Century Broadcasting Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 826 (N.L.R.B. 1986)

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