Gulfcoast Broadcasting Co.

National Labor Relations Board - Board Decisions

Dec 8, 1971

194 N.L.R.B. 481 (N.L.R.B. 1971)

GULFCOAST BROADCASTING COMPANY
Gulfcoast Broadcasting Company and American Fed-
eration of Labor and Congress of Industrial
Organizations . Case 23-CA-3844
December 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 24, 1971, Trial Examiner Jerry B. Stone
issued the attached Decision in this proceeding.
Thereafter, General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief in
answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding,
pursuant to Section 10(b) of the National Labor Relations
Act, as amended, was tried pursuant to due notice on May
18, 1971, at Corpus Christi, Texas.
The charge was filed on January 5, 1971, and the
complaint in this matter was issued on March 31, 1971. The
essential issues concern whether four individuals were
discriminatorily discharged (because of union or related
type activities) by the Respondent on January 4, 1971, in
violation of Section 8(a)(3) and (1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding, and the General Counsel and Respon-
dent filed briefs which have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
1 The facts are based on the pleadings and admissions therein
2 There was no direct involvement by the AFL-CIO in the efforts of the
employees to have a union . Bancroft and Keenan did , however, discuss the
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
481
Gulfcoast Broadcasting Company, the Respondent, is,
and has been at all times material herein, a Texas
corporation with its principal office and place of business
located in Corpus Christi, Texas, where it is engaged in the
business of television broadcasting.
Respondent, at all times material herein, has been
engaged in the business of television broadcasting, and
during the 12-month period preceding March 31, 1971, a
representative period, received gross revenue in excess of
$100,000, of which at least $50,000 was received by
Respondent from sales or the performance of services for
customers located outside the State of Texas. Respondent is
a subscriber to the National Broadcasting Corporation
services and, as such, causes to be broadcast nationally
syndicated news service programs and nationally adver-
tised products.
As conceded by the Respondent and based upon the
foregoing, it is concluded and found that the Respondent 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.
H. THE LABOR ORGANIZATION2
American Federation of Labor-and Congress of Industri-
al Organizations, the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory status
The pleadings establish and I so find that the following-
named persons are supervisors of the Respondent within
the meaning of Section 2(11) of the Act: T. Frank Smith,
president, and Buck Johnston, chief engineer.
B. Introduction
The question presented in this case is whether the
General Counsel has established that Respondent discrimi-
natorily discharged George Bancroft, Gary Keenan,
Melvin Kolodziej, and Joseph Morgan on January 4, 1971,
because of their union activities, and thus thereby violated
Section 8(a)(3) and (1) of the Act.
The Respondent is a Texas corporation engaged in the
operation of a television broadcasting station at Corpus
Christi, Texas. The alleged discriminatees were employed at
the television station at the time of their discharge on
January 4, 1971.
Gary Keenan commenced his employment at Respon-
dent's station on February 17, 1970, and worked thereafter
on a progression of jobs as camera trainee, cameraman, on
procedures and apparent preliminary steps for organization with Keenan's
father, and with a Mr. McCool, both connected in some official capacity
with subordinate or local unions connected with the AFL-CIO.
194 NLRB No. 83
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the audio board, as a projectionist, and around the last of
October or first of November 1970 as a director.3 Keenan
worked thereafter as a director until he was fired on
January 4, 1971.
Keenan's initial pay rate on February 17, 1970, was $1.60
per hour, was increased to $1.75 per hour on September 1,
1970, and was increased to $1.85 per hour on December 1,
1970.
During Keenan's tenure as a "director," apparently
around the first of November 1970, President Smith told
Keenan that he liked the way Keenan was doing the job.4
From that point on Keenan received no praise from any
supervisor. It is clear that President Smith became upset
about a number of things concerned with Keenan's duties
as a director, that Smith relayed such complaints to other
supervisors and to Keenan, and that Keenan was aware
that Smith was upset over his job performance. Some of
these complaints were about operational errors in Novem-
ber and prior to Keenan's last raise on December 1, 1970.
In addition to Smith's complaints, Keenan was made aware
of complaints by both Chief Engineer Johnston and Vice
President Mrs. Van Johnson.
The complaints involved questions of job performance
relating to "punching up" color for "black and white"
movies, the insertion of slides at certain places in movies,
and other crew operational complaints. It appears that the
complaints to Keenan, after November, were limited to
crew operational complaints rather than specific com-
plaints about his mechanical functioning duties. In addition
to the aforesaid type complaints, Mrs. Van Johnson had
meetings with Keenan and the crew about crew problems
during the several months that Keenan was a director .5
During the period of time that Keenan was a director, he
rarely, if ever, called in to top supervisors for instructions as
to how to handle problems. During this same time other
directors did call in to top supervisors for instructions as to
how to handle problems.
Although the facts reveal that President Smith spoke
repeatedly to supervisors and employees about the subject
of trim hair, and the supervisors relayed such remarks to
employees, there is no evidence that Keenan was the
subject of any criticism or complaint about his hair during
the tenure of his employment.
George Bancroft commenced working for Respondent on
August 22, 1970, at a rate of $1.60 per hour. He initially
started as a camera trainee. However, at first he also helped
Chief Engineer Johnston in the erection of a television
tower, the setting up of a microwave system, the setting up
of a transmitting tower, and the setting up of a radar unit
3 None of the witnesses appeared to have a good and precise
recollection of dates in general . It is clear that Keenan placed his
December 1, 1970, raise as being about a month after becoming a director
and as being around the last of October or first of November 1970. Smith
testified that the first shock that he remembered after the "hurricane" was
when he woke up and found "Gary" directing The questioning did not
pursue the timing of when Keenan became a director otherwise so as to
make clear Smith 's testimony . Smith 's testimony otherwise was phrased in
terms of "several months." Considering all of the foregoing , I credit
Keenan's testimony as to the timing . Keenan's and Smith's testimony
reveal Keenan to have been "director" at tune of discharge Johnston's
testimony classified Keenan as a "director trainee." Although, in this case,
the title is not essentially material, I credit Keenan's and Smith's testimony
to the effect that Keenan was a "director ," especially since the facts reveal
that he was left alone substantially without immediate supervision.
on top of the tower at the station. Bancroft dug holes, swept
floors, painted, and did other odd jobs. He worked on the
camera and later on the audio board and in the projection
room. Most of his work appears to have been in connection
with the audio board.
At first, with respect to Bancroft's work with the camera,
Chief Engineer Johnston told Bancroft that he was doing a
good job on camera, that he thought Bancroft had "a lot of
brains with working with cameras and equipment," and
that Bancroft would probably go far with Respondent. On
the audio board, and in the projection room, Bancroft was
criticized by both President Smith and Chief Engineer
Johnston. Both told Bancroft that he could stand a little
improvement on his job. Chief Engineer Johnston criticized
Bancroft's work on the audio board, telling him that he
should snap up a little bit on performance on his own, that
he could do better. Johnston criticized Bancroft about not
loading slides properly. Johnston told Bancroft, in effect, to
pay more attention to his work.
As indicated, Respondent President Smith was con-
cerned about the length of hair of both supervisors and
employees. Bancroft was told by Chief Engineer Johnston
about Smith's desires at the time of Bancroft's commence-
ment of employment. Smith' s desires were repeatedly made
known to employees.
Around December 1, 1970, Chief Engineer Johnston
either told Bancroft that he thought he could get him a raise
because he (Johnston) had told President Smith that
Bancroft was getting a haircut, or told Bancroft that he
thought he could get him a raise because he (Johnston) had
told President Smith'that Bancroft had got his hair cut 6
Around the first of December 1970, Bancroft talked to
Chief Engineer Johnston about the possibility of being able
to do something about employee rights regarding their hair
and "things like that." Bancroft told Johnston that he did
not think that employees' jobs should be in jeopardy
because of President Smith's constant bickering about their
hair. One or the other of the two (Bancroft or Johnston)
mentioned that the only way to alleviate such a situation
would be by having a union at the station.7
From the logical consistency of all of the facts, it appears
that Bancroft cut his hair, and as a result received a pay
raise on or about December 16, 1970, to $1.75 per hour and
worked at such rate until he was discharged on January 4,
1971.
Melvin Kolodziej commenced employment at Respon-
dent's station in October 1970 and worked thereafter until
January 4, 1971, when he was discharged. His job was that
of audio operator, and his initial and final rate of pay was
4 Keenan had also been told by Chief Engineer Johnston , when Keenan
was on audio, that Keenan was doing a good job and that Johnston liked
the way that he was doing it.
5 Smith credibly testified to calling Keenan 8 to 10 times a week about
problems Keenan, although testifying that Smith called all the time,
denied that he received calls every week or in any great number. I found
Smith to be a more frank, forthright , and truthful witness as to the
complaint calls and credit his testimony as indicated in the facts found.
B Bancroft testified to both versions and it is impossible to determine
which is accurate from the record.
7 Bancroft's total testimony reveals an unsureness as to who brought up
the subject of a union. Johnston denies bringing the subject up . It is clear
that the subject of a union was brought up. I find it unnecessary to make a
more detailed and precise finding since the overall results would not be
changed
GULFCOAST BROADCASTING COMPANY
$1.60 per hour. During the time of Kolodziej's employment,
Chief Engineer Johnston spoke to him about his hair, as
Johnston did to all employees, and told him to get it cut
short like Gary Kennan's. This did not appear to be a big
problem insofar as Kolodziej was concerned, and the
evidence does not reveal the question of his hair to be a
contributing reason for his discharge.
There is no evidence of individual praise or criticism of
Kolodziej's work while employed by Respondent.
Joseph Morgan commenced work for Respondent on or
about December 7, 1970, and worked thereafter until he
was discharged on January 4, 1971. He worked for 4 or 5
days as a cameraman trainee and thereafter as a
cameraman on live transmission. His rate of pay through-
out the period of his employment was $1.60 per hour.
Chief Engineer Johnston told Morgan during his first few
days of employment that he was not doing too good but to
keep practicing and practicing. During his employment, the
director on the night shift spoke to him as to small mistakes
he made.
As to Morgan's hair, Chief Engineer Johnston told him
prior to his employment that he should get a haircut. There
is no evidence that Morgan was talked to individually
about his hair during the time of his employment. The
evidence clearly reveals that President Smith's views as to
"hair" were well known and repeatedly made known to all
employees by both President Smith and Chief Engineer
Johnston. Morgan's testimony as to his query about "hair"
to Johnston after Morgan's discharge reveals that Morgan
must have considered his "hair" to at least approach the
borderline of acceptability by President Smith.
In addition to the foregoing facts, it should be noted,
basically speaking, that Keenan, Bancroft, and Kolodziej
worked on the same crew, and that for part of the time of
each shift which these employees worked, Morgan worked
with them. President Smith credibly testified to the effect
that he found this crew to be one that would not work out
as is revealed by the following credited excerpts of his
testimony.
Q. (By Mr. Kendrick) Just tell us about them being
fired.
A. All right.
For a long time Buck Johnston had two jobs. One of
them he is extremely well qualified for; the other one,
well, I couldn't do anything with him on.
He is a very well-qualified, hard working, able
engineer.
I tried to use him in the operating field. But he just
doesn't understand people, and how to motivate people
well.
Well, I stayed with him for a long time to try to see if
I couldn't develop him into a better working knowledge
of people. But I finally had to give up.
I had kept on discussing these boys with him, giving
specific examples and everything else. He was going to
do something about it, going to do something about it,
and going to do something about it. But nothing ever
happened.
8 The facts are based upon a composite of the credited aspects of the
testimony of Bancroft, Keenan, Morgan, Kolodziej, and Johnston. It is
clear that the testimony supports the facts found herein. It is noted,
483
So, finally this thing had been on my mind so much
that-
Well, we had one crew that was outstandingly unable
to work with each other, constantly showing up worse
on the air and never calling anybody for any
instructions.
They know nothing about FCC rules. They, know
nothing about our commitment to our customers. They
know nothing about rating periods, audience ratings, or
anything of that kind.
In other words, they are just not all-around qualified.
There are a number of things that come up in the course
of the operation that they are just not qualified to
answer.
Most crews constantly call those people who are
qualified to tell them what to do.
Well, these boys never did. I have no knowledge of-
Now, I have called them. But Gary has never called
me about anything, asked me what to do, or anything.
So, I finally realized this thing wouldn't work.
Now, I have never in my life ever fired any employee
that worked for another employee-I mean for a
department head.
So, I could not fire those men without first pulling
Buck off the job and telling him to go with them.
So, I just told him, "If you want to keep these boys
you will have to put them on your payroll and you pay
them."
C. Union or Protected Activity8
During the.last week in December 1971, Bancroft spoke
to Chief Engineer Johnston about the problem between
employees and President Smith over hair and the need for
protection that might be afforded by a union. Johnston
either suggested or agreed to the need for union. Johnston
either suggested or agreed to the need for unionization and
cautioned about the necessity of being careful so as to keep
President Smith from knowing about efforts to get a union.
Thereafter Bancroft attempted to learn of procedures
abdut the formation of a union from Johnston by a
telephone call, by talking to other employees, by talking to
employee Keenan's father, and thereafter by talking to a
union official named McCool. The facts are clear that
Bancroft was the moving impetus in the attempt to learn of
and to join a union.
Bancroft soon found an ally in employee Keenan. From
this there followed contacts with Keenan's father, who was
active with a local union, and with a union official,
McCool.
Bancroft and Keenan were clearly the leaders in
attempting to learn about and to join a union. One or the
other or both engaged in discussions with fellow employees,
with Johnston, and with Keenan's father and McCool as to
the type of union desired for representation. As part of their
efforts, one or the other, or both, and others contacted the
20 to 25 employees who worked for Respondent. A list was
made and indications were made thereon as to the desires
of such employees as to union representation. Of the 20 to
however, that the testimony of the witnesses was presented in incomplete
stones, fragmented in nature, and of msufficient detail to show precise
chronological events.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25 employees contacted, over half of the employees
indicated a desire to have a union.
One or the other or both kept Chief Engineer Johnston
advised of developments throughout the time involved up
to January 4, 1971. Johnston's actions were of such a nature
as to indicate that he agreed with and was friendly to the
idea of unionization . No actual union cards were signed, no
meetings were held otherwise , and no union representatives
approached employees except as indicated by the conversa-
tions between Bancroft and Keenan with Keenan's father
and McCool. Thus the union activity or protected activity
of the employees prior to the discharge of the four
employees involved herein on January 4, 1971, may be said
to be of a beginning stage.
The facts reveal that Morgan's and Kolodziej's activities
were essentially limited to having been contacted by
Bancroft or Keenan, to having indicated a desire to have a
union, and to having had their names listed in such regard
by Bancroft or Keenan.
D. Events Circa January 1, 19719
Apparently either on January 1 or 2, 1971, President
Smith made a statement to some employees about "hair."
What occurred is revealed by the following credited
excerpts of Bancroft's testimony:
A. There was one warning dung the last week in
December of 1970 that I recall.
Mr. Smith came into the control room and told
those present that he had made a New Years resolution
regarding hair, and he said that there would be no more
hair problems in.the studio or he would not sign their
paychecks.
E. The Events of January 4, 1971
On several occasions, President Smith had complained to
Chief Engineer Johnston about the job performances of
Keenan's crew (which included Keenan, Kolodziej, Ban-
croft, and Morgan). It appears that Johnston had in effect
on such occasions taken up for such employees. As an
example, it is undisputed that Johnston thought that
Bancroft was smart and capable of improvement, that he
could help him become a good employee, and that he so
told Smith.
On January 4, 1971, President Smith again spoke to Chief
Engineer Johnston and complained about the work of
Keenan's crew. President Smith in effect told Johnston that
he had to fire the crew. It appears that Smith uses an
expression of "putting them on your payroll" to get a
message of firing across.
On January 4, 1971, Chief Engineer Johnston fired
Keenan, Bancroft, Kolodziej, and Morgan. He fired each
separately but in effect with the same message-that the
official reason for their firing was "incompetence" but that
they knew the real reason.
I discredit Bancroft's testimony to the effect that
Johnston told him that the old man had found out about
the Union and that Johnston said that he had told Bancroft
to be careful. All of the facts reveal that Johnston in effect
9 The facts are based upon the credited aspects of Bancroft's testimony.
Bancroft placed the conversation as occurring during the last week in
conducted himself virtually as a fellow employee regarding
the idea of unionism. There is no evidence to indicate that
he had reported on the employees ' organizational efforts.
Nor is there evidence otherwise that President Smith knew
of the organizational efforts . I credit Smith 's testimony to
the effect that he did not know of the employees' union
activities. Johnston's remarks to Morgan, Kolodziej, and
Keenan certainly do not indicate that he was being coy with
the employees at the time of discharge.
Further, Kolodziej credibly testified that January 4, 1971,
was his day off, that prior to his getting fired , Bancroft,
Morgan, and Keenan came by his house and informed him
that they all had been fired, that they discussed the reason
for the firing and concluded that it was for the union
activities , that he went in to see Johnston , was fired, asked
the reason why, and was told by Johnston in effect that the
reason given was "incompentence" but that "you know as
well as I do what the reason is." If Johnston had told
Bancroft that Smith had found out about the union
activities, I find it hard to believe that Bancroft would not
have related such remarks to Keenan , Morgan, and
Kolodziej, and I find it hard to believe that Kolodziej
would not have included the same in his testimony as
regards the employee discussion and conclusion that the
union activities were the reason . I further find it hard to
believe that Kolodziej would not have adverted to the
alleged remarks when he discussed his discharge with
Johnston. In short, I do not believe Bancroft s testimony
that Johnston alluded to the fact that President Smith had
discovered the employees' union activities.
Conclusion
Considering all of the foregoing, I conclude and find that
the evidence is insufficient to establish that Respondent
discharged Keenan , Bancroft, Kolodziej , and Morgan
because of their union or protected activities. The credited
evidence reveals that President Smith was the one who
decided that the employees had to be discharged. The
credited evidence does not reveal that he knew of their
union activities or that union considerations were utilized
as a basis for selection.
The question of competence or incompetence of
employees is not the real issue in this case. It is the
Respondent's belief, whether right or wrong, which is
material. President Smith very well may have had his
judgment as to competence or incompetence affected by his
ideas concerning hair. It is sufficient to say that the totality
of evidence reveals that the combination of his complaints
about job performance, individually and as a crew, and his
attitude about hair warrant a finding that he believed that .
the four employees involved herein gave unsatisfactory
performances as employees. In sum, the evidence is
insufficient to establish that Respondent has violated the
Act as alleged.
Considering the foregoing, I conclude and find that the
evidence is insufficient to establish that the Respondent
violated Section 8(a)(3) and (1) of the Act, as alleged.
December The context of the conversation alluded to, however, would
clearly indicate that the conversation occurred after January 1, 1971.
GULFCOAST BROADCASTING COMPANY 485
CONCLUSIONS OF LAw 3 . The evidence does not establish that the Respondent
has violated (as alleged) Section 8(a)(3) and (1) of the Act.
1. Gulfcoast Broadcasting Company is an employer
engaged in commerce within the meaning of Section 2(6) ORDER
and (7) of the Act.
2. American Federation of Labor and Congress of
Industrial Organizations is now, and has been , at all ' times Upon the foregoing , findings of fact , conclusions of law,
material herein , a labor organization within the meaning of and the entire record, I hereby recommend that the
Section 2(5) of the Act. complaint in this matter be dismissed in its entirety.