Station Kkhi

932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Buckley Broadcasting Corporation of California, d/b/a Station KKHI and National Association of Broadcast Employees & Technicians, Local 51 AFL-CIO-CLC Case 20-CA-21481 November 30 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 25 1988 Administrative Law Judge Mi chael D Stevenson 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 findings 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 Buckley Broadcasting of California d/b/a Station KKHI San Francisco California its officers agents suc cessors and assigns shall take the action set forth in the Order 1 The Respondent contends that the judge erred by failing to apply the polling standard articulated by the Ninth Sixth and Fifth Circuits in For bidden City Restaurant v NLRB 736 F 2d 1295 (9th Cir 1984) Thomas Industries Y NLRB 687 F 2d 863 (6th Cir 1982) enfg in part and deny mg in part 255 NLRB 646 (1981 ) In these cases the courts essentially held that as long as the employer complies with the guidelines established by the Board in Struksnes Construction Co 165 NLRB 1062 (1967) it may poll its employees to determine their union sentiment if it has sub stantial objective evidence of a loss of union support even if that evi dente is insufficient by itself to justify withdrawal of recognition In our view however the administrative law judge here correctly concluded that the Respondent s asserted bases for the poll passage of time and em ployee turnover do not provide a substantial reasonable basis for con cluding that a union has lost support and as such are insufficient under either the Board s or the courts standards for polling See Tahoe Nugget Inc Y NLRB 584 F 2d 293 306 (9th Cir 1978) cert denied 442 US 921 (1979) and NLRB v Little Rock Downtowner Inc 414 F 2d 1084 1091 (8th Cir 1969) See generally regarding polling Hajoca Corp 291 NLRB 104 (1988) and Howard M Howes Inc 290 NLRB 966 (1988) Eugene Tom Esq for the General Counsel Victor P Reed Esq of San Francisco California for the Respondent DECISION STATEMENT OF THE CASE MICHAEL D STEVENSON Administrative Law Judge This case was tried before me at San Francisco Califor nia on January 28 1988 1 pursuant to a complaint issued by the Regional Director for the National Labor Rela tions Board for Region 20 on November 4 and which is based on charges filed by National Association of Broad cast Employees & Technicians Local 51 AFL-CIO- CLC (the Union) on September 30 (original) October 21 (first amended) and October 29 (second amended) The complaint alleges that Buckley Broadcasting Corporation of California d/b/a Station KKHI (Respondent) has en gaged in certain violations of Section 8(a)(1) of the Na tional Labor Relations Act (the Act) Issue Whether on or about September 29 Respondent vio lated the Act when its agent Wayne L Tomei conduct ed a poll of Respondents technicians regarding whether the employees desired to be represented for collective bargaining purposes by the Union All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs Briefs which have been carefully considered were filed on behalf of the General Counsel and Respondent On the entire record of the case and from my obser vation of the witnesses and their demeanor I make the following FINDINGS OF FACT I RESPONDENTS BUSINESS Respondent admits that it is a California corporation that operates a radio station located in San Francisco California It further admits that during the calendar year ending December 31 1986 in the course and conduct of its business that its gross volume exceeded $100 000 and that annually it purchases and receives goods and maters als valued in excess of $5000 from sources outside the State of California Accordingly it admits and I find that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Respondent admitted at hearing (R Exhs 7-8) and I find that National Association of Broadcast Employees & Technicians Local 51 AFL-CIO-CLC is a labor or ganization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts2 On July 27 the Board affirmed with certain modifica tions the decision of the administrative law judge in Sta tion KKHI 284 NLRB 1339 (1987) (Jt Exh 1) The rec ommended order of the administrative law judge adopt ed by the Board directed Respondent inter alia to rec i All dates refer to 1987 unless otherwise indicated 2 No witnesses testified at hearing Instead the parties agreed on 15 ex hibits admitted into evidence as joint exhibits and on certain stipulations with respect to the point exhibits 291 NLRB No 130 STATION KKHI ognize and on request to bargain collectively with the Union as the exclusive representative of employees in the engineering and technicians unit excluding all statutory supervisors and to embody any understanding reached in a signed agreement On September 4 the Union s attorney wrote to an offs cial of Respondent with respect to the Board s Order described above (Jt Exh 2) Bruce Beebe Vice President Station KKHI 335 Powell Street San Francisco CA 94102 Dear Mr Beebe This office represents National Association of Broadcast Employees and Technicians Local 51 I am writing on behalf of the Union As you are aware The National Labor Relations Board has issued an order in the unfair labor prac tice case growing out of our strike against Station KKHI The order requires KKHI to recognize and bargain with NABET Local 51 in the unit where the Union has historically had representation rights Accordingly by this letter NABET Local 51 is re questing that a meeting be scheduled to resume ne gotiations In order to prepare for these negotiations the Union is requesting that KKHI furnish it with the following information Names and addresses of all KKHI employees now assigned to bargaining unit work Wages and fringe benefits currently in effect for such employees A copy of any other written terms and condi tions of employment applicable to such employ ees Please communicate with Len Warren President of the Union in order to arrange for a meeting Very truly yours /s/ Duane B Beeson On September 14 Beebe answered the letter (Jt Exh 3) Mr Leonard Warren President NABET Local 51 945 Front Street Suite 201 San Francisco CA 94111 Dear Mr Warren This letter is in response to the letter from Duane Beeson Esq dated September 4 1987 Our reply has been delayed because of my absence from the city Mr Beeson has asked for certain information 1) Names of KKHI employees currently work ing as technicians all of whom may be reached 933 c/o KKHI 335 Powell Street San Francisco CA 94102 David Wigfield Mike Weakley Dennis Foote Ramon Zayas Rob March 2) Their wages range from $8 360 (part time) to $34 968 3) Current fringe benefits other than vacation and sick leave are Health and life insurance (non contributory) 4) There are no other written terms and condi tions of employment I trust all the above conveys all the information you seek and if you have any questions please let us know /s/ Bruce Beebe Bruce Beebe Vice President General Manager On September 24 Beebe wrote another letter to Union President Warren Mr Len Warren President NABET-Local 41 [sic) 945 Front Street San Francisco CA 94111 Dear Mr Warren As you know the NLRB has issued a bargaining order involving KKHI technical personnel and NABET In fact last week I wrote you supplying information which Duane Beeson Esquire had re quested on your behalf The Station continues to have a good faith rea sonable doubt that a majority of the technicians favor NABET as their collective bargaining agent This results from the lapse of so many years since proceedings were begun before the NLRB and the complete turn over of technical personnel in the in terim Even the permanent replacements for the strikers no longer are on the staff In order to ascertain the true facts we are going to poll the individuals in a secret ballot The vote will be held in the conference room of KKHI on the 14th floor St Frances Hotel Post and Powell Streets San Francisco between the hours of 3 30PM and 6PM on Tuesday September 29 1987 You are invited to have an observer present during the voting and if you choose to do so I would appreciate your advising my office of the person s name The ballots will be in the custody of and count ed by Mr Jack Chu who is a Certified Public Ac countant He will be instructed to give the parties only the result he is not to interrogate or otherwise 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD obtain any information from the individuals as to how they voted least the duration of any contract which might be negotiated Very sincerely yours /s/ Bruce Beebe Bruce Beebe Vice President General manager The parties agree that the above letter was the first notice to the Union of Respondents intention to conduct a poll of employees On September 25 the Union re sponded to this notice by telegram (Jt Exh 5) PMS BRUCE BEEBE DLR VICE PRESIDENT AND GENERAL MANAGER DLR KKHI HOTEL ST FRANCIS 335 POWELL ST SAN FRANCISCO CA 94102 THIS IS TO ACKNOWLEDGE RECEIPT OF YOUR LETTER DATED SEPTEMBER 24 1987 YOUR PROPOSED POLL BY SECRET BALLOT AMONG YOUR EMPLOYEES IT IN VIOLATION OF THE LAW AND WE ARE FILING AN UNFAIR LABOR PRACTICE CHARGE WITH THE NA TIONAL LABOR RELATIONS BOARD TODAY LENTER D WARREN NABET Prior to the poll Respondent prepared a letter sepa rately addressed to each of the five employees who were polled It reads as follows (Jt Exh 6(a)) To Employees Name From Bruce Beebe Enclosed are two copies of a Secret Ballot One is marked Sample and the other is not The latter is for use in a secret poll of the Sta tion s technicians to be held between the hours of 3 30 and 600 p in Tuesday September 29 in the Conference Room here at the Station The instruc tions and the alternative choices are shown on the ballot The fundamental reason for this secret ballot is to give each individual an opportunity to express his choice without having to let his colleagues know his decision In other words this secret ballot ap proach removes the peer pressure problem and lets you make your choice completely anonymously and secretly The Station does not require that you appear and/or cast your ballot That is entirely optional with you but we would encourage you to vote so that we have an objective evaluation of the staff preference You can vote in private and secretly at any time during the two hours the polls are open This is no longer a case of wait and see If the vote is negative (ths is against having NABET rep resent you) the results will be forwarded to the NLRB which then may formalize the matter by conducting an election On the other hand if the vote is affirmative (that is for NABET to represent you) then you are bound by that decision for at BRUCE BEEBE Encl Ballots PS Please bring along a picture I D such as a driver s license or a passport [P S is handwritten] Also given to each of the five employees was a separate document that reads as follows (Jt Exh 6(a)) SECRET BALLOT NOTE YOU ARE NOT REQUIRED TO PAR TICIPATE IN THIS VOTING YOU MAY AB STAIN COMPLETELY IF YOU WISH INSTRUCTIONS Read and mark your ballot in secret Do not dis cuss your decision with anyone prior to marking this ballot Do not place any identifying marks on the ballot in particular do not put your name or initials at any place on the ballot When you have marked your ballot please fold and seal the ballot Staple or tape it so that neither of the observors can see what it says Only the election judge will be permitted to open the ballot and then only after the polls close This vote is solely for the purpose of polling members of the Engineering Staff the results will be made known to the National Labor Relations Board and based on this poll that agency may or may not conduct a formal election among the Staff to determine our preference in the matter I cast my vote as follows [ ] I do NOT wish to be represented by NABET for purposes of collective bargaining with the Employer Station KKHI [ ] I choose to be represented by NABET for purposes of collective bargaining with the Employ er Station KKHI On September 29 the poll was conducted not by Jack Chu as specified in Jt Exh 4 above but by Wayne L Tomei who was retained and paid for his services by Respondent On October 22 Tomei prepared a declara Lion that reads as follows (Jt Exh 15) DECLARATION UNDER PENALTY OF PERJURY I WAYNE L TOMEI under penalty of perjury declare I am a Certified Public Accountant licensed to practice my profession in the State of California I am a partner in the firm of TOMEI and CHU Cer tified Public Accountants with offices at 595 Market Street San Francisco California On September 29 1987 at the request of the Em ployer I acted as the impartial judge and observor in the conduct of a secret ballot election among five (5) technician employees of Radio Station KKHI STATION KKHI San Francisco The purpose of the election was to ascertain the wishes of these employees as to whether they wish to be represented for collective bargaining by National Association of Broadcast Employees and Technicians Local 51 or whether they wish not to be represented for purposes of col lective bargaining by that Union In my capacity as Judge I verified the identity of each of the five persons voting to confirm each was a person eligible to vote I accepted the secret ballot of each of the five persons and after the polls were closed I counted the said ballots The result of the secret ballot was as follows NOT wishing to be represented by the Union- three (3) WISHING to be represented by the Union-one (1) one (1) eligible person did NOT vote Pursuant to instructions given each voter and to me as Judge none of the ballots contained any voter identification I am unable to identify or asso ciate any ballot choice to any individual nor as a matter of professional ethics would I divulge any information as to an individuals choice to anyone even if in fact I had such knowledge Executed at San Francisco California this 22nd day of October 1987 /s/ Wayne L Tomei I WAYNE L TOMEI under penalty of perjury say that I have read the foregoing Declaration and say that it is true of my own knowledge except for matters stated upon information or belief and as to it I believe it to be true /s/ Wayne L Tomei B Analysis & Conclusions This case presents a single narrow issue regarding the taking of a poll subsequent to the Board s certification 3 At hearing the General Counsel disavowed any intent to challenge the manner in which the poll was taken (R Exhs 13 20 22 )4 I begin my analysis with the Board s decision in Mont gomery Ward & Co supra 210 NLRB at 717 in which the Board stated the following The certification of a union as bargaining repre sentative absent unusual circumstances creates an irrebuttable presumption of continued majority status during the year following certification i After the certification year has elapsed the certificate still 3 When the challenged poll occurs prior to an election different rules apply See Kusan Mfg Co 267 NLRB 740 746 (1983) * Under the Board s decision in Struksnes Construction Co 165 NLRB 1062 (1967) an employer is required to follow certain guidelines in taking a poll of its employees to en ure that ..mployees are not coerced In 1974 the Board declined to extend the Struksnes rules to postcertification situa tions Montgomery Ward & Co 210 NLRB 717 (1974) C Morris Deve! aping Labor Law 241 (2d ed 3d Supp 1982- 1986) But see Burns Security Services 225 NLRB 271 274-275 (1976) In any event it is unnecessary to determine whether Struksnes applies to the instant case because the General Counsel has eliminated the issue from the case 935 creates a presumption of majority status by the Union but this presumption is rebuttable 2 An em ployer may also lawfully refuse to bargain with the union after the lapse of the certification year if it can be shown by objective facts that it has a reason able basis for believing that the union has lost its majority since its certification 3 However a show ing of doubt as to a unions continuing majority status requires more than an employer s mere asser tion thereof and more than mere proof of its subjec tive frame of mind 4 And evidence of dissatisfaction with the union to be of any significance must come from the employees themselves not from the em ployer on their behalf 5 Applying these well established principles to the instant case it follows that absent valid objective considerations justifying a belief in the Union s lack of continuing majority status a point on which we have already expressed our agreement with the Ad ministrative Law Judge the Respondent was not le Bally enti led to seek to undercut the continuing majority status of the Union by itself initiating a poll of employee sentiment To conduct such a poll without objective considerations casting doubt on the majority status is thus itself a violation of Sec tion 8(a)(5) and it would be wholly contrary to the purposes of the Act for this Board to rely upon the fruits of an unfair labor practice to justify a dishon onng of the bargaining obligation Hence the Re spondent s refusal to bargain without the support of valid objective considerations and based solely on the outcome of the polls constituted a violation of Section 8(a)(5) of the Act i Ranch Way 203 NLRB No 118 Ray Brooks v NLRB 348 US 96 98-99 (1954) 2 Ranch Way supra Celanese Corporation of America 95 NLRB 664 672 3 Ranch Way supra United States Gypsum Company 157 NLRB 652 655 Celanese Corporation of America supra 4 Laystrom Manufacturing Co 151 NLRB 1482 1484 6 Massey Ferguson Inc 184 NLRB 640 Terrell Machine Com pony 173 NLRB 1480 1482 See also American National Insurance Co 281 NLRB 713 (1986) 5 Professor Gorman elaborates on the Board s Rules re cited above In effect the Board holds that since the employer is required to demonstrate reasonable grounds to doubt the unions majority before it can secure a Board election no less a showing should justify the em ployer s own election poll and a re testing of the unions status 6 Before turning to the record I note that various courts of appeals have expressed disagreement with the Board s Rules recited above For example in Thomas Industries v NLRB 687 F 2d 863 867 (6th Cir 1982) the court s In the instant case the General Counsel also disavowed any intent to raise an issue based on Sec 8(a)(5) of the Act stating that to the extent the evidence might suggest such an issue that matter is being handled in a manor [sic] outside of this proceeding and we re hopeful that we can reach an accommodation with the Employer (R Exh 14 ) R Gorman Basic Text on Labor Law 112 (1977) 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD held that an employer may poll its employees to deter mine their union sentiment if it has substantial objective evidence of a loss of union support even if the evidence is insufficient in itself to justify withdrawal The court rejected the Board s view that over 50 percent of the of fected employees must have rejected the incumbent union as their representative before the employer may take a poll Because this is the same showing necessary before an employer may lawfully refuse to bargain with a certified union the court noted that under the Board s view an employer would only be allowed to take a poll under circumstances where no poll was necessary At least two other courts of appeals have joined the Sixth Circuit and rejected the Board s view on when an employer may properly poll its employees regarding em ployees desire to be represented by an incumbent union See NLRB v Thompson Inc 651 F 2d 1141 (5th Cir 1981) and Forbidden City Restaurant v NLRB 736 F 2d 1295 (9th Cir 1984) However these courts imposed on employers the additional requirement that they provide to the unions notice of the intention to poll 7 Now it is appropriate to search the record to ascertain whether Respondent has made a showing either under the Board s standards or the court s which would justify the taking of the poll in this case The asserted basis for the poll is contained in Beebe s letter of September 24 (Jt Exh 4) published in the facts portion of this decision The assertions in the letter do not constitute evidence Assuming for the sake of argument the accuracy of these assertions however I find that the mere lapse of time and turnover of employees is not sufficient to rebut the resumption of continuing majority support by employees for the Union 8 Accordingly under either the Board s view or the court s I find insufficient evidence to pro vide a legal basis for Respondent to poll its employees I find further that Respondent violated Section 8(a)(1) of the Act when it polled its employees without having a legal basis to do so 9 CONCLUSIONS OF LAW 1 Buckley Broadcasting Corporation of California d/b/a Station KKHI is an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act 2 National Association of Broadcast Employees & Technicians Local 51 AFL-CIO-CLC is a labor orga nization within the meaning of Section 2(5) of the Act 3 By polling its employees regarding whether the em ployees desired to continue to be represented by the Union for purposes of collective bargaining without first having valid objective considerations justifying a belief in the Union s lack of continuing majority status Re spondent violated Section 8(a)(1) of the Act THE REMEDY Having found that Buckley Broadcasting Corporation of California d/b/a Station KKHI engaged in an unfair labor practice I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirm ative action to effectuate the policies of the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend edio ORDER The Respondent Buckley Broadcasting Corporation of California d/b/a Station KKHI San Francisco Califor nia its officers agents successors and assigns shall 1 Cease and desist from (a) Polling its employees regarding whether the em ployees desired to continue to be represented by the Union for collective bargaining without first having valid objection considerations justifying a belief in the Union s lack of continuing majority status (b) In any like or related manner interfering with re straining or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its San Francisco California radio station copies of the attached notice marked Appendix i i Copies of the notice on forms provided by the Regional Director for Region 20 after being signed by its author ized representative shall be posted by Buckley Broad casting Corporation of California d/b/a Station KKHI immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by it to ensure that said no tices are not altered defaced or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply ° The three courts of appeals cited above have also held that employ ers must comply with the Struksnes guidelines in postcertification situa tions involving withdrawal of recognition 6 Compare the facts in the instant case to those in Boaz Carpet Yarns 280 NLRB 40 (1986) In Boaz the Board found that the poll of employ ees and the subsequent withdrawal of recognition were lawful because an overwhelming majority of the respondents employees had signed a pets tion disavowing the union and the petition was presented to respondent prior to the poll In addition the respondent conducted its poll in a manner that did not infringe on the employees Sec 7 rights 9 See Louisiana PacIfic Corp 283 NLRB 1079 1080 (1987) 10 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 put poses " 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 STATION KKHI 937 APPENDIX To choose not to engage in any of these protect 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 themselves To form join or assist any union To bargain collectively though representatives of their own choosing To act together for other mutual aid or protec tion ed concerted activities WE WILL NOT poll our employees regarding whether the employees desired to continue to be represented by the National Association of Broadcast Employees & Technicians Local 51 AFL-CIO-CLC for collective bargaining without first having valid objective consider ations justifying a belief in the Union s lack of continu ing majority status WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act BUCKLEY BROADCASTING CORPORATION OF CALIFORNIA D/B/A STATION KKHI