North American Broadcasting Co., Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 25 (N.L.R.B. 1976)

KDEN BROADCASTING CO. 25
KDEN Broadcasting Company, a wholly owned sub-
sidiary of North American Broadcasting Company,
Inc. and American Federation of Television & Ra-
dio Artists, AFL-CIO. Case 27-CA-4553
June 24, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On February 25, 1976, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, a brief in support of the exceptions, and a brief
in opposition to the exceptions of the General Coun-
sel and the Charging Party. The General Counsel
and the Charging Party filed exceptions, supporting
briefs, and briefs in answer to Respondent's excep-
tions. The General Counsel also filed a motion for
reconsideration and reopening the record for purpos-
es of consolidation with a complaint involving relat-
ed matters in Case 27-CA-4814. The Charging Party
filed a motion for remand and hearing de novo before
a different Administrative Law Judge or, in the alter-
native, for reopening the record and consolidation
with Case 27-CA-4814. The General Counsel filed a
statement of position to the effect that he does not
oppose the Charging Party's motion for a hearing de
novo.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs, and
motions,' and has decided to affirm the rulings, find-
' The movants contend as follows (I) the Administrative Law Judge er-
red in not allowing employee Mark Wilson to testify concerning the meeting
held at the home of Respondent's official, Ken Galey, (2) the Administra-
tive Law Judge failed to make certain credibility resolutions, (3) a number
of his credibility findings show prejudice in favor of Respondent, (4) certain
newly discovered evidence (a) furnishes additional proof as to Respondent's
policy of giving periodic wage increases , and (b ) "makes it impossible to
credit" Galey's testimony concerning the reasons for changing the schedule
of employee Nancy Reubert, (5) consolidation with Case 27-CA-4814
would reveal further evidence regarding Respondent 's unlawful conduct
As to (I), Wilson's proffered testimony was properly denied as "cumula-
tive" As to (2), we find that the Administrative Law Judge made all neces-
sary credibility resolutions As to (3), we find no support for the allegations
of prejudice As to (4)(a), it is unnecessary to consider the proffered evi-
dence in view of our finding as to the illegality of Respondent 's withholding
wage increases As to (4)(b), the proffered evidence is insufficient to invali-
date the Administrative Law Judge's conclusion regarding the propriety of
the change in Reubert 's schedule As to (5), consolidation or a hearing de
ings, and conclusions of the Administrative Law
Judge as modified herein.
The Administrative Law Judge dismissed, inter
alfa, the following allegations in the complaint: Re-
spondent, through Douglas Stephens, its president
and general manager, violated Section 8(a)(1) of the
Act by telling employees on several occasions in
April and May 1975 2 that he could not increase wag-
es or alter benefits as his hands were tied because of
the presence of the Union. Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by withholding from
its employees wage increases and improvements in
benefits since April. For the reasons given below, we
find, contrary to the Administrative Law Judge, that
Respondent engaged in such conduct and that it was
unlawful.
On April 4, the Union filed a petition for a Board
election among the employees of Respondent which
operates an all-news radio station. On April 7, the
Union made a telegraphic demand for recognition.
On May 5, the parties entered into a Stipulation for
Certification Upon Consent Election.3
The Administrative Law Judge credited the testi-
mony of a number of employees that Stephens told
small groups of employees at a series of meetings
held on company premises on April 10, May 16 and
23, and at other times during the crucial preelection
period that he could not increase wages or other
fringe benefits as "his hands were tied because of the
Union." °
The Administrative Law Judge also credited
Stephens' corroborative testimony that he told the
employees that it was his understanding that an em-
ployer is not allowed unilaterally to grant wage in-
creases or benefits until a collective-bargaining
agreement is signed. Stephens further testified that he
read to the employees a letter from Respondent
counsel, dated May 22, stating that he could not
"unilaterally place into effect any increased benefit
for any or all of your employees [without] commit-
ting an unfair labor practice."
Both Stephens and Galey, who was deemed credi-
ble by the Administrative Law Judge, testified that it
was company policy to continually review the record
of each employee and in addition to conduct a for-
mal review every 6 months for the purpose of de-
termining whether the employees' work performance
entitled them to wage increases. According to Galey,
novo is not warranted in view of the full record in the instant proceeding
Accordingly, we deny the motions of the General Counsel and the Charging
Party
2
All dates below refer to 1975
J
The Union won the election on May 27 and was certified as the bargain-
inp representative of the employees on June 5
The Administrative Law Judge found that "[e]ven Stephens did not
deny making similar statements"
225 NLRB No. 6
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a review took place between early April and
September 1,5 and he reported to Stephens that each
employee without exception "deserved" a raise.
It is well settled that it is the employer's duty to
proceed as it would have done had a union not been
on the scene.6 Here, as admitted by Respondent's of-
ficial, Galey, the employees "deserved" wage increas-
es and would have received them but for the pres-
ence of the Union. As Respondent altered its normal
course of action pursuant to its wage review program
and withheld wage increases because of the Union,
we find that Respondent violated Section 8(a)(3) and
(1) of the Act in its effort to discredit the Union and
discourage membership therein.' We further find
that, by its oft-repeated statements placing the onus
on the Union for withholding the wage increases to
which the employees were entitled, Respondent in-
terfered with, restrained, and coerced them in viola-
tion of Section 8(a)(1) of the Act.
In connection with the foregoing, we do not agree
with the Administrative Law Judge that before such
violations can be found it is necessary for the Gener-
al Counsel "to prove a definitive policy under which
an employee could state with certainty when and in
what amount his or her salary might have been
raised." As Respondent has in past wage reviews
been able to make judgments on the basis of an
employee's "progress" in "doing a good job," we
shall order that Respondent pay the employees the
wage increases they normally would have been grant-
ed.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
KDEN Broadcasting Company, a wholly owned sub-
sidiary of North American Broadcasting Company,
Inc., Denver, Colorado, its officers, agents, succes-
sors, and assigns, shall:
5 Galey left Respondent's employ at that time
6 See Russell Stover Candies, Inc, 221 NLRB 441 (1975), and the cases
cited therein
7 Ross Sand Company, Inc, d/b/a Rosco Concrete Pipe Co, Inc, 219
NLRB 915 (1975), McCormick Longmeadow Stone Co, Inc, 158 NLRB
1237 (1966)
8 Ross Sand Company, Inc, d/b/a Rosco Concrete Pipe Co, Inc, supra,
The Gates Rubber Company, 182 NLRB 95 (1970)
9In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
1. Cease and desist from:
(a) Telling employees that wage increases or im-
proved benefits cannot be granted until a collective-
bargaining contract is negotiated with the Union.
(b) Unlawfully withholding wage increases to
which all employees are entitled as a result of the
favorable review of their work performance.
(c) Refusing to meet and negotiate in good faith
with the Union's authorized representatives.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights as
guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Pay to all employees the wage increases to
which they were entitled with interest at 6 percent
per annum on the withheld increases.
(b) Preserve and, upon request, make available to
the Board and its agents, for examination and copy-
ing, all payroll records, social security records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of wage in-
creases due the employees under the terms of this
Order.
(c) Upon request, bargain collectively with the
bargaining committee of the Union as the exclusive
representatives of all employees in the following ap-
propriate bargaining unit:
All employees employed by Respondent at its
Denver, Colorado, operation contributing on a
regular basis to the production, preparation, and
presentation of radio programs; but excluding
office clericals, guards, professional employees,
and supervisors as defined by the Act.
For the reasons set forth in the section of the Admin-
istrative Law Judge's Decision entitled "The Reme-
dy," Respondent's obligation to bargain with the
Union shall extend for 1 year from the date it first
commences to bargain in good faith.
(d) Post at its Denver, Colorado, facilities copies
of the attached notice marked "Appendix." 9 Copies
of said notice, on forms provided by the Regional
Director for Region 27, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
KDEN BROADCASTING CO 27
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees that wage in-
creases or improved benefits cannot be granted
by us until a collective-bargaining contract is ne-
gotiated with American Federation of Televi-
sion and Radio Artists, AFL-CIO.
WE WILL NOT unlawfully withhold wage in-
creases to which employees are entitled as a re-
sult of a favorable review of their work perfor-
mance.
WE WILL pay to all employees the wage in-
creases to which they became entitled when
their work performance was reviewed in April
1975 and thereafter, with interest at 6 percent
per annum.
WE WILL, upon request, bargain in good faith
with the above-named Union, as the exclusive
bargaining representatives of all employees in
the unit described below, and shall embody in a
signed agreement any understanding reached.
The bargaining unit is:
All employees employed by KDEN Broad-
casting Company at its Denver, Colorado, op-
eration contributing on a regular basis to the
production, preparation, and presentation of
radio programs; but excluding office clericals,
guards, professionals employees, and supervi-
sors as defined by the Act.
WE WILL NOT in any other manner, restrain, or
coerce our employees in the exercise of their
rights guaranteed to them under Section 7 of the
Act.
KDEN BROADCASTING COMPANY, A WHOLLY
OWNED SUBSIDIARY OF NORTH AMERICAN
BROADCASTING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Denver, Colorado, on October 1, 2,
3, 14, and 15, 1975.1 The original charge was filed on June
12 and amended on June 16, alleging Respondent to have
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended (herein Act). The complaint,
1 All dates hereinafter will refer to the year 1975, unless otherwise indi-
cated
dated July 28, was amended on September 9, and at the
hearing on October 1.2 The Respondent's answer denied
the commission of any unfair labor practices.
All parties have been afforded full opportunity to ap-
pear, to introduce relevant evidence , to examine and cross-
examine witnesses , and to file briefs . Based upon the entire
record in this case, including the briefs filed on behalf of
the General Counsel and on behalf of the Respondent, and
upon my observation of the demeanor of the witnesses,3 I
make the following findings of fact and conclusions of law.
1. JURISDICTION
The Respondent is now, and at all times material herein
has been, a corporation duly organized under and existing
by virtue of the laws of the State of Colorado, and main-
tains its principal office and place of business at 1601 West
Jewell, Denver, Colorado 80223. In the course and conduct
of its business operations, Respondent annually does a
gross volume of business in excess of $100,000. Respondent
subscribes to wire services operated by the Associated
Press and United Press International and, in the course
and conduct of its business operations , annually derives in
excess of $5,000 from the advertising of nationally adver-
tised products. The Respondent admits, and upon the basis
of the aforementioned admitted facts I now find, the Em-
ployer to be engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The answer admits, and I herewith find, the American
Federation of Television & Radio Artists, AFL-CIO (here-
in Union), to be a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
For purposes of consideration and analysis , the issues in
this case might be grouped as follows-
1. The gathering of five employees at the home of Ken
Galey, news director, on April 8: Was the discussion that
occurred there and the comments that were made violative
of Section 8(a)(1) of the Act9
2. The series of employee meetings held on April 10 and
May 16 and 23. Did Douglas Stephens, president of Re-
spondent, exceed the bounds of speech permitted by Sec-
tion 8(c) of the Act and thereby violate Section 8(a)(1) of
the Act?
2 See G C Exh 1(m) This is a telegram which became a part of the
formal papers dated September 22 and advised the Respondent of the man-
ner in which the counsel for the General Counsel would move to amend the
complaint at the start of the hearing
3 The facts found herein are based on the record as a whole and upon my
observation of all the witnesses The credibility resolutions herein have been
derived from my review of the entire testimonial record and exhibits, with
due regard for the logic of probability, the demeanor of the witnesses, and
the teachings of N L R B v Walton Manufacturing Co, et at, 369 U S 404
(1962) As to those witnesses testifying in contradiction to the findings here-
in, their testimony has been discredited either as having been in conflict
with the testimony of credible witnesses or because it was in and of itself
incredible and unworthy of belief All testimony has been weighed in the
light of the entire record
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Has Respondent engaged in a pattern of harassment
of employees because of their union affiliation and activi-
ties?
4. What were the motivating factors which resulted in
the severance from Respondent's payroll of employees
Barber, Botsko, Haffner, and Reubert?
5. Has Respondent fulfilled its bargaining obligations
with the Union9
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
KDEN is a 24-hour all news radio station in Denver that
employs approximately 12 people that are directly associat-
ed with getting the news "on the air." Respondent also
employs three or four salesmen , two to four clericals, and a
general manager and president , Douglas Stephens.4
The Union filed an election or representation petition
with Region 27 of the National Labor Relations Board on
April 4 requesting an election and certification for "all full-
time and regular part-time news persons employed by the
employer." On April 7, a telegram demanding recognition
was sent by the Union and received by the Respondent. On
May 5, the parties entered into a Stipulation for Certifica-
tion Upon Consent Election providing for an election to be
held on May 27 in the following appropriate collective-
bargaining unit,
All employees of the Employer contributing on a regu-
lar basis to the production, preparation and presenta-
tion of radio programs; excluding guards, professional
employees, supervisors and office clerical employees.
The election was held as scheduled and on June 5 the
Union was certified as the duly elected representative of
the employees in the aforesaid collective -bargaining unit,
which I now find to be an appropriate bargaining unit
(G.C. Exh. 2(a)-2(d)).
B. The April 8 "Galey" Event
On April 8, Ken Galey, news director for Respondent,
invited Tom Vaught, Tom Saccamano, Gene Towne, Mark
Wilson, and Lee Winslow to come by his home that eve-
ning to have a beer. The testimony seems clear that all five
of the employees were friendly with Galey and had on
other occasions visited in his home.
Saccamano and Winslow were called to testify regarding
events of the evening on behalf of the Government.
Wilson 's testimony in the same area was denied as cumula-
tive. Galey and Vaught were called by Respondent's coun-
sel. There is no disagreement that it was an informal,
friendly gathering with beer, chips, and dip served all
around. The "gathering" lasted a couple of hours-be-
tween 7 and 9 p.m.- and included some light talk-
s There are three or four other people who, on infrequent occasions, will
appear on the air for such specialty items as "Gowmet Dining," or "Your
Horoscope ," etc In addition , there is an engineer However , these people
are not directly concerned with the problems herein
5 The exact time and length of this gathering varied greatly with the vari-
ous witnesses , but nearly all agreed they arrived between 6 30 and 7 p in
sports, etc., but quickly turned to union talk. Galey credi-
bly testified that he had been told by Stephens, "We should
conduct business as normal but we should be aware that
we could not make any promises or inducements , benefits,
wages or whatever or threats and we should not discuss the
issue in the station ." In response to questions from employ-
ees regarding the Union, "I [Galey] decided to invite a few
of those people who asked me for advice or asked me my
opinion to come over to my home and have a beer and if I
could answer some of their questions, I would be happy to
but I wouldn't do it in an official capacity." 6
Saccamano's testimony might be summarized as follows:
Galey said, like the story of the farmer and the mule, they
had gotten Stephens ' attention and he thought the group
could work with Stephens now instead of turning to the
Union; that if the Union comes in Stephens would put in a
timeclock; that he (Galey) would probably lose his job if
the Union was voted in; that the format of the station
might be changed to all music and Denver could not sup-
port 12 out-of-work newsmen. Cross-examination failed to
alter his testimony to any great degree but Saccamano ac-
knowledged that the meeting was rather informal, no one
had more than four beers, a lot of subjects were covered,
and there was input from every member of the group.
Winslow's testimony might be summarized as follows:
Galey invited the group to talk about the Union but it was
his own idea; the group now had Stephens ' attention-like
the farmer and the donkey; everyone liked the small flexi-
ble operation, but with the Union coming in this would be
changed and he (Galey) wouldn't put it past Stephens to
install a timeclock in the lobby; that all wages would be
frozen until the matter was settled; that any money avail-
able for wages or equipment would now go for legal fees;
that the format of the station could be changed from all
news to all music; and that he would probably lose his job
if the Union was not stopped.
The summarized testimony of Vaught is: The union situ-
ation and the radio station were discussed, they talked on
everything from conditions at the station to the condition
of the equipment; the subject of a dress code was men-
tioned; the need for a policy manual or rules booklet was
expressed, his (Galey) position as news director was in be-
tween the two sides, Galey said he was opposed to having
the Union come in but did not say his job hung in the
balance, Galey talked in terms of his previous experience
at unionized stations (Galey had been one of the union
leaders at station KBTR); he said that salaries would be
frozen until a contract had been worked out; much of what
Galey said was in response to a question or a comment by
someone in the group; Vaught testified that he did not feel
threatened.
Galey's estimate of the departure time was probably most accurate because
he was able to fix the time in relation to the usual arrival home of his girl
friend about 8 30 p in
6 Stephens never learned of the "gathering" until the complaint herein
was amended to include this aspect of the case Thus , there was no opportu-
nity for Respondent to disavow a supervisor 's conduct My resolution of
this aspect of the case does not turn on this fact however A respondent
employer cannot escape responsibility for the misconduct of its supervisors
merely because it does not learn of the misconduct If this were not true it
would open the door for many secret and clandestine meetings by unscru-
pulous supervisors
KDEN BROADCASTING CO
Galey's testimony might be summarized as follows: "I
expressed surprise that the employees had taken such ac-
tion; they asked, or we generally discussed what had hap-
pened at KBTR because I was there at the beginning of
work under the contract"; he had not been threatened with
the loss of his job, but he wasn't sure he wanted to stay
because he was caught in the middle between employees
and management; in response to questions of Winslow, he
said that installation of timeclocks was a possibility but he
did not believe it would occur; that he said he would rather
not see any profit or capital spent on legal fees; he did not
say wages would be frozen, but said that Stephens' attor-
ney had advised against a promise of any raise or benefits.
I can find no objective basis for discerning whose ver-
sion of what was done and said at the "Galey" meeting is
most accurate, but on balance I am convinced that most, if
not all, of the testimony was based on recall of phrases that
were not always placed in a proper context and therefore
do not accurately reflect what was actually said. Because of
the social atmosphere that prevailed, I am not convinced
that anyone at the "Galey" meeting was interfered with,
restrained, or coerced in the exercise of his Section 7 rights.
While the Board has held statements by supervisors that
indicate (1) the futility of selecting the Union as bargaining
agent,? (2) predictions of changed format procedures that
would adversely affect employment,8 and/or (3) changed
working conditions which might be more onerous 9 to be
expressions that coerce, threaten, or restrain in violation of
the Act, nevertheless the statements must be viewed and
evaluated in terms of the entire setting and not in isolation.
These people were all good friends and had visited in
Galey's home on other occasions; the atmosphere was jovi-
al and friendly; there was input from everyone in the
group. There were questions, answers, and expressions of
opinions by all. I am inclined to feel that under all the
circumstances of this case there was nothing done and said
by Galey that coerced, restrained, or interfered with the
Section 7 rights of anyone in the group. I shall recommend
dismissal of all allegations of the complaint stemming from
the Galey meeting of April 8.10
C. Employee Meetings Conducted by Stephens
The Respondent has acknowledged that it held a series
of three meetings with employees prior to the representa-
tion election on May 27. There was no room large enough
at the station to accommodate all of the employees at one
time, thus, Stephens met with small groups of from four to
six. The meetings were held on April 10 and May 16 and
23. The General Counsel alleges that at these employee
meetings Stephens told employees that "working condi-
tions would be more rigid if the Union were selected"; and
that "at these employee meetings and at other times in
April and May Stephens told employees that he could not
7 Ward-McCarty Hot Oil-Paraffin Service, 171 NLRB 731 (1968)
8 Gissel Packing Co, Inc, 157 NLRB 1065, enfd in pertinent part 395
U S 575 (1969)
9 Carlisle Paper Box Company, 168 NLRB 706, enfd 398 F 2d I (C A 3,
1968)
10Cf McQuay-Norris Manufacturing Company, 157 NLRB 1661 (1966),
Sarkes Tarzian, Inc, 157 NLRB 1193 (1966)
29
increase wages or other fringe benefits because his hands
were tied because of the Union." I have no doubt that the
alleged statements, or statements very similar, were made
by Stephens." The difficulty again is one of placing these
phrases in their proper context, or framework, if we are to
properly test whether the "words" were said in a manner
permissible under Section 8(c) of the Act, or proscribed by
Section 8(a)(1) of the Act.
While I am not disposed toward treating the testimony
of General Counsel's witnesses as incredible, neither am I
inclined to feel that any of the KDEN employee witnesses
were able to accurately relate what was done and said at
the series of employee meetings.12 On the other hand Mr.
Stephens was able to relate precisely what was done and
said at each meeting. For example, at the first series of
meetings he opened each by announcing the notification or
demand of AFTRA; the written reply of the Company
(Resp. Exh. 11) and passed a copy of the reply around for
those who might not yet have seen it to read. Next Mr.
Stephens read and exhibited to the employees an official
Board election notice (Resp. Exh. 12). He then related that
as he understood the law the Respondent had to be very
careful and was bound by certain legal technicalities. He
said, "it is one thing for me to open the door but it is
another thing for somebody to come through it. In that
light I asked if there was anything to discuss and there was
some minor discussion or certain questions raised or points
brought up." Stephens testified that at the second series of
meetings his discourse followed the notes he had prepared
in advance and had discussed with his labor counsel (Resp.
Exh. 13). Stephens brought the employees up to date on the
events resulting in the consent election and then advised of
the date of election; discussed the company income and
financial statement through March 31; discussed company
policy as it then existed regarding vacations, sick leave,
wage policy and workweek; the rights of management re-
garding hiring, firing, and scheduling; talked in terms of
the flexible working arrangement and lack of rigidity; there
were references by him to the wages and benefits having
been frozen at KBTR radio during the entire period of
negotiations ; and it was his understanding that no unilater-
al employer to employee granting of increased wages or
benefits is allowed until a collective-bargaining agreement
is signed. Stephens said he closed the meeting with an ap-
peal to the employees to reject the Union. At the third
series of meetings on May 23, Stephens said that he en-
couraged them all to vote; he read a letter from Gorsuch
(his legal counsel) to Stephens relative to unilaterally
changing employee benefits (Resp. Exh. 10); he had copies
of the AFTRA contracts with KBTR and with KIMN
Broadcasting Company and that he read the various claus-
es from the KIMN contract and gave them to the employ-
ees to read; he read a newspaper article and press release
from the Amalgamated Clothing Workers regarding a
strike then in progress against the AMF Head Ski Plant in
11 The testimony of Saccamano , Winslow, Botsko, and Frost would sup-
port such a conclusion Even Stephens does not deny making similar state-
ments
12 Perhaps the best illustration of "totally missing the point" may have
been Respondent 's own witness who testified that she thought the meetings
occurred after the election
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boulder, Colorado; and he responded to a question from
employee Barber about minimum and maximum hiring
rates and to employee Linda Botsko regarding overtime
hours. While Stephens did not specifically deny the possi-
ble use of the gesture and the reference to his hands being
tied, he insisted that in every reference to wages or fringe
benefits he spoke in terms of his inability to unilaterally
make changes.
After carefully examining the testimony of all witnesses
regarding what transpired at the employee meetings, I am
compelled to find that Stephens' references to more rigid
working relationships were with reference to what actually
existed in union contracts which he made available to the
employees to read, and find that his comments were not a
threat of what would occur at KDEN. His efforts were
nothing more than mere attempts to compare actual union
contract language with existing working conditions. I can
find no material misrepresentation by Respondent in what
was said at these employee meetings. This conclusion is
reached based on the bits and pieces related by the em-
ployees when placed in proper context with the more com-
plete and accurate recital by Stephens, whom I believe to
be an extremely careful and meticulous witness whose tes-
timony I credit. Obviously he was opposed to having the
employees represented by the Union and sought to win
their support in the forthcoming election, but this is not
illegal per se From the very beginning Stephens sought and
obtained competent legal advice and I believe he adhered
to that advice.13 I conclude that Stephens did not violate
Section 8(a)(1) of the Act in his speeches to the employees.
D. Alleged Harassment
The specific acts of harassment, set forth in the com-
plaint in general terms only, would seem to refer to the
following employer-employee incidents: 14 (1) the repri-
mand of Reubert on June 9 for being late for work; (2) the
Botsko-Granville Dutton incident in June; (3) the repri-
mand letter to Reubert dated June 17, (4) the reduction in
hours per week for Botsko; (5) the removal of a company
car from Botsko's use and possession; (6) the failure to
grant any wage increases to bargaining unit employees
since April 1, 1975.
(1) Mr. Galey acknowledged that on Monday, June 9,
he spoke to Nancy Reubert about the necessity of being on
time for work. While Galey was on vacation, Reubert was
late to work and failed to catch a program from another
network that was part of her assignment. According to
Tom Vaught this had happened on other occasions and it
caused him difficulty in coordinating his afternoon broad-
cast . He complained to Stephens Upon Galey's return
from vacation he and Stephens spoke to Reubert about the
necessity of being at work on time.
I am of the opinion General Counsel is attempting to
make a mountain out of a molehill. Being a few minutes
13 See Island Holidays, Lid, d/b/a Coco Palms Resort Hotel, 208 NLRB
966 (1974), Foodmaker, Inc, d/b/a Jack- in-the - Box, 199 NLRB 109 (1972)
14 Each of the situations giving rise to the severance from the payroll of
employees Barber , Botsko , Haffner , and Reubert are undoubtedly to be
included in General Counsel's theory of a "pattern of harassment ," howev-
er, the testimony and facts relating to these incidents will be considered
infra under the sec E
late to work when no one else is affected is one thing, but
being a few minutes late to work when it interferes with
one's assigned task which in turn affects the overall compa-
ny operation is quite another thing. Respondent's explana-
tion is logical and reasonable It had a right to speak to one
of its employees and explain to her the necessity of getting
to work on time. The mere fact that Respondent had been
tolerant of lateness in the past does not remove from it the
right to speak to an employee when being on time becomes
important
(2) The Botsko-Dutton incident. In a routine check of
long-distance calls made over company telephones, Re-
spondent learned of what it believed to be an excessive
number of telephone calls by Linda Botsko to Granville
Dutton, an executive with the Sun Oil Company, in Dallas,
Texas. Without belaboring this decision with unnecessary
details, suffice it to say that Stephens became somewhat
concerned regarding outside business relationships be-
tween a news reporter and an officer of a large energy
corporation vis-a-vis the FCC regulations. As a conse-
quence he asked for and received a satisfactory written
explanation, a quick return of a "family loan" that conceiv-
ably could have been embarrassing to the radio station, if
not a violation of FCC regulations, and the matter was
dropped (G.C. Exhs. 17(a) -(d) ). I find nothing sinister,
harassing, or wrong in Respondent's course of action.
Viewed in its most favorable light for the General Counsel
the incident was nothing more than unfortunate timing.
(3) The written reprimand to Reubert. Reubert ac-
knowledged that she had made a mistake. She received an
innocuous memo from Galey 15 There was no indication
that a copy of the memo was placed in her personnel file,
or that any further thought or consideration was ever given
to the matter by Respondent Reubert had an excuse for
making the mistake and contended the mistake had oc-
curred a month earlier. This was disputed. I find absolutely
no harassment in the pure ministerial act of an employer
bringing to the attention of an employee her admitted mis-
take.'6
(4) The reduction in hours of work for Botsko. Botsko
had worked as a student trainee for KDEN while attending
school for which she received some academic credit. In
June 1974, she went to work as a part-time employee street
reporter, working 30 hours per week. According to Mrs.
Botsko she talked to Mr. Galey in mid-October 1974 and
indicated that she was going to resign because the money
she made did notjustify the "hardship on my family." Fol-
lowing this discussion her hours were increased to 40 per
week and she was assigned to cover the political scene-
particularly the State Legislature. While there is a conflict
in the testimony as to just what she was told at the time her
hours were increased to 40 per week,17 there is no conflict
that she did, in fact, spend 40 to 45 percent of her working
time covering the legislative scene. The legislature complet-
15 She was so unperturbed by the reprimand that at the hearing she could
not remember whether it was from Stephens or Galey (see G C Exh 13)
16 Moreover the necessity of having to defend its conduct regarding such
an insignificant everyday occurrence must surely cause the average small
American businessman to shudder
17 Whether or not Respondent said, or at least implied, that her hours
would be reduced when the legislative session ended is of course the con-
flict
KDEN BROADCASTING CO.
ed its session on June 20 and on that same day she was
advised by Galey that she "was going back to 30 hours a
week."
The Respondent makes the point that all other full-time
permanent on-the-air employees are assigned to a 42-hour
workweek, while Botsko was never so assigned. While I do
not regard this facet as controlling, nevertheless it does
tend to support Respondent 's position that Botsko was
moved from 30 hours per week to 40 hours per week in
order that she might cover the legislative session and was
not told by Respondent that she was forever to be a full-
time employee. I am more persuaded that Respondent's
course of conduct was a logical and business like decision
based on the fact that 40 to 45 percent of those projects
that formerly comprised her working time no longer ex-
isted. To reduce an employee's working time by 25 percent
following a reduction of 40 to 45 percent of her assigned
tasks does not seem to be unreasonable , nor can it be clas-
sified as harassment."
(5) Botsko's loss of company car. Sometime in Decem-
ber 1974, Botsko was provided a Pinto automobile which
she was permitted to use not only for business, but also in
commuting to and from work and for other personal rea-
sons. According to Botsko, when Stephens told her of the
car, he said it was for her exclusive use and she would have
a car for her entire period of employment. At the end of
June, she was advised to turn the car in. Stephens denied
that he ever promised Botsko that she would always have a
car. The explanation as to why the car was taken from
Botsko is simple and logical. On May 23, the lessor of the
car advised the Respondent's advertising agency that it
wanted to cancel the "trade-out" agreement and to have
the cars returned effective July 1 (see Resp. Exh. 19(d) ).19
According to Stephens, Respondent made an effort to have
the tradeout with the automobile agency continued, but
was unsuccessful in its efforts.
Again, the timing of this incident was unfortunate, but I
do not credit Botsko's testimony that she was promised a
car for as long as she worked for KDEN. Economic condi-
tions frequently change and with those changed economic
conditions a businessman must change his method of oper-
ating. To promise an employee that "she would have a car
for as long as she worked there" is incredible. Moreover, I
am convinced from the record that the loss of the use of
the car by KDEN was something that was not within the
Respondent's power to prevent.
Insofar as the above-related incidents tend to show a
"pattern of harassment," I am of the opinion that General
18 The reduction in Botsko 's hours was not pleaded as an 8(a)(5) violation
Because there was no pattern or past practice revealed that would establish
this incident (moving from full-time to part-time status) as a routine operat-
ing procedure , it is conceivable that this matter should have been discussed
with the Union before the reduction in hours occurred However , as will be
seen , infra, I am recommending a bargaining order , and any changes in
working conditions not clearly a part of Respondent 's routine or normal
past procedure is included within that bargaining order and should be dis-
cussed with the bargaining agent before change is instituted
19 Lee Winslow had received a company car at the same time as Botsko
and his car was also returned to the lessor -Compacts Only The "trade-
out" agreement refers to an arrangement whereby the automobile owner or
agency received a designated amount of advertising time on the radio in
"trade" for the use of the cars
31
Counsel has failed in his proof. The related incidents are
the type of thing that confront a manager or supervisor
every day and are mere routine The presence of a union
does not ipso facto raise commonplace events to the level of
unfair labor practices. I shall recommend dismissal of any
"pattern of harassment " because of the union activities of
the employees involved?
(6) The failure to grant raises. General Counsel has al-
leged the failure of Respondent to grant increases to bar-
gaining unit members since April 1, 1975, as a violation of
Section 8(a)(1) and (3) of the Act. It seems clear from the
testimony that it was Respondent's policy to continually
review the performances of employees for purposes of
granting wage increases and specifically to do so every 6
months. However, the mere fact that an employee's perfor-
mance record is reviewed does not mean that an increase
in salary will result. There are no indications in the record
that Respondent ever granted an across-the-board increase
to all employees. Respondent's salary review policy was
not formalized and amounted to little more than the sub-
jective evaluation of each employee's performance by his
supervisor and Mr. Stephens. While it is easy to state that
an "employer's legal duty is to proceed as he would have
done had the union not been on the scene," 21 nevertheless
where the established policy is so completely subjective
and so totally lacking in predictability as exists here, then it
is the very kind of policy which the Board has long said is
violative of the Act if continued after a bargaining repre-
sentative has made its presence known to the employer.22
In the absence of a definitive policy of granting wage in-
creases (which is quite different from a policy of reviewing
employee performance), it was not unlawful for the Re-
spondent to indicate to the employees that the problem of
salary adjustments was one that would have to be worked
out with the Union. Thereafter Respondent sought to work
out individual salary adjustments with the Union,23 but re-
ceived either no reply or unresponsive replies to its re-
quests. (The individual letter requests would not relieve the
20 In assessing the above-related incidents, as well as the discussion to
follow regarding the payroll terminations , I have given considerable thought
to the conflicting testimony between Haffner and Mineo regarding the April
8 incidentjust before Haffner went in to talk to Stephens If it were true that
Stephens had singled out Haffner, Barber, Botsko , and Reubert as the ring-
leaders of the Union and had so stated to Mineo , then the incidents or
events which took place thereafter regarding these four employees would
more probably have been motivated by Stephens ' desire not to be "saddled"
with the Union However , Mmeo testified that when Haffner asked him
why the old man wanted to see him , that he (Mineo) only said "Probably
because of the union thing" Mineo further testified that he gave that re-
sponse only because "we were all talking about it " Mmeo further
testified that on April 7-the day the telegram from the Union was re-
ceived-that he and Stephens mentioned many names of employees that
might be behind it (the Union ) I must give credit to Mitten 's testimony as
more accurate than Haffner' s on this point There is no basis in this record
for Stephens to have designated those four employees as the union leaders
It is more probable that Haffner remembered those four names because of
his own knowledge of their role in bringing in the Union I do not believe
Mineo lied on this point and I believe Haffner to be mistaken or to be
confused as to what Mineo told him on April 8
21 The Gates Rubber Company, 185 NLRB 95 (1970)
22 Either during the pendency of an election or after the bargaining repre-
sentative has been determined See Montgomery Ward & Company, 9 NLRB
538 (1938), American Hair & Felt Company, 19 NLRB 202 (1940), as two of
the earliest cases that have since been followed thousands of times
23 See G C Exhs 9 and 10
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties-both Respondent and the Union-from discuss-
ing the matter of individual raises at the bargaining table,
but as will be seen hereinafter bargaining never moved be-
yond the opening stages because of the illegal refusal of
Respondent to meet with certain union representatives.) I
shall recommend dismissal of General Counsel's allegation
of Respondent withholding of individual wage increases
since April 1, 1975, as being violative of Section 8(a)(1) and
(3), because the General Counsel failed to prove a defini-
tive policy under which any employee could state with cer-
tainty when and in what amount his or her salary might
have been raised. In the instant case the potentially disrup-
tive forces (interference, restraint, or coercion) are much
greater if we allow Respondent to proceed to grant individ-
ual increases than they would be if Respondent is re-
strained.24
E. The Alleged Discharges
Discussing the employment terminations from KDEN in
chronological order, the relevant facts regarding Haffner
were as follows: Haffner was first employed by KDEN in
April 1974. He did three shows in the morning and three in
the afternoon. He was paid $10 per show, provided the
show was sold. Such an arrangement is apparently referred
to in the broadcasting business as a talent arrangement.
According to Haffner, he generally spent about 3 hours at
the station in the early morning-preparing the tapes-and
3 or 3-1/2 hours in the late afternoon. Between his hours at
KDEN he worked as a real estate agent with Jagger and
Company. In September 1974, following a discussion with
Stephens, he quit his job with Jagger and Company, began
to put in longer hours at the radio station but continued to
be paid in the same manner. His broadcasts, or shows,
were increased to four in the morning and four in the af-
ternoon. In addition he began utilizing his time to assist the
salesman , Mr. Mineo, in finding a sponsor or purchaser of
his broadcasts. He continued to be paid on the same basis,
however, and his semimonthly checks varied, or fluctuated,
greatly. The Company's records reflect that there were de-
ductions made for a hospital insurance plan, social securi-
ty, and taxes. During this same period of time Haffner was
hired by the National Broadcasting System to assist in pro-
viding color for certain area professional football games
that were being televised and also was hired by a local
television station to do some color broadcasting for the
Denver Nuggets Basketball team. On these occasions if he
was going to be unable to fulfill his assigned responsibili-
ties at KDEN he asked Saccamano to cover for him and he
(Haffner) paid Saccamano from his own funds for the
work performed on his behalf by Saccamano.
Apparently sometime in February 1975, Haffner became
concerned about his working relationship at KDEN and he
asked Robert Esperti, an attorney who had formerly repre-
sented him in his contract negotiations with the Denver
Broncos, to talk to Stephens concerning his conditions of
employment. The testimony of both Esperti and Stephens
regarding this conference is confusing . The confusion un-
24 Any raises granted Herbough , Peterson , or Casey were promised at the
time they were hired and were not of the same category
doubtedly stems from the lack of a precise assignment by
Haffner to Esperti and Esperti's lack of familiarity with the
broadcasting industry. Nevertheless, from this conference
a contract of employment providing for a monthly salary
of $916 per month plus an opportunity to receive a bonus,
provided the sales of his shows exceeded his salary, was
arranged and became effective May I (see Resp. Exh. 1).
Stephens testified that the vacation policy at KDEN was
2 weeks after 1 year of employment for all full-time and
regular part-time personnel. Stephens testified that he con-
sidered Haffner "to be part-time or outside contract labor,
per se. He was paid, as I have described to you earlier on a
commission talent arrangement, calling for him to do a
certain number of broadcasts and as such, was not an em-
ployee of the Company full time prior to May 1 of 1975."
There was other undisputed testimony in the record indi-
cating that part-time employees earned and received their
vacation at one half the rate of the full-time employees.
The facts surrounding the immediate incident leading to
the termination of Haffner are not in serious dispute. Haff-
ner was in the broadcasting studio on May 28. He had
previously made arrangements with Saccamano to cover
his scheduled broadcasts. When he went to pick up his
check, he was advised by Sandy Johnson, the bookkeeper,
that he was not being paid for his 2-week vacation. Haffner
immediately went into Stephens' office where an argument
ensued and voices were raised as Haffner complained be-
cause he was not being paid for his vacation. This confron-
tation resulted in Haffner leaving the office rather briskly
with every intention of calling his attorney in order to
straighten the matter out. According to Haffner, Stephens
followed Haffner to the office doorway and said, "If you
don't calm down I am going to terminate you. And I [Haff-
ner] turned around and I said, will you say that again,
repeat that for me and he said, if you don't calm down, I
am going to terminate you. I said I am not going to calm
down, I repeated it." Whereupon Stephens advised him
that he was discharged. The noisy argument and the refusal
by Haffner to calm down were confirmed by Barbara Her-
baugh and Sandy Johnson, who occupied desks dust out-
side Stephens' office.
On the basis of the above, which is not disputed, I find
that Haffner was not discharged because of union activity.
There is no dispute that Haffner's employment status for
the period from April 1974 until May 1975 was unique and
unlike that any other employee associated with Respon-
dent. I find it wholly unnecessary to decide whether or not
Haffner was an independent contractor, outside help, part-
time help, or a commission agent. Some facts tend to sup-
port one view and other facts tend to support the opposing
view. However, all the facts indicate that his employment
status was quite different from any of the other employees
and thus the question of how much paid vacation, if any,
Haffner was entitled to receive was certainly not a clear-
cut issue. An argument followed because Haffner wanted
and expected a full 2 weeks' paid vacation. Because
Haffner's employment status was unique and totally differ-
ent from any other employee the resolution of his vacation
entitlement would be wholly dependent upon a special
agreement or understanding between the two parties. No
such special agreement or understanding has been shown
KDEN BROADCASTING CO.
to have existed . 25 Haffner was discharged because his
course of conduct on May 28 was embarrassing to the pres-
ident of the company and, on being requested to calm
down , his refusal and continued course of conduct
amounted to insubordination . His discharge-while unfor-
tunate and perhaps not totally justified-was wholly unre-
lated to his union activities.26
Richard Barber 's termination . Barber started to work as a
newsman staff announcer in August 1973. He joined the
Union in April 1975 at the first meeting held at Linda
Botsko's home as did 11 other employees engaged in on-
the-air announcing (G.C. Exhs. 6a-6m). His last sched-
uled shift was from 1 . 30 until 7 pm This shift included
what is referred to as afternoon drive time and is some of
the most expensive time for the advertisers to purchase. He
worked the shift with Ron Woods and they shared the "air
time ." He said that he had been on that shift since January
On June 12 Galey called Barber to his office and showed
him a new schedule which provided for Barber to work
from 4 until 11 a.m. Barber was going to school and had a
full morning schedule and as a consequence advised Galey
that he could not work the new schedule. Galey offered to
adjust the schedule by a half hour either way, but when this
was likewise unacceptable, Barber resigned.
General Counsel contends the resignation was a con-
structive discharge , that Respondent 's action was deliber-
ate and was motivated by Barber's union activities.
Barber acknowledged that he had worked various sched-
ules during the course of his employment and had always
adjusted to them . When specifically asked what the ar-
rangements had been he replied : "Well, sir, during the time
that Ross Regan [sic ] was then news director, when a
scheduled change was coming up, Ross always asked me if
the change would be satisfactory or I would be able to fit
in with it . Whenever there was a change, he at least asked
me and if there was a possibility that change would be
accepted and I could rework my schedule." Barber further
testified that at the time the schedule change was made-
June 12-it was too late for him to rearrange his school
schedule and unless he was enrolled in school he would
lose his veteran 's educational money. He was receiving ap-
proximately $300 per month while attending school and he
needed this for his living expenses.
Ross Reagan , Jr., was called to testify on behalf of Re-
spondent and testified that he is now program director for
WDAF Radio in Kansas City, Missouri , and has no con-
nection whatsoever with the Respondent in this case. Reag-
an was formerly the program operations manager at
KDEN until leaving in April 1974. In relevant part Reagan
testified as follows:
Q. Do you know an individual by the name of Rick
Barber?
25 Even if Haffner were to be regarded as an "employee," his less-than-
full-time status from April 1974 until September 1974 would indicate that
under company policy he would not have been entitled to a full 2 weeks'
paid vacation as of May 28, 1975
26 It should be clear that this decision makes no effort to resolve the
question of whether or not Haffner may have been entitled to some vacation
pay I have only decided that the question was subject to different points of
view and Haffner was discharged because of his insubordinate attitude di-
rected toward the president of Respondent
33
A. Yes.
Q. Was he employed at KDEN when you were
there?
A. Yes.
Q. What were basically his duties during your em-
ployment at KDEN?
A. He was an announcer.
Q. Did you ever discuss with Mr. Barber his sched-
ule or hours of work?
A. Yes.
Q. Did you ever
gard to schooling?
A. No.
in talking with him confer as re-
Q. Did you know that he was in school while you
were employed at KDEN?
A. I was aware that he had gone to school off and
on but don't recall any specific awareness.
Q. What responsibility, if any, did you have when
you were at KDEN as regards schedule changes?
A. I made the schedule changes. I was responsible
for it to the owner and General Manager for the on-air
sound of the radio station
sonnel , on-air personnel.
Q. Did you make any
range his schedule so as to
ule?
A No.
and the programming per-
attempt whatsoever to ar-
conform to his class sched-
a
Q. As regards Rick Barber , did you ever tell him
that his hours were not subsequent [sic] to change?
A. No.
Dr. John T. Reed testified on behalf of Respondent. He
is director of student records for the Metropolitan State
College and through his testimony Respondent's Exhibits 7
and 8 were introduced. These exhibits indicate that classes
for the summer quarter might have been added through
June 13 and that full refund was available for classes
dropped before June 20.
While it may have been a time-consuming inconvenience
for Mr Barber, the testimony of Dr. Reed clearly indicates
that it was possible for Barber to have accommodated his
school schedule and his KDEN work schedule without los-
ing any veteran's educational benefits.
Respondent's explanation of the June 12 schedule
change for Barber was to strengthen their early morning
"sound," because the radio rating services had only recent-
ly started rating the very early morning hours. The rating
showed that KDEN had more listeners in the early morn-
ing hours than they did at any time between 6 p.m. and 12
midnight. General Counsel argues effectively that the af-
ternoon drive time is the more expensive advertising time
and the stronger voice personalities should serve on the
afternoon shift. Ross Reagan testified that his current em-
ployer regards the early morning hours as extremely impor-
tant; Lee Winslow, who was a higher paid individual than
Rick Barber, was assigned the early morning shift after
Barber's resignation. At the time of the hearing of this mat-
ter Lamonica, the news director who took Galey's position,
was handling the early morning broadcast. I shall not at-
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempt to resolve the dispute between General Counsel and
Respondent as to whether one should assign the more ex-
perienced and capable talent to those times that produce or
call for the higher advertising costs, or whether it is wiser to
assign the better qualified announcers to those periods of
time that have the greater listening audience, because that
kind of decision is not properly within my province. It is
the kind of management decision that is made every day
and causes some business enterprises to succeed and others
to fail. I find nothing wrong in Respondent requesting Bar-
ber to change his afternoon shift to an early morning shift.
Frequent schedule changes were normal procedure. I find
no illegal motivation on the part of the employer. Barber
could have continued school and also continued to work.
Barber's choice of resignation can in no way be construed
as a constructive discharge. 27
Nancy Reubert's termination Reubert was hired by
KDEN on October 16, 1974, and terminated on September
1. While so employed, she worked various shifts including
I 1 p m. to 6 a.m.; 6 p.m. to 1 a.m.; 4 to 11 p.m.; 8:30 a.m.
to 4 p.m.; and 10:30 a.m. to 6 p.m On August 29 she was
working the 6 p.m. until I a in. shift when Galey informed
her that her schedule was being changed to the overnight
(11 p.m. to 6 a.m.). When she protested that, "I can't do it,"
she was told that she would have to speak to Tony Lamoni-
ca because he was taking over 28 Thereafter, Reubert testi-
fied she talked to her doctor and obtained from his office a
note stating in part, "I don't believe that it would be in her
best interest to resume the 3rd shift." (See G.C. Exh 14.)
Lamonica told her to come in the following Monday On
Monday she talked to Lamonica and Stephens. She testi-
fied Stephens said, "You know, we sympathize with your
position, but if you can't work the assigned shift, then you
are no longer employed at KDEN."
The selection of Reubert to work the overnight was
made in conference by Galey, Lamonica, and Stephens,
and became necessary because of the resignations of Wil-
son and Galey. Wilson had been working the 1 to 8 a.m.
shift. The choice was between Nancy Reubert and Don
Wimberly. Galey testified, "They asked what I thought
would be better and I felt that Mr Wimberly, who is work-
ing the mid-day time at that period during the tape shift, I
felt he was more valuable in that respect because he might
be needed as an editor Since Nancy was more inclined to
wanting to do air work and tape work I felt logically Nan-
cy would be the person to put in there. That was my rec-
ommendation." 29
The inability or unwillingness of Nancy Reubert to work
the "overnight" was not a foregone conclusion. Reubert
had formerly worked the overnight shift and there is not
27 See Kai-Die Casting Corporation, 221 NLRB 1068 (1975), wherein the
Board expressly indicated that scheduling and hours adjustments consistent
with past practice were not violative of the Act
28 Galey resigned effective September I and accepted a position at a sta-
tion in Kansas City Tony Lamonica had joined KDEN on August 16 He
had previously been executive director of news at KHOW in Denver and
had some 15 years' experience in radio
29 While I can only speculate at this late date, based on all the testimony
it would make more sense if in the above quote the word "during" was
"doing" and there was a not before the words "tapework" in the next to last
sentence
one scintilla of evidence to indicate that she had ever ad-
vised Respondent that working the overnight would be
harmful to her health until after she was notified of the
change in schedule . The record is clear that Respondent
had frequently changed the employees ' schedules before
the advent of the Union and particularly Nancy Reubert's
schedule. While it would have been a considerate act on
Respondent ' s part to have rearranged their scheduling to
accommodate Ms. Reubert , the failure to do so is not proof
of unlawful motivation intended to bring about her resig-
nation I credit the testimony of Galey regarding the rea-
sons for the assignment of Reubert to the overnight shift
on August 29 and find that she voluntarily elected to resign
effective September 1.30
Linda Botsko's termination. (See sec. D, supra, for back-
ground on Linda Botsko's employment ) The organiza-
tional meeting of the Union was held in her home on April
3. As discussed herein supra Botsko's number of scheduled
hours of work as well as her starting time was changed on
June 12 She had formerly reported for work at 9:30 a.m.
and her new schedule called for her to report at 7 a.m. On
August 29 she was asked by Tony Lamonica to report at 6
a m.3' Botsko testified that at that time she advised Lamo-
nica that it would be difficult for her to work either the 7
a.m. or the 6 schedule when school started , because it was
necessary for her to transport her two sons to high school
at approximately 8 a.m. Botsko worked the 6 a.m. shift
from September 2 through September 26. On September 25
she submitted her resignation to Lamonica stating that "it
was causing too severe family hardship and it was affecting
my health."
The proof that Mrs. Botsko 's hours were deliberately
changed for some sinister or illegal motive to bring about
her resignation is totally lacking . Mrs. Botsko was never
told or promised a late shift in order to accommodate her
personal problems. Botsko's assignment to an earlier start-
ing schedule that would best serve the business needs of
Respondent was nothing more than the legitimate exercise
of business judgment . Her resignation on September 26
can in no way be construed as a constructive discharge.32
F The Refusal To Bargain
The General Counsel has alleged two different areas or
acts on the part of Respondent to be violative of Section
8(a)(5) of the Act. The first relates to the unilateral change
of working schedules since on or about June 12 and the
second relates to Respondent's refusal to meet with the
Union since on or about June 16.
The record is replete with credited and undenied testi-
mony that the working schedules of employees were fre-
quently changed by Respondent before the advent of the
Union.33 The working schedules of a number of employees
were changed after the Union became the certified bar-
70John Hutton Corp, d/b/a KUMU Radio AM/FM, 213 NLRB 73 (1973)
31 Other schedule changes were made at the same time See the discussion
recardmg Nancy Reubert's termination supra
2 See Heck's, Inc, 174 NLRB 951(1969),and Gerbes Super Market, Inc,
217 NLRB 394 (1975)
33 1 e , Nancy Reuben working five different schedules during a period of
employment of less than I year
KDEN BROADCASTING CO. 35
gaining representative. However, where the past practice is
so commonplace as to be a basic part of the job itself a
continuation of that past practice cannot be characterized
as a unilateral change in working conditions. The Board
has clearly indicated that schedule and hour changes that
are consistent with an employer's past practice are not vio-
lative of the Act.34 The rule is well reasoned because if an
employer were prevented from operating in its normal rou-
tine fashion once a union is certified, it could bring the
business to a grinding halt. A basic purpose of the Act is to
encourage and promote industrial peace and it was never
intended to bring about a cessation of production. I shall
recommend dismissal of that portion of the 8(a)(5) allega-
tion dealing with schedule changes.
The facts regarding Respondent's refusal to meet with
the Union's committee are not in dispute The Union was
certified on June 5 and the first contract negotiation ses-
sion took place between the parties on June 9. The Union's
negotiating team was comprised of Thomas, the AFTRA
business representative, and employees Reubert and Bot-
sko. The Union had presented their package proposal
(G.C. Exh. 7) by mail on May 27 and there was a full
discussion of the various contract clauses. The parties
agreed to meet each Monday afternoon until agreement
was reached. By the following Monday-which would
have been June 16-Haffner had returned from his vaca-
tion and he appeared at the bargaining conference on be-
half of AFTRA.
At this point Respondent refused to negotiate with the
Union so long as Haffner was a member of its bargaining
team and Stephens said he wanted to talk to his attorney.
Stephens was unable to reach his attorney immediately and
refused, and continues to refuse, to meet with the Union so
long as Haffner is a member of the bargaining team. The
Union has insisted that Haffner be permitted to partici-
pate.
Respondent candidly acknowledges in its brief that Ste-
phens refused to meet with the Union so long as Haffner
was a member of the negotiating committee because, "Mr.
Haffner was loud, bitter and abusive on the date of his
discharge" and "Because he had threatened civil suit and
as a managerial employee, who had access to confidential
records Mr. Haffner was an inappropriate person for the
Union to select." Respondent then cites Brotherhood of
Teamsters and Auto Truck Drivers Local No. 70 of Alameda
County, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Kockos Bros, Inc),
183 NLRB 1330 (1970), as standing for the proposition
that where the presence at the bargaining table of a repre-
sentative "would result in such `ill-will ... or conflict of
interest as to make good-faith bargaining impractical,"'
that it is not unlawful for either party to refuse to meet
with such a person present.35
The Respondent has accurately cited what I believe to
be the law in this area; but, as the Board indicated in the
Teamsters case, there must be persuasive evidence that the
presence of the particular individual would create ill will
and make good-faith bargaining impossible. I find no such
persuasive evidence in this record. Haffner appeared to be
an intelligent, congenial, capable, and forceful individual
that had an honest difference of opinion with Stephens
resulting in his termination. However, this is hardly persua-
sive evidence that he could not fruitfully participate on the
Union's negotiating team. Respondent's position is purely
anticipatory and speculative. In the Teamsters case, cited
supra, the union was found to have violated its duty to
bargain because of its refusal to meet with the employer's
representative who was a former president of the union
involved.
The Board indicated in an early case, Kentucky Utilities
Company, 76 NLRB 845 (1948), 182 F 2d 810 (C.A. 6,
1950), that it will not qualify the right of a union to select
the individuals who will act on its behalf on negotiations
with an employer where the employer's objections to the
exercise of that right are "predicated solely on animosity or
distrust." This broad rule was somewhat modified in Shell
Oil Company and Shell Chemical Corporation 36 where the
Board held valid a negotiated clause which limited the
union's grievance committee to five employees. As indicated
earlier, this record is far from persuasive that Haffner's
presence at the bargaining table would have been a disrup-
tive force that would prevent good-faith bargaining by the
parties. I shall find that Respondent has violated Section
8(a)(5) and (1) of the Act by its refusal, on June 16 and at
all times since, to meet with the duly certified collective-
bargaining representative of an appropriate bargaining
unit for purposes of bargaining.
V THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of Respondent set forth hereinabove, oc-
curring in connection with the Respondent's operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States, and tend to lead, and have lead, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action necessary to effectuate the policies of the Act.
Moreover, because Respondent's refusal to meet with the
Union's negotiating team has all the appearances of a de-
liberate dilatory tactic which has cost the Union most of its
certified year, I shall recommend that Respondent be re-
quired to continue to bargain and recognize the Union for
1 year from the date it begins to negotiate with the Union's
negotiating team.
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
14 Ka(-Die Casting Corporation, supra
35 See General Electric Company v N L R B, 412 F 2d 512 (C A 2, 1969) 3693 NLRB 161 (1951)
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Stephens, Galey, and Mineo are supervisors within
the meaning of Section 2(11) of the Act
4. By its refusal to meet with the Union's authorized
bargaining representatives, Respondent has failed and con-
tinues to fail to bargain in good faith with the Union and
by its conduct has violated Section 8(a)(5) and (1) of the
Act.
5. The appropriate bargaining unit is:
All employees employed by Respondent at its Denver,
Colorado, operation contributing on a regular basis to
the production, preparation and presentation of radio
programs; but excluding office clericals, guards, pro-
fessional employees and supervisors as defined by the
Act.
6 Except as specifically indicated in paragraph 4, imme-
diately above, Respondent has not violated the Act.
[Recommended Order omitted from publication.]