Jefferson Standard Broadcasting Co.

National Labor Relations Board - Board Decisions

Jun 26, 1951

94 N.L.R.B. 1507 (N.L.R.B. 1951)

JEFFERSON STANDARD BROADCASTING COMPANY 1507
2. The Respondent make whole the Charging Party for any losses of pay
and other incidents of the employment relationship which he may have suffered
by reason of the discrimination against him, by payment to him of a sum of
money equal to the amount which he normally would have earned as wages from
the date of the discrimination to 5 days after the date on which the Union serves
upon the Respondent the above -described written request . The losses of pay,
if any , shall be computed upon a quarterly basis in the manner recently estab-
lished by the Board.'
Upon the basis of the above findings of facts and upon the entire record in the
ease, I make the following :
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. By causing , and attempting to cause, the Employer to discriminate against
employees in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the-meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
2 F. TV. Woolworth Company, 90 NLRB 289.
JEFFERSON STANDARD BROADCASTING COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, LOCAL 1229. Case No.
34-CA-170. June 26, 1951
Decision and Order
On August 21, 1950, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had' engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Labor
Management Relations Act, 1947, and recommending that the Re-
spondent cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent requested oral argument and filed
its "Statement of Objections and Exceptions to the Intermediate
Report."
.On January 31, 1951, the Board granted the Respondent's request
for oral argument, which was heard by the Board on April 3, 1951,
and in which the Respondent, the General Counsel, and the Union
participated.
94 NLRB No. 227.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, the brief of the General Counsel'to the Trial Examiner,
the oral argument before it, and the entire record in the case, and
hereby adopts the Trial Examiner's findings of fact with the additions
and corrections noted below.
For the reasons set forth herein, however, the Board does not adopt
the Trial Examiner's conclusions and recommendations set forth in
Section III of the Intermediate Report except as specifically indicated
herein.
The Respondent asserts in its statement of objections and exceptions
that the Trial Examiner disclosed partisanship in favor of the Union
and against the Respondent "both in the record and in the Intermedi-
ate Report." We find these assertions unjustified.'
1. On August 20, 1949, the Respondent's chief engineer, Minor,2
rated transmitter technician Hicks' service "unsatisfactory." This
endorsement was placed upon Hicks' Federal Communications Com-
mission license as a "radio telephone operator first class," and the
license was mailed to the Commission with a letter setting out instances
of alleged neglect by Hicks. The license was then due for renewal
and was requisite to Hicks' employment as a transmitter technician..
Before rating Hicks the Respondent had been advised by the Com-
mission that, under the Commission's regulations, the rating was to
be confined to the quality of performance of technical duties without
reference to "other aspects of an operator's relationship with his em-
ployer." Despite the unsatisfactory rating, the Commission re-
newed Hicks' license.
The Trial Examiner found that Hicks was not rated by the Re-
spondent "for his performance of duties," with which we agree.3 We
do not, however, agree with his conclusion that "the giving of the
`unsatisfactory' endorsement to Hicks was clearly calculated to dis-
courage any further concerted activity of the employees toward obtain-
1 As to the hearing we note specifically that the Respondent, on the record , commended
the Trial Examiner for his cooperation and patience.
2Inadvertently the Trial Examiner referred to Minor as the chief "electrician" at WBT
for "at least 10 years. " Minor had been the chief engineer at the station for approximately
6 years.
3 The Respondent excepted to the General Counsel ' s pleading , in general terms, a
violation of Section 8 (a) (1) of the Act with respect to Hick's rating , but did not act
upon the Trial Examiner ' s suggestion-made during the presentation of testimony on
that issue-that it ask for additional time at the end of the hearing if surprised by the
development of the issue . The Respondent has not suggested that it was prejudiced in
this regard and we find that the matter has been fully litigated . See : N. L. R. B. v.
Mackay Radio & Telegraph Co., 304 U . S. 333, 349; Goodyear Aircraft Corporation,
63 NLRB 1340, 1341 ; Pacific Hills, 91 NLRB 60.
JEFFERSON STANDARD BROADCASTING COMPANY 1509
ing an arbitration clause suitable to them," as we consider this
conclusion at variance with the General Counsel's concession at the
hearing-as well as the Trial Examiner's own finding concerning the
8 (a) (5) issue-that all bargaining between the Respondent and the
Union was carried on in good faith up to and including September 3,
1949. We believe that Hicks was rated unsatisfactory simply because
of the militancy of his union leadership-described by the Trial Exam-
iner at some length-which was well known to the Respondent and
had become. a source of annoyance to it. We note from the record
that offenses similar to those ascribed to Hicks by the Respondent
in its letter to the Commission were overlooked by it in rating other
technicians. We note also the credited testimony of Patterson that
Minor admitted that Hicks was a competent engineer, but that he
intended to endorse Hicks' license unsatisfactory for reasons other
than his performance of technical duties' We find that by giving
Hicks this rating, the Respondent interfered with, coerced, and re-
strained its employees in the exercise of their right to self-organiza-
tion and to engage in other concerted activities for purposes of col-
lective bargaining and other. mutual aid, and protection in violation
of Section 8 (a) (1) of the Act.5
2. On September 00, 1940, Respondent discharged-10 of-its technical
employees for having published and distributed the so-called "second-
class" handbill, set forth in the Intermediate Report, in the course of
peaceful picketing sponsored by the Union which was otherwise con-
cededly lawful and protected under the Act. The Trial Examiner
found that by this action Respondent violated Section 8 (a) (1) and
(3) of the Act because, he concluded, the handbill to which the Com-
pany took exception was a protected phase of the employees' union and
concerted activity. The question before us is whether this conclusion
rests upon a proper construction of Section 7 of the Act. That section
guarantees to employees the right to engage in "concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion." However, as this Board and the courts have long held, it does
not embrace concerted activity undertaken for an unlawful objective,
or protect employees against discharge for resorting to "indefensible'?
I Other faults which the Respondent found with Hicks as an employee , such as Hicks'
alleged discourtesy in answering the telephone on a specific occasion , his holding a union
meeting on one occasion while the only man on duty, and his feud with his supervisor
Carey-admittedly not solely Hicks' fault-may also have contributed to Respondent's
rating Hicks differently from its other technicians. But we are convinced that the
compelling reason was the Respondent' s prejudice against Hicks for his known union
activities.
5 Member Reynolds is not convinced that Hicks ' union activity as such motivated the
Respondent in giving him an unsatisfactory rating. Accordingly, he does not concur
in the above finding that the Respondent violated Section 8 (a) (1) of the Act.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means (such as sit-down strikes, sabotage, "violence or similar con-
duct") in pursuit of their collective ends, however lawful.°
The facts essential to an appraisal of the objectives sought by the
employees in this case, and the means they adopted, are as follows:
The Union, which had represented the technical employees at the
Company's radio transmitters for -several years, began negotiations
for a new, contract in or before January, 1949, and on May 9, 1949, was
certified by the Board as the statutory representative of the employees
in the bargaining unit. Early in July, the Union and the Company
reached an impasse and suspended negotiations because of their in-
ability to agree upon a provision covering arbitration of disputes over
the discharge of employees for "cause." On or about July 9, the Unian
commenced picketing Respondent's downtown place of business in
Charlotte, without calling a strike.' By placards and handbills, the
pickets appealed to the public, in the name of the Union, to support
the employees' stand in the labor dispute. This pressure evidently
proved unavailing, for within a few weeks after the Company had
placed its newly installed television broadcast facilities into operation,
the Union resolved to get "tough," s and published the "second-class"
handbill which provoked the discharges.
The thesis of this handbill, which the Union distributed during a
10-day period beginning on August 24, was that Respondent was
mulcting the public by furnished technically inadequate, "second-
In Harnischfeger Corporation, 9 NLRB 676 at 686, decided nearly 13 years ago, the
Board said :
Section 7 of the Act expressly guarantees employees , the right "to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or
protection ." We do not interpret this to mean that it is unlawful for an employer
to discharge an employee for any activity sanctioned by a union or otherwise in
the nature of collective activity . The question . . . Is . . . whether . . . particular
activity was so indefensible , under the circumstances , as to warrant [ the employer in
discharging the participants ]. ( Emphasis in original.)
Compare the Board 's recent observations in The Hoover Company, 90 NLRB 1614
It is too well •. established . . . to. require extended discussion that not every-form
of concerted activity which falls within the literal language of Section 7 is given
protection , so as to immunize those who participate in it against discharge or other
discipline . [ Limited exceptions upon the broad language of Section 7 are recognized
in instances where] the means employed involved violence or similar conduct, or
where the objectives sought were inconsistent with the terms or the clearly enunciated
policy of this Act or other Federal statutes. .. .
And see, for instances of unlawful means: N . L. R. B. v. Fansteel Metallurgical Corpora-
tion, 306 U . S. 240; Southern S. S. Company v. N. L. R. B., 316 U. S. 31 ; Scullin Steel
Company, 65 NLRB 1294, 1317-1318; International Union, U. A. TV. I., AFL, Local 23k
et al . v. Wisconsin Employment Relations Board, 336 U . S. 245 , 257, 258; Elk Lumber
Company, 91 NLRB 333.
-' We agree with the Trial Examiner that the employees ' failure to withhold their labor
did not place their picketing outside the protective scope of Section 7 of the Act. See
The Hoover Company, 90 NLRB 1614.
8 As recited by the Trial Examiner , this characterization of the Union' s new policy
was supplied by Perkins of the Union's. executive committee in handing copies of the
second -class handbill to Covington and Treadwell, the Respondent ' s promotion manager
and program manager, respectively.
JEFFERSON STANDARD BROADCASTING COMPANY 1511
class," television service.9 Its text made no reference to the labor
dispute which had occasioned the picketing. It was distributed
widely throughout the business section of Charlotte, not only at the
picket line, but elsewhere, in places such as busses, barber shops and
restaurants.10 Although drafted and approved by the Union's offi-
cers and executive committee, the handbill did not bear the Union's
name; but was signed, simply "WBT TECHNICIANS." 11 It oc-
casioned widespread comment in the community, and caused Respond-
ent to apprehend a loss of advertising revenue due to dissatisfaction
with its television broadcasting service 12
In short, the employees in this case deliberately undertook to
alienate their employer's customers by impugning the technical qual-
ity of his product. As the Trial Examiner found, they did not mis-
represent, at least wilfully, the facts they cited to support their
disparaging report. And their ultimate purpose-to extract a con-
cession from the employer with respect to the terms of'their employ-
ment-was lawful. That purpose, however, was undisclosed; the
employees purported to speak as experts, in the interest of consumers
and the public at large. They did not indicate that they sought to
secure any benefit for themselves, as employees, by casting discredit
upon their employer.
In our judgment, these tactics, in the circumstances of this case,
were hardly less "indefensible" than acts of physical sabotage 13 The
Board has held, and we reaffirm, that the Act protects employees
against employer reprisal when they speak freely "on organizational
matters" (to borrow the Trial Examiner's expression), and in one way
or another denounce their employer for his conduct of labor relations
9 The text of the handbill was :
18 Charlotte a Second-Class City? -
You might think so from the kind of Television programs being presented by the
Jefferson Standard Broadcasting Co. over WBTV. Have you seen one of their
television programs lately? Did you know. that all the programs presented over
wBTV• are on film and-may be from one day, to five years old? There are no local
programs presented by WBTV. You cannot receive the local baseball games, football
games or other local events because WBTV does not have the proper equipment to
make these pickups. Cities like New York, Boston, Philadelphia, Washington receive
such programs nightly. Why doesn't the Jefferson Standard Broadcasting Company
purchase the needed equipment to bring you the same type of programs enjoyed
by other leading American cities? Could it be that they consider Charlotte a second-
class community and only entitled to the pictures now being presented to them?
WBT TECHNICIANS.
10 We note a typographical error in the omission of "and" from a sentence of the
Intermediate Report, on page 6, describing the distribution. The sentence should rea;i :
"The handbills were distributed by pickets on the picket line and at the main square. . . .
"Preceding handbills and placards bore the Union's official name.
ss Although without significance to our finding, we correct the Trial Examiner's summa-
tion of the evidence in the last sentence of page 6 of the Intermediate Report. The record
does contain evidence that dealers immediately communicated to the Respondent their
concern over the effect of the handbill.
11 See Brown Radio Service and Laboratory, 70 NLRB 476, 478.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or affairs germane to the employment relationship.14 Moreover, em-
ployees acting in concert may exhort consumers to refrain from pur-
chasing their employer's product unless and until he alters his labor
policy or practices.- But this is a different case. Here, the subject
matter of the employees' verbal attack upon the employer was not
related to their interests as enlaployees. And the gist of their appeal
to the public was that the employer ought to be boycotted because he
offered a shoddy product to the consuming public-not because he was
"unfair" to the employees who worked on that product. Even in the
Peter Cailler Kohler Swiss Chocolates case, upon which our dissenting
colleague relies, the employees' broadside, superficially unrelated as
it was to any labor dispute or matter pertaining to the employer's labor
relations 16 did not go so far as to suggest that consumers ought to
avoid the employer's product because it was of inferior quality. 37
For these reasons, without attempting to formulate a test which
will decide every imaginable case involving similar questions as to
the scope of Section 7, we hold that the employees in this case went
beyond the pale when they published the "second-class" handbill 118
We shall therefore dismiss the complaint insofar as it alleges that the
Respondent violated Section 8 (a) (1) and (3) of the Act by dis-
charging those individuals who were actually implicated in the publi-
cation and distribution of that leaflet.
3. Because of his conclusion that the Respondent was not entitled
to discharge its employees on these facts, the Trial Examiner did not
resolve the question whether Stroupe, Hilker, and Flowers, three of the
dischargees, actually engaged in the conduct which the Respondent
assigned as the reason for the discharges and which the Board finds
'+ Atlantic Towing Company, 75 NLRB 1169, 1172, recd . 180 F. 2d 726 , 182 F. 2d 625
(C. A. 5) ; Illinois Tool Works, 61 NLRB 1129, 1151-1153 , enfd . 153 F. 2d 87,1 (C. A. 7) ;
Peter. Collier Kohler Swiss Chocolates Company, Inc., 33 NLRB 1170, enf'd. 130 F. 503
(C. A. 2) ; Westinghouse Electric Corporation , 77 NLRB 1058 , revd on other grounds,
179 F . 2d 507 ( C. A. 6) ; American Shuffleboard Co., 92 NLRB 1272; Electronics . Equip-
ment Co ., 94 NLRB No . 62. We respectively disagree with the opinion of the Court of
Appeals for the Fifth Circuit in the Atlantic Towing case, insofar as the court implied
that the truth of employee speech , irrespective of the context or the motives of the speaker,
is the test of its protected character.
15 See the Board 's decisions in the Hoover and Electronics Equipment eases, footnotes
6 and 14, above.
16180 F . 2d 503 (C. A. 2), above . However , the publication in that case was signed
in the name of the employees ' labor organization , and was in the form of a resolution
passed at a meeting of that labor organization.
17 We subscribe , of course , to the general philosophy expounded by the Court in construing
and applying Section 7 in that case . But we think that Judge Learned Hand 's eloquent
passage, wrested from its context , does not call for literal reading here.
18 We do not reach and do not decide the question , secondarily raised by Respondent,
whether the handbill in question constituted actionable defamation . See Electronics
Equipment, above.
we also do not decide whether the disparagement of product involved here would have
justified the employer in discharging the employees responsible for it , had it been uttered
in the context of a conventional appeal for support of the union in the labor dispute.
JEFFERSON STANDARD BROADCASTING COMPANY 1513
unprotected under Section 7 of the Act. At the hearing the General
Counsel claimed that they did not.
Stroupe was president of the local Union and both he and Hilker
were members of the executive committee of the local. Although
both testified that they were out of the city and did not distribute the
handbill, neither one denied Hicks' testimony that "each",member- of
the executive committee approved the handbill for distribution after
printing. We find, therefore, that Stroupe and Hilker did approve
publication of the handbill, thereby engaging in the activity which
we find unprotected.19
Flowers, however, was not an officer of the union or member of its
executive committee. He testified that he did not distribute this
handbill because he individually "didn't quite approve of it," and this
testimony was not convincingly refuted. Except for the testimony
of Minor, whom the Trial Examiner discredited in another con-
nection, that "all" of the 10 dischargees 20 distributed the handbill,
the Respondent offered only the testimony of two of its executives that
Flowers was seen distributing handbills at a time when the sidewalk
was littered with the "second class" handbill.
On this inconclusive record, we can scarcely find that Flowers ac-
tually engaged in the misconduct imputed to him by the Respondent,
thereby forfeiting the statutory protection to which he was entitled
as a participant in union and concerted activity which was otherwise
lawful. We therefore find that the Respondent, having failed to
establish the facts essential to its defense in Flowers' case,21 violated
Section 8 (a) (1) and (3) of the Act by discharging him.- Whether
'0 It is thus unnecessary to resolve the conflict that arises from the testimony of. other
witnesses that Stroupe and Hilker did distribute the handbill . The Trial Examiner
found that Stroupe first saw the handbill after it had "already been distributed." To
the extent that this implies that Stroupe had not approved the handbill prior to or during
distribution , we do not adopt the Trial Examiner's finding. Hicks testified that the first
2,000 of the handbills were received from . the printer on August 23. Stroupe, after
testifying 'that he -was absent- from Charlotte from Wednesday morning, - August 24, to
early Saturday morning , August 27, said that the first time he saw the handbill was
Monday, August 29, "I think" ; that he didn ' t remember where he saw it because he saw
it "so many places ," that actually the "so many places" meant his own house , Hicks'
house and "possibly " that "we" had the handbills on the picket line Monday the 29th.
20 Minor was not asked specifically about Flowers , but he failed to name Flowers in
attempting to enumerate those whom he had seen.
21 In cases where, as here , an employer discharges employees for engaging in a strike
or other form of concerted activity which is not per se unlawful or beyond the protective
scope of Section 7, and justifies his action on the ground that the employees forfeited
the protection of the Act by engaging in particular misconduct , the burden is on the
Employer to establish, by a preponderance of the evidence , the actual fact of each
dischargee ' s guilt . Stewart Die Casting Corp. v. N. L. R. B., 114 F. 2d 849, 856 (C. A. 7),
cert. den. 312 U. S. 680; Home Beneficial Life Insurance Co. v. N. L. R. B., 159 F. 2d 280,
284-285 (C. A. 4), cert. den. 332 U. S . 758; Mid-Continent Petroleum Corp., 54 NLRB 912,
933; Porto Rico Container Corporation , 89 NLRB 1570. See also , Aladdin Industries,
Inc., 22 NLRB 1195, 1216-1217; Ohio Associated Telephone Company , 91 NLRB 932.
22 Member Reynolds ' is of the opinion that the credible and mutually corroborative
testimony of the Respondent's executives warrants a finding that Flowers, like the other
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this discharge be regarded as a violation of Section 8 (a) (1) or of
Section 8 (a) (3), we find it necessary to order Flowers' reinstate-
ment with back pay in order to effectuate the policies of the Act.
4. As stated above, negotiations between the Union and the Re-
spondent for a new collective bargaining contract were suspended
early in July 1949, because the parties arrived at an apparently hope-
less impasse over the question of providing in the contract for arbi-
tration in cases of discharge for "cause." Except on the occassion in
September, described in the Intermediate Report, when the Union
proposed to Respondent that negotiations be resumed after Respond-
ent had reinstated the 10 discharged employees and submitted their
cases to arbitration-a proposal which Respondent rejected-the
Union made no further attempt to bargain collectively with the Com-
pany until March 1950, a week before the hearing in this case was
scheduled to begin. On March 6 and 7, Union agent Adair. told
Blakeney, Respondent's counsel, and Walker, an executive of the
Company, that the Union desired to meet with the Respondent for
the purpose of "resum[ing] negotiations." 23 He was told that it
would be necessary to refer the matter to Crutchfield, who was then
confined at his home, convalescing from a major surgical operation.
On March 13, the day the hearing opened, and again on March 22, a
few days after the hearing closed, Adair saw Crutchfield himself
and- repeated his request for a meeting. On each occasion, Crutch-
field temporized, stating on March 13 that he would prefer to wait
until the hearing was concluded, and on March 22 that he was about
to 'leave town for a recuperating vacation of about 2 weeks.24
. Meanwhile, on March 15, under an amendment of the charge and
complaint, the General Counsel's representative at the. hearing intro-
duced a contention that Respondent had violated Section 8 (a) (5) of
the Act, as well as Section 8 (a) (1) and (3), by discharging the 10
union members on September 3. The theory of this new contention
was that Respondent's action on September 3 was designed to destroy
the Union's majority and thus to relieve Respondent of its obligation
to bargain collectively with the Union. In his Intermediate Report,
the Trial Examiner-correctly, in our opinion-rejected this theory,
but he did find that Respondent should have granted the Union's
March requests for a bargaining conference within a reasonable tine;
nine dischargees, engaged in the unprotected activity attributed to him. He would
therefore, dismiss the complaint insofar as it alleges Flowers' unlawful discharge.
'According to Adair 's own testimony , he did not enlarge upon this statement by
indicating upon what subject matter and upon what basis he desired to "resume negotia-
tions," except that by his remark to Blakeney on March 7, which we quote below in the
text , he suggested that he was interested in discussing settlement of the Union 's pending
charges.
24 Actually , Crutchfield was away for 3 weeks. His plans before leaving for Florida
had not been definite . However, he told walker that the Union might call , and instructed
walker to notify him if the Union ' s call materialized.
JEFFERSON STANDARD BROADCASTING COMPANY 1515
and that its failure to get in touch with the Union for this purpose by
April 30 (3 weeks after Crutchfield's return) was a breach of its statu-
tory obligation to recognize and deal with the Union as the certified
representative of its technical employees-including the dischargees.
We do not concur in this finding,. for we are unable to find on this
record that the Union made a bona fide and effective request for bar-
gaining which contemplated negotiation of a trade agreement in behalf
of the employees who constituted the bargaining unit in the spring
of .1950. Rather, there is much to indicate that the Union's only
purpose, in approaching the Respondent in March, was merely to nego-
tiate some kind of settlement under which the discharged employees
would be reinstated or, as Crutchfield evidently surmised, to elicit
from Respondent some admission or statement which would buttress
.the Union's contention that the Respondent had violated the Act 6
months before. The Union's failure, throughout the 8 months pre-
ceding the March conversations, to suggest any revision of its stand
on the controversial subject of arbitrating discharges for "cause" points
to this conclusion. The telegraphic proposal it submitted to the Re-
spondent in September also indicates its exclusive preoccupation with
the cause of the discharged employees and its unaltered determination
to have discharge cases settled by the procedure of arbitration-the
very subject on which the parties had deadlocked at the time when
negotiations for a new contract were suspended.25 Moreover, when
Adair spoke to Blakeney on March 7, he said only that he "thought"
that if the parties could have a meeting they "could resolve the issues
that w=orld make the hearing unnecessary." Neither then nor in any
other contact with the Respondent throughout this period, so far as
the record shows, did Adair particularize his request for a negotiating
conference or otherwise indicate that he had anything in mind except
settlement of the old dispute.26
The' foregoing circumstances, in our opinion, substantiate Crutch-
field's testimony that on March 22, when Adair approached him, he
did not think that Adair was "serious" about the proposal for further
negotiations, believing that the union representative was only "try-
A good -faith bargaining impasse ordinarily connotes the futility of further negotia-
tions. See Central Metallic Casket Co., 91 NLRB 572. This case is distinguishable on
its facts from those in which it has been held that the mere passage of time or change
in circumstances after an impasse makes the resumption of negotiations appear useful
rather than futile . Jeffery-DeWVitt Insulator Co. v. N. L. R. B., 91 F. 2d 134 , 139-140;
The American Laundry Machinery Company, 76 NLRB 981 , 983, enfd. without opinion
174 F. 2d 124 (C. A. 6).
n This is not to imply that the Board discourages vountary settlement of unfair labor
practice charges . On the contrary , the Board ' s regional agents constantly assist in the
informal adjustment of disputes which have led to the filing of charges under the Act.
But Section 8 ( a) (5) does not require an employer to enter into negotiations with a
union for the sole purpose of settling unfair labor practice charges if the employer prefers
to test the legality of his conduct by a Board decision.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to cook up another charge" against the Company.27 And, in this
context, it seems quite probable that Crutchfield told Adair on that'
occasion, as he testified, that he would be glad to talk to the Union.
about a bargaining conference if the Union cared to get in touch
with him again after his vacation trip. Adair testified that it was"
Crutchfield who agreed to make the next move, by setting a date
for a conference and notifying the Union.
The Trial Examiner did not resolve this conflict, for it was im-
material under his view of the case. However, as' we appraise the
circumstances leading up to the March 22 conversation, it was in-
cumbent upon the Union to clarify its position in order to cast on
the Company any peremptory duty to set a conference date. And,
as Ave cannot find on this inconclusive record that the Union did
clarify its position, or that the Company assumed the initiative by
promising to...get in touch. with the.Union,,. we• can scarcely find .that
the Company's inaction during the next 7 weeks (while the Union
also remained silent) constituted a refusal to bargain.
In its letter of May 13, 1950, answering the Union's letter of May
10, the Respondent did unequivocally refuse to bargain with the
Union unless and until the Union produced proof that it represented
a majority of the employees in the bargaining unit.28 This, how-
ever, was not a violation of the Act, for, as we have found, the action
by which the Respondent caused the Union' s loss of majority was not
an unfair labor practice'21 and the Union's certification of May 9,
1949, no longer barred an effective challenge of its status as the
statutory bargaining agent.80
For these reasons, we shall dismiss the Section 8 (a) (5) allega-
tions of the complaint.
5. The remedy
Having found that, the Respondent leas en gaged; in;the:;unfai,><;labor
practices set forth above, we shall order that it cease and desist there-
from and that it take certain affirmative action designed to effectuate
the policies of the Act.
21 Even when it later filed a new charge alleging that the Respondent had unlawfully
refused to bargain on or about March 6, the Union ' s theory still seemed to be that
Respondent 's failure to bargain in March 1950 was unlawful because, and only because,
the discharges of September 1949 were unlawful . At the reopened hearing in July 1950,
the General Counsel 's representative stated several times that this was his theory.
28 At the reopened hearing in July , the Union admitted that it had no members in the
bargaining unit as of March 1950, having- suspended the five or six members . who continued
in the Respondent ' s employ after the September discharges.
29 Except insofar as Flowers was mistakenly included in the list of dischargees.
30 Compare Arthur A. Borchert , d/b/a West Fork Cut Glass Company, 90 NLRB 944,
enfd. 188 F. 2d 474 (C. A. 4), and Jersey City Welding & Machine Works, Inc., 92 NLRB
510, exemplifying the well -established rule that a union's status as a statutory bargaining
representative is normally unassailable during the 1-year period following a Board
certification.
JEFFERSON STANDARD BROADCASTING COMPANY 1517
Respondent having discharged Leonard Flowers because of it mis-
taken belief that he engaged in concerted activity unprotected by
Section 7 of the Act, we shall order that the Respondent offer to him
immediate and full reinstatement to his former or a substantially
equivalent position," without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he may
have suffered by reason of the Respondent's discrimination against
him, by payment to him of a sum of money equal to that which he
normally would have earned. as wages from September 3, 1949, the
date of the discrimination against him, to the date of the offer of re-
instatement, less his net earnings during said period.32 Loss of pay
shall be determined by deducting from a sum equal to that which this
employee would normally have earned for each quarter or portion
thereof, his net earnings, if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter. The quarterly periods
described herein shall begin with the first day of January, April,
July, and October. We shall also order that Respondent make avail-
able to the Board upon request payroll and other records in order
to facilitate the checking of the amount of back pay due.33
The Respondent's "unsatisfactory" rating of Hicks in violation of
the Act having resulted in no calculable detriment to him at this
time in view of the Federal Communications Commission's renewal
of his license, we do not adopt the remedy recommended by the Trial
Examiner. Instead we shall order that the Respondent shall cease
and desist from rating its technicians for purposes of their Federal
Communications Commission license renewal with reference to their
union membership and activities.
CONCLUSIONS OF LAW
We adopt the Trial Examiner's conclusions of law numbers 1
through 4, rejecting the remainder. In addition, we reach the follow-
ing conclusions of law:
5. By giving Sterling L. Hicks an "unsatisfactory" rating on his
operating license from the Federal Communications Commission the
Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act, and has
engaged in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
11 The Chase National Bank of the City of New York, San Juan , Puerto Rico Branch,
65 NLRB 827.
32 Crossett Lumber Co ., 8 NLRB 440, 497-8; Republic Steel Corporation Y. N. L. it. B.,
311 U. S. 7.
11 F. W. Woolworth Company, 90 NLRB 289.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By discriminating in regard to the hire and tenure of employ-
ment of Leonard Flowers, thereby discouraging membership in Inter-
national Brotherhood of Electrical Workers, AFL, Local 1229, the
Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act, and has also, by
this same conduct, interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act,
thereby engaging in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. The Respondent has not engaged in unf air labor practices by :
(a) Discharging George B. Patterson, Jr., S. J. Sullivan, Walter
S. Hill, T. W. Perkins, Robert R. Hilker, A. O. Richardson, Allen W.
Hingle, E. L. Stroupe, and Sterling L. Hicks, for their part in pub-
lishing and distributing the "second class" . . . handbill; and
(b) Refusing to bargain with International Brotherhood of El.ec
trical Workers, AFL, Local 1229.
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 Jefferson Stand-
ard Broadcasting Company, Charlotte , North Carolina , its officers,
agents, successors , and assigns, shall :
1. Cease and desist from :
(a) Rating its transmitter technicians for purposes of their Fed-
eral Communications Commission license renewals with reference
to their membership in, or activities on behalf of , International Broth-
erhood of Electrical Workers, AFL , Local 1229, or any other labor
organization of its employees.
(b) Discouraging membership in Local 1229 , International Broth-
erhood of Electrical Workers, AFL , or any other labor organization
of its employees, by discriminating in regard to the hire and tenure
of their employment or any term or condition of employment.
(c) In any . other manner interfering with, restraining , or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations , to join or assist International Brotherhood
of Electrical Workers, AFL, Local 1229 , or any other labor organiza-
tion; to - bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the .purposes of col-
lective bargaining or other mutual aid or protection , or to refrain
from any and all such activities , except . to the extent that .such right
JEFFERSON STANDARD BROADCASTING COMPANY 1519
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Leonard Flowers immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole in
the manner set forth in the section entitled "The Remedy" for any loss
of pay he may have suffered by reason of the Respondent's discrimi-
nation against him.
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this Order.
(c) Post in conspicuous places at the Respondent's main control
room, 608 Wilder Building, Charlotte, North .Carolina, its main trans-
mitter, Nation's Ford Road, Charlotte, North Carolina, its FM trans-
mitter (RAMLO station), Gastonia, North Carolina, and its satellite
transmitter, Shelby, North Carolina, copies of the notice attached
hereto, marked "Appendix A." 34 Copies of said notice, to be fur-
nished by the Regional Director for the Thirty-fourth Region, shall,
after; being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and be main-
tained by it for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Thirty-fourth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHERED ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily discharged George B. Patterson, Jr.,
S. J. Sullivan, Walter S. Hill, T. W. Perkins, Robert R. Hilker, A. O.
Richardson, Allen W. Hingle, E. L. Stroupe, and Sterling L Hicks,
in violation of Section 8 (a) (3) and 8 (a) (1) of the Act, and insofar
as it alleges that the Respondent refused to bargain with International
Brotherhood of Electrical Workers, AFL, Local 1229, in violation of
Section 8 (a) (5) of the Act, be, and it hereby is, dismissed.
In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words : "A Decision and Order," the words : "A Decree
of the United States Court of Appeals Enforcing."
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER MURDOCic, dissenting in part:
I cannot agree with the conclusion of my colleagues of the majority
that the Respondent did not commit an unfair labor practice violative
of Section 8 (a) (1) and (3) of the Act when it discharged a group of
employees for publication and distribution of the "second-class city"
handbill; nor with their conclusion that the Respondent did not refuse
to bargain. with the Union in violation of Section 8 (5) of the Act.
I would adopt the Trial 'Examiner's conclusions on these violations.
Before discussing the issue in detail, I would note at the outset that
the holding of the majority that the distribution of the "second-class.
city" handbill is not concerted or union activity protected by the Act
is one of the most important decisions dealing with that subject which
the Board has ever issued. It should be recognized as a decision of
far-reaching significance. I find it a startling decision-startling be-
cause it necessarily sets aside principles which this Board with court
sanction has heretofore recognized as the proper test of protected con-
certed activity; startling because it has shriveled the previously recog-
nized area of statutory protection for concerted activities and left em-
ployers, employees, and the Board itself without any certain standards
to mark the remaining greatly circumscribed area.
First, what are the facts? What were the contents of the handbill,
the circulation of which my colleagues find was "hardly less 'inde-
fensible' than acts of physical sabotage"? It reads thus:
Is Charlotte a Second-Class City
You might think so from the kind of Television programs being
presented by the Jefferson Standard Broadcasting Co. over
WBTV. Have you seen one of their television programs lately?
Did you know that all the programs presented over WBTV are on
film and may be from one day to five years old. There are no
local programs -presented by ` WBTV.' You cannot "receive'the
local baseball games, football games or other local events because
WBTV does not have the proper equipment to make these pickups.
Cities like New York, Boston, Philadelphia, Washington receive
such programs nightly. Why doesn't the Jefferson Standard
Broadcasting Company purchase the needed equipment to bring
you the same type of programs enjoyed by other leading American
cities? Could it be that they consider Charlotte a second-class
community and only entitled to the pictures now being presented
to them?
WBT TECHNICIANS.
It is not denied by my majority colleagues that the facts recited in the
handbill with reference to the Respondent's TV programs were sub-
stantially accurate and that those who drafted and distributed it on
JEFFERSON STANDARD BROADCASTING COMPANY 1521
the picket line and elsewhere believed it to be true. It is not denied
that the handbill was in fact one more union weapon (specifically so
recognized by the Employer although not bearing the union name)
designed to exert additional pressure upon the Employer to accept the
Union's position in the pending labor dispute. This was a dispute
concerning a new contract which had deadlocked over the inclusion in
the contract of an arbitration provision in connection with discharges.
It is not denied that the handbill did not incite or seek any violation
of any law-it incited no more than a public demand for better tele-
vision programs.
Inescapably we are confronted in this case with concerted and union
activity for the mutual aid and protection of the technicians-activity
in aid of a collective bargaining dispute with Respondent. What is
the proper principle or test applicable to determine whether such pre-
sumptively protected activity nevertheless falls into one of the cate-
gories of exceptions which must be denied the protection of Section 7
of the Act. In the recent Hoover Company 35 case, the Board reviewed
the authorities and restated the applicable principles. After referring
to previously recognized exceptions, such as violent picketing, sitdown
strikes, strikes against Board certifications, etc., the Board said:
Nonetheless, it is clear that in engrafting these exceptions upon
the broad language of Section 7, the Board and the courts have
been particularly careful to limit such exceptions to those instances
in which the means employed involved violence or similar con-
duct, or where the objectives sought were inconsistent with the
terms or the clearly enunciated policy of this Act or.other Federal
statutes. As we have had occasion to observe in the past, in the
light of the history of judicial treatment of labor relations which
preceded the enactment of Section 7 "it seems most improbable
that Congress intended to vest this Board, or the courts in review-
ing our action, with any broad discretion to determine what we
or the courts might choose to consider the proper objectives of
concerted activity." We are free-indeed we are compelled-to
examine the objectives of concerted activity to determine whether
they are independently unlawful, or inconsistent with the basic
policy of this Act or of other pertinent Federal statutes. We are
not free, however, to measure concerted activity in terms of
whether the conduct is wise or fair, or satisfies standards which we
think desirable.
In the instant case the Respondent's argument rests wholly upon
the proposition that the conduct of a consumer boycott by employ-
ees while they continue to work and receive wages from the boy-
cotted employer is unjust and disloyal. This may well be true,
85 90 NLRB 1614.
953841-52-vol. 94-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as it is true, to be sure, in certain other individual instances where
employees strike, picket, or engage in other forms of concerted
activity. But absent any showing that the means employed were
other than peaceful or that the 'objectives sought were as have
been held for reasons of clear public policy to be improper, we find
no authority to regard the concerted activity involved herein as
unprotected. [Emphasis supplied.]
One of the main authorities relied upon by the Board in its statement
of principles in the Hoover case was the decision of the Second Circuit
Court of Appeals in the Peter Cailler Kohler 36 case. In an opinion by
Judge Learned Hand, now widely acclaimed on his impending retire-
ment as the foremost American jurist, that court in language pecul-
iarly appropriate to the facts in this case, stated the applicable rule
as follows :
We agree that the act does not excuse "concerted activities,"
themselves independently unlawful. N. L. R. B. v. Fansteel
Metallurgical Corp., 306 U. S. 240, 59 S. Ct. 490, 83 L. Ed. 627,
123 A. L. R. 599; N. L. R. B. v. Sands Manufacturing Co., 306
U. S. 332, 344, 59 S. Ct. 508, 83 L. Ed. 682; Southern Steamship
Company v. N. L. R. B., 316 U. S. 31, 62 S. Ct. 886, 86 L. Ed:
1246; Hazel-Atlas Glass Co. v. N. L. R. B., 4 Cir., 127 F. 2d 109,
118. But so long as the "activity" is not unlawful, we can see no
justification for making it the occasion for a discharge; a union
may subsidize propaganda, distribute broadsides, support politi-
cal movements, and in any other way further its cause or that of
others whom it wishes to win to its side. Such activities may be
highly prejudicial to its employer; his customers may refuse to
deal with him, he may incur the enmity of many in the community
whose disfavor will bear hard upon him ; but the statute forbids
him by a discharge to rid himself of those who lay such burdens
upon him. Congress has weighed the conflict of his interest with
theirs, and has pro tanto shorn him of his powers. . . . (Em-
phasis supplied).
It is thus clear from these decisions that concerted activity such as
is here involved loses its protection only if it is "unlawful." It may
be "unlawful" in the sense that the means used is independently un-
lawful. Examples of this are violence and sitdown strikes of the
character involved in the Fansteel case as well as that in the Southern
Steamship case, the latter involving a violation of the Federal Mutiny
Act. Even where the means is entirely peaceful and not independ-
ently unlawful, however, an unlawful objective will destroy the pro-
tection which would otherwise exist. The classic example of this
N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F . 2d 503.
JEFFERSON STANDARD BROADCASTING COMPANY 1523
second type of unlawfulness is the American News 37 case, involving
a strike to compel an employer to violate the Wage Stabilization Act.
Applying these established principles to the facts of this case it is
plain that none of the elements necessary to cause a loss of the pro=
tection accorded concerted activity is here present. There was noth=
ing unlawful about the means used-the distribution of handbills con-
taining substantially truthful statements-one of the most traditional
and peaceful forms of union activity in a labor dispute. There was
nothing unlawful about the objective of the handbills, either fronr-
the standpoint of the likely immediate consequences of the distribu-
tion or from the standpoint of the ultimate action sought to be obtained,"
thereby from the Employer. From the standpoint of ultimate ob-
jective, the handbill was an additional pressure technique to force
the Employer to agree to an arbitration clause in a contract-a pro-
vision which the Employer clearly might accept without violating
any law. The likely immediate consequences of the distribution inso-
far as the impact of the handbill on the public was concerned would
be the stimulation of a public demand for better TV programs-
Surely there is nothing unlawful or contrary to public policy in that
objective.
My colleagues of the majority have meticulously avoided any dis-
cussion of the tests for protected concerted activity which have been
laid down in the Board's Hoover case and the court's Peter Cailler
Kohler decision and the result of the application of such tests to the
facts of this case. In a footnote, after a passing tribute to the gen-
eral philosophy expounded by the court and to Judge Hand's "elo-
quent passage," the majority simply brushes off the carefully phrased
test laid down in the court's opinion, saying that it "does not call for
literal reading here." They fail to indicate how else it can be read,,
or how they would read it. At the same time they specifically disavow
any attempt to formulate a new standard by which to determine when
protection is lost and rest their decision simply on their conclusion:
that the employees here went "beyond the pale." In adopting such.
an approach, it seems to me they are flying in the face of the limita-
tion on our authority so recently acknowledged by the Board in the-
Hoover decision in which it said: "We are not free, however, to meas-
ure concerted activity in terms -of whether the conduct is wise or fair,
or satisfies -standards which we think desirable."
To the extent that it is possible to distill some limited test or stand-
ard for loss of protection from the majority decision it would appear
to stand at least for this proposition : Where concerted activity is
undertaken by employees "to alienate- their employer's customers by-
impugninb the technical quality of his product," it -is unprotected..
Yet in.a footnote which apparently has reference to -the previously
" 55 NLRB 1302.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recited facts that "the handbill did not bear the union's name," and its
text "made no reference to the labor dispute," the majority say that
they do not decide whether the disparagement of product here in-
volved would have justified a discharge if "it had been uttered in
the context of a conventional appeal for support of the union in the
labor dispute." Surely the protection accorded to concerted activity
by the statute cannot be made to depend upon such technicalities as .
the format of handbills-the presence or absence at the end of some
such magic phrase as "Support the XYZ union in its current labor
dispute with this employer!" Furthermore, I am unable to see how
the mere presence of a labor dispute and the failure of the, handbill
-to make any specific reference to it or to the union could operate to
make unlawful what I consider would be protected concerted activity
even if there were no union and no labor dispute in the picture. If
employees under the latter circumstance concertedly decided. to en-
lighten the public on such a matter, perhaps feeling that the public
would favorably remember them when they night need help in a
labor dispute with their employer, there being nothing unlawful about
such conduct, it would not lose its protection as concerted activity.
I am not aware that the Board has ever held that the area of protec-
tion accorded "concerted activity" of employees is any less than that
accorded union activity.
Even if the Board is to ignore the test of unlawfulness as the proper
basis for determining loss of protection, I find it an anomaly that
the majority could regard the kind of concerted activity here involved
as "beyond the. pale," while the kind of concerted activity involved in
the Hoover and Peter Cailler Kohler cases is deemed to be within the
pale and entitled to protection. In the Hoover case the Board held
in part that a union's consumer boycott conducted in conjunction with
a strike, the objective of which was to compel recognition, was a pro-
tected activity even though recognition might have resulted in a Mid-
West Piping violation of the Act by the employer: Beyond that the
Board held that employees were engaged in a concerted activity pro-
tected from discharge in carrying on a ,consumer boycott of the em-
ployer's products for a different objective after abandonment of the
strike and while continuing to work. Stated bluntly, the Hoover de-
cision means that this Board sees nothing "beyond the pale" in em-
ployees insisting on the right to be paid to make products which they
are simultaneously trying to make it impossible for their employer to
sell. Yet how relatively inconsequential was any actual damage to
the employer from the concerted activity involved in the instant case?
These employees did no more than to point out to the public what in
large measure it already knew-that the Employer's TV programs
consisted largely of canned film of varying degrees of antiquity with
JEFFERSON STANDARD BROADCASTING COMPANY 1525
no live local talent as in other cities; and to incite a, demand for better
programs and the equipment which would make them possible. Un-
like the activity held protected in the Hoover case, this handbill did
not and could not result in any present financial loss to the Respond-
ent.38 True, the handbill might be embarrassing to the Respondent
and might require it to explain its inability to present better programs
or even provoke a decision to purchase equipment to televise some live
local sporting events, etc. But is the right to engage in concerted
activities conferred by the statute to be made so ephemeral as to be
forfeited simply because the activities are embarrassing. to the
employer?
It should also be noted that the concerted activity held to be pro-
tected in the Peter Cailler Kohler case did not even occur in the course
of a labor dispute between the employer and his employees as did the
activity in the instant case. The employer there had acted contrary
to the interests of certain dairy farmer producers (not employees)
who were conducting a milk "strike," by purchasing and processing
milk not for its own manufacturing operations, but for delivery to the
'metropolitan market. The Kohler employees gratuitously injected
themselves into this picture in which their own interests were not af-
fected, by passing and publishing a union resolution which lambasted
their employer's actions. The resolution charged the employer with
having "aided and abetted" the forces who were using "every vile and
vicious means" to stop the dairy farmers in. the current milk "strike";
it protested the employer's action and expressed the union's support
of the dairy farmers. The court upheld the Board in finding such
concerted activity to be protected from discharge even though under-
taken in behalf of farmer producers and not for the immediate benefit
of the union members who passed the resolution. 39 If, as the Board
18 As the majority opinion indicates , the Respondent only "apprehended" the remote
contingency of an inability to increase its revenues by charging higher advertising rates in
the future based upon the presence of a larger number of TV sets in the area, if the
handbill should discourage people who did not then own TV sets from buying them.
I should make clear that in making this comparison with the Hoover case I do not
mean to suggest that I believe that the question of economic loss to the employer is
determinative of whether concerted activity is protected or unprotected . All strikes
and many forms of concerted activity necessarily result in financial loss to an employer.
Yet as Judge Hand states in the Peter Cailler Kohler decision, the fact that the activity
is "highly prejudicial" to the employer and causes him to "incur the enmity of many in
the community " and his customers "to refuse to deal with him," does not give the employer
the right to discharge those "who lay such burdens upon him." I am suggesting , however,
that if the Board approaches the issue of protection from the standpoint whether the
activity is to be deemed "beyond the pale," certainly the extent of the actual injury the
employer suffers is a factor to be considered in weighing his right to extinguish his
employees 's right to engage in concerted activity ; and the Board should not incongruously
hold peaceful concerted activity which results in no substantial damage to the employer
unprotected , as it is doing here, while holding seriously prejudicial activity of the type
involved in the Hoover case to be protected.
"The theory on this aspect of the case was that the Kohler Company employees could
give support to the farmers in the belief or hope that the farmers might reciprocate if at
sometime in the future a dispute arose between the Kohler Company and its employees.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and court held, employees who have no dispute with their own em-
ployer over wages, hours or working conditions, are entitled to be
protected from discharge in lambasting their employer in this fashion
in the context of the Kohler case, I can see no logical basis for con-
-cluding that the employees in the instant case are "beyond the pale"
by reason of the temperate and truthful criticism of their employer
made in a handbill in the course of a labor dispute in which they are
seeking a concession in the form of an arbitration clause in a con-
tract. To characterize this conduct as "hardly less `indefensible' than
acts of physical sabotage," as my majority colleagues do, is to draw a
patently farfetched and unwarranted analogy.
I am greatly disturbed by the impact this decision of the Board will
have in analogous situations. Suppose some employees in a defense
plant manufacturing war material, knowing some to be defective (as
has sometimes actually happened in the past) decide to write a letter
to the defense procurement agency involved or to a newspaper, point-
ing out the existence of the defects. The employer discharges them
for disparaging his product. Consistent with today's decision this
Board would have to find that the concerted activity was not protected'
because the employees impunged the technical quality of the employer's
product. A shrinking of the scope of the statutory protection afforded
,concerted activity to exclude the area excepted by today's decision-in
effect muzzling employees who would speak out on matters of general
public concern, whether they be the character of TV programs or de-
fective war materials-in my view is not consistent either with the
statute or with any salutary public policy.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist INTERNATIONAL BROTH-
ERHOOD OF ELECTRICAL WORKERS, AFL, LOCAL 1229 or any other
:labor organization, to bargain collectively through representatives
.,of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement requiring
membership in a.labor organization as a.condition of employment
as authorized in Section 8 (a)-, (3) of the Act..
JEFFERSON STANDARD BROADCASTING COMPANY 1527
WE WILL TOT discourage membership in INTERNATIONAL BROTH-
ERHOOD OF ELECTRICAL WoiRKERS,. AFL, LOCAL 1229, or any other
labor organization of our employees, by discriminating in any
manner with. regard to their hire and tenure of employment,.or
any term or condition of employment.
WE WILL NOT in the future rate our transmitter technicians for
purposes of their Federal Communications Commission license
renewals with reference to their membership in, or activities on
behalf of, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL, LOCAL 1229, or any other labor organization to which they
may belong or by whom they may be represented.
WE, WILL offer to Leonard Flowers immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges previ-
ously enjoyed.
WE WILL make whole Leonard Flowers for any loss of pay suf-
fered by him by reason of the discrimination practiced against
him.
All our employees are free to become or remain members of INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, LOCAL 1229,
or any other labor organization, or to refrain from so doing, except
to the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the amended Act. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
JEFFERSON STANDARD BROADCASTING
COMPANY,
Employer.
By --------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Messrs. Miles J. McCormick and John K. Pickens, for the General Counsel.
Messrs. Whiteford Blakeney and F. P. Miller, Jr., of Charlotte, N. C., for the
Respondent.
STATEMENT OF THE CASE
Upon a charge filed September 13, 1949, by International Brotherhood of
Electrical Workers, A. F. of L., Local 1229, herein called the Union, the General
Counsel of the National Labor Relations Board, called herein' respectively the
General Counsel and the Board, by the Regional Director of the Fifth Region
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Baltimore, Maryland), issued a complaint dated January 31, 1950, against
Jefferson Standard Broadcasting Company, herein called Respondent, alleging
that Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and ( a) (3) and
Section 2 ( 6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Copies of the charge and the complaint, together with notice
of hearing, were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent violated Section 8 (a) (1) on and after July 20, 1949, by
urging, persuading, and warning its employees by threats of reprisal or force
or promise of benefit to refrain from assisting, becoming, or remaining mem-
bers of the Union; and violated Section 8 (a) (1) and (3) by discharging 10
named individuals on or about September 3, 1949, and thereafter refusing to
reinstate them.
Respondent's answer admitted certain and denied certain jurisdictional facts
alleged in the complaint, admitted that the Union is a labor organization, and
denied the alleged unfair labor practices.
Prior to the hearing Respondent filed a motion for bill of particulars which
was granted in part and denied in part by Trial Examiner Stephen S. Bean who
was designated to act thereon, and the particulars were furnished by the
General Counsel as ordered.
The hearing, originally set for February 14, 1950, was postponed at the re-
quest of counsel for Respondent until March 13, 1950. Pursuant to notice a
hearing was held from March 13 to 17 at Charlotte, North Carolina, before
Alba B. Martin, the undersigned Trial Examiner duly designated by the Chief
Trial Examiner. The General Counsel and Respondent were represented by
counsel and participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to inrtoduce evidence bearing on the
issues was afforded all parties.
At the opening of the hearing Respondent made several motions : To dismiss
the complaint as vague and general; to dismiss two certain paragraphs of the
complaint as unsupported by a charge; for a ruling that the record in this case
might be reopened after the conclusion of the hearing to receive evidence which
might be developed in a specified criminal trial involving one of the discharged
persons, which trial had not yet been definitely set for hearing. All of the mo-
tions were denied. The General Counsel then moved for a ruling that if he should
call as a witness the individual named in the criminal indictment, Respondent
would not be permitted on cross-examination to question him concerning the
indictment. This motion was denied.
At the conclusion of the General Counsel's case-in-chief, he moved to amend
the complaint to add allegation of violation of Section 8 (a) (5) of the Act
based upon an amended charge he thereupon served upon Respondent. The
General Counsel stated his theory of the 8 (a) (5) allegation which indicated
that his proof was already largely in the record. The motion was granted
only to the extent of the theory stated and Respondent was advised that it could
recall any of the General Counsel's witnesses for cross-examination concerning
the new allegation and that if, at the conclusion of its case, it wished additional
time to prepare its defense to the new allegation, at least 10 days would be
granted. At the conclusion of its case Respondent amended its answer to deny
the new allegation and waived any further hearing. The General Counsel's
motion to conform the pleadings to the proof was granted . A brief was re-
ceived from the General Counsel.
JEFFERSON STANDARD BROADCASTING COMPANY 1529
After the close of the hearing the General Counsel moved to reopen the record
for the purpose of adducing further evidence concerning Respondent's alleged
refusal to bargain since the hearing, which motion was granted over Re-
spondent's objection. The reopened hearing was held in Charlotte, North
Carolina, on July 10, 1950. The General Counsel and Respondent were repre-
sented by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Jefferson Standard Broadcasting Company is a North Carolina coporation,
having its principal office and place of business in Charlotte, North Carolina,
where it operates a 50,000-watt radio station with the call letters WBT under
license from the Federal Communications Commission. Respondent broadcasts
programs for approximately 10 to 12 hours daily over AM and FM and tele-
vision. Less than 50 percent of its programs originate in Charlotte. The
network programs, piped in over a leased wire, generally originate in New York,
California, or Illinois, and are generally sponsored by products sold Nation-
wide., The local programs include recorded commercials sent to Respondent
from points outside the State of North Carolina, which commercials consume
approximately 5 to 6 percent of Respondent's daily broadcast time. Respond-
ent's annual gross revenue is in excess of $100,000, of which less than 20 per-
cent is derived from network broadcasts. Respondent receives and broadcasts
news items from the Associated Press and the United Press.
Respondent conceded that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, A. F. of L., Local 1229, is a
labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharges
1. Background
From 1945 when Respondent acquired Radio Station WBT from the Columbia
Broadcasting System, until the last contract expired January 31, 1949, Respond-
ent had contractual relations with the Union for its radio technicians. Nego-
tiations towards another contract began in late December 1948 and consumed
about 2 weeks of bargaining time during January 1949 and a few more days
just before July 8, 1949. Meantime on a petition for certification filed in Octo-
ber 1948 the Board on April 8, 1949, directed an election which was conducted
May 2, 1949. The Union won 12 votes out of 14 voting' and on May 9, 1949,
the Regional Director issued his certification on behalf of the Board.
Shortly before the Union received 12 votes in the election the Respondent ad-
vertised for 12 radio technicians. Several times during the months of November
134-RC-106.
1 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and December 1948 and February 1949 Respondent placed an ad in Radio Broad-
cast Magazine for 12 radio broadcast technicians . This advertisement read as
follows :
Wanted-12 radio broadcast technicians with radio telephone first class
licenses , to begin work within next 90 days. Pay better than average.
Location southeast . Give references , whether presently employed , also last
employer . Box 329; BROADCASTING
In January 1949, while waiting for the beginning of a bargaining session, 2 mem-
bers of the Union's bargaining committee , one an employee , asked Respondent's,
vice president and general manager, Mr . Crutchfield , if this advertisement had
been placed by WBT. Crutchfield replied that it had, and that they "would be
surprised at the amount of responses that" Respondent "was able to get from
that ad."
Crutchfield testified that a number of the clauses in the contract when WBT
was owned by CBS were not suitable for the operations of Respondent, an in=
dependent ; that while bargaining during the first few years after 1945 it at-
tempted against resistance but with some success to get the clauses altered ; that
of particular concern it had inherited high engineering salaries , disproportionate
to comparable functions throughout the entire South; and that each year during
the negotiations for a new contract the Union had threatened to strike if its
demands were not met. So as negotiations were about to begin for another
contract in late 1948 Crutchfield authorized the placing of the ad so that "if the
boys struck this time , we could not and we would not allow such a strike to shut
down our business . So we were determined to have personnel available if and
when the long threatened strike came about." For the purpose of keeping in
touch with any applicants Respondent prepared and used form letters which
pointed out , among other things, that its wage scale increased up to a maximum
of $115 per week-the high rate which was giving it concern.
Having thus fortified itself Respondent took a strong initiative in the bar-
gaining, demanded that the discharge clause in the next contract must be different
from the one that had been in all the previous contracts between the Union and
Respondent . The existing clause, which the Union sought to retain, provided
that the Company should have the right to discharge a technician for just cause
and that if the Union believed a discharge to be unjust it could take the issue to
arbitration and the arbitration board had authority to "make an appropriate
award to such technician for all time lost." The Respondent 's suggested change
was that it have the right to discharge a technician for any cause whatsoever, just
or unjust , and that the arbitration board's authority to order reinstatement and
back pay be limited to cases where the arbitration board finds that the acts or
omissions assigned by the company for the discharge did in fact occur ; if it
finds the acts or omissions did not occur it will have no authority to order
reinstatement and back pay . During the negotiations Crutchfield admitted that,
the Company 's proposed clause could be interpreted to give the Company au -
thority to "fire a man for parting his hair on the wrong side" or "for wearing a.
red necktie rather than a blue necktie," but stated that it was absurd to think
he would discharge employees for any such reasons because he was responsible
for his actions to a reputable group of stockholders and directors . It is clear
that Respondent sought power to discharge that was absolute , and that the ar-
bitration it offered in discharge cases was arbitration in name only but not
in fact.
Regardless of whether Respondent intended to use arbitrarily the -absolute
power to discharge which it sought, it never receded from this demand. Other
JEFFERSON STANDARD BROADCASTING COMPANY 1531
issues were discussed, some were resolved, and all but the discharge clause were
resolvable.' The negotiations reached an impasse on July 8, 1949, as a result of
the, parties' inability to reach agreement on the discharge clause.
Beginning July 9, 1949, based upon a decision made by majority vote at a
special meeting of the local the previous evening, the Union began picketing
Respondent's business during working hours. From then until at least the.
original bearing two technicians at a time picketed in front of the building
housing Respondent's offices and studios. The employees did not strike. They
worked their regular shift for Respondent and picketed during off hours ac-
cording to a schedule arranged among themselves. No company working time
was lost as a result of the picketing. During the entire 12 months of picketing
between the establishment of the picket line and the original hearing, both be-
fore the men were discharged September 3, 1949, and after, there was no vio-
lence on the picket line, no blocking of pedestrians on the sidewalk, and no
loud, boisterous talking. No evidence on this subject was proffered at the
reopened hearing.
During the weeks prior to their discharge the pickets carried placards and.
distributed handbills giving the Union's version of its dispute with management..
The leaflets were distributed by members of other organizations also. All of
these placards and handbills identified the Union as the party to the dispute, and
some of them in addition used the words in large type, "Radio Broadcast Tech-
nicians" or "Radio Technicians." The placards referred to Respondent as "un-
fair"; stated "We are not on strike" ; "WBT desires to discharge us for any
reason they see fit. Further, they refuse to arbitrate unfairness of such action..
Do you consider this fair? We don't either" ; " . . . We do not desire to inter-
rupt your favorite radio program or delay television in Charlotte due to our dis-
pute with the management of Radio Station WBT" ; "We are not on strike. We
have offered to accept the same agreement as we had last year. WBT has
refused this offer and will not arbitrate the question. We welcome your sup-
port in our fight for fairness at WBT." The handbills stated the technicians,
were "peacefully picketing the station in an effort to acquaint the public with
our dispute . . . the Company insisted that we insert a clause regarding dis-
charges, `in that they would have the right to discharge any technician, whether
JUST or UNJUST, and we would be forced to accept their decision without
recourse.' "
8 This conclusion is based upon a preponderance of the substantial evidence. Of interest
in this connection is "a copy of a statement which briefly sets forth our position at the
time the negotiations . . . were suspended," which Respondent sent to its employees on
September 3, 1949. The statement read as follows :
Commencing about the first of the year, we have had numerous lengthy conferences.
with the representatives of this union in an effort to arrive at contract terms which,
would be acceptable to them and us. In these negotiations we have agreed to many
far-reaching demands on their part and are now offering them a contract containing:
most of the provisions which they have requested.
But the union is also insisting upon our agreeing that an outside arbitrator shall:
have the power to determine whether we can or cannot discharge an employee even:
though we might find him incompetent or unsatisfactory to us. If we are going to^
be able to run our business, we certainly think that we should have the right to decide-
who shall be our employees and whether we shall keep a person in our employment
or not.
There is no dispute about wages, hours, and wages, hours, (sic) and working
conditions at WBT. These men start working for us at $70.50 per week and make
up to $115.50 per week for a five-day week (eight hours a day) straight time, to say
nothing of overtime pay and various other benefits which are available to them;.
(Emphasis added.)' '
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'The pickets' activities thus-far were deemed by Respondent's general manager
to be protected ; he so stated at the hearing ; and I so find. There was no claim
to the contrary. They would have been protected had the employees been on
strike; they were no less protected because while picketing the employees also
did their work. In any case by taking no action concerning the picketing and
handbilling thus far, Respondent condoned and waived any picket line activities.'
Respondent made no retaliatory move and neither party took steps to renew
the bargaining.
2. The discharges
On July 14, 1949, Respondent made its first broadcast in the television medium,
thereby inaugurating a new operation. To do so had cost Respondent about
one-half million dollars. It was Charlotte's only television station. A few
weeks later appeared a handbill casting reflection upon the television operation,
to which Respondent took great exception and which led directly to the dis-
charge on September 3, 1949, of the 10 pickets Respondent held responsible`
for distributing it. This handbill, hereafter referred to as the second-class city
handbill, read as follows :
Is Charlotte a Second-Class City?
You might think so from the kind of Television programs being presented
by the Jefferson Standard Broadcasting Co. over WBTV. Have you seen
one of their television programs lately? Did you know that all the pro-
grams presented over WBTV are on film and may be from one day to five
years old. There are no local programs presented by WBTV. You cannot
receive the local baseball games, football games or other local events be-
cause WBTV does not have the proper equipment to make these pickups.
Cities like New York, Boston, Philadelphia, Washington receive such pro-
grams nightly. Why doesn't the Jefferson Standard Broadcasting Com-
pany purchase the needed equipment to bring you the same type of programs
enjoyed by other leading American cities? Could it be that they consider
Charlotte a second-class community and only entitled to the pictures now
being presented to them?
WBT TEOHNICIANS.
This handbill, as all the previous handbills, was written by the business man-
ager of Local 1229 representing the local, and an international- representative
representing the international union. After it was printed but before it was
distributed, it, as all the previous handbills, was approved for distribution by
the executive committee of the local. One member of the executive committee,
Hingle, "didn't approve of that type handbill" but he helped distribute it. The
thoughts of the other six members of the seven-man executive committee do
not appear in the record; Stroupe, a member, first saw it after it had already
been distributed. There is no evidence whatsoever that the decision to dis-
tribute the handbill did not represent the genuine expression of the executive
committee.
During the last 7 working days in August and the first 2 working days in
See The Hoover Company, 90 NLRB 1614.
The General Counsel claimed and Respondent disputed that 3 of the 10 pickets did
not in fact distribute this handblll . -. In`view of the conclusions and recommendations
reached herein , it will be assumed that they as well as the others participated in the
distribution.
JEFFERSON STANDARD BROADCASTING COMPANY 1533
September 1949," 5,000 copies of the handbill were distributed. Seven of those
then picketing comprised the executive committee. The handbills were dis-
tributed by pickets 6 on the picket line at the main square in Charlotte, a few
blocks away, and some were placed on busses which stopped near the picket
line. Some were distributed at other places in the downtown area of Charlotte ;
in a restaurant, and on the street between the picket line and the square by
persons, not necessarily pickets, having a batch of them in their hands. Per-
kins, a member of the executive committee, while handing a copy to Respondent's
promotion manager said, "Here, show this to `Crutch' and. tell him that there are
four or five more coming stronger than- this" ; and while handing a copy to the
promotion manager of Respondent's AM operation Perkins said in substance :
. if you think- this is tough, wait until you see what we have corning up."
Counsel stipulated that those discharged had agreed among themselves and
planned at about the time the second-class city handbill was distributed to
exert more pressure upon Respondent at the "same type and sort" as that hand-
bill, and "substantially in the same manner." There was considerable discus-
sion of the handbill among business men and some alarm among Respondent's
management and television equipment distributors and dealers as to its possible
economic effects upon their business. There was no evidence that any dis-
tributor or dealer communicated his concern to Respondent prior to the dis-
charge of the employees, although several of them did afterwards. Since the
price Respondent charged for television time depended upon the number of
television receiving sets in the area, a drop in sales of receiving sets would be
detrimental to the development of Respondent's new television operation. As
it was Respondent's over-all operation, AM, FM, and television was losing money
at the time the handbill appeared and it continued to operate in the red during
the first 4 months of television operation.
September 3, 1949, Respondent sent a 2-page discharge letter to each of the
10 men named in the complaint. Insofar as they state the cause for discharge
the letters are identical. After stating that despite the placards and "litera-
ture" prior to the second-class city handbill, "we still continued to treat you
exactly as before," the letter stated,
Now, however, you have turned from trying to persuade the public that
we are unfair to you and' are trying to persuade the public that
we give inferior service to them. While we are struggling to expand into
and develop a new field, and incidentally losing large sums of money in
the process, you are busy trying to turn customers and the public against
usr..in every possible way, even handing out leaflets on the public streets
advertising }that our operations are "second-class", and endeavoring in vari-
ous ways to hamper and totally destroy our business. Certainly we are not
required by law or common sense to keep you in our employment and pay
you a substantial salary while you thus do your best to tear down and
bankrupt our business. -
You are hereby discharged from our employment
While indulging in the harsh reprisal of discharge, Respondent utilized none
of the media open to it to counteract the Union's propaganda with propaganda
of its own. Although legally it could have, it did not prior to discharge place
e A stipulation of counsel as to tile, distribution dates is credited although somewhat at
variance with the testimony of some witnesses. Counsel for Respondent and the-General
Counsel waived any right to attack the credibility of any witness because of his testimony
contrary to the stipulated facts.
e Several of whom worked in Respondent's television operation.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any advertisement in newspapers stating its contentions as to whether its tele-
vision broadcasts were second-class. It got out no handbills on the subject.
It made no statements over the air, although it was in the broadcasting busi-
ness. Further, Respondent did not ask the Union or any of its officers or members
to neutralize the effects of the handbill by additional propaganda or otherwise.
As to the cause for the discharge of the 10 men Crutchfield testified in replying
to a question by the Trial Examiner that ". . . their discharge . . . was based
solely on the second-rate city handbill 'and its effect on us and our clients and
non-clients who were in the television business." Prior to that, on redirect
examination, he testified in answer to a question as to when he first learned
about a letter to the Federal Communications Commission, "Well, that was after
I had made the decision that we must discharge these men. The letter came
to my attention and it certainly bore out my previous decision to discharge them.
The handbills and the surrounding circumstances, its ramifications . . . were
the cause to discharge. 'The letter to the Commission was just a little more
proof that I was right in my decision."
The letter to the Federal Communications Commission was written by Sterling
L. Hicks, business manager of Local 1229. Under Hicks' signature appeared
the following : "S. L. Hicks, Business Manager Local Union No. 1229, International
Brotherhood of Electrical Workers." This letter, dated August 6, 1949, read as
follows :
The Citizens of Charlotte have been looking with anticipation for several
months to the coming of Television in this area, however, it is here, But
in Name Only.
In talking to various dealers of Television Receivers, we find that they
as well as the general public are very much disappointed in the type and
quality of programs being broadcast by the local Television outlet, too, the
dealers have stocked their showrooms with television receivers, but.-are
unable to move them due to the fact that.the general public is complaining
about the program material now being presented.
We feel that the local outlet is not utilizing the full facilities as, granted
in the license, we therefore respectfully request, unless they take advantage
of the situation, that the television channel be granted to someone who will.
On cross-examination, Crutchfield, in testimony he later contradicted, said
that he discharged the men "because they, while in our employment, -did some-
thing in distributing that second rate handbill and writing to the Commission
asking them to revoke our license, that made us feel not only justified in firing
them, but compelled. to fire them, as any other company would do."...To the
'Trial Examiner's questions, "Do I understand your testimony to be that you
discharged these men solely because they distributed" the second-class city hand-
bill? Crutchfield's.reply was,. "That.plus the hair that broke the camel's back.
Well, that was the main factor and then when the Commission letter showed up,
why that just was more than we could take."
In view of the contradiction in Crutchfield's testimony it becomes necessary
to resolve the question as to exactly why the men were discharged. It is found
-that they were discharged solely for distributing the second-class city handbill.
'This resolution is compelled by the following considerations in addition to
•Crutchfield's testimony : (a) The discharge letter refers only to the handbill
and in no way refers to the letter to FCC ; (b) although Crutchfield considered
the, executive, committee of the local responsible for the letter to FCC he dis-
,charged not only the seven members of the executive committee but also three
more and in the discharge letters gave the same reasons for the discharge of
the three as for the seven; (c) all members of the local were not discharged but
JEFFERSON STANDARD BROADCASTING COMPANY 1535
only some of them, even though the letter to FCC had been signed by the busi-
ness manager of the local who was not a member of the local's executive com-
mittee-which Crutchfield would have known had he known the composition of
the executive committee ; (d) the discharge letter to Hicks made no mention
of the letter to FCC even though Respondent knew Hicks signed it.
Although the second-class city handbill did not mention the Union and did
not mention the existence of a labor dispute, it is clear that it grew out of the
same labor dispute between Respondent and the Union as gave rise to the
earlier placards and flyers which did mention the Union, the dispute over the
discharge clause in the contract. On August 22, 1949, on the letterhead of the
local written by Thompson, an international representative, and signed by
Stroupe, president of the local, a letter was sent to Respondent's employees
saying,
. . . the organization has plans to apply more pressure than has been used
to date. We are forced to use stronger means due to the underhand methods
the company is now employing.
The following day the Union picked up from the printer the first batch of the
second-class city handbill. All of the handbills were written by Hicks and
Thompson, printed by the Union, approved for distribution by the executive
committee' of the local, and distributed by union pickets. All of the handbills
including the one in question, were an integral part of the Union's efforts,
including the picketing, to prevail upon Respondent to agree upon a discharge
clause satisfactory to the Union, and thereby to achieve a contract. It is
clear also from the testimony of Crutchfield and two other members of manage-
ment that they understood this. The discharge letter assumed it was the
same controversy. Indeed the "WBT Technicians", were engaged in no contro-
versy with management at the time of the offensive handbill other than the con-
troversy over the discharge clause in the contract. It is concluded, therefore,
that the discharges for distributing the second-class city handbill were discharges
of, union men for assisting the Union to win its dispute with Despondent.
Whether or not the discharges were connected with the dispute over the
contract it is concluded that they were in retaliation for the concerted activities
being engaged in by the men passing out the second-class city handbill while
picketing for the purposes of collective bargaining and other mutual aid, and
protection.
3. Inaccuracies in the handbill
This handbill contained several partially or wholly inaccurate statements
and inferences,' but there was no evidence that the Union in writing it and
'r The handbill inferred that if Respondent purchased the appropriate equipment
Respondent could telecast "the same type of programs enjoyed by other leading American
cities." ron 'what coauthor Thompson based his information does not appear in the
record, but coauthor Hicks knew the cable had been in the ground for some time; he
didn't know whether programs were then available to Respondent and did not know
what television equipment was necessary to take programs off the coaxial cable. Stroupe,
who was on the picket line the last 4 days the handbill was distributed, and whose
information' came from an employee of the telephone company, testified that the telephone
company did not transmit television programs south of Richmond, Virginia, because it had
no contracts for service south of Richmond, that in the absence of any applications for
television service, the telephone company was using the cable for telephone circuits, that
television service could have been available on application approximately 60 days after
the cable was installed. The facts were, as credibly testified by Crutchfield and the
district manager of the Southern Bell Telephone Company, that even if Respondent had
purchased the appropriate equipment it could not have procured programs from the
telephone company because the telephone company's terminal and booster equipment was
not adequate for television transmission, that Respondent had tried to obtain television
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributing it had any. intent to falsify or maliciously to injure Respondent.'
The evidence indicates, rather, that those who testified concerning the truth
of its statements and inferences believed them to be true at the time they were
testifying and at all times before. Stroupe, president of the local, and Hicks,
its business manager, appeared to me to be honest witnesses, and as they
answered questions concerning the substance of the handbill they appeared
to me to be stating what they honestly believed to be the facts. There was
a complete absence of any evidence that Hicks and Thompson, who wrote it, or
any members of the executive committee who authorized its distribution, or
any one who distributed it, did not believe it to be completely truthful.
4. Concluding findings
The right of working men to engage in concerted activities by picketing has
long been recognized. This right is not diminished by the mere fact that they
continue to perform their work during hours they do not picket .9
The right of employees to issue propaganda is likewise beyond question. The
Second Court of Appeals, by Judge Learned Hand, has held :
. .. so long as the "activity is not unlawful, we can see no justification for
making it the occasion for a discharge ; a union may subsidize propaganda,
distribute broadsides, '. . . and any other way further its cause. . .. Such
activities may be highly prejudicial to its employer ; 10 . . . but the statute
forbids him by a discharge to rid himself. of those who lay such burdens
upon him. Congress has weighed the conflict of his interest with theirs,
and has pro tanto shorn him of his powers. (Emphasis supplied.) 11
The Board has held that :
. . . truth is not always apparent, and men are influenced in their con-
duct by rumors,, by inferences from known facts, and even by mere sus-
programs from the telephone company and had failed because the equipment required
would not be allocated by the telephone company for the link south of Richmond, Virginia,
until 1950 . There was no evidence however that any of these correct facts were ever
communicated to Hicks, Thompson , the executive committee of the local , or any member
of'the local.' `
iiThe Handbill read , "Did you know that all the programs presented over WBTV are on
film;and:may be from one day to five years old?" This information was almost , but not;
quite correct . The facts were that daily multiscope news programs consuming approxi-
mately 2 to 21/•2 hours, and a cartoon program , used no film. Some of the film used
was less than a day old, its age being a matter of hours, possibly minutes. Very often
the films were over a day old.
The"h`an`dbill read^ "There are no local programs presented by `WBTV.' The facts
were that the station was on the air approximately 91/2 hours per day , that the multiscope
news programs consuming approximately 2 to 21/2 of these hours was locally produced,
that 31/ hours were devoted to filmed programs , and that the rest . of the time was used
for `test pattern.'
8 Cf. Atlantic Towing Company , 75 NLRB 1169 ; Eastman Cotton Mills, 90 NLRB 31.
During the period the leaflet was being distributed Hicks told his barber that "before
we are through , we will break WBT." This does not indicate malice in the legal sense.
"In a legal sense malice is never understood to denote general malevolence or unkindness
of heart. or enmity towards a particular individual , but it signifies rather the intent
from which flows any unlawful and injurious act committed without legal justification"
Bouvier ' s Law Dictionary, Rawle's Third Edition , p. 2067 . In any case there was no
showing of ill-feeling against the Respondent on the part of any other employee at th 8-
time. and no showing of any such animus in Hicks at this time before his discharge
as may have motivated an offense in January , 1950 , for which he was later convicted.
See V. "The remedy," infra.
n gee Intermediate Report, The Hoover Company, 90 NLRB 1614. .
10 Respondent proved there was an unexpected drop in sales of television receiving
equipment during the month following distribution of the second -class city handbill.
11 N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (C. A. 2).
JEFFERSON STANDARD BROADCASTING COMPANY 1537
picions which may ultimately prove to be unfounded but which the
:exigencies of the situation do not permit of verification ; it would, therefore,
be decidedly unrealistic to hold that the organizational and concerted ac-
tivities envisaged by the Act exclude the utterance by employees of honestly
believed statements of fact or opinion, which, in some cases, may actually
be unfounded in fact. . . .12
In considering objections to elections where unions have issued allegedly
false and misleading accusations against employers, the Board customarily
refuses to censor such propaganda and refers to the opposing parties the duty
of correcting inaccurate or untruthful statements by any of them 13 Here, it
should be. noted, Respondent had ample opportunity to counteract any allegedly
derogatory or false statements contained in the second-class city handbill, of
which it did not avail itself during the week it was preparing for the discharge
of the 10 employees and for some time thereafter.
Respondent was not bound to remain mute in the face of inaccuracies or
misstatements. He could have, within limits fixed by the Act, openly criticized
the second-class city handbill in an effort to counteract its statements and
effect." Respondent could have, under section 8 (c) of the Act, expressed or
disseminated any views, argument, or opinion, so long as it uttered no threat;
of reprisal or force or promise of benefit.
By the same token the Union and the employees in the offensive handbill
uttered no threat of reprisal or force or promise of benefit, and their conduct
was. therefore well within the ambit of statutory protection.
In a case-involving the layoff of an employee for good faith, inaccuracies
concerning the coihpany's wage rates and his failure to keep his promise to
correct them, the Seventh Circuit Court of Appeals said, in holding the em-
ployee's activity protected by the Act:
... Courts have recognized that a distinction is to be drawn between
cases where employees engaged in concerted activities exceed the bounds
of lawful conduct in "a moment of animal exuberance" . . or in a
manner not activiated by improper motives, and those flagrant cases in
which the misconduct is so violent or of such serious character as to render
the employee unit for further service . , and that it is only in the
latter type.of cases that the courts find that the protection of the right of
employees to full freedom in self-organizational activities-should be subordi-
nated to the vindication of the interests of society as a whole's
Here it is found that the Union's conduct in distributing the second-class
city handbill falls into the former rather than the latter category, and that it
was not so extreme as to furnish justification for the discharge of the men.
Involved here is the weighing of the conflicts between Respondent's interest
in 'a truthful representation of facts" and the employees' interest in publica-
tion of union literature free from employer interference, both interests being
essential elements in a, balanced society. Under all the circumstances in the
case I 'find that the employees' interest must prevail. Respondent's resentment
against the employees for distributing the objectionable handbill may not super-
sede the Congressionally declared public interest in preserving to employees
full freedom of speech on organizational matters, unfettered by fear of em-
ployer reprisal.
12 Atlantic Towing Company, 75 NLRB 1169 , 1172.
11 Carrollton Furniture Manufacturing Company, 75 NLRB 710; N. P. Nelson Iron Works,
Inc., 78 NLRB 1270.
14 Agar Packing &t Provision corporation , 58 NLRB 738, 745.
15 N. L . R. B. v. Illinois Tool Works , 153 F. 2d 811 , enforcing 61 NLRB 1129.
953841-52-vol. 94-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent , by discharging the 10 employees , unlawfully coerced
and restrained its employees in the exercise of the right of self -organization and
to engage in other concerted activity for purposes of collective bargaining and
other mutual aid or protection , in violation of Section 8 (a) (1) of the Act,
and also discriminated against them in regard to their hire and tenure of em-
ployment , thereby discouraging membership in the Union , in violation of Section
8 (a) (3).
B. Interference, restraint, and coercion
In August 1949 Respondent endorsed "unsatisfactory" on Hicks' license from
the Federal Communications Commission, covering the period of his service
from September 1944 until August 20, 1949. The enormity of this act from
Hicks' point of view is indicated by the fact that had the FCC on the basis of
this endorsement refused to renew Hicks' license, he could no longer serve as
a transmitter technician which had been his assignment during most of his
tenure with Respondent.16 The General Counsel contends that by this act
Respondent interfered with, restrained, and coerced Hicks in the exercise of the
rights guaranteed in Section 7 of the Act. Two other possible explanations
are offered by the record: Deficiencies in the performance of his technical duties;
the relationship between Hicks and his immediate supervisor, Carey.
This "unsatisfactory" endorsement was made by Minor, who had been chief
electrician at WBT for at least 10 years and connected with it for 18. During
this period of time he had undoubtedly had occasion to make and see many
endorsements upon licenses. He testified that this one was "the only unsatis-
factory signature I have ever seen on a license."
1. Deficiencies in Hicks' performance of his technical duties
In the performance of his technical duties during the 2-year period just prior
to the expiration of his 5-year license, Hicks committed certain errors in action
and in judgment which were spread upon the record in considerable detail. For
some of these he was cautioned, for some corrected, but it does not appear that
for any of these he was warned. Other technicians, also, committed errors-
which were adverted to in the record though not developed. According to
Minor's "observation and search through the station records, the violations
-were much more numerous, as recorded by Mr. Hicks . . . in his log
.. .. That's all I have to go by, is his statement, and of course, the
-others keep a record also." It thus appears that although Minor, according
to his testimony, kept a running account in his head of how each technician
was working, lie was not aware that Hicks committed more violations than
the others until he consulted the log. The only error shown to have been com-
mitted with any frequency by Hicks was committed with equal frequency by
the other technicians ; it is treated in footnote 17, below.
Shortly after August 11, 1949, Respondent wrote the Federal Communica-
tions Commission, pursuant to its request, in explanation of why it was en-
dorsing Hicks' performance "unsatisfactory." This letter read as follows,:
We regret that Mr. Hicks' performance of his technical duties has been
such that we cannot place a "satisfactory" endorsement upon his license.
Such is nevertheless clearly the situation. 'Negligence and incompetence
on his part has jeopardized our property and the efficiency of our station:
The circumstances have frequently been such as to constitute violation on
Mr. Hicks' part of the rules and regulations of your Commission.
10 Shortly before his discharge he was assigned to work in the cQntrol room.
JEFFERSON STANDARD BROADCASTING COMPANY 1539
For example :
On Wednesday, April 13th, 1949, Mr. Hicks, while the only technician
on duty at our FM transmitter and while in charge there, failed to take
steps to repair or to have repaired a tower light which was not burning
and failed to report to the Company that such light was not burning so as
to enable the Company to repair the same. This situation continued until
Friday, April 15th, 1949, Mr. IIicits being meantime the only person in a
position to know of the light's being out. On April 15th for the first time,
the Company otherwise discovered that the light was out and effected re-
pair of the same.
On the night of May 25th, 1949, Mr. Hicks, while again the only technician
on duty at the FM transmitter and in charge thereof, failed to report in
proper time to the CAA that a tower light was not burning.
On November 4th, 1998, while the only technician on duty at our AM
transmitter and in charge there, Mr. Hicks failed to observe until he was
notified over a telephone by an outside radio listener that emissions were
being radiated outside the station's authorized band, which emissions would
cause interference to the communications of other stations.
On August 11th, 1947, while Mr. Hicks was the only technician on duty
at our WBT-AM transmitter and was in charge there, he operated the
transmitter at no more than 60 percent modulation whereas at least 85 per-
cent modulation should have been maintained.
Throughout the period of the license in question and while Mr. Hicks was
working at our AM transmitter, he, on 31 separate occasions, the dates of
which we will be glad to furnish if you desire them, failed to turn on the
tower lights on or before the times required by the rules and regulations of
your Commission and the CAA"
Some of the rules and regulations of your Commission violated by Mr.
Hicks during the period of the license in question are as follows : ( listing
eleven sections ) [Emphasis added.]
Notwithstanding the Respondent's letter,' the FCC issued a new license to
Hicks. In February 1950 , pursuant to Hicks' request, the FCC's secretary
17 The rules and regulations of the Federal Communications Commission provided that
tower lights should be turned on 1 hour before sunset, a provision honored by its breach
at WBT. The undenied testimony of Hicks and Hingle, both credible witnesses, and
both transmitter technicians at the AM station for about 10 years, was that they and
the other technicians customarily turned on the tower lights according to the amount
of outside light there was, turning them on earlier on dark days and later on bright days.
They did not in practice adhere to the 1 -hour rule. This had been their practice not only
while Respondent owned WBT but also before when it was owned by the Columbia
Broadcasting System. Hingle testified that neither Minor nor any other official of
Respondent ever spoke to him about the hours he switched on the tower lights. He
testified further that on the log kept under FCC rules he always recorded the exact
time he turned on the lights, and that no FCC Inspector had ever spoken to him "or to
anyone else that I know of" concerning the timing. George B. Patterson, Jr., testified
without contradiction that the FCC makes regular inspections at least every 6 months
and checks back at least 30 days. There was no evidence that the FCC or any FCC
Investigator ever suggested to or charged Respondent with violating FCC rules through
the actions of Hicks. Nevertheless Carey and Minor, Hicks ' supervisor and the chief
engineer, criticized Hicks for his timing in switching on the . tower lights . It thus appears
that Hicks, of 'all the technicians who followed the same practice, was singled out for
criticism to his face and to the FCC.
18 This letter sets forth most, if not all but two, of the technical errors committed by
Hicks. Additional ones were the use of an abrasive on delicate silver-plated equipment,
which Respondent considered an error of judgment on his part ; and not replenishing an
empty supply of bottle gas when, according to Hicks, he did not know there was a full
bottle available.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quoted the above charges from Respondent 's letter , and added, in a letter to
Hicks :
In the above connection you are advised that your license was renewed,
notwithstanding these charges, in view of your over=all past service record is
This does not mean that the Commission condones violations of the character
alleged, or that it customarily without inquiry or hearing renews radio
operator licenses containing unsatisfactory endorsements. The action in
your case should not be construed to mean that the Commission has. found
these charges to be either true or untrue. [Emphasis added.]
It is concluded from the above, and-•.particularly from the underscored words,
that the FCC renewed Hicks' license without a hearing and even without an .
investigation, contrary to its custom and despite Respondent's charges.
At the end of July or early August 1949, George B. Patterson, Jr., a witness
called by the General Counsel, heard the rumor that Minor was going to endorse
Hicks' license "unsatisfactory" for reasons other than Hicks' performance of
his technical duties. Soon thereafter Patterson questioned Minor about the
rumor. Pattersoni testified. that he told Minor he understood from some of the
other technicians that Hicks was a competent engineer, and Minor agreed that
Hicks was. Patterson then said that he understood that a Federal license could.
not be endorsed "unsatisfactory" for reasons other than technical reasons2'
Minor replied that he was wrong, that a' license could be endorsed for other
than technical grounds,, and that he was intending to endorse Hicks' license
"unsatisfactory" for reasons other than his technical performance. Minor denied
this conversation and testified that his endorsement was based solely on Hicks'
performance of his technical duties. Patterson impressed me as a particularly
honest, credible witness, whereas Minor was a confused, self-contradictory,
evasive, unresponsive witness, and on the whole not a credible one. Further the
testimony shows that Patterson was genuinely disturbed over the rumor he
heard during the period of the picketing and that he initiated the conversation
with Minor in order to get his mind straight on the subject, testimony leading:
strongly to the conclusion that such a conversation took place-which Minor
denied. Under all the circumstances Patterson's testimony in this respect is.
credited in full. It is found that Minor made the statement that he intended to
endorse Hicks' license "unsatisfactory" for reasons other than the technical
performance of his duties.
Crutchfield testified that although he considered Hicks incompetent at the
time he was given the "unsatisfactory" rating, hd' did not consider discharging.
him, for fear the Union would rile a charge with the Board. For the 9 months
just prior to the rating Hicks had been in charge of Respondent's FM trans-
mission station during his shift, an assignment scarcely in keeping with in-
competency. It is more in keeping with Minor's statement to Patterson, which.
is credited, that Hicks was a competent engineer. If, as suggested in the letter
to the FCC, Respondent's property had been jeopardized by Hicks to a dun-
's The over-all service recorded referred to was at least 10 years of satisfactory ratings.
from several employers prior to the 5-year period in question, including the satisfactory
rating given by Minor as chief engineer for the 5-year period from November 1939 to.
September 1944, when WBIi was'owned by. the- Columbia Broadcasting System. In,.4t,
flicks had been licensed as a first-class radio telephone technician for 19 years, .and .fiad
never before received an "unsatisfactory" rating.
20 The FCC s rules provided that station licensees shall endorse the licenses of employees,.
showing among other things the "quality of performance of duty." In a letter to
Respondent dated August. 11, 1.949, the FCC's secretary stated, "The phrase `quality of
performance of duty' refers only to the performance of technical duties and does not
encompass other aspects of an operator's relationship with his employer."
JEFFERSON STANDARD BROADCASTING COMPANY 1541
gerous extent it is doubtful that Respondent would have kept itself in such
ignorance of the law as to have been restrained from discharging him for
incompetence.
2. Relationship between Hicks and Carey
A running conflict existed between Hicks and `Carey which existed at least
from 1945 on. The subject arose for discussion between Respondent and. the
Union several times during the succeeding years. There was no showing of
anything new in the relationship in late 1948 and 1949.
In 1947 the problem came to the fore in an undisclosed way. During the sum-
mer of 1948 Hicks wrote Carey a letter on behalf of the Union claiming Respon-
dent was violating its contract with the Union in two respects, one of which
was that Carey the supervisor was doing some technical work which "belonged"
to the employees, contrary to the contract. Carey did not answer. Hicks then
wrote Minor and received a reply acknowledging receipt. He then wrote Crutch-
field and discussed the matter with him. Crutchfield said he would like to take
the matter up with an international representative. Finally, in Crutchfield's
absence Thompson of the international and Hicks of the local met with Blakeney,
Respondent's attorney, Minor, and Carey. During the discussion of Carey's
doing technical work Minor told Carey that "if he would discontinue his union
antagonism . . . he could get along a lot better with the union." On the
advice of the international representative the local dropped the grievance.
Both Minor and Crutchfield referred to discussions of the relationship be-
tween Hicks and Carey during the 1948-49 negotiations leading to the impasse
and the discharges. Since Carey did not participate in the bargaining negotia-
tions, the references were not to any words or action by him in the bargaining
meetings themselves. Minor testified, "all through the negotiations, various
phases of the dissatisfaction between them has popped up. It has been very
annoying and regardless, it is just a difficult problem." Crutchfield referred to
efforts to adjust the matter "during the negotiation when we were trying
so hard to reach an agreement." In a meeting of the technicians, Minor and
other supervisors (but not Carey) held during the negotiations, Crutchfield sug-
gested to Hicks that at Crutchfield's expense Hicks take Carey out to dinner
so that on a social rather than a business level they could discuss their problems.
Hicks demurred, suggested that Carey be asked to invite Hicks over to Carey's
house for dinner. Two weeks later when Crutchfield asked if Hicks had had
Carey out to dinner Hicks replied that he had not.
When, according to Crutchfield, "our contract negotiations looked hopeless"
flicks and Thompson, international representatives, came to Crutchfield, and
Thompson said, "I think we can solve this whole problem if we can get an
understanding between Mr. Hicks and Mr. Carey . . . . I think that is the
crux of it. I don't think we have a labor problem. I think it is a personal
problem." The next day Hicks and Thompson returned and suggested that
Supervisor Carey be transferred from the transmitter to the control room and
that Supervisor Callahan of the control room go to the transmitter-Hicks then
working at the transmitter. Crutchfield discussed this suggestion with manage-
mentt and later told Hicks it was unfeasible because Carey and Callahan
were more qualified where they were then interchanged. Asked for further
ideas, Hicks suggested getting rid of Carey; which Crutchoeld refused because
he "had a great deal of respect for Mr. Carey personally and his ability . "
Instead of discharging Carey, Crutchfield transferred Hicks from the iUI trans-
mitter, where he had worked for many years, to the FM transmitter, in order
1542 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
to separate the two men. At the FM transmitter Hicks was free of immediate
supervision, in fact was in charge, and was answerable directly to Minor whose
office was 22 miles away. The record indicates that this change was made in
November 1948, some 8 or 9 months before Hicks was given the "unsatisfactory"
endorsement ; and insofar as the record discloses there was no further discussion
of the Hicks-Carey problem.
Although Crutchfield felt that Carey had his faults and "never . . . blamed
everything on Mr. Hicks," and although Minor did not think that Carey was
without fault in the matter, Minor endorsed Carey's license "satisfactory" in
about March 1950 presumably covering his performance over a 5-year period:
3. Concluding findings
The giving of an "unsatisfactory" endorsement to Hicks, thereby casting a
shadow across his future in his chosen trade, was closely connected with Re-
spondent's other actions towards the Union since the fall of 1948.
For some 12 or 13 years prior to the fall of 1948 WBT under 2 owners had dis-
charged no radio technicians. This was due no doubt in part, at least, to the
existence of a strong local union, which for some years prior to the 1947 amend-
ments of the Wagner Act had succeeded in maintaining a closed-shop contract
on the property, and whose strength since the abolition of the closed shop had
diminished only to the extent of 4 out of 16 by May 2, 1949. Through this
strength the Union had been able to maintain contractual clauses laden with
the employees' interest, including high wages and arbitration which were par-
ticularly obnoxious to Respondent. Girding its loins for a showdown bargain-
ing battle by the placing of the advertisement for new employees in the fall
of 1948 Respondent undertook to win concessions from the Union at whatever
cost, to lower wages and to get itself into a position to discharge "incompe-
tent'.' or "unsatisfactory" employees for any reason it chose without concern
for a possible veto by an arbitrator. Crutchfield suggested no other technician
than Hicks, whom he regarded as incompetent, and none. other was rated
unsatisfactory.
The Respondent's strong offensive to wrest job-power from the employees'
representatives, met with their anticipated resistance and in the forefront of
this resistance was Hicks, business agent for the local, the man through whom
Respondent had been doing business with. the Union ever since it took over the
station. Hicks signed the petition for certification for the Union in October
1948, participated in most of the bargaining sessions, and was one of two
regular employee members of the Union's bargaining committee. He was later
a regular picket on the picket line and in fact in charge of the picket line. Sev-
eral of Respondent's management testified that they saw him as well as others
on the picket line and passing out leaflets. In addition it was Hicks who alone
among the employees took two grievances as far as he could with the Re-
spondent in the summer of 1948, it was Hicks who alone among the employees
wrote the handbills passed out by the pickets and had them printed. Crutch-
field did not deny or question the conclusion when Wimberly, assistant to the
president of the international union, told him several weeks after the "un-
satisfactory" endorsement, that Hicks seemed to be "a very competent union
man." The entire record in the case impels the conclusion that Hicks was the
strongest union man among Respondent's technicians and the spearhead of the
resistance against Respondent's bargaining offensive ; and that Respondent
knew it. .
Respondent not only knew it but because he, more than any other technician,
was blocking it from its bargaining goal, it wished to get rid of him. In the
JEFFERSON STANDARD BROADCASTING COMPANY 1543
same interview with Wimberly, which took place in Washington, D. C., August
26, 1949, where Crutchfield had gone at Wimberly's request to try to settle the
dispute, Crutchfield volunteered that if the Union would hire Hicks and was
unable to pay him as much as he was receiving from Respondent, Crutchfield
would pay the difference. The record does not show whether the difference was
to come out of Crutchfield's own pocket or out of Respondent's or for how long
the arrangement would continue. That Crutchfield did not limit the offer to a
stated period of time when he made it is added indication of Respondent's wish
to be rid of him. Presumably it was cheaper to make a continuous contribution
to Hicks' union salary, if the international hired him, than to continue paying
the wages his continued employment by Respondent helped to maintain.
Not only in the above manner, but in several additional respects, Hicks was
singled out by Respondent for special treatment it did not extend to the other
technicians. To his face and to the Federal Communications Commission Hicks
alone was criticized for his timing in switching on the tower lights, even
though his practice was identical with the others'. Although Crutchfield and
Minor both held Carey somewhat at fault in the Hicks-Carey relationship, they
singled out Hicks for an "unsatisfactory" endorsement and a few months later
gave Carey a "satisfactory."
In another respect Hicks was singled out. Minor testified that he kept in his
head a general idea of the calibre of work being performed-by the various men
under him from information sent in by them. Yet_ when he was considering
giving Hicks an "unsatisfactory" he made a special check of Hicks' entries in
the log. Minor evaded answer to a question as to whether he customarily
checked the log each time a technician requested a license endorsement.
The record does not fully develop either the roots or the exact nature of the
conflict between Carey and Hicks, but it does indicate beyond cavil that the
conflict was part and parcel of the greater conflict between the Union and
Respondent. Thus in the summer of 1948 the issue was whether Carey by his
actions was violating the contract between the Union and Respondent, and, as
testified by Hicks, Minor told Carey "if he would discontinue his union antag-
onism . . he could get along a lot better with the union." Both Minor and
Carey testified and neither denied Hicks' testimony above. On the basis of their
silence as well as Hicks' testimony it is concluded that Carey was antagonisti't
towards the Union and particularly towards Hicks, its strongest member.
There being no proof to the contrary it is concluded that this antagonism con-
tinued after March 1.6, 1949, the date 6 months prior to the filing and service
upon Respondent of the original charge.
Carey was supervisor of the AM transmitter, and as such had supervisory au-
thority over a number of the technicians. A man in such a position who bears
antagonism towards the union representing the employees under him can be
the source of constant friction. It is likely that Thompson had this in mind
when.he suggested to Crutchfield that the whole problem between the Union
and Respondent. could be solved if an understanding could be reached between
Carey and Hicks. In any case it is clear that unless the Carey-Hicks contro-
versy were closely integrated with the- greater controversy between Respondent
and Union, its removal from the scene could not begin to effectuate a solution
between Respondent and Union, not" to mention consummate a solution.
The conclusion that the Carey-Hicks controversy was closely integrated with
the greater controversy between Respondent and Union is further borne out
by the absence from the record of any proof that the Carey-Hicks controversy
arose over anything other than their respective attitudes towards the Union.
The, record shows no elements leading to a conclusion of conflict between the
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two men because of personality traits. Further, during 1945-1946 Casey's super-
visory authority over Hicks' "individual" was removed although retained over
his "technical operations," showing that at that time, at least, the conflict had
no reference to their work. There was no showing that the conflict changed in
this respect in later'years. There was no proof that their supervisor-employee
relationship concerning the work varied from the norm of that relationship.
Minor testified that for a period of several years before Hicks' license came
up for renewal he was generally aware that there were faults in Hicks' per-
formance. Although he discussed some of these faults with him, he did not
suggest to Hicks the possibility that when his license came up for renewal
Minor might give him an "unsatisfactory" rating because of these faults, be-
cause "that is a threat of reprisal." Nothing in the Act would have barred Minor
from making such a suggestion to Hicks in an effort to improve his performance.
The Act would have barred such a suggestion only if it were an effort to restrain
his union activities. The fact that Minor thought in terms of "threat of reprisal"
indicates that Minor thought of Hicks primarily in terms of Hicks' union activi-
ties, and that while weighing in his own mind Hick's performance of duty, he
was unable to weed out of it his thoughts on Hicks' union activities.
It is concluded, in view of the above, that when Minor expressed to Patterson
his intent to give Hicks an "unsatisfactory" endorsement, for reasons other
than Hicks' performance of duties, he was expressing his true intent and that
be carried out that intent. It is found that Hicks was not rated for his perform-
ance of duties. In view of this finding, no conclusion is reached as to whether,
had he been rated for his performance of duties; the nature of the offenses was
such as to justify the rating. Respondent had failed in its bargaining goal of
achieving the removal of "unsatisfactories" and "incompetents" without possible
veto by arbitration, and it turned to achieving the same goal by other means.
The giving of the "unsatisfactory"endorsement to Hicks was clearly calculated
to discourage any further concerted activity of the employees toward obtaining
an arbitration clause suitable to them. By such conduct Respondent coerced and
restrained its employees in the exercise of the right of self-organization and to
engage in other concerted activity for purposes of collective bargaining and
other mutual aid or protection, in violation of Section 8 (a) (1) of the Act.
C. The refusal to bargain
1. The appropriate unit and the Union's representation of a majority therein
The complaint as amended at the hearing alleged that all technical employees
employed at the Respondent 's main control room, 608 Wilder Building, Charlotte,
North Carolina, at the main transmitter, Nation's Ford Roard, Charlotte, North
Carolina, at the FM transmitter (RAMLO Station), Gastonia, North Carolina,
and at the satellite transmitter, Shelby, North Carolina, but excluding the chief
engineer and all supervisors, as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining within the meaning of the Act.
This allegation corresponded with the Board's appropriate unit finding in its
Decision and Direction of-Election of April 8, 1949. No evidence concerning
this subject was introduced by either party at either the original or reopened
hearing in the current case. In view of the Board's earlier finding, the fact
that the unit as alleged appears, to be an appropriate one, and the absence of
any evidence to the contrary, I find that the unit as alleged and set forth above
constitutes a unit appropriate for the purposes of collective bargaining within
the meaning of the Act.
JEFFERSON ^'TANDARD BROADCASTING COMPANY 1545
The Union having been certified as the bargaining agent by the Board on May
9, 1949, its majority is presumed to continue for a reasonable period of time,
normally at least a year. In addition, the testimony is undisputed that as of
just before the discharges of September 3, 1949, there were 22 technicians in the
appropriate unit of whom 15 were members of the Union. Respondent's dis-
charge of 10 union members left 5 in its employ. The Union expelled these
remaining 5 from membership in January 1950, for violating the Union's con-
stitution by crossing the picket line. It is undisputed that none of Respondent's
employees in the appropriate unit are presently members of the Union.
It is undisputed that prior to Respondent's unlawful discharge of .10 union
members the Union represented a majority in the appropriate unit. This
majority status must be presumed, at law, to have continued after the illegal
discharges, for the.Respondent's unfair labor practices cannot operate to change
the bargaining representative selected by the untrammeled will of the majority."
It is therefore found that the Union was on and after May 9, 1949, and on and
after September 4, 1949, and that it now is the duly designated representative
of the employees in the appropriate unit.
2. The refusal
The General Counsel's position is, in effect, that Respondent refused to bargain
within the meaning of the Act at three different times: (a) At the time of the
discharge of the 10 men on September 3 and by virtue of that act, (b) on
September 6, 1949, in its reply to the Union's telegram of that date, and (c)
during and after the close of the original hearing.
(a) The theory under which the General Counsel was permitted to amend
the complaint by adding an 8 (a) (5) allegation just before resting at the
original hearing was that under all the circumstances of this case and assuming
good-faith bargaining up to the impasse, the discharge of the 10 employees from
the appropriate unit during, the certification year after the impasse had been
reached was per se a refusal to bargain. It is not so found. Respondent was
under no duty to offer to bargain with the Union concerning discharges it was
contemplating, in the absence of a contractual clause so providing. There being
no evidence that Respondent sought to undermine the authority of the Union
except as that, could be accomplished through the bargaining process, and
Respondent having bargained in good faith, I am not convinced that the dis-
charge of the employees indicated any contrary intent for past or future bargain-
ing. The discharges were in no way connected with the bargaining which pre-
ceded them and were for a reason completely independent of that bargaining;
so that it may not be concluded that they cast an aura of bad faith upon that.
previous bargaining. Nor can it be concluded on this record that the discharge
of the employees was, per se, conclusive evidence of an intent to refuse to bargain
with the Union in the future.
(b) In this brief the General Counsel urges as an additional ground for a
refusal to bargain finding that Respondent "flatly refused to bargain with the
certified bargaining representative during the certification year concerning the
discharge of the 10 men named in the complaint when requested to do so by
the Union's telegram of September 6, 3 days after the discharges." No such
finding is made for 2 reasons. Firstly, such a theory was not included in the
case in the ruling permitting the 8 ( a) (5) amendment to be made ; secondly,
the Union 's telegram of September 6 did not contain an unqualified request
21 Medo Photo Supply Corporation , 321 U. S. 678; 687; Tishomingo County Electric
Power Association, 74 NLRB 864; Inter-City Advertising Company of Greensboro, N. C.,
Inc., 89 NLRB 1103.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain concerning these discharges . This telegram , from John A. Thomp-
son, international representative , I. B. E. W., to Crutchfield , read as follows :
As the representative of I. B. of E. W., local union, No. 1229, Charlotte,
North Carolina, in the dispute with radio station WBT regarding terms
of a collective bargaining agreement to cover technicians and engineers,
over which you have, in the opinion of the union , unlawfully discharged ten
Charlotte citizens from their jobs I propose that instead of the union filing
unfair labor practices charges against the Jefferson Standard Broadcasting
Company with the National Labor Relations Board of Washington, D. C.,
that the following steps be taken to resolve the matter: (1) all technicians
discharged to be returned to their former position immediately without dis-
crimination or prejudice. (2) question of whether or not the discharges are
warranted be submitted to an impartial arbitrator designated by Governor
Kerr Scott of North Carolina . The union agrees to accept as final the de-
cision of the impartial arbitrator . ( 3) upon settlement of the discharge
questions , the parties shall enter into collective bargaining conferences,
in good faith , to reach an understanding on all points in dispute. In the
meanwhile all picketing of the studios of WBT by the union will be dis-
continued.
'The request to bargain in this telegram relates not to the cause or justice of
the discharges-which is to be determined by the arbitrator-but to the other
points in dispute. Since the discharge question is to be settled first under the
proposal and collective bargaining is not to begin until it is settled , there would
not be any discharge point in dispute when the bargaining conferences began.
(c) Twice in March and again in May 1950 the Union sought td reopen
bargaining negotiations . Respondent asked for delay in March until Crutch-
field returned from a recuperating vacation following a major operation. There
was no proof that during this period Walker, who was in charge in Crutch-
field's absence , or Blakeney , Respondent 's attorney who had represented Re-
spondent in the negotiations prior to the July 8, 1949, impasse and had repre-
sented himself to the union negotiators as being present as a negotiator, were
ill, incapacitated , or unauthorized to set a date , time, and place for further
bargaining meetings, which was all the Union had requested . Both Blakeney
and Walker knew of the Union's request . Nor was any evidence offered as to
any physical or other incapacity which prevented Crutchfield from considering
the Union 's request immediately after his return to his office on April 10 and
from thereupon informing the Union of a date, time , and place for a meeting.
Henry F. Adair , international representative of the Union , testified that on
March 13 he requested Crutchfield to set a date , time, and place and requested an
answer "that afternoon or the next morning at the latest" ; that he did not
receive the requested answer ; that a week later he repeated his request for a
date, time, and place and Crutchfield replied that he would "talk with Mr.
Blakney and let me know; at that time he asked what date would be satis-
factory with us for a conference , and I told him at that time that any date that
was satisfactory with him would-be satisfactory to us." (Emphasis added.)
Crutchfield 's version of the first March conversation with Adair was that Crutch-
held told him that this was his first day out of his house after his operation,
that he would have to think about the Union 's request a little, and that "as
soon as this hearing was over I suggested he get in touch with us again and we
would discuss it further." The hearing referred to was the original in this .case.
Crutchfield testified that in the . second conversation in March he told Adair
JEFFERSON -STANDARD BROADCASTING COMPANY 1547
-that on doctor's orders he was going to Florida for a few * weeks, and "if he
wanted to get in touch with us about it later we would be glad to discuss the
matter with him." Crutchfield testified further that he didn't think Adair's
request was serious, that he thought "he was trying to cook up another charge
to put on top of the other one, that is all . . .
After receiving a written request from the Union dated May 10, 1950, to set a
date, time, and place to resume negotiations, Crutchfield answered on May 13,
1950. In this 21/2 page letter he reviewed from his point of view the Union's
efforts to arrange a meeting during the March-to-May period, and concluded:
However all this may be, it is clear that you desire your Company to
engage in bargaining with your Union at the present time. I am now back
at work, have fully. resumed my duties, and we have, therefore, now pro-
ceeded to give thorough consideration to the question of entering into
bargaining with your Union at this time.
In view of the fact that we bargained fully and in good faith with your
Union for several months in an effort to arrive at a contract but without
success and in view of the fact'that since then events have occurred and
information has been brought to our attention from which it seems likely
that your Union does not now represent a majority of our technical em-
ployees, we respectfully request you to furnish us with such evidence or
proof as you may be able to furnish that you do now represent a majority
of these employees.
The Union did not reply to the above letter and made no further effort to
arrange a meeting with Respondent.
At the reopened hearing Crutchfield twice replied in answer to questions by the
General Counsel that Respondent will not now recognize the Union without
questioning its majority.
It is well settled that where, as here, a Union's loss of majority has been
brought about by Respondent's unfair labor practices, the Union's majority
status is not available as a defense to the charge that Respondent has violated
Section 8 (a) (5) of the Act.22 Since Respondent's act of discharging the 10 em-
ployees was the very act, found above to have been an unfair labor practice,
which caused the Union's loss of majority status, Respondent could not later
question that majority status as a condition to further bargaining.
It does not appear necessary to resolve the conflict as to whether at the second
conference Crutchfield told Adair he would talk with Blakeney and let the Union
know what Respondent would do about his request, or whether Crutchfield told
him he was going to Florida and the Union could get in touch with him later if
it wanted to. Respondent does not question that twice in March, 1950 the Union
requested it to set a date, time, and place to resume negotiations. It is held
that a third such request was not needed, and that the Union's two requests
placed upon Respondent a duty to set a date, time, and place for further nego-
tiations. It is held further that a reasonable period of time during which
Respondent could have fulfilled this duty was the 20 days immediately following
Crutchfield's return to his desk on April 10, 1950. It is concluded, therefore
that by its failure to fulfill this duty by April 30, 1950, and by its refusal at the
reopened hearing to recognize the Union without questioning its majority,
Respondent refused and now refuses to bargain collectively with the Union.
r Medo Photo Supply Corporation, 321 U. S. 678; Bradford Dyeing Association, 310
U. S. 318; Allen-Morrison Sign Co ., Inc., 79 NLRB 903; The Toledo Desk c Future Co.,
75 NLRB 744; Karp Metal Products Co.. Inc., 51 NLRB 621.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities, set forth in Section III, above, occurring in con-
nection with Respondent's operations described in Section I, 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
commerce and the. free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set
forth above, I recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Respondent having discharged George B. Patterson, Jr., S. J. Sullivan, Walter
S. Hill, T. W. Perkins, Leonard Flowers, Robert R. Hilker, A. O. Richardson,
Allen W. Hingle, E. L. Stroupe because of their union and concerted activities,
I recommend that Respondent offer to each of them immediate and full rein-
statement to his former or a substantially equivalent position 23 without prejudice
to his seniority and other rights and privileges and make each whole for any
loss of pay he may have suffered by reason of Respondent's discrimination against
him, by payment to each of them of a sum of money equal to that which he
normally would have earned as wages from September 3, 1949, the date of the
discrimination against them, to the date when, pursuant to the recommendations
herein contained, Respondent shall offer them reinstatement, less the net earnings
of each during said period.24 Loss of pay shall be determined by deducting from a
sum equal to that which these employees would normally have earned for each
quarter or portion thereof, their net earnings, if any, in other employment during
that period. Earnings in one particular quarter shall have no effect upon the
back-pay liability for any other quarter.. The quarterly periods described herein
shall begin with the first day of January, April, July, and October.26 It is recom-
mended further that Respondent make available to the Board upon request pay-
roll and other records,. in order to facilitate the checking of the amount of back
pay due 28
Although Respondent also discharged Sterling L. Hicks September 3, 1949,
because of his union and concerted activities, and he ordinarily would be en-
titled to the same rights recommended above for the other nine, such is not
recommended in view of his conviction on March 24, 1950, in the Superior Court
of Mecklenburg County, North Carolina, of the misdemeanor of conspiracy to,
damage Respondent's real property on January 12, 1950. It is recommended,
rather, that Hicks be given back pay from the date of the discrimination against
him until January 12, 1950, the date of the misdemeanor; that in the event the
charging party of Hicks furnishes the Board with evidence that a court of last
resort has reversed the conviction, the Board then order his reinstatement with
full back pay from the date of discharge, September 3, 1949, until the date of
offer of reinstatement, less the amount he normally would have earned from the
date of his conviction, March 24, 1950, until the date of reversal by the court of
last resort.
21 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827.
a' Crossett Lumber Co., 8 NLRB 440, 497-8 ; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
F. W. Woolworth Company, 90 NLRB 289. -
20 F. W. Woolworth Company, supra.
JEFFERSON STANDARD BROADCASTING COMPANY 1549
It having been found that Respondent gave Hicks an "unsatisfactory" endorse-
ment in violation of the Act, I recommend that Respondent reconsider whether
Hicks should receive an "unsatisfactory" or a "satisfactory" endorsement, with-
out reference to his union membership and activities and by the same standards
it has followed in the past in the giving of "satisfactory" endorsements to all of its
other technicians including Carey ; and if upon such reconsideration Respondent
decides that Hicks should be given a "satisfactory" endorsement, that Respondent
so inform the Federal Communications Commission, and that it correct Hicks'
recently expired license accordingly.
It having been found that Respondent refused to bargain collectively with
the. Union as the exclusive representative of their employees in an appropriate
unit, I recommend that Respondent upon request bargain collectively with the
Union as the exclusive representative of such employees with respect to rates of
pay, wages, hours, and other terms and conditions of employment 2'
Because of the Respondent's unlawful conduct and its underlying purpose
and tendency I find that the unfair labor practices found are persuasively
related to other unfair labor practices proscribed and that danger of their
commission in the future is to be anticipated from the course of the Respondent's
conduct in the past.22 The preventative purpose of the Act will be thwarted
unless the order is coextensive with the threat. In order therefore to make
effective the interdependent guarantees of Section 7 to prevent a recurrence of
unfair labor practices and thereby to minimize industrial strife which burdens
and obstructs commerce and thus effectuate the policies of the Act I will recom-
mend that Respondent cease and desist from in any'manner infringing upon
the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Jefferson Standard Broadcasting Company is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Local Union # 1229, International Brotherhood of Electrical Workers,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act.
3. At all times material herein, the following employees of Jefferson Standard
Broadcasting Company have constituted and now constitute a unit appropriate
for the purposes of collective bargaining: all technical employees employed at
the main control room, 608 Wilder Building, Charlotte, North Carolina; at the
main transmitter, Nation's Ford Road, Charlotte, North Carolina ; at the FM
transmitter (RAMLO station), Gastonia, North Carolina; and at the satellite
transmitter, Shelby, North Carolina, excluding the chief engineer and all super-
visors as defined in the Act.
4. On and since May 9, 1949, Local Union # 1229, International Brotherhood
of Electrical Workers, A. F. L., has been certified by the Board as the exclusive
bargaining representative of the employees in the aforesaid appropriate unit
in accordance with the provisions of Section 9 of the Act.
5. By refusing on April 30, 1950, and at all times thereafter to bargain col-
lectively with Local Union # 1229, International Brotherhood of Electrical
Workers, A. F. L., as the exclusive representative of all its employees in the
aforesaid unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act..
21N. L. R . B. V. Franks Brothers Co., 321 U . S. 702.
Ze N. L . R. B. v. Express Pnblfishing Co., 312 U . S. 426.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By discriminating in regard to the hire and tenure of employment of
George B. Patterson, Jr., S. J. Sullivan, Walter S. Hill, T. W. Perkins, Leonard,
Flowers, Robert R. Hilker, A. O. Richardson, Allen W. Hingle, E. L. Stroupe,.
and Sterling L. Hicks, thereby discouraging membership in Local Union # 1229,
International Brotherhood of Electrical Workers, A. F. L., the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
7. By said acts Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
PACKARD MOTOR CAR COMPANY and INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS , LOCAL No. 547, A. F. L., PETITIONER . Case No..
7-RC-1184. June 26, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William A. Reinke, 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 :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9v
(c) (1) and Section 2 (6) and (7) of the Act, for the following reasons:
The Petitioner seeks to represent a unit of all stationary operating
engineers employed at the Employer's main power plant in Detroit,:
Michigan. Although in the main contending that a current contract
which allegedly includes these employees bars the instant petition,'
the Employer and the Intervenors apparently also contend that this
unit is inappropriate.
There are five licensed stationary operating engineers at the Em-
ployer's main powerhouse, all of whom work under the supervision
' International Union , United Automobile , Aircraft & Agricultural Implement Workers
of America (UAW-CIO), and its Local 190 were allowed to intervene at the hearing
on the basis of an existing contract with the Employer.
2 As we are dismissing the petition herein because the unit petitioned for is Inappropriate,
we find it unnecessary to decide whether the existing contract between the Employer and
the Intervenors constitutes a bar to this proceeding.
94 NLRB No. 21.8.