Capital Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1941

30 N.L.R.B. 146 (N.L.R.B. 1941)

In the Matter of CAPITAL BROADCASTING- COMPANY, INC., and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 443,
AFFILIATED WITH THE A. F. L.
Case No. C-1669.-Decided March 8, 19/1
Jurisdiction : radio broadcasting industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: questioning concerning union member-
ship ; transfer following presentation of union contract of certain duties
performed by union employees with respect to which union was seeking to bar-
gain ; promulgation of restrictive rules which are applicable solely to union
members.
Discrimination: discharge of wife of union member immediately following
presentation of union contract coupled with suggestion that her husband
might be replaced; discharges for refusals to sign certain pay slips at a
time when the union was negotiating for a contract and respondent knew that
the union had advised its members not to sign these pay slips; discharge
of union leader for misconduct without permitting an explanation.
Collective Bargaining: majority established by membership in union-failure
to negotiate in good faith; by meeting with but not agreeing to the
proposals of the union and failing to advance counterproposals ; by changing
duties of and imposing restrictive rules on union members; by discriminatory
discharges of all union members ; by withdrawal from union meetings
following discharge of union members.
Remedial Orders : all discharged employees ordered reinstated; three dis-
charged employees to receive back pay from date of discharge to date of
issuance of Intermediate Report and from date of order to date of offer
of reinstatement ; back pay from date of discharge to date of offer of
reinstatement when employee refused offer of reinstatement in protest against
employer's unfair labor practices.
Unit Appropriate for Collective Bargaining : all radio engineers.
Mr. C. Paul Barker, for the Board.
Hill and Hill, by Mr. William Inge Hill, of Montgomery, Ala.,
for the respondent.
Mr. 0. A. Walker, of Shreveport, La., Mr. James R. May, of
Montgomery, Ala., and Mr. Lawson Wimberly, of Washington, D. C.,
for the Union.
Mr. Louis S. Penfield, of counsel to the Board.
30 N. L. R. B., Na. 25.
146
CAPITAL BROADCASTING COMPANY, INC. 147
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, Local 443, affiliated with the
A. F. of L.,' herein called the Union, the National Labor Relations
Board, herein called the. Board, by the .Regional Director for the
Fifteenth Region (New Orleans, Louisiana), issued a complaint dated
May 9, 1940, against Capital Broadcasting Company, Inc., Mont-
gomery, Alabama, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac.
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein, called the Act. Copies of the complaint,
accompanied , by notices of hearing, were duly served upon the
respondent and upon the Union.
With respect to the unfair labor practices the complaint alleged,
in substance, that the respondent (1) on or about December 4, 11, 30,
1939, and on or about January 8, 1940, and at all times thereafter,
refused to bargain collectively with the Union as the exclusive rep-
resentative of all the engineers and electricians employed by it al-
though the Union then represented a majority of such employees
for collective bargaining and said employees constituted an appro-
priate bargaining unit; (2) on or about December 6, 1939, discharged
or laid off and thereafter refused to reinstate Mrs. Harold Peck
because her husband, Harold Peck, was a member of and active on
behalf of. the Union; (3)', during the "period between December 30,
1939, and January 7, 1940, discharged or laid off and thereafter
refused to reinstate H. R. Johnson, Harold Peck, and John Albert
Thompson because of their membership in or activities on behalf
of the Union; (4) between December 3, 1939, and January 8, 1940,
and thereafter, questioned its employees,about their union affiliation,
denied them privileges ' enjoyed prior to, ' and harrassed and em-
barrassed them because of such affiliation, warned them to drop out
of the, Union, and by other acts; and conduct attempted to and did
interfere with, restrain, and coerce its employees in their right to be
represented by a labor-organization,; (5) by the foregoing and other
acts and conduct interfered with, restrained,, and coerced its em.
ployees in the ,exercise of rights guaranteed by Section 7 of the Act.
' Incorrectly designated in some of the formal papers as "International Brotherhood of
Electrical workers , affiliated with the A. F. L "
440135-42-Vol 30-=11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 31, 1940, the respondent filed an answer denying generally
the allegations of unfair labor practices contained in the complaint.
Pursuant to notice, a hearing was held in Montgomery, Alabama,
on June 3, 4, 5, and 6, 1940, before W. P. Webb, the Trial Examiner
duly designated by the Board. The Board and the Company were
represented by counsel and participated in the hearing. The Union
appeared' by its' representatives. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. - During the course
of the hearing the Trial Examiner made various rulings on motions
and on objections to the admission of- evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju=
dicial errors were committed. The rulings are hereby affirmed.
On September 12, 1940, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon all the parties, in
which he found that the respondent had not engaged in unfair labor
practices within the meaning of Section 8 (1),' (3), and (5) and
Section 2 (6) and (7) of the Act, and recommended that the com-
plaint against the respondent be dismissed in its entirety. On Sep-
tember 28, 1940, the Union filed exceptions to the Intermediate Report
and to-the record. On October 11, 1940, the Union requested- oral
argument before the Board and submitted to the Board a brief in
support of its exceptions.
' On November 18, 1940, pursuant to notice,- a hearing for,the -pur-
pose of oral argument was held before the Board in Washington,
D. ' C. The respondent and the Union were represented. by
counsel, presented oral argument, and otherwise participated in the
hearing. The Board has considered the exceptions 'and brief filed
by the Union and in so far as the exceptions are consistent with the
findings of fact, conclusions of law, and order set forth below, hereby
sustains them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Capital Broadcasting Company, Inc., an Alabama corporation,
owns and operates a radio station located in Montgomery, Alabama,
known by the call letters WCOV. It is duly licensed by the Fed=
eral Communications Commission to operate its radio transmitting
apparatus on a frequency of 1210 kilocycles with a power of 100
watts for the purpose of broadcasting daily radio programs. - .
Programs broadcast from WCOV are consistently received within
a radius of from'18 to 25 miles of Montgomery within the State of
Alabama, but in some instances test and regular programs are heard
CAPITAL BROADCASTING COMPANY,, INC. 149
in States other than Alabama. WCOV is not a part of any chain
of radio stations broadcasting on a national hook-up but on occasion
it broadcasts play-by-play descriptions of football and baseball games
and other programs originating in States other than Alabama and
sent to WCOV by direct wire. Five times daily for 10-minute periods
WCOV broadcasts world-wide news furnished it directly from Trans-
radio News Service, New York City. A substantial part of its pro-
grams consist of playing records rented from a Hollywood, California,
company and shipped back and forth by express between WCOV
and the Hollywood company. Two times a day it broadcasts New
York Stock Exchange reports furnished by direct wire from New
York. During the baseball season it regularly broadcasts baseball
scores, supplied by direct wire through Western Union, of games
played in various States of the United States. All the broadcasting
equipment used by WCOV was purchased and shipped to it from
the Collins Radio Company, Cedar Rapids, Iowa.
In addition to issuing to WCOV the above-mentioned liscense to
broadcast, the Federal Communications Commission licenses WCOV's
radio engineers, approves the equipment it uses, conducts regular
tests to check its frequency, and requires that it regularly submit
financial and other reports, and, within certain limits, controls ma-
terial permitted in its broadcast programs. Approximately 10 per-
sons are employed in connection with the operation of WCOV.
IS. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 4,43. is a
labor organization affiliated with the American Federation of Labor.
It admits to membership, among others, all licensed radio engineers
employed by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology
In the fall of 1939 the Union commenced to organize the radio
engineers employed at radio stations WCOV and WSFA in Mont-
gomery, Alabama. By approximately the middle of November 1939
the Union had enrolled as members John Albert Thompson, H. R.
Johnson, and Harold Peck, the only persons then employed as radio
engineers at station WCOV, and all such engineers employed at
WSF„A. At WCOV these radio engineers were employed to op-
erate, test, and maintain the electrical equipment -used to broadcast
radio programs. In December 1939 their' duties included-operation,,
maintenance, and repair of electrical equipment at the so-called trans-
mitter house from which the broadcast programs are put on the air,.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance and repair of electrical equipment in a studio situated
about 4 miles from the transmitter house from which a majority of
such programs originate and are relayed to the transmitter house,
and making so-called "remote pick -ups," an operation which consists
of setting up the electrical apparatus used to relay to the transmitter
house programs originating at points outside the studio. For these
services Thompson , the chief engineer , received $150 per month and
Johnson and Peck received $18.50 and $15 per Week, respectively.
On December 4, 1939, the Union presented to G. W. Covington,
president of the respondent , a proposed closed-shop contract cov-
,ering the wages, hours , and other conditions of employment of the
above-mentioned radio engineers .2 The proposed contract proscribed
lock-outs or work stoppages over matters relating to the agreement,
and provided inter a 'lia for arbitration of disputes , a 9-hour day with
all time in excess ' thcreof compensated at overtime rates, a basic 40-
hour week , a minimum weekly rate of $53.33 for the chief engineer,
and $40 for the assistant engineers With overtime hourly rates of
$2 and $1.50, respectively , and for time and a half for any engineer
on duty who is' required to copy news sent over radio telegraph. In
addition to provisions for vacations with pay and compensation for
injuries incurred by employees while on duty , the' proposed agree-
ment further provided that the respondent would pass no rule con-
flicting with the terms of the contract or restricting the personal
liberties of the engineers ; that the respondent , except in cases of
dismissal for moral turpitude or wilful neglect of duty, would dis-
miss no engineer without giving 2 weeks ' notice with pay; and that
the respondent would furnish transportation to any engineer re-
quired to make a remote pick-up, the time of the engineer making
such pick-up to be computed from his departure from the studio
until .his return.
With the presentation of this contract on December 4 the respond-
ent for the first time was apprised that its engineers were members
of the Union. While the terms of the contract were not discussed at
the December 4 meeting , the Union at that time informed Covington
that an identical contract had been presented to WSFA and proposed
that both contracts be discussed at a later date at a joint meeting
with officials of both stations.
2 The agreement uses the term "technicians " to describe the persons covered thereby and
defines a technician as "any person employed for the operation and/or maintenance and/or
construction and/or repair of any transmitting and/or receiving equipment . . . as used
in radio broadcasting." It was brought out at the heal mg that the only persons employed
at WCOV elig ible for membership in the Union and purported to be covered by this contract
were the three radio engineers above described We shall construe the term technicians
as used in the proposed contract to be limited to such radio engineers alone and not to
include announcers, Transradio Press operators , and others whose duties may include, in
part, the operation of some transmitting or receiving equipment
CAPITAL BROADCASTING COMPANY, INC. . 151
-On December 4, following the presentation of the aforesaid con-
tract, Covington visited the transmitter house, and engaged in a
conversation with Johnson, the radio engineer then on duty. John-
son testified that Covington asked him if he had joined the Union
and that when Johnson replied that he "didn't know," Covington
stated that Johnson "certainly should be able to know whether . . .
[he] belonged to the union or not." Johnson then told Covington
that he "had reason to believe that his application; had been accepted"
and Covington commented that if Johnson "had not joined it he
would advise . . . [him] to give it a lot of consideration," and then
reminded him who had "been signing . . . [his] checks for the last
year." Covington then asked if Johnson had the interests of the
station at heart and when Johnson replied in the affirmative, com-
mented that it was "quite evident where . . . [his] interest is" if he,
joined a union. The conversation was thereupon concluded and
Covington left the transmitter house. Covington admitted asking
Johnson if he had joined the Union and that Johnson had first re-
plied that he "didn't know," and later explained that "he had his
application in." Covington denied any further discussion with,
Johnson "with reference to his union affiliation" or that he "threat-
ened" Johnson because of such affiliation. The Trial Examiner
credited Covington's testimony and found that Covington did noth-
ing more than question Johnson about his union membership. We
are unable to agree with the Trial Examiner and we do not believe
that Covington concluded the conversation upon hearing that John-
son had joined the Union. Covington had not questioned the Union's
majority status earlier in the day and he offered no explanation for
questioning Johnson thereafter.3 Moreover, Covington, while deny-,
ing categorically that he threatened Johnson, did not specifically
deny the accuracy of Johnson's version of the conversation. We be-
lieve, furthermore, that Johnson's testimony with respect to the entire
conversation is consistent with that part of the conversation admitted
by Covington. In the light of all the testimony we find that
Covington made the statements attributed to him by Johnson.
During the same day, December 4, following the presentation of
the proposed contract, Covington informed Lucille Peck, the wife of
Harold Peck, the engineer, that her services would not be required
after December 9. On December 6 he paid her through the 9th and
told her that she need not return thereafter. Mrs. Peck had been
'Questioning individual employees regarding their union affiliations has been held in
itself to be a violation of Section 8 (1) of the Act See Matter of Greensboro Lumber
Company and Lumber and Sawmill Workers Local Union No. 2688, 1 N . L R. B. 629;
Trenton Garment Company and International Ladies Garment Workers Union , 4 N. L. R. B.
1186; Matter of William Randolph Hearst, Hearst Corporation, American Newspapers
Inc. and King Features Syndicate , Inc. and American Newspaper Guild, Seattle Chapter,
2 N. L. R. B. 530 , enf'd as mod N . L. R. B. v. Hearst et at, 102 F . ( 2d) 658 (C. C. A. 9).
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed since September 1939 to answer the telephones and per-
form stenographic and clerical work at the respondent's studio and
offices. For such services she received a salary of $10 a week. The
respondent contends that it discharged Mrs. Peck to effect a reduc-
tion in its, operating expenses. There is abundant evidence that for
some time prior to December 4 the respondent's business had not
been profitable. Covington testified that in August 1939 a diminish-
ing income and pressure from creditors had made apparent to him
the necessity for reducing operating expenses, and that thereafter
he considered, and in some instances adopted, measures directed
toward this end.4 On December ,1 he effected a reduction in, rent by
placing the program and commercial departments, which formerly
had occupied two rooms, in a single office. This change, according to
Covington, resulted in more persons becoming available to answer
telephones thereby eliminating, in part, Mrs. Peck's chief function
and enabling him further to reduce expenses by " dispensing with
her services. As heretofore pointed out, Mrs. Peck performed duties
in addition to answering the telephone and she testified, without
contradiction, that for some time preceding her lay-off, Covington
and other officials had been instructing her in new duties which were
to arise as a consequence of this rearrangement of the office, and that
on the day preceding her discharge Covington had been working
with her at rearranging certain files and had told her to arrange
them in the "way it would be most convenient to . . . [her]." Mrs.
Peck further testified without contradiction that about 2 weeks before
her discharge, in contemplation of opening charge accounts, she had
received assurances from both Mrs. E. B. Robinson, the secretary and
part owner of the, respondent, and R. B. Raney, the commercial
.manager, that her "job was safe."
Although Covington did not regularly dictate to Mrs. Peck, he
called her to his office on the day of her discharge and dictated, to
her certain letters addressed to four previous applicants for posi-
tions as radio engineer with the respondent, in which he requested
that such applicants advise him if they were still interested in jobs
with the respondent. Covington made no explanation why these
letters were dictated to Mrs. Peck rather than to Mrs. Robinson, who
regularly took his dictation. In connection with these letters he tes-
4 In August 1939 Covington reduced the cost of news furnished by Transradio Press In
the ensuing months salaries of certain department heads were reduced and certain per-
sonnel changes were made, including the discharge of one announcer and two office em-
ployees. In September the economies effected by these changes were in part offset, however,
by hiring Mrs Peck in the office and Harold Peck as engineer. On December 1, in an
etlort to improve the quality of the announcing staff Covington discharged two announcers
and hired two more highly paid announcers . One of these was subsequently discharged
in January 1940 and not replaced. In January Covington further reduced the cost for
the rental of records used In broadcasts by subscribing to a less extensive service.
CAPITAL BROADCASTING COMPANY, ZINC. - 153
tified that the terms of the contract presented that day "would have
been utterly impossible for the Capital Broadcasting, Company to
comply- with," and that the Union, intimated that failure to sign
such .contract might result in a walk-out of the radio engineers. Ac-
cordingly, he feared that a strike might cause the station to go off
the air if replacements were not available, and thus be subject to
the loss of its Federal Communications Commission license. - "So in
self-defense" he testified, he felt he "had better go and write some
engineers who had formerly. applied to . . . [him] for posi-
tions." -
Shortly after December 4 Covington transferred remote pick-up
work from the engineers to the station announcers, and at the same
tithe denied to the engineers further use of an automobile theretofore
used by them.. As above-mentioned, making remote pick-ups was
up to this time one of the regular duties of the engineers and the
proposed contract specified that they should do this work and pro-
vided for minimum hours with time and a half for overtime. The
automobile, used chiefly to facilitate making remote pick-ups, was
owned by Covington but for a considerable period it had been placed
in the custody of Thompson and was regularly used by him and the
other engineers. Covington at no time consulted with the Union
or with any of the engineers concerning the transfer of this work.
He testified that making remote pick-ups is a non-technical job, that
the transfer of such work to the announcers effected- a reduction in
the work of the engineers without a reduction in their pay, and
that the use of the automobile was naturally transferred to the em-
ployees thereafter making the remote pick-ups.
One or 2 days after December 4, Covington issued instructions for-
bidding the engineers to use the telephones at the transmitter house
except to call the studio, and forbidding visitors at the transmitter
house without a permit signed by him. The transmitter house is
out of town,and somewhat inaccessible and the hours worked there
by the engineers are irregular. Prior to this time it had been
customary, and a matter of great convenience, for the engineers to
use the telephone there located to call taxis and communicate with
their homes. There is no showing that employees at the studio
were similarly restricted in their use of the telephone or that the
adoption of such a policy at the transmitter house effected an econ-
omy in operation. Visitors, although never permitted to pass
beyond a certain rail, formerly had been permitted admission to
other parts of the transmitter house without a special permit.5
5 The Trial Examiner found that a similar rule was in effect with regard to visitors in
other radio stations. The record shows that WSFA, the only other radio station referred
to, had a rule prohibiting ordinary visitors but that engineers from other stations were
permitted to visit the transmitter house at any time.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first joint meeting for collective bargaining was held on Decem-
ber 11 , at the WSFA office. It was attended by Covington , representing
WCOV, Howard Pill, representing WSFA, and Shelkofsky and Dun-
can, engineers at WSFA, Thompson, the chief engineer at,WCOV,
and James R. May, the international representative , all representing
the Union . Most of the time at the meeting was taken up "by'argu-
ment from the two stations as to whether or not they would sign an
agreement with the Brotherhood ." On December 12 the same _ parties
again met and Covington and Pill requested that further meetings be
postponed until after the Christmas holiday rush season . The union
representatives proposed that if Covington acid Pill would agree that
the provisions of. any contract later signed should be retroactive to
December 4, it would have no objection to delaying further negotia-
tions. The parties reached no agreement on this point , but the Union
consented to postpone the meeting as requested when it was agreed
that Covington would increase the weekly wages of both Peck and
Johnson immediately and that both employers would later meet with
the Union continuously until "the agreement was signed , or settlement
made by the parties."
On December 23 for the first time the respondent requested each
salaried employee to sigh a so-called "pay slip" before obtaining his
weekly salary check. These pay slips were to be signed in two places.
The first signature acknowledged receipt of the amount due for a
particular week and the second that this amount was "in full payment
of all wages to date." Concerning these pay slips Covington testified
that following a visit by a representative of the Wage and Hour Divi-
sion of the Department of Labor the preceding week, he had made
inquiries but had been unable to ascertain with certainty, whether
employees at WCOV were subject to,the Wage and Hour provisions
of the Fair Labor Standards Act,s herein called the Wage and Hour
Law, but he had been advised that until the question could be definitely
determined he should keep accurate employment records- for all em-
ployees. Pursuant to this advice and without directly consulting
representatives of the Wage and Hour Division concerning their re-
quirements for compliance or conferring with the Union regarding its
position, he prepared and presented these pay slips.
Prior to receiving their December 23 pay checks, all the salaried
employees , except Johnson , signed both portions of these pay slips as
requested. Thompson, who was paid on a monthly basis and conse-
quently received no check on December 23, advised Johnson to sign only
the first portion of the pay slip acknowledging receipt of the amount
due for that particular week. Johnson followed this advice . - At a union
meeting held sometime between -December 23 and 30, 1940 , the Union
52 Stat. 1060 , 53 Stat. 1266.
CAPITAL BROADCASTING COMPANY, INC. 155
decided - that signing the second part acknowledging the amount ' re-
ceived as in full payment of all wages might have an adverse effect
on any claims for overtime which might arise if the respondent should
be found subject to the Wage and Hour Law, or if a collective contract
with•retroactive provisions-should be entered into between the respond-
ent and the Union. Thompson, Peck, and Johnson were all present at
this meeting and were advised not to sign the second part of the pay
slip when next requested by the respondent.
On December 30 the respondent discharged H. R. Johnson. ' John-
son had been employed as a radio engineer by the respondent since
December 15, 1938. Johnson called' at the respondent's business office
on that date to get his weekly salary check. Covington presented
him with a pay slip of the type above described which Johnson
refused to sign telling Covington that he had been advised not to
do so. Covington told him that it was "a rule of the company" that
all' eihployees sign these pay slips. Johnson then requested per-
mission to 'consult Thompson. Covington replied that if Johnson
"was going to have to consult Thompson every time . . . [he] did
anything around the station . . '. [he] had better work for Thomp-
son," and if he "couldn't abide by the rules, why we [the respondent]
couldn't use him any more." Johnson thereupon left and his salary
check was later mailed to him. Johnson at no time made a specific
claim for overtime wages due or that the amount set forth on the
slip was not the amount due for that week. He testified that he
feared that signing might adversely effect any claim which might
arise and upon advice of the Union he had determined not to sign
the second portion of the pay slip. The Trial Examiner found that
Covington was not aware that Johnson was acting on the advice of
the Union. We do not agree with this finding. The record is clear
that Johnson told Covington he had been advised not to sign the
pay slips and requested permission to consult Thompson before his
final refusal. Since Thompson had represented the Union at the
-December 4, 11, and 12 collective bargaining meetings and since the
question of whether the provisions of the proposed contract would
be retroactive was still pending as a subject of collective bargaining
it is clear that Covington understood that Johnson was acting on the
advice of the Union and sought to consult Thompson in his capacity
as union representative. It is clear, further, that Covington was
aware that the question presented by the pay slips presented an issue
that was the subject of collective bargaining. We find that Cov-
ington had knowledge that Johnson's refusal was based upon advice
from the Union.
On January 3 another joint meeting for collective bargaining
was held at Pill's office and attended by the same parties. The union
representatives first sought to discuss the pay slip`s and the reinstate-
156 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
ment of Johnson. Covington stated that since these quest.ions,did
not concern WSFA they should be discussed at a separate meeting
in his office. Such meeting was arranged for that afternoon. May
testified,, without contradiction, that the remainder of the morning
meeting was "more or less of a repetition of the conferences held prior
to that time," that both Covington-and Pill repeated that-they had
not "made up . [their] mind whether to sign an agreement or not;"
and that the Union was unable to get "either party to agree to any-
thing or enter into a discussion on any point." The,union representa-
tives requested that the stations submit counterproposals but ' none
were forthcoming and the meeting adjourned. ,
Three days later,, on January 6, 1940, the respondent discharged
Harold Peck. Peck had been employed,as a radio engineer by the
respondent since September 24, 1939. On the afternoon , of Jan,
nary 3, 1940, Peck, who had not yet received his December 30 salary
check, accompanied May and Shelkofsky when they went to Coving-
ton's -office for the conference concerning the pay slips and the
reinstatement of Johnson. Upon arriving at the 'office Peck re-
quested his check but Covington demanded that-he first sign a pay
slip. Peck expressed willingness to sign the first part of the slip
but refused to sign the second part,. , All the parties discussed the
discharge of Johnson, Covington explaining that it had been caused
by Johnson's failure to comply with the rules and sign. a pay slip.
May and Shelkofsky testified that they then informed Covington
that the Union had advised its members not to sign the second part
of these pay slips because signature might adversely affect possible
claims for overtime under the Wage and Hour Law, and because
the Union believed that this rule "had been put into effect because
of our [the Union's] having mentioned retroactive pay in confer-
ences previously." Covington denied that he was so informed by the
union representatives and the Trial Examiner credited his, testimony.
We do not agree with the Trial Examiner. This conference be-
tween Covington and the two,union representatives was arranged for
the, express purpose of discussing the pay slips and the reinstate-
ment of Johnson, whom Covington had admittedly discharged .for
refusing to, sign a. pay, slip, and the refusal by Peck presented an
identical issue. Under the circumstances it seems clear that Coving-
ton, who, as we have found above, already knew that 'Johnson's
refusal was based on advice of the, Union, must have been fully
aware that Peck had been smiilarly advised, and, as the - union rep-
resentatives testified, must further have been informed as to the
reasons for the Union's position. We find that at the time of, Peck's
discharge Covington had full knowledge that, Peck's refusal to sign
the pay slips was based on the -advice of the Union and that he was
fully apprised of the reasons for the position taken by the Union:
CAPITAL BROADCASTING COMPANY, INC. ^ 157
At the conclusion of the discussion Covington still insisted that
Peck sign the second part of the slip and upon Peck's refusal told
him "if he couldn't comply with a rule of the company, why we
wouldn't need him anymore." The conference was then concluded
and Peck's check was later mailed to him with a letter stating, that
because of his failure to comply with the rules his services would
not be required after January 6.
On•January 6 another joint meeting was held in Pill's office attended
by, the same parties as before, and by O. A. Walker, international
representative of the Union. Walker testified, without contradic-
tion, that as each paragraph was. read he "would endeavor to get
both of the employers to state whether that particular part of the
agreement was acceptable or not, and Mr. Pill occasionally would
agree that there was not anything wrong with it," but Covington,
though not setting forth objections to any particular part or making
any counterproposals, informed him "that he was not agreeing to
anything." We find that this meeting progressed substantially as
described by Walker.
On January 7, 1940, the respondent discharged John Albert Thomp-
son, the last union member in its employ. Thompson had been
employed as chief radio engineer since the station first opened in
December 1938 and was regarded by the respondent as a competent
engineer. Thompson was active in the Union and had represented
the engineers at all the conferences held with Covington.
For some months prior to January 7 the respondent had in its
employ one Sidney Ducote, a Transradio Press machine operator.
Ducote was a licensed radio engineer, but his duties at that time
consisted in receiving news reports transmitted in code by Transradio
Press from New York and transcribing such reports for broadcast
from WCOV. He was not engaged in engineering work at the time
and therefore was not eligible to union membership. When Peck's
discharge became effective on January 6, Covington was left with but
one regular radio engineer. He thereupon moved the Transradio
Press machine to the transmitter house and directed that Thompson
and-Ducote share the engineering-work, and that Ducote, in addition
to assuming new engineering duties, continue to operate the Trans-
radio Press machine. On Saturday and Sunday, January 6 and 7,
Ducote was assigned to put the station on the air and to continue on
duty thereafter until 2 o'clock in the afternoon when Thompson was
to relieve him. Because Ducote was unfamiliar with the apparatus
at the transmitter house Thompson feared that he might have diffi-
culty in putting the station on the air for the first time.. On Satur-
day morning Thompson voluntarily went to the transmitter house to
assist him. Although Thompson was still the chief engineer Ducote
objected to his presence and indicated that Covington had placed him
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in charge of the transmitter. After some argument Thompson put
the station on the air and then left. Upon reporting for his regu-
lar shift at 2 p. in. Thompson discovered that the station was then
operating in excess of the 100 watts permitted by its license and .hat
Ducote had not Made proper entries in the "log books" which the
Federal Communications Commissions requires all radio stations to
keep. Thompson called these matters to the attention of Ducote
whose answer was "'a surly statement that it didn't make any differ-
ence." Thompson then ordered him to make the corrections in the
log books. Ducote refused and after some argument left the trans-
mitter house without transcribing the regular news report, which
resulted in one of the respondent's regular news broadcasts being
omitted that day. Ducote did not testify at the hearing but Coving-
ton testified that Ducote explained to him that Thompson had pre-
vented him from taking the news report. Thompson admitted having
had an argument with Ducote but denied that he was responsible
for Ducote's failure to take the transradio press reports.
On Sunday morning, January 7, Ducote was unable' to get the
station on the air as scheduled at 6: 30 a. in. At 8 o'clock Covington
summoned Thompson from his home in order to put the transmitter
in operation. Thompson questioned Ducote as to the difficulty and
according to Thompson, whose testimony was undenied, Ducote re-
sponded in a surly and evasive manner. Thompson discovered that
the oscillator was not working properly and was soon successful in
correcting the trouble and putting the station on the air. Thompson
further testified that Ducote intimated that on the preceding night
'Thompson had fixed the transmitter so that it would not work.
Thompson, ired by this accusation, admittedly lost his temper and
engaged in a violent argument with Ducote, during the course of
which he threatened and cursed him. Thompson then left the trans-
,mitter house. After hearing an account of the dispute from Ducote,
Covington requested that Thompson come to the office to give his
version of the altercation. When Thompson arrived about 3 :30 that
afternood he found Raney, the commercial manager, also in the office.
Before any discussion regarding the incident at the transmitter house
could take place, Thompson stated that if Raney was to be a witness
to the conversation he also wished to call a witness. Covington re-
plied that it would not be necessary and asked Thompson to "give me
your keys, I don't need you anymore."
On January 9 Thompson, May, Walker, and a Board representa-
tive visited Covington's office to seek reinstatement of the discharged
engineers. Covington explained to them that business conditions
did riot warrant the reinstatement of Johnson and Peck and that he
was planning to effect a reduction in operating expenses by replacing
CAPITAL BROADCASTING , COMPANY, INC. 159
them with an engineer who could , perform engineering duties and
also transcribe Transradio Press reports , a task which neither Peck
nor Johnson could perform . He did, however , offer to reinstate
Thompson if he would "behave himself and comply with our rules
and quit wanting to fight. " The Union would not agree to the rein-
statement of Thompson unless Johnson and Peck were also reinstated.
Covington 's position remained unchanged and the matter was there-
after dropped.
On January 12 the joint meetings for collective bargaining were
again resumed at Pill's office. Further discussion of the agreement
was continued at this time but without result. At this time the re-
spondent no longer had union members in its employ and Coving-
ton asked if he need continue attending these meetings . There is
some dispute as to the answer given him . Covington testified that
Walker informed him that he need no longer attend further con-
ferences since he no longer employed union members , and Pill, in
effect, confirmed this testimony . Walker testified , however, and May
confirmed him, that he told Covington that he "could satisfy himself
about continuing to meet with us." Walker further testified that
the Union would meet with him at any time but insisted that first
they "should go into a consideration and discussion of the reemploy-
ment of the men whom he had discharged."
The Trial Examiner credited the testimony of Covington and,Pill
in this regard.. We do not agree with his conclusion ., We do not
believe that the Union , while asserting that its members had been
discriminatorily discharged , would have been willing to abandon fur-
ther negotiations with the respondent merely because the respondent.
no longer employed union members. It is more reasonable to assume
that the Union would, as May and Walker testified , insist that the
reemployment of these discharged employees first be considered before!
negotiating -further for a contract . We believe , and find, that Cov-
ington abandoned negotiations on January 12, 1940, because of his
unwillingness to discuss further the ' reinstatement of the discharged
radio engineers as requested by the Union.
B. The appropriate unit and proof of majority
The complaint alleges and the Trial Examiner found that the
"engineers and electricians employed by the respondent constitute a
unit appropriate for the purposes of collective bargaining." The
record 'does not disclose any persons designated "electricians" em-
ployed by the respondent but the afore-mentioned radio engineers
engage- in electrical work which requires special skill and training
and a license from the Federal Communications Commission. The
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent does not allege that a unit composed of its radio engineers
is inappropriate.
We find that all radio engineers employed by the respondent at
radio station WCOV, Montgomery, Alabama, at all times material
herein constituted and that they now constitute a unit appropriate
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and that said unit insures to employees of the respondent the full
benefit of their right to self-organization and to collective baigain-
ing and otherwise effectuates the policies of the Act.
Early in November 1939 all three radio engineers employed by
the respondent filed application blanks for membership in the Union
and on November 18, 1939, they became members. The Trial Exam-
iner found that "from November 18, 1939, until January 5, 1940,
the Union was the duly designated representative of the employees
in the unit" found by him to be appropriate. The record shows
that by January 6, 1940, two of these three radio engineers had been
'discharged and_ that on January 7, 1940, the third was discharged.
Since we hereinafter find that such employees -were discharged be-
cause of the respondent's unfair labor practices they retain their
status as employees within the meaning of Section 2 (3) of the Act
after the dates of their respective discharges.?
We find that on November 18, 1940, and at all times thereafter,
the Union was the duly designated bargaining representative of a
majority of the respondent's employees in the unit found to be ap-
propriate. Pursuant to Section 9 (a) of the Act, the Union was at
all times after November 18, 1939, the exclusive representative of
all employees in the appropriate bargaining unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and 'other' 'conditions of employment.
C. Conclusions with respect to the unfair labor practices
The Trial Examiner in his Intermediate Report found that the
evidence did not sustain the allegations in the complaint that the
respondent interfered with, restrained, and coerced its employees
within the meaning of Section 7 of the Act, that the discharges of
Mrs. Peck, Johnson, Peck, and Thompson were discriminatory within
the meaning of Section 8 (3) 'of the Act, or that the respondent re-
fused to bargain with the Union within the meaning of Section 8
+ Black Diamond Steamship Corp. v. N. L. R B., 94 F. (2d) 875 , 879 (C C A. 2), cert.
denied 304 U. S. 579 enf'g Matter of Black Diamond Steamship Corporation and Marine
Beneficial Association, Local 33, 3 N. L. R. B. 84; N L. R B. v Stackpole Carbon Co., 105
F. (2d) 167, 176 (C. C. A. 3) cert denied 308 U. S. 605, modifying and denying rehearing
Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America,
Local No 502, 6 N. L. R. B. 171.
'CAPITAL BROADCASTING COMPANY, ' INC. - 161
(5) of the Act. We believe that the Trial Examiner erred-and that
an ' examination of 'the facts heretofore set forth leads to contrary
conclusions.
The respondent 's first knowledge of the union affiliations and col-
lective bargaining aspirations of its employees came with the presen-
tation of the contract on December 4 and we , believe that it is more
than a coincidence that within scarcely a month thereafter the re-
sponderit discharged all the union members in its employ and ceased
all negotiations 'with 'the Union. 'ire are of the opinion that the
actions of the respondent after December 4 show a pattern of unlaw-
ful intimidation , coercion , and discrimination which was designed to
undermine the, authority of the Union and to render ineffective its
efforts to secure a collective agreement.
The questioning of Johnson by Covington at the transmitter
house on December 4 concerning his union membership and the
accompanying disparaging remarks regarding the loyalty of union
members which we have heretofore found that Covington made were
acts in themselves of a coercive nature."
- Moreover , we are, of the opinion that the transfer of duties in
connection with the remote pick-ups from the engineers to the,an-
nouncers and the promulgation of the ' rules with respect to the use
of the telephones and the reception of visitors , both applicable only
to the radio engineers , were designed to discourage the radio en-
giueers from continuing their union activity . The respondent did
not contend that any of 'these innovations effected economies. Cov-
ington testified only that the remote pick-up work was of a nontech-
nical nature and that he transferred ' it to the announcers to effect a
reduction. in their work without a reduction in their pay. It is
significant , we" believe, that the respondent effected the transfer of
this work at a time when the Union was seeking to bargain with
respect to it. Plainly the engineers were led to believe that to this
extent their self-organization and efforts to bargain collectively
would be fruitless . We are further of the opinion that the respond-
ent invoked the other restrictive rules referred to above in order to
discourage the engineers from continuing their organizational ac-
tivities . We find that by the questioning of Johnson , the transfer
of the remote pick-ups, and the promulgation of the afore -mentioned
rules, the respondent has interfered with, restrained ,- and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
8Matter of Luckenbach Steamship Company , Inc. and Lucl, enbach Gulf Steamship Com-
pany, Inc. and Maritime Office Employees International Longshoremen 's and Warehouse-
men's Untion ,'Local No 1-15. 8 N L R. B 1280: Matter of Triples' Screw Company and
Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No.
1583, 25 N L R B 1126
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not agree with the Trial Examiner's conclusion that the
respondent discharged Mrs. Peck on December, 4 in order to reduce
operating expenses. While it is true that with the business running
at a loss Covington was seeking to -reduce operating expenses, we
do not believe that, as Covington explained,-the rearrangement of
the office rendered Mrs. Peck's services unnecessary and that her dis
charge followed solely to effectuate an economy. Since this rear-
rangement was itself designed to reduce operating expenses, had been
planned for some time, and actually took place on December 1, 1940,
the resulting economies must have been apparent before December
4, yet there is nothing in the record to show that at any time before
December 4, the respondent contemplated that the change would
also result in a further reduction of operating expenses by enabling
it to dispense with Mrs. Peck's services. On the contrary, it is clear
that the respondent had no such intention for up to the day before
her discharge, Covington and others had instructed Mrs. Peck in
new duties arising as a direct consequence of this rearrangement, and
shortly before had assured her that her position was secure..
We are of the opinion that the circumstances of Mrs. Peck's dis-
charge establish that her services were no longer desired because
of her husband's union membership. Immediately after the presen-
tation of the contract. Covington called her to his office, though she
was not his regular stenographer and had never taken letters of this
nature before, and dictated to her the letters suggesting the pos-
sibility of her husband's replacement. Later the same afternoon, he
discharged her. From all the evidence we are ,convinced that reduc-
tion of operating expenses was only a pretext, and that by -Mrs.
Peck's discharge, coming as it did immediately following the presen-
tation of the union demands and coupled with the suggestion that
her husband might be replaced, Covington sought to coerce and
intimidate Peck and the other union members and thus discourage
them in further resorting to the Union. To discharge Mrs. Peck
under such circumstances was a singularly effective means of dis-
couraging union activity for by, such action the respondent showed
to both Peck and the other radio engineers that its hostility to the
Union extended even to the families of union members?
We find that the respondent by discharging Mrs. Peck discrimi-
nated in regard to her hire and tenure of employment thereby
discouraging membership in a labor organization and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
9Matter of Memphis Furniture Manufacturing Company and Furniture sWorkers Local
Unison No 11111, United Brotherhood of Carpenters and Joiners of America, 3 N. L. It. B. 26,
enf'd Memphis Manufacturing Co v N L R B, 96 F. (2d) 1018 ( C C A. 6 ), cert. denied,
305 U S 627.
CAPITAL BROADCASTING COMPANY, INC. 163
The Trial Examiner found that Covington was not motivated by
a desire to interfere with the union activities of its employees in
presenting the above-mentioned pay slips and that the discharges of
Johnson and Peck, which followed, were for failure to sign these
pay slips and thus conform with a legitimate rule of the respondent.
We-are - of -the opinion ; however, -that even assuming that Covington
was not motivated by a desire to interfere with the Union in pre-
senting these pay slips, he did not discharge Johnson and Peck solely
for failure to conform with a rule . Both discharges came at a time
when the parties were negotiating for a contract which was viewed
unfavorably by the respondent, and at a time when the respondent
knew that Johnson and Peck had been advised by the Union not
to sign the second part of these slips for fear of prejudicing their
rights. Although a visit from the Wage and Hour Division
prompted Covington to keep wage and hour records for his em-
ployees, there is no showing that he had consulted the Wage and
Hour Division as to the form in which such records should be kept.
Under ordinary circumstances , we doubt that Covington would have
considered a refusal to sign the second part of the slips of such
great importance as to cause the summary discharge of two compe-
tent employees . However, the Union was seeking a wage increase
and bargaining negotiations were still pending as to whether such
increase should be retroactive to December 4. The respondent's in-
sistence that the engineers sign a slip acknowledging that they had
been paid all wages to date had the appearance of precluding further
bargaining on this issue and placed Peck and Johnson in the posi-
tion where to hold their jobs they must yield individually on an
issue which was at the time the subject of collective bargaining
between the respondent and the Union. When it is considered that
Covington's immediate reaction to the presentation of the contract
was to dictate letters indicating his intention to replace the engineers,
that he followed this with the discharge of Mrs. Peck, the question-
ing of Johnson, the transfer of the remote pick-ups, and the enact-
ment of restricting rules applicable only to engineers, it seems clear
to us that the refusals of Johnson and Peck to sign the' pay slips
presented were not the real reasons for their respective discharges.
We are convinced that the respondent used such refusals as a pre-
text for the discharges and that its real motive was to strike a.telling
blow at the authority of the Union. We find that the respondent
discharged H. R. Johnson and Harold Peck because of their mem-
bership in the Union and has thereby interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act.
440135-42-Vol. 30-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that Thompson was discharged for
misconduct and not because of his union activity. We do not be-
lieve, however, that Thompson's misconduct was the motivating cause
for his discharge. Thompson had been employed as chief engineer
and was considered competent in his work. At the time of his
dispute with Ducote he was still chief engineer and his concern
about Ducote's inexperience and his resentment at Ducote's refusal to
obey orders finds explanation in his desire faithfully 'to perform his
duties. That this concern was justified is abundantly supported by
the fact that on Sunday morning, January 7, Ducote was unable to
get the station on the air and that Covington found it necessary to
call in Thompson to assist.
As we have found above Covington was in the midst of bargaining
negotiations with the Union which was deniandnng a contract which
he viewed unfavorably. Thompson was a union leader who had
actively participated in all negotiations theretofore had. We are
convinced that Covington's app