you said. THE WITNESS Well you can't work them sixty hours a week forever, Your Honor.10 701 Although Whitley testified that the nonannouncing duties mentioned above are not "technical" " but merely "incidental to" or "an extension of such employees' announcing duties, he agreed that the third-class permit holders were "technf- cians" in "the jargon of the trade," but maintained that only 2 to 5 percent of their time was spent "in the category of the licensee," i.e., in performing "technical" functions. He also testified that Respondent's announcers spent only about 6 to 7 minutes an hour actually announcing," the remainder of their time being devoted to playing recorded music, commer- cials, and other sounds and noises. Until January 1973 a first-class operator had to be on duty at all times the station was operating." Since then, as pro- vided in section 73.93 (a) and (c) of the FCC rules (fn. 3, supra,) it has been sufficient if a third-class operator, is on duty at all times and "if the station has at least one first-class radiotelephone operator readily available at all times." Whitely testified that he has no intention of restaffing the position formerly held by Harrison, that such restaffing is neither required by FCC rules nor economically needed, and that the position would not be restaffed "[w]ithin the foresee- able future." B. Analysis Respondent makes no contention-as indeed it cannot in view of its failure to seek review of the Regional Director's decision in the representation proceeding-that .the Union was not properly certified as the bargaining representative in an appropriate unit. And its answer admits its refusal to bargain in that unit since the Union's request of May 26. The burden of Respondent's position is that Harrison's death on June 1 reduced the unit to one man and hence, under Board law, extinguished its bargaining obligation under the certifi- cation. General Counsel contends that no such reduction occurred because other employees continued to perform ra- dio technicians' work, and that in any event no decision against hiring another-first-class technician to fill Harrison's slot was made before mid-July by which time Respondent had already defaulted in its bargaining obligation. Respond- ent argues that the employees (other than Bishop) allegedly performing technicians' work are primarily announcers and were hired as such, and that the work they do pursuant to their FCC permits is only incidental to, or an extension of, their announcing duties. Respondent does not address itself to the contention that Respondent's determination to change its method of operation followed its refusal to bargain. Respondent correctly urges that the Regional Director's decision in the representation proceeding settled, for pur- poses of this case, that Woody was not in the unit in respect to the duties he performed at that time; and even if the instant record showed Woody's duties to have been different in fact at that time from what the representation case record estab- lished, his exclusion from the unit on the basis of such duties 10 Bishop and Woody received premium pay for such overtime work According to Whitley; "Like to broke us. That's a fast way to get in a fix of financial duress." 11 As compared with about 2-1/2 minutes on the average station. 12 The normal operating period is 6 a.m to 7 p.m. except Sunday when air time starts at 6 30 a.m. - 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could still not be challenged here, in view of Section 102.67(f) of the Board's Rules and Regulations. Moreover, the Re- gional Director's decision might also, fairly be deemed to exclude any other employee whose functions do not go beyond those performed by Woody at that time. I do not understand the General Counsel to contend otherwise. What the General Counsel does argue, however, is that Woody's duties changed upon Harrison's departure so as'to embrace part of Harrison's duties, and that when Woody was com- pelled to cease performing such functions as a result of an FCC inspection disclosing the expiration of his third-class permit, those functions were assigned only to employees who had such permits and who had indeed been hired with that purpose in mind. The difficulty with this position is that while it pays lip service to Section 102.67(f) of the Board's Rules, it essentially bypasses that rule. Whatever portions of Harrison's duties were assumed by Woody, even such as may have'been con- trolled by the FCC, did not include any peculiar to the first- class license. They could not, under section 73.93(c) of the FCC rules, be other than "routine," and there is nothing to indicate that the FCC inspection found any violation other than Woody's performance of third-class duties without a permit. Nor is there any evidence that the nature of Woody's duties changed when he went on the 60-hour week. 13 This is not to say that a unit category of "radio technicians" is necessarily confined to first-class licensees. A sufficient com- munity of interest between first-class licensees and third-class men employed as projectionists at a television station was found. in . Newhouse Broadcasting Corporation, d/b/a WAPI-TV-AM-FM, 198 NLRB 342 (1972), notwithstand- ing the absence of any reference to third-class permit holders in the FCC, rule governing the operator requirements for television stations. !' But the evidence there showed that the projectionists, unlike the third-class men here, engaged in "a full range of station maintenance work." Id. And while the evidence in the instant record enlarges somewhat on the rep- resentation case record in respect to the similarity of duties between the first- and third-class men here, the Regional Director's decision precludes any argument based thereon. The foregoing, however, is not dispositive of the case. An employer that seeks-to avoid bargaining on the ground that the unit has been reduced to a single individual has "the burden of proving that this was not a temporary reduction but was one of a-permanent nature." Crispo Cake Cone Com- pany, Inc., 190 NLRB 352, 354 (1971), enfd., 464 F.2d 233 (C.A. 8, 1972).15 In recognition of this, Whitley testified that Respondent had no intention of restaffing Harrison's position. And Respondent properly argues that "It is not within the Board's province to require Crescendo to employ a first-class license holder to replace-Harrison" (Br., p. 13). Nevertheless-it is within the Board's province to determine whether Whitley's testimony in this respect is sufficiently 13 No breakdown of the time spent on Harrison's nonfirst-class duties has been attempted by General Counsel as a predicate for a possible finding based upon the increased amount of time required for the performance of his third-class duties as distinguished from those of his duties uncontrolled by the FCC 14 Compare sec 73 661 of the FCC rules with sec. 73.93. 15 Subsequently vacated upon employer's sustaining the burden in the compliance proceeding 201 NLRB 309 (1973) consistent with the other evidence in the case to be credited. Certainly Respondent's obligation to bargain existed at the time of the Union's request of May 26. There is no evidence, prior to Harrison's death on June 1, of any contemplation by anyone that he would not return. Yet Respondent utterly failed to respond to the Union's re- quest. Respondent still took no action to honor or even reply to that request following Harrison's death.16 It was not until around mid-July, several weeks after the Union had filed its charge herein in the face of Respondent's continued silence, that Respondent now claims to have arrived at its decision to leave Harrison's position unfilled. If the claimed permanence of the vacancy could be credited, this admitted failure to bargain at least between May 26 and mid-July might be pre- termitted under Board policy.17 However, the admission that the decision to eliminate the position was not reached before mid-July, and Whitley's further testimony that the corollary decision to require new announcers to hold third-class per- mits was made because "you can't work them sixty hours a week forever," strongly suggest that the expensive division of Harrison's work between Bishop and Woody was a holding action pending Respondent's careful consideration of how best to resolve a difficult problem only heightened by the presence of the Union, to wit, to avail itself of the benefits of the liberalized FCC rules which, while no longer requiring (as they did prior to January 1973) a first-class operator to be on duty at either the transmitter location or the remote control point throughout the broadcast day, still require such an operator to be "readily available at all times "18 Respon- dent's decision was undoubtedly hastened by the FCC inspec- tion which uncovered Woody's ineligibility. But the decision did not quite settle the matter because it leaves Respondent, as far as this record shows, short of compliance with section 73.93(c) of the FCC.rules, i.e., without a first-class operator "readily available at all times." The only first-class operator available to Respondent, according to this record, is Bishop, and he is employed on a 40-hour week, less than half the time the station is on the air. There is utterly no evidence of another such operator's availability, either as an employee or on a contract basis, when Bishop is off duty or ill or on vacation. No one appears to be performing even those "tech- nical" duties of Harrison's admittedly performed by Bishop while he was on the 60-hour week. I find it too difficult to believe that Respondent really intends to allow this situation to prevail permanently, and absent some explanation of how it intends to alter the present arrangement without hiring another first-class operator I must conclude that Respondent has failed to sustain its burden of proving that the reduction to a one-man unit was not just temporary. It follows that by refusing to bargain with the Union since May 26, Respondent has violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 16 Nor did Respondent move the Board to revoke the certification. See Sonoma-Mann Publishing Company, 172 NLRB 625 (1968). 17 Cf Westinghouse Electric Corporation, 179 NLRB 289 (1969). 18 It is noteworthy that Harrison was retained on the payroll for almost a year and a half after the amendment to the FCC rules CRESCENDO BROADCASTING, INC. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. - 3. Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain with 'the Union since May 26, 1974, in the unit certified by the Board on May 22. 4. The aforesaid unfair labor practice affects commerce within the-meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practice found herein, 703 my recommended Order will require Respondent to cease and desist therefrom and from any like- or related conduct. Moreover, in order-to effectuate the policies of the Act, my recommended Order will require Respondent to fulfill its duty to bargain in good faith with the Union in the certified unit upon the Union's request; to this end the certification year shall be deemed to start from the date Respondent com- mences to bargain in good faith. See, e. g., Duncan Foundry & Machine Works Inc., 185 NLRB 16, fn. 1 (1970). I shall also recommend the usual posting of notices. [Recommended Order omitted from publication.]