Elm City Broadcasting Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1955

111 N.L.R.B. 980 (N.L.R.B. 1955)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give any effect to our contract of April 14, 1954, with modi-
fications of the same date, with the above-named labor organization, or to
any extension, renewal, modification, or supplement thereof, or to any super-
seding agreement with said labor organization, unless and until said organiza-
tion shall have been certified by the National Labor Relations Board as the
bargaining representative of our employees in the aforesaid store.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Local 1371, Retail Clerks International Association,
AFL, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and to re-
frain from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by Section 8 (a) (3) of the
Act.
WE WILL forthwith reimburse to all our employees and former employees in
our Fairless Hills, Pennsylvania, store, from whose wages we have deducted
and withheld funds since May 1, 1954, all such deductions and withholdings
representing union membership dues charged by and payable to Amalgamated
Food Employees Union, Local 196, affiliated with Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL, under the terms of the au-
thorization of checkoff of union dues contained in any applications for mem-
bership in said labor organization heretofore signed by said employees and
former employees or pursuant to the terms of the contract of April 14, 1954,
or any extension, renewal, modification, or supplement thereof, or any agree-
ment superseding it, or otherwise.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization, except to the extent that such right
may be affected by an agreement as authorized in Section 8 (a) (3) of the Act, as
amended.
SAFEWAY STORES, INC.,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
ELM CITY BROADCASTING CORPORATION and AMERICAN FEDERATION
OF TELEVISION AND RADIO ARTISTS, AFL. Case No. 1-CA-17418.
March 17,1955
Decision and Order
On November 1, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief ; 1 and the
General Counsel filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
1 The Respondent's request for oral aigument is denied because, in our opinion, the
record and exceptions and briefs adequately present the issues and positions of the parties.
111 NLRB No. 165.
ELM `CITY BROADCASTING CORPORATION 981
The rulings are hereby affirmed.' The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications :
Like the Trial Examiner, we find no merit in the Respondent's con-
tention that the Regional Director, "acting pursuant to an agreement
for consent election procured in an arbitrary and capricious manner
by a Board Agent, must be deemed to have acted in an arbitrary and
capricious manner." The Board has examined the evidence dealing
with the procurement of the consent-election agreement and we are
convinced that the Board Agent sufficiently apprised both attorneys;
for the Respondent of the Regional Director's authority under this
procedure. Nor do we find merit in the Respondent's request for a
trial de'novo before the Trial Examiner on the merits concerning the
objections to the elections held herein. As provided in the agreement
for consent election, the Regional Director's determination of these
issues are final and binding and it is well established that on review,
the Board accepts the rulings of the Regional Director on all questions
pertaining to the election, unless shown to be arbitrary or capricious.'
We are satisfied that the Regional Director's investigations were ade-
quate and that his rulings on objections were in conformity with the
policies of the Board and the requirements of the Act 4
Accordingly, we find, as did the Trial Examiner, that the Regional
Director's certification of the Union was valid, and that the Respond-
ent has, since July 8, 1954, refused to bargain collectively with the
Union as the exclusive representative of the employees in the agreed
appropriate unit and has thereby engaged in unfair labor practices
in violation of Section 8 (a) (5) and (1) of the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Elm City Broad-
2 The Trial Examiner referred to the Board the Respondent's contention that Section
102 54 of the Board's Rules and Regulations is unconstitutional on the ground that it con-
tains an unlawful delegation of authority to a Regional Director. We find no merit in
this contention as the consent election procedure followed therein has received judicial
approval N. L. R. B. v. Volney Felt Mills, Inc., 210 F 26 559 (C. A. 6) ; N. L. R. B. v
Carlton Wood Products, 201 F. 2d 863 (C. A 9). Nor is such delegation of authority in
violation of the Administrative Procedure Act, as Section 5 (6) of that Act expressly ex-
cepts representation proceedings.
3 N L. R B. v Carlton Wood Products, 201 F 2d 863 (C A. 9) ; N. L. R. B v Standard
Ti ansformer Co, 202 F. 2d 846 (C. A 6) ; N. L. R. B. v. General Armature & Mfg. Co.,
192 F. 2d 316 (C A. 3) , Semi-Steel Casting Co v. N. L. R. B., 160 F. 2d 388 (C. A. 8) ;
N. L R. B v. Capitol Greyhound Lines, 140 F. 2d 754 (C A 6), cert. denied, 332 U. S. 763.
4 See N. L R. B. v. Volney Felt Mills, Inc, 210 F. 2d 559 (C. A. 6), wherein the court
held that even a mistake of honest judgment on the part of a Regional Director does not
constitute an arbitrary or capricious decision . See separate concurring opinion of Chair-
man Farmer
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casting Corporation, New Haven, Connecticut, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with American Federation of
Television and Radio Artists, AFL, as the exclusive representative of
all employees of the Respondent performing or appearing before the
microphone or camera on radio and television programs at the Re-
spondent's New Haven plant, excluding engineers, clerical employees,
producers, and supervisors as defined in the Act, with respect to rates
of pay, wages, hours of work, and other conditions of employment.
(b) In any manner interfering with the efforts of American Fed-
eration of Television and Radio Artists, AFL, to bargain collectively
with the Respondent on behalf of the employees in the aforesaid appro-
priate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with American Federation
of Television and Radio Artists, AFL, as the exclusive representative
of the employees in the above-described unit, with respect to wages,
rates of pay, hours of work, and other conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its plant and studios in New Haven, Connecticut, copies
of the notice attached to the Intermediate Report marked "Appen-
dix." s Copies of the notice, to be furnished by the Regional Director
for the First Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the First Region, in writing
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
CHAIRMAN FARMER, concurring :
I concur with my colleagues' conclusion here because the consent-
election agreement which led to the Union's certification was entirely
clear on its face and was legally executed. The Respondent, through
its authorized officer, signed it voluntarily, on advice, and in the pres-
ence of its legal advisors. There is no charge or evidence of fraud or
5 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by decree of a United States Court of Appeals, there shall be substituted for the
words "Pursuant to a,Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
ELM CITY BROADCASTING CORPORATION 983
duress in the execution of the formal , written instrument . The parties
are presumed to have been fully aware of the plain meaning of the
document which they signed , and therefore I see no reason for inquir-
ing further into the discussion which preceded the signing of the agree-
ment. Moreover, I find no evidence indicating capricious or arbitrary
conduct by the Regional Director.
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed and served, a complaint and notice of hearing
thereon having been issued by the General Counsel of the National Labor Rela-
tions Board, and an answer having been filed by the Respondent Company, a hearing
involving allegations of unfair labor practices in violation of Section 8 (a) (1) and
(5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called
the Act, was held in New Haven, Connecticut, on September 14 and 15, 1954, before
the duly designated Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent,
since on or about July 8, 1954, has refused to bargain collectively with the Charging
Union, although at all times since June 4, 1954, the said Union has been the ex-
clusive bargaining agent of all employees in an appropriate unit, as a result of an
election conducted by the Regional Director of the First Region. It is further alleged
and denied that by such refusal to bargain the Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights guaranteed by the Act.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to
the issues, to argue orally upon the record, and to file briefs and proposed findings of
fact and conclusions of law. Briefs have been received from General Counsel and the
Respondent. Accompanying the Respondent's brief were prosposed findings and
conclusions, all of which are hereby rejected, for reasons set forth below, except
those consistent with the Trial Examiner's findings and conclusions. After filing of
briefs, counsel for the Respondent telegraphed the following motion to the Trial
Examiner-the wire failing to show whether or not the motion had been served upon
other parties:
Respectfully move to strike brief of counsel to General Counsel in Elm City
Broadcasting hearing as prolix scandalous impertinent and contemptuous of
Rules and Regulations of Board. Please order filing of new brief in con-
formance with dignity of Board and bearing on pertinent issues before you.
Please advise as to ruling on motion.
Said motion to strike is denied, the request to order the filing of a new brief is
declined, and counsel for the Respondent is hereby advised of the ruling.
Disposition of the Respondent's motions to dismiss, renewed at the close of the
hearing, are made by the following findings, conclusions, and recommendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Elm City Broadcasting Corporation is a Connecticut corporation, located in New
Haven, Connecticut, where it is engaged id the operation of a radio station, WNHC
and WNHC-FM, and a television station WNHC-TV, under license by the Federal
Communications Commission.
In the course of its business the Respondent broadcasts and televises daily com-
mercial and other programs and continuously had sold at all times herein material
radio and television advertising to advertisers located in several States of the United
States other than Connecticut, and continuously has caused its programs and ad-
vertising material to be heard and seen in States other than Connecticut.
The annual gross revenue of the Corporation from all sources, covering both radio
and television operations, exceeds $200,000.
`984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Respondent , in effect , conceded the Board 's jurisdiction when he
stated: "On the question of commerce I think we have no dispute." It is found that
the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Television and Radio Artists, AFL, is a labor organiza-
tion admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
Despite a good deal of circumlocution as to irrelevant matters at the 2-day hear-
ing, revealed by the record, the issues for determination here are really quite simple
and few. Since General Counsel, by his complaint, assumed the burden of sustaining
his allegations of unfair labor practices, the issue raised by him must first be resolved:
whether or not the Respondent in fact, following certification of the Charging Union
as the bargaining agent in an appropriate unit, refused to bargain collectively with
that organization . If that issue is determined in the negative , all others, raised by
the Respondent in its answer and by its counsel at various times during the hearing,
become immaterial.
If the facts make out a prima facie case of violation of Section 8 (a) (5) of the
Act, then certain issues raised by the Respondent become relevant, which may gen-
erally be summarized as being: whether or not the Respondent was and is justified
in refusing to bargain with the Union. Since counsel for the Respondent contends
so variously and inconsistently regarding reasons why his client has no obligation
to deal with the Union, the Trial Examiner will not expose this section of the Inter-
mediate Report to such confusion, but will reserve discussion and appraisal until
later.
Actual events, as to which there is small dispute from which the opposing con-
tentions stem, are as follows:
(1) On December 29, 1953, the Respondent and the Charging Union entered
into an agreement for consent election, representatives of each party signing a docu-
ment (NLRB 651) bearing that title and empowering the Regional Director for the
First Region to determine all issues relating to the election.,
(2) On January 15, 1954, the election was held. The Union lost by two votes.
(3) On January 20 the Union filed objections to the election, claiming improper
preelection conduct on the part of the Employer.
(4) On March 1, 1954, after investigation, the Regional Director issued his report,
finding merit to some of the objections, voiding the election, and directing that
another election be held.
(5) On March 8 the Respondent filed with the Board in Washington-not the
Regional Director-its request that the Board, in effect, reverse the Regional
Director's findings in his report.
(6) On March 26, by its assistant executive secretary, George A. Leet, the Board
replied that it would neither "entertain an appeal from the Regional Director's
action in this matter," nor "consider your Exceptions to the Regional Director's
Report on Objections and Challenges," further stating, in part,
It is the firm policy of the Board that where parties have entered into a consent-
election agreement, it will not intervene when any of the parties indicate dis-
' Paragraph 6 of the document thus signed reads- "OBJECTIONS, CHALLENGES,
REPORTS THEREON-Objections to the conduct of the election or conduct affecting the
results of the election, or to a determination of representatives based on the results thereof,
may be filed with the Regional Director within five clays after issuance of the Tally of
Ballots. Copies of such objections must be served upon the other parties at the time of
filing with the Regional Director. The Regional Director shall investigate the matters
contained in the objections and issue a report thereon If objections are sustained, the
Regional Director may in his report include an order voiding the results of the election
and, in that event, shall be empowered to conduct a new election under the terms and pro.
visions of this agreement at a date, time, and place to be determined by him If the chal-
lenges are determinative of the results of the election, the Regional Director shall investi-
gate the challenges and issue a report thereon. The method of investigation of objections
and challenges, including the question whether a hearing should be held in connection
therewith, shall be determined by the Regional Director, whose decision shall be final and
binding "
ELM CITY BROADCASTING CORPORATION 985
approval of the judgment exercised by the Regional Director in sustaining cer-
tain objections to the election , refusing to rule on a challenged ballot and direct-
ing a new election be held . The Board 's Rules and Regulations , 102.54 and
Section 101.18 of the Statement of Procedures, indicate this policy.
(7) Pursuant to the Regional Director 's order a new election was held on June 4,
which the Union won.
(8) On June 9 , the Respondent filed objections to that election with the Regional
Director.
(9) On July 2 the Regional Director overruled the Respondent 's objections and
certified the Union as the exclusive bargaining agent of all employees in an appro-
priate unit.
(10) On July 1 counsel for the Respondent, in a letter to Chairman Farmer, again
attempted to obtain the Board's intercession in the case. The Board, by its assistant
executive secretary, on July 13 again informed counsel that the Board would not
intervene.
(11) On July 13 the same counsel again wrote to Chairman Farmer, expressing
amazement at the Board 's action, questioning the validity of its rules , and urging
board determination of his exceptions to the Regional Director 's latest report.
(12) On August 5, by its executive secretary, Frank M. Kleiler, the Board again,
as it had repeatedly in previous correspondence, advised counsel that "the regional
director 's rulings in this case are final, and the Rules and Regulations provide no
appeal to the Board."
B. The refusal to bargain
The complaint alleges, the Regional Director of the First Region has found (in
his certification of representatives dated July 2, 1954), and the Trial Examiner now
finds, that the Charging Union is, by virtue of a Board-conducted election held on
June 4, 1954, the exclusive representative of all employees in the following appro-
priate unit, for the purposes of collective bargaining:
All employees of the Respondent performing or appearing before the micro-
phone or camera on radio and television programs at the Respondent's New
Haven plant, excluding engineers, clerical employees, producers, and super-
visors as defined in the Act.
On June 9, a few days after winning the election, the Union wrote to the Re-
spondent requesting a meeting for negotiations of a contract. On June 14 Counsel
Celentano, for the Respondent, replied that its "decision to confer," as requested,
must await the "outcome of the filing of our objections." On July 6, following
receipt of the Regional Director's certification, the Union again wrote to the Re-
spondent, requesting a negotiating meeting. On July 8 Counsel Celentano and Rosen,
replying for the Respondent, set no date for any meeting, and said that while "our
door is always open" the Union should "appreciate that we are still pursuing our
sights under the National Labor Relations Act and are filing Exceptions to the
Report on Objections and Certification of Representatives. . .
On July 13 the union representative, Schlesinger, acknowledged the gesture of
the "open door" but said that he would "forego the pleasure of a chat until your
chant . is ready to enter into good faith bargaining with us."
No reply was given to that letter.
On July 19 the Union again made formal demand for a negotiating meeting, stat-
ing clearly: "This is an unequivocal demand that you meet and confer for the
purposes of good faith collective bargaining."
Receiving no immediate reply to this letter, the Union filed charges with the Board.
On July 23, Counsel Rosen acknowledged receipt of the letters of July 13 and 19,
as well as service of the charges, referred to its previously stated "open door" policy,
but immediately thereafter pointed out: "However, we have always felt that it would
be better to await the disposition of our Exceptions with the National Labor Rela-
tions Board and the exhaustion of all the other available remedies."
On August 1 Schlesinger again wrote to Rosen, stating that "There is no point to
opening your door for a discussion if you refuse to bargain." The same letter set
forth a number of grievances which the Union desired to have settled.
On August 16 Rosen replied succinctly:
Your letter of August 10, 1954, is herewith acknowledged.
The pending unfair labor practices charge precludes any remarks on our part
until the final adjudication of all issues.
At this point, it appears, correspondence between the parties ceased.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above-quoted letter of Rosen, dated August 16, is unequivocal. There can
be no doubt but that as of that date, the Respondent flatly refused to bargain with
the Union. Since its explicit message is of a nature with the implicit contents of its
previous letters to the Union, above described, the Trial Examiner can come to no
other conclusion than that the Respondent has, from the very first request of the
Union, in effect if not in straightforward language, steadfastly refused to bargain.
The Trial Examiner therefore concludes and finds, as a fact, that since July 8,
1954, the Respondent has refused to bargain in good faith with the Union, as the
exclusive representative of employees in the appropriate unit.
C. Issues raised by the Respondent
Having found that the Respondent has refused to bargain collectively with the
Union, the Trial Examiner now turns to the reasons and evidence offered by it as to
why, as a matter of law, it did not violate the Act and why it should not be required
to bargain.
Before the hearing and to the Union, as noted above, the Respondent urged both
its exceptions to the Regional Director 's action and the charge filed by the Union as
permissible barriers to bargaining.
The exceptions: As to this item, General Counsel points out in his well-drawn
and comprehensive brief: "The law is clear that an employer who refuses to bar-
gain with a union pending various forms of review, appeals, objections or excep-
tions after certification, does so at its own risk." He cites The Borden Company,
108 NLRB 807, in which the Board said:
The obligation and duty of any employer, upon request, to bargain with a certi-
fied union is not postponed by the pendency of a petition asking for reconsidera'
tion of the union's certification.
The charges: Likewise the Respondent was without legal privilege to evade its
obligation to bargain because the Union had filed unfair labor practice charges. In
N. L. R. B. v. Taormina Co., 207 F. 2d 251 (C. A. 5), the court said that such eva-
sion of obligation is "contrary to the principle established by the decisions of this and
other courts that the filing or pendency of unfair labor practice charges does not
relieve an employer of his duty to bargain collectively."
Therefore the Trial Examiner concludes and finds that there is no merit in either
of the points raised before the hearing, in its correspondence with the Union, which
warranted the Respondent to neglect his legal obligation.
In its answer and during the hearing the Respondent raised other issues in defense
of its refusal to bargain.
The unit: In its answer the Respondent denies that the unit alleged in the com-
plaint is appropriate. No evidence, however, was adduced to support this denial.
On the contrary, witnesses for the Respondent generally testified that the composi-
tion of the unit was agreed upon by all parties at the representation conference held
December 29, 1953. Examination of the various documents sent by the Respondent
to the Regional Director , to the Union , and to the Board , up to the time of the filing
of the answer, reveals no earlier claim that the unit was inappropriate. On the
other hand , in several such documents , the Respondent insists that the first election,
which the Union lost, was valid, although previously the same unit was involve in
that election as in the second, which the Respondent contends was invalid. The
Respondent's contradictory contentions on this point deprive it of all merit as a rea-
son for not bargaining.
The Board rules: The Respondent urges that Section 102.54 of the Board 's Rules
and Regulations is unconstitutional and violative of the Administrative Procedure
Act. (The cited section deals with consent-election agreements .) With no great
reluctance , the Trial Examiner-himself an agent of the Board-refers this question
to the Board itself . In view of the fact that the Respondent stoutly maintains that
the first election held by the Regional Director , conducted pursuant to the same con-
tested rule, was valid, the Trial Examiner concludes and finds that the contention
is without merit as a factor -relieving the Respondent of its obligation to bargain with
the Union.
Regional Director 's action : "The company contends ," says its brief , "that the
determination by the Regional Director , acting pursuant to a consent election agree-
ment which specifies that such determination will be final and binding, must be set
aside, as capricious and arbitrary, and not in conformity with the policies of the
Board and the requirements of the Act." This argument loses all traction in the
quicksand of contrary claims, the other being that the first election, conducted pur-
suant to the same agreement , was valid . It is wholly without merit.
ELM CITY BROADCASTING CORPORATION 987
Conduct of Sidney A. Coven: Here is the actual hub of the vehicle Counsel Rosen
has so energetically hauled before the Board and various courts. He claims that
neither he nor Counsel Celentano, nor any of the several prominent New Haven
businessmen , officials of the Respondent , had any knowledge that a consent agree-
ment empowering the Regional Director to settle matters arising from the election
had been signed on December 29; their first awareness arriving with the above-
quoted letter from Assistant Executive Secretary Leet, dated March 26. The re-
sponsibility for this state of ignorance, Rosen and his colleagues claim, rests upon
Sidney Coven, an attorney on the Regional Office staff, who served as the hearing
officer on December 29 when the agreement was executed . The substance of the
Respondent's claim is that Coven's conduct was arbitrary and capricious in that he
failed to point out to them , or to read aloud , paragraph 6 of the agreement signed.
Again it must be noted that even as late as the filing of their brief, counsel for
the Respondent continued to insist that the first election was valid, although held
pursuant to the same consent-election agreement. If any action of Coven deprived
the consent-election agreement of validity , it would reasonably follow that the Re-
gional Director was without authority to conduct the first election. Thus the Re-
spondent's claim falls none too neatly between two stools. The Trial Examiner would
find, at once, that the contention lacks merit were it not for the serious reflection
upon the character and conduct of a Board agent cast by the oral claims of Counsel
Rosen and the sworn testimony of Counsel Celentano.
The statements of Rosen and the testimony of Celentano may not be lightly dis-
missed as mere emotional outbursts by laymen , unaware of the dignity of the pro-
fession and the oath . Rosen described himself, on the record in this case, as a "high-
priced attorney ." Celentano , according to his testimony , has been practicing law
for 23 years , has been General Counsel of the Respondent corporation since "the
time of their infancy ," and before then was trial counsel for the city of New Haven
for a period of 8 years.
Coven , according to his testimony , has been a field attorney for the Board since
1948, and before that year was a field examiner for the same Agency.
Rosen's oral claims and Celentano 's testimony may be summarized as follows.
Upon arriving at the hearing room on December 29, Coven informed Celentano that
"the purpose of the hearing was to agree to the persons who should vote at the
election which I understood had already been ordered by the Board... " Coven
said nothing either to Celentano or Rosen as to the two types of consent -election
procedures , one providing for certification by the Regional Director , and the other
by the Board . Coven did not explain to either counsel for the Respondent the terms
of any consent agreement. After the parties had agreed to the unit Coven handed
the corporation secretary-treasurer , DeDominicis , a printed form (NLRB 651) folded
in half with its title hidden, with no handwriting at all upon it , and DeDominicis
signed it . Coven put the document in his bag. A few days later typed copies of
the document were received by both Rosen and Celentano, yet neither read it.
A strange spectacle, indeed, is thus depicted by the two attorneys. If the facts
are as related by them , a client was permitted to sign a contract the contents of which
were unknown either to counsel or client. And copies of the agreement, later
provided each, was read by none of them. The Trial Examiner, a New Englander
himself, cannot find plausible the occurrence of such an event in the city of New
Haven , a community of some note as an educational center , and in the presence of
the former postmaster of that city, Patrick J. Goode, who has been president of the
Respondent for many years, and a number of officials of a leading radio and tele-
vision station. Someone, the Trial Examiner is almost sure, would have had the
human curiosity to ask the agent of the Government what it was they were signing.
In short, the Trial Examiner is unable to believe either Rosen or Celentano re-
garding the meeting of December 29. Rosen did not take the witness stand. Not
only is Celentano's testimony about the events of that day implausible, but his other
testimony contains serious contradictions . On direct examination he flatly denied
that at a meeting in Rosen's office in March, of himself, Rosen, and Coven, there
was any discussion about the consent-election agreement. On cross-examination
he admitted that this subject was discussed on that occasion, and gave some details
of it. Rosen, however, during cross-examination, interrupted and pointed out to
Celentano what he had said on direct examination, whereupon Celentano retreated
again, and said "there was nothing mentioned" about the subject.
On the other hand, Coven was a calm, straightforward, and credible witness, his
testimony unshaken on cross-examination . His account of events on December 29
was wholly plausible, and the conduct he narrated is in consonance with that of a
Government attorney of long experience . As to many related matters his testimony
is uncontradicted . The Trial Examiner believes him. His version of the disputed
events, in summary , is as follows.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before December 29 Rosen, whom Coven has known for some years,
called him and told him he had been retained by the Company as a labor relations
specialist to aid Celentano in the representation proceeding. On this occasion he
asked Rosen if it would be possible to dispose of the matters by a consent election.
Rosen agreed to consider the matter and would let him know the morning of the
hearing. Coven arrived at the hearing. While awaiting representatives of other
parties, Coven talked with Rosen and Celentano, renewing his suggestion as to a
consent election. Rosen asked Coven to explain these procedures to Celentano.
Coven did so, informing him of the two types of consent-election agreements, the
one permitting the Regional Director to determine issues, the other providing for
Board determination. Rosen finally said he would agree to a consent election and
a hearing would be unnecessary. Coven asked Rosen, "Well, Jim, what do you
want, this Regional Director form or the Board form?" Rosen replied that he
knew Bernie Alpert, the Regional Director, well, having gone to law school with
him, and that the Regional Director form was "okay." Thereafter Coven made out
the form agreed upon, filling in the blanks as to the unit, the date of election, the
name of the Company and of the Union, and gave it to Rosen. Rosen and Celen-
tano examined the document. Rosen then gave the form to the corporation secretary-
treasurer, who signed it for the Company.
Coven's account has support in the testimony of the Respondent's president, former
Postmaster Goode, who was present. While he declined to be drawn into the con-
troversy as to details, stating that he could not recall them, he said, "I know he
[DeDominicis] signed a document. I assumed he signed it on advice of counsel."
Since Goode had employed two counsel to protect his interests on this occasion
it is reasonably assumed that he meant on the advice of his own counsel. The tes-
timony of Norman Zollot, counsel for the American Federation of Labor in Con-
necticut, present on the occasion (in connection with the signing of precisely the
same type of a consent election agreement involving another unit), also supports
that of Coven on many major points.
In summary, the Trial Examiner concludes and finds that credible evidence fails
to support the Respondent's contention that Coven's conduct was arbitrary or ca-
pricious, on December 29; 1953, or that the Regional Director's subsequent actions
were derivatively arbitrary or capricious, stemming from the agreement obtained by
Coven. There is no merit to this contention of the Respondent, and it does not
constitute a valid defense to the refusal to bargain.
D. Conclusions in summary
Upon the preponderance of credible testimony and other evidence in the record,
the Trial Examiner concludes and finds that the Respondent, on July 8, 1954, and
at all times since then, refused and has continued to refuse to bargain collectively
with the Union as the exclusive bargaining agent of all employees in an appropri-
ate unit , and thereby has interfered with , restrained , and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in the unfair labor practice of
refusing to bargain collectively with the chosen representative of its employees. It
will therefore be recommended that it cease and desist therefrom and from like and
related conduct. It will further be recommended that, upon request, the Respondent
bargain collectively in good faith with the Union as the exclusive representative of all
employees in the appropriate unit , and that any understanding reached be embodied
in a signed contract.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. American Federation of Television and Radio Artists, AFL, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
TROPIX-TOGS, INC. 989
2. All employees of the Respondent performing or appearing before the micro-
phone or camera on radio and television programs at the Respondent's New Haven
plant, excluding engineers , clerical employees, producers, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. American Federation of Television and Radio Artists, AFL, was, on June 4,
1954, and at all times since has been, the exclusive representative of all employees
in the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
4. By refusing on and after July 8, 1954, to bargain collectively with the afore-
said Union as the exclusive representative of the employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practice the Respondent has interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, thereby engaging in an unfair labor practice within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with American Federation of
Television and Radio Artists, AFL, as the exclusive representative of all our
employees performing or appearing before the microphone or camera on radio
and television programs at our New Haven plant, excluding engineers, clerical
employees, producers, and supervisors as defined in the Act, with respect to
grievances, labor disputes, wages, rates of pay, hours of employment, and other
conditions of employment and, if an understanding is reached, embody such
understanding in a signed agreement.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain collectively with us, or refuse to bargain in good faith with
said Union, as the exclusive representative of all our employees in the bargain-
ing unit set forth above.
ELM CITY BROADCASTING CORPORATION,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
TROPIx-TOGS , INC. and MIAMI JOINT COUNCIL, INTERNATIONAL LADIES'
GARMENT WORKERS UNION, COMPOSED OF LOCALS 339 AND 415, AFL.
Case No. 10-CA-1668. March 17, 1955
Decision and Order
On October 30, 1953, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
111 NLRB No. 157.