Century Broadcasting Corp.

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD KBMS, Inc., a subsidiary of Century Broadcasting Corporation and Los Angeles Local, American Federation of Television and Radio Artists, AFL-CIO. Case 31-CA-11441 28 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 20 September 1982 Administrative Law Judge Earldean V.S. Robbins issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, fmdings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, KBMS, Inc., a subsidiary of Century Broadcasting Corpo- ration, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge's decision, we note the following inadvertent factual errors that do not affect our agreement with her conclusions and which we correct as follows In sec III,G,4, the phrase "By these and other acts" should read "By the above and other acts," and the name "Becker" should read "Martin." In Conclusion of Law 5 the date "August 1, 1981," should be "August 11, 1981. " Lynn K. Thompson, Esq., for the General Counsel. Gerald Tockman, Esq., of St. Louis, Missouri, for the Re- spondent. Antonio Powell, Esq., of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. The matter was heard before me in Los Angeles, Califor- nia, on various dates in January, March, and April 1982. The charge was filed by Los Angeles Local, American Federation of Television and Radio Artists, AFL-CIO (Union or AFTRA), and served on KBMS, Inc., a Sub- sidiary of Century Broadcasting Corporation (Respond- ent), on August 19, 1981. The complaint, which issued on October 19, 1981, alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act. The basic issue is whether Respondent withdrew recognition from the Union in violation of Section 8(a)(5) of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, Respondent, a California corpo- ration with an office and principal place of business in Los Angeles, California, has been engaged in the oper- ation of radio station KWST-FM (KWST). Respondent, in the course and conduct of said business operations, an- nually derives gross revenues in excess of $100,000, and annually purchases and receives goods or services valued in excess of $10,000 directly from suppliers located out- side the State of California. The complaint alleges, Respondent admits, and I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Respondent denies that the Union is a labor organiza- tion "within the meaning" of the Act. However, the evi- dence establishes that the Union, consistent with the defi- nition of a labor organization set forth in Section 2(5) of the Act, is an organization in which employees partici- pate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Actually Respondent does not dispute this evidence. Rather it contends that the-Union is not a labor organization because it did not fairly repre- sent the interests of the unit employees. I conclude that this argument goes to Respondent's defense concerning its withdrawal of recognition from the Union rather than to the Union's status as a labor organization. 1i Accordingly, on the pleadings and the evidence, I find that the Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On November 12, 1971, the Union was certified as the exclusive representative of all announcers, newscasters, and performers employed by Respondent at radio station KWST, Los Angeles, California. Since then the Union and Respondent have been parties to successive collec- tive-bargaining agreements which specifically provide that pursuant to said certification, Respondent recognizes the Union as the exclusive bargaining agent for all its r Respondent's argument will be discussed more fully below 278 NLRB No. 118 KBMS, INC. 827 employees in the unit described in the certification, and that said employees are referred to in the agreement as announcer/operators. The last such agreement was effec- tive by its terms from July 19, 1980, until July 20, 1981.2 By letter dated May 6 the Union notified Respondent of its intent to terminate this agreement on July 20 and offered to meet with Respondent for the purpose of ne- gotiating a new contract containing modifications. By letter dated May 11 Respondent's associate general coun- sel, Gerald Tockman, who is responsible for Respond- ent's labor relations, acknowledged receipt of said notifi- cation and suggested a 6-month extension, without change, of the 1980-1981 agreement in order to provide the new management at the station an opportunity to turn the station into a successful operation. By letter dated May 18 the Union informed Tockman that it would not agree to such an extension without consulting with the employees and hearing from Re- spondent why it deemed an extension necessary. The letter further stated that the Union had never agreed to such an extension without first having examined the re- questing company's financial records to determine whether a raise in wages could be prudently granted. By letter dated June 1 Tockman acknowledged receipt of the Union's May 18 letter, withdrew his request for an extension of the current contract, and stated Respond- ent's desire to terminate the agreement on July 20, 1981. Thereafter, due to a terminal illness and subsequent death in Tockman's family, and the accompanying religious re- strictions on his work and travel schedule , the Union and Respondent did not meet to negotiate a new agreement until August 11. In April, May, and June Respondent was involved in an extensive reorganization of the station in an attempt to generate better audience ratings. Timothy Sullivan as- sumed the position of general manager of the station in April. One of his first decisions was to change the format of the station from an "album oriented rock " formats that appeals basically to an 18-to 24-year-old male audi- ence to an "adult contemporary" format-current hit tunes and certain perennial favorites designed to appeal to a wider target audience of 18- to 49-year 'olds-and, hopefully, generate more advertising revenue. To this end, Chuck Martin was employed as program director effective May 26. During the next month, Re- spondent terminated most of its announcer employees, also referred to as on-air staff, and hired a number of new on-air personnel. During this same period Respond- ent also engaged in an extensive publicity campaign an- nouncing its new format and on-air personnel .Advertise- ments were placed in the news media , and publicity re- leases were mailed to around 500 organizations, resulting in a number of articles appearing in local newspapers and in trade magazines and newspapers. The new format went into effect on June 25. The Union was not directly notified by Respondent concerning the change in,format and personnel except to the extent that it might have been on the general mailing list that Respondent utilized during its publicity campaign. 2 Unless otherwise indicated all dates will be in 1981 3 Sometimes ieferred to as a "heavy" or "hard" rock format As indicated above, due to Tockman's personal situa- tion, no negotiations occurred during this transition period. However, prior to August 10, there was an ex- change of letters and at least one telephone conversation between Tockman and Union ' Representative Joseph Medine. Medine testified that on July 20, during a -tele- phone conversation, he told Tockman that the Union wanted assurances that the terms and conditions of the contract would be continued until a new agreement was reached and that the new agreement would be retroac- tive to the expiration date of the old contract . Tockman said, "Fine, no problem." Medine said, "Well, you can put it in writing, just to protect myself because Oliver wanted me to make sure and get this assurance from you."4 Tockman said he would put it in writing. They then agreed to meet during the week of August 10. Ac- cording to Medine, immediately thereafter - he made a note concerning ' the conversation which states, "Will be able to negotiate week of Aug. 10. He agreed to letter of extension w/ retroactive & said he would put it in writ- ing this Thursday." Tockman denies that he ever agreed to an extension of the contract. According to him, he had two conversa- tions with Medine prior to August 10. During the first conversation, Medine said that Oliver had asked that Tockman put in writing what Trackman had previously discussed with Oliver regarding retroactivity and -had asked whether there should be an agreement on extend- ing the contract. Tockman said the Union had rejected his request that the contract be extended .and, at this point, Respondent would not agree to-'extend the con- tract. Thereafter, Tockman sent a letter to the Union, ad- dressed to Oliver and dated July 27, in which Tockman assured the union that should an agreement be reached on a new contract Respondent would be willing to make any wage or benefit improvements retroactive. The letter does not mention extending the contract, and it is undis- puted that no one from the Union ever inquired why the letter made no such reference, even though Oliver sent Tockman a letter dated July 29 in which he specifically thanked him for his July 27 letter agreeing to retroactiv- ity for any benefit or wage improvements. Medine testified that inasmuch as the contract was due to expire on July 20, a failure to extend the terms of the contract would have grave implications . Thus he is sure that he requested and received assurances from Tockman as to both retroactivity and an extension of the contract. However, this reationale would apply equally to the July 27 letter. Yet Medine never questioned the omission from the letter of a statement regarding extending the con- tract. 'Mediae testified that this was because he assumed that the letter reflected what was discussed . Thus Me- dia's argument is not convincing, for if he was careless enough to look at the letter and not notice that it omit- ted something as important as extending the contract, there is not reason to assume that he ' could not be care- less enough to omit requesting the extension . In all of the 4 Wayne Oliver is the assistant executive secretary of the Union. He was the person who had negotiated prior collective bargaining agree- ments with Respondent. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, particularly the Union's failure to ques- tion the omission of a statement of the alleged agreement to extend the contract from the July 27 letter, I find Tockman's version of their conversation to be more be- lievable than Medine's, and I credit him that he refused to agree to extend the contract. B. The Appropriate Unit and the Unit Placement of Certain Employees The complaint alleges the appropriate unit as including "all announcers, newscasters and performers" and ex- cluding "all other employees, office clericals, employees, guards and supervisors." Respondent contends that, in the circumstances, this is not an appropriate unit. In sup- port, Respondent argues that it was agreed in 1971, and in each subsequent collective-bargaining agreement, that only those persons defined in the various collective-bar- gaining agreements as "announcer/operators" and per- forming the duties set out therein would be covered under the contract. Thus, Respondent argues, the Unit includes only' those persons who are considered "air per- sonalities" or perform announcer functions as well as technician or operator functions. I find no merit in this argument for I conclude that the language of the collective-bargaining agreement is not reasonably susceptible to the interpretation urged by Re= spondent. Rather, I find that the contract is unambiguous in its provision that Respondent recognizes the union as collective-bargaining representative of the employees de- scribed in the certification which employees are referred to in the agreement as announcer/operators. According- ly, I find that the appropriate unit is as described in the certification and alleged in the complaint. Concerning the composition, of the unit, based on the record evidence and the positions of the parties, there are 12 employees arguably in the appropriate unit: Hurri- cane, Chris Kelly, John London, Ron Engelman, Benny Martinez, Bobby Ocean, Frank De Santis, China Smith, Scott Summers, Patricia Becker, Pat Garrett, and Rick Jager. Although Hurricane and Kelly are full- time em- ployees, they only work part time as disc jockeys, doing scheduled air shifts during the weekend. Kelly is also chief engineer. Hurricane works as music coordinator and performs other functions as assigned. Frank De Santis works part time as a disc jockey doing regularly scheduled weekend air shifts and also performs full air shifts during the regular workweek as a relief disc jockey. Smith, Garrett, Summers, Ocean, and Martinez work scheduled air shifts during the week as disc jockeys. Each of them, as well as Kelly, Hurricane, and De Santis function as technicians or operators as well as announc- ers in that they also operate the control board during their air shifts. London and Engelman do not operate the control board during their shifts., The board was operat- ed for them by Summers and Becker until the latter part of July. Thereafter Becker, operated the board alone. Jager works as a news announcer. He operates the con- trol board, with the exception of the master switch, when he is announcing the news. The General Counsel contends that Becker should be included in the unit. Respondent contends that she should be excluded from the unit since she was a trainee assistant and general errand person and was not an air personality. According to Respondent's argument, al- though she operated the control board for London and Engelman, she essentially ran tapes, pressed buttons, and watched dials as opposed to functioning as an announ- cer/operator or air personality, who was described by Martin as an entertainer, a comedian, a jokester, a disc jockey, and one who is involved with the "total sound" of the station. The contract defines the duties of unit employees as follows: ANNOUNCER/OPERATORS 16. Duties Announcer/Operators may be required to per- form any or all of the duties and services which the Company has required be rendered prior to the ef- fective date of this Agreement, which, are consistent with the customary services of Announcer/- Operators or which are inherently related to the operational responsibilities of Announcer/Operator including, by way of illustration but in no way lim- ited to, the following: functioning as a technician to the extent required for the Station's operation (in- cluding, among others, handling the board, main- taining commercial and engineering logs, operating audio equipment including turn-tables, consoles, microphones, tape recorders, and other technical equipment in the studio); functioning as an An- nouncer to the extent required for the Station's op- eration (including,'-among others, the rewrite of news and copy, announcing, spinning records, read- ing meters, playing tape records, ripping, reading, and spot-editing news); appearing on and recording commercials for use on KWST; keeping records of callers to the Company's Station and such other functions required for the effective operation and maintenance of the Company's business operations as Announcer/Operators have been in the practice of rendering in the past. . Contrary to Respondent's contentions, there is nothing in the contract which requires all unit employees to per= form all the enumerated duties, or to perform both an- nouncer and operator functions; nor does it define announcer/operators as air personalities. 1. Patricia Becker It is undisputed that Becker did not have an air shift. It is also generally undisputed what her job duties were. She operated the control board for the London and En- gehnan show from 6 to 10 a.m., 5 days a' week. Also, during this show, a full air shift, she engaged in brief on- air dialogues with London and Engelman, regularly per- formed as a character in skits with London and Engel- K$MS, INC. 829 man, 5 maintained the log, and did live tags,6 live com- mercials, and public service announcements. For the re- mainder of the workday Becker was assigned to the news department under the tutelage of news director Rick Jager. In that department she was responsible for maintaining the news wire service teletype machines' and tape machines8 and ripping and sorting news copy from the wire services. She also did some field and sports reporting, taped commercials, conducted "on the street" and telephone interviews,9 provided announcers with weather reports, carted actualities, ' 0 and relieved the receptionist for lunch. The only dispute about Becker's duties involves the Sunday morning public services shows . Becker testifies that she began doing interviews for a Sunday morning one-half hour public affairs show in early-July upon oc- casional assignment by Martinez, who functioned as public affairs director. According to her, from early July until late September or early October, she did interviews for approximately five such shows. Contrary to what oc- curred with the "on the street" and telephone interviews she did in the news department, Becker's voice was not edited out of the public affairs interviews.) t However, Martin testified that Becker did not engineer a public affairs show until August 21.12 He further testi- fied that he believes that she did not tape public service interviews until' sometime in September. Inasmuch as Martin's testimony indicated some uncertainty on his part and Becker's uncontradicted testimony is that she was assigned interviews by Martinez , not Martin, I credit Becker that she began doing public affairs interviews in July. Respondent contends that Becker did not fit within the definition of announcer/operator in the collective-bar- gaining agreement, and that she has no community of in- terest with unit employees since she is not an air person- ality, and the type of work performed by Becker in con- nection with public service shows is relatively unimpor- tant in a music station, except for FCC license require- ments."' I find this argument impersuasive . As noted 5 Her voice was on the air during the London and Engelman show for a total of about 2 to 3 minutes every 2 days until mid-July and thereafter 3 to 5 minutes every 2 days. 6 A live tag is, local information regarding a product or sale of a prod- uct which is given at the end of a recorded commercial. T This involved changing the ribbon and the paper. This involved cleaning the head. when these interviews were used on the air, only the responses from the interviews were , used Becker's questions were not aired. 10 Becker testified that actualities refer to sound. Carting actualities in- volved taping sound from recorded interviews or other prerecorded sources on cartridges so as to be readily available for the newscast. 11 The public affairs program is a 3-hour block of prerecorded inter- views; only one-half hour segment is produced in-house. 12 According to Martin, Becker also began doing a top-30 program on August 21. Prior to that, De Santis did the public affairs shows and Shelly Lee did the top-30 show. The public affairs shows require only engineering, that is, playing the records, placing cartridges in the ma- chine, pressing the buttons, and maintaining program and engineering logs. No live voice is used during the program. The top-30 show re- quires, in addition to engineering the show, reading the weather, making public service announcements, and doing live tags. 18 FCC requires all stations to devote a certain amount of air time to public affairs programs. above, one's status as an air personality is not determina- tive of unit placement. Becker performed the operator or technician function set forth in the definition of announcer/operator in the collective bargaining agree- ment. She also ripped and sorted copy and did live and recorded commercials, both of which are announcing and production functions enumerated in the agreement as duties of an announcer/operator.14 All these are duties also performed by employees whose unit inclusion is undisputed. Further, Becker per- formed these technician duties for a full air shift 5 days a week-which constitutes half of her workweek; and it is undisputed that her predecessor as an engineer on the London and Engelman show was in the unit. Also, she works under the general supervision of the program manager as" do the unit employees and it appears that an employee who performs the duties performed by Becker can reasonably expect an opportunity to advance to a position as disc jockey or announcer.15 In all the circum- stances I find that Becker has a community of interest with unit employees and should be included within the unit. 2. Pat Garrett Garrett began his employment with Respondent on May 26. He performed a 4-hour air shift 6 days a week. On June 24, at a staff meeting, Martin announced to the staff that Garrett was the new assistant program director. According to Becker's uncontradicted testimony, Martin said that as assistant program director Garrett had been very instrumental in helping with the format change and that if anyone had any important questions, and Garrett was not around, they should inform Garrett of the prob- lem and he would assume responsibility . This announce- ment was confirmed in a July 13 memo from Martin to the staff announcing certain departmental appointments which states, as to Garrett: I would first like to officially announce that Pat Garrett is the Assistant Program Director of K- WEST. Pat is my direct assistant and will handle any and all programming matters in my absence. Also, anything that comes from Pat is as good as coming directly from me. Martin testified that he and Garrett have daily pro- gramming meetings. According to him, he arrives at work each morning with tape-recorded notations of things he wants changed or done that day. Garrett is the key person with whom he discusses these items. Martin further testified that programming refers to all of the things related to the operation of the station from music to promotion to the public service shows to the work habits of the staff. For example, if coffee was being spilled in the control board or a disc jockey's lock box was overloaded, this would be discussed and either Martin would speak to the employee or he would in- struct Garrett to do so. 14 Medme testified that recording commercials and interviews are pro- duction functions customarily performed by announcer/operators. 15 Elizabeth Salazar Lenhart advanced in this manner. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus Martin admits that Garrett issued instructions to employees. Furthermore Becker testified that Garrett in- structed her how the control board should be operated on the London and Engelman show. On one, occasion he told her she was overplaying a promotion and that she should try to arrange it so that the promotion played only once during the show or once every other show. Also, when Becker needed verification of her employ- ment with Respondent in order to gain admittance to Dodger Stadium in the performance of her duties, Gar- rett provided her with the required verification. I also note that when Becker inquired whether there had been an evaluation of her work in the news department, he was able to immediately inform her that there had been no evaluation. Also, he was present during the discipli- nary interview which resulted in Becker being placed on probation. In view of Garrett's authority to handle all program- ming matters in Martin's absence, the announcement to employees that Garrett had authority to assume responsi- bility for resolving their problems, and that any orders from Garrett had the same authority as if issued by Martin, his actual issuance of instructions, his daily pro- gramming meetings with Martin , which covered all as- pects of programming including employee work habits and performance, and his presence during the Becker dis- ciplinary interview, I find that Garrett is a supervisor within the meaning of the Act. Accordingly, I find that he should be excluded from the unit. 3. Rick Jager The General Counsel contends that Jager is a supervi- sor within the meaning of the Act. Jager has been Re- spondent's news director since July 13. As such, his function is to "handle all news related affairs."16 Martin testified that Jager began his employment with Respond- ent around the first week in June . He made two 5-minute newscasts each hour between 6 and 9 a.m. and made an- other newscast prior to noon. 117 Initially, until the format changed, he also did an air shift as a disc jockey 6 to 7 days a week. After the format changed his on-air duties consisted strictly of doing ' the morning newscasts. For the remainder of his workday he functioned in his capac- ity as news director. Jager did not testify and Martin did not testify as to what his duties as news director entailed. The only testi- mony in this regard is from Becker, who worked in the news department for about 4 hours daily under the tute- lage and/or direction of Jager. According to her, his job duties as she observed them were to write the news copy for, and,to anchor, his newscasts. Concerning her work relationship with Jager, Becker testified that when she commenced working for Re- spondent as a paid employee, she was under the direct supervision of Jager.18 Initially he instructed her what 16 This description of his function is from Martin's July 13 memo. 17 Becker testified that the newscasts were between 6 and 10 am. and at noon 18 Apparently, this was also true when she worked as an unpaid intern According to Becker, Jager told her he had recommended to Martin that she be hired as his assistant. Martin was not questioned in this regard he wanted her, to do and how she should do it. Thereaf- ter, Becker testified when she reported to work in the news department each day, she had a certain routine that she followed, she knew what to do unless Jager instruct- ed her otherwise. If there was nothing to do, she went to Jager and asked him what she should do. Sometimes when she was doing one thing Jager would instruct her to stop and do something else. For example, once, when she was typing cards for the telephone file, he told her that there were far more important things she should be doing such as cleaning carts (8-track tapes), or ripping wire copy, that she should save the telephone file for a, super-slow time. On two or three occasions Becker asked Jager for per- mission to leave early which he granted. She had no reg- ularly scheduled break or lunch period . On occasion she would ask Jager if she could take a break . Sometimes he gave his permission, other times he refused . Becker fur- ther testified that when the other staff members asked her to tape commercials or public affairs shows, she had to seek Jager's permission. According to her, once, when she merely informed him that she would be in produc- tion doing a commercial if he needed her, he asked if she had done all her work. She said she had , a couple of interviews that she might be able to do after she did the commercial. Jager told her she had to do the interviews first and any work concerning the news department before she did any commercial or any other obligations she had gotten herself into. " Further, she testified that both Martin and Garrett in- formed her that Jager was her supervisor. Thus, in mid- July, after Jager was appointed news director, Martin asked her how everything was working out in the news department and if there were any problems. Becker said no, everything was going well. Martin said, "Remember, Rick is your news director, and should there be prob- lems, consult him and make sure he is well aware of any- thing that should - arise. That is why I have made him your news director. He is your supervisor if there is any question you may have concerning anything direct it toward Rick." Becker also testified that in early September she asked Garrett if- Jager would be evaluating her. She said she felt he was unhappy about something she was doing and asked if Jager had mentioned anything to Garrett or Martin. Garrett said they had not evaluated her as far as Jager was concerned but he would look into it. A day or two later, Garrett told Becker, "By the way, I spoke to Rick and there seems to be no problem. When you have questions, you should just go directly to him. He is your supervisor, and he should be able to deal with you if you have a problem in the news department, but he said that there is nothing wrong, so I don't think you have reason to worry." Thereafter, according to Becker, on September 25 she had a conference with Martin, Garrett, and Jager in' Martin's office. Martin told her that they wanted to speak to her about something important concerning her job; that, according to Jager, she had not taken job re- sponsibility as well as Jager wanted her to , especially in the street interviews. Becker explained her difficulties KBMS, INC. with street interviews . Whereupon Martin said, "No matter what the circumstance is, I made Rick Jager our News Director and your supervisor, and whatever he tells you to do you never question, and if you have a question, you come to me if it gets out of his control, but don't ever deny any type of duty that Rick gives you to do. I made him your boss, because that is his job, to in- struct you as to what you are supposed to do . Your atti- tude is not up to par. I don't understand what is happen- ing, because you have always been so agreeable and easy to work with." Becker asked why Jager had not said anything to her regarding this. Jager said it was getting out of hand, and he needed hell) dealing with it, which was why he brought it to Martin's attention. Jager fur- ther said it was obvious that Becker was not happy in the news department , that during the morning show she was happy to perform any duties London and Engelman wanted her to perform, but her attitude changed when she came into the news department and she was difficult to instruct, mainly concerning street interviews. At the conclusion of the conference , Martin told Becker that she was being placed on a 30-day probation, at the end of which they would have another conference to deter- mine if her attitude had improved. Concerning specific instructions and directions about her job duties given her by Jager, Becker testified that he instructed her to maintain a card file of telephone numbers. Shortly after she was hired , he instructed her that it was her responsibility to make sure the carts and cart machines were cleaned properly, that the labels were wiped off, and that the reel-to-reel tape on which she taped the audio feed was cleaned daily. He instructed her about his preferred system for labeling carts and how to improve the quality of the carts taped by her.19 In early June Jager used a number of carts during his news- casts which had to be changed while he was on the air. At some point, upon Becker's suggestion, she began changing the carts for him. Becker testified that it was her responsibility to pro- vide each disc jockey with an updated weather report and each morning Jager would check with her to make sure she had typed up all the weather reports. Once Summers complained that he had not received an updat- ed report. Becker said it was because the last time she placed one in his box there was a stack of unused reports still in the box and she had noticed that he wrote his own so there was no point in her writing him a report. Jager said, "Pat, don't question it. I have ' told you to provide all disc jockeys with weather . It is your duty to do that, and I don't care what reason you give , whether they use it or not. From now on, make sure everyone gets a weather forecast." Jager instituted a new system for sorting news copy and instructed Becker that as she ripped wire service news copy, she was to sort it into the new categories de- termined by him. He also instructed her to bring to his attention the wire service schedule of sound, referred to as the billboard, so he could show her what items to tape is At was Becker's responsibility to record onto carts , from the various audio sources, any items that Jager determined would be played on the air. 831 for his newscast. This was in early June when she was an intern and he had not been appointed news director. At some point, he instructed her to ignore a particular audio service which did not provide a billboard and to concentrate on the UPI audio. Both in early June and after he became news director, he instructed her in the techniques of conducting telephone interviews . He also told her when it was time to update street interviews and instructed her to submit to him for review questions to be used in these interviews . Jager would decide what questions should be used, Becker would conduct the interviews on the street. She would then edit them and play them back for Jager and Jager would "voice" the questions so that, on the air, it was his voice, not Beck- er's, asking the questions. It was upon Jager's instructions that Becker was re- sponsible for changing the ribbon and paper on the wire service teletype machines and for making sure that Jager had the commercials and live tag copy that he used on the air.2° Jager also, assigned her the responsibility of in- structing the interns about certain duties, initially ripping and sorting news copy , and observing her conduct street interviews. Later she was to show them how to tape ac- tualities and conduct telephone interviews: He said that basically Becker would supervise the interns. When ap- plicants for intern positions in the news department tele- phoned, they were referred to Jager and, on at least one occasion, he spoke to an applicant in person. There is no evidence as to the content of these conversations. The record does not support the General Counsel's contention that Jager possesses indicia of supervisory au- thority. There is no evidence that anyone other than Martin and Sullivan have the authority to hire and fire employees. The evidence is insufficient to establish that Jager had the authority to discipline Becker or to adjust her grievances or to effectively recommend such. On the occasion when he perceived some problem with Becker's work attitude, he merely brought it to the attention of Martin, with no attempt on his part to directly counsel Becker. Similarly, the evidence is insufficient to establish that Martin, in placing Becker on probation, relied on Jager's recommendation. The unit is small-11 persons if Jager is included-and both Sullivan and Martin regular- ly monitor the work performance of unit employees, and counsel them as to any deficiencies. The only indicia of supervisory authority which is at issue is the extent to which he directed her work. How- ever, the fact that Jager issued instructions to Becker and that she was expected to follow such orders is not deter- minative of his supervisory status. Rather that determina- tion depends on the nature of the direction that he was authorized to give. I conclude that their relationship was that of an experienced or skilled employee toward an un- skilled or inexperienced one. Becker was assigned to assist Jager in the off-air functions incident to preparing for and making his newscast . Much of this was routine technical assistance which she could do without direc- tion once he had trained her to perform the functions. 2 O Martin testified that Jager did not do commercials and live tags. However, this is part of the work of a disc jockey and Jager had an air shift as disc jockey prior to the format change 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD What did require direction was her assistance in news gathering.21 However, it is apparent that the direction required was in the nature of determining what news items would be included in Jager's newscasts, and the priorities to be accorded. In these circumstances, I find that Jager's direction of Becker was routine and techni- cal in nature and that both Jager and Becker were under the direct supervision of Martin. Accordingly, I find that Jager is not a supervisor within the meaning of the Act and that he should be included in the unit. C. Conversations Prior to August 11 Regarding Employees' Union Activities Becker testified about several conversations with Martin and Jager, some of which are alleged as viola- tions of Section 8(a)(1) of the Act. According to Becker, a notice was posted at the station regarding a union meeting with unit employees scheduled for August 3. Becker asked Jager for permission to leave work to go to the meeting with Summers, which he granted. On August 3, in Jager's presence, Martin asked Becker to come to his office after the meeting to report what had been discovered at the meeting. Becker testified that after the union meeting she and Summers went directly to Martin's office. Martin said, "So, tell me what was said. What did you discuss at the meeting?" Summers said, "There seems to be a question about part-timers and the scale that we are entitled to. We discussed insurance coverage by AFTRA as com- pared to the one provided. We discussed members; who of the on-air staff-who was on the on-air staff. [Medine] asked us to name who we could name." Martin said, "That is like AFTRA, They have no idea who works at the station." Becker said, "What is like AFTRA?" Martin said, "Talk to the people around you, AFTRA is not what it is cracked up to be. The benefits we can pro- vide for you, although right now we have just spent a lot of money converting the station, can almost match AFTRA and be just as well." Becker said, "I never knew that, I always believed that AFTRA was a good Union and a good, career move; I am confused." Martin said, "Well, the contract is almost up and there is going to have to be further dis- cussion on this, but if you ask the people around you, I'm sure you can get an idea what type of union AFTRA is." Summers said, "By the way, I would like to be the Shop Steward and represent KWST, if that is all right. Frank and Pat didn't seem to be interested." Martin said, "Fine. If you would like, you can be the shop steward. If there is,any other calling for meetings, Scott, let me know." Martin further said, "There will probably be a meeting soon because I am sure Century will send their lawyers out to renegotiate, if that, a new contract. I will let you know when the meeting will be." After Summers mentioned part-time pay, according to Becker, Martin asked what made one eligible as a part- 21 Medine testified that news gathering is any manner of obtaining the news from interviewing with tape recorder, in person or by telephone, getting actualities, ripping and reading wire service news copy and other news service reports, listening to police scanners for traffic information, etc timer, and there was some discussion in that regard be- tween Summers and Martin. Martin mentioned the ex- pense of converting the station and said that further down the line, when Respondent started making profits, the part-timers would be able to make a good sum of money, but that right then he could not pay the AFTRA scale for part-timers, that the Century lawyers were coming out from St. Louis to negotiate, and that soon the part-timers would get benefits equal to or in excess of what AFTRA offered.22 Summers did not testify. Martin denies that he had any conversation with Becker prior to August 12 in which AFTRA was discussed. Further, he specifically denies asking either Becker or Summers to report to him; or re- ceiving a report from them, what was said during union meetings or meetings with- Levine; or even knowing whether they had attended any union meetings; or seeing a ' notice that a union meeting was scheduled. He also denies the specific statements attributed to him by Becker and denies that he discussed with Becker and Summers the subjects which Becker claims were dis- cussed. Later that day, according to Becker, Jager asked her what went on at the union meeting with Medine. Becker said, "We discussed the pay rate for part-timers, the dif- ferences of insurance plans, which I was confused on, and Chuck said to ask other people's opinions about AFTRA. Why?" Jager said, "Well, most of the people of the new format that have dealt with AFTRA have not always had positive dealings." However, he further said that he could not really advise Becker on AFTRA be- cause he was part of management. Becker said she had just joined AFTRA, that she had always thought that it was the right thing to do, but perhaps she should have gotten more feedback before she paid her membership money because there was something coming up about the contract. Jager said, "I can't really talk to you or advise you, but if you ask other people, ,you can see their negative feelings, also." Becker also testified that 2 or 3 days later she and Jager were in the news department discussing and laugh- ing about Summers and his eagerness to become union- shop steward, and to generally appear important, when Martin walked in and asked why they were laughing. Becker said they were speaking of Summers becoming shop steward. Martin said, "That reminds me, we will be having a staff meeting concerning AFTRA shortly, I will let you know the date." Martin walked out at this point. About 2 days later, according to Becker, she went into the newsroom, told Jager that London and Engelman had just told her there was a possibility that she might be let go if she persisted in this AFTRA matter, and asked if that were true. Jager said, "I've told you I can't advise you on this matter, you are going to have to talk to Martin as soon as you can." Becker further testified that on August 10 she had an- other conversation with Martin in his office. According to her, Martin said, "Patty, I understand that you have 22 This version of the conversation is from Becker's testimony KBMS, INC. been asking different people about AFTRA. I understand that you are confused on this matter, and I would like to help you with it." Becker said, "Chuck, I am very con- fused as to what position I should take on the Union. I have personally always felt or understood from other media members that the Union is a very beneficial thing to a career in this business. I have just completed paying my membership in full with the first $ 300 I made at this station. That is the urgency I had to join the Union, and now, it doesn't look like it is the best thing I should have done. I have had very negative feedback from other people that I have talked with at the station , on-air mem- bers, 'and I don't know what to do." Martin said, "I am sorry that you couldn't have found out more about the Union prior to joining. You have to understand my posi- tion right now. We have just spent a lot of money con- verting the equipment. We are tuurning this station into a profit-making, super radio power. You are a part of this station, we are happy with your work. I have spoken to London and Engelman and they have no complaints. Your board work is improving tremendously. There is not much more we could ask of you. But-I am going to have to tell you that if you insist upon this AFTRA and the scale, I can't pay you that, and I would have to let you go. Do you understand where I am coming from?" Becker said, "Chuck, above anything, my job comes first. If there is any question about my employment here, I put that above anything else. I am disappointed I have just spent so much money to join this Union that I hear is so great, and now it has come to this." Martin said, "Well, we will be having another meeting, a staff meet- ing, to discuss the future of AFTRA here. At that time, I will inform you when it will be. I will do what I can. Maybe there is a possibility I could get you' the $300 membership fee that you paid. I can't promise you that, but I will speak to Tim Sullivan about it. It is a shame you had to spend so much money, but this is just the way it is going to happen." Becker said, "I guess I have no choice. I choose my job." Martin asked what other opinions she had heard. She mentioned that she had spoken with some of the people, but most of them could not help her because they were management. However, Bobby Ocean had told her he really had bad dealings with AFTRA, and he' did not recommend them, that sometimes in one's career one could make just as much or better benefits than AFTRA could offer, Martin said, "That is right. When we start making profits, I am sure you will be able to share them, and you will be happy, so don't worry." Martin then said, "Would you be opposed to working possibly a sixth day? We could try to get you more money somehow that way, if you are not opposed to it." I told him that I needed the money and that I would get the details on that. It would probably be running the morning top 30 program, operating it as a board operator. I will look into that for you and I will let you know the details of that, and I will try to help you out with this." Becker thanked him.23 23 This version of the conversation is from the testimony of Becker. 833 Martin denies any knowledge, prior to August 12, that Becker was a member of the Union and testified that the only conversations he ever had with her in which the Union was mentioned were on August 12 following the meeting and a followup conversation on August 14. Ac- cording to him, on August 12, Becker came into his office and said, "I have joined AFTRA and spent $300 to join. It was a mistake that I did that . I could have used that money for better things, like tires on my car and brakes on my car. Had I known this was not going to be an AFTRA station, I would not have wasted my money." She then asked if there was anything Martin could do to get her money back . Martin said he did not think so but he would discuss it with Sullivan and get back to her in a couple of days. Martin testified that he did talk to Sullivan who told him it was not Respondent's responsibility to recover Becker's payments to the Union . On August 14 he called Becker into his office. At this time he told her "Patty, I have spoken with Tim regarding the reimbursement of your initiation fee. And as I said, there wasn't much hope that we could get it for you. There 's nothing that I can do." Becker said, "That's a shame because, as I said, I really need that money desperately. My car is on its last legs." Martin said the station was expanding and if it would make anything better for her and if she was inter- ested in working a sixth day at overtime, with additional duties, there was a chance that he could give her more work. Becker said she would like that. Martin said he would get back to her if it were possible. Martin further testified that about the third week in August he assigned Becker to, the weekly top-30 show which aired on the weekend. D. The Withdrawal of Recognition Contract negotiations began, as scheduled, on August 11. Present for the Respondent was Tockman . Present for the Union were Medine and three unit employees- China Smith, Frank De Santis, and Scott Summers.24 The Union submitted written proposals for modifications of the 1980-1981 contract. It is undisputed that Medine suggested that they review the list of proposals, so that Tockman could seek any clarifications necessary, and they did proceed in this matter. According to Medine, prior to commencing the discus- sion of the Union's proposals, he told Tockman he wanted to discuss an item concerning employee Pat Becker that was a grievance rather than a contract pro- posal. Medine then proceeded to state that 'Becker was listed on Respondent's schedule as a newsperson, was on the air, gave reports and did union-covered duties, but was not paid the Union's minimum scale. Medine said it was the Union's position that Becker should be 'paid union scale for her union-covered duties. Tockman' said he would check on it, but it was his understanding' that Becker was an intern, and it might present a problem. Medine said it was something that should 'be resolved. 24 China Smith and Scott Summers are the air names used respectively by Thomas Rorabacher and Bruce Johnston. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With few exceptions Tockman's testimony was sub- stantially the same. He denied that he said it was his un- derstanding that Becker was an intern, not an employee. According to him, at the time he had not heard that term. Further, contrary to Medine's testimony, he defi- nitely recalls that the discussion about Becker was "just prior to the break, not prior to the commencement of ne- gotiations." Tockman and Medine agree that they proceeded with Medine going down the Union's proposals and explaining them. Medine asked if Tockman had questions or re- quired further clarification. According to Tockman, he informed Medine of the change in format and on-air per- sonnel. Medine said the Union was aware of most of the changes, that Summers had recently been appointed union steward, and China Smith was a long-time employ- ee of the station.25 They proceeded to go over the Union's proposals. Concerning the proposal that sexual preference, physical handicap, and marital status be added to the nondiscrim- ination provision, Medine testified that Tockman in- quired if that would require hiring deaf-mute announcers. Medine said the only requirements were those covered by the State guidelines on discrimination. Although the written proposals refer to sexual preference, according to Medine, some reference was also made to affectional preference. Medine said he thought it was fairly obvious what was meant by sexual preferendce, but he could not explain exactly what was meant by affectional prefer- ence; that this was the language of the National Union Committee which he was ordered to include in the Union's proposal. Tockman denies that Medine said that the National Union had directed that affectional preference be includ- ed in the Union's proposal for the nondiscrimination pro- vision. According to Tockman affectional preference was added in the negotiations of previous years. According to him, Medine said that he felt the marital status provi- sion was important to the staff and that the National Union had directed that both provisions be included in the Union's proposals. Medine recalls no comments regarding the proposed 8- 1/2 percent increase in pension and welfare contribu- tions. According to Tockman, he asked if the proposed increase' in pension and welfare contributions were to maintain the present level of benefits or to provide for an increases level. Medine said he would have to check and asked if Tockman wanted the information immediately. Tockman replied, immediately. Medine left the room and returned shortly thereafter with a booklet describing the pension and welfare plan. Tockman said that was just a summary, that he needed the documents and financial in- formation. Medine did not have it. Tockman asked if other stations in the area were paying the increased con- tributions that the Union was requesting. Medine said some were and some were not, but all were making con- tributions higher than Respondent. He then told Tock- man the specific percentage increase that certain stations 25 Frank De Santis and China Smith were the only announcers in Re- spondent's employ immediately prior to the change in management who were retained after the new format went into effect and networks were paying but did not include any sta- tion of comparable size to Respondent. According to Tockman, he further said Respondent discontinued its payment of pension and welfare contri- butions when the contract expired. Medine said he was not aware of that. Tockman said that however things worked out, the employees would be covered; that if they did not have a contract, Respondent was going to provide coverage for the on-air staff through the Centu- ry plan which presently covered Respondent's nonunit employees; and if they did have a contract, Respondent proposed it not require contributions to the union pen- sion and welfare plan, but rather that it provide coverage under the Century insurance plan. He said that so far as he knew the Century plan was comparable to the Union's health plan.26 Medine testified that he does not recall that Tockman said he wanted to modify the contract by changing from the union pension and welfare plan to the Century insur- ance plan. He does agree that Tockman requested that Medine immediately provide him copies of the docu- ments describing the health and pension plans, where- upon Medine left the meeting,27 and returned with the requested information. Medine and Tockman agree that concerning the final proposal, which would restrict the number of part-time announcers to 2 and limit the use of part-time announc- ers to two specified consecutive days each week, except for sick relief and other emergencies, Tockman requested more precise information about what the proposal meant. Medine said Oliver had actually drafted the proposal; what was intended was to eliminate the practice of em- ployers using part-time employees 5 days a week for the same number of hours worked by full-time employees, but at a pay rate substantially less than full-time pay. Medine testified that he also said that he and Oliver had met with the staff. Tockman testified that Medine said that he felt that Respondent was using part-time an- nouncers to fill scheduled 4- or 5-hour shifts as opposed to using them for relief. Tockman inquired to whom he was referring. Either Medine or Smith said there were persons working weekend air shifts who were not union people.28 Tockman asked who these people were. Smith said Chris Kelly and Hurricane.29 Medine said he did not know either of them. The employees present, especially Smith and De Santis, then began discussing the proposed change. Ac- cording to Medine, Smith, who had not attended any of the prenegotiation meetings the Union had with the unit employees, said he was not sure that he liked that pro- posal because he worked a 6-day week and thought he would never have a chance to work a 5-day week if such a restriction was placed on the use of part-time em- ployees. Medine testified that he said he and the employ- ees would have to caucus and later explain more fully what the proposal meant. Tockman testified that he sug- 2s The Century plan does not include pension coverage 27 The negotiation session was in the union offices 28 The contract contains a union-security clause. 29 De Santis was also a part-time announcer. KBMS, INC. gested that Medine and the staff should reach and agree- ment on what they wanted to,propose. Medine, Smith, and De Santis left for a caucus. When they returned, they had deleted the portion of the pro- posal which restricted Respondent to no more than two part-time announcers. Tockman testified that after some further comments by Smith and De Santis, he said he could not intelligently respond to the proposal if no one knew what the proposal was. Medine said there were a number of items that Oliver had prepared with the staff, which was why he could not explain some of them in detail, but Oliver and the staff30 had discussed it. Tock- man asked if Oliver was available either in person or by telephone. Medine said he did not know, but he would check. At some point Medine asked if Tockman would consider extending the contract.'As Tockman understood it, the extension would be until Oliver or someone knowledgeable about the proposal was available. Tock- man refused. Tockman further testified that following the caucus, Medine told him what portion of the proposal was being deleted and gave some explanation which Tockman does not recall, but which left him uncertain as to the mean- ing of the modified proposal . He denies that Medine said he had discussed the proposal with the staff and although he admits that, prior to the deletion of a portion of the proposal, De Santis said it was the intent of the proposal to prevent the use of part-time employees on a full-time shift without the benefit of the contract provisions for full-time employees, he denies hat anyone explained what the intent of the changed proposal was. Tockman testified that he inquired concerning the reason for the proposal to delete the layoff provision from the contract. Medine said he was not sure, that Oliver had written the proposal, but he would check on it. Tockman then responded to the Union's proposal. Ac- cording to Medine, Tockman said that based on his knowledge of the station and what the announcers had told him, the Union was out of touch with what was going on at the station. As an indication of being out of touch, Tockman said the Union could not even get to- gether an intelligible proposal on part-time announcing and did not even'know who was working at the station. Tockman further said all of the announcers except three had indicated dissatisfaction with the Union and that-Re- spondent's impression was that the announcers no longer wished to be represented by the Union. Medine,asked Tockman what ' he meant. Tockman said, "We are with- drawing recognition. I am not going to bargain." Tock- man also said it was Respondent's position that the Union could not fulfill its contractual warranty of repre- sentation. 31 Medine asserted that the Union still 'repre- sented Respondent's employees, said the union represent- atives would have to caucus, and they left. 30 Apparently the reference to "stafr' means Respondent's on-air staff 31 The expired 1980-1981 contract provides, rater aha: 2. Warranty ofRepresentation AFTRA warrants, represents and agrees that it represents for col- lective bargaining purposes the majority of the Announcer/- Operators employed by the Company. 835 Tockman testified in far greater detail about this por- tion of the meeting. According to him, following the dis- cussion of the Union's proposals, he said he had met that morning with unit employees London and Ron Engel- man on an unrelated matter, that both London and En- gelman said they had a problem obtaining severance pay from their former employer and had volunteered to him that each of them was thoroughly disgusted with the Union and wanted no part of the Union at KWST. Tockman said it was his understanding that a majority of the staff felt the same. Tockman further said that the dis- satisfactions with the Union at the station, the failure of the Union to do anything for the unit employees, the lack of knowledge about who was employed or who would be hurt by their proposals made him, as the asso- ciate general counsel for Century, decide `jointly with Sullivan that they had no choice other than to withdraw recognition from the Union, and he was doing so at that time. Tockman testified that` Medine asked what he meant. He replied that he meant that Respondent would no longer recognize the Union or its claim to represent Re- spondent's employees. Tockman said this decision had been reached because of what had been said to him by London and Engelman, what he had seen over the years as far as the Union was concerned in presenting propos- als, and , the proposals he had listened to that day. He said the proposals were a travesty, they had nothing to do with KWST, what the people were doing, and made no sense whatever. He then referred specifically to the marital status proposal, which he said made no sense, he did not understand, and to which he was going to object. Tockman further said that half of the proposals were going to hurt the employees who were participating in the negotiation session and that they had said so. In this regard, he specifically mentioned the loss of employment by part-time employees. According to Tockman, Medine said he was shocked, that he was not sure what, Tockman meant, and asked him to explain it again. Tockman said that because of what Respondent felt was a lack of support by a majori- ty of the employees, Respondent was withdrawing rec- ognition. Medine said, "Does this mean you are not going to bargain with us in good faith?" Tockman said, "This means we will not'and cannot bargain with you at all because we are' withdrawing recognition from the Union, we cannot continue to deal with you if you do not represent a majority of the people." Medine' said he wanted to write down all of the reasons for the with- drawal. Tockman repeated the reasons. De Santis asked Tockman what he said about the majority not wanting the Union. Tockman' said management was of the opin- ion that the majority of employees who did on-air shifts did not want the Union at KWST. De Santis asked what was wrong with a minority union. Medine told him they would discuss that privately. At Medine's request, Tock- man agreed to wait while the- union representatives cau- cused. Medine testified that during the break, between the morning and afternoon meetings, ' Smith and De Santis telephoned several unit 'employees, in his presence, to 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find out what was going on ,in regard to Tockman's claim that the employees did not wish to be represented by the Union. Of those contacted, some said they were dissatisfied and some said it did not make any difference to them whether the Union represented the employees. Although Medine testified on direct examination that they only telephoned two or three employees, on cross- examination he testified that Smith did most of the call- ing, and De Santis telephoned one or more employees. Neither Smith nor De Santis testified. Tockman testified that there was no morning meeting on August 11. According to him, the first session started about 2 p.m., and Smith arrived about a half hour later. This session continued until about 3:35 p.m. when Medine requested a caucus following the withdrawal of recognition. They resumed the meeting about 5:15 p.m. According to Tockman, during this break when he went into the AFTRA offices looking for coffee, he saw Smith and asked, where was everyone, what was going on. Smith said Allen Davis32 and Medine were meeting and trying to reach Oliver; and that he and the other em- ployees present at the negotiations had been calling the station to speak to the jocks.33 Tockman asked why. Smith said they wanted to find out if what Tockman had said was true. Tockman asked, "Is it or isn't it?" Smith said, "We checked, and you are right. I am surprised as hell." Tockman denied that Smith told him that they had contacted only three, or only a few, of the announcers and that all of them had not expressed dissatisfaction with the Union. When the meeting resumed, Davis was also present. Much of what was said at this point is undisputed and Tockman's testimony is in substantial accord with Me- dic's that Davis asked if he understood correctly that Respondent was withdrawing recognition from, and did not wish to bargain with, the Union. Tockman said, "Yes, it's our position that AFTRA is out of touch with the station, that all but three of the announcers have ex- pressed dissatisfaction with the Union and don't feel that the Union does anything for them. You only collect dues. You don't even know who the people are at the station."34 Davis said the Union had been trying to meet and negotiate in a timely fashion for months but the Re- spondent had not been able to send a representative until after the contract expired. Tockman said that was not part of Respondent's position and acknowledged that the delay had been due to his personal problems. Davis said it-was the Union's position that it presently represented the announcers and it wished to sit down and bargain for a contract. Tockman said it was Respondent's position that the announcers no longer wanted the Union to rep- resent them. At some point, Davis asked, "Are you re- fusing to bargain with us?" and Tockman replied, "yes." Tockman also testified that Davis said, "[Medine] went over with me what you are saying, but there has been a lot of turnover at the Station and a lot of people, are paid more money, and we still claim to represent them, and 32 Davis was the executive secretary of the Union. Although he had been subpoened by Respondent, he died prior to Respondent commenc- ing the presentation of its case. SS Announcers are sometimes called jocks. 34 This is from Medine's testimony. we want to bargain with you in good-faith. I know the Station had had some problems financially, and it is not doing well in the market, and maybe we can talk about extending the contract for some time, at least until Wayne gets back." Tockman -replied, "Allan, we pro- posed a contract extension a long time ago and were turned down. I sat in the meeting today and, in-my opin- ion, heard proposals that your staff employees don't un- derstand. We have had what we consider continual com- plaints,by air personalities about your union, and I don't think we have any choice. I just ran into China [Smith] and hour ago, and he confirmed that what I said is true, and I don't have any other choice." Medine and Tock- man agree that Davis requested that Tockman check to see if management would change its position. Tockman said he would do so, but he thought they were pretty firm on their position. Tockman further testified that he then said, "Allan, I don't think you have any real question that the majority of the people that are on the air at KWST don't want any part of your Union, but if you would rather avoid the kind of problem you are mentioning, I will agree that we have an election, run by someone both of us can agree upon, and that will settle the - matter." Davis said,"We have already had an election, and you and I both know why you -want to have one now . I suggest that you talk with your management people and make sure that what you are telling us is what they want to do." Tockman said he would check, but he thought the Union ought to consider an election, because they had talked about that when they first negotiated this agree- ment and had included the warranty of representation provision. Davis said, "Please check with your manage- ment and make certain they want to do what you have said you are going to do, because if they do, we are going to have to fight this thing here." Medine testified that about 7 p.m. Tockman tele- phoned him and said, "I've checked with my people here at the station and they are certain they want to continue in our position that we don't want to bargain with you." He then said, "Well, I guess I'll either see you in court or at the bargaining table." Tockman testified in substan- tial agreement with Medine, except that according to him, Medine was the one who said he would either see them at the bargaining table or in court. On August 12 Martin held a meeting in his office of the on-air staff. Becker was present, but, according to Martin, not invited. However, he did not ask her to leave. According to Becker Martin opened the meeting by saying, "I'm passing out-this memo to you. Take time to read it and understand it." Whereupon he distributed the following memo: TO: ON-AIR STAFF FROM: CHUCK MARTIN DATE: AUGUST 12, 1981 Over the last few weeks, the overwhelming ma- jority of you have repeatedly voiced dissatisfaction with and disinterest in AFTRA. Most of you, for whatever reasons each of you may have, have often KBMS, INC. stated to management-on your own-that you don't feel AFTRA has done anything for you and that you don't want AFTRA to represent you here at KWST. We have taken these comments seriously and have given them considerable thought. Your statements of dissatisfaction, coupled with what we found (at a meeting with AFTRA on August 111, 1981) was an almost complete lack of awareness of what we are doing here at KWST, led to our questioning AFTRA at' the August 11th meeting. We found that AFTRA (in our opinion) not only was out of touch with our operations, but unaware of many who are on the on-air staff as well as not aware of the status of other who are on-air. We also round, again, in our opinion, that a number of AFTRA's ;so-called "proposals" could not be un- derstood by those who proposed them and could not reasonably be thought to reflect the desires of the majority of our staff. For these reasons and on the ' basis of them, we concluded that AFTRA no longer represents a ma- jority of the on-air staff at KWST. We so informed AFTRA at the August 11th meeting and, at that meeting, withdrew recognition from AFTRA as representative here at KWST. This means, simply put, that KWST no longer recognizes AFTRA as bargaining representative here at KWST. Becker testified that, when the memo had been distrib- uted, Martin said, "It is apparent that most of you feel that AFTRA is detrimental. It has been proven in the past with 'most of you that they don't benefit your career, and that it is not a necessary union to have. Therefore, we have decided to no longer be represented or have our employees represented by AFTRA." He then asked, "Are there any comments?" Announcer Bobby Ocean35 said, "I think this is the best. With what has happened in the past, it is pretty wise to do this. AFTRA usually doesn't really know what is going on, and they have proved to be incompetent as far as I am concerned." Martin said, "They don't even know the names of all on our staff. How could they want to be our representative if they don't even know 'who they are rep- resenting?" According to Becker, Martin said, "The insurance plan is the same or almost better than AFTRA's, what they offer. We can' probably do" better.. It is not, a mistake to be a non-union shop. Century has other stations that are non-union shops, and they have done just as well, if not better, without AFTRA." Benny Martinezsc raised a question regarding the, ma- ternity coverage of the Century' insurance plan, stating that he was not sure what the current insurance plan covered and needed to know more about it. Martin said, "We will discuss that later." Pat Garrett87 said AFTRA really had not done that much in the past for his career, that it really was not a 35 Bobby Ocean is the air name used by Raymond Lenhart. 36' Benny Martinez is the air name used by Benny Aguayo. '37 Pat Garrett is the- air"name used by Mark Beauchamp. 837 necessary Union; it did not do much for you or care about you and rarely contracted you. Becker said she was confused on the issue of AFTRA, that she was led to believe they were a much better Union than they were, and her only regret was that she had paid out so much money, thinking that AFTRA would be good for her; she still felt a little confused about some of the cov- erage, but guessed it was best. Martin said that he would talk to Becker after, the meeting about Sundays, that it looked really good for her. He said he was not sure if he could recover the money, that he had not talked to Sullivan yet about the fee she paid, but that he would get around to it and let her know. Martin testified that he commenced the August 12 meeting, which lasted about 5 minutes, by saying, "Thank you for coming here today. I ,know this is incon- venient. I am handing you a memo. I want everyone to read it. And if you have any questions, please ask." He then gave a copy of the memo to everyone but Becker. According, to him, several of the employees made com- ments indicating their relief and/or pleasure at the with- drawal of recognition, however, with the exception of an ambiguous expletive uttered by Garrett, and Ocean's comment, "Well, it's about time," Martin could not recollect what these alleged comments were nor who made them. Martinez asked how this would affect insur- ance. Martin said they would be covered immediately, that he was passing out books and eligibility cards, which should be filled out and returned to him. Martinez inquired whether his wife's pregnancy would be covered and Martin told him he would receive maternity benefits under whatever insurance coverage he had at the time of conception. Martin denied saying that AFTRA was not necessary but testified that someone, whose identity he cannot recall, did make such a statement. He also denied saying, either at the meeting or to any employee at any time, that AFTRA did not know the identity of the on-air staff so how, could it claim to represent -them; that the Century insurance plan was the same or better than AFTRA's plan or in any way compared the two plans; or that it was not a mistake to be a nonunion announcer; or that Century had other nonunion stations that have done just as well, if not better, without AFTRA. On August 17 Medine sent Respondent a letter ad- dressed to Sullivan, with copies to Tockman and Davis, the body of which reads: According to our Pension & Welfare Records, the, last Pension and Welfare contribution reported by KWST, Inc., was through the period of June 30, 1981. This is to request, as pursuant to Section 10, Pages 7 and 8 of the 1980-1981 AFTRA-KWST- FM Contract for Announcers/Operators, the imme- diate payment of all appropriate Pension & Welfare contributions due AFTRA-covered persons who have been employed by your station since June 30, 1981. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tockman replied by letter dated August 31 addressed to Medine, the body of which reads: As you know, this office represents KWST-FM. Accordingly, this . will respond to your letters of August 17 concerning two persons newly employed at Radio Station KWST-FM and concerning Fund contributions on and after, June 30, 1981 with regard to newly employed persons including, but not limited to, the two persons mentioned in your separate letter of August 17. Although your letters confirm our position that the Los Angeles Local of AFTRA had no input from the staff at KWST-FM or any contact with that staff, they are also legally and factually insuffi- cient. First, and as you know, the contract terminat- ed before any of the persons about whom you ex- pressed concern, were employed for a statutorily prescribed period of time . Secondly, the contract expired prior to such employment and, under the applicable provisions of ERISA , no pension or wel- fare contributions are either due or, properly, can be made. Finally, contract expiration together with withdrawal of recognition effected on August 11, 1981 made your separate demands of August 17, 1981 moot. If you have any, questions or care to explain the basis of the separate demands of August 17 you made, please get in touch with me. E. The Alleged Independent 8(a)(1) Violations After August 11 Becker further testified that either that same day, or a. day or two later, she commented to Jager that it was a shame that she had to go through all of that and spend so much money for, something that she thought she be- lieved in. Jager said, "Well, you have talked to Chuck, and it is a question of your job . We can't pay you that money. We like you here, and I think,you like your job." Becker assured him that her job was the most important- thing. Jager said, "Well, then, there should be no ques- tion and there should be no regrets." Becker asked what would happen now, because she understood there was something about the contract being renegotiated. Jager said it was up to Century and their lawyers and that was about all he knew. Jager did not testify. F. Respondent's, Asserted Good-Faith Doubt of the Union 's Majority Both Sullivan and Tockman testified that on August 11 they made a joint decision to withdraw recognition from the Union . However, Tockman admits that the ulti- mate decision was his. According to him, he and Sulli- van discussed the potential of wihtdrawing recognition three to five times in June or July. Then, on August 10, Tockman had some conversation with Scott` Summers re- garding the Union, the contents to which are not re- vealed on the record ; and on ' the morning of August 11 he had the conversation with London and Engelman set forth above. On August 10 and 11 , prior to the negotia- tion session, Sullivan and Tockman discussed the state- ments regarding the Union that had been made to Martin, Sullivan, and Tockman by the various employ- ees. They discussed what they thought were the feelings of a majority of the on-air staff and the fact that the Union had never caused Respondent any problems. They then decided that if, in Tockman's opinion at the negotia- tion session, it was confirmed that the Union did not know what it was doing and did not represent a majority of the employees, recognition should be withdrawn. Tockman further testified that he came to the August 11 negotiation session prepared to listen to whatever AFTRA had to say and, if possible, to negotiate. By this, he testified, he meant that if the Union presented propos- als that he understood, if the Union assured him that it could , fulfill the warranty of representation, and if the Union knew who was employed and could speak on their behalf, he was prepared to negotiate with them. To this end, it was his intention to question the Union in these regards. Tockman further testified that his conclu- sion that AFTRA did not represent the -employees was based on its lack of knowledge about whom was work- ing at the station and about the interests and concerns of the on-air staff, the proposals that were ordered by the International Union, the proposed, deletion of the layoff proposal for which Medine could give no reason, and the lack of knowledge of what the on-air staff were doing or what they wanted. Concerning the expressions of dissatisfaction with the Union made by certain employees, Martin testified that he had approximately four such conversations with Hur- ricane, four with Kelly, seven with Garrett, three' with Jager, and five with Ocean. The only testimony about these conversations comes from Martin. According to him, his' first such conversation with Jager was in the first week in June, when he informed Jager that KWST was an AFTRA station and Jager would have to rein- state himself with the Union in order to work there. Jager said that was no problem since he was a member. Jager then asked if they .were part of KWST. Martin said yes, they were. Jager asked, "What in the hell are they doing in this radio station?" and said he did not have a "real good",feeling about AFTRA. When Martin asked why, Jager said, -"Well, they sure didn't do any-_ thing for me at KHJ and I paid them a lot of money to guarantee me very little . But that's no problem. I am a member." According to Martin, his second conversation with Jager was around the middle of June. Jager asked if Martin had read the KWST-AFTRA contract. Martin said yes. Jager said the contract was a joke and asked, "Do you mean to tell me that this is what my dues are going to go for?" Martin said, "Well, that 's the contract. Have you gotten in touch with Joe. Medine yet?" Jager jokingly said, "No, do, I have to?" Martin said, yes he had to, Around the first of July, Jager initiated another con- versation with Martin during which he told, Martin, "There are rumblings -beginning to stir about AFTRA. There's an awful lot of people pissed off." He specifical- ly referred to Ocean and Hurricane. Jager then said that Medine had called and asked him to be shop steward, but he had refused and told Medine the Union did not KBMS, INC. 839 have a clue as to what he did at KWST, that he would not be the steward, and he would not be anything for AFTRA. Jager said he did not know why they had to have AFTRA in a station like KWST, that he could see their presence in a Metromedia or Goldent West and RKO and ABC, but what were they doing at KWST. Martin said, "Well, they are representing KWST. Is there a problem?" Jager said, "I don't want them here."as Martin testified about four conversations with Chris Kelly. According to him, during the first conversation, he told Kelly that KWST was an AFTRA-represented radio station and that in order for him to perform an on- air function, he must be a member of AFTRA. Kelly asked what that involved. Martin said it involved joining the Union and gave him Medine's name and telephone number. Martin testified that during the second conversation, around the first week in July, Kelly told Martin the had received a copy of the union contract, that the contract guaranteed wages lower than he was receiving, and asked if he had to join the Union to be guaranteed lower wages. Martin said yes. Kelly said he found it ridiculous and asked if it was mandatory that he join. Martin said yes. Martin's third alleged conversation with Kelly was around the middle of July during a critique session con- cerning Kelly's on-air work. Kelly said, "I want you to know that I enjoy working on the air but if I say that I don't want to do the air shift anymore, will I still have my engineering duties?" Martin said, "I think that's a funny question. Why so you ask?" Kelly said, "I've never been a member of a union. ][ don't particularly care to start now. I enjoy being on the air but my first love is engineering, and if I have to become a member and pay all this money to be guaranteed money lower than what I am getting, I just want to know if it means that I have to come off the air." Martin said yes, it did. Martin's fourth conversation with Kelly was around the first week in August. Kelly said he had told Hurri- cane that he wanted to come off the air if he had to join the Union and Hurricane told hint he was facing a simi- lar situtation, but that Kelly did not need to worry about a thing because the Union was not going to be there. Kelly said, "It's not only Hurricane, it's everybody else I talk to." Then Kelly said, "Remember the last conversa- tion I had with you about wanting to come off the air if I had to be a member of AFTRA?" Martin said yes. Kelly said, "l[ renege on that statement." Martin asked why. Kelly replied, because AFTRA is not going to be here so it doesn't make any difference. Martin made no response. According to Martin, he also had four conversations with Hurricane. The first was around the first or second week in June when he told Hurricane that he would be utilizing him on the air and asked if he was a member of AFTRA. Hurricane said no. Martin said KWST was an 38 The only reference to Jager in Martin's prehearing affidavit is that Martin was in the control room with Ocean and some other people when Jager came in and said Medine had asked him to post a notice that Dona- hue was shop steward. AFTRA station and Hurricane would have to join AFTRA. Hurricane said he could not join AFTRA or any other union. Martin asked why not. Hurricane then related his father's experience as a striker in 1960 when his family almost lost their home because his father's union failed to fulfill its obligation and his father had to go into another profession as a fisherman. He further said his grandfather felt that unions were the cause of eco- nomic stress within the world and that he owed it to his father to not join a union and that Martin could not pos- sibly be serious about making him join the Union in Los Angeles. Martin said, "I'm not trying to make you join the Union. I'm just informing you that I'd like to use you on the air and in order for you to be on the air, you must be a member of AFTRA," and that the decision was one Hurricane had to make. Hurricane asked how long he had to contemplate the matter. Martin said he had 30 days to get in touch with-the Union. Hurricane said, "Let's leave it at that for now." Martin said fine. Martin's second conversation with Hurricane, accord- ing to him, was at approximately the end of June during a critique session. Hurricane said he really enjoyed being on the air, but his feelings had' not changed about joining AFTRA, and it would be a shame if he had to leave his job as an announcer because he had to join the Union. Martin said it would be a shame because one had to join the Union to work at KWST. Martin testified that his next conversation with Hurri- cane was around the middle of July during a music meet- ing. Hurricane said he had read a copy of the KWST- AFTRA contract, that he thought it was a real joke, and other employees felt the same way. He then asked why he had to join the Union if all the employees felt that way. Martin said Hurricane had to be a member of AFTRA in order to continue to work on the air at KWST. Martin them wrote down Medine's telephone number and gave it to Hurricane. Hurricane crumbled the number up in a ball,'threw it in the waste basket, and said, "As I told you before, I won't join this or any other union." Martin's fourth conversation with Hurricane was around the first week in August during a music meeting. Hurricane said, "I think I'll be on the air, that we won't have any more problems with this." Martin asked what did he mean? Hurricane said nobody wanted the Union in the radio station so he did not have to join the Union and it was no longer a problem. Martin made no re- sponse. Martin further testified that during every single conversation he had with Hurricane, Hurricane made re- marks to the effect that he would give up his air shift if he had to join the Union, about his father's experience, and his grandfather's philosophy. Martin testified about five conversations with Bobby Ocean prior to August 12. The first was around the last week in May on the telephone. Martin told Ocean that KWST was an AFTRA station and he had to be a member of AFTRA. Ocean said, "Don't tell me that I'm going to go through more bullshit with AFTRA to work at KWST." Martin asked why he thought he would have to "go through bullshit" to work at KWST. Whereupon Ocean related his experience at a previous 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place of employment when he was not paid for several months because he refused to be paid as an individual and AFTRA objected to him being paid through his cor- poration. He said things dragged on until he finally went to AFTRA's office and "made a big stink." Shortly thereafter he was "given the okay" to be paid through his corporation without him having to make benefit pay- ments. Martin asked, "Can you still call Joe Medine and walk into their office? Is it that serious?" Ocean said, "No, I'm a member. I still pay my dues. I have no prob- lem." Martin said, "Well, then, there is no problem." Ocean said he was sorry to hear that they were still in KWST. The second conversation with Ocean was around the end of June. Ocean said, "A lot of the guys are asking me my opinion of AFTRA and I just want you to know that I am leaving no holds barred , but I don't want to be labeled as a troublemaker to you. I am just going to speak the truth in my relationship with AFTRA." Ocean said he wanted Martin to know that those were his inten- tions, that what he was going to say about AFTRA were not good words. Around that same time, according to Martin, he had another conversation with Ocean. Ocean said, "More people are coming to me and asking me my opinion of KWST. And I hope you meant what you said, that I'm not going to lose my job here because I'm telling them exactly how I feel about AFTRA. I hope that I am not giong to run into any problems from AFTRA but I am speaking the truth." Martin made no response. Ocean said, "I'm telling them my story, and the run around they gave me at KHJ. And nobody can believe it's true. They think that I am lying. That's why I feel that some- body is going to label me as a trouble maker. No one would believe. Everyone said they can't believe that this really happened, that the union was supposed to be for us and that they wouldn't be helping you for tax advan- tage, and how could they have the right to do it? And I keep telling them, `I don't know, that's what they did, and this is what happened to me."' Martin further testified that around the latter half of July, Ocean was in the production room talking to either Frank De Santis or Chris Kelly. Martin came in and said, "What's all the yelling coming from in here?" Ocean said, "The secretary, barged in this door to give me this piece of paper with Medine's number on it and spoiled the commercial that we were cutting. And when are [they} ever going to leave us alone? I don't even return their telephone calls. What makes them think after 50 sheets like this that I haven't returned their calls yet, what makes them think I am even going to call them back? As far as I am concerned, I'll dropkick [them] off the fourth floor. I don't have the time of day. I don't want them here." - His next conversation with Ocean, according to Martin, was around the end of July or the first week in August. Martin told Ocean he had a million things for him to do that afternoon and Ocean replied, "You'd better , be nice to me or I'm going to attend the tea party." Martin asked what tea party . Ocean explained that AFTRA was having a meeting to be attended by KWST employees and a number of luminaries in the Los Angeles radio industry. Martin said, "You can go to the tea party if you want to." Ocean said, "Are you kidding. I wouldn't go anywhere near there. I think this is a joke what they are doing and it's further proven their incom- petence . . . that they would have to resort to coer- cion." Martin did not respond . 39 On cross-examination Martin was asked if any of the employees to whom he spoke about AFTRA stated that they wanted Respond- ent to do something to get rid of AFTRA. In response, Martin testified that he recalled Ocean and Pat Garrett using that terminology. As best he can recall, Ocean used that terminology more than once. It was in the con- versation where he said he felt he was slighted for not being one of the luminaries attending the revival meeting that Ocean asked him why he did not just get rid of the Union. According to Martin, he did not respond. Martin also testified that in his conversation with Ocean in the middle of July, Ocean also asked why he did not just get rid of AFTRA. Martin testified that prior to August 12 he had three conversations with Martinez regarding AFTRA. The first such conversation was in the first or second week in June when he reached agreement with Martinez to work at KWST. At this time, he asked Martinez if he was a member of AFTRA. Martinez said he was at his last em- ployment and asked if he had to join AFTRA. Martin said KWST was an AFTRA station and Martinez had to be a member of AFTRA to work here. Martinez said he did not think the people at AFTRA liked him very well, but he did not like them either. He then described how it had taken the Union a number of months to obtain sever- ance pay for him following his discharge by a previous employer, and that even though he was unemployed, he kept receiving statements from AFTRA regarding pay- ments. When he telephoned AFTRA and said he was not working, he was told, "It makes no difference. Get that money in here. Otherwise you cannot be cov- ered."40 Martin said he was sorry to hear all of that, 'but the fact remained that Respondent was an AFTRA-rep- resented station, and Martinez had to be a member in good standing in order to work there. 99 On cross-examination Martin first testified that Ocean said, "You'd better be nice to me. Otherwise I won't invite you to the tea party" Then, upon further questioning, he testified that Ocean said, "you'd better be nice to me or I will go to the tea party," and that Ocean did not say anything about mviting him to the tea party. Also , in his prehear- mg affidavit dated September 22, 1981, he stated, "On a numbers of occa- sions Bobby Ocean, another announcer, has made statements regarding the union. The statements were not made directly to me, but were made to whoever would listen .... Ocean had made comments such as they can kiss my ass, they screwed me at KHJ when I formed my corporation and AFTRA would not let me be paid through my corporation " Martin further testified on cross-examination that in all his conversations with Ocean, Ocean repeated in detail his experience with the union at KHJ. According to Martin, he listened each time because part of his job as pro- gram director is to listen to the on-air staff. He did not mention these conversations in his affidavit, he testified, because at the time he gave the affidavit he had 15 minutes in which to think about what was to be done, and no one ever asked him to relate the conversation in detail identifying who made each statement. 40 There is no indication from Martin's testimony whether the refer- ence to payments meant dues payments or contributions to the welfare fund KBMS, INC. The second conversation was during a critique ses- sion41 with Martinez. Martinez said, "I received a copy of the KWST contract. I read it and man, is it weak. I am being paid more than what. this guarantees and I don't feel like rejoining AFTRA. Is it absolutely neces- sary that I have to?" Martin replied, "You must be, it is the law, you have to be an AFTRA member to work on the air at KWST." This conversation was the first week in July. Around the end of July, or beginning of August, Mar- tinez again mentioned AFTRA to Martin. Martinez said he wanted Martin to know that he was really peeved. Martin asked why. Martinez said AFTRA had Sonny Melendrez42 call his wife at home and bothered her with trying to talk him into attending some kind of a meeting. Martinez also said he had conversations with other per- sons who said that other Los Angeles dignitaries would be attending this meeting . Martinez said he thought it slighted him that Melendrez, a Spanish person, was call- ing him because he was Spanish, and that other personal- ities such as the morning team of another radio station called the morning team at KW ST. Martinez said there were many rumblings within the radio station regarding AFTRA and he was just letting Martin know that he was not calling Medine or getting in touch with AFTRA.43 Martin testified that he had approximately seven con- versations with Garrett regarding AFTRA prior to August' 12. The first such conversation was by telephone during the last week in May. Martin said that KWST was an AFTRA station and asked if Garrett was still active. Garrett said no. Martin said, "Well, I'd advise you to get yourself active." Garrett said, "Here we go again." Martin asked if there was a problem. Garrett said yes, a big one, that he had had a real hassle with AFTRA during the past year at KHJ and he thought they would not even want to talk to him at this point. He then proceeded to explain that he had been dis- charged by his previous employer but received no sever- ance pay. He called Medine, who said he would look into the matter, and get back to him. Thereafter, Garrett talked to Medine ' several times regarding the delay in re- solving the issue. Each time Medine assured him that'his grievance was preceding normally. After several months, Medine told Garrett that the Union had let the time period lapse during which a grievance had to be filed so they 'could not get Garrett's severance pay. Garrett threatened to sue the Union and, shortly thereafter, Medine informed' Garrett that the Union would pay Gar- rett the amount owed him for severance pay. Martin said he was glad Garrett got his money and advised him to call Medine.44 ' 41 Martin testified that he had critique sessions with all of the disc jockeys where he critiques their show by tape 42 Melendrez is a radio personality in the Los Angeles area. 43 Martin's preheanng affidavit states - "When I hired Benny Martinez around June 1, 1981, I told him this is an AFTRA station and that within 30 days he should contact AFTRA, and [he] said, `Do I have toy' And I said, `Yes, this is an AFTRA station, you have to belong.' That was it " This is the only reference in his affidavit to conversations with Martinez regarding AFTRA 44 On cross-examination Martin testified that during this conversation he did not ask Garrett if he was still active in AFTRA. He told him 841 According to Martin, around the - first week in June during a programming meeting, Garrett told him he had not had time to call AFTRA and he did not think he was going to call . Nothing further was said . Martin also testified that around the third week in June Garrett again brought up the subject of the Union. During that conver- sation Garrett said, "I had a copy of the contract and thought it was a joke." Martin asked why and Garrett said, "Did you see the guarantee as to the wages?" A few days later, according to Martin, Garrett came into his office and asked him to come with him . Martin then accompanied Garrett to the control room. Bobby Ocean was in the control room. Garrett pointed to a piece of paper on the bulletin board and said, "Read this." It was some kind of an order from AFTRA order- ing Rachel Donahue to be the shop steward. Garrett said, "Have you ever seen a bigger piece of trash than this?" Martin did not respond. Ocean said that was just like AFTRA, they had to order someone to do some- thing, because no one wants to do anything for them. Garrett said yes, it was just like AFTRA to do some- thing like that. Martin's next conversation with Garrett was around the first week in , July. Garrett showed him a telephone message that Medine had tried to call him , and said, "Look at this, now they are really going to start breath- ing down my neck. I am not going. I assume this is about a meeting,' and I'm not going to call.' If there is a meeting I'm not going to attend it." Garrett did not re- spond and nothing further was said. In the middle of July Garrett again brought up the subject of the Union to Martin. During this conversation, according to Martin, Garrett said, "You know , there's a lot of rumblings going on with the boys. And it appears that nobody is really supportive of AFTRA. And I'm not going to call Medine to reinstate myself, because I just don't care to. He's going to have to find me. They are going to have to find me .1145 Martin testified that around the end of July, or the be- gining of August, Garrett asked him if he was going to the circus. Martin asked what circus . Garrett said he was invited to a revival show where a number of radio per- sonalities in the area, whom he named, were going to put the KWST announcers up against the wall and tell them what a wonderful organization AFTRA is, and how they could not live without them. Garrett said , he thought the Union felt it did not have the support of the employees so they were setting up a "revival meeting" to renew their faith in AFTRA. Garrett then said, "I'm not going. I wish they would learn that we don't want AFTRA here." KWST was an AFTRA station He denies that he asked any employee that he talked to about AFTRA between June and August if they were still active in AFTRA or if they were members of AFTRA. Further, in his preheanng affidavit, Martin stated concerning Garrett's account of his experience with AFTRA regarding his severnce pay from KHJ that Gar- rett had related this experience a number of times in a group of people. His affidavit makes no reference to Garrett relating this experience to him in a private conversation. 4s Martin testified that "the boys" is a generalized term used in radio stations for disc jockeys even when it includes females - 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Just after the first week in August and prior to August 12, according to Martin, Garrett told him, "This thing with AFTRA is really heating up. That Joe Medine is bothering everybody in the radio station . And can't you make a call to AFTRA and tell them that it's time they stopped bothering certain people within the radio sta- tion?" Martin said he could not do anything like that. Garrett said he understood that several of the announc- ers had talked to Martin about the fact that they did not want AFTRA there, that it was really blowing out of proportion, and that Garrett should do something to pre- vent AFTRA from bothering the employees. Martin said it was not his place to call Medine , and that if Garrett felt that way, he should call himself. Garrett said he would not call. Both Martin and Sullivan testified that Martin reported these conversations with Garrett, Hurricane, Kelly, Jager, Ocean, and Martinez to Sullivan. According to Sullivan, the first such conversation he had with Martin was around June 10 or 11 . Martin said that a notice had been posted concerning Rachel Donahue being ordered by AFTRA to be the steward, that the boys were very upset with the Union, and there was a great deal of an- tiunion feeling within the staff. Sullivan asked who he was talking about. Martin said that Ocean, Garrett, Mar- tinez, Hurricane, and Kelly came to him and said they were not in favor of the Union and would not support it. He said this could be a problem because it appears that the on-air staff is not in favor of the Union at KWST. Sullivan said he had similar conversations , as Martin knew, with London and Engelman. Martin said that the employees thought that the steward notice was an indi- cation of the Union not knowing what was going on. He further said that Ocean had a very bad taste for the Union. Nothing further was said. According to Martin, his first such conversation with Sullivan was around the end of June or the beginning of July. His account of the conversation differed sharply from that of Sullivan in that he testified that he repeated in great detail the content of the various conversations that he had with these employees, rather than the con- clusionary statements that Sullivan testified that he made. Martin further testified that Sullivan asked him if he saw that as a problem and he responded that he did not at this particular time . He denied that he made any state- ments as far as conclusions with respect to the employ- ees' general sentiments about the Union in this conversa- tion. Sullivan testified that he had a second conversation with Martin during the last week in June after the new format went on the air. Martin said that Ocean was really upset and was making a lot of noise in the radio station concerning the Union. Sullivan does not recall anything else that was said about AFTRA. Martin testi- fied that his second conversation with Sullivan was around the first week to the middle of July. Martin imti- ated the subject by saying, " 'The situation with AFTRA seems to be getting out of hand. Now, Joe Medine is calling people within the radio station, to which they are saying we're not going to call [them] back. Bobby Ocean is worried that he's going to lose his job because he's going to be truthful and tell everyone who asks him that AFTRA is a fools' union, that there is a bunch of incom- petents running it. They are nothing more than take- your-money-and-run union." Martin further said that Hurricane still refused to join the Union, even at the ex- pense of being taken off the air, that Chris Kelly also said he would not join the Union. Martin further said, according to him, that he was con- cerned since they had 30 days in which to get in touch with AFTRA, and those particular employees were re- fusing, even at the expense of being taken off the air, and that he might have to look for new weekend disc jock- eys; and Garrett was telling him that persons from AFTRA were bothering him, and he was not going to return their calls, that they were going to have to come and find him if they wanted him. He said that Martinez said he did not want AFTRA at KSWT because of what had happened to him at KUTE and that he had heard rumblings within the radio station that AFTRA was "a bunch of scumbags." At that point, Sullivan said things seemed to be heating up about AFTRA and he asked Martin if this was the general consensus of the staff. Martin said it seemed to be, that he was hearing more and more, and he had employees that were refusing their air shifts if he forced them to join AFTRA. Sullivan testified that he had a third conversation with Martin regarding the employee sentiments toward AFTRA during the first week in July during a meeting when they were discussing which announcers to place on what shift and the meets of each person for that shift. According to Sullivan's initial testimony, Martin said, "Bobby Ocean is continuing to voice a lot of negatives about the Union. Bobby is not the only one . Many of the boys are doing the same thing." Sullivan said he was aware of similar feelings. After Sullivan was questioned whether Martin said who "the boys" were, he testified that Martin said, "Bobby Ocean is continuing to raise hell about the union. He is not the only one. Benny Mar- tinez, Pat Garrett, Hurricane, Chis Kelly and Jager are also pissed off. This is becoming a problem." According to Sullivan, this is all that was said that he can remem- ber. Martin places his third conversation with Sullivan as around the end of July or beginning of August. Accord- ing to him, he said, "There's a fever pitch within the body of the radio station regarding AFTRA," that phone calls were being made from AFTRA to employ- ees who refused to return the calls, employees were talk- ing among themselves regarding their unwilling partici- pation in AFTRA, that they did not want AFTRA at KWST. Martin said he was getting the distinct impres- sion that Respondent was shoving the Union down their throats, that the employees who were not members did not Want to be forced to pay $300 for initiation fees, that they had no confidence and faith in AFTRA represent- ing them. Martin said a number of employees had previ- ous bad experience with AFTRA and did not want to deal with them again in KWST, and that he still had the problems of weekends since Kelly and Hurricane had flat out refused their air shifts if they were forced to join AFTRA, and that they were worried that if they did not join AFTRA they would lose their nonunit jobs at the KBMS, INC. station. Martin further said union meetings were being referred to as tea parties and that he was concerned as program director trying to, get the radio station off the ground and as a contender within the Los Angeles mar- ketplace that this was a serious problem. Sullivan said that he had similar conversations where he had heard that they did not want AFTRA, at KWST. Martin testified that during this conversation he just made -generalized statements about the various conversa- tions that he had with the employees with the exception of some comments made by Bobby Ocean. Concerning those comments, he told Sullivan that Ocean was con- tinuing to call the Union derogatory names, and to tell employees who asked his opinion of AFTRA that they did not care about the employees and would not go to bat for them if they ran into any kind of problem, unless it had something to do with collecting pension and wel- fare benefits money. Sullivan made no specific response to the comments about Ocean. At some point during the conversation, Sullivan said he had talked with Pat Gar- rett who told him that he wished the Union would leave them alone and wondered when the Union would ever get the hint that the employees did ' not want it at KWST, that it was making their job rougher because the Union would not leave them alone. Sullivan recalls two other conversations with Martin regarding AFTRA during this period. One was between July 20 and 31. According to him, Martin said, "We have another problem as far as the union is concerned." He asked Martin what it was and Martin replied, "Chris Kelly has told me that he will not join the union in order to be on the air. If he has to join the union, he will not do an air shift for us." Sullivan said he was aware of that, that Kelly'had told him the same thing. Sullivan further testified that during the first week in August Martin told him, "The troops are highly pissed. The union has been calling them at the radio station, har- assing them, attempting to solicit the vote. This is getting out of hand. No one that has'asked me seems to want the union at KWST." Sullivan said that employees had also talked to him expressing the same antiunion sentiments. When questioned whether Martin identified who he was referring to as,"the troops," Sullivan testified that Martin said, "The troops are highly pissed off about the union's attempt to badger them at the radio station.: They are really pissed." Sullivan asked who he was talking about and Martin 'said, "Ocean, Garrett, Martinez, Jager and Kelly." Martin further said, "This is getting out of hand. There is a lot' of negative feelings concerning the ' union. We have a problem." Sullivan testified that during the first week in July, fol- lowing a discussion with Kelly regarding some equip- ment, Kelly said, "There's a lot of rumblings about the union within KWST. I want you to know that I will not join a union and if it means giving up my air shift I will do that." Sullivan asked if he had told Martin about this. Sullivan said that he had. Nothing else was said. Sullivan also testified that he had two such conversa- tions with Hurricane. Ocean was present during the first conversation which was around the first week in June. Hurricane asked Sullivan to lock at the AFTRA notice ordering Rachel Donahue to The steward. Ocean said, 843 "That is typical of them not knowing what is going, on here.46 These guys are a bunch of fools, they have no idea what is going on here, I don't want to have any- thing to do with them at KWST." Hurricane said, "Tim, maybe they will appoint me as the next steward. Wouldn't that be a joke." Nothing further was said.47 Sullivan's second conversation with Hurricane was in mid-July to July 25. Hurricane said, "Tim, there is a lot of bullshit circulating concerning joining the Union. I am totally opposed to this, and I will not join the Union. I want you to know this because if it means giving up my air shift I will do it and I have told Chuck the same thing." Sullivan asked why he felt this way. Hurricane said, "The Union is totally worthless and I want nothing to do with it." This conversation occurred during their weekly meeting to discuss new music. When questioned whether Hurricane "and Kelly, had used the same words when speaking to him, Sullivan testified that as he re- called, Kelly said, "I will not join the Union. I hate the goddamned Union, I will not join it. And if' it means giving up my air shift, so be it." Hurricane said, "Tim, I want you to understand that I hate the goddamned Union and I will not join the Union and if it means that I must join the Union, I will give up my air shift and I have so informed Chuck Martin." However, Sullivan's prehearing affidavit states, "The other person I talked to was Bobby Ocean who does the other morning show. Actually I did not talk to Ocean, I just heard him voice his dissatisfaction with the Union. One morning I ' was standing at the back where the people work and the Union had posted a notice on the bulletin board that Rachel Donahue, a morning personal- ity, would be steward. Donahue was leaving the station in three days so it was a big joke among the employees that Donahue had been appointed steward. This is when Ocean spoke up and said, `This is a joke."' When it was pointed out to him that he had testified on direct exami nation that the conversation with Ocean involving the steward announcement occurred in early June, 3 weeks prior to Donahue's leaving the employ of the station, Sullivan testified that he was not exactly sure when she left the station but by that time it was common knowl- edge that ' she was leaving and 'that London and Engel- man werejoining the station. Sullivan also testified that during a second conversa- tion with Ocean, when Ocean was in the office to discuss his corporation and the manner in which it would be treated at KWST, Ocean made some remarks with regard to AFTRA.' According to him, Ocean said, "When you left KHJ I really got screwed by AFTRA. Sullivan asked what he meant. Ocean said that he at- tempted to incorporate while at KHJ, that it had been approved by the company, but that AFTRA failed to recognize it, and because'of AFTRA's inability or refusal to acknowledge his corporation he had to live off his savings for several months in order to pay his bills. 46 Rachel Donahue was scheduled to leave Respondent's employ when the new format went into effect 47 The accounts of Sullivan's conversations with employees other than London and Engelman are from the testimony of Sullivan. None of the employees testified. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ocean further said , "I am very adamant about not join- ing AFTRA, about not being part of AFTRA at KWST and I will not told to them. I want nothing to do with them." Sullivan said since he felt that way why not say something to AFTRA because, as the manager, Sullivan really could not do too much. Ocean said he did a lot of outside commercial work and he was afraid that this would blackball him so to speak in the industry. Ocean said something about AFTRA trying to contact him and he hoped they would come to the station so he could kick them out. Ocean said that AFTRA pretends or pur- ports to represent people but they do not do anything. Sullivan could , recall no further conversation.48 Sullivan testified that in early or mid-July he had a conversation with Garrett in. which AFTRA was men- tioned. He is not certain whether this conversation was before or after Garrett was made a program director. He and Garrett had been discussing a comment that Garrett made on the air to which Sullivan objected . At some point during the conversation, Garrett said, "As you probably are aware there's a union contract that will be expiring in the next few weeks ." Sullivan said he was aware of that. Garrett said, "I have had some very bad experiences with AFTRA as have several of the other disc jockeys and I will not support them at KWST. I have a very bad feeling towards the AFTRA organiza- tion in Los Angeles . I will have nothing, to do with them here in KWST." When questioned on cross-examination whether Garrett and Ocean had used exactly the same words with regard to having nothing to do with AFTRA at KWST, Sullivan testified, "No. I think Gar- rett said I won't have anything to do with the god- damned fools." He further testified that it is his recollec- tion that Ocean and Garrett both told him they wanted nothing to do with AFTRA at KWST. And also the other employees that he mentioned told him that, in those words. Sullivan testified to three conversations with London and Engelman prior to August 11. Martin was present during each of these conversations . The first conversa- tion was in early June when Respondent was attempting to hire London and Engelman .49 During the course of the discussion, Sullivan said that London and Engelman should be aware that KWST was an AFTRA station and that there was an AFTRA contract expiring at some point in July., Engelman said, "We are not supporters of the Union. We have bad feelings about the Union, We couldn't care less about it being affiliated with KWST." London said, "Absolutely. We are not supporters of AFTRA." Nothing further was said with regard to AFTRA in this conversation. Sullivan further testified that in early July, when he and Martin were discussing with London and Engelman the topic of the shows they were doing, he asked how they were doing in their attempt to get severance pay 48 There is no reference in Sullivan 's prehearing affidavit that Hurri- cane was present during that conversation concerning Donahue Nor is there any reference to any statements by Hurricane concerning AFTRA or to Ocean saying he did not want anything to do with AFTRA at KWST. 49 London and Engelman were hired as a team and it appears from the testimony that they were the star announcers of the new format. from their former employer .50 Engelman said, "AFTRA sucks. I have no confidence they can get our money." London said, "That is right. The stinking Union is a bunch of fools. It's going to be very difficult to get our own money." Engelman said, "AFTRA is a rip-off. It seems we are paying $300 for hospitalization and that is it. I want no part of AFTRA at KWST." London said, "That is right. We will not support the Union at this radio station." According to Sullivan, the only thing he said in reply to these statements was "I hope you get your severance." Martin said nothing. Sullivan's prehearing affidavit dated September 22 states, "I had a conversation with John London and Stan Lackey, the morning personalities at the station. I can't say exactly when but it was about two months ago. However, they came to my office and I was asking them how their suit against their old employer was going. And obviously the Union was representing them and they filed a grievance with the Union. The Union represented the employees at the other radio station and they were dissatisfied with the Union. At that time, they indicated to me they had no confidence in LA AFTRA. This hap- pened on another occasion also .51 There is no doubt in my mind that these gentlemen were unhappy with the union." Martin testified in substantial agreement with Sullivan about the first conversation with London and Engelman. However, he testified that during the second conversa- tion the subject of AFTRA was brought up by London. London said, "You know, KRTH will not give us our severance and vacation pay and they refused to give us any monies due us." Sullivan said, "You should take that to AFTRA, that they can get your money for you." London said, "I wouldn't be so sure about that., The stinking Union is not competent in these affairs ." Engel- man said, "Well, it's for sure that AFTRA sucks. It was our opinion on that at KRTH . It is not changed here. They are a do-nothing, collect-dues union, and they have never done anything for London and Engelman." London said, "They are a rip-off. And as far as getting our severance pay and vacation pay with AFTRA han- dling it, you can forget it. We will never see that money." Martin said, "Well, how was it left? Did anyone tell you that you were not going to get your money?" London said, "No, but it might as well be since it's in the hands of AFTRA." London also said they had heard of similar situations and, if the problem did not have any- thing to do with collecting dues or money going into the pocket of AFTRA, you can forget them working in the employees' best behalf. Engelman said, "You know, it's a shame that they are here at KWST because we don't want them here." Engelmen said, "That's right." Sullivan testified that the third conversation with London and Engelman regarding AFTRA occurred in late July when they were discussing some commercial work that London and Engelman were doing for a so Sullivan was referring to the 2-week severance pay that KRTH, the former employer of London and Engelman, had refused to give them. 51 Sullivan testified that the other occasion to which he referred was the third conversation with London and Engelman which occurred in late July KBMS, INC. client. The discussion about AFTRA came about when Sullivan asked how they were doing with KRTH. En- gelman said it had developed into a bigger thing than just severance and that there were other issues involved in it and that AFTRA would be representing them in some kind of a legal doing. Engelman said, "We are in deep trouble here because AFTRA is representing us or will be representing us and they don't know what is going on or what the issues are." London said, "We might as well forget the stinking money because AFTRA will never get it back for us." Engelman said, "This is getting bizarre. They don't know what is going on. We want no part of them at KWST. We will not support them at KWST." According to Sullivan, he did not say anything concerning this subject but Martin indi- cated that he was concerned about their problems with their former employer and that he hoped it would work out to their benefit. Nothing further was said. Martin testified in substantial agreement with Sullivan about this third conversation except that, according to him, the subject of AFTRA was initiated when London said, "We've been sued by KRTH for $2 million for leaving their station illegally," and concluded when En- gelman said, "I don't want theme here. I don't want them representing me here at KWST," and London said, "He's speaking for me too." The next conversation occurred on August 11. Tock- man was present to complete the negotiations for a talent contract with London and E:ngelm, an. According to Tockman, in discussing the talent contract, London and Engelman unformed him that there was a proceeding of some kind by RKO to enjoin them or stop them from coming to work for Respondent and that matter was going to be handled by AFTRA.52 London and Engel- man told Tockman that they thought that in the Los An- geles area AFTRA was a worthless Union, that it had problems at another station, that AFTRA had hurt them, and had not done anything for them. Tockman asked them to stay on the subject of the talent contract and told them he was going that very afternoon to a meeting with AFTRA. London and Engelman said, "Well, if you check you will find most of the people in this place feel the same way." Tockman said, "I can't check anything, and I think we ought to talk about something else." En- gelman said, "In my opinion, this outfit sucks." They then proceeded to another topic of conversation. Sullivan testified that Engelman said AFTRA had been attempting or had attempted some kind of a revival meeting. Engelman said he thought it was ridiculous. He said he did not go to the revival meeting nor did London and that it was obvious to him and London that there was no support for the Union at KWST. London said, "That is right. They had a stinking revival meeting and tried to con us into going." London said, "This situation with the Union is pathetic and in a sorry condition at KWST. You,' Mr. Tockman, will see at the meeting that there is no support for ' 'AFTRA." Engelman said, "AFTRA is a rip-off. We do not want them representing 52 Tockman testified that Century had been threatened with a lawsui^ when London and Engelman were employed on the grounds that they were under contract to RKO 845 us at KWST." Either London or Engelman said there had been meeting called by AFTRA at which various dignitaries from radio were present.53 Engelman said the KWST announcers had been invited so that they could be told by these other stars what a marvelous institution the Los Angeles AFTRA was. Engelman said, "This is a joke because I don't consider-those other people stars to begin with." According to Sullivan, neither he, Tock- man, nor Martin responded to these comments. Sullivan denied that either he or Tockman brought up the fact of the meeting with AFTRA first. Sullivan admitted that there is no reference in his prehearing affidavit to any conversation on August 22 nor to any statement that London and Engelman made that they had been asked to attend a revival meeting.54 Martin testified that on the morning of August 11 he was called into Sullivan's office by Sullivan. When he ar- rived, Tockman was in the office with Sullivan. Sullivan asked him to tell Tockman what he had told Sullivan re- garding conversations he had with employees about AFTRA. According to Martin, he then proceeded to go through each and every one of the conversations that he had with employees in which AFTRA was discussed in the same detail in which he described these conversa- tions in his testimony herein. When he completed his ac- count, Sullivan asked him, `Well, do these guys want a union here at KWST or do they not want a union here at KWST?" Martin said it was his,opinion that the em- ployees did not want AFTRA to represent them at KWST, that he was very concerned about being a new radio station, and that the guys performing their on-air show felt that Respondent was shoving AFTRA down their throats, and they definitely did not want the Union. There was no discussion of withdrawal of recognition nor of what Respondent would do about the fact that employees did not want the Union. According to Martin, he was not told the purpose for which he was asked to recite his conversations with the employees to Tockman. He assumed that it was because there was a meeting with AFTRA. However, he denied that he had any conversa- tion with Sullivan or Tockman prior to this in which the subject of the negotiation meeting with AFTRA was dis- cussed. Martin testified that ' in the October 11 conversation with London and Engelman, London said, "I hope that our litigation with KRTH is as easy as signing of our talent agreement here at KWST. I, understand that you will be -attending an- AFTRA meeting today, and you will find out that no one wants them here at KWST." Tockman said, "Is that your feeling?" London said, "You're stinking right. We don't want them here at KWST." Martin's affidavit, dated September 22, reads, "I have not specifically talked to anyone about the union or their desires about the union. I've been in places where I've heard various people talking about the union and voicing 63 They named some recognized Los Angeles radio personalities of rather high stature. 54 Medine testified that the "revival meeting" was held after August 11, that it was conceived in direct response ' to Respondent's withdrawal of recognition, and that both London and Engelman attended. 1 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their unhappiness about the union. From the things that were said, there is no other way to interpret it than that they were unhappy about the union. Sometime around June 10, 1981, I can't remember the exact date but it was when we were talking with London and Engelman, who are the morning disc jockeys, and basically what I heard was that they were worried about- getting their last pay- check from their previous employer. They said some- thing to the effect that if it was, left up to the union, they would not get their money. I assumed from this that they were unhappy with the union." There is no reference in the affidavit to any statement by either London or En- gelman that "we're not supporters of AFTRA." Nor is there any reference to any mention of an inquiry regard- ing their union membership status or any statement by Sullivan that they had to join the Union in order to work on the air at KWST. Martin's affidavit further reads, "Since the case has gone to arbitration regarding the pay of London and En- gelman, I've heard them express to me,and Tim Sullivan that they had to go to AFTRA and AFTRA appointed a representative and that he is out of touch and does not know anything about the entertainment industry. They said on many occasions that they thought it was a joke of who is representing them." There is no mention in the affidavit that London and Engelman made any comment concerning AFTRA at radio station KWST nor that either of them told Martin they would not support AFTRA at KWST. Martin's explanation for this is that Sullivan told him, about 15 minutes before the Board agent arrived, that he would be talking with someone re- garding the matter and it seemed to be a very informal type of thing and not involved . Martin admits that the Board agent did ask him what employees had `said to him that led him to believe that they did not support the Union. There is also no reference in the affidavit to any conversation with London and Engelman in which there was any discussion of a revival meeting with dignitaries. G. Conclusions It is well settled that a prior collective-bargaining agreement, lawful on its face, raises a dual presumption of majority-that the union was the majority representa- tive at the time the contract was executed and that its majority continued at least through the life of the con- tract. On the expiration of the contract the presumption of majority may be rebutted by clear and convincing proof that at the time of the refusal to bargain either the union did not in fact represent a majority of unit employ- ees, or the employer had a good-faith and reasonably grounded doubt of the union's continued, majority status, which doubt was based on objective considerations and raised in a context free of unfair labor practices. The burden of rebutting it rests on the party who would do so. Celanese Corp., 95 NLRB 664 (1951); Shamrock Dairy, 119 NLRB 998 (1958), and 124 NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cis. 1960), cert. denied 364 U.S. 892 (1960); Ref-Chem Co., 169 NLRB 376 (1968); Barrington Plaza & Tragniew, 185 NLRB 962 (1970); Pio- neer Inn, 228 NLRB 1263 (1977), enfd. 578 F.2d 835 (9th Cir. 1978); Carmichael Contruction Co., 258 NLRB 226 (1981). 1. The presumption of the Union's continued majority status Respondent argues that the Union is not entitled to a presumption of majority status because (1) by specific contract provision, the Union "warrants represents and agrees that it represents a majority, of the unit employ- ees"; and (2) the Union did not fairly represent the inter- ests of the unit employees. I am not persuaded by either of these arguments. Apparently- Respondent's position about the first argument is that by the warranty-of-repre- sentation provision the Union has waived its right to benefit from a presumption of majority status. Without in any way determining that the parties could, by contrac- tual provision, shift the burden of proof established by the Board in furtherance of the strong Federal policy and public interest in industrial peace and ensuring stabil- ity in collective-bargaining relationships promoted by the Act, I find that the warranty-of-representation clause does not constitute a clear and unmistakable waiver which would preclude the assertion in unfair labor prac- tice proceedings, of a presumption of majority status flowing from the Union's collective-bargaining history with Respondent. Respondent's second argument in this regard is based on the Ace-Doran,55 Bender Ship Repair,56 and McDon- ald's Drive-In57 line of cases. Those cases hold that, on the expiration of a contract, the presumption of contin- ued majority status may not attach where' the contract does not define the bargaining unit with sufficient clarity or where the practices thereunder demonstrate that the parties never intended to establish a "real collective-bar- gaining relationship." A reading of the cases clearly shows that the latter presupposes an arrangement to apply the terms of the., contract only to certain unit em- ployees or a failure to administer the contract or service the employees throughout the term of the contract of such proportion to warrant an inference that the parties, by entering into the contract, never intended to enter into a collective-bargaining relationship. Contrary to Respondent's contention, the quality or ef- fectiveness of representation was not at issue in those cases. Rather, the Board was concerned with the impro- priety of compelling-merely on the basis of a presump- tion-the continuation of a bargaining relationship that did not measure up to the fundamental standards of the national labor laws, such as minority representation, ' dis- criminatory representation, or other similar grave impro- priety. NLRB v. West Sand Gravel Co., 612 F.2d 1326 (1st Cir. 1979). Here, there is no ambiguity in the unit description. Nor is there any evidence that the Union and Respond- ent ever had an arrangement or understanding that would negate an intent to enter into a collective-bargain- ing relationship, or that the Union ever acquiesced in 4 repudiation of substantial portions of the contract, which go to the heart of the collective-bargaining relationship. In support 'of its position, Respondent also argued that -ss Ace-Doran Hauling & Rigging Co., 171 NLRB 645 (1968). 56 Bender Ship Repair Co., 188 NLRB 615 (1971). 57 McDonald's Drive-In Restaurant, 204 NLRB 299 (1973) KBMS, INC. despite the format change and influx of new personnel, no union representative visited ][IWST to talk to Sullivan or Martin;s-g the "part-time employee" proposal was op- posed by some of the members of the Union's negotia- tion committee; and that would have put some unit em- ployees out of work. So the inescapable conclusion was that the Union did not know who was in the unit nor what they wanted in a collective-bargaining agreement. The Union also, according to Respondent, excluded Gar- rett and Jager, as management, from prenegotiation meetings yet claimed to represent them, and excluded Garrett, who is assistant program director, from such meetings while permitting Ted Habeck, who previously had that title, to attend. The underlying facts do not support some of Respond- ent's arguments. However, to the extent they do, they do not establish the existence of a relationship inimical to any fundamental policy or standard of the Act. At the most, they establish only inept or ineffective representa- tion. The right to be free of ineptness or ineffectiveness or unfairness in one's collective-bargaining representative are rights which inure to the employees and can be re- dressed by them through either intraunion, Board, or other legal procedures. Such rights are not available to the employer as a defense in refusal to bargain proceed- ings before the Board. Brooks v. NLRB, 348 U.S. 96, 103 (1954); B. Brown Associates, 224 NLRB 929 (1976). Accordingly, I find that the presumption of the Union's continued majority attaches to the KWST- AFTRA contract and ,the burden is on Respondent to rebut said presumption. 2. The sufficiency of the evidence to rebut the presumption of the Union's continued majority As set forth above, Respondent may rebut the pre- sumption of the Union's continued majority status by es- tablishing either that the Union did not in fact represent a majority of the unit employees, or that it had a reason- able doubt of the Union's majority status, based on ob- jective considerations, at the time of the refusal to bar- gain. Respondent did not attempt to establish, nor did the record support, the first of these options. Rather it relied on its good-faith doubt or continued majority. As objective considerations, Respondent adduced evidence of expressions of employee dissatisfaction with , and lack of interest in, the Union and other evidence which pur- ports to establish that (1) the Union was totally out of touch with the unit employees as demonstrated both by the forced appointment of Donahue as union steward, when the Union' knew she was to leave Respondent's employ shortly, and by the absence of a steward until shortly before the negotiation meeting; and (2) the Union had no idea who was working at KWST or what they 58 During this period, there was an exchange of correspondence be- tween Tockman and Oliver, Medine and Oliver met with employees; Medine had discussions with Respondent 's bookkeeper regarding sever- ance pay for employees terminated in connection with the format change; and Medine had at least one conversation with Martin regarding the ap- pointment of Donahue as union steward during which Medme acknowl- edged that he knew Donahue would be leaving Respondent 's employ, but stated that her tenure and experience in Respondent's employ would be valuable in preparing for negtotiations i 847 wanted, as demonstrated by the part-time contract pro- posals which would have an adverse impact on part-time unit employees, were opposed by some of the employees on the union negotiating committee, and were not under- stood by the Union's chief negotiator. In the circumstances, I find no merit in the last two. Thus any rebuttal of the presumption is dependent on the evidence about employee expressions of dissatisfaction. The principal such evidence was from the testimony of Sullivan and Martin.59 Hence, the resolution of the issues, to a large extent, turn on their credibility or lack of such. The record reveals substantial inconsistencies and contradictions between Martin's and Sullivan's testi- mony about their conversations with employees regard- ing the Union and their September 22 affidavits given during the prehearing investigation. Thus, Sullivan testi- fied about conversations about the Union with Garrett, Ocean, Kelly, Hurricane, London, and Engelman. Yet his affidavit stated only that he had conversations with Ocean, London, and Engelman and further stated that he did not directly speak to anyone else about the Union. Sullivan testified about two conversations with Ocean, only one of which could possibly be considered as a re- pudiation of the Union. His affidavit refers to only one incident involving Ocean which was not a conversation directly with Ocean, but rather was a situation where Sullivan was a big joke . There is no mention in the affi- davit of a second incident , as related in Sullivan's testi- mony, where Ocean told him he was very adamant about not joining AFTRA, about not being part of AFTRA at KWST, and he wanted nothing to do with AFTRA. Furthermore, concerning the remark regarding Donahue, Sullivan stated in his affidavit that at the time Donahue was leaving in 3 days so her appointment was a big joke. Yet he testified at the hearing that the remark was made in early June which would have been 2 to 3 weeks prior to Donahue's departure. Sullivan and Martin testified that they had three con- versations with London and Engelman regarding the Union prior to August 11, in the first of which they said they were not supporters on the Union; and in the second and third of which they said they wanted no part of, and would not support, AFTRA at KWST. Both Martin's and Sullivan's affidavits refer only to expres- sions by London and Engelman of their dissatisfaction with AFTRA's representation of them in a grievance proceeding and other litigation with their former em- ployer and of their lack of confidence in AFTRA and its representation of them in those proceedings. There is no reference in either affidavit to any statement by them that they did not support AFTRA at KWST. Further, neither affidavit mentions a conversation with London and Engelman at which Tockman was'present. Nor does Sullivan's affidavit state, as testified ' to by him, that London and/or Engelman mentioned a "revival meet- ing" sponsored by the Union. Also Sullivan testified that Engelman said that neither of them went to the "revival meeting." Martin also testified that around the end of July or first week in August Garrett, Ocean, and Marti- es Tockman testified with regard to statements by two employees. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nez mentioned this meeting. Yet Medine's uncontradicted testimony is that this meeeting, which was not conceived until after the withdrawal of recognition, was held after August 11 and, that London and Engelman attended. Martin testified in great detail about a total of about 30 separate conversations with 8 employees. According to him, each of these employees, in one or more conversa- tions, indicated in varying, but explicit, phraseology that they did not want to be represented by the Union at KWST and/or suggested that Martin do something to get rid of AFTRA. On the other hand, Martin's affidavit refers to comments of dissatisfaction with past grievance handling by the Union, ridicule about the "order" ap- pointing Donahue as shop steward, statements of intent not to attend union meetings, and some general disgrun- tlement with regard to the Union. It does not refer to any of the statements indicating repudiation of the Union to which Martin testified or many of the other state- ments that Martin testified these employees made. Further, in his affidavit, Martin states, "I have not spe- cifically talked to anyone about the Union or their de- sires about the Union. I have been in places where I have heard various people talking about the Union and voicing their unhappiness about the Union. From the things that were said, there is no other way to interpret it than that they were unhappy about the Union." He then related some specific statements heard by him. An- other contradiction is that he testified that he never saw any notices posted at the station regarding the union meetings. In his affidavit, he states, "During this 6 to 8 weeks from the change of the station until negotiations, there were notices posted regarding union meetings." Both Sullivan and Martin attempt to explain the incon- sistencies between their testimony at the hearing and their prehearing affidavits. Sullivan testified that his recollection was fresher when he testified in March 1982 than it was on September 22, 1981, the date of his affida- vit. According to him, he prepared for the affidavit for maybe 15 or 20 minutes since he was in the middle of chaos at KWST attempting to turn around a "sick sta- tion"; whereas, in preparing for the hearing, he had spent day and night with Respondent's counsel, resulting in recollection of incidents which had previously been beyond his recall. Martin's first explanation of the discrepancies between his testimony and his affidavit is that he had only about a 15-minute notice that he would be giving an affidavit and it seemed to be an informal type of thing. When asked if his explanation was that it appeared to be informal, he testified, "No, I think my explanation is that she [appar- ently referring to counsel for the General Counsel] asked me why [certain alleged employee statements do not] appear in [the affidavit]. The man who was interviewing me didn't ask those specifics. He didn't say who said what, what did you say when did it happen, whatever. It was my statement at the time that he asked me." Martin admits, however, that the Board agent asked him what employees had said to him that led him to believe that they did not support the Union. I am unimpressed by these explanations of the discrep- ancies. Although it might be understandable if Sullivan and Martin ascribed greater importance to vague, ambig- uous statements than would the Board, I find it incredi- ble, if employees had, in fact, explicitly said they did not support the Union on the numerous occasions recalled by Martin and Sullivan, that both Sullivan and Martin would have neglected to mention at least some of these mentioned by Sullivan. Except for this one remark made by Sullivan, there is no evidence on the record that chaos existed in late September. Further, Martin testified that on August 11 he indicat- ed to Sullivan and Tockman his concern that the union situation would have an adverse impact on efforts to im- prove the station's market position and to retain some of the on-air staff. In these circumstances, they must have perceived the conversations with employees as rather im- portant, thus making it likely that they would recall them at a time only 6 weeks from the August 11 date on which Martin contends that he related, in great detail, conversations from early June. Furthermore, I note cer- tain discrepancies between Sullivan and Martin's account of Martin's account of Martin's recitation of his conver- sation to Sullivan and Tockman on August 11. Sullivan's account has Martin making generally conclusionary statements. Martin's testimony is that he gave detailed accounts. Also, their testimony about the August 11 statements by London and Engelman is not consistent in all respects with that of Tockman. I also note certain contradictions in Martin's testimony. Thus he testified on direct examination that in certain conversations he asked various employees whether they were members of, or still active in, the Union. On cross-examination he denied that he asked such questions. In these circumstances, I find that both Martin and Sullivan are unreliable witnesses who embellished their accounts of conversations with employees in an attempt to strengthen Respondent's case. Accordingly, I do not credit their uncorroborated testimony. This conclusion is buttressed by the fact that no employee witnesses were called to testify as to their alleged conversations with Martin and Sullivan.60 I agree with the General Counsel that an adverse inference from this failure to testify may be drawn against Respondent.61 In NLRB v. Cornell of California,62 the court upheld the drawing of an adverse inference against the respond- ent therein from the failure to elicit corroborating testi- mony from the employees upon, whose statements that respondent had relied in asserting a good-faith doubt of majority based on statements by a minority of unit em- ployees that a majority wanted to be free of the Union. Rejecting the, arguments that the adverse inference could be drawn against the General Counsel or against either party, the court concluded: Of course in theory it often can be argued that the adverse inference could be drawn against either 60 Throughout the hearing, which encompassed several days over a 3- month time period, Respondent asserted that these employees would be called to testify in support of Respondent's position. 61 Contrary to Respondent's argument, I conclude that NLRB v. Wright Line, 622 F.2d 899 (1st Cir 1981), is inapposite concerning the burden of persuasion with regard to rebutting the presumption of majon- ty. 62 577 F 2d 513, 517 (9th Cir 1978), enfg 222 NLRB 303 (1976) KBMS, INC. party, but, reasoning from the purposes of the infer- ence, it is generally recognized that the inference is drawn against the party with the burden of persua- sion on an issue (see McCormick on Evidence § 272 (2d ed. 1972))or against the party who is relying on the statements of the uncalled witness. See generally id, § 272 and n. 36. The inference would work against the Company under either of those theories. Moreover, in this case the General Counsel argued and the ALJ agreed that the Company never met its burden of proving a reasonable doubt; therefore the likely inference from the fact that the Board did not call the employees is that the Board properly decided that no proof on its part was necessary on the issue. Thus the inference was correctly drawn against the Company . . . . The only other evidence of expression of dissatisfac- tion by employees is Tockman "s account of statements made by London and Engelman that AFTRA was a worthless union which "sucks and had hurt them and not done anything for them and that most of the employees felt the same way." Even assuming, arguendo, that these statements could be considered as an expression of a desire to rid themselves of the Union as their collective- bargaining representative,63 they are only 2 out of a unit of 11 employees. This secondhand testimony about the desires of other employees is unreliable and cannot be considered as an objective basis for Respondent's assert- ed good-faith doubt of the Union's continued majority. Cornell of California, supra. In the circumstances, I conclude that Respondent's as- serted doubt of majority was not based on objective con- siderations. Moreover, in view of the violations of Sec- tion 8(a)(1) found below; the unilateral cessation of con- tributions to the pension and health funds, prior to Re- spondent's conclusion that the Union did not represent a majority; Martin's statement to employee Elizabeth Sala- zar Lenhart in May, prior to all but two-by Ocean and Garrett during the last week in May-of the alleged ex- pressions of dissatisfaction with the Union , that Respond- ent was not going to renew its contract with the Union;154 Martin's interrogation of Becker and Summers about what transpired at a union meeting; and the solici- tation ' of Summers to keep him informed about future meetings, I further conclude that any doubt of majority status was not held in good faith, in a context free of unfair labor practices . Accordingly, I find that Respond- ent has failed to rebut the presumption of the Union's majority status. 3. The 8(a)(5) violations It is undisputed that Respondent withdrew recognition of the Union on August 11. Because the Respondent has failed to rebut the presumption that the union continued to enjoy the status of the exclusive collective-bargaining representative of the employees in the appropriate unit ss I note that London and Engelman thereafter attended a union meet- ing and paid membership dues to the Union until November. It is not in- consistent that an employee would harbor negative feelings toward a union and still prefer its representation to no representation. 64 This is from the testimony of Salazai whom I credit 849 herein, I find that Respondent violated Section 8(a)(1) and (5) of the Act by its withdrawal of recognition from the Union. The complaint also alleges that Respondent violated Section 8(a)(5) of the Act by its cessation of contribu- tions to the ' AFTRA , pension and welfare funds. It is well established that an employer obligated to bargain with the majority representative of its employees may not, absent empasse or waiver, unilaterally change the wages, hours, and terms and conditions of employment of said employees. NLRB v. Katz, 369 U.S. 736 ( 1962). It is also well established that pension and health and wel- fare fund plans, which are part of an expired collective- bargaining agreement, are terms and conditions of em- ployment which survive the expiration of the contract and, absent impasse or waiver, contributions to such funds may not be, unilaterally altered. Harold Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970); Cauthorne Trucking, 256 NLRB 721 (1981). The Board and the courts have found that the require- ment in Section 302(c)(5) of the Labor Management Re- lations Act65 that trust fund payments be made ,pursuant to a written agreement are met by a trust fund agreement underlying an expired contract. Peerless Roofing Co. V. NLRB, 641 F.2d 734 (9th Cir. 1981); Cauthorne Truck- ing, supra. However, Respondent contends that article III, section 2 of the agreement and declaration of trust prohibits contributions after the expiration of such bar- gaining agreement., This section provides: ARTICLE III. Contributions to the Funds SECTION 2. Effective Date of Contributions. All contributions shall be made effective as of the date specified in the collective bargaining agreements be- tween AFTRA and the Producers, and said contri- butions shall continue to be paid as long as a Producer is so obligated pursuant to said collective bargaining agreements. [Emphasis added.] The Board has found that unilateral cessation of contri- butions to employee trust funds are not violative of Sec- tion 8(a)(5) of the Act when the language of the trust fund agreement or the collective-bargaining agreement waives the- employees' right to receive the benefits of the contributions and the union's right to bargain regarding an employer's cessation of such contributions upon the expiration of the contract, absent a renewed agreement to continue such payments. Cauthorne Trucking, supra. However, such a waiver must be in clear and unmistak- able language. Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963), Bert. denied 376 U.S. 971 (1964). Wayne's Dairy, 223 NLRB 260 (1976). I find that the language relied on by Respondent does not constitute such a clear and unmistakable waiver . That section does not purport to deal with the termination of the employ- er's obligation to contribute to the funds. Section 1 of 61 29 US C. § 186(c)(5). 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that same article provides "Nothing in this Trust Agree- ment shall be deemed to change, alter or amend any of said collective bargaining agreements" and, by virtue of Board law, the employer's obligation, though based on the contract, survives its expiration. So, at -best, article III, section 2 is ambiguous in this regard. Accordingly, I find that by cessation of its contribu- tions to the AFTRA pension and welfare funds on behalf of the unit employees, Respondent has violated Section 8(a)(1) and (5) of the Act.66 4. Alleged 8(a)(1) conduct The complaint alleges that Respondent violated Sec- tion 8(a)(1) of the Act by Martin and Jager, separately, threatening Becker with discharge if she supported the Union and by Martin's promise to attempt to obtain for her reimbursement for the $300 she had paid to join the Union.67 Although I have found that Jager is not a su- pervisor within the meaning of the Act, I find that state- ments made by him to Becker are not violative of the Act. Concerning the threat and promise allegedly made by Martin to Becker, .the only evidence in this regard is the testimony of Becker that Martin made certain statements. Martin denies that he made these statements. In view of my credibility findings above, as to Martin, I do not credit his denials. On the other hand, except with regard to certain conversations with Martin, Becker's testimony is generally uncontradicted even though much of her tes- timony was as to things within the knowledge of Martin and Sullivan. She also impressed me as an honest wit- ness, who was on the witness stand for more than 1 day, but whose testimony contains no substantial contradic- tions nor is there evidence that it is at variance with any prehearing affidavit given by her. Accordingly, I credit her account of her August 10 conversation with Becker and find that Martin threat- ened to discharge her if she persisted in supporting the Union and promised to speak to Sullivan regarding ob- taining for her reimbursement for the $300 initiation fee she paid to the Union. I further find that Respondent thereby violated Section 8(a)(1) of the Act. 66 I have considered , and reject, Respondent's argument that its cessa- tion of contributions was removed from the ambit of Sec. 8(a)(5) of the Act by its agreement to make retroactive to July 20, the expiration date of the contract, all wage and benefit improvements should a new agree- ment be reached ; and its proposal to eliminate pension contributions and to provide health and welfare coverage under the Century plan rather than the AFTRA plan Apparently Respondent is contending that it thereby agreed to maintain and, in fact, did maintain the status quo. 67 Respondent argues that these allegations should be dismissed since the charge only alleges a refusal to bargain and unilateral changes in terms and conditions of employment in violation of Sec 8 (a)(1) and (5) of the Act and the allegation of independent violations of Sec . 8(a)(1) of the Act are not closely related thereto I find no merit in this argument The charge specifically states , "By these and other acts "Respondent has interfered with, restrained , and coerced employees in the exercise of their Sec 7 rights Further, these allegations refer to statements which were part of a course of conduct which led to the withdrawal of recognition. Staco, 244 NLRB 461 (1979) CONCLUSIONS OF LAW 1. KBMS, Inc., a subsidiary of Century Broadcasting Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Los Angeles Local, American Federation of Televi- sion and Radio Artists, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for the purposes of collective bargaining: All announcers, newscasters and performers em- ployed by the Employer at Radio Station KWST, Los Angeles, California, but excluding all other em- ployees, office clerical employees, guards and super- visors as defined in the Act. 4. At all times material herein, the Union has been, and is now the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing its recognition of the Union as the exclusive collective-bargaining representative of the em- ployees in the unit described above on August 1, 1981, and refusing to bargain with the Union since that date, and by unilaterally ceasing payments into the Union's pension and welfare trust funds upon the expiration of the 1980-1981 collective-bargaining agreement between Respondent and the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By threatening to discharge an employee if she per- sisted in her support of the Union, and by promising to attempt to secure for her reimbursement for the initiation fees paid by her to the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respond- ent cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. Because it has been found that Respondent has unlaw- fully withdrawn recognition from the Union and has failed and refused, despite a valid demand, to bargain collectively with the Union as exclusive representative of employees in an appropriate bargaining unit, it shall be recommended that Respondent recognize and, on re- quest, bargain with the Union as the exclusive represent- ative of the employees in the appropriate bargaining unit. It shall be further recommended that Respondent make the employees whole by paying all pension and welfare trust fund contributions, as provided in the expired col- lective-bargaining agreement between Respondent and the Union, which have not been paid and which would KBMS, INC. 851 have been paid absent Respondent's unlawful unilateral discontinuance of such payments.68 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed°9 ORDER. The Respondent, KBMS, Inc., a subsidiary of Century Broadcasting Corporation, Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize Los Angeles Local, Ameri- can Federation of Television and Radio Artists, AFL- CIO as the exclusive collective-bargaining representative of its employees in the appropriate unit described below. (b) Unilaterally ceasing payments into the Union's pen- sion and welfare trust fund. (c) Threatening to discharge employees if they persist in their support of the Union. (d) Promising employees that it will attempt to obtain for them reimbursement for the initiation fees they paid to the Union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize the above-named Union as the exclusive collective-bargaining representative of its employees in the appropriate unit described below and, on request, meet and bargain with the aforesaid Union concerning wages, hours, pension and welfare benefits, and other terms and conditions of employment and, if an under- standing is reached, embody it in a signed document. The appropriate unit is: All announcers, newscasters and performers em- ployed by the Employer at Radio Station KWST, Los Angeles, California, but excluding all other em- ployees, office clerical employees, guards and super- visors as defined in the Act. (b) Make its employees whole by paying all health and welfare trust contributions, as provided in its expired col- lective-bargaining agreement with the Union, which have not been paid, and which would have been paid 68 Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a "make-whole" remedy. We there- fore leave to further proceedings the question of how much interest Re- spondent must pay into the benefit fund in order to satisfy our "make- whole" remedy. These additional amounts may be determined , depending upon the circumstances of each case, by reference to provisions in the documents governing the fund at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return on investment of the por- tion of funds withheld, additional administrative costs, etc., but not col- lateral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Ba If no exceptions are filed as provided by Sec. 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- 1ows absent its unlawful unilateral discontinuance of such pay- ments, and continue such payments until such time as it negotiates in good faith to a new agreement or to an im- passe. (c) Post at its Los Angeles, California place of business copies of the attached notice marked "Appendix."7 ° Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 70 If 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize Los Angeles Local, American Federation of Television and Radio Artists, AFL-CIO as the exclusive collective-bargaining repre- sentative of our employees in the appropriate unit de- scribed below. WE WILL NOT unilaterally cease payments into the above-named Union's pension and welfare trust fund. WE WILL NOT threaten to discharge employees if they persist in their support of the above-named Union. WE WILL NOT promise employees that we will attempt to obtain for them reimbursement for the initiation fees they paid to the above-named Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL recognize the above-named Union as the ex- clusive collective-bargaining representative of our em- ployees in the appropriate unit described below and, on request, meet and bargain with the Union concerning wages, hours, pension and -welfare benefits, and other terms and, conditions of employment, and, if an under- standing is reached, embody it in a signed document. The appropriate unit is: All announcers, newscasters and performers em- ployed by the Employer at Radio Station KWST, Los Angeles, California, but excluding all other em- ployees, office clerical employees, guards and super- visors as defined in the Act. WE WILL make our employees whole by paying all health and welfare trust fund contributions, as provided in our expired collective=bargaining agreement with the above-named Union, which have not been paid, and which would have been paid absent our unlawful unilat- eral discontinuance of such payments, and continue such payments until such time as we negotiate in good faith to a new agreement or to an impasse. KBMS, INC., A SUBSIDIARY OF CENTURY BROADCASTING CORPORATION