KQED, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1978

238 N.L.R.B. 1 (N.L.R.B. 1978)

KQED, INC
KQED, Inc. and Richard H. Laskov. Case 20-CA
13565
September 8. 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PFNEF I.O
AND TRUESDAI.F
On May 12, 1978, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings. findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
DECISION
STATEMENt ()O THE CASE
RICHARD J. BoyCE, Administrative Law Judge: This case
was heard before me in San Francisco, California, on Aprinl
4, 1978. The charge was filed December 14. 1977, by Rich-
ard H. Laskov. acting in his individual capacity (Laskov).
The complaint issued January 20. 1978. alleging that
KQED, Inc. (Respondent), had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended.
The parties were permitted during the hearing to intro-
duce relevant evidence. examine and cross-examine wit-
nesses. and argue orally. Post-trial briefs were filed for the
General Counsel and for Respondent.
I. JURISDI('lil)N
Respondent is a nonprofit California corporation en-
gaged in the operation of a public television station in San
Francisco. In the 1977 calendar year, it received over
$100,000 in funds from the United States Department of
Health, Education and Welfare.
The complaint alleges, the answer admits. and it is found
that Respondent is an employer engaged in and affecting
commerce within the meaning of' Section 2(2). 16), and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, KQED, Inc., San
Francisco, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
The complaint alleges, the answer admits, and it is found
that National Association of Broadcast Employees & Tech-
nicians. ltocal Union No. 51 (Union), is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Ill. ISSUE
The complaint alleges that Respondent discharged Las-
kov on December 9. 1977, because of his union or other
protected activities, thereby violating Section 8(a)1) and
(3). The answer denies any wrongdoing.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dr) Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (C.A, 3. 1951). We have carefully examined the
record and find no basis for reversing his findings.
' We agree with the Administrative Law Judge's conclusion that Respon-
dent violated Sec 8(a) I) and (3) of the Act by discharging employee Laskov.
We. however, specifically disavow his finding that Respondent had con-
doned Laskov's alleged threat to engage in a work stoppage made dunng the
November 8, 1977. meeting of employees. As stated by the court in Jones &
McKnight. Inc. v. N. L. RB. 445 F.2d 97. 103 ((.A. 7. 1971), enfg. 183 NLRB
82 (1970): "The key element ofcondonation is a clearly evidenced intention
and commitment on the part of the employer to overlook the misconduct
and to permit a continuation or resumption of the company-employee rela-
tionship as though no misconduct had occurred." The record herein reveals
that, although Laskov apologized to Manager of Production Engineenng
Diehl for having "come on a little strong" in the meeting. Diehl merely
informed Laskov that he would "pass the apology on." and Respondent did
not raise the matter again until Laskov's discharge I month later. We con-
clude that the evidence herein is insufficient to establish clearly that Respon-
dent, in fact. had condoned L askov's conduct.
IV. THE AI.IEGED UNFAIR LABOR PRA(ICI(CE
A. Facts
Laskov worked for Respondent as a television camera-
man on the "Over Easy" show from October 6, 1977, until
discharged on December 9. "Over Easy" is produced in
Respondent's studios for national distribution on the Public
Broadcast Service network. Laskov, as a member of the
show's technical crew, was in a bargaining unit covered by
a labor agreement between Respondent and the Union.l
The discharge decision was made by Robert Diehl, Re-
spondent's manager of production engineering. It was
prompted, according to Diehl, by Laskov's conduct during
a meeting on November 8 between Diehl and Respondent's
director of personnel. Judy Houston. on the one hand, and
'The agreement became effectise on October 15, 1975, and runs to Sep-
tember 1. 1978
238 NLRB No. 4
11. lABOR OR(;ANIZAI(ON
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "Over Easy" technical crew on the other. The meeting
had been called by Houston to inform the crew that Re-
spondent intended to assign certain film-editing work to a
nonunit employee, Jan Goldberg. An arbitration award
then was pending whether this was permissible under the
labor agreement; and Houston stated during the meeting
that, while Respondent would comply with the award when
it issued, it believed it was within its rights to assign the
work to Goldberg. She asked the crew's cooperation in the
meantime.2
After saying what she had to say, Houston invited com-
ment from the group. One of the employees, John Salvin,
protested that Goldberg's doing the work would be "a di-
rect violation of our contract." Another, Richard Schiller,
said he could not understand why Respondent wanted to
do this unless "to break our contract." Laskov asked, about
then: "If you do this, do you expect us to come to work
tomorrow?" Houston answered "yes" to Laskov's question,
and Diehl stated: "Let's stop these idle threats."' Laskov
countered: "It's not a threat."
The next day, November 9, Laskov apologized to Diehl
for coming on "a little strong" in the meeting, explaining
that his feelings had not changed but that he regretted the
way he had expressed them. Diehl replied that he would
"pass the apology on," and Laskov believed the matter to
be closed.
Laskov heard nothing more about it until December 9,
when Diehl told him of the discharge. He worked his usual
5-day weeks in the interim.
There were no officials of the Union at the November 8
meeting, although Houston had given advance notice to the
Union's shop steward, Milton Frankel. Frankel told her at
the time that he had no objection to the meeting but made
it clear that the Union objected to Goldberg's doing the
work.
Diehl testified that the reason for the month's delay be-
tween provocation and discharge was Laskov's excellence
as a cameraman, which made it "a tough decision."4 Diehl
added that Laskov's "action in that meeting" had indicated
to him that Laskov "was potentially a problem in the fu-
ture; that he would tend to handle matters other than by
the accepted procedure and was a potential problem to the
Company"; and that it therefore was decided to discharge
him before expiration of his 90-day probationary period.
No action was taken against any of the others who spoke
during the November 8 meeting.
The labor agreement contains a grievance/arbitration
procedure concerning any dispute over "the interpretation,
application or enforcement of" its terms, and, in addition,
forbids strikes and lockouts absent failure by one of the
parties "to abide by the decision of an arbitrator as pro-
vided herein."
2 Respondent had been contracting out the editing work pending the arbi-
tration award but found that to be excessively expensive.
I Laskov is credited that Diehl used the term "idle threats." Diehl initially
testified that he said, "IWle don't want to have any idle threats," only to later
testify that he could not recall using the term. His latter testimony lacked
conviction.
4 Laskov by all accounts is a splendid cameraman. Hugh Downs, the host
of "Over Easy," testified that Laskov is "one of the most capable" he has
worked with in his 35 years as a television performer.
The arbitration award issued on December 2, 1977, in
favor of the Union.
B. Conclusion
It is concluded that Respondent violated Section 8(a)(1)
and (3), as alleged, by its discharge of Laskov.
Laskov's conduct during the November 8 meeting was a
protected union activity because in protest of Respondent's
assigning work to an employee not in the bargaining unit;'
and it was a protected concerted activity because it (a) was
intertwined with kindred protests of his fellow employees
relating to terms and conditions of employment and (b) was
designed to achieve compliance with the labor agreement.6
Although the subsequent arbitration award would seem to
have vindicated the position of Laskov and his coworkers,
"the particular merits of the employees' complaints are ir-
relevant to a finding" that their concerted conduct was pro-
tected.7
Respondent's argument is rejected that Laskov's rhetori-
cal allusion to a work stoppage was unprotected because of
the no-strike clause. The no-strike clause does not forbid
talk about stoppages, only stoppages themselves. To give it
the broader reading Respondent seeks would be to ignore
the principle that "the waiver of statutory rights is not
lightly to be inferred."8
Even if the no-strike clause were deemed to have altered
the status of Laskov's otherwise protected remarks, Respon-
dent's discharge of him more than a month after they were
made, without any intervening hint that the matter was still
alive, runs afoul of the Board's condonation doctrine. That
doctrine is to this effect:
[WIhere employees engage in concerted activity which,
although otherwise lawful and protected, is rendered
unprotected by some improper aspect of the employ-
ees' conduct, such as a breach of a no-strike clause, but
the employer forgives or condones the strike, he will
thereafter be estopped from asserting the unlawful na-
ture of the strike as grounds for discharge.'
Finally, Laskov's being a probationary employee did not
privilege Respondent to abridge his statutory rights.
CONCLUSIONS OF LAW
1. By discharging Richard H. Laskov as found herein,
Respondent violated Section 8(a)(1) and (3) of the Act.
2. This unfair labor practice affects commerce within the
meaning of Section 2(6) and (7) of the Act.
5 Blount Brothers Corporation, 230 NLRB 586 (1977); Key City Mechanical
Contractors, Inc., 227 NLRB 1884 (1977); Spinoza, Inc., 199 NLRB 525
(1972).
6James T. Hughes Sheet Metal, Inc., 224 NLRB 835 (1976); Interboro
Contractors, Inc., 157 NLRB 1295 (1966); Merlyn Bunney and Clarence Bun-
ney, Partners, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516
(1962).
7 Spinoza, Inc., supra at 525. See also The Singer Company, Climate Control
Division, 198 NLRB 870 (1972); Plastilite Corporation, 153 NLRB 180
(1965).
8Gary-Hobart Water Corporation, 210 NLRB 742, 745 (1974).
9
Jones d McKnight, Inc. v. N.LR.B., 445 F.2d 97, 102 (C.A. 7, 1971). See
also Brantly Helicopter Corporation, 135 NLRB 1412 (1962); M. Eskin &
Son, 135 NLRB 666 (1962); Alabama Marble Company, 83 NLRB 1047
(1949).
steps shall be taken by Respondent to insure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER ()OF Itl
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing, in which we participated and had a chance to
give evidence, resulted in a decision that we had committed
an unfair labor practice in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, and
this notice is posted pursuant to that decision.
Section 7 of the National Labor Relations Act gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activity except to
the extent that the employees' bargaining represent-
ative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
WE WILL NOT discharge or otherwise discriminate
against our employees for engaging in protected union
or protected concerted activities.
WE VVil. NOT in any other manner interfere with,
restrain, or coerce our employees in their exercise of
rights under the Act.
WE Wll i offer to Richard H. Laskov immediate and
full reinstatement to his former job or, it' that job no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings or bene-
fits suffered by reason of his unlawful discharge, plus
interest.
ORDER'I
Respondent KQED, Inc., San Francisco, California, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees for engaging in protected union or protected
concerted activities.
(b) In any other manner interfering with, restraining, or
coercing its employees in their exercise of rights under the
Act.
2. Take this affirmative action:
(a) Offer to Richard H. Laskov immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings or benefits suffered by reason
of his unlawful discharge, plus interest."
(b) Preserve and, upon request, make available, to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay and benefits owing under
the terms of this Order.
(c) Post at its station in San Francisco, California, the
attached notice marked "Appendix."' Copies of the notice,
on forms provided by the Regional Director for Region 20,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
' All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
l' Backpay is to be computed in accordance with F W Woolworth Com-
pany, 90 NLRB 289 (1950), with interest to be computed in the manner set
forth in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally. Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
12 In the event that this Order is enforced by a judgment of the United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board." KQED, IN(.
KQED. INC. 3