Capital Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1972

197 N.L.R.B. 1108 (N.L.R.B. 1972)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capital Broadcasting Corporation and John E.
Bowles. Case 9-CA-6419-1
June 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On January 31, 1972, Trial Examiner Paul E. Weil
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief, the General Counsel filed limited
cross-exceptions to the Trial Examiner's Decision
and a supporting brief, and Respondent filed a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and, except as modified herein, has decided to
affirm the Trial Examiner's rulings, findings, and
conclusions and to adopt his recommended Order as
modified herein.
1. The Trial Examiner found that Respondent's
general manager, Doll, did not violate Section 8(a)(1)
of the Act by stating to employee Mix, one of the
Union's chief protagonists, that the staff of a radio
station owned by one of Doll's friends had been
discharged because they had tried to form a union,
that "nothing was ever done" to that friend, and that
Doll could do the same thing if he wanted to, but he
wasn't going to. We do not agree.
The context in which this statement was made
clearly shows that Doll intended Mix to understand
that what happened to employees elsewhere could
happen to them. Otherwise, it would not have been
necessary for Doll to inform Mix of an action which
Doll did not intend to take. We find, therefore, that
despite its professed intent not to discharge employ-
ees for attempting to organize, Respondent impliedly
threatened to discharge such employees if they
persisted in their organizational efforts, thereby
violating Section 8(a)(1) of the Act.
2. The complaint alleges that Respondent also
violated Section 8(a)(1) by promising benefits to
employees on the condition that they withdrew from
the Union. The Trial Examiner found that Respon-
dent did not violate the Act in this regard. In
reaching this conclusion, however, the Trial Examin-
er failed to consider or dispose of a promise of
benefit implied in one of Doll's April 1 statements to
Mix.
The record shows that after unlawfully interrogat-
ing Mix as to whether and why he supported the
Union, Doll stated that Respondent could not afford
to pay its employees any more money. Although Doll
iterated this latter remark to Mix and other employ-
ees on several occasions, he also stated to Mix that he
knew that Mix was one of the leaders in the union
movement, that he did not want the Union in his
radio station and would do anything to keep it out,
and that the employees "would be [throwing] away a
thousand [of Respondent's] dollars on lawyers' fees
that could be used to . . . [grant] raises for the
employees" and to improve the station's facilities.
Doll concluded by asking Mix "not dust to run the
money off in lawyers' fees."
The clear and basic import of this statement is that
despite Doll's assertions of Respondent's alleged
financial inability to increase wages, Respondent
nevertheless impliedly promised that it would grant
wage increases in return for a cessation of the
employees' organizational efforts. Accordingly, we
find that Respondent also violated Section 8(a)(1) of
the Act by conditioning wage increases on the
employees' abandonment of the Union.
Contrary to our dissenting colleague, we have not
concluded that Respondent may not have had valid
reasons for discharging Mix and Bowles. A determi-
nation of whether a violation of Section 8(a)(3) of the
Act has occurred, however, is not predicated on the
presence of valid grounds for discharge, but rather
on the presence of evidence showing that the
discharges were based, in whole or in part, on .union
considerations. Our review of the record convinces us
that Respondent's assigned reasons for the discharg-
es were wholly pretextual and that it discharged Mix
and Bowles because of their union activity.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, as modified herein,
and hereby orders that Respondent, Capital Broad-
casting Corporation, Frankfort, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommend-
ed Order, as so modified:
1. Insert the following as paragraphs 1(d) and 1(e)
in the Trial Examiner's recommended Order and
reletter the remaining paragraphs accordingly:
"(d) Threatening to discharge employees if they
persist in their organizational efforts.
"(e) Conditioning wage increases on the employees'
abandonment of the Union."
2. Substitute the attached notice for the Trial
Examiner's notice.
197 NLRB No. 159
CAPITAL BROADCASTING CORPORATION 1109
CHAIRMAN MILLER, dissenting in part:
I am unable to join my colleagues in finding either
of the additional 8(a)(1) violations referred to in the
majority opinion. I believe the Trial Examiner was
correct in his analysis of both of the incidents
referred to by my colleagues and would affirm his
findings with respect to them.
As to the 8(a)(3) violations, it is my view of the
evidence that the offenses committed by the employ-
ees were sufficiently serious to have justified their
discharge, and that we are prohibited by Section
10(c) of the Act from ordering reinstatement of these
employees who were, in the language of that section,
"discharged for cause."
I do not think a radio station need retain in its
employ an announcer who, admittedly, dealt with a
serious tornado warning in a flippant manner and
who, as a result, caused concerned listener com-
plaints, as to which he obviously showed no concern
whatever.
Nor do I think a radio station need retain in its
employ an engineer who, possibly in a fit of pique
resulting from the Union's election loss, cavalierly
walked off the job and left the station with a
disruption in service, and also left the station in a
position where it was in violation of applicable FCC
regulations.
I would therefore dismiss the 8(a)(3) allegations of
the complaint and find only the 8(a)(1) violations
which were found by the Trial Examiner.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice, and we
intend to carry out the Order of the Board and abide
by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with
or restrains or coerces employees with respect to
these rights.
WE WILL NOT discriminate against our employ-
ees for engaging in activities on behalf of the
Union or on their own behalf.
WE WILL NOT coercively interrogate our em-
ployees about their or other employees' union
activities.
WE WILL NOT give our employees the impres-
sion that their union activities are under surveil-
lance.
WE WILL NOT threaten to discharge our
employees if they persist in their organizational
efforts.
WE WILL NOT condition wage increases on our
employees' abandonment of the Union.
WE WILL offer to Richard E. Mix and John E.
Bowles immediate and full reinstatement to the
jobs they held before we discharged them for
discriminatory reasons or, if those jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings suffered as a result of our discrimination
against them, together with interest at the rate of
6 percent per annum.
CAPITAL BROADCASTING
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named
individuals, if presently serving in the Armed Forces
of the United States, of the right to full reinstate-
ment, upon application after discharge from the
Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 2407,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On August 10, 1971,
John E. Bowles, an individual, filed a charge with the
National Labor Relations Board alleging that Capital
Broadcasting Corporation, hereinafter called Respondent,
violated the Act by discharging two employees, Tom Mix
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and John E. Bowles, because of their membership in the
American Federation of Television and Radio Artists,
hereinafter called AFTRA. On September 29, 1971, the
Regional Director for Region 9, of the National Labor
Relations Board, hereinafter called the Board, on behalf of
the General Counsel, issued a complaint and notice of
hearing alleging that Respondent violated the Act by the
discharge of Mix' and Bowles, and by that and various
other acts and conduct, Respondent interferred with,
coerced and restrained employees in the exercise of their
protected rights. By its duly filed answer Respondent
denied all allegations of the complaint, other than the
jurisdictional allegations and that AFTRA is a labor
organization within the meaning of the Act. On the issues
thus joined, the matter came on for hearing before me on
January 4, 1972, at Frankfort, Kentucky. All parties were
represented by counsel and had the opportunity to call and
examine witnesses, cross-examine them, adduce relevant
and material evidence, argue on the record, and file briefs.
Briefs were waived by all parties.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent is a Kentucky corporation engaged in radio
broadcasting at its station in Frankfort, Kentucky. Its
annual gross business exceeds $150,000 and annually it
imports into the State of Kentucky from other States of the
Union goods valued in excess of $20,000. Respondent is an
employer within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION INVOLVED
AFTRA is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates two radio stations, one AM and
one FM, in Frankfort, Kentucky. Its employees have never
been represented by any labor organization.
On March 3, 1971, the Charging Party and Richard E.
Mix contacted AFTRA with a view to organizing the
employees of Respondent. As a result of the contact a
meeting was set up at a motel near the station at which a
number of the announcers signed cards, designating the
Union as their collective-bargaining representative. On
March 24,2 the Union filed a petition with the National
Labor Relations Board. It does not appear that the petition
was immediately served on Respondent. Its general
manager, Vice President, Robert V. Doll, testified that he
first learned of the union organization on April 1, when he
received a call from an agent of the National Labor
Relations Board inquiring about his position with regard
I Mix is identified in the complaint and on the record as Richard E Mix
He testified that he uses the name Tom Mix in his professional capacity
8 All dates hereinafter are in the year 1971 unless otherwise specified
3 Although Respondent contended in the representation proceeding that
Bowles was a supervisor and a member of management , it appears that he
the petition. Doll reacted immediately to the news that his
employees sought a union election. According to the
testimony of Mix, Doll called him into his office and told
Mix that he was informed that the employees were trying
to get the Union into the station, and asked Mix if he was
going to vote for the Union. Mix said that he was, and Doll
stated that the station was too small to be organized and
asked Mix what he expected to gain, because Respondent
could not afford to pay any more money to the announc-
ers. Mix stated that his main concern wasjob security and
Doll answered that as far as job security went, it would
probably be easier to fire one of the announcers with the
Union in than without a union because he could discharge
an announcer anytime if they violated the rules in the
contract. Later the same day Doll came to where Mix was
working and told him not to get him wrong, that he was
not going to fire anyone over the Union, but that the
employees were using poor judgment. Doll stated on this
occasion that he knew that Bowles and Mix were the
instigators of the union movement, and he felt they misled
the others. He stated further that he did not want the
Union in his station, and would do anything to keep it out.
He pointed out that the employer's expenditure for
lawyer's fees could be used to improve the station by
cartridge machines and raises for the employees and other
things that were needed.
Apparently on the same day Doll interrogated Bowles
and asked him why Bowles had not told him about the
Union. Bowles answered that Doll was management and
that the employees were on the other side, and Doll could
not expect the employees to tell him about the Union. Doll
asked Bowles what he expected to get out of the Union,
and Bowles answered that they could get collective
bargaining, to which Doll responded that he could delay
that for years. According to Bowles' testimony Doll was
angry on this occasion and stated that he was going to fight
the Union every step of the way.
Doll telephoned his lawyers when he found out about the
Union and arranged to have certain material gathered
together by an employer organization sent to him to enable
him to fight the Union. On the evening before this material
arrived, later in the first week in April, Doll telephoned
Bowles and again asked him why he signed up for the
Union. When Bowles asked how he knew that, Doll said
that he heard some of the boys talking. Doll admitted this
conversation and stated that he believed that inasmuch as
Bowles operated as an announcer only on a part-time
basis, spending the rest of his time as chief engineer for the
station,3 Bowles was not a member of the unit and that he
should, therefore, have had no interest in the Union.
Mix testified that about the middle of April Doll told
him that a friend of his had a radio station and that the
members of the friend's staff had tried to form a union.
The friend had discharged all of his announcers and
nothing was ever done to him. Doll pointed out that he
could do the same thing if he wanted to, but he was not
going to. Mix responded that Mr. Mosley, the union's
was the only engineer on the staff and supervised no one. He took no part in
management decisions, and had no function. other than announcing and
keeping the equipment in repair I find that Bowles was an employee within
the meaning of the Act
CAPITAL BROADCASTING CORPORATION
attorney, had been informed that he could not be fired
without a good reason. Doll asked Mix if he had been
talking to Mosley quite a bit and then said "you had better
prepare yourself because you would really be in for a
surprise."
Although Doll did not specifically deny this conversa-
tion, he testified that sometime in early April he told
someone among the employees about a Cincinnati station
that had been automated so that the three union announc-
ers had been thrown out of jobs while junior announcers
had remained in his station's employ. He made it a point to
call the situation to the attention of the employees and in
fact reiterated the story in a speech he subsequently made
to all of the employees:
Sometime in the middle of April Doll made a speech at a
staff conference at which all the announcers were present.
He testified that he had been getting reports that some of
the executives at the station were being told they couldn't
fire employees so he called a meeting and told the
employees that the union campaign could last for awhile
and in the meantime they had a business to run and he
wanted everyone to comport themselves well and that he
didn't want any challenge to the election. At the same
meeting he read a list of 20 or 25 things that could be done
that would be considered coercive or threatening or
promising. This list was furnished by the Associated
Industries of Kentucky. He asked that if anyone felt that
he had done anything contrary to the list, "let's get it
settled now before this thing goes any further." Although
both Mix and Bowles were at the meeting, neither of them
spoke up. According to Bowle's testimony, at this meeting
Doll stated that he'd hate to be the fellow who operated the
first small station in Kentucky to be organized, discussed
the announcing staff's vacations, told them to set up their
vacations right away, and told the employees that they
were on a 40-hour week rather than 44- or 46-hour week. It
is not possible to ascertain from the testimony whether, by
this statement, Doll was purporting to change the number
of hours available for employees to work.
On May 11 a hearing was held in the representation
proceeding. Mix and Bowles were the only employees
present at the hearing.
In January Mix and Bowles had asked to be permitted to
take their vacations at the same time in July so that they
could make a trip to California together. On May 12 a
schedule was posted pursuant to which Mix was required
to take his vacation from May 16 to June 6. (The parties
had agreed to hold the election on May 26, the day before
this.) Doll posted the vacation schedule and told Mix to be
sure to read the notice before he left the room. Mix read it
immediately, and Doll told him that it would do Mix good
to get away from the station and think things over. There
was no further explanation offered Mix by Doll on that
occasion. According to the testimony of Doll, he had been
told by his assistant, Russ Hatter, that Mix had stated that,
regardless of how the union thing comes out, the
employees were going to have a discussion with the
stockholders because there were things that the employees
didn ' t approve of. Responsive to this, Doll decided that it
would be well to let Mix take a vacation and settle things
down a bit at the radio station because he was trying to
avoid an open confrontation . He inquired of his attorney
whether it would be an unfair labor practice and was told
that it would not, so he lined up a relief man and sent Mix
on his vacation . According to Doll , Mix said that this
would be helpful .4 On Monday , May 24, Doll called all the
employees together and delivered a speech to them. This
speech was prepared by him from the texts of various
speeches furnished him by the Employer's association and
submitted by him to his lawyers. They made minor
changes, and he delivered the speech as changed. The
complaint alleges that Respondent in this speech threat-
ened employees with loss of their jobs if they selected the
Union. The part of the speech referred to is as follows:
Have you been given a promise of security . Don't be
misled . The Union's members are not protected from
being fired or furloughed . If you've read the newspa-
pers, you know that many of the big stations-with
AFTRA contracts have had cutbacks because of the
recession . A Cincinnati FM station let its union
announcers go and automated to save money. Three
AFTRA members-probably the Louisville Union's 3
oldest , were let go by a Louisville station while newer
members still work at that station.
Here, we haven ' t fired people because of the recession
-although we 've suffered from the recession . What's
more, on the matter of security , I have never fired
anyone because someone better applied-or because
someone just as good would work for less . And with as
many people , as are out of work now, we have that
chance almost every day.
f • 4 4 i
Will those who have been urging the Union be fire.
[sic] The answer is No. I can't fire anyone for union
activity.5
I find nothing in the transcript of the speech which I deem
supportive of the allegation that Respondent threatened
employees with loss of their jobs, and I shall recommend
that that allegation of the complaint be dismissed.
The union election was held on May 26. Five employees
voted against representation, four voted for the Union, and
one vote, that of Bowles, was challenged.
Discussion and Conclusions with Regard to the
8(a)(1) Allegations
The General Counsel alleges that the conversations
between Doll and Mix and Doll and Bowles immediately
after Doll's receipt of the telephone call informing him of
the Union's petition, and the subsequent conversations in
the first half of April with Mix and Bowles, constitute
interrogation of employees about their union activities.
Unquestionably this argument is sound. Each of these
conversations constituted such an interrogation, not only
about whether they supported the Union but why they did
S This incident is not alleged by the General Counsel to violate the Act
5 The last quoted sentence originally had the word "alone" after the
word "activity " The word is crossed out in ink on the typed page Doll
testified without contradiction that he did not read the word "alone" when
he read the speech
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so. In addition , the General Counsel alleges that Doll in his
conversations created the impression of engaging in
surveillance of the union activities of Respondent's
employees . This too is supported by the record . As I have
found , Doll stated to Mix that he knew that Mix and
Bowles were the union instigators and chief supporters.
These statements were made prior to the representation
hearing at which the two employees were in fact held out to
be such and gave both Mix and Bowles reason to believe
that their union activities were under surveillance by
Respondent . The General Counsel , in addition , tried to
adduce evidence that Respondent "bugged" the announc-
ers' room at the station with an electric device and listened
in on their conversations . The evidence fell short of proof
however and to the extent that this is alleged to bean
unfair labor practice I reject it.
The General Counsel contends that Respondent told an
employee that he could discharge all of his employees who
were trying to organize a union , therefore interfering with,
restraining , and coercing him. However , the evidence
reveals that , while Doll informed Mix that he could do so,
he informed Mix that he would not do so. I believe that
under all the circumstances this does not constitute a
violation of Section 8(a)(1) of the Act.
Finally, the General Counsel contends that Respondent
promised benefits to employees if they would withdraw
from the Union . The reference apparently is to statements
made by Respondent that the employees did not need a
union , that Respondent would improve their working
conditions as fast as it was able to do so but could not
afford a union- at the plant , addressed to Bowles by Doll. I
do not believe that the language constituted a promise of
benefit to the employees if they withdrew from the Union
but rather constituted a reminder to Bowles that the
Employer was affording employee benefits and could
reasonably be expected to continue to do so. No direct
statement conditioning such benefits on withdrawal from
the Union was made.
The General Counsel contends that the statement by
Doll when he first interrogated Mix that it would probably
be easier to fire one of the announcers with the Union in
than without the Union because of the presence of rules in
the contract constitutes a threat of job loss if the Union
were selected by the employees . I do not consider it to be
such . The statement was made by Doll in response to Mix's
statement that he was interested in the Union because his
main concern was job security. Doll did no more in this
regard than point out that the mere presence of the Union
did not guarantee security , but that on the contrary
employees could be discharged for infractions of rules
under the union contract without successful intervention
by the Union . I recommend that the complaint be
dismissed ' insofar as this allegation is concerned.
The General Counsel also contends that in the same
conversation with Mix , Doll violated the Act by stating
that he could not afford to pay any more money to the
announcers and did not know what the employees
expected to gain out of the union organization. The
General Counsel contends that this implied to the
employees that it is futile for employees to select the Union
as its collective-bargaining agent . I agree with the General
Counsel . This is the necessary implication from Respon-
dent's statement . I do not deem the statement to contain
either a threat of reprisal or a promise of benefit, nor do I
see it as otherwise coercive or restraining of employees. I
believe that the statement is protected by Section 8(c), and
I recommend that the complaint be dismissed insofar as it
is alleged to be an unfair labor practice.
The Discharges
On May 6 , during Mix's afternoon show, a tornado
warning was transmitted to the station to be broadcast. As
was customary Mix continued his show, but between the
musical selections and patter he read the warning over the
air. At least someone who was listening to the station took
offense at the manner in which he read it , and telephoned
the station complaining that he did not take the tornado
warning seriously . The clerical employee who took the
telephone call relayed it to Mix with a suggestion that he
state that if the listeners did not care for the way he read
the warning , they should inform station management. Mix
denied that he made such a statement over the air and
stated that instead he apologized if he had given anyone
offense , but that he did not believe that a tornado warning
necessarily meant that any tornados existed , pointing out
that a tornado alert would be broadcast if tornados were
sighted.
Russell Hatter , who was in charge of the station that
afternoon , although his ordinary function was a salesman,
learned about the complaint (or complaints), when he
came into the station , but said nothing to Mix , who was
still on duty . That night one of the members of his church
told him that his wife had been disturbed by the radio
broadcast . Hatter described his informant as "an old fellow
that kind of likes to try to see that things get taken care of,
you know , talk to somebody . At least , to let things be
known." Hatter stated that he was bothered because he got
this complaint from a listener and reiterated it to Doll the
next day at the radio station . Doll told him to get the
complaint in writing from the lady who had been
disturbed. According to Hatter , he communicated with the
lady in question and a letter was thereafter forwarded to
Doll, stating that the writer heard Tom Mix say that
someone called him about the hilarious way he was
announcing the tornado warning and Mix said , "This is my
show, and if you don't like it you can call `higher ups.' I
run my show my way and I don't see any reason for me to
be gloomy . I feel in my heart that there is nothing going to
happen and I do not see any reason to alarm people." The
writer stated that she was not the one that called Mix, but
she thought that there was a time to be serious and wanted
Doll to know how she felt.
Mix denied joking about the tornado alert and denied
making the statements attributed to him in the letter.
However, he testified that he ran his normal program,
which included jocular comments in other respects. Doll
testified that he withheld action against Mix, although he
determined to discharge him because of the incident,
because he did not want to upset the status quo before the
election . However, on May 28 , while Mix was still on
vacation , Doll informed him by letter that he was
discharged because of the incident.
CAPITAL BROADCASTING CORPORATION 1113
The General Counsel adduced evidence that other
announcers had given rise to complaints from their
listeners, including complaints that Hatter had made
salacious or obscene comments about a female singer
whose record he had played or was playing, but that the
station had never used this as an occasion for discharge in
the past. Doll testified that he could recall no employee
having been discharged in the past for statements made
over the air, although he mentioned one announcer who
was discharged at Mix's recommendation, both because of
complaints and because Mix stated that he was not doing
his work. That employee has, since Mix's discharge, been
rehired as an announcer.
With regard to Bowles, Bowles testified that on May 26
he was in the transmitter room where he occupied living
quarters and was informed of the results of the election by
telephone. He was supposed to go on duty as an announcer
at 10 p.m. on a show that would last until I a.m. and his
normal custom was to work from 1:00 until around 5:00 in
the morning, while the stations were not on the air, in
maintaining and repairing the equipment. On the night in
question Bowles testified that he had driven to Louisville, a
trip of about 1 hour, to his parent's home. About 9 p.m. he
had a sore throat and determined that he could not
conduct his evening program. He called the announcer on
duty and so informed him, suggesting that the announcer
call Doll to get someone to take the 10 p.m. show. The
record does not reveal when Bowles returned to Frankfort,
but he was on the air the next evening and worked his
normal shift the evening of the twenty-seventh.
In Bowles' absence on the morning of May 27,
something went wrong with the FM transmitter and it was
taken off the air at 11 o'clock. Attempts were made to
locate Bowles at the transmitter where he lived, but
without success. The announcer on duty attempted to call
him at his parent's home, the number of which was posted
in the control room, but received no answer. About 2
o'clock another engineer was summoned, who quickly
repaired whatever was wrong, and the FM station went
back on the air shortly after 2:00.
On May 27 Doll was out of town. He returned that
afternoon about 2 o'clock, and got a report from his wife
that Bowles' ex-wife thought that he had left town. He
testified that he also got a report from a person who lived
in a trailer near the transmitter that he had seen Bowles
packing on Wednesday afternoon. He testified that he tried
to call Bowles at the transmitter and also at the Louisville
number of his parents without success. He learned that
Bowles had not been at the station the night before, came
to the conclusion that Bowles had decamped without
warning, and determined to discharge him. The next
morning he came to the office at 9 o'clock and arranged
for a replacement for Bowles. About 9:30 a.m. somebody
told Doll that Bowles was on the air and he called him into
the office and discharged him because he had not been
available the day before when the station had broken down
and Bowles knew that it was his responsibility to be
available or to make arrangements to have the station
covered in the event he was not because government
regulations required that an engineer be on duty or
available at all times . Doll contended that Bowles had
walked off the job Wednesday night. Bowles told'him that
he could not afford to quit and had not done so, but that
he had been off sick and had called in to the announcer on
duty that that was the case.
When Bowles , after his discharge, went out to the
transmitter to pick up his belongings there, he found that
the locks had been changed and he could not get in.
The General Counsel adduced evidence that on one
occasion, before Bowles was hired as the engineer , Mix had
been on duty when the radio station was off the air for
approximately 3 hours before he could get hold of either of
the engineers then employed. The record does not reveal
that any discharges resulted from that incident. Mix also
testified that on one occasion Bowles drove Doll to
Delaware. Mix was told when they left that they would be
a little late coming back and he was to stay on the board.
Although he was supposed to go home at 10 o'clock, he
stayed until 11:45 when they returned.
The General Counsel contends that the discharges of
both Mix and Bowles were because of their union activities
and that the reasons given by the Employer for the
discharges were pretextual. There was ample evidence that
Respondent, especially in the person of Doll , its general
manager , held a deep animus toward the Union and that,
while he did not directly threaten discharge for union
activity during the campaign, the possibility of such
discharge was in the forefront of his mind throughout the
period from April I until the election . The timing of the
discharges, both of which took place immediately after the
election , and the fact that Mix and Bowles were known to
the Employer to be the instigators of the Union in the first
place, reinforces the General Counsel's contention. Against
this background the discharge of Mix for his lighthearted
comments with regard to the tornado warning appears to
be extraordinarily harsh, especially in view of Respon-
dent's failure to discipline any announcer in the past
because of listener complaints . It is noteworthy that no one
who heard the broadcast was called as a witness , and the
only evidence presented by the Respondent to overcome
Mix's denial that he made the statements attributed to him
was the letter admittedly generated from a verbal com-
plaint to Mr. Hatter.
With regard to Bowles, a number of odd circumstances
appear. Although unquestionably Bowles was not at the
transmitter when the station broke down, it does not
appear that, during the 3 hours that it was down, more
than one attempt was made to contact him by telephone at
the home of his parents although their telephone number
was posted as a place at which he could be reached .6 Also
the various stories of what was wrong with the transmitter
do not have any mutual similarity. Bowles testified that he
was told by the announcer on duty, Kennedy, that, when
Kennedy came on duty and found that the station was off
the air, he merely pressed the button and the FM station
commenced transmitting without any complication. Bowles
also testified that when he returned to the station that
evening he found broken tape cartridges on the floor. No
6 If Doll made an attempt, as he testified , to contact Bowles, it does not
appear that he did so until 2 o'clock, by which time another engineer was en
route to the station to effect the necessary repair
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
explanation for the cartridges was ever offered nor was
there any denial that they existed. Hatter testified that,
although he did not know what the trouble was with the
broadcasting station, he became aware of the trouble when
he received the complaint that the signal was garbled and
that this kept up until 11 a.m. when he ordered the station
off the air. On the other hand, Ben Gregory, the announcer
on duty at the time, stated that the trouble was due to the
failure of one of two "carousels" malfunctioning so that
the signal was perfect during the functioning of one
carousel but nonexistent during the functioning of the
other, the two carousels being used interchangeably. He
testified that a switch could have been thrown and the
station used without using the carousels but that he had no
instructions to do so. Although Respondent appears to
have attempted to controvert Bowles' testimony of what
the trouble was, it made no attempt to point out whether
the mutually inconsistent testimony of Hatter or Gregory
was to be believed.
Furthermore, the haste with which Doll concluded that
Bowles had decamped without notice and changed the lock
on the transmitter door, which must have taken place
before he discharged Bowles, and his adamancy in
discharging Bowles without investigation of Bowles'
statements that he had in fact called in sick and that he was
in fact at the home of his parents, leads to the conclusion
that the reason given for Bowles' discharge that he was not
available during the hours between II a.m. and 2 p.m. on
May 27 is pretextual. This is reinforced of course by the
fact that on a prior occasion he himself had taken Bowles
away from the station for a longer period of time than that.
Further reinforcement is seen by another occasion when
the station was similarly shut down for a period of several
hours because no engineer could be found, and no one
appears to have been punished.
I conclude that the General Counsel has met his burden
of proving that the discharges of both Mix and Bowles
were not for the reasons stated by Respondent under the
circumstances, and in the face of the inference raised by
the timing and by the Employer's knowledge that Mix and
Bowles were the two leading union adherents, I conclude
that they were discharged because of their union activity in
violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Richard E . Mix and John E. Bowles
because of their activities on behalf of AFTRA , Respon-
dent has discriminated in regard to hire and tenure of their
employment to discourage union activities in violation of
Section 8(a)(3) of the Act.
2. By the foregoing conduct , by interrogation of
employees concerning their union activities, and by
creating the impression among its employees that it was
engaging in surveillance of their union activities , Respon-
dent has interfered with , coerced , and restrained employees
in the exercise of the rights guaranteed them in Section 7 of
the Act in violation of Section 8(a)(1) of the Act.
7 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent has not violated Section 8(a)(1) of the
Act in other regards as set forth above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act including a
provision that Respondent offer to Richard E. Mix and
John E. Bowles immediate and full reinstatement to their
former positions or, if their former positions are no longer
in existence, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges
and make them whole for any loss of earnings they may
have suffered by reason thereof by payment to each of
them of a sum of money equal to that which each would
normally have earned as wages from the date of such
unlawful discharge to the date of Respondent's offer to
reinstate them together with interest thereon less net
earnings, if any, during such period. Backpay and interest
shall be computed in the manner described in F. W.
Woolworth Co., 90 NLRB 289 and Isis Plumbing & Heating
Co., 138 NLRB 716.
On the basis of the foregoing findings of fact and
conclusions of law and on the entire record in this case,
and pursuant to Section 10(c) of the Act, I make the
following:
RECOMMENDED ORDER 7
Capital Broadcasting Corporation, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership and activities in American
Federation of Television and Radio Artists, AFL-CIO, or
any other labor organization, by discriminating in regard
to hire and tenure of employment of its employees in order
to discourage membership or activities therein.
(b) Coercively interrogating its employees with regard to
their or other employees' union activities.
(c) Creating in its employees the impression that it had
engaged in surveillance of their or other employees'
activities.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer Richard E. Mix and John E. Bowles immediate
and full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay they may have suffered as a result of their discharge in
the manner set forth in "The Remedy" section above.
(b) Preserve and upon request make available to the
Section 102 48 of the Rules and Regulations . be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes
CAPITAL BROADCASTING CORPORATION
Board or its agents, for examination and copy, all payroll
records, social security records, timecards, personnel
records and reports, and all other records necessary to
analyze and compute the amount of backpay due under
the terms of this recommended Order.
(c) Post at its stations in Frankfort, Kentucky, copies of
the attached notice marked "Appendix." 8 Copies of said
notice on forms provided by the Regional Director for
Region 9, after being duly signed by Respondent's
authorized representative, shall be posted by it immediate-
8 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
1115
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, to conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced or covered
by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps have
been taken to comply herewith.9 It is further recommended
that the complaint be dismissed in all other respects.
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 9, in writing, within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith,"