Eastman Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 80 (N.L.R.B. 1971)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastman Broadcasting Company , Inc. and Robert East-
man, Its President and National Association of
Broadcast Employees and Technicians , AFL-CIO-
CLC, and its Local No. 46. Case 7-CA-7843
January 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On August 21, 1970, Trial Examiner Arthur M.
Goldberg issued his decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Decision
with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief and the
entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendation of the Trial
Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to a Sec-
ond Amended Order Consolidating Cases, Third Consol-
idated Amended Complaint and Amended Notice of
Hearing issued on April 24, 1970,' by the Regional Director
for Region 7, a hearing was held in Flint, Michigan, on May
25 and 26. Prior to the opening of hearing the parties
reached agreement on the terms of a settlement disposing
of all allegations of the Third Consolidated Amended Com-
i Unless otherwise noted all dates herein were in 1970
2 The original charge in Case 7-CA- 7843 was filed on March 25 and a
first amended charge was filed on April 21.
plaint other than those raised by Case 7-CA-7843. After
the hearing opened the General Counsel moved to sever
from the Amended Complaint all allegations pertaining to
Cases 7-CA-7500(2), 7-CA-7684, 7-CA- 7684(2), and 7-
CA-7564. With the agreement of all the parties this motion
was granted and there remained for hearing and decision
only those complaint paragraphs which allege that on
March 13, Eastman Broadcasting Company, Inc. (herein
called Respondent or the Company), by its president and
agent, Robert Eastman (herein called Eastman), discharged
Charles Wallace because he refused to initiate, sponsor, or
participate in a union deauthorization proceedl>^zg 3 or to
engage in other conduct detrimental to the National Associ-
ation of Broadcast Employees and Technicians, AFL-CIO-
CLC, and its Local No. 46 (herein jointly called NABET or
the Union). By its conduct toward Wallace, Respondent is
alleged to have violated Section 8(axl) and (3) of the Na-
tional Labor Relations Act, as amended (herein called the
Act). Respondent admitted the discharge of Wallace but
denied that it had violated the Act by that act or by any
other conduct.
All parties partici ated in the hearing and were afforded
full opportunity to be heard, to introduce evidence, to ex-
amine and cross-examine witnesses , to present oral argu-
ment, and to file briefs. Oral argument was waived and the
Respondent filed a brief on June 22.
Upon the entire record in the case, my reading of the
Respondent's brief, and from my observation of the wit-
nesses and their demeanor, I make the following:
Findings of Fact
I THE BUSINESS OF RESPONDENT
Eastman Broadcasting Company, Inc., a Michigan cor-
poration , maintains its principal office and place of business
in Flint, Michigan , where it is engaged in the business of
radio broadcasting under the name WTRX-Radio.
The parties stipulated that during the fiscal year ending
March 31, 1969 , which period is representative of its opera-
tions during all times material herein , the Respondent, in
the course and conduct of its business operations, attained
gross revenues in excess of $200 ,000 from its broadcasting
business.
The parties further stipulated that during the same fiscal
period the Respondent, in the course and conduct of its
business operations , received revenue from the sale of time
for commercial advertising and furnishing of material or
services for advertisers valued in excess of $100 ,000, of
which revenue in excess of $100,000 was obtained from
advertisers of national products.
I find that the Company is and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and meets
the Board 's standards for assertion of its jurisdiction.
3 Section 9(exl) of the National Labor Relations Act, as amended, pro-
vides.
Upon the filing with the Board , by 30 per centum or more of the
employees in a bargaining unit covered by an agreement between their
employer and a labor organization made pursuant to section 8(ax3), of
a petition alleging they desire that such authority be rescinded, the
Board shall take a secret ballot of the employees in such unit and certify
the results thereof to such labor organization and to the employer.
188 NLRB No. 13
EASTMAN BROADCASTING CO., INC. 81
11. THE LABOR ORGANIZATION INVOLVED
National Association of Broadcast Employees and Tech-
nicians , AFL-CIO-CLC, and its Local No. 46, are and have
been at all times material herein labor organizations within
the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent owns and operates a radio station in Flint,
Michigan . For a number of years the Union has represented
a unit of Respondent 's employees including all fulr time and
regular part-time announcers , and continuity and traffic
department employees , which unit definition includes engi-
neers.
Following an impasse in negotiations looking toward a
new collective-bargaining agreement , the employees went
out on strike on March 1 , 1969, returnin after 7-1 /2 weeks
when the old contract was reexecuted fgor a new term.
In June 1969, Charles Wallace , the alleged discnminatee
herein, was promoted from the position of staff engineer to
that of chief engineer , a status he retained until his discharge
on March 13.
Sometime after renewal of the collective -bargaining
agreement which contains , inter alia, a union-security
clause , Michael Gaylord , Respondent's operations manag-
er, filed apetition seeking a union deauthorization election.
This petition was dismissed by the Regional Director based
upon his finding that Gaylord was a supervisor within the
meaning of the Act . Subsequent thereto a second petition
for union deauthorization election was filed ° leading to an
election on November 6, 1969 , which resulted in a tie vote
and a certification that a majority of the employees eligible
to vote had not voted to withdraw the Union's authority to
enter into a union-security agreement . At the time of the
hearing herein there was pending a third petition for union
deauthorization election filed on March 2 by Don Powers,
a staff engineer hired by Respondent in late December 1969
or early January.
B. The Discharge of Charles Wallace
The Complaints alleged that Respondent discharged
Charles Wallace "because Wallace refused to initiate, spon-
sor, or engage actively in a UD proceeding among the engi-
neering employees and in other conduct or activity hostile
to the Charging Par ty Union. For the reasons set forth
below I find that General Counsel has not proved these
allegations by a preponderance of the evidence and shall
recommend dismissal of the complaint.
1. Wallace's supervisory status
Robert E. Eastman , II, Respondent's president , testified
without contradiction that as chief engineer Wallace sched-
uled and posted the day's staff engineers where to work, was
responsible for assigning and scheduling all overtime, was
responsible for checking the pay slips of all engineers to
4 Case 7-UD-73.
s After deletion of those allegations disposed of by the settlement agree-
ment. In an on-the-record discussion the parties agreed that only the allega-
tions contained in paragraphs 20 and 21(d) were to be considered by me in
determining whether a violation occurred.
ascertain their accuracy , and was to bring to Eastman's
attention any disciplinary matters that Eastman should be
aware of and take action upon.
Wallace agreed that as chief engineer it was part of his
regular duties to make out the schedule of days and hours
the staff engineers were to work , assign overtime in the
engineering department , and at the end of each week check
on the number of hours worked by each engineer , initial the
figures , and give them to the payroll department.
As chief engineer , Wallace was paid the top of the con-
tract scale for engineers plus a 15-percent premium.
Wallace further testified that he conducted approximate-
ly 10 interviews of prospective engineers while he was chief
engineer . In one instance, that involving the application of
Ryan, a former full-time engineer , for reemployment on a
part-time basis , Wallace "reluctantly" recommended that
Ryan be hired for the position . Wallace 's reluctance was
based on his understanding that such part -time employment
violated the collective -bargaining agreement.
Based upon Wallace's authority to schedule days and
hours of work for the engineering staff, his power to assign
overtime, his higher pay, his responsibility to determine the
accuracy of the engineers ' time records upon which they
were paid , and his authority to interview job applicants and
to recommend their hire , I find that at all times material
herein Wallace was a supervisor within the meaning of the
Act. Sea Life, Inc., 175 NLRB No. 168 ; Cosby-Hodges Mill-
ing Co., 170 NLRB No. 50; Sheet Metal Workers, Local 49
(General Metal Products, Inc.), 178 NLRB No. 24; Okeh
Caterers, 179 NLRB No. 84.
2. The alleged unlawful motivation
Despite my finding that Wallace was a supervisor within
the meaning of the Act, were Ito find that his discharge was
occasioned by his refusal to initiate or engage actively in a
UD petition I would find that his termination violated the
Act. Talladega Cotton Factory, Inc., 106 NLRB 295, enfd.
213 F.2d 208 (C.A. 5); I. D. Lowe d/b/a Thermo-Rite Manu-
facturinf Company, 157 NLRB 310, enfd. 406 F.2d 1033
Wallace testified that sometime after December 17,
1969,6 Eastman approached him in the work area and asked
Wallace to initiate a UD petition. Wallace replied that he
would not do so. Eastman added that since Wallace was the
chief engineer it would be good if he initiated the petition
as the other men would follow him. Wallace said he would
think about it. Eastman denied that he had asked Wallace
to initiate a UD p' :ition or that he had said the other
engineers would follow Wallace in such a move.
The second instance which General Counsel looks to to
establish that Respondent terminated Wallace be,Lause of
his refusal to participate in a union deauthorization move-
ment allegedly occurred at a lunch meeting between Wal-
lace and Eastman in March. Wallace testified that at
Eastman's invitation he and Eastman had lunch at the Pan-
cake House in Flint in March at which time Eastman dis-
cussed how tight business conditions had become and asked
Wallace to hold down the overtime and to work more close-
ly with Eastman in scheduling the men. Then, Wallace
claimed, Eastman said, "Oh by the way, you didn't sign the
petition did you, you [obscenity ]." Wallace testified that he
replied he didn't think Eastman needed his signature to get
6 Wallace was unable to pinpoint the date , setting it as after John
Redmond's discharge . The Second Amended Consolidated Complaint in the
allegations pertaining to Redmond 's discharge (paragraph 18, which was
disposed of in the settlement agreement ) sets the date of Redmond 's termina-
tion as "on or about December 17, 1969."
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the other employees in the department under control. Dur-
ing cross-examination Wallace stated that Don June, a sta-
tion employee who handles the payroll, was in the
restaurant while he and Eastman were having their discus-
sion . Eastman not only denied the conversation but denied
as well that he had lunch with Wallace in March 1970. Don
June was not called to testify.
The period in March within which this alleged luncheon
conversation could have occurred was between Monday,
March 3, and Thursday, March 13, when Wallace was dis-
charged . The Federal Communications Commission cita-
tion of violations b7 the station which triggered the events
leading to Wallace s termination was received by Respon-
dent on March 3. The record is replete with evidence that
all of Respondent 's attention and energy was devoted to
consideration of the FCC citation following its receipt.
Eastman immediately communicated with Stephen C. Rid-
dleberger , executive vice president of Respondent 's parent
company , their attorneys in Washington, and the station's
outside consulting engineer . Eastman spent considerable
time investigating the circumstances of the alleged viola-
tions of FCC regulations, was in constant communication
with the parties named above, Riddleberger came to Flint
to take part in the deliberations concerning the FCC cita-
tion, and the Company looked to Wallace as a primary
source for information upon which to base its reply to the
FCC. Under these circumstances I find it inconceivable that
Eastman would not have referred to the FCC citation in any
conversation he had with Wallace following its receipt. Yet,
in Wallace 's account of his March luncheon conversation
with Eastman there is no reference at all to the communica-
tion from the FCC. Accordingly, I credit Eastman's testimo-
ny denying that such a conversation or luncheon meeting
had ever occurred.
At the time of the alleged request by Eastman that Wal-
lace initiate a UD petition the engineering staff had been
reduced to Wallace, Staff Engineer Gale, who had joined
the staff during the week of November 26, 1969, and Ryan,
who was working part-time.' General Counsel sought to
create the impression that Gale , who was promoted to chief
engineer following Wallace 's discharge despite the fact that
Gale had been personally cited by the FCC for violation of
its regulations , had been favored by the Company because
of his loyalty to it. General Counsel also stated that the
engineers who had been separated by the Company prior to
the employment of Gale and Powers had been let go be-
cause of their union adherence and Respondent followed
their separation with that of Wallace under the principle
that one starts with "ten little Indians" and disposes of them
"until the whole Indian tribe [of union adherents] is gone."
Under these circumstances I do not credit Wallace's testi-
mony that Eastman wanted him to initiate the UD petition
because the other men would follow Wallace as Chief engi-
7 Redmond had been discharged and Powers was not hired until the end
of December 1969 or early in January.
neer . If one follows General Counsel's theory at that point
in time there were no union adherents on the engineering
staff who would be influenced by Wallace's actions.
Finally, General Counsel elicted evidence that Wallace
signed a number of grievances during December 1969 and
was in effect acting union steward for the engineering de-
artment at the time of Eastman 's alle ed attempt to have
him initiate a UD petition . In light of allace 's open sup-
port of the Union I "have some doubt" that Eastman would
have turned to Wallace to effectuate his purpose to oust the
Union Cf. Central Electronics, Inc., 179 NLRB No. 145.
Accordingly, I find that General Counsel has failed to
prove by a preponderence of the evidence that Respondent
was moved to terminate Wallace because of his refusal to
cooperate with it in an effort to do away with the Union's
authorization to enter into a union-security agreement.
I further find that a lengthy discussion of the FCC cita-
tion and Wallace 's responsibility for any of the 10 specific
violations set forth therein would add nothing to this deci-
sion as the essential element of a violation , an unlawful
motive and effect , is missing . I have however carefully con-
sidered all of the evidence pertaining to the FCC citation
and the events it engendered and find nothing therein to
buttress General Counsel's claim that Wallace was termi-
nated because of his noncooperation in the UD movement.
Moreover, my finding that General Counsel has failed to
prove by a ppreponderance of the evidence that Eastman
sohciteWallace to initiate a UD petition and thereafter
castigated him for not joining in a petition for such an
election was made with full consideration of certain evi-
dence that Eastman and Operations Manager Gaylord ex-
pressed satisfaction that employees they viewed as union
voters had been terminated and that Eastman stated to
former Chief Engineer Rheingans his plans for the station
when he was rid of the Union.
I shall therefore recommend that the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. Eastman Broadcasting Company, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Robert E. Eastman II, president of Eastman Broad-
casting Company , Inc., is an agent of the Respondent within
the meaning of the Act.
3. National Association of Broadcast Employees and
Technicans, AFL-CIO-CLC, and its Local No. 46, are la-
bor organizations within the meaning of Section 2(5) of the
Act.
4. Respondent has not committed unfair labor practices
as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint herein be dis-
missed.