Atlanta Broadcasting Co.

National Labor Relations Board - Board Decisions

Sep 15, 1948

79 N.L.R.B. 626 (N.L.R.B. 1948)

In- the Matter' of J. W. WOODRUFF ' D/B/A' ATLANTA BROADCASTING
COMPANY and AMERICAN FEDERATION OF RADIO ARTISTS (A. F.'L.)
Case No. 10-C-1940.-, Decided . September 15, -1948 -
DECISION
AND
ORDER
On June 26, 1947, Trial Examiner, Sidney Lindner issued this Inter-,
mediate Report in the above-entitled proceeding, finding that•,the
Respondent had engaged in and was'engaging 'in certain unfair labor,
practices ,) and recommending that he cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the' Inter-
mediate Report attached hereto. The Trial Examiner also found,
that the Respondent had not engaged in certain other unfair labor
practices. ' -
Thereafter, the Union filed exceptions to the Intermediate Report
and a'supporting brief.2 The Union requested oral argument. Be-
cause the-record and the exceptions and brief, in our opinion, ade-
quately present the issues and the positions of the parties, the request'
for oral argument is hereby denied. '
On, September 29, 1947, the• Respondent' filed with the' Board a'
Petition for Dismissal, in which it alleged that the Union and its
parent organization, the American Federation of Labor, had not
complied with the filing requirements of Section 9 (f), (g), and (h)
of the Act, as amended, and contended that the Union was therefore
ineligible to proceed further with the case. The Union filed an answer
to the petition. As the Board has previously held, the failure of a
charging union to comply with the filing provisions of the Act does
1 The provisions of Section 8 (1), (3), (4 ), and (5 ) of the National Labor Relations Act,
which the complaint herein alleged were violated, are continued , without any change
material to this proceeding, in Section 8 (a) (1), (3 ), (4), and ( 5) of the Act , as amended.
by the Labor Management Relations Act, 1947.
2 In its brief , the Union requests that the hearing be reopened for the purpose of receiving,
further testimony by Lurie, one of the employees alleged to have been discriminatorily
discharged . In view of the fact that Lurie was present as a Board witness at the hearing;'
and could have been called on rebuttal to give the testimony which the Union now seeks
to adduce , there appears to be no valid reason for reopening the bearing for this purpose.
The Union ' s request is therefore denied.
79 N. L . R. B., No. 86.
626
ATLANTA BROADCASTING, COMPANY 627
not preclude the Board from adjudicating unfair labor practice cases-
such as this,. in which complaint issued before August 22,.1947; or to
issue , appropriate orders therein.3 Moreover, it appearsy thatthe
Unio,n,is now in compliance.. The Respondent's petition,for dismissal
is therefore denied. -
The ;Board 4 has reviewed the rulings made by the Trial Examiner
ait' the hearing and finds that no; prejudicial error was - committed.
The rulings are hereby affirmed. 'The Board has considered the Inter-
mediate Report, the, exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of -the Trial Examiner insofar as they are consistent with this
Decision-and Order.
-1. We: agree with- the Trial Examiner that the- evidence isi inslif-
ficient.to sustain the allegation of the complaint that employeesrTheo-
dore Fenster- and James Lurie wire discriminatorily, discharged:
Thus,.Fenster and Lurie admitted that, at the time of their discharge,
Station Manager Speight said that they were being discharged for
having deliberately conspired to miss a certain scheduled,newscast.
At the hearing, Speight explained that they were discharged- for "re-
fusal of duty." As to Fenster, the'Union concedes in its brief that
he was at fault in failing to make the newscast. It contends, however,
that Fenster's misconduct was not the real reason for his discharge.
As to Lurie,, it contends, that there is no credible evidence to support
a finding that he was guilty of any dereliction of duty. However, the
issue is not whether Fenster and Lurie were actually guilty of miscon-
duct, but whether Speight believed that they were, and discharged
them for that reason. In view of Speight's testimony, which the Trial
Examiner credited, that he had received such reports from Fincher,
the engineer on duty at the time of the missed newscast; and from
Minton, the chief engineer, we cannot say that Speight did not honestly
believe that Fenster and Lurie had deliberately engaged in miscon-
duct, or that this belief was not the motivating cause of the discharges .5
We shall therefore dismiss the complaint insofar as it alleges that
Fenster and Lurie were discriminatorily discharged.
2. The Trial Examiner found that the Respondent, by refusing to
reemploy Lawrence J. Mellert because he had filed charges before the
8 Matter of Marshall and Bruce Company, 75 N. L. R. B. 90.
4 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-man
panel consisting of the undersigned Board Members [Chairman Herzog and Members
Murdock and Gray]'.
5 Although there is evidence that other newscasts had been missed but the announcers
involved had never been discharged on that account, the record reveals no other newscast
that had been deliberately missed The penalty of discharge in this case, therefore, does
not appear to be so unreasonable , as to impel a finding that the discharges were
discriminatory. -
(628- DECISIONS OF' NATIONAL` LABOR' RELATIONS BOARD
Board;. engaged in unfair labor practices' within the 3 meaning.of`
Section 8" (4) ' of-'the Act'.' He' therefore recoinmelyded'that' the Re''-.'
.spondent offer Me11'ert. reinstatement' and- make Min whole for any'
losses suffered' by reason of'the R'espondent's' discrimination against'
him. In the absence of exception by the Respondent;'we ad'opt-this'
finding and recommendation, and shall issue our order accordingly.
We- also find that, then'esp%Ldent;;by-his.violation of Sect
interfered with, restrained, and' coerced his employees in the exercise
of -the rights guaranteed in Section'T of'the Act;-and thereby- violated
Section 8-(1).6-
ORDER.
Upon the, entire) record-. in the case; ands pursuant, to Sections 10 (c)
,of'thie.National :Laboi; RelationsJAct, as amended, the National-Labor,
Relations-.Board-.hereby orders that the Respondent;- J. W. Woodruff-
d/b/a. Atlantat Broadcasting., Company; Atlanta, Georgia; and'- his
agents, successors; and assigns; shall :
1. Cease and. desist from discharging; refusing' to. reinstate, or
reemploy;. or otherwise; discriminating • against any.-employee because
lie has filed charges or given testimony-'under •the'Act, or in any.'other'
manner interfering with, the right. of employees to file and..prosecute'
charges'and.to give testimony•underl tEiePAct.
2:, Take: the following affirmative action; . which, the Board finds,
will effectuate the policies-Of the',Act%
(a) r Offer. Lawrence- J. Mellert' immediate and full reinstatement
to hisrformer'or;a substantially equivalent position, withoutprejudice,
to,hisseniority,andiother.rights-and:privileges; -
(b), Make whole Lawrence J. Mellert' for any loss, of, pay, suffered=
byi reason'of the Respondent's discrimination- against-him, by payment
to shim-.of asum of)money equal,to the amount which•he n'ormailTywouldl
have,earned as wages from, the date -of 'the discrimination to the date
of:the Respondent's=offer of reinstatement, less-his-net-earnings during
said,period ;
(c) Post at his-Station WATL in Atlanta, Georgia, copies of-the
notice attached to.the Intermediate Report, marked "Appendix A-." T
Copies