Midland Broadcasting Co.Download PDFNational Labor Relations Board - Board DecisionsFeb 27, 195193 N.L.R.B. 455 (N.L.R.B. 1951) Copy Citation MIDLAND BROADCASTING COMPANY 455 MIDLAND BROADCASTING COMPANY and AMERICAN FEDERATION OF RADIO ARTISTS, KANSAS CITY LOCAL, A. F. OF L. Case No. 17-CA-17. February 07, 1951 Decision and Order On February 8, 1950, Trial Examiner Myers D. Campbell, Jr., issued his Intermediate Report in the above-entitled case, copy of which is attached, finding that the Respondent had not engaged in any of the unfair labor practices alleged in the complaint, and recom- mending that the complaint be dismissed in its entirety. The General Counsel and American Federation of Radio Artists, A. F. of L., filed exceptions to the Intermediate Report together with supporting briefs. The Respondent filed a brief and reply brief in support of the Inter- mediate Report. All parties participated in oral argument before the Board on September 8, 1950. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the briefs and exceptions, the contentions advanced at oral arguments, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. The General Counsel and the Union contend that the Respondent violated Section 8 (a) (5) and (1) of the Act by executing and con- tinuing in effect individual or "talent" contracts with its staff actors and singers, notwithstanding that the Union was the exclusive bar- gaining agent of such artists. In agreeing with the Trial Examiner's- finding that the Respondent did not violate the Act in this respect, we are particularly persuaded by the following considerations : Section 6 of the 1946 and 1948 contracts between the Union and the Respondent covering its staff artists expressly authorized direct negotiations between the Respondent and the artists.' The Union and our dissenting colleagues do not question the fact that, under the spe- cial circumstances present in this industry, these individual bargaining 1 Section 6 of the 1946 and 1948 union contracts reads as follows : . . . The Company agrees that no staff artist will be employed or engaged at Station KMBC upon terms and conditions less favorable to the staff artist than those set forth in Schedule I. . . . The Company further agrees that nothing in this contract shall be deemed to prevent any staff artist from negotiating for or obtaining better terms than the minimum terms provided herein . . . . ( 1946 contract ) The Company agrees that no full -time staff artist will be employed . . . upon terms and conditions less favorable to the full -time staff artist than those contained in this contract and Schedule I . . . and that the Company further agrees that nothing in this contract shall be deemed to prevent any full-time staff artist from negotiating for or obtaining better terms than the minimum terms provided herein. (1948 contract.) 93 NLRB No. 65. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provisions were themselves consistent with the Respondent's bargain- ing obligations under the Act. They are expressly limited, however, to the negotiation of better terms than those contained in the union contracts. Relying on this authorization, the Respondent negotiated individual, or "talent," con- tracts with its artists. Generally speaking, these talent contracts differed from the union contracts in that they afforded the artist an opportunity to earn a bonus over and above the minimum rates of pay guaranteed by the union contracts, but at the same time imposed cer- tain restrictions on the artist, designed in general to assure that the Respondent would receive the exclusive benefit of its investment in the artist. The General Counsel contends, however, that certain provisions of the talent contracts are less favorable than the union contracts, and that in negotiating and continuing such provisions in effect the Re- spondent has therefore exceeded the scope of its authority to negotiate directly with individual artists for better terms, thereby violating Section 8 (a) (5) and (1) of the Act. We do not agree that the present record supports that contention. Among the provisions of the talent contracts claimed to be less favorable are those relating to the artists' compensation. However, we agree with the Trial Examiner that the talent contracts, as admin- istered by the Respondent, have not had the effect of reducing any artist's pay below the union minimum. The General Counsel contends further that the talent contracts are less favorable in that they impose certain restrictions on the artist's freedom to sell his services on the open market, both during his em- ployment by the Respondent and for some time thereafter. Assuming that these restrictions are in derogation of the provisions of the union contracts, we nevertheless find that the General Counsel has not estab- lished by the preponderance of the evidence that, in negotiating or maintaining the talent contracts in effect, the Respondent exceeded the scope of its authority under Section 6 of the union contracts to bargain directly with its artists with respect to better or more favorable terms than those contained in the union contracts. , It is not sufficient, in our opinion, to show that a particular provision of the talent contracts, taken by itself, is less favorable than a particu- lar term of the union contract. The talent contracts are self-con- tained, collateral agreements, conferring certain benefits upon the artists'in the form of a bonus arrangement, in consideration for which the artists accept certain responsibilities and restrictions. If we were to strike down the burdensome provisions and leave only the bonus provisions of the talent contracts in effect, we would be making a new and different contract for the parties. That is not the function of this Board. MIDLAND BROADCASTING COMPANY 457 It is not without significance that while the union contract estab- lished grievance machinery, it does not appear from the record that the question whether the talent contracts are less favorable than the union contracts has been taken up by the Union, or by any artist, as a grievance. This is not the sort of controversy which Congress established this Board to consider or decide.2 We find, therefore, in agreement with the Trial Examiner, that the Respondent did not violate the Act by negotiating the talent contracts or by continuing them in effect. 2. We agree with the Examiner's finding that during the 1948 con- tract negotiations there was no refusal by the Respondent to bargain concerning changes in the talent contracts. We rely, however, solely on the following considerations : The Union does not contend that the Respondent refused during the 1948 contract negotiations to discuss the changes in the talent contracts; in fact, the Union asserts that the Respondent agreed orally during those negotiations to make certain changes in the talent contracts. The gravamen of the Union's case on this point is simply that the Respondent refused to put into effect the changes to which it had allegedly orally agreed . Assuming that there was such refusal by the Respondent to effectuate an oral agreement, that fact alone would not be sufficient evidence of a refusal to bargain. Section 8 (d) of the Act defines the obligation to bargain collectively as includ- ing the "execution of a written agreement incorporating any agree- ment reached if requested by either party" (emphasis supplied). Here there is no evidence that the Union requested the Respondent to reduce the oral agreement to writing. 3. The General Counsel contends that the Respondent , during the term of the 1948 contract, unlawfully refused to bargain with the Union concerning changes in the provisions of the talent contracts. The Trial Examiner made no specific finding on this point. The record shows that during April 1949, Union Representative Roberts requested a meeting with the Respondent to discuss terms of employment allegedly not covered by the union contract, referring specifically to the provisions of the talent contracts. On April 25, the Respondent, while maintaining that the Union's request was "improper" and "contrary to the express provisions of our existing agreements," agreed to meet for the purpose of explaining its position, and the parties met on April 27. The only evidence in the record as to what occurred at the April 27 meeting is contained in a letter of May 9, 1949, from the Union to the Respondent , in which it is alleged that after the Union stated its demands for changes in the talent contracts , the Respondent suggested 2 Consolidated Aircraft Corporation, 47 NLRB 694. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another conference. We cannot, however, consider such self-serving statements in a letter by the Union as competent evidence of what occurred at the April 27 meeting. Absent any competent evidence to the contrary, we will not infer that the Respondent, even assuming that it was required to do so at all, did not bargain in good faith on that occasion. We find, therefore, that it has not been established by the preponderance of the evidence that the Respondent unlawfully refused to bargain with the Union during the term of the 1948 contract concerning changes in the talent contracts .8 4. We agree with the Trial Examiner's finding that the discharge of Durkin was not due to union activity but to his frequent references to Respondent's management and policies in profane and abusive terms, and that his discharge was therefore not in violation of the Act. It is clear from the record that such references were made by Durkin, not only in connection with the discussion of grievances, but also on other occasions, and that they occurred, on at least one occasion, in the artists' lounge, which was open to the public. We are accordingly not required to decide in this case whether Section 8 (a) (3) would be violated by the discharge of an employee for using offensive language of the sort that Durkin indulged in, where such language is used only in connection with the presentation of grievances or other concerted activities. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that° the complaint in this case against the Respondent, Midland Broadcasting Company, be and it hereby is, dismissed. MEMBERS HOUSTON and STYLES, dissenting in part : We disagree with the decision of the majority of the Board in this case insofar as it finds that the Respondent did not violate Section 8 (a) (5) of the Act by negotiating, executing, and continuing in effect certain provisions of its individual contracts with its staff artists at a time when the Union was the acknowledged statutory bargaining representative of such artists. It is well settled that the statutory representative has the exclusive right to bargain for the employees it represents, and that any direct negotiations between an employer I In view of this finding , it is not necessary for us to consider whether the Union's proposed changes in the talent contracts constituted modifications in the terms of the existing union contract within the meaning of Section 8 (d) of the Act, which provides that the duty to bargain collectively "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period. . . . MIDLAND BROADCASTING COMPANY 459 and such employees is in derogation of that right, and hence violative ,of Section 8 (a) (5).' The Respondent contends, however, that various provisions in its 1946 and 1948 contracts with the Union authorized the Respondent to negotiate and execute all the provisions of such individual "talent" contracts. The Respondent relies principally on the following language of Section 6 of the 1946 and 1948 union contracts : ... The Company agrees that no staff artist will be employed or engaged at Station KMBC upon terms and conditions less f a- vorable to the staff artist than those set forth in Schedule I... . The Company further agrees that nothing in this contract shall be deemed to prevent any staff artist from negotiating for or obtaining better terms than the minimum terms provided herein. . . . (1946 contract.) ... The Company agrees that no full-time staff artist will be employed . . . upon terms and conditions less favorable to the full-time staff artist than those contained in this contract and schedule I . . . and the Company further agrees that nothing in this contract shall be deemed to prevent any full-time staff artist from negotiating for or obtaining better terms than the minimum terms provided herein. (1948 contract.) We construe these provisions as permitting the Respondent to negotiate and execute contracts with individual artists, but only insofar as they (1) relate to matters covered by the union contracts, and (2) provide terms more favorable than those contained in the union con- tracts. Under this view, negotiations by the Respondent with indi- vidual artists were not authorized by the union contracts if (1) they did not relate to matters covered by such contracts, or (2) they did relate to such matters, but involved terms not more favorable to the artist than the terms contained in such contracts. Such a view not only accords with our settled policy of construing strictly any waiver by a union of its rights under the Act," but also constitutes the most reasonable interpretation of the meaning of the foregoing quoted provisions. There can be no question that such provisions did not authorize the negotiation of an individual contract provision which, while relating to a matter covered by the union contract-such as wages-was not more favorable than the terms of the union contract. The union contracts are unequivocal on this point. As to matters not covered by the union contracts-e. g., the artists's property right in his own compositions, his right to seek other em- ployment after leaving Respondent's employ-there was no warrant 4 J. I Case Co v. N L. R. B , 321 U. S 332 ; Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678. See Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342. 0 Tide Water Associated Oil Company, 85 NLRB 1096. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the union contracts for any negotiations whatsoever on these sub- jects. The Union had consented only to the negotiation of "more favorable" terms than those contained in the union contracts. This test necessarily implied in our opinion that the negotiations must re- late to matters which were susceptible of comparison with some term of the union contracts; otherwise, the requirement that the terms negotiated with individuals be more favorable than the collectively bargained terms would be meaningless. Clearly, it would be impos- sible to determine whether a provision in a talent contract which had no counterpart in the union contracts was,more favorable than any- thing in the union contracts. Consequently,, it is clear that the only way to give effect to the "more favorable" test in the union contracts is to construe those contracts as permitting individual bargaining only with respect to matters covered by the union contracts, and as to those matters, as already stated, the bargaining must be limited to terms more favorable than those contained in the union contracts. Under the circumstances of this case, we believe that the Union might, if it wished, effectively waive its exclusive bargaining rights to the limited extent indicated in Section 6 of its contracts with the Respondent,e and that the Respondent was free, within those limits, to bargain directly with individual artists. However, we find that the Respondent exceeded those limits by bargaining for, and incorpo- rating in the talent contracts, provisions which were either less favor- able than comparable provisions in the union contract " or which related to matters outside the scope of such contracts.' J I Case Co, supra. Oi der of Railroad Telegraphers v Railway Express Agency, Inc, supra Consent by the Union in its contracts to individual bargaining for better terms than those provided by the union contracts presumably reflects recognition by the Union of the gieat differences in the earning power of radio aitists In J I Case, the court said Of course. when theio is great variation in circumstances of employment or capacity of eniplovees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. (321 U S at p. 338 ) 4 Illustrative of this type of provision are the following (1) Under some of tin. talent contracts the aitists are required to work 40 hours for the same pay as the uriou contract provides for a 28-hour week, with less tavorable overtire rates than those fixed by the union contracts. In most of the talent contracts there is no limitation on the Rorkweek and no provision for overtime. (2) The union contract grievance procedure provides for arbitration of disputes by arbitrators selected and paid jointly by the Union and the Respondent. Paragraph 10 of the talent contracts provides that disputes as to the determination of an artist's bonus are to be determined by a public accountant selected by the Respondent and paid by the artist 8 Illustrative of this type of provision ate the foiloiimg (1) Paragraph 15 of the talent contract prohibits the artists from accepting other employment during the term of the contract, and from working within a radius of 150 miles from Kansas City, Missouri, for a period of 12 months after leaving the Respond- ent's employ. In at least one case, the Respondent brought injunction proceedings against one of its artists to enforce this restriction. (2) Under paragiaphs 4 and 5 of the talent contracts any material composed by the artists ahile in the Respondent's employ becomes the property of the Respondent. (3) Paragraph 3 of the talent contract recognizes the Respondent's right to assign fictitious air names to the artists The union contracts, while acknowledging the Re- spondent's pioperty right in all air names used by its employees, do not grant the Respond- ent the right to assign fictitious air names to its artists. MIDLAND, BROADCASTING COMPANY 461 4 The majority holds further that it is not sufficient to show that certain provisions of the talent contracts may be less favorable to the artists than corresponding provisions of the union contracts, be- cause the contracts also confer certain benefits upon the artists. We know of no basis for this view. The union contracts forbid the nego- tiation of less favorable "terms and conditions" of employment, and authorize the negotiation of better "terms," than the union minimum. Under this language, the negotiation of any "term" of employment, which was not more favorable than the union minimum would violate the union contracts. In the parlance of labor relations each distinct provision of an employment contract is a term of employment. Thus, when a con- tract embodies a number of clauses, one relating to wages, another to hours, a third to seniority, etc., each such clause is deemed to be a term of the employment relation .9 We believe therefore that, in drafting section 6 of the union con- tracts, the parties intended to preclude the negotiation of any pro- vision which, in itself, was not more favorable to the artist than the union contracts, and did not intend to permit the negotiation of such a provision upon the condition that the Respondent simultaneously agreed with the individual artists on other provisions, the sum of which was more favorable to the artists than the union contracts. And, unlike the majority, we can attach no significance to the fact that no grievance may have been filed under the union contract on the issuance of whether the talent contracts are less favorable than the union contracts.10 We would find, therefore, that the Respondent violated its statutory duty to bargain with the majority representative by negotiating provisions in the talent contracts which were less favorable than the union contracts. Contrary to the assumption of the majority, such a finding would not require that we engage in the function of rewriting the, talent contracts for the parties. Our order need merely direct the Respondent to cease and desist from engaging in the conduct found to be unlawful and to bargain with the Union on the inclu- sion in future talent contracts of provisions not authorized by the existing union contract 11 Intermediate Report Margaret L. Fassig, and Martin Sacks, Esgs., of Kansas City, Mo., for the General Counsel. 9 See the language of Section 8 (d) of the Act, which refers to collective bargaining "with respect to wages, hours, and other terms and conditions of employment." [Emphasis supplied.] 10 The power of the Board to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Section 10 (a) of the Act. " See, e g, Central Metallic Casket Co., 91 NLRB 572. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oscar S. Brewer, Charles F. Lamkin, Jr., and Dupuy G. Warrick, Esqs., of Kansas City, Mo., for the Respondent. John J. Manning, Esq., and Don Roberts, of Kansas City, Mo., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed December 29, 1947, by American Federation of Radio Artists, A. F. of L., herein called the Union, the General Counsel of the National Labor Relation Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued a complaint, dated June 28, 1949, against the Midland Broadcasting Company, herein called the Respondent. The complaint alleged that the Respondent had engaged in, and is engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Managament Relations Act of 1947, 61 Stat. 136, herein called the Act. Copies of the complaint, the amended charge, and the notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that the Respondent discharged Sherwood Durkin on or about December 18, 1947, and thereafter failed and refused to reinstate him for the reason that he joined or assisted the Union, the American Guild of Variety Artists, A. F. of L., or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection; (2) that at all times material hereto and prior to August 19, 1948, the Respondent interferred with, restrained, and coerced its employees by (a) entering into, modifying, and continuing in effect individual employment contracts with its employees who are in the collective bargaining unit; (b) entering into, modifying, and continuing the individual employment contracts during the period of time that the Union has been the exclusive bargaining representative of the employees in the bargaining unit; (c) estab- lishment of terms and conditions of employment in conflict with, dissimilar to, and less favorable to employees than those established by the collective bargain- ing agreements between the Union and the Respondent covering the employees in the said unit ; (d) entering into, renewing, or continuing in effect the in- dividual employment contracts without giving the Union an opportunity to be present at the time thereof; (e) entering into, renewing, or continuing in effect said contracts by bargaining directly and individually with its employees, con- cerning rates of pay, wages, hours of employment and/or other conditions of employment; (f) unilaterally modified terms and conditions of employment of employees in the said unit by the assignment of fictitious names without consult- ing the Union; (3) that, the Respondent refused to bargain in good faith with the Union concerning all terms and conditions of employment of special program announcers, by refusing to discuss and reduce to writing any terms or conditions of employment, other than wages and union security, concerning said special program announcers; and (4) that the Respondent, by acts described above, violated Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act. The Respondent duly answered and admitted certain jurisdictional facts and that the Union had been designated as bargaining representative of its em- ployees in an appropriate unit, but denied it had refused to bargain with the Union, or that it had engaged in any unfair labor practices. Respondent also set forth in its answer specific affirmative defenses germane to the allegations set forth in the complaint. Pursuant to notice, a hearing was held in Kansas City, Missouri, from July 11 to 20, 1949, inclusive, before the undersigned Trial Examiner, duly designated MIDLAND, BROADCASTING COMPANY 463 by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel and participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the General Counsel's case, the Respondent filed formal motions to strike certain testimony and documentary evidence, and to dismiss the complaint, and orally argued the motion to dismiss. The undersigned reserved ruling as to some and denied the others. At the close of all the case, the Respondent renewed the motions and the undersigned made the same rulings. The General Counsel moved the amend- ment of the pleadings to conform to the proof with respect to immaterial vari- ances, which was granted without objection. The Respondent orally argued its motions and the General Counsel waived oral arguments. The motions on which ruling was reserved are now disposed of in accordance with the considerations, findings, and conclusions herein. All parties were granted time for filing briefs and proposed findings of fact and conclusions of law. A brief was filed by counsel for the General Counsel and brief and proposed findings of fact and conclusions of law by counsel for the Respondent.' The briefs and proposals have been carefully considered. Upon the entire record in the case and from his observations of the witnesses, and consideration of the contentions of counsel, the undersigned makes the following : FINDINGS OF FACT 2 FINDINGS OF FACT2 The Respondent, Midland Broadcasting Company, a Missouri corporation, with its principal office and place of business at Kansas City, Missouri, is and has been engaged in broadcasting network and local radio programs, sale of radio time, preparation, production, and transmission of radio programs and broadcasts. It owns and operates studios and broadcasting facilities ; stations KMBC, and KMBC-FM at Kansas City, Missouri, and KFRM at Concordia, Kansas, under authority of the Federal Communications Commission. It operates KMBC Artists Bureau for booking its radio artists for public performances. It broad- casts programs which originate outside the State of Missouri and is an outlet for the Columbia Broadcasting System, a national radio network. The Re- spondent sells radio advertising valued in excess of $100,000 annually, of which more than 50 percent is sold to customers located outside the State of Missouri. The Respondent admitted and the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II, THE ORGANIZATIONS INVOLVED It was agreed and the undersigned finds that American Federation of Radio Artists, Kansas City Local, A. F. of L., is a labor organization admitting to membership employees of the Respondent. It was also agreed and the undersigned finds that American Guild of Variety Artists, A. F. of L., is a labor organization within the meaning of the Act. I Time for filing briefs was extended and the briefs were received September 30, 1949. Respondent filed a reply brief on October 7, 1949 2 In making the findings herein , the undersigned has considered and weighed the entire evidence and the contentions of the parties. It would needlessly burden this report to separately evaluate all of the testimony on the few disputed points. Such testimony or other evidence 'that conflicts with the findings herein is not credited. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement 3 The Respondent's principal office and place of business is in Kansas City, Missouri, and it operates studios and broadcasts by radio over stations KMBC, KMBC-FM, and KFRM, under authority of the Federal Communications Com- mission. It also operates KMBC Artists Bureau for booking radio artists for public performances, and is an outlet for CBS. It had been the policy and practice of Respondent for several years prior hereto to employ radio announcers, actors, and singers on a probationary basis pending development of the individual's talent, value, and appeal to the radio listening public. This included the prospect of sale of talent to customers buying radio time for advertising and other purposes. The expense to Respondent and the time necessary for talent development is not clear in the record, but it is clear that it varied in individual cases. Contracts between the individuals and the Respondent were executed for the protection of both parties. In early 1946, AFRA Kansas City local was organized to represent radio artists in that area, and after negotiations with Respondent executed a contract dated June 1, 1946, which was effective May 15, 1946, through the last day of Febru- ary 1948. The contract was to remain in effect from year to year from the first day of March through the last day of February unless changed or terminated as provided therein. The contract provided for ratification by the national executive secretary of the Union. That was accomplished as of the date of contract. On June 1, 1946, all of the parties also executed a letter which modified the contract in respect to the exclusion from coverage thereunder of certain em- ployees, and on the same date executed a letter which stated Respondent's policy in respect to voice, transcriptions, and character of broadcasting. That letter also contained a paragraph, to which all parties agreed, that "It, of course, is understood that air names of all persons employed by KMBC remain the property of KMBC and could not be used in any outside work." As provided therein, the contract was opened after notice, on March 1, 1947, for discussion of wages and fees, and after negotiations were completed, an amendment was executed by all the parties under date of March 31, 1947, and became a part of the contract of June 1, 1946. The amendment settled the minimum salary of staff artists, staff announcers, and staff actors and singers (singles). The June 1, 1946, contract as amended remained in effect until a new contract was negotiated and entered into over the signatures of the local union representa- tive, the national executive secretary of the union, and the Respondent under date of August 19, 1948. The same parties executed a contract covering all regu- lar staff continuity writers, and also five more letters dated August 19, 1948, respecting Respondent's policy and certain employees, job classifications, and wage scales These specific matters will be discussed later in this report. B. The alleged refusal to,bargain 1. The appropriate unit and representation by the Union of a majority therein It was not disputed and the undersigned finds that all full-time staff an- nouncers, full-time staff actors, and full-time staff singers, excluding all musicians and all supervisory personnel (Managing News Editor, Farm Director, Director 8 This statement is based upon undisputed evidence and exhibits adduced at the hearing, but does not include all that was presented. Other undisputed evidence and exhibits will be discussed in relation to appropriate parts of this report. MIDLAND BROADCASTING COMPANY , 465 of Education and Research, Director of Sports, Director of Home Economics, etc.) and excluding all persons primarily engaged in education, public service, farm and youth programs, and activities and persons who appear on programs of a quasi-governmental, religious, political, educational, and civic nature, and excluding all special program announcers except as to minimum weekly wage scale, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. It was also not disputed that at all times material hereto, the Union has been and now is the duly designated representative of the employees of the Respondent in the afoiesaid bargaining unit. The undersigned therefore, finds that at all times material hereto, the Union was, and now is, the duly designated bargaining representative of the employees in the appropriate bargaining unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 2. The Union contracts Collective bargaining negotiations between the Union and the Respondent were started in the spring of 1946, and carried to conclusion of contract on June 1, 1946. There is no evidence of animosity or serious dispute on the part of either party, and when in March 1947, the agreement was opened for discussion of wages and fees as provided therein, the amendment of March 31, 1947, resulted, and became a part of the June 1, 1946, contract. Again there is no evidence of animosity or serious dispute between the parties. A dispute on interpretation of the contract arose in the fall of 1947. At that time, the Union complained of disparity of contracts in relation to a few preprogram contracts, which had been effected between individuals and the Respondent The Union presented its complaint as a grievance and after meetings with Respondent's officials, the grievance was settled by the cancellation of those specific individual preprogram contracts, as demanded by the Union, effective December 15, 1947, before the charge in this case was filed on December 22, 1947. As those grievances were settled in accord with the demands of the employees and their bargaining repre- sentative, before any charges had been filed with the Board, the undersigned finds that the said preprogram contracts are not a proper subject of complaint after settlement has been effected. Don Roberts, executive secretary of the Kansas City Local of the Union, opened the negotiations for a new collective bargaining agreement with the Re- spondent's officials in March 1948, and clearly reached the bargaining stage on or about June 14, 1948. Thereafter 16 negotiation meetings were held or sched- uled and an agreement was reached on or about August 18, 1948 The agree- ments were reduced to writing on August 19, 1948, and signed by Roberts and the Respondent on August 20, and forwarded to National Executive Secretary George Heller, who advised by telegram August 28, 1948, that the contract had been ratified by the national board of the Union and countersigned by him Also under date of August 19, 1948, a contract was executed covering all regular staff continuity writers, and five letters were executed by the Union and Re- spondent and countersigned by Heller, covering classification of one employee as a special program announcer, and clarifying and modifying the contract in certain specified respects. The wage scale was agreed on a minimum rate per week based on length of service from 0 to and including "after 24 months." Roberts testified as to the contract : It is in writing by virtue of the union contract, as far as I am concerned, "It is not an oral agreement," and, "I think this contract covers everything quite sufficiently." 943732-51-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts was asked if the purpose of this proceeding was to get the Board to write a contract for the Union that the Respondent refused to write, and answered : No, my position is exactly this-I have tried for a long time to write con- tracts at KMBC ; I thought they covered everything ; I thought they made null and void the individual employment contract. But from time to time we have things occur, such as the Don Sullivan discharge; and so on, which convinces me that the union contract isn't any good. So I don't want to strike the Company;' we could do that easily. We are going to negotiate again shortly.6 I don't want to get into that position. So I am trying this method' to work out some agreement where the individual employment contract would be modified in accordance with 8 the union contract. 3. The talent contracts For years prior to the advent of the Union, the Respondent had entered into individual talent contracts with employees it engaged as radio announcers, actors, and singers. By reason of the nature of services to be performed by the individual artist and the nature of Respondent's business, it was an established custom to contract for 5-year periods subject to the right of cancellation upon certain stated contingencies. In some cases the artist and the Respondent entered into a talent option contract for a short period of time preliminary to entering into the long-term talent contract. The consideration is set forth as salary or wages on a weekly or monthly pay- ment basis and in most instances on a graduated scale upward for each year the contract remained in effort. In addition to the salary or wage, the talent con- tract provided that the employee be paid one-half of the net amount the Respondent received from the sale of the employee's services to others for par- ticipation in shows, broadcasts, motion pictures, electrical transcriptions, scripts, and features. The net amount was determined after cost of development, pro- duction and sale, and deduction of the amounts advanced to the said individual. The Respondent maintained books and records of the payment of salary or wages to each employee and the detail of all expenses of the development pro- duction and sale above stated. At the end of each year, the Respondent prepared a statement of the account of each employee called "Memo Account." The memo account set forth the debit balance as of the beginning of the year and set forth the employee's credits and debits, losses, debit balance, advances against the account for the year involved and the balance due the employee at year's end if the employee was entitled to participate in the income from said employee's service, over and above the salary or wage paid as provided in the talent contract. It was not disputed that employees received a memo account statement with the payment to them of the amount of money over previous payments at the end of the year. Others could obtain them on request and some of the witnesses in this case had secured them on request even though no extra payment was due at the end of the year. The Sullivan discharge is not involved herein. The contract provides "As long as this Agreement is in effect, the employees shall not strike not picket the Company of its property , nor fail to comply with the terms of this Agreement and likewise the Company shall not cause any lock-out and shall observe the procedure herein set up foi the settlement of controveisies hereunder " 8 Effective date of contract March 1, 1948 , thiough last day of February 1950. 4 Determination of charges of unfair labor practices 8 The contract provides that changes may be made at any time by mutual consent but either party desiring a change must notify the other in , writing at least 60 days prior to March 1, 1950. MIDLAND, BROADCASTING COMPANY 467 4. The issues The complaint alleged and the Respondent admitted that it had "at all times material hereto entered into, modified , and/or continued in effect individual employment contracts with its employees who are in the collective bargaining unit described . . . above." This referred to the talent contracts described above. It was also alleged and admitted that Respondent 's actions in that regard were continued during the period of time that the Union has been the exclusive collective bargaining representative of the employees in the bargaining unit described above. The Union contended that the talent contracts were less favorable to the employees than the union contracts , and that said contracts were entered into, modified, and continued in effect without notice to , approval of, or bargaining with, the Union. The Respondent contended that its talent contracts were not less favorable to the employees because it had paid to its employees at least as much as the minimum rate of salary or wages as set out in the union contract , and other provisions of its talent contract were authorized by that contract, including the right to negotiate with the individual and without notice to , or approval of, the Union. Some of the talent contracts introduced in evidence were in effect prior to, and were to remain in effect after the term of, the union contract. Both contracts provided for a minimum wage or salary. J. Noland Franz, comptroller and administrative assistant of Respondent, testified credibly that immediately upon effect of the union contract, he issued instructions 0 to increase the wage scales in conformity with and as set forth in the contract. The fact that all salaries and wages were adjusted to conform with the union contract of August 19, 1948, was not disputed by any of the employees that testified in this case Roberts testified that the employees actually "received in dollars" the amount of salary or wage agreed upon in the union contract. The union contention that the talent contracts and the "Memo Accounts" were less favorable to the employees than the union contract was based upon the union interpretation of those two instruments. Roberts testi- fied that "by that I mean that he (Cirotto) is given maybe his hundred dollars a week in salary, but immediately it is entered as a debit on his memo account, and if he doesn't do enough commercial shows, he owes the company that money at the end of the year, and if the contract is valid, the company can collect the money. So has he been pair the scale or not? In my opinion, no." Cirotto's memo account 30 was introduced in evidence, identified by an official of Respondent Company and Cirotto himself, called as a witness for the General Counsel. Cirotto was not interrogated at all about his contractual relations with the Respondent or about his salary or wages. The undersigned therefore turns to the exhibits and finds that he was paid a salary of $5,065 in 1948, and his talent contract" executed June 1, 1945, for a period ending May 31, 1950, shows his weekly wage minimum to be $57.50, which is obviously less than the amount he actually received. His base wage was increased to $100 per week by the union contract of August 19, 1948, and Respondent immediately complied therewith but did not change that physical provision of the talent contract. Franz testified that where salaries were less than the union contract called for they were immediately adjusted upward to the correct figure and where 0 Respondent ' s Exhibit No. 19. 10 General Counsel ' s Exhibit 28-F 11 General Counsel's Exhibit No. 24. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the salary was in excess of the contract figure it remained at that figure and was not revised downward. He further testified that the memo accounts are solely the manner in which the company maintains a record of whether or not the employee is entitled to participate, and where it shows a debit balance there is no claim on anyone. Caroline Ellis, a member of the Union, employed by Respondent for many years as a commentator on women's events, testified credibly that she received the salary guaranteed by her talent contract and would not be expected to pay any money back to the employer where the memo account showed a "deficit." She performed a radio program which was sponsored by General Mills, who paid the Respondent for her services and that pay was divided be- tween her and the Respondent in accord with the provision of the talent contract. Arthur B. Church, president and treasurer of the Respondent, testified credibly that the memo accounts were instituted to show that the employees "if they reach a successful stage they share with me fifty-fifty in the profits of their endeavors, in addition to their salary," and if the memo accounts were can- celed the employees went solely under the union contract they would receive substantially less money. James K. Fulkerson, a member of the radio team called the Lazy River Boys, testified credibly that his talent contract provided for a wage of $60 per week and he was getting what the contract called for and had received as much as $100 a week. The payment was for personal appearances added to the $60 salary. The undersigned is convinced and finds that the talent contracts and the memo account bookkeeping method of determining the amount of participation due the -employee, if any, which was set up in accordance with said contract, did not establish less favorable rates of salary or wages than the union contract. There is no forum that would require any employee to return his wages or salary to the Respondent under the talent contract and the memo account.13 The complaint alleged that the Respondent refused to bargain in good faith with the Union concerning the individual talent contracts. Roberts testified that the first such contract be obtained was in December 1947, although he had requested a copy from Respondent in April 1946. The Respond- ent introduced two letters 13 addressed to Roberts which discussed the talent contracts and the one of March 8, 1947, stated the Respondent was placing a singer and a newscaster under contract, and the letter of January 16, 1947, stated the Respondent was "in the process of employing John McDermott as spe- cial events Director replacing Gene Dennis whose talent contract with us expires as of February 28, 1947." Roberts was interrogated as a witness. "Q. Did you have more than one conversation with Koerper regarding the talent contracts of the company?" "A. Yes, we did. I would say three or four conversations relating to the contracts, between July and August 19, and we finally signed the agreement." 14 The talent contracts provided that Respondent had the right to assign fictitious names or characters to its performers and that such "air names" remain the property of the Respondent. The Respondent assigned air names to the members of the radio group Lazy River Boys and Roberts presented their objection to the Respondent and was advised that Respondent could not alter the decision with respect to air names. "Both the talent contract and the meno account could, in the opinion of the under- signed, be more clearly explicit as to the nonliabihty of any employee to owe or repay to the company any of the money paid as salary or wages. 13 Respondent's Exhibits 17 and 18. 24 The union contract of August 19, 1948. MIDLAND' BROADCASTING COMPANY 469 The union contract of 1948 provided that "It, of course, is understood that air names of all persons employed by KMBC remain the property of KMBC and could net be used'in any outside work." With reference to the allegation of refusal to consult with or bargain with the Union concerning the assignment of fictitious names to employees, Roberts testified, "Q So you did negotiate about it, didn't you?" "A. About air names?"' "Q. I mean about air names, yes." "A. -Yes." and also stated, "I had no reason to contest the company's right to keep the air names which it had assigned or might assign." Gladys Rose Floris, employed by the Respondent as director of home economics, testified credibly that she was given a copy of the talent contract to study before she was employed and told to take it to her room where she would have a chance to study it carefully. She advised Respondent that she did not want to sign it and returned to Ohio. She had discussed the possible assignment of an air name and at a later date, when she decided to accept the talent contract, she was assigned the air name of Sally Baker, and worked for Respondent until she resigned on July 1, 1949, effective August 16. Other employee witnesses testified without dispute that they "went over" the talent contracts in full before they signed them, and that they had each received the amount called for by that contract in wages or salary, and were paid for certain other work over and above the amount. The union contract of August 19, 1948, agreed that : 2. The Company has the sole and exclusive right to plan, control and direct the operations of its radio and television stations, to hire, discharge, promote employees and to supervise and direct the employees in their work; to determine their qualifications with respect to experience, training and fitness, their competency and the number to be employed. 3. The Company agrees that during the term of this Agreement, every artist covered by Paragraph 1, above, excluding free-lance artists, will be employed by it directly, . . . If at any time during the probationary period such 1 artist is not satisfactory to the Company, the Company may at any time during the probationary period terminate the services of such artist without notice. 4. AFRA agrees to accept as member of AFRA any artist the company wishes to employ or use, as provided above, subject to the imposition of terms and penalties in the case of members suspended or expelled by AFRA. AFRA agrees, however, that if it suspends or expels a member who is em- ployed by the Company, such suspension or expulsion shall not affect the obligation of the staff artist to perform then existing contracts for the dura- tion of the contract between the Company and the artist, or the Company's right at its option to demand performance thereof, or the Company's right to continue the employment of such artist, provided however, such artist must pay, or tender payment, to AFRA the standard dues paid by regular members of AFRA during such period. 6. . . . the Company further agrees that nothing in the contract shall be deemed to prevent any full-time staff artist from negotiating for or obtaining better terms than the minimum terms provided herein. If the compensation or the hours now had by any full-time staff artist are more favorable to such artist than the compensation or hours herein specified, then this contract shall not modify any more favorable compensa- tion or hours now enjoyed by any such artist, but the Company reserves the right to alter, amend, modify or change any such arrangement, provided such alteration, amendment or change does not reduce the same below the minimums specified in Schedule I hereof. (Wage schedule.) - , 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9 . . . Any employee shall give the Company two (2) weeks written notice of his intentions to terminate his employment under this Agreement. The only exception to this provision shall be in the event of a written agree- ment between the Company and the artist providing otherwise. 12. No deductions, directly or indirectly, by way of commission or other- wise may be made by the Company . . . by which any staff artist shall receive less than the minimum established by this Agreement , such mini- mum being net to the said staff artist, except for withholding or deductions which are authorized by law, or agreed to by the employee. It is clear that the contract provided that the Respondent was given the right to employ talent and enter into individual talent contracts unilaterally, and it has not been shown in this case that the talent contracts interfered in any way with the collective bargaining rights of the employees. It is so found.15 There is no better known field of industry for the exercise of the right by the employee of making an individual talent contract than that of radio entertain- ment, where the sole value of the employment relation rests upon the individual performance value to the radio listening public. The contract defined "Special program announcers " and stated that they "do not come within the scope of this Agreement " except as to wages and union security . That subject *as bargained and was settled in the contract. The contract of June 1, 1946 , contained most of the provisions set forth above and in March 1948, the Union and the Respondent began to meet and discuss terms of the new contract . As found above , there were 16 negotiation meetings and Roberts ' testimony together with the consideration of the terms and pro- visions of the contract of August 19, 1948, convinces the undersigned and it is found that Respondent bargained with the Union on all points of issue raised by the Union . The Respondent did refuse to agree to some of the demands made by the Union ; nevertheless the parties did reach an agreement , reduced it to writing , and signed it. It is found that the action of the parties settled the issues 19 The undersigned makes no finding upon the contention of the Union that a "side" or "oral " agreement was made between the parties at the time of signing the contract for the reason that the contract itself made any such agreement null and i oid where it provided , "However, changes may be made at any time by mutual consent. Any changes agreed upon shall be reduced to writing, signed by both parties hereto and approved by the National Executive Secretary, the same as this Agreement ." No such agreement in writing was produced in this record. The definition of collective bargaining set forth in'Section 8 (d) of the Act placed duties and responsibilities on employers and unions alike. It was not disputed that the Respondent met and conferred with the Union many times and that the Respondent refused to concede on all points . There was no credible evidence that Respondent refused to bargain in good faith unless that failure to concede may be so construed. 15 "Care has been taken in the opinions of the Court to reserve a field for the individual contract , even in industries covered oy the [Act], not merely as an act or evidence of hiring, but also in the sense of a completely individually bargained contract setting out terms of employment, because there are circumstances in which it may legally be used, in fact , in which there is no alternative ." J. I. Case Company v. N. L. R. B., 321 U. S. 332. 16 The Board may not shape the course of negotiations between employees and em- ployers so long as the employer bargains collectively in accordance with the Act. N. L. R. B . v. P. Lorillard Co., 117 F 2d 921 ; Singer Mfg. Co. v. N. L. R. B., 119 F. 2d 131. MIDLAND, BROADCASTING COMPANY 471 Consideration of the evidence on the record as a whole convinces the under- signed that the Respondent did not, at any time, fail or refuse to bargain col- lectively' in good faith with the Union, and did not interfere with, restrain, or coerce its employees in the exercise of the rights guaranteed them in Section 7 of the Act. C. The discharge Sherwood Durkin was employed by the Respondent as a station announcer in 1942 and at that time signed an individual talent contract. After service in the Army, he returned to the employment in November 1945, and was a staff an- nouncer until his discharge on December 18, 1947. He joined the APRA union in February 1946, became a member of the board and shop steward, which posi- tion he retained during his employment. He was elected president of the local in February 1947, and attended 7 to 10 meetings of the negotiations with Re- spondent which culminated in the March 1947 amendment to the June 1, 1946, union contract. Durkin's duties as shop steward included the presentation of grievances and the record is clear that he presented numerous grievances during his time in office. Many of the grievances he presented, however, were his own personal grievances. It was his practice to present the matters to Roderick Cupp, the program director, or to James McConnell, head of the Artists Bureau, and if no settlement was made to his satisfaction he then referred the matters to Don Roberts, executive secretary of the local. It was customary for Roberts to deal with the management of Respondent Company, as neither Cupp nor McConnell had authority to settle grievances. Durkin presented his preference for a change in work shift to Cupp, according to his own testimony, over a long period of time, and his demand for extra fee for doing sportscast at least 10 times. It is clear that Durkin exhibited anger during many of his conferences with Cupp in the discussion of grievances, but there is no evidence that he engaged in the use of profane and obscene terms prior to November 1947, as set out later. After his discharge, Durkin instituted a civil suit against Respondent because of his discharge and his deposition was duly taken in that case and referred to herein. In that deposition in reference to his anger, he answered, "A. I was provoked to that anger by the said Mr. Cupp on many occasions." Durkin was given a wage raise in 1946 and another at the time of the contract amendment in March 1947. Then in June 1947, he suggested a program and presented the script," for which he was praised by the management and his efforts encouraged. On November 4, 1947, Durkin left his shift early in violation of rules and Cupp advised Karl Koerper, vice president and managing director, of the insub- ordination and recommended "that Sherwood Durkin be discharged for such insubordinate act this afternoon." Koerper wrote a memorandum to Durkin on November 5, 1947, where he warned that if Durkin again left his assignment without permission his employment would be terminated. That memo also stated, "There are other reports concerning you which I should like to discuss with you as soon as we can arrange a time to fit both your and my schedule." '8 Durkin acknowledged the memo on November 6, 1947, to Koerper and after admitting that he had left the station before end-time of his shift, stated that he imagined the other reports concerning him. "I am fully aware that I, as AFRA and AGVA's representative here, am right in the middle of a lot of talk" and said he would "Respondent's Exhibit 21 Is Respondent's Exhibits 11 and 16. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss the reports. The discussion did not take place, and nothing was done, as the Respondent preferred to give Durkin another chance. Karl Koerper, vice president and managing director for Respondent, testified credibly that the "reports" mentioned in his memo to Durkin on November 5, 1947, were the reports he had been receiving from Cupp after conferences with Durkin since the summer of 1947 that verbal clashes between them were becoming more intense and Cupp was complaining of Durkin's attitude, and reported in November that Durkin had started using profanity. Durkin as a witness was asked about and testified, "I might have." Koerper further testified that later on Durkin, in some instances, directed the profanity toward him, and that Cupp reported to him that the profanity was later directed against company policies and the management, and against Cupp personally. The fact that in November 1947 Durkin used profanity and directed it toward Cupp, Koerper, and the management was supported in the record by the credited testimony of Roderick Cupp, the program director, and Kenneth Krahl, studio director and member of IBEW. Cupp testified that during the latter part of 1947 after a meeting Durkin, on leaving, turned to him and said "you will hear from me about this, you s. o. b., you wait and see," and that Durkin referred to Koerper as a brainless b- on several occasions. Cupp did not report that to Koerper at first, but eventually in late 1947 told Koerper that Durkin was being abusive, or argumentative, and was using profanity as regards the Company and its officers. Krahl testified that his office was located 20 to 30 feet, from the artists' lounge where he could hear Durkin make the obscene statements about the Company and on one occasion heard Durkin make the obscene statement in his office. There is no doubt that the statements made by Durkin as recited by these and other witnesses were profane and obscene. They will not be repeated here as they are in the record. It was not disputed that Durkin was active in union affairs and in the organi- zational efforts for the American Guild of Variety Artists Nor was it disputed that he was active in the presentation of grievances. The Respondent contended that none of the activity had anything to do with the discharge. George Heller, national executive secretary of the Union, testified credibly that Koerper called on him in New York, New York, in March 1947, "and we had what I imagine was a rather pleasant 20 minutes, I think it was about 20 minutes"; that he (Koerper) indicated that the attitude of the shop steward at KMBC was over-enthusiastic ; that he also had some trouble with Don Roberts and that he complained about the rather attentive manner in which the shop steward took care of matters at K111BC. Koerper did not mention the name of the shop steward. Durkin testified without dispute that he was active in organizational work for the American Guild of Variety Artists beginning in September 1947, and dis-' cussed that organization with Cupp and McConnell on numerous occasions, but did not know whether or not Koerper or Church knew about it. If there was any evidence of union animus on the part of Respondent, that could raise a presumption that the discharge may have been caused in part at least by that union activity. However, there was no showing of such animosity and it is clear that the Respondent did have a valid and sufficient reason for the discharge of Durkin when he left his post without permission and admittedly could have been discharged therefor on November 4, 1947. Respondent did not exercise its plain right to discharge Durkin at that time, and did not discharge him until about 6 weeks thereafter. During that 6 weeks the reports of the use of profanity and the expression of obscene terms in connection with the Respondent and its officers were made to Church, the Respondent's president. MIDLAND, BROADCASTING COMPANY 473 Church testified that "the thing that immediately precipitated his discharge was the matter of reports that had come to me and statements made to me that Durkin had made defamatory statements concerning the organization and its officers quite a number of times to a number of people , and in some cases ap- parently in front of other people who were not officers and managers of the company." He asked Durkin to resign and on refusal , discharged him on December 18, 1947. The Board held in an early case that "an employer has a right to discharge an employee for using obscene language in his plant if he sees fit to do so. The Act is not designed to deprive him of such rights." 19 The Board and courts have broadened that statement in numerous cases since and have held that an em- ployee may be discharged by the employer for a good reason, a poor reason, or no reason at all, so long as the terms of the statute are not violated .20 Moreover, it matters not that for reasons apart from union activity an employee deserves summary discharge if as a fact the reason was union activity.21 Conclusion There is undoubtedly an inference that Respondent desired to rid itself of one so' aggressive in his efforts to advance the cause of his union . Such inference, however, in the opinion of the undersigned , is more than offset by a combination of factors supporting Respondent 's position , among them the paucity of proba- tive evidence tending to show that Respondent bore animosity toward either Durkin or the union he represented , or had interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by Section 7 of the -Act. Such inference and contentions are met by the positive and seemingly sincere denial of such thought and conduct , and the admission by Durkin that he might have uttered the words directed to officers of, and about , the Respondent Com- pany attributed to him. Not even these and other supporting factors serve to completely remove suspicions arising out of Durkin ' s union activities, but suspicions do not make a case, and the undersigned , upon consideration of the entire record, is not persuaded that the General Counsel has sustained his position by a preponderance of the credible evidence . There must be a pre- ponderance of evidence to show that the Respondent was motivated by anti- union considerations Upon the entire record the undersigned is convinced , and finds, that the Gen- eral Counsel did not prove the allegations of the complaint , and that the Re- spondent did establish its defense that it did not engage in unfair labor practices. Therefore , the undersigned recommends that the complaint herein be dis- missed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case , the undersigned makes the following: CONCLUSIONS OF LAW 1. The Respondent, Midland Broadcasting Company, is engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act. 2. American Federation of Radio Artists, Kansas City Local, A. F. of L., is a labor organization admitting to membership employees of the Respondent. 19 Titmus Optical Co., 9 NLRB 1026. 'IN L R . B. v. Condenser Corp. of America, 128 F . 2d 67 , 75 (C A 3). 21 Budd Mfg . Co. v. N. L R B, 138 F. 2d 86, 90 ( C. A. 3), cert. denied 321 U. S. 773. 22 See Punch and Judy Togs , Inc. of California, 86 NLRB 629. 1 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. American Guild of Variety Artists , A. F. of L., is a labor organization within the meaning of the Act. 4. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (a) (1), (3 ), and (5 ) of the Act. [Recommended Order omitted from publication in this volume.] TELECHRON , INC. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA (UE), PETITIONER. Case No. 1-RC-1452. February 27,1951 Second Supplemental Decision and Order On December 12, 1950, the Board issued a Supplemental Decision and Order 1 in this proceeding, finding merit in the objections to the conduct of the election which had been filed by the United Steel- workers of America, and directing that the election of August 10, 1950, be set aside. Thereafter, on December 26, 1950, the Employer filed a motion to reconsider the Supplemental Decision and Order, and the Petitioner, herein, filed objections to said motion. We have considered the Employer's motion to reconsider, and find it to be without merit.2 The statements which were found to have interfered with the em- ployees' free choice in the election were contained in a letter the Employer sent to the employees on August 8, 1950. In this letter the question "What can you expect from any union?" was posed; and to it the following reply was offered "To have wage increases, insurance and other benefits held up." This was followed by two examples, in one of which reference was made to the fact that at another plant of the Employer (the Ashland plant) "employees now represented by UE are being prevented right now from enjoying your recent wage increase and insurance benefits." In the other example given, the statement is made that "You'd have an improved pension plan now too if both UE and CIO were not to-day making it impossible for us to give it tQ you and other Telechron employees." In its motion, the Employer contends in substance that the em- ployees were generally aware of certain circumstances surrounding negotiations at the Ashland plant and of the special reasons for the delay in instituting the contemplated improvement in the pension plan. As a consequence, the Employer urges the, employees reasonably in- 192 NLRB No. 113 2 Although , pursuant to Section 3 (b) of the Act , the Decision and Direction of Election as well as the Supplemental Decision and Order in this matter were considered by a three- member panel of the Board , all Members of the Board have considered the Employer's motion to reconsider . Chairman Herzog and Member Reynolds disagree with the result reached herein for the reasons set forth in their separate opinion 93 NLRB No. 67. Copy with citationCopy as parenthetical citation