Miami Broadcasting Co.

National Labor Relations Board - Board Decisions

Sep 22, 1942

44 N.L.R.B. 257 (N.L.R.B. 1942)

In the Matter of MIAMI BROADCASTING COMPANY and THE AMERICAN
FEDERATION OF RADIO ARTISTS, MIAMI LOCAL, AFFILIATED wiTH THE
AMERICAN FEDERATION OF LABOR
Case No. C-.207.-Decided September 00, 194
Jurisdiction : operation of a radio station.
Unfair Labor Practices
Interference, Restraetit, and Coercion: anti-union statements of three supervisory
employees attributed to the employer.
Discrimination: discharge on account of employee's union membership and
activity.
Remedial Orders : reinstatement of discriminatorily discharged-employee with
back pay.
Mr. John C. McRee, for the Board.
Bouvier, Goldberg, and Haskins, by Mr. John A. Bouvier, Jr., of
Miami, Fla., and Loucks and Scharfeld, by Mr. Philip G. Loucks,
of Washington, D. C., for the respondent.
Mr. Sam Parker, of Miami, Fla., and Jaffe cC Jaffe by Mr. Henry
Jaffe and Mr. Saul P. Pryor of New York City, for the Union.
Mr. Harry H. Luskin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by The American Federation of Radio
Artists, Miami Local, affiliated with the American Federation of
Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Tenth Region
(Atlanta, Georgia), issued its complaint dated•March 30, 1942, against
Miami Broadcasting Company, Miami, Florida, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging in ,unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor ,Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and of notice of hearing thereon were duly
served on the respondent and the Union.
44 N 'L. R. B., No. 49.
487498-42-vol 44--17 257
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices , the complaint alleged
in substance : ( 1) that the respondent discharged Fred Handrich on
or about December 10 , 1941, and thereafter refused to reinstate him,
because he had joined and assisted the Union and engaged in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection ; ( 2) that since September 1, 1940, the respondent,
by its officers and agents , has urged , warned, and threatened its em-
ployees not to become or remain members of the Union and has ques-
tioned them about the Union's activities ; and (3 ) that the respondent,
by the foregoing acts, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
The respondent filed an answer to the complaint at the commence-
ment of the bearing on April 20, 1942, denying the alleged unfair
labor practices, and averring affirmatively that Handrich was dis-
charged for cause.
Pursuant to notice, a hearing was held at Miami, Florida, on
April 20 through 23, 1942, before William P. Webb, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel, and the Union by
its representatives; all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross -examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At
the conclusion of the Board's case and again at the close of the hear-
ing, counsel for the Board moved to conform the pleadings to the
proof in such matters as spelling and dates. The motions were granted
by the Trial Examiner without objection by the respondent. At the
close of the Board's case, counsel for the respondent moved to dis-
miss the complaint. The Trial Examiner reserved ruling on this
motion and thereafter denied it in his Intermediate Report. During
the course of the hearing the- Trial, Examiner made rulings on
other motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. The parties were afforded, but declined, an opportunity to
argue orally before the Trial Examiner. Counsel for the respond-
ent submitted a brief to the Trial Examiner on May 9, 1942.
The the Trial Examiner issued his Intermediate Report
dated May 28, 1942, copies of which were duly served upon the
respondent and the Union. He found that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and ( 3) and Section 2
(6) and (7) of the Act, and recommended that the respondent cease
and desist therefrom and take certain affirmative action designed
MIAMI BROADCASTING COMPANY 259,
to effectuate the policies of the Act, including the reinstatement with
back pay of Handrich. On June 25, 1942, the respondent filed a brief
with the Board in lieu of exceptions.
Thereafter, pursuant to notice duly served on the parties, a hear-
ing was held before the Board in Washington, D. C., on July 16;
1942, for the purpose of oral argument. The respondent and the
Union were represented by counsel and participated in the hearing.
At oral argument, the Union filed its brief with the Board. The
Board'has considered the briefs which were filed by the respondent
and the Union.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Miami Broadcasting Company, a Florida corporation with its prin-
cipal office and place of business at Miami, Florida, owns and operates
a radio station with the call letters, WQAM, under license of the
Federal Communications Commission. Approximately 40 percent
of the respondent's broadcasting time is devoted to broadcasting
material received from the Columbia Broadcasting System, Inc., with
which it is affiliated. The remaining time is devoted to local pro-
grams, sustaining features, educational features, promotion of the
war effort, local advertising, and other matters. News items for
broadcasting are received by the respondent from various Nation-
wide news collecting entities, such as the United Press. A substan-
tial portion of the advertising is of nationally known products. The
respondent normally employs about 35 employees. The respondent
admits, for the purpose of this proceeding, that it is engaged iii
commerce, within the meaning of the Act.
H. THE ORGANIZATION INVOLVED -
The American Federation of Radio Artists, Miami Local, is a labor
organization affiliated with the American Federation of Labor. It
admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
WIOD, WKAT, and WQAM are the three radio stations in the
city of Miami; the last-named is operated by the respondent. In the
fall of 1938, the Union commenced to organize the employees of the
three stations. Leslie Harris, one of the respondent's announcers,
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he, together with several other announcers employed by
the,respondent, met with the respondent's president, Fred Borton,
during the organizational drive in order to get his reaction toward
their joining the Union.' As a result of its organizational efforts in
1938 and 1939, the Union enrolled as members employees of Station
WIOD.
In October 1939, according to the uncontradicted and credible testi-
mony of Fred Handrich, an announcer at that time for the respond-
ent, Hazel McGuire, the respondent's office manager and program
director,.told him that she was very glad that there was no union at
the respondent's station, for the reason that the advent of the Union
at Station WIOD had brought nothing but contention between the
announcers and the management. Handrich testified further, without
contradiction, and we believe his testimony, as did the Trial Ex
aminer, that McGuire told him on that occasion that Borton disliked.
the Union so much that he "hates to interview a union man." The
respondent contends that, prior to about Christmas,,1941, McGuire
had no authority to hire or discharge employees and that, therefore,
it is not chargeable with her acts during the period herein material.
With- respect to her duties and position, Borton testified that Mc-
Guire , assumed part, of the duties of one McCall, the respondent's
office manager and supervisor of the affairs of the office, when Mc-
Call took a leave of absence in April 1939; that McGuire was re-
sponsible for changes in schedules and programs; and that she col-
laborated with Norman MacKay, the respondent's advertising man-
ager and sales promoter, in the coordination of programs to meet the
requirements of the Columbia Broadcasting System and those of the
respondent's national and local sales accounts. McGuire testified
that she has been in a "sort of supervisory position" handling traffic
and programs that go on the air since 1939 with,no authority to hire
or discharge. She stated that she "took authority" to recommend
the hire or discharge of announcers throughout the period involved
herein. Although Borton- testified that McGuire obtained her official
designation as program director in the latter part of December 1941,
a letter of introduction written by McGuire on April 29, 1940, in be-
half of Handrich, was signed by her as program director of Station
• WQAM. We find, as did' the Trial Examiner, that at all times
herein material McGuire's duties were such as to lead the employees
reasonably to believe that she represented the management. The
respondent is consequently answerable for her acts.'
i See International Assooiat,on of Machinists, Tool and The Makers Lodge No. 35 v.
National Labor Relations Board, 311 U. S 72 ; H. J. Heinz Company v. National Labor
Relations Board, 311 U S 514; National Labor Relations Board v. Link-Belt Co., at at.,
311 U S. 584.
MIAMI BROADCASTING, COMPANY 261'
During the winter of 1939-1940, the respondent was compelled to
use the services of union announcers from Station WIOD for the
broadcast of a series of programs on behalf of the Columbia Broad-
casting System, as the programs called for the services of only union
members. In September 1940, the Union made another attempt to
organize the respondent's employees. Toward that end, a meeting,
of the respondent's six announcers , i. e. Fred Handrich, Leslie Harris,
Bert Graulich, Byron Lowrey, Philip Kelleher, and Walter Svehla,
was held in the respondent's audition room on the afternoon of Sep-
tember 11, while Borton, the respondent's president, was away on va-
cation. Handrich and Harris testified that they spoke at the meet-
ing in favor of joining the Union. Svehla testified that he opposed
taking any action while Borton was away and that "it seemed like
..', it was an underhanded way of doing it." Kelleher testified that
he was in favor of awaiting Borton's return before making any'de-
cision with respect to the Union. That evening, according to the tes-
timony of Handrich, MacKay asked him if he was going to join the
Union and- he replied in the affirmative. Handrich testified further
that, when MacKay inquired as to what benefits he expected from the
Union, he remarked that he thought it was "a good thing." ' Where-
upon, according to Handrich, MacKay replied that they had all been
"a big happy family here and everything was all right until this
Union business calve up" and that the Union was a "sort of socialistic
organization." Although MacKay denied that he had ever discussed
unions with Handrich, he did not' specifically deny the 'statements
attributed to him by Handrich.
The Trial Examiner, who heard and observed the witnesses, did
not credit MacKay's testimony and accepted as true the statements
attributed to him by Handrich. We agree with the Trial Examiner
and find that MacKay made the statements attributed to him by Hand-
rich. We find further, contrary to the respondent's contention in
its brief, that MacKay's position with the respondent was such that
the employees had just cause to believe that he represented the man-
agement and that liability for his conduct is consequently to be
assumed by the respondent.2 On the following day, Handrich and
Harris joined the Union, which, thereupon, notified Borton to that
effect. Graulich and Lowrey joined 2 days later but resigned within
a short time thereafter. Svehla and Kelleher never applied for
membership.
2 MacKay, as the respondent's advertising manager and sales promoter, was responsible
for sales promotion and solicitation of national business and assisted in the preparation
and production of programs in connection with such sales , handled publicity for the,sta-
tion, and consulted with the progiam department of the Columbia Broadcasting System
as to the scheduling of the latter 's programs on the respondent ' s station.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, September 16, Borton returned from his vacation. All
the announcers, except Handrich, went to see Borton upon his return
and talked with him about the state of union organization. While
the testimony, of Borton and the five announcers does not show that
Borton during,these conversations expressly attempted to -induce those
who had joined to relinquish their membership or to persuade the
others not to become members, we nevertheless regard the fact that
the employees deemed it necessary to discuss the matter of union affilia-
tion with their employer, particularly in view of the earlier statements
of McGuire and MacKay, as indicative of a lack of complete freedom
of choice on their part.3
After Handrich joined the Union, he had many conversations with
McGuire concerning, the Union. Handrich testified that, on one occa-
sion in October 1940, McGuire remarked to him that she did not know
what he would gain from union membership, adding that the Union
was "socialistic"• and in the control of "a bunch of racketeers."
Although McGuire was called as a witness by the respondent, she did
not deny the remarks thus attributed to her by Handrich. We credit
the testimony of Handrich in this respect, as did the Trial Examiner.
In about December 1940, James Porter, international representative
of the Union, came to Miami and met several times with representa-
tives of the three stations for the purpose of negotiating a'contract
with each of them. Porter submitted to the three stations a proposed
contract containing a closed-shop provision. Borton testified that he
was present at these meetings but declined to sign a contract containing
a closed-shop provision. In April 1941, WIOD entered into a contract
with the Union. On August 7, 1941, the Union informed the respond-
ent by letter of its contract with WIOD and requested, a, meeting .with
Borton for the purpose of negotiating a contract with the respondent.
Borton replied that, if the Union still insisted on a closed-shop, no
further conferences were necessary but that, if it had receded from that
position, he would consent to a resumption of negotiations. In the
latter part of August 1941, Vie Conners, national field representative
of the Union, arrived in Miami for the purpose of negotiating con-
-tracts with Station WKAT and the respondent. WKAT signed a
contract-in October 1941, but the respondent has never consummated
any agreement with the Union.'
3 The testimony is conflicting as to when the resignations of Lov rey and Graulich were
written and mailed to the-Union with reference to the time of their conversation with
Borton While the Trial Examiner resolved this conflict by finding that Lowrey and
Graulich resigned after they talked to Berton, we do not agree and find that the evidence
is insufficient to support such finding. ,
* It is not apparent from the record whether Conners made a specific request to meet
with the respondent , and the record does not show that any further conferences between
the Union and the respondent were held.
MIAMI BROADCASTING COMPANY 263
From about the middle of -June to the early part of September. 1941,
J. A. Darling, an employee of Fred Mizer, the respondent's station
manager and program sales promoter, was permitted by McGuire to,
announce a program from the respondent's studio - twice a week.
Mizer's office was located on the floor just below the respondent's
studio. Darling testified without contradiction that in September
1941 he was removed from the program by McGuire, who told him that
Mizer had requested that he devote all his time to Mizer's office. Dar-
ling testified further that, when he reported McGuire's conduct to
Mizer, the latter denied that he had requested Darling's removal but
nevertheless stated that "there was a certain amount of union agitation
going on" and that he did not want Darling "mixed up with it"
Although Mizer did not specifically deny Darling's testimony in this
respect, he testified that he had never discussed unions with Darling
and that he did not tell Darling to -"stop announcing because of his
union activities." The' Trial Examiner did not credit Mizer's testi-
mony and accepted as true the statements attributed to him by Darling.
We too credit the testimony of Darling and find the respondent respon-
sible for Mizer's conduct.-
We find that, by the statements and conduct of McGuire, McKay, and
Mizer, evidencuig opposition to the Union, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
B. Discrimination with regard to hire and tenure of employment,
1. The discharge of Fred Handrich
Handrich started to work for the respondent as a news broadcaster
about June 1, 1939, after having been given two auditions by McGuire.
Borton, who heard the second audition, testified that he was "tre-
mendously" impressed with Handrich's voice. After approximately
10 days' trial, lie was given a salary of $10 a week, which was increased
to $13 about 3 weeks later. Sometime between July 15 and August 1,
1939, Handrich replaced the commercial announcers then on vacation
and was paid $30 a week. When the commercial announcers returned,
Handrich was told by McGuire to resume the job of news broadcasting
at a salary of $25 a week. Handrich protested against the reduction in
salary and told McGuire that he would see Borton. 'A few clays later,
according to the credible and uncontradicted testimony of Handrich,
McGuire told him that a representative of one of the respondent's
accounts had reported to - Borton that Handrich was one of the best
5 Borton testified, that \iizer assumed 'full authority over the station in the absence of
Berton and the respondent ' s vice president.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'announcers "down here," that Borton was very pleased, and that, con-
sequently, he would probably have no difficulty in retaining his salary
of $30 a week. Handrich testified further without contradiction, and
we believe his testimony, that Borton told him the following day that
he liked his work very much, that he was "network quality," that he
could not pay him what he was worth, but that he would continue to
pay him $30 a week. Borton testified that Handrich received semi-
annual bonuses, vacation money, and pay increases until, on June 26,
1941,'his salary equalled that of the other announcers. Handrich testi-
fied that Borton said to him on the occasion of the increase of June 26,
1941, "Handrich, I have nothing but good reports of you. I want to
tell you how pleased I am with your work and I want to tell you how
much I am pleased with the job'you are doing. Remind me tomorrow
to make an adjustment in the p,iy roll." The next day, according to
Handrich, Borton told-him of his increase of $6.80 a week and of his
appreciation of Handrich's conscientiou' s attitude toward his work.
Borton denied having made these remarks, but admitted the salary
increase of June 26. We credit the testimony of •Handrich in this
respect, as did the Trial Examiner.
Throughout the period' of Handrich's employment, the respondent
issued and distributed to the public pamphlets and brochures adver- ,
tising its activities, personnel, and programs. These publications are
replete with testimonials and tributes to the work of Handrich as an
announcer. In-a booklet distributed sometime in 1939, the respondent
asserted that the excellence of Handrich's work as i news broadcaster
was reflected in the many letters received by the station. On the
front cover of its program schedule for the week of July 13 to-19,
1941, the respondent announced the presentation of a program by Fred
Handrich, "South Florida's Leading Newscaster"; on the front cover
of a similar program announcement for the week of September 14
to 20, 1941, the respondent referred to Handrich as "our full time
news editor for 2 years," and stated that the respondent was "just
doing a good job for listener and advertiser." On the back cover of
a brochure issued in 1941 and containing an international radio news
map, there appeared a photograph of Handrich, captioned "Miami's
First Radio News Editor"; and at the time of the hearing the re-
spondent was engaged in distributing 7,000 copies of a pamphlet,
characterizing Elmer Davis, Bob Trout, William Shirer, and others,
including Fred Handrich, as "the news experts," and featuring two
photographs of Handrich and one of each of the others.
The respondent's high, regard 'for Handrich's work was manifested
in other ways : On or about April 29, 1940, McGuire. wrote a letter
to an official of another radio station, describing Handrich as a good
announcer and rewrite man, and stating that his voice was so well
MIAMI BROADCASTING COMPANY 265
suited to newscasting that the respondent had utilized his services
almost exclusively in that capacity. In July 1940, MacKay wrote a
letter of introduction for Handrich to an official of the Columbia
Broadcasting Company in New York City,,in which he commented
that Handrich , as a newscaster , had attracted "quite considerable"
attention . On September 20, 1940, Borton wrote to a listener who had
criticized Handrich that by far the greater number of letters received
from the public on Handrich were complimentary of his delivery of
the news and that a poll conducted by the respondent showed Handrich
"well out in the lead of the entire group of Miami area stations when
it comes to the matter of news delivery."
Handrich testified without contradiction that, when he applied for
employment, McGuire asked him if he belonged to a union and that
he replied in the negative . Handrich joined the Union on September
12, 1940. He alone among the announcers had failed to report his
membership to Borton at that time . He became very active in union
affairs, and continuously solicited other employees to join. At the
time Graulich and Lowrey sought to resign from the Union, Handrich,
according to his credible testimony , attempted to persuade them
against taking that action. When a representative of the Union came
to Miami in December 1940 to further the Union 's organizational drive,
Handrich talked with several of his fellow workers' about holding a
meeting of the respondent 's employees in connection with that drive.
In May 1941, Handrich was elected treasurer of the Union to fill _an
unexpired term and in November-1941 he was reelected for a full term.
By virtue of his office in the Union, Handrich was also a member of
the board of directors .' Even before his election to office Handrich
frequently attended meetings of the board of directors as substitute
for Harris , who represented the respondent 's station on that board.
When Conners, another union representative, came to Miami in Au-
gust 1941, Handrich was most active in rendering assistance to him
in his organizational efforts and was successful in getting together a
number of the employees for solicitation by Conners . Conners testi-
fied that he had at least 10 meetings with Handrich during his stay
in Miami from August to sometime in October 1941. The extent of
union activity at the respondent 's station during the last few months
of 1941, was made clear by the uncontradicted testimony of Ellis
Hollums, who replaced Handrich, that "there had been quite a lot of
stuff published- in the newspaper" during that period "about the
trouble with the radio station and the Union." Within 4 days after
Handrich joined the Union, his membership was known to the re-
spondent and the fact that he was treasurer of the Union also came
to the respondent's notice.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About the middle of November 1941 , at a meeting of the respondent's
executives , it was decided to discharge Handrich . McGuire testified
that MacKay had suggested that the respondent employ Bradford
Ansley, a news editor at Station WIOD , in place of Handrich, and
that she had suggested Ellis Hollums. On December 2, pursuant to
prior arrangements ; MacKay visited Ansley and told him that he
wanted Ansley to see Borton about filling Handrich 's position at the
respondent 's, station . Ansley testified that MacKay did not discuss
Handrich 's efficiency as an announcer but told him that Handrich
would be discharged because his services were "undesirable" and that
he was a "trouble maker. " Ansley was never offered employment by
the respondent , although he was assured by MacKay 2 or 3 weeks after
his talk with him that he had been under consideration for the job:
MacKay testified that he told Ansley that there was to be a "change,"
but he denied mentioning Handrich 's name or discussing Handrich in
that conversation . We credit the testimony of Ansley, as did the Trial
Examiner, and find that MacKay made the remarks thus attributed to
him by Ansley. Hollums was interviewed by Borton on December 3.
Hollums testified credibly and without contradiction that at that time
he told Borton that he was opposed to unions for professional men.
Borton testified that he informed Hollums during the interview that
he thought he would be hired about the first of January. On Decem-
ber 8, Borton requested Hollums to report for work as soon as possible,
and Hollums started 3 days later.
On December 10, 1941, Handrich was discharged by Borton without
prior notice. According to the testimony of both Handrich and Hor-
ton, the latter informed Handrich that he had an opportunity to em-
ploy Hollums , an experienced newspaperman , whose services had be-
come necessary because of the importance of the war news at that time.
After his discharge, Handrich was paid 2 weeks' salary in lieu of no-
tice and, in addition, he received his semiannual bonus. On the day
following his discharge, at Boston's request, Handrich came to the
studio to assist Hollums in his new duties . Handrich testified without
contradiction, and we believe his testimony, as did the Trial Examiner,
that, on that day, lie had the following conversation with McGuire :
After expressing surprise at his discharge, she remarked, "Now, don't
you think this is due to union activities?" Handrich inquired as to
whether he had been guilty of misconduct, insubordination, or incom-
petence, and McGuire replied, "Of course not, you are not guilty of
,any of those things, but I will say this to you, not very long ago Mr.
Boston came to me and told me that he heard from someone that you
had talked against him openly at a union meeting"; McGuire then as-
sured him that he would find work elsewhere and said, "You are cer-
tainly tops in newscasting in this part of the country."
MIAMI BROADCASTING COMPANY 267
The respondent alleged in. its answer that. it discharged Handrich
for the reason .that his lack of news training and his poor voice ren-
dered him incapable of handling the highly important task of broad-
casting the news after the United States entered the war. In its,
brief , the respondent argues, in effect, that the affirmative defense
alleged in its answer should be interpreted as the last critical event
which precipitated the discharge, and that the evidence shows that it
had given consideration to Handrich's inadequacy prior to our entry
into the war and that it had planned to replace him in any case be-
cause of the growing need for a more effective presentation of the
news. We find, as did the Trial Examiner, that the respondent de-
cided to discharge Handrich at a meeting of the respondent's execu-
tives in the middle of November 1941, several weeks prior to our,
entry into the war, and that the respondent employed Hollums on,
December 3, 1941, 5 days before the start of the war s
In support of the respondent's answer, MacKay, McGuire, and an-
nouncers , Graulich, Lowrey, and Svehla testified that Handrich had
failed,to respond to training, a circumstance which, according to the
respondent, led to increasing dissatisfaction with him. MacKay testi-
fied that he did not like Handrich's work in 1939, that Handrich's
broadcasting of the news had a "sameness," and that he tried to
instruct Handrich on how to make commercial announcements but
without the desired effects on Handrich's voice. We are unable to
regard this criticism as serious in view of MacKay's part in the
preparation of WQAM's publicity lauding Handrich and in view of
his letter of July 1940 to an official of the Columbia Broadcasting
System complimenting Handrich on his work. McGuire testified that
Handrich would not respond to her coaching, that he refused to listen
to her and would "go into a sort of tantrum," and that she discon-
tinued coaching him in 1940. We find this testimony to be uncon-
vincing in the light of McGuire's comment to Handrich the clay after
his discharge that Handrich was "certainly tops in newscasting in
this part of the country." Consequently, we are unable to regard
such criticism as a serious reflection upon the quality of his work.
The record shows that Handrich was assigned to the duties of an-
nouncing the news in September 1939, and continued in that capacity
until his discharge. Moreover, during 1940, he assumed the addi-
tional duty of rewriting the news. That his work in these respects
was satisfactory is apparent not only from the many increases in
6In any event, the respondent's contention would seem to be without validity in view
of the fact that Handrich handled the ne«s for the respondent during a period when
many world-shaking events of moment to the listening public in this country were taking
place : Germany 's invasion of Poland , Russia's invasion of Finland , Germany's invasion
of the Low Countries , Italy ' s declaration of war on Great Britain and France , the sur-
render of France to Germany, Italy ' s invasion of Egypt and Greece, Geimany's invasion
of Russia , and the march by English and Russian troops into Ilan
268 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
salary he received, but also from the complimentary remarks made
to him - by Borton on the occasion of his last increase, from the
numerous testimonials, to his services published and distributed by
the-respondent, and from the letters written by the respondent in
praise of his performance at the station. Moreover, the respondent
never informed Handrich that his services were not entirely satis-
factory.
As a further explanation of the discharge, Borton testified that the
respondent decided to employ an experienced "newspaper man" in
Handrich's place. The respondent states in its brief, and McGuire
and MacKay testified, that the respondent desired a person experi-
enced with the news and the handling of the news. The record is
clear that the respondent considered for employment Bradford
Ansley,, Who had no newspaper experience. In addition, the.respond-
ent admitted during oral argument before the Board that, had it not
been able to obtain the services of Ellis Hollums, a newspaper man,
it probably would have hired Ansley. Borton's explanation is con-
sequently unconvincing, and we so find.
The respondent contends further that Handrich's poor voice, result-
ing from a series -of colds and a sinus condition, was a contributing
factor in the decision to discharge him. During the last 3 days of
November 1941, Handrichwas ill with a cold and did not work. This
condition affected his broadcasting- to some extent. However, he
continued his work with the assistance of the other announcers, who
cooperated with him in accordance with the usual custom at the re-
spondent's station in situations of this kind. As a result of his cold,
he developed a' sinus infection on December 7, which, according to.
Handrich, was cured within about 2 weeks. ' Although Handrich had
had other colds, the record shows that colds among the announcers
were not a, rare occurrence. There is no evidence that any announcer
had ever been discharged by the respondent for having a cold. More-
over, the respondent admits in its brief that "the trouble with colds
and sinus infection, though regrettable, might conceivably have been
overlooked, and were overlooked for a year," had it not been for his
professional inability to deal with the events of world-shaking impor-
tance of November and December 1941. We are convinced, as was
the Trial Examiner, that Handrich's physical condition in no way
contributed to his discharge.
2. Conclusions
The allegations of the complaint that Handrich was discharged
for union activity find ample support in the record. As already
shown, the respondent's defense has failed for want of proof. The
respondent's opposition toward the self-organization of its employees
MIAMI BROADCASTING COMPANY • , 269
became,manifest on the day of Handrich's interview for employment,
when McGuire inquired whether he was a member of the Union. A
few months later, with the success of the Union at Station WIOD,
McGuire expressed pleasure at the failure to organize the respondent's
employees and apprised Handrich of the respondent's antipathy to-
ward unions by stating that Borton "hates to interview a union man."
When, in September 1940, the announcers were considering union
membership, MacKay attempted to dissuade Handrich from taking
that step by questioning the benefits to be derived, by imputing respon-
sibility to the Union for disrupting the "happy family" relationship
at the station, and by characterizing the Union as "sort of socialistic."
Handrich; however, chose to disregard the warning implicit in
the remark`s of his superiors and joined the Union. While'the other
announcers felt compelled to report their membership to Borton or
to discuss the Union with him, Handrich alone refrained from such
action. Thereafter, in October 1940, McGuire renewed her efforts
to undermine Handrich's confidence in the Union by accusations that
it was "socialistic" and in the control of a "bunch of racketeers."
Handrich nevertheless continued to defy the respondent's intrusion
on his right of self-organization. In December 1940, he cooperated
with the Union's representative in giving added impetus to the organi-
zational drive and in attempting to negotiate agreements with the
stations. He assumed office in the Union in May 1941 and attended
meetings of its board of directors. From August to October 1941, he
again assisted the Union's representative in the latter's efforts to
negotiate contracts with Station WVKAT and the respondent. As of
the date of, the representative's departure, only the respondent had
failed to enter into a contract with the Union. When, a short time
before his discharge, he was elected treasurer for a regular term, he
was the only employee at the repondent's station to hold office in the
Union.
That Handrich's, aggressive leadership in the Union was the sole
reason for his discharge is evident from MacKay's statement to Ansley,
who was being interviewed as a possible replacement for Handrich,
that Handrich's services would be terminated because he was "unde-
sirable" and a "trouble maker." The respondent's motivation is fur-
ther`apparent from McGuire's statement to Handrich on the day fol-
lowing his discharge that Borton had learned of adverse remarks
made about him by Handrich at'a union meeting. It is thus clear that
the respondent had determined to rid itself of the one employee who.
had defied its warnings against union affiliation and activity and
whose persistent efforts might otherwise have compelled it to follow
the example of the other stations by entering into an agreement with
the Union. We are convinced and find, as did the Trial Examiner,
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent discharged Handrich because of his union mem-
bership and activity.
Upon the basis of the entire record, we find that, by discharging
Handrich, the respondent has discriminated against him in regard to
hire and tenure of employment, thereby discouraging membership in
the Union and_ interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7'of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
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 the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Fred Handrich because of his union
membership and activity. To effectuate the policies of the Act; we
shall order the respondent to offer him full and immediate reinstate-
ment to his former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges, and to make him
whole for any loss of pay he has suffered by reason of the respondent's
discrimination by payment to. him of a sum of money equal- to the
amount he would normally have earned as wages from the date of the
discharge to the date of the offer of reinstatement, less his net earn-
ings during such period.'
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
I By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for the unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumbei Company and United Biotherliood of Carpenters and Joiners of
America, Lumber and Sawmill Worl ers Union, Local 2590, 8 N L. R. B. 440. Monies re-
ceived for work performed upon Federal , State , county, municipal , or other work-relief
piojects shall be considered as earnings ., See Republic Steel Corporation v. N. L. R. B,
311 U S. 7.
MIAMI BROADCASTING COMPANY
CONCLUSIONS OF LAW
271
1. The American Federation of Radio Artists, Miami Local, affili-
ated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment
of Fred Handrich and thereby discouraging membership in The Amer-
ican Federation of Radio Artists, Miami Local, affiliated with the
American Federation of Labor, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) 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.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to` Section 10 (c) 'of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Miami Broadcasting Company, Miami, Florida, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in The American Federation of
Radio Artists, Miami Local, affiliated with the American Federation
of Labor, or in any other labor organization of its employees, by dis-
charging any of its employees or in any other manner discriminating
in regard to their hire and tenure of employment or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board- finds will
effectuate the policies of the Act :
(a) Offer to Fred Handrich immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Fred Handrich for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to that which he would normally
have earned as wages during the period from the date of his discharge
to the date of the respondent's offer of reinstatement, less his net
earnings during such period;
(c) Post immediately in conspicuous places throughout its place of
business at Miami, Florida, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this^Order; (2) that the respondent will take the affirmative action
set out in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain members of The
American Federation of Radio Artists, Miaini Local, affiliated with
the American Federation of Labor, or any other labor organization,
and that the respondent will not discriminate against any employee
because of membership or activity in, any such organization ;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
_ MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.