Franklin Parish Broadcasting, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Franklin Parish Broadcasting, Inc. and Local Union 446, International Brotherhood of Electrical Work- ers, AFL-CIO-CLC. Cases 15-CA-5951 and 15- CA-5965 May 11, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On November 29, 1976, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, both the Respondent and General Counsel filed exceptions and supporting briefs. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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, as modified below, and hereby orders that the Respon- dent, Franklin Parish Broadcasting, Inc., Winnsboro, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Davis L. Roberts immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, and make him whole for any loss of pay or other benefits that he may have suffered by reason of the Respondent's discrimination against him with interest at 6 percent per annum." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Order of the Administrative Law Judge is modified to accord more fully with his various findings. 2 The Administrative Law Judge found, and we agree, that Respondent not only violated Sec. 8(a)(3) but also violated Sec. 8(aX4) of the Act in its discharge of Davis Roberts. We find it significant that Respondent's attitude toward Roberts became markedly negative after Roberts testified in the previous unfair labor practice proceeding against Respondent before this Board. 229 NLRB No. 72 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. The Act gives all our employees these rights: To organize themselves To form, join, or help unions To bargain as a group through represen- tatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything which interferes with these rights. WE WILL offer Davis L. Roberts his job or, if his job no longer exists, a substantially equivalent job. WE WILL restore his seniority and pay him the backpay and all other benefits he lost because we discharged him. WE WILL NOT unlawfully discharge any of our employees because of their union affection or because they engage in union activities, or because they gave testimony in a Board proceed- ing. WE WILL NOT unlawfully and unilaterally change conditions of employment including pay raises or working hours of our employees without notifying and bargaining with the Union and WE WILL reimburse James Burns who lost wages by reason of the schedule change. WE WILL NOT unlawfully and unilaterally withhold planned bonuses because of our em- ployees' union activities and WE WILL reimburse full-time employees $100 each and part-time employees $50 each for the 1975 Christmas bonus we withheld from them. WE WILL, upon request, recognize and bargain with Local Union 446, International Brotherhood of Electrical Workers, AFL-CIO-CLC, as the exclusive collective-bargaining representative in a unit of all employees employed by Franklin Parish Broadcasting, Inc., at its Winnsboro, Louisiana, radio station KMAR, AM and FM, excluding the maid, guards, and supervisors as defined in the Act. 556 FRANKLIN PARISH BROADCASTING, INC. All our employees are free to remain, or refrain from becoming or remaining, members of a labor organization. FRANKLIN PARISH BROADCASTING, INC. DECISION KARL H. BUsCHMANN, Administrative Law Judge: This case arises upon a complaint, issued February 13, 1976, by the National Labor Relations Board alleging that Franklin Parish Broadcasting, Inc., had violated Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act. In its answer, filed February 26, 1976, Respondent admitted several allegations, but it denied all of the substantive allegations that it had committed any unfair labor practices. The hearing on these charges was held in Monroe, Louisiana, on April 27 and 28, 1976. The General Counsel and Respondent were represented by counsel and afforded full opportunity to adduce evidence, to call, examine, and cross-examine witnesses, and to file briefs. Upon the entire record in this case, including briefs of counsel, and from my observation of the witnesses, I make the following findings of fact and conclusions of law. Background Franklin Parish Broadcasting, Inc., was a respondent in a prior Board proceeding. On February 27, 1976, the Board affirmed the decision ' of Administrative Law Judge Lowell Goerlich, finding that Franklin Parish Broadcasting, Inc., had violated Section 8(a)(1) and (3) of the Act in connection with the original union campaign. The findings and conclusions in that decision are, according to the General Counsel, res judicata and absolutely binding on the trier of facts in the instant case. Respondent, on the other hand, argues that since the decision by the Board has not been tested in any U.S. court of appeals, and since Respondent has advised the Board that it does not regard the order as valid and that it has refused to comply with its provisions, the finding of a violation in the prior proceeding "does not change or shift that burden of proof, nor does it create any presumptions or inferences." I have little difficulty in recognizing that the prior decision does not dispense with the General Counsel's usual burden of proof of establishing a primafacie case, but it is axiomatic that the findings in the prior decision, if relevant to the present case, are binding on the Administra- tive Law Judge as the agent of the Board, irrespective of judicial review by a court of appeals. Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768 (1957); Iowa Beef Packers, Inc., 144 NLRB 615 (1963). Jurisdictional findings, including the status of Respon- dent as an employer within the meaning of the Act, have already been established. Respondent, Franklin Parish Broadcasting, Inc., was and presently is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act over which the Board has jurisdiction. Respondent is a Louisiana corporation engaged in the operation of a radio station KMAR, AM and FM, in Winnsboro, Louisiana. President and owner of the radio station, Edward O. Fritts, acquired the station in early 1973. He also owns and operates one or two other radio stations. The Union, Local Union 446, International Brotherhood of Electrical Workers, AFL-CIO-CLC, is and at all times has been a labor organization within the meaning of Section 2(5) of the Act. According to the prior decision, the Union's campaign at KMAR began in December 1974. Respondent's employees Alpe and Roberts had contacted the Union and had solicited signatures on union cards. Primarily as a result of the efforts of these two employees, the Union was able to file a petition for an election on December 9, 1974. A representation hearing was held on December 30, 1974, and January 3, 1975, following which the Regional Director issued a Decision and Direction of Election in Case 15-RC-5606. He found that employees Roberts and Alpe, who had testified at the hearing, were unit employees within the meaning of the Act. After the Board granted Respondent's request for review of the Regional Director's decision, the election was postponed indefinitely, and on March 25, 1975, the petition was withdrawn. The Board's prior decision further shows that following the Union's attempt to gain a foothold in Respondent's radio station, Respondent engaged in several acts and practices which violated the National Labor Relations Act. In addition to the usual remedies, the Board also issued a bargaining order requiring Respondent to bargain collec- tively as of December 10, 1974. With respect to Roberts, the Charging Party in the present proceeding, the Board found: Conversations with Roberts: Fritts engaged in conver- sations with Roberts on about four or five occasions between February 4 and 14, 1975. Among other things, Fritts told Roberts that the Company was against the Union and that "he didn't believe in unions. They were troublemakers, and he was not going to sign a contract." Fritts further said that he had recently purchased a new station and was looking for a station manager; that when he replaced a manager "he always looked to key personnel, and [Roberts] was certainly a key employee." Fritts added that if Roberts voted for the Union he would not have a future at KMAR. He asked Roberts to vote the Union "down" and give him "another chance." Fritts also inquired whether Roberts was "against the Union" and said he would appreciate it if Roberts "talked to the other boys and tried to convince them to vote 'no.' " Fritts also commented that "he wasn't under law to sign a contract," and that he "liked to work with his employees on a warm friendly basis instead of cold hard facts," as it would be if the Union came into the station. I Reported at 222 NLRB 1133. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further finding that Roberts was a credible witness, the decision concluded that Respondent had violated the Act with regard to employee Roberts as follows: (h) Fritts' representation to Roberts that he was not going to sign a contract; Fritts' implied promise to Roberts, that, if the Union were voted "down," he would be considered for a position as a station manager; Fritts' threat to Roberts that if he voted for the Union he would not have a future at KMAR; Fritts' interrogations as to whether Roberts was against the Union; Fritts' solicitation of Roberts to "[talk] to the other boys and [try to convince them to vote 'no' "; and his suggestion that Roberts get on the "bandwagon and help vote the Union out." Issues The issues in the present proceeding are directly related to the prior Board decision (222 NLRB 1133), because it is now alleged that (1) Roberts was discharged in violation of Section 8(a)(1), (3), and (4) of the Act, and (2) Respondent unilaterally implemented the following: a wage increase of several unit employees, a reduction in hours of a unit employee, and a policy denying employees annually scheduled Christmas bonuses in violation of the require- ment to bargain with the Union. Findings The discharge of employee Roberts: The record shows that Roberts was hired by station KMAR as an announcer- salesman in October 1973. In this capacity he ordinarily worked from 6 a.m. to 10 a.m. as an announcer on the air, and from 10 a.m. to about 3 or 4 p.m. as a salesman soliciting advertising for the station. On December 31, 1975, Roberts was fired. The reason for the discharge, given orally and by letter, was Roberts' failure as a sales representative for the radio station. The record evidence, however, shows that it was not lack of sales, but Roberts' union activity, which prompted his discharge. The first time that Roberts heard any criticism about his sales' performance was by letter of August 4, 1974, 4 weeks after the prior unfair labor practice case had closed. In this letter, Fritts, president and owner of KMAR, complained about Roberts' failure to increase his sales in the first 7- month period in 1975, as compared to the sales perfor- mance in the same 7-month period in 1974. The letter explained that the sales effort by Don Murray, the station manager and only other salesman, was responsible for increased sales by the station as a whole, and it emphasized that Roberts' prime function at the station was that of a salesman. In September 1975, Fritts had a meeting with Roberts during which the former suggested a new working schedule in order to assist Roberts in improving his sales picture. Under the suggested schedule Roberts would have spent 2 hours less time in performing his usual announcing functions and thereby add this time to his sales efforts. However, Roberts was not receptive to the idea, and the suggestion was abandoned. During this time, however, Roberts became aware that three other unit employees received raises from 25 to 30 cents an hour while he received no raise at all. Shortly thereafter, Roberts received another letter, dated October 2, 1975, in which Fritts reprimanded Roberts, accusing him of selling advertising to an uncollectible account. In this regard, the record shows that Roberts had solicited advertising from Winnsboro Meat Company in the amount of $717. This amount was a relatively large sale for which Roberts accepted the firm's credit. Unfortunate- ly, the company turned out to be a "fly-by-night" operation which could not be located after the advertisement had been "aired" by the station. Roberts was blamed because he had not adequately checked the firm's credit. Roberts had merely called a number that was given to him by the meat company which identified itself as the Better Business Bureau and which vouched for the credit of the meat company. Fritts' reaction to this episode was strong, suggesting in his letter: In my twelve years of radio station ownership and management, I have never had a salesman so flagrantly ignore such an important business practice [proper evaluation of the accounts]. I am not sure as to whether you can be held personally liable for this loss, but I am checking into this possibility. The same letter also criticized Roberts' continued "sagging sales effort." By letter of October 6, 1976, Roberts replied to some of the criticism leveled against him, and in a somewhat hostile fashion suggested that his union activi- ties-not his sales efforts-were the real cause for Respon- dent's motives. Again, by letter of December 24, 1975, Fritts criticized Roberts' lack of sales and expressed hope that sales for November and December would improve. On December 27, 1975, Station Manager Murray met with Roberts and discussed management's concern over Roberts' failure to improve his sales efforts. Finally, on December 31, 1975, Roberts was summoned to meet with Fritts in Murray's office. During the meeting Fritts informed Roberts that his employment was terminat- ed because Roberts had been unable to generate the expected amount of sales. With Respondent's efforts providing Roberts with assistance and training, Fritts was of the opinion that the expected sales should have amounted to $30,000 rather than the $18,559.95 which Roberts produced and which Fritts considered an insignifi- cant improvement over the sales figure of $18,087.80 in 1974. My review of the record as a whole and considering the relevant portions dealing directly with Respondent's conduct vis-a-vis Roberts in the Board's prior decision, 222 NLRB 1133, I conclude that Davis Roberts was discharged because of his union activities. During most of his tenure from October 1973 to July 1975, Roberts had not received any criticism. Not until after the prior proceeding had closed in which Roberts testified against his employer did the attitude of Respon- dent change, particularly after Roberts failed to comply with the request of his employer to talk "to the other boys" to try "to convince them to vote" against the Union. 558 FRANKLIN PARISH BROADCASTING, INC. Furthermore, Respondent's criticism over the $717 as an uncollectible account was exaggerated. This was not the first bad debt which the station had incurred. Yet no letter of reprimands were ever written to the culpable employees. Indeed, Roberts was not solely to blame for the station's loss on this account, since Roberts had fully informed Station Manager Murray of the new account and his efforts in checking its credit. As a result Murray himself became involved. For example, at one point he met with the people of the meat company and another time Murray attempted to contact a credit reference for this account. Clearly, Murray, as manager and with his own participa- tion in the matter, was as much to blame as Roberts. Yet Fritts used this episode as a convenient tool to downgrade Roberts. Also Respondent's insistence that Roberts was a failure as a salesman appears incongruent with Fritts' own expectations for the station. To be sure, Roberts' sales in 1975 did not increase significantly from his sales in 1974. However, the record shows that Fritts testified in the prior proceeding to the effect that he did not expect overall sales in 1975 to be as high as in 1974. Accordingly, even the modest increase in sales which Roberts was able to show were beyond Fritts' own expectations which he expressed in June 1975. Particularly unconvincing in Respondent's line of argu- ment is Fritts' offer to Roberts of a more responsible position in his organization. On April 21, 1975, Fritts offered Roberts the position as the station manager of a newly acquired radio station in Helena, Arkansas. It is highly unlikely that Fritts' could have been sincere about his proposal offering Roberts a more demanding position in April 1975 when in August of the same year Roberts, in the opinion of his superiors, could not even perform his job as a salesman. In any case, Roberts declined to accept the position for two realistic reasons. First, he feared that such a promotion would have taken him out of the bargaining unit so that he would lose the protection afforded by the Act. Roberts' apprehension in this regard was justified, since a similar promotion scheme was used by Respondent in connection with the discharge of another employee, as fully detailed in the prior case. Roberts' other reason was that he did not feel sufficiently confident to accept the new challenge. Finally, in an effort to buttress its justification for terminating Roberts' employment, Respondent relied upon a test by Marketing Survey and Research Corp. the results of which show that Roberts' aptitude as a salesman was marginal. In addition, Respondent has attempted to compare the sales performance of Station Manager Murray with that of Roberts. With respect to the test results, I have serious doubt that they were a significant factor in Respondent's determination to discharge Roberts because a similar test shows that Murray had serious handicaps as a manager. Murray's position as station manager involved essentially two functions, management and salesmanship. While the test results are favorable to Murray as salesman, they are very critical of his managerial abilities. Similarly with regard to Roberts, the test results-although not specifically directed towards his announcing ability-are only critical of certain personal traits involved in salesman- ship. An evenhanded policy by management based on these test results would certainly not single out Roberts as the only target. Indeed, the test results show that, under skillful management, his sales performance could become "quite good" which suggests that Murray, the manager, is partially responsible for the alleged sales deficiencies. Fritts' adverse action directed solely against Roberts therefore suggests that these tests were used for pretextual purposes. Similarly, Respondent's efforts to compare Murray and Roberts as salesmen are inconclusive and unpersuasive. Even if it is assumed, as Respondent argues, that Murray's record in sales far surpasses that of Roberts, the evidence does not suggest that Roberts was a failure in his job. As already stated, 50 percent of Roberts' working time was devoted to announcing. No criticism of that function was ever proffered. And with regard to Roberts' sales function, there is nothing out of the ordinary for a "boss" to be a better performer than his subordinate. In addition, Murray's efforts at selling were performed on a full-time basis rather than, as in the case with Roberts, on a divided schedule. Also the accounts which Murray as- signed to himself were the larger and more stable customers. The record shows that several of Roberts' customers had gone out of business. Accordingly, for these and additional reasons detailed in General Counsel's brief a fair comparison between Murray's and Roberts' sales performances was difficult at best and certainly inconclu- sive to establish Roberts as a failure in salesmanship. On balance, I conclude that Roberts was discharged primarily because of his union activity and not, as argued by Respondent, because of any failure or inability to perform as a salesman for KMAR. Unilateral changes in working conditions: The record shows, and Respondent does not dispute, that three of Respondent's employees, Dean, Clark, and Burns, were granted a 25-cent-per-hour wage increase in September 1975. Furthermore, the working hours of employee Burns were reduced from 32 hours to 11 hours per week in order to accommodate the employment of another employee. Finally, Respondent failed to pay the customary Christmas bonus in 1975. AU these changes are alleged to be in violation of Respondent's bargaining obligation estab- lished by the Board in the prior case, 222 NLRB 1133(1976), which unequivocally established that Respon- dent's bargaining obligation commenced as of December 10, 1974. Respondent argues that no bargaining obligation existed, since the order has not been enforced by a court and since no request to bargain was made by the Union. Dispositive of this contention is the Board's decision in J. P. Stevens & Co., Gulistan Division, 186 NLRB 180(1970). There a Gissel bargaining order was pending in the court of appeals, yet the Board held that Respondent's unilaterial changes in the wage structure constituted a further violation of Section 8(aX)(5). Once an obligation to bargain has been established by contract or by Board order, it is incumbent upon the employer to notify the union of any planned changes in working conditions so that the union is able to make a request to bargain. The record is clear that the obligation to bargain existed as of December 10, 1974. Respondent's subsequent unilateral changes were effectuated without 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notifying the Union. The three employees, Clark, Burns, and Dean who received raises in September 1975, when the obligation to bargain was in effect, had signed union cards and had designated the Union as their bargaining agent. And Respondent's failure to notify and bargain with the Union is violative of Section 8(a)5). Furthermore, Respondent's failure to pay the Christmas bonus in 1975 continues to be a violation of Section 8(a)(5). The prior Board decision held that Respondent's failure to pay the bonus in 1974 because of the union activity was a violation of the Act. The bonus had become a regularly expected benefit prior to 1974. Finally, the reduction in employee Burns' working hours amounted to a substantial reduction which should have been the subject matter of negotiations between the Union and management no matter what reason Respondent had assigned to the change. Burns had signed a union card and selected the Union as the bargaining agent. Respondent's failure to notify and bargain with the Union was violative of Section 8(a)(5). CONCLUSIONS OF LAW 1. Respondent, Franklin Parish Broadcasting, Inc., is an employer within the meaning of Section 2(2) of the Act and engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union, Local 1146, International Brotherhood of Electrical Workers, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By unlawfully discharging Davis L. Roberts, a witness in the prior case, on December 31, 1975, Respon- dent engaged in unfair labor practices in violation of Section 8(a)(l), (3), and (4) of the Act. 4. By unilaterally changing working conditions, includ- ing wage increases to employees Dean, Clark, and Burns, the reduction in working hours of employee Burns, and the failure to grant the 1975 Christmas bonus, Respondent violated Section 8(a)(1) and (5) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(l), (3), (4), and (5) of the Act, I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recommend that Respondent be ordered to post an appropriate notice and take affirmative action in order to effectuate the policies of the Act. In addition, I recommend that Davis L. Roberts be offered full and immediate reinstatement with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 also recommend that the Respondent reimburse any of its employees who lost pay by reason of Respondent's work schedule change or by reason of its withholding of the Christmas bonus, including interest at 6 percent per annum in accordance with the Board's usual formula. 2 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. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I issue the following recommend- ed: ORDER 2 Respondent Franklin Parish Broadcasting, Inc., Winns- boro, Louisiana, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in Local Union 446, International Brotherhood of Electrical Workers, AFL- CIO-CLC, or any other labor organization, by unlawfully discharging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(3) of the Act. (b) Unlawfully and unilaterally changing conditions of employment of its employees who are members of the Union. (c) Unlawfully discharging or otherwise discriminating against any of its employees because he has given testimony under the Act. (d) Refusing to bargain collectively with the Union subject to Section 9(a) of the Act. (e) In any other manner interfering with, restraining, or coercing any employees in the exercise of the rights granted them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Davis L. Roberts immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth herein under "The Remedy." (b) Pay to each employee who was on the payroll of Respondent the 1975 Christmas bonus in amounts of $100 to full-time employees and $50 to part-time employees. (c) Pay to employee Burns the salary or wages which he lost as a result of the reduction of his working hours. (d) Upon request, recognize and bargain with the Union as the exclusive bargaining representative of the employees in a unit of all employees employed by Respondent at its Winnsboro, Louisiana, radio station KMAR, AM and FM, excluding the maids, guards, and supervisors, as defined in the Act, as amended. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. 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. 560 FRANKLIN PARISH BROADCASTING, INC. (f) Post at its Winnsboro, Louisiana, station copies of the attached noticed marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places 3 In the event the Board's Order is enforced by a Judgment of the 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 where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 561