Hanford Broadcasting Co.

National Labor Relations Board - Board Decisions

Dec 9, 1954

110 N.L.R.B. 1257 (N.L.R.B. 1954)

HANFORD BROADCASTING COMPANY 1257
14ANFoRD BROADCASTING COMPANY (KNGS) and RADIO-TV TECHNI-
CIANS, LOCAL 202, IBEW, PETITIONER. Case No. 2O-RC-P315.
December 9,1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Albert Schneider, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds that it will not
effectuate the policies of the Act to assert jurisdiction in this case for
the reasons stated below.
The Employer, under a license issued by the Federal Communica-
tions Commission, operates KNGS, a small radio station located near
Hanford, California, employing about 10 or 11 persons in all phases
of its operations. KNGS it not affiliated with any national radio net-
work and broadcasts no network programs whatever. Its secondary
transmission coverage embraces an area with a radius of only 75 miles.
During the first 7 months of its operations, which commenced Jan-
uary 1, 1953, the Employer's gross revenue was about $85,000, most of
which was derived from local commercial accounts. KNGS occa-
sionally transmits recorded or transcribed programs which it purchases
from advertising agencies and other out-of-State sources. It also in-
frequently broadcasts commercial programs for out-of-State sponsors,
under arrangements with agencies located outside the State. At the
time of the hearing, one daily religious program was being broadcast
for a Nebraska sponsor.
The Employer contends that the operations of this small radio sta-
tion are so local in character, even assuming that certain aspects bring
it within the broad sweep of the Board's legal jurisdiction, that the
purposes of the Act would not be served by our exercising jurisdic-
tion here. To the contrary, the Petitioner insists that there are in-
terstate aspects involved and that the Board should extend its ad-
ministrative function in this case.
It has been the consistent position of the Board that it better ef-
fectuates the purposes of the Act, and promotes the prompt handling
of major cases, not to exercise its jurisdiction to the fullest extent possi-
ble under the authority delegated to it by Congress, but to limit that
exercise to enterprises whose operations have, or at which labor dis-
putes would have, a pronounced impact upon the flow of interstate
commerce. In furtherance of that policy, the Board in October 1950
adopted certain standards to govern its assertion of jurisdiction.
Those standards resulted from a study of the Board's experience up
to that time.
110 NLRB No. 208.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- Among the standaids adopted in 1950 was one called "instrumental-
ities and channels of interstate commerce," pursuant to which the
Board asserted jurisdiction over channels of communication without
regard to their size.'
Early this year the Board undertook to study and reappraise the
1950 jurisdictional standards, in the light of the Board's experience
since their adoption and ,also in the light of changing economic con=
ditions. Based upon that study and reappraisal, it is our opinion that
the jurisdictional standard enunciated in TVBSR, Lie., should be re-
vised so that the Board's long-established policy of limiting the exer-
cise of its jurisdiction to enterprises whose operations have, or to which
labor disputes would have, a pronounced impact upon the flow of in-
terstate commerce can be better attained.
We have determined that in future cases the Board will assert juris-
diction over radio and television stations and telephone and telegraph
systems only if the gross income of the particular enterprise amounts
to at least $200,000 annually.2
The statistics cited by Member Peterson in his dissent give a mis-
leading impression of the impact of the new jurisdiction standard.
Thus, he cites the fact that approximately one-third of all interstate
telephone companies have annual gross revenues under $200,000, and
that all these companies will be excluded from the coverage of the Act.
However, these smaller companies employ only about 400 of the more
than 600,000 individuals working for interstate telephone companies.'
In other words, the effect of the plan will be to remove from the cov-
erage of the Act less than 1 percent of the total number of interstate
telephone company employees. Figures for the total number of in-
trastate telephone companies are difficult to come by and are incom-
plete. They do not show, for example, how many employees are em-
ployed by such companies, or how employees are distributed between
companies having more or less than $200,000 annual revenue. How-
ever, if, as seems a reasonable surmise, the figures for interstate com-
panies reflect the situation among the intrastate companies, then the
figures showing only number or percentage of firms having less than
$200,000 annual revenue are meaningless. As in the case of the in-
terstate companies, the number of employees of intrastate companies
affected by the new plan is probably very small. Further, although
the number of cooperative telephone companies mentioned by Mem-
ber Peterson as being excluded by the present decision is impressive on
its face, actually these companies do an infinitesimal part of the tele-
'WBSR, Inc , 91 NLRB 630
'To the extent that WBSR, Inc., and cases relying thereon are inconsistent with our
decision herein, those cases are overruled.
3 Federal Communications Commission , Statistics of the Communication Industry in
the United States, Year Ended December 31, 1952, table 14
HANFORD BROADCASTING COMPANY 1259
phone business of the country, they' are practically all lin'lited to rural
and farm areas, and they either have no employees at all.or 'at most
have only a handful'
Indeed, most, if not all, of these local cooperatives would be excluded
from the coverage of the Act entirely because, as a matter of law, they
are not engaged in interstate commerce or their operations do not affect
interstate commerce.
Member Peterson also refers in his dissent to the "far-reaching and
potentially disastrous effects" of the present decision in allegedly
nullifying Section 8 (b) (6) of the Act, the so-called "featherbedding"
provision. According to the Supreme Court, the legislative history
of the Taft-Hartley Act demonstrates that Congress "decided to limit
the [featherbedding] practice but little by law," B and that Section 8
(b) (6) was intended to have only a narrow effect and to be little more
than a stopgap until the Lea Act had been construed by the Supreme
Court and more study had been given to the general problem of
"featherbedding" in industry c In keeping with its own similar in-
terpretation of the legislative history, the Board decided in 1951 that
Section 8 (b) (6) "was not intended to reach cases where a labor
organization seeks actual employment for its members, even in situa-
tions where the employer does not want, does not need, and is not
willing to accept such services." 4 This interpretation, accepted by
the Supreme Court,' long since rendered Section 8 (b) (6) innocuous.
As the income of the Employer's radio station, projected on a 12-
month basis through 1953, was below the minimum figure here an-
nounced, we shall dismiss the petition. Accordingly, we find that no
question affecting commerce exists concerning the representation of
employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
[The Board dismissed the petition.]
MEMBER MURDOCK, dissenting :
For the basic reasons set forth in my dissenting opinion in Breeding
Transfer Company, 110 NLRB 493, I must also dissent from the re-
fusal of the majority to assert jurisdiction herein. The $200,000 gross
annual receipts test now adopted for cases involving radio and tele-
vision stations and telephone and telegraph systems in place of the
former policy of taking jurisdiction of all such instrumentalities of
4 Bureau of Labor Statistics, Bulletin No. 659, Consumer Cooperatives in the United
States, 1936.
5 American Newspaper Publishers Association , at al., v. N. L R . B., 345 U. S. 100, 106.
8 Id, at pp. 106-109.
4 American Federation of Musicians, etc, 92 NLRB 1528, 1533 ( Members Murdock
and Styles constituted the majority ; Member Reynolds dissented ; and Chairman Herzog
and Member Houston did not participate.)
8 American Newspaper Publishers Association v. N. L. R. B., supra; N. L. R. B. v.
Gamble Bntei prises, Inc., 345 U. S 117.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce subject only to de minimis, strikes me as particularly un-
warranted. The criticisms of Member Peterson as to the defects and
hazards of such a standard are well taken and I join therein. The
correctness of his position is so well established without reliance upon
the comments of industry representatives in 1953 which he cites, and
as I have doubt as to the extent to which they can be utilized, I do not
myself rely upon them.
Like Member Peterson, I take exception to the majority assertion
that the Board and the Supreme Court have rendered Section 8 (b)
(6) "innocuous." The Court can speak for itself, but it seems to me
to be preferable that the Board enforce the sections of the Act, whether
they be stringent or mild, as written rather than simply denying re-
course to the Act at all.
MEMBER PETERSON, dissenting :
I am unable to agree with either my majority colleagues' refusal to
assert jurisdiction in this case or with their establishment of a new
standard requiring declination by the Board of jurisdiction over radio
stations, television stations, and telephone and telegraph systems whose
gross income is less than $200,000 annually.
In my separate opinion in the Breeding case,' I expressed my indi-
vidual views with respect to the overall aspects of the new jurisdic-
tional plan adopted by a majority of this Board. Then, the joint
concurrence of Member Murdock and myself in the Daily Press case,10
dealt with a particular feature of that plan, to wit, the standard now
being applied by the majority to instrumentalities and channels of
commerce. This concurrence voiced the opinion that, in accord with
the 1950 plan, the Board should exercise jurisdiction over newspaper
companies which constitute instrumentalities and channels of com-
merce without applying a specific dollar volume test to them. De-
tailed reasons were advanced as to why the use of such a test is inap-
propriate and unsound. Also raised therein were serious objections
to the failure of the majority to apprise anyone in detail as to where
this new standard had its origin, what its purpose was, and what its
effect would be on the particular industry. Finally, it was pointed
out, that only two possible conclusions, either of which would be un-
fortunate, could be drawn from the silence of the majority in this
regard.
In the instant case, my majority colleagues are again applying a
monetary figure test-a minimum gross income of $200,000-to radio
stations, television stations, and telephone and telegraph systems,
despite the fact that these modes of communication are the clearest
examples of instrumentalities and channels of commerce. As what
0 Breeding Transfer Company, 110 NLRB 493.
10 The Daily Press, Incorporated , 110 NLRB 573.
HANFORD BROADCASTING COMPANY 1261
was said in the concurrence in the Daily Press case has equal if not
greater force and vigor here, I do not propose to burden this opinion
byreiterating or repeating in detail the views expressed in that case.
Therefore, I shall concern myself at this time with an analysis of the
extent to which the Board's jurisdiction will be curtailed by applica-
tion of the majority's new standard to the two instrumentalities and
channels of commerce involved herein which it appears will be most
seriously affected thereby-radio and telephone companies," and to
a brief consideration of industry views and legislative intent.
Radio stations: The new standard will eliminate from the Board's
jurisdiction about 80 percent of the country's radio stations, which
receive roughly one-half of the total revenues in the entire industry.12
Also, almost all radio stations in communities of under 100,000 popula-
tion, comprising clear channel, regional, and local stations, will be re-
moved from the Board's jurisdiction," as well as over 70 percent of
all stations serving as outlets for the nationwide networks.14
The Federal Communications Commission classifies almost 50 per-
cent of all radio stations in the United States as regional, unlimited,
or part time. Approximately half of these regional stations have, on
the average, revenues of under $200,00015 Furthermore, none of the
unlimited regional stations in metropolitan areas under 100,000 popu-
lation, nor any of the part-time regional stations, will meet the new
yardstick 16
Telephone companies: As is well known, the Bell Telephone System
is by far the largest integrated company in the industry. However,
the Board's jurisdiction will be denied to a considerable number of
other telephone companies which together with Bell enable our en-
tire nation to enjoy a unified and comprehensive telephone service.
Thus, approximately one-third of all interstate telephone companies
required to report to the Federal Communications Commission (32
of 91) receive annual gross revenues of under $200,00017 Moreover,
in 1953 there were 5,140 intrastate telephone companies in the coun-
try whose local systems were physically connected with interstate
lines. It appears that 70 percent of the total revenues of these com-
11 With respect to television companies , available statistics are too inadequate for me
to make a definite prognostication as to the probable effect of the new standard upon
this industry . Regarding telegraph companies , it appears that the standard will have
relatively little effect as it is common knowledge that one extremely large company has
a major portion of the business in the industry.
12 Based upon Broadcast Financial Data for Networks and AM, FM, and Television
Stations-1950, p 17, published by the Federal Communications Commission.
13 Based upon Final AM-FM Financial data-1952, table 7, published by the Federal
Communications Commission.
14 Footnote 12, supra.
15 Footnote 13, supra, table 8
1e Footnote 13, supra.
17 Based upon Statistics of the Communication Industry-Federal Communications Com-
mission, December 31, 1952.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panies is accounted for by about 372 companies,18 and that, of that
number, only 200 receive annual revenues of $200,000 or more., Thus,
approximately 96 percent of all intrastate telephone companies will
be placed outside the Board's jurisdiction. Furthermore, there are
approximately 33,000 mutual or cooperative telephone companies with
memberships amounting to 675,000 which do a total business of
$10,000,000. Perhaps all of these companies would no longer be under
the Board's jurisdiction.19 The majority belittles the importance of
these figures by saying that the effect of the plan would be to remove
from the coverage of the Act a very small percentage of employees.
However, as Member Murdock and I pointed out in our dissenting
opinion in the Daily Press case,20 the critical factor in establishing a
jurisdictional standard should be, as it always has been, the effect
which a stoppage of an employer's operations by industrial strife
would have upon commerce. In disregard of this factor, the majority
by its new standard places one-third of all interstate telephone com-
panies in the industry outside the Board's jurisdiction.
The foregoing data reveals the great extent to which radio and tele-
phone companies will no longer be within the ambit of the Board's
jurisdiction because of the majority's use of a $200,000 minimum
standard. It is readily apparent from these statistics that by the ma-
jority's application of this new standard it is giving an immunity in
many localities to employers and unions for the potential disruption
of this nation's communication system by industrial strife. In these
circumstances and for the reasons expressed in the Daily Press case
as well as for those stated here, I dissent from the action of my col-
leagues in applying a specific dollar volume test as a condition prece-
dent to the assertion of jurisdiction over instrumentalities and chan-
nels of commerce such as the one involved in the instant case.
I turn now to the question of whether the majority's determination
to decline jurisdiction over these vital means of communication is
consistent with the responsible industry opinion and the legislative
intent, not only as revealed in the 1947 hearings and debates, but also
as further illumined by subsequent unsuccessful attempts to amend
the Act. My analysis of that history impels me to the conclusion that
my majority colleagues are taking action squarely opposed to that
opinion and intent. I think the validity of my conclusion can readily
and shortly be demonstrated.
Perhaps the radio industry-80 percent of which is now placed
outside the rights conferred and duties enjoined by the Act-best
illustrates the far-reaching and potentially disastrous effects of the
18 Based upon information supplied by the United States Independent Telephone Asso-
ciation to which these companies submit reports.
19 Statistical Abstract of the United States, 1953, p 867, table #1025-published by
Department of Commerce, Bureau of Census (1950)
20 110 NLRB 573.
HANFORD BROADCASTING COMPANY - - 1263
decision here made. One of the provisions of the amended Act, prin-
cipally traceable in large part to the concern over labor stoppages
in the radio industry, is largely nullified. I refer of course to the
so=called "featherbedding" provision, namely, Section 8 (b) (6) of
the Act. At the time the 1947 amendments to the Act were being
debated,.the first test case involving the constitutionality of the Lea
Act 21 was proceeding through the courts. That criminal statute,
enacted in an effort to curb certain tactics of the American Federation
of Musicians deemed harmful to the broadcasting industry, was then
under serious attack. The legislative history of the Taft-Hartley
law shows that Section 8 (b) (6) was devised partly as a backstop in
the event the Lea Act was held unconstitutional and partly to extend
the protection against featherbedding to industry in general.22 Coin-
cidentally, on the very day-June 23, 1947--that the Senate voted in
agreement with prior action of the House to override the President's
veto of the Taft-Hartley bill, the Supreme Court, in U. S. v. Petrillo
(332 U. S. 1), held that the Lea Act "on its face" was a constitutional
measure.. In so doing, however, the Court observed that it was "asked
to rule on constitutional questions that are not yet precisely in issue."
Significantly, it did not decide "whether the allegations of the in-
formation, whatever shape they might eventually take, would con-
stitute an application of the statute in such manner as to contravene
the First Amendment." In sum, it seems to me that the Supreme
Court decision, while upholding the constitutionality of the Lea Act
against an attack prior to a hearing on the merits, considerably quali-
fied that act as an effective means of counteracting union practices
in the broadcasting industry deemed unnecessarily obstructive of the
channels of interstate communication.
In consequence, the more precisely drawn provision of the Taft-
Hartley Act, in Section 8 (b) (6), was quickly regarded as consti-
tuting a more salutary substitute for the stringent penalties and ill-
21 P. L. 344, 79th Cong, 2nd Sess. § 506 (April 16, 1946).
2" See Hearings, House Committee on Education and Labor, 80th Cong., 1st Sess.
(1947), on bills to amend the Wagner Act, p. 755:
[Rep.] Fisher: ".
I might call attention to the fact that legislation has been offered [H. R. No. 8,
section 8 (b)] . . . which is calculated to meet the objections-of the Federal
Courts in the Lea bill unconstitutional "
See also, House Report No. 245 on H. R. 3020, 1 Leg. Hist. 316:
"(17) 'Featherbedding' . . .
The present bill is substantially less drastic than the Lea bill. . . . The pre-
cise language of the Lea bill is not applicable to industry generally, and so it
has been modified accordingly."
See finally, 93 Daily Congressional Record 6598, June 5, 1947; in 2 Leg Hist 1535:
[Sen.] Taft: . . The House had elaborate provisions [as to featherbedding].
. . . Those provisions are not the subject of the court procedure. Their con-
stitutionality has been questioned . . . However, we did accept one provi-
sion . . . . That seemed to be a fairly clear case, . . .
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined standards in the Lea Act. But I now find that the majority,
by a wave of its wand of administrative fiat and allegedly motivated
by the experience of the intervening years, nullifies in large measure
the usefulness of the substitute measure thought to be desirable by
the Congress, in agreement with industry representatives. So far as
I am advised, nothing has happened in the intervening years follow-
ing the enactment of the Act we administer to suggest that the Con-
gress would now sanction the practice it regarded as bordering on
extortion and which it sought to curb in 1947. I, of course, do not
agree that Section 8 (b) (6) was designed as "stopgap" legislation.
Nor do I agree that the Board by construction has rendered that sec-
tion "innocuous." I think it remains clear, however, that my majority
colleagues have, to say the least, made Section 8 (b) (6) even of less
application.
Another interesting diehotomy that emerges from the majority de-
cision is this : for purposes of representation and unfair labor practice
(employer or union) proceedings, more than three-fourths of the
broadcasting industry will be outside the ambit of the Act, while for
the purposes of Section 303 (sanctioning damage suits in Federal
court against unions engaging in activity proscribed by Section 8
(b) (4) and Section 304-which places restrictions on political con-
tributions by employers and labor organizations) employers and labor
organizations in the broadcasting industry will still be subject, I ap-
prehend, to the full exercise of the power deriving from the commerce
clause. Moreover, it is obvious that the action of my colleagues will
in no way impair the exercise of other Federal power over these in-
strumentalities of communication. All other significant aspects of
broadcasting will continue to be regulated pursuant to the terms of
the Federal Communications Act. But oddly enough, this agency of
the Federal Government will henceforth turn a deaf ear and an un-
seeing eye to the labor-management problems in this important area
of commerce. I cannot comprehend how a serious and studious re-
appraisal of this agency's experience with the 1950 standards can or
should lead to such incongruous results.
During the course of the 1953 hearings on legislative proposals to
amend the Act, responsible representatives of the broadcasting in-
dustry expressed their firm conviction that the union unfair labor
practice 'sections, particularly those relating to secondary boycotts,
should be strengthened. Thus, the vice president of the National Asso-
ciation of Radio and Television Broadcasters testified that "the aver-
age small employer is not strong compared to the economic strength
of a powerful international union," and predicted that "unless Con-
gress makes clear that agreements do not sanctify a secondary boycott
and that pressures directed against management which result in threats
of reprisal, of unfair lists .. . shall not occur, we are going to lay
NEWS PRINTING CO., INC. 1265
open, as we have already, thousands and thousands of comparatively
small employers of the Nation to secondary boycott pressures of a type
which are not likely to occur in big companies." 23 Another repre-
sentative, speaking on behalf of several employer associations outside
the broadcasting industry, viewed the bill proposing to curtail Fed-
eral jurisdiction in labor disputes 24 as "incredible." He testified that
he could not "understand the idea of returning to the jungle of un-
restricted warfare" that area represented by "small business" and
thereby "deny them the protection of the Act." He concluded with
the observation ". . . if your Wagner Act and your Taft-Hartley law
are good in principle, the people that really need the protection may
be the small people and not the big people. ." 25
I have shown that the clear intent of the 1947 Congress was for the
Board to exercise its jurisdiction over the same radio and television
enterprises which the majority would now eliminate. It is also im-
portant to note that the intent of Congress, as expressed by legislation,
has not altered since 1947. Though the appropriate committees of the
83rd Congress considered the question of the Board's jurisdiction at
length and bills to restrict that jurisdiction were, in fact, introduced
and made the subject of hearings, the Congress rejected all such at-
tempts. While the comments of private individuals appearing before
such committees, noted above, cannot be considered in any way as
altering the jurisdictional grant as set forth in the statute, the Con-
gress apparently accepted their views by rejecting revision of the
jurisdiction of the Board. Despite this, the majority accomplish the
opposite aim by their action herein.
For the foregoing reasons, I dissent.
ma See Hearings before the House Committee on Education and Labor , 83rd Cong., 1st
Sess. , pursuant to H. R. 115 on amendments to the Taft -Hartley Act, p. 1567 ( 1953).
u S. 1785 , 83rd Cong., 1st Sess.
ss See footnote 23, supra, pp . 3468-3469.
NEWS PRINTING CO., INC. and NORMAN KOLANKO
NEWS PRINTING CO., INC. and EDWARD MAMARY
NEWS PRINTING CO., INC. and HELEN BOWMAN
NEWS PRINTING Co., INC. and WILLIAM H. HUEBNER
NEWS PRINTING CO., INC. and HAROLD T. CARRUTH, ROBERT J. ME, IER,
JOSEPH A. HUTTON, PETER PAVLICK AND BERNARD V. SOLINGER.
Cases Nos. O-CA-..471, 2-CA-2818, 2-C,4-2867, 2-CA-0868, and
2-CA-2887. December 10, 1954
Decision and Order
On December 4, 1953, Trial Examiner James A. Corcoran issued
his Intermediate Report in the above-entitled proceeding, finding that
110 NLRB No. 209.
338207-55-vol. 110-81