Radio Station KPOL

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 359 (N.L.R.B. 1967)

RADIO STATION KPOL
Coast Radio Broadcasting Corporation d/b/a Radio
Station KPOL and American Federation of
Television and Radio Artists, Los Angeles Local,
AFL-CIO
Coast Radio Broadcasting Corporation , Employer-
Petitioner and American Federation of Television
and Radio Artists , AFL-CIO, Union and Gary
Brandt , Edmonde Haddad , et al., Intervenors.
Case 31-CA-61 (formerly 21-CA-6615) and
Case 31-RM-3 (formerly 21-RM-1172)
June 30, 1967
DECISION, ORDER, AND DIRECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 19, 1966, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent, Coast
Radio Broadcasting Corporation, d/b/a Radio Sta-
tion KPOL (hereinafter Respondent or KPOL),
had not engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, and
recommending dismissal of the complaint, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also recommended that the
Board overrule the challenges to the ballots cast in
the representation election by George Crofford,
Rod Farrell, Clyde Cadwell, Al Mallicoat, and
David Woods. Thereafter, the General Counsel and
the Charging Party filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs, the
Respondent filed exceptions and cross-exceptions
to the Trial Examiner's Decision and supporting
briefs, and answering briefs were filed by the Inter-
venors, the Respondent, and the Charging Party.
The Charging Party requested oral argument. I
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this' case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made-,at the hearing- and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Ex-
aminer's Decision, the exceptions, the cross-excep-
tions, and the briefs, and hereby adopts the Trial
Examiner's findings, conclusions, and recommen-
dations only to the extent indicated below.
The facts, which are more fully developed in the
Trial Examiner's Decision, are essentially as fol-
The Charging Party's request for oral argument is hereby denied as, in
our opinion, the record, including the Charging Party's exceptions, briefs,
and answering briefs, adequately presents the issues and positions of the
parties
' The Regional Director dismissed the decertification petition in view
of the refusal-to-bargain charge.
359
lows. KPOL is a music and news radio station.
Prior to the April 5, 1965, discharges that are the
subject of Section 8(a)(3) charges here, KPOL em-
ployed five newsmen and seven music announcers
(the two functions were not interchangeable).
KPOL had entered into agreements with Amer-
ican Federation of Television and Radio Artists,
Los Angeles Local, AFL-CIO (hereinafter AF-
TRA), for its announcers and newsmen before
1961, and had negotiated and signed a 3-year
AFTRA agreement in 1961 with a termination date
of April 30, 1964. A decertification petition had
been filed, and a complaint had issued based on a
refusal-to-bargain charge against KPOL.2 In March
1965, the Board dismissed the complaint.3
During a break in negotiations in 1964, KPOL
ordered "automated" equipment that could broad-
cast prerecorded music, commericals, and program
aids-everything except newscasts-in the desired
sequence without an attendant, thus eliminating the
need for an announcer on duty whenever the station
was on the air. On the basis of estimates by equip-
ment manufacturers, KPOL determined that it
would be able to supply all announcing require-
ments for the new system with three men.4 The
equipment was ordered before the resumption of
negotiations, and in January 1965 two announcers
approached their supervisor, Program Director
Robertson Scott, for information about the new
machines. Scott made a lunch appointment with an-
nouncer George Crofford, at which time he re-
peated the assurance he had made when first ap-
proached by Crofford, that no announcer would
lose his job because of the new equipment since
there would be work enough for all. Announcer
Rod Farrell also spoke to Scott about the new
machines. Farrell thought fewer announcers would
be needed, but Scott assured him that KPOL would
retain the full announcing staff. On January 29,
Scott sent all announcers a memorandum stating
that the equipment would be installed in a few
weeks but that "[o] ne thing is certain: no one will
be out of a job." The expanding needs of the KPOL
organization would provide work "in production, in
recording music tapes, in television." (The televi-
sion work referred to was in connection with a
recently acquired television station.) A tentative
schedule of work assignments under the new
system was given, and Scott wrote that announcer
Clyde Cadwell had been offered a news job,.
Negotiations were resumed February 8, 1965, at
a meeting attended by a representative of IBEW,
for KPOL's engineers, as well as by KPOL and
AFTRA representatives. At this and subsequent
' 151 NLRB 1101.
The newscasting function and the five-man news staff were not af-
fected by the new equipment
166 NLRB No. 72
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sessions , the KPOL representative , Frederick
Custer, again assured AFTRA that all announcers
would be retained when the automatic equipment
was installed . Custer testified that he asked nothing
in return for the assurance of continued employ-
ment, although he did ask AFTRA 's permission for
announcers to perform new duties (some of which
were currently being done by employees in the
IBEW unit) and for KPOL to broadcast announc-
ers' voices off their regular shifts without paying
a premium . In explaining his promise to retain all
announcers , Custer mentioned employment at the
new television station.
On February 19, KPOL filed the present petition
for a representation election in the staff announcers'
unit (Case 31-RM-3).
Two events in March affected the economic need
for announcers. An outside contractor , Alto Fonic,
approached KPOL with an offer to prepare music
tapes for use on the new equipment and to furnish
the full-time services of one of its employees. Alto
Fonic offered these services at a low price , asser-
tedly because the prestige of a KPOL contract
would attract other work . KPOL accepted the bid.
The new KPOL-owned television station began
broadcasting , but instead of the 50 to 100 advertis-
ing accounts Custer had anticipated when he said
there would be announcing work connected with
television , the station had only 4 or 5 accounts.
On April 2, at another bargaining session , Custer
nevertheless repeated his offer to retain all an-
nouncers. Later that day, six of the seven announc-
ers and two of the five newsmen in the AFTRA
unit struck in support of AFTRA 's bargaining
demands.
KPOL hired one announcer the night of April 2;
although this man, Vanderhurst , was a fulltimer, he
was assertedly the permanent replacement for a
part-time announcer . KPOL also ordered the final
steps in the hookup of its new equipment, which
had been delayed until then because IBEW had
threatened to strike when the new machinery was
put into use.
On Monday , April 5, the parties met for a previ-
ously scheduled negotiation session , which KPOL
broke up when it refused to continue to deal with
AFTRA as the announcers ' representative, al-
legedly because AFTRA had sent the Board's Re-
gional Director a telegram on April 2 disclaiming
representation of KPOL announcers . On the after-
noon of April 5, however , KPOL revealed its true
motivation when it sent striking newsman McElroy
and four of the striking announcers, Cadwell, Crof-
ford , Farrell , and Mallicoat , the following discharge
telegram:
ACQUISTITION OF AUTOMATIC EQUIPMENT HAS
OPENED THE WAY FOR KPOL TO OPERATE WITH
REDUCED PERSONNEL REQUIREMENTS
ALTHOUGH PREVIOUSLY PREPARED TO OFFER
JOB SECURITY TO THE COMPLETE STAFF OF 12
MEN OUR POSITION IS NOW THAT THE TOTAL
COMPLEMENT OF AIR WORKERS WILL NUMBER
7. THIS IS TO ADVISE YOU DIRECTLY IN AS
MUCH AS AFTRA HAD NOTIFIED THE NLRB
THAT IT DISCLAIMS REPRESENTATION OF THIS
STATION'S ANNOUNCERS THAT YOUR SERVICES
ARE NO LONGER REQUIRED FOR EFFICIENT
OPERATION AND YOUR EMPLOYMENT IS
HEREBY TERMINATED.
Frederick D. Custer
McElroy was dismissed , even though the new
equipment was never intended to change newscast-
ing procedures.
On April 7, after auditioning several applicants,
KPOL hired announcer Woods, assertedly as a per-
manent replacement for striking announcer Harris.
After this point , KPOL was operating the new
equipment with three announcers; the one an-
nouncer who had not joined the strike and the two
permanent replacements . The three-man staff
proved inadequate , and KPOL hired a fourth an-
nouncer a month later.
AFTRA filed Section 8(a)(3) and ( 1) charges
April 7, 1965 , and amended them April 29 by ad-
ding an 8(a)(5) charge . A consent election was held
April 15, resulting in three votes for AFTRA, three
against, and eight challenges. The Regional
Director issued the complaint on February 18,
1966, charging violation of Section 8(a)(3) and (1)
of the Act; the General Counsel affirmed the Re-
gional Director ' s refusal to issue a complaint alleg-
ing a violation of Section 8(a)(5). The determination
of five of the eight election challenges was later con-
solidated with the unfair labor practice case.5
The Trial Examiner found that the Respondent
had not unconditionally promised continued em-
ployment to the discharged announcers , despite the
telegram quoted above and prior assurances.
Because he considered an unconditional promise of
job security an essential element in finding a viola-
tion , he recommended dismissal of the 8(a)(3) com-
plaint . We disagree . We find that the Respondent's
promise or assurance of continued employment was
5 A group of nonstriking employees of KPOL intervened in the
representation proceeding , supporting their Employer on the issue of the
challenges, and filed a brief with the Board.
RADIO STATION KPOL 361
not on any condition, such as the conclusion of a
satisfactory collective-bargaining agreement, but
was wholly unconditional.6 We further find that the
violation turns on whether the Respondent
discharged the four announcers for reasons linked
to the April 2 strike.
We conclude that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by its discharge of an-
nouncers Crofford, Farrell, Cadwell, and Mallicoat
on April 5,1965. Ever since the new equipment was
delivered to KPOL, early in 1965, Respondent had
assured the announcers that their employment
would be unimpaired, despite the new methods the
machines made possible. The Respondent concedes
this fact, and frankly admits that the April 2 strike
was the precipitating event that brought about the
discharges. The Respondent argues, however, that
the discharges were lawful because they were not
punishment or retaliation for striking, but were
responses to a change in the economic situation
brought about by the strike.
More specifically, KPOL's argument is that the
discharges were justified because based on anticipa-
tion of costs which KPOL judged would flow from
the strike. "A strike is costly to an employer," it ar-
gues, and "threat of a strike is a powerful bargaining
weapon." Therefore, KPOL claims to have
balanced the costs that might be expected, as an in-
herent part of a strike, against business considera-
tions; and it decided before the strike, to continue
paying unneeded announcers for an unspecified
time in order to put off the threatened strike.7 When
the strike came, however, Respondent no longer
held back the discharge of the announcers. Re-
spondent asserts, in effect, that it was legally en-
titled, on its appraisal of the economic factors, to
discharge the announcers because they changed the
economic situation by going on strike.
We find no merit in this argument.
In the first place, the instant record plainly
refutes Respondent's assertion that the discharges
were precipitated by changed economic conditions
resulting from the strike. Respondent has offered no
objective evidence of any such changes. Indeed, no
such changes occurred between April 2, when
Respondent again assured AFTRA in uncondi-
tional terms that automation would not result in job
displacement, and April 5, when the discharges oc-
curred. Both the strike and any economic con-
sequences thereof were within Respondent's an-
ticipation on April 2. Nevertheless, Respondent ap-
parently was unconcerned with strike-caused costs
at the negotiation session that morning. Its failure
at that time to condition in any way its assurances of
continued employment, despite the imminence of
the strike, strongly suggests that the guaranteed
tenure extended the announcers was neither condi-
tioned upon nor influenced by an avoidance of costs
inherent in strike action. Respondent's rescission of
this guaranteed tenure a few days later was not ac-
tuated by a genuine desire to reduce costs, as is
further indicated by the plain fact that absolutely no
savings could be realized by the precipitate
discharge of strikers who were not even on payroll
status at the time of their termination. Also signifi-
cant to an assessment of Respondent's motive is the
discharge of a striking newsman on the same ground
as the announcers, even though the newsmen were
not affected by the installation of automated equip-
ment. In our opinion, these factors, particularly the
timing of the discharges in relation to the com-
mencement of the strike, the absence of any cogent
explanation of Respondent's action other than as a
strike reprisal, and the fact that Respondent, on
April 5, had strong basis for suspecting that the em-
ployees in the unit would support the Union in the
impending election, amply establish that Respond-
ent terminated the four announcers in reprisal for
their union and strike activities.
In any event, we wish to note that our result
herein would not be altered even if we were to find
that anticipated strike costs were in fact the basis
for Respondent's decision to terminate the announc-
ers. Insofar as the Respondent' s argument is based
on its anticipation of strike costs, it must be
emphasized that here the economic calculations
which led to the discharges resulted from the very
fact of the strike. It is in the nature of a strike to
threaten disruption of business, and to produce ad-
verse publicity, all potentially costly to an em-
ployer. To permit employers to plead economic
justification for discharging strikers because the
strike removed the incentive for withholding the
discharges, would, in practical effect, permit out-
and-out retaliatory discharges. Employers, when-
ever they chose to treat strike threats as KPOL did
here, could promptly discharge striking employees,
even informing them that they lost their jobs
because they went on strike, and still not violate
Section 8(a)(3). The instant case provides a glaring
illustration of the impact of such conduct on em-
ployees who exercise their protected right to strike.
The Respondent repeatedly promised job security
for announcers, even after it contracted for the
recording of music tapes and discovered there
would be little television work-right up to the day
6 In finding that the promise was not conditional, we rely on the fact
that said assurance was concededly made to employees and to the Union
in unconditional terms, and under circumstances which clearly disclose
that Respondent sought to avoid any bargaining on this issue by assuring
the Union that job security of its announcers would be preserved not-
withstanding any reduction in jobs resulting from the installation of new
automated equipment Respondent's conduct in no way reflected an inten-
tion to relate its assurances either to the outcome of bargaining or to the
absence of a strike.
' There was no attempt to spell out the costs the Respondent feared, or
to show what costs did, in fact, result. Respondent, although it paid un-
needed announcers for months to avert a strike , chose to dismiss them
when, as strikers , they were not drawing any salary . The dismissals added
a new strike issue, thus tending to prolong the strike.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strike. Three days later, the Respondent told
four strikers that their jobs were gone, "although
[KPOL had been] previously prepared to offer job
security...." Only the strike had intervened.
Since we have found that the discharges of
George Crofford, Rod Farrell, Clyde Cadwell, and
Al Mallicoat prior to the April 15 representation
election violated Section 8(a)(3) and (1), we will
overrule the Employer's challenges to the ballots
cast by these employees.
The Respondent's commission of an unfair labor
practice (the April 5 discharge of four announcers),
which had the natural effect of tending to prolong
the strike, converted what had previously been an
economic walkout into an unfair labor practice
strike.8 When David Woods was hired as a replace-
ment 2 days later, he replaced one or more unfair
labor practice strikers entitled to reinstatement.9
We therefore find that Woods was not eligible to
vote April 15, and we will, contrary to the Trial Ex-
aminer 's recommendation , sustain the challenge to
his vote.
THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the operations of
Coast Radio Broadcasting Corporation d/b/a Radio
Station KPOL, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow thereof.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Since we have found that the Respondent
discharged George Crofford, Rod Farrell, Clyde
Cadwell, and Al Mallicoat because of the strike in
which they were participating, we shall order the
Respondent to rescind the discharges, and, upon
application, offer them immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, if it has not already done
so,10 dismissing, if necessary, any employees hired
B See Baldwin County Electric Membership Corporation , 145 NLRB
1316, 1318.
9 The parties were in dispute as to whether Woods exclusively replaced
Harris , who was not terminated but remained on strike, or also replaced,
in part, two of the discharged strikers. Even if we accepted Respondent's
position that Woods replaced only Harris -as the Trial Examiner
found-we would still reach the result that Woods is ineligible, since the
after their discharge. The requirement for reinstate-
ment is limited to the level of employment in the ap-
propriate positions which is called for by the
Respondent's current equipment and methods of
operation, since there was no violation found (or,
indeed, alleged) concerning the Respondent's shift
to new equipment and procedures that changed the
method of performing the unit work and the number
of employees needed in the unit. We will, however,
order the Respondent to place discriminatees for
whom work is not immediately available, after their
replacements have been dismissed, on a preferential
hiring list, to be hired for suitable openings ahead of
employees who were hired subsequent to their
discharge (i.e., after April 5, 1966), or new appli-
cants. Distribution of jobs to the discriminatees
pursuant to this Decision shall be in accordance
with nondiscriminatory practices heretofore applied
by the Respondent in the conduct of its business.
We shall also order the Respondent to make
whole the employees discriminatorily discharged on
April 5, 1966, for any losses they may have suf-
fered because of the Respondent's discrimination,
by payment to each of them of a sum of money
equal to the amount that he normally would have
earned as wages from the date of application for
reinstatement to the date of the offer of reinstate-
ment, or placement on a preferential list, as the case
may be, less his net earnings during said period, the
backpay to be computed on a quarterly basis, in ac-
cordance with F. W. Woolworth Company, 90
NLRB 289, with 6 percent interest per annum as
set forth in Isis Plumbing & Heating Co., 138
NLRB 716. Earnings in one quarter shall have no
effect upon the backpay liability for any other such
period. We shall also order the Respondent to
preserve and, upon request, make available to the
Board its payroll and other records necessary to
determine employment rights and the amount of
backpay due.
As it is possible, however, that work might not
have been available for one or more of these em-
ployees even if the Respondent had not engaged in
any unfair labor practices, this possibility will be
taken into consideration in determining the amounts
of backpay due to these employees in compliance
with our Order herein.
In accordance with our conclusions respecting
the challenges to the ballots of Crofford, Farrell,
Cadwell, Mallicoat, and Woods, we shall direct the
Regional Director to open and count the ballots of
Crofford, Farrell, Cadwell, and Mallicoat, but not
strike was an unfair labor practice strike on the date Woods was hired, and
Hams was an unfair labor practice striker entitled to reinstatement upon
application.
10 Although the Respondent sent Crofford a job offer on May 12, 1966,
which Crofford declined, this offer-made while the strike was in
progress -does not satisfy the Respondent 's duty as set forth in the Order
following.
RADIO STATION KPOL
that of Woods, and to issue an appropriate certifica-
tion.
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and the entire record in this case, we hereby adopt
the Trial Examiner's Conclusions of Law 1 and 2,
and, in addition, make the following Conclusions of
Law:
"3. By discharging George Crofford, Rod Far-
rell, Clyde Cadwell, and Al Mallicoat because they
participated in the April 2, 1966, strike, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(3) and (1) of the Act."
4. The unfair labor practices found in Conclu-
sion of Law 3, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Coast Radio Broadcasting Corporation d/b/a
Radio Station KPOL, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from discouraging member-
ship in American Federation of Television and
Radio Artists, Los Angeles Local, AFL-CIO, or in
any other labor organization of its employees, by
discharging or in any other manner discriminating
against employees in regard to hire or tenure of em-
ployment or any term or condition of employment.
2. Take the following affirmative action which
we find will effectuate the purposes of the Act:
(a) Upon application, offer to George Crofford,
Rod Farrell, Clyde Cadwell, and Al Mallicoat im-
mediate and full reinstatement to their former or
substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges,
dismissing , if necessary, any employees hired sub-
sequent to their discharge, subject, however, to the
provisions set out in the section above, entitled
"The Remedy." If there are not sufficient suitable
positions available to permit immediate and full
reinstatement of some or all of the above-listed dis-
criminatees' after dismissal of subsequently hired
employees, offer placement to those discriminatees
not fully reinstated on a preferential hiring list for
employment in suitable new openings , under which
they will be hired for such openings in preference to
employees who were hired subsequent to their
discharge, or new applicants.
(b) Make whole George Crofford, Rod Farrell,
Clyde Cadwell, and Al Mallicoat for any losses
they may have suffered because of the discrimina-
tion against them, in the manner set forth in the sec-
tion herein entitled "The Remedy."
363
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary for deter-
mination of the amount of backpay due and the
rights of reinstatement under the terms of this
Order.
(d) Notify any of the above-named employees
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
(e) Post at its offices and radio studios copies of
the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
an authorized representative of the Respondent,
shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 31,
in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
WE HEREBY DIRECT the Regional Director for
Region 31 to open and count the ballots cast in the
representation election of April 15, 1965, by
George Crofford, Rod Farrell, Clyde Cadwell, and
Al Mallicoat, and thereafter to issue an appropriate
certification of the results of the election.
11 In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals, En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT discourage membership in
American Federation of Television and Radio
Artists, Los Angeles Local, AFL-CIO, or in
any other labor organization of our employees,
by discharging or in any other manner dis-
criminating against employees in regard to hire
or tenure of employment or any term or condi-
tion of employment.
364 DECISIONS OF NATIONAL LABDR RELATIONS BOARD
WE WILL offer to George Crofford, Rod Far-
rell, Clyde Cadwell, and Al Mallicoat im-
mediate and full reinstatement to their former
or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, dismissing, if necessary, any em-
ployees hired subsequent to their discharge, to
the extent that we currently require the ser-
vices of employees in their former or substan-
tially equivalent positions. If there are not suf-
ficient suitable positions available to permit im-
mediate and full reinstatement of some or all of
the above-listed discriminatees after dismissal
of subsequently hired employees, we will offer
to those discriminatees not fully reinstated
placement on a preferential hiring list for suita-
ble new openings, under which we will hire
them for such openings in preference to em-
ployees who were hired subsequent to their
discharge, or new applicants.
WE WILL make whole George Crofford, Rod
Farrell, Clyde Cadwell, and Al Mallicoat for
any losses they may have suffered because of
the discrimination against them.
COAST RADIO BROAD-
CASTING CORPORATION
D/B/A RADIO STATION
KPOL
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to reinstatement under
the terms set forth above upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Bartlett Building, 215 West Seventh Street,
Los Angeles, California 90012, Telephone
688-5801.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR M . GOLDBERG , Trial Examiner : Upon an
amended charge filed on April 29, 1965, by, the American
Federation of Television and Radio Artists, Los Angeles
Local, AFL-CIO (herein called AFTRA or the Union),
the complaint herein issued on February 18, 1966, alleg-
ing that Coast Radio Broadcasting Corporation d/b/a
Radio Station KPOL (herein called the Respondent or
KPOL) violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein called the Act),
by discharging four named employees because they par-
ticipated in a strike against KPOL.1 Respondent's
defense, in substance, is a denial that the discharge of the
four employees was in reprisal for their protected activi-
ties. Rather, Respondent asserts that their termination
was occasioned by the automation of KPOL's broadcast
facilities which enabled Respondent to operate with less
than half its former announcing staff.
By order dated May 2, 1966, the National Labor Rela-
tions Board (herein called the Board) consolidated for
hearing with the unfair labor practice complaint, chal-
lenges to certain ballots cast in a representation election
conducted among Respondent's employees on April 15,
1965, in Case 31-RM-3. The challenged ballots were
those of the four alleged discriminatees in Case
31-CA-61 and that of a strike replacement hired by
Respondent who, the Union claims, was a replacement
for a discriminatorily terminated employee and, there-
fore, an ineligible voter.
All parties participated in the hearing conducted by me
at Los Angeles, California, on May 3 through 5, 1966,
and were afforded full opportunity to be heard, to in-
troduce evidence , to examine and cross-examine wit-
nesses, to present oral argument, and to file briefs.2 Oral
argument was waived and briefs were filed by all parties.
Respondent's motion, made at the close of the General
Counsel's case to dismiss the complaint, on which I
reserved ruling until issuance of this Decision, is disposed
of in accordance with my findings below.3
Based upon the entire record in the case, my reading of
the briefs, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer did not controvert,
and I find the Coast Radio Broadcasting Corporation is,
and has been at all times material herein, a corporation
with its principal place of business in Los Angeles,
I The Union's amended charge alleged violation of Section 8(a)(5) of
the Act as well as the matters alleged in the complaint . The refusal-to-bar-
gain charge was dismissed on November 8, 1965 , by the Regional
Director for Region 21. On appeal to the Board's General Counsel, this
dismissal was affirmed on December 22, 1965
2 At the opening of the hearing Attorney William J. Bird appeared and
moved to intervene in Case 31-RM-3 in behalf of certain presently em-
ployed employees of Respondent . Mr. Bird was permitted to intervene "to
the extent of [his ] interests ." Thereupon Mr. Bird moved to dismiss Case
31-RM-3, the case in which he had just intervened , and sought to file a
petition for a decertification election in its stead . Following denial of this
motion , Mr Bird participated no further in the hearing . Just prior to the
close of the consolidated hearing , it appearing that the Intervenors had no
interest in Case 3 I-RM-3 other than to secure its dismissal , the Trial Ex-
aminer, sua sponte, removed the Intervenors as parties to Case
31-RM-3 On June 30, 1966, by direction of the Board, an order was en-
tered granting the Intervenors' request of June 6, 1966 , for special permis-
sion to appeal from this ruling, reversing the ruling and restoring the Inter-
venors as parties. Accordingly , Mr. Bird 's briefs have been read and con-
sidered with those of the other parties
3 A stipulation to correct errors in the transcript of the proceedings, en-
tered into by General Counsel, the Respondent, and the Charging Party,
is hereby accepted and the corrections ordered.
RADIO STATION KPOL 365
California, where it is engaged in the business of radio
broadcasting and time sales. Respondent owns and
operates Radio Station KPOL in Los Angeles, Califor-
nia, and annually receives a gross revenue in excess of
$500,000, of which revenue in excess of $50,000 is
derived from advertising nationally advertised products.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Television and Radio Artists,
Los Angeles Local, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent's operations
9 a.m. to 12 noon, "Rhapsody," featuring semiclassical
music with, in Scott's words, "great emphasis on the full,
rich sound of an orchestra."
12 noon to 3 p.m., "Cloud Nine," featuring soft and
gentle music for afternoon siesta time.
3 to 6 p.m., "Commuter's Carousel," featuring bright
music similar to that on Morning Magic.
6 to 9:30 p.m., "Music A La Carte," a program of
dinner music.
9:30 to 10 p.m., "Musical Comedy Theatre," a scripted
show written by Scott, featuring music from one show
each night.
10 p.m. to Midnight, "String Shift," featuring soft
music with no vocals.
Midnight to 6 a.m., the "Big Show," featuring the
modified good music played by KPOL.
On Saturday the 3 to 6 p.m. program is called Saturday
Carousel. The regular schedule does not apply to Sunday;
the entire day's programming was entitled "Holiday in
Hi-Fi," the morning portion being devoted to sacred
music, the afternoon to KPOL good music.
KPOL is principally a "good music" station with
hourly news reports. The news' inserts at 8 a.m., 12 noon,
and 6 p.m. run for 15 minutes each with commentary. All
others are 5 minutes each.
Until the events of the instant case, KPOL employed
12 staff announcers who supplied the voices on the air. Of
this group, five were newsmen and seven were announc-
ers for the music programming, the group directly in-
volved in the proceeding. The newsmen, who write the
commentaries, are selected for training in journalism,
news gathering, reporting, and analysis and not on the
basis of voice quality. The music program announcers
(here called announcers as against newsmen) are chosen
by Respondent for their voice qualities, reading ability,
delivery, knowledge of music, and their general
knowledge of production. At KPOL the newsmen are not
employed interchangeably with the announcers.
KPOL's regular broadcasting day was broken into 15-
minute segments, all but 3 or 4 minutes of each was unin-
terrupted music. In each such 15-minute block there was
a break, called a cluster, during which the announcer gave
the time and title of the show and three commercials were
presented. During the same cluster the music just played
was identified, as was the station, and special material,
called production aids, prepared by Robertson Scott,
Respondent's program director, was read by the an-
nouncers.
The production aids, described by one witness as being
like poetry and by Scott as KPOL's "romancing" of Los
Angeles, were written to be tied into each particular show
and served as an introduction to continue the musical por-
tion. In developing the station format, Scott stressed the
program content rather than the personality of the an-
nouncer.
During the day Respondent's advertising rate structure
varies according to the time. In descending order of cost
the various segments of the day for advertising purposes
are: tragic time, daytime, nighttime, and late nighttime.
There is no traffic time designation on Saturday or Sun-
day.
Respondent's daily broadcasting schedule, the program
name, and program emphasis were as follows:
6 to 9 a.m., "Morning Magic," featuring bright, cheer-
ful music with more announcements than other programs
during the day.
2. The prior dealings of KPOL and AFTRA
Prior to 1961 the independent stations in Los Angeles
had bargained as an informal group with the Union. After
agreement had been reached on general proposals the in-
dividual stations would take up issues unique to them
which would be negotiated separately. However, the
negotiations in 1961 for the agreement which expired in
April 1964 were between Frederick Custer, vice pres-
ident and general manager of Respondent, and Claude
McCue, executive secretary of the Union, with no other
employers or unions present.
On April 30, 1964, the last collective -bargaining agree-
ment between the parties expired. Prior thereto, in
March, a decertification petition had been filed and on
March 6, 1964, the Union filed a refusal-to-bargain
charge against Respondent. In June 1964, McCue and
Custer met, at which time McCue presented written
proposals on behalf of the Union. Though Custer said he
had not yet prepared his counterproposals, one would be
the elimination of the union-security clause. A few days
later at a formal bargaining session Custer gave his reac-
tion to the Union's proposals, there was a full presenta-
tion of KPOL's proposals which were then fully
discussed, and Respondent sought union agreement to
modification of a contract clause limiting the employment
of announcers to duties ordinarily performed. Custer ex-
plained KPOL's wish to use the announcers on television
and sought agreement to a wide definition of announcers'
duties. Further, Respondent wished a change in the
provision requiring additional compensation to an an-
nouncer when his voice was used outside of his regular
shift. McCue expressed the fear that permitting maximum
utilization of announcers could include their sweeping
floors. However, McCue did agree to allow newsmen's
voices to be used off shift without an extra payment, Ad-
ditionally, a wage proposal was made. Thereafter,
negotiations broke off until February 8, 1965.
In the interim a hearing was held on the complaint al-
leging that Respondent had "bargained directly and in-
dividually with the employees . . . concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment." The Trial Examiner's Deci-
sion issued on November 3, 1964, recommending dismis-
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sal of the complaint.4 The Trial Examiner found that
despite repeated efforts by the staff announcers Respond-
ent "remained steadfast and ... refused direct bargain-
ing with the employees as long as the employees were
represented by the Union."5
3. KPOL determines to automate
In the fall of 1964, Respondent decided to automate the
operation of the radio station. The equipment ordered, if
fully utilized, permitted hours of broadcasting without the
presence of announcers . All material, music, commer-
cials, production aids, and station identification could be
prerecorded and, by the use of electronic signals, played
in a predetermined cycle through the broadcast day.
Under the existing operation procedure the presence of
a "live" announcer was required at all times to read
material, and to select, identify, and play the recorded
material. Respondent determined that the operation of
the fully automated station would require the employ-
ment of only three announcers instead of the seven then
on its payroll. In fact only five and a fraction announcers
were needed to staff the unautomated operation. In addi-
tion it was determined that the required number of
newsmen would remain unchanged at five. Thus, KPOL
determined that the minimum employment in the unit
represented by AFTRA could shrink to eight, three an-
nouncers and five newsmen.
Accordingly, during the hiatus in negotiations Respond-
ent ordered the equipment necessary to automate its
operation. Respondent first advised the Union of the plan
to automate in February 1966.
B. The Events ofJanuary 1965
1. Scott reassures announcers Crofford and Farrell
By early January announcers were beginning to ex-
press interest and concern in Respondent's automation
plans.
Announcer George Crofford accosted Scott as the
latter was leaving the station one day early in January and
asked about the workings of the automation equipment.
Scott said the machinery would make work easier for
everybody and that Crofford would like working with it.
When Crofford asked if any announcers would be ter-
minated because of the automation, Scott replied that no
one would be let go as there would be work enough for all.
Scott then suggested that he and Crofford have lunch
together at a later date to discuss further the effects of the
automation on Crofford.
Sometime before January 29 (Crofford was able to
establish this timing as he recalled it was before distribu-
tion of Scott's memorandum of that date, infra, Scott and
Crofford lunched together, at which time they discussed
4 I hereby take official notice of the Board 's Decision and Order of
March 24, 1965, 151 NLRB 1101 , adopting the findings, conclusions, and
recommendations of the Trial Examiner.
5 151 NLRB 1101, 1106.
8 KPOL broadcasts 24 hours a day, 7 days a week, except for a 6-hour
shutdown Sunday morning for equipmen[ maintenance . Total airtime is
162 hours per week. As each announcer puts in only 30 of his 40 working
hours on the air, five announcers cover 150 hours, requiring the services
of a part-time announcer for the 12 remaining hours of airtime.
' Farrell, as well as Crofford , was able to place the conversation in rela-
tion to his receipt of Scott's January 29 memorandum.
in detail the workings of the automatic equipment. Scott
explained that with the equipment Crofford could record
his material during the day for broadcast at night and thus
not have to work at night. Scott again told Crofford there
would be plenty of work for all and that no one would lose
his job because of the new equipment. At no time, during
either of the conversations, did Scott place any conditions
on his assurances of uninterrupted employment for all of
the announcers.
Rod Farrell had first been hired by KPOL as a part-
time announcers When illness prevented announcer
Clyde Cadwell from working, Farrell was put on a full
schedule and Brian Bastian was hired on a part-time ba-
sis. Farrell testified to a conversation with Scott concern-
ing the effects of automation in the first or second week
of January.' This conversation took place at the station.
To Farrell it was apparent that fewer announcers would
be required. However, Scott said that Respondent would
retain the full staff."
2. Scott's January 29 memorandum
On January 29, Scott caused to be distributed to all em-
ployees, including all staff announcers the following
memorandum:
January 29, 1965
TO: ALL PERSONNEL
This is an announcement which I think all of you will
consider interesting and important. It's the sort of an-
nouncement I would prefer to make at a meeting, but
it's so difficult to set a time when everyone can at-
tend. So read the following, then let's get together at
your convenience individually or collectively for
questions and answers.
Fred and I have become convinced that recent
technological advances in our industry have made it
possible for machines to do some things as well as
men can do them. The word for this, of course, is au-
tomation.
There is much work to be done in our expanding or-
ganization. We believe that the additional functions
can be effectively and efficiently performed with a
very limited increase in personnel. One thing is cer-
tain: no one will be out of a job. There will be more
than enough for everyone to do -in production, in
recording music tapes, in television.
We will probably begin with Rhapsody. The choice
of Rhapsody for our first step is made because of the
time it is on the air, a time when there will be plenty
8 In crediting Crofford and Farrell as to the fact and subject matter of
their conversations with Scott, I do not thereby discredit Scott. Scott re-
called the luncheon conversation with Crofford, stated that Crofford's
testimony as to what was said was "essentially" correct, but thought it had
occurred in early February. As to the other conversation with Crofford,
it appears logical that it occurred as Crofford stated, for it was a necessary
predicate to the luncheon meeting . In reference to the conversation with
Farrell, Scott did not deny the occurrence, but only that he could not re-
call any conversation with him on the subject of automation , though he re-
membered such talks with announcers Gary Brandt and Bob Harris.
RADIO STATION KPOL 367
of fingers around here to stick in holes in the dike.
Probably the last program to be automated will be
Morning Magic. And it may be that Morning Magic
will continue to be done live because traffic an-
nouncements , time , weather and the like make for
certain problems.
Although nothing is concrete as yet, my general
thinking is that each man will serve as host for one
show. A couple of men may host two shows. The line
could be something like this:
Big Show- Al
Morning Magic- Rod
Rhapsody- Bob
Cloud 9 - George
Commuters Carousel-Gary
Music ala Carte - Al
String Shift-George
Holiday in Hi Fi- Several Hosts
Clyde may want to fill a vacancy in the news depart-
ment where there is less need for physical exertion.
I have spoken to him about this and the idea ap-
parently appeals to him.
The equipment has been ordered and will be installed
in a few weeks. Fred is meeting today with the en-
gineers to explain to them the course we are going to
take.
McCue of AFTRA, who, Custer understood, was not
objecting to the introduction of the automatic equipment,
then asked how automation would affect the announcers'
unit. Custer replied that the change would not affect their
employment and all announcers would be retained.
While Custer testified that he asked nothing in return
from the Union for this assurance of continued employ-
ment for all announcers, he repeated his 1964 request to
use announcers' voices off shift. Additionally Custer
asked for agreement permitting announcers to perform
certain duties formerly done by employees in the IBEW
unit. McCue conditioned his agreement to the latter
request on Draghi of IBEW first giving up the work. This
Draghi would not do.
Custer further testified that his assurance to McCue in
February went no further than that in Scott's January 29
memorandum to the employees, which Custer stated, was
itself unconditional.
At a bargaining session on February 15, Custer again
gave the same assurance of continued employment for the
announcers to the AFTRA representative. Again on
February 19, Custer, at a negotiation meeting, stated
there would be no reduction in the number of announcers
employed by KPOL, explaining he expected to use the
announcers in a more diversified way, including their em-
ployment on the ultrahigh frequency television station
which Respondent had purchased.
On February 19 Respondent filed a petition for a
representation election in the staff 'announcers unit, Case
3 1-RM-3.
I'll be available to answer any questions any time.
Please call or come by when it's convenient.
Bob Scott
The same day that the memo was distributed it was
posted by an unknown person on the bulletin board in the
announcers ' lounge where it remained for a month or
longer.
Scott explained that his purpose in publication of the
memo was to maintain high morale among the employees.
He imagined that rumors would circulate as a'result of
Custer's meeting with the engineers and their union
representatives and "preferred that the information come
from me particularly to the announcers and not from out-
siders." At the time it was Scott's understanding that
Respondent was operating under a union contract with
AFTRA, but did not direct that a copy of his memoran-
dum be sent to the Union.
C. Events Preceding the Strike
1. The February negotiations
On February 9, 1965, in an effort to resume negotia-
tions, Respondent, AFTRA, and Mr. Draghi, a repre-
sentative of IBEW, met at the offices of the Los Angeles
County Federation of Labor.
Custer testified that Draghi objected to introduction of
the new automation equipment. Draghi expressed con-
cern that employees in the IBEW unit would lose work if
he were to agree to relinquishing jurisdiction over the new
equipment. Custer and Draghi had a long discussion dur-
ing which Custer assured the engineers' representative
that none of them would lose their employment because
of the changed operations. Custer assured Draghi that all
engineers would retain their jobs.
2. Respondent contracts out the recording of music
tapes and commences TV broadcasting
In his January 29 memorandum to the employees,
Scott stated:
. One thing is certain: no one will be out of a job.
There will be more than enough for everyone to
do-in production, in recording music tapes, in
television. [Emphasis supplied.]
Around the beginning of March 1965, Respondent was
approached by Alto Fonic Tape Service, Inc. (herein
called Alto Fonic), which proposed to prepare for KPOL
the music tapes to be used in the automated operation.
Scott testified that Alto Fonic wanted to use KPOL's
reputation in selling its products to stations in other mar-
kets and thus was willing to perform the work at terms ad-
vantageous to Respondent and at a loss to itself.
Apparently Alto Fonic began recording tapes for
Respondent about the middle of March as Alto Fonic
billed KPOL for one-half month's service for March. The
agreement between Alto Fonic and Respondent, dated
April 2, 1965, required Alto Fonic to provide at its own
premises a full-time employee to produce programs, or
parts of programs, on tape for KPOL. For the services of
this employee, who was to be available for Respondent's
work 8 hours per day, 5 days per week, KPOL was to pay
Alto Fonic $400 per month. In addition the agreement set
forth the various fees KPOL was to pay for materials.
On March 29 Respondent's television station began
broadcasting. At that time the TV station had 5 commer-
cial accounts rather than the 50 to 100 accounts Custer
testified had originally been anticipated.
3. The happenings of April 2
At 5 p.m. on April 2, 1965, AFTRA and IBEW struck
KPOL.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That morning the two unions met with Respondent in
a negotiation session. Present in addition to the usual bar-
gaining spokesmen were attorneys representing AFTRA
and Respondent.
Custer testified that he tried to reassure the Union that
continued employment of the announcers was not an is-
sue. He repeated this assurance even though Respondent
had already entered into its arrangement with Alto Fonic
for production of the music tapes. At no time, Custer
testified , did he say to McCue or to any other AFTRA
representative that his offer to retain the full staff of an-
nouncers was based on reaching a contract.
Custer further testified that he did not wish job security
to become an issue during the negotiations and it had not.
As noted, on April 2, AFTRA declared a strike against
Respondent . Of the 12 staff announcers then employed
in the unit , 8 honored the picket line. Of these , two were
newsmen, Paul McElroy and Ray Owen . The other
strikers were announcers, Robert Harris, Brian Bastian,
and the four alleged discriminatees , George Crofford, Al
Mallicoat, Rod Farrell , and Clyde Cadwell.
Also on April 2, AFTRA sent the following telegram
to the Director of the Board 's Region 21:
RE CASE NUMBER 131-RM-3I. RECENT BOARD AC-
TION ON UNFAIR LABOR PRACTICE COMPLAINT
AGAINST COAST RADIO BROADCASTING HAS UN-
DERMINED AFTRA MEMBERSHIP . ADDITIONAL EM-
PLOYER INFLUENCES HAVE ALSO REDUCED SOME
STAFF ANNOUNCERS TO DISAVOW THEIR DESIRE TO
BE REPRESENTED BY AFTRA. CONSEQUENTLY AFTRA
DISCLAIMS REPRESENTATION OF KPOL STAFF AN-
NOUNCERS AT THIS TIME AND REQUESTS DISMISSAL
OF EMPLOYER'S REPRESENTATION PETITION. ANY
AFTRA STRIKE AT THE STATION SHALL NOT BE FOR
RECOGNITION AND SHALL BE CONFINED TO PUBLICA-
TION OF SUB-STANDARD CONDITIONS AT KPOL.
Claude L. McCue
Executive Secretary
AFTRA -L.A. Local
A copy of this telegram was received at the office of
Respondent 's attorney the following day, April 3.
Friday night , April 2, Fred Vanderhurst was hired by
Respondent as a full-time permanent employee to replace
Brian Bastian , a part-time employee who had joined the
strike.
D. The poststrike events
At the time of the April 2 strike the automatic equip-
ment had been partially installed and required only final
wiring to be operative. Immediately following the strike
Respondent directed the equipment supplier to complete
the installation which required only a few days' work.
On Monday , April 5, the parties met for a previously
scheduled negotiation session. Respondent asked what
the Union's disclaimer telegram of April 2 meant and the
Union's counsel replied that for the purposes of bargain-
ing AFTRA still claimed to represent the announcers but,
at the NLRB , the Union did not make that claim.
Respondent 's representatives refused to continue to meet
unless AFTRA adopted one of the two positions for all
purposes and the meeting ended.
Monday morning as well AFTRA sent a telegraphic
withdrawal of its April 2 disclaimer to the Board's Re-
gional Director . This was received in the Regional Office
on April 5, but Respondent did not receive notice of the
withdrawal of disclaimer until April 7.
That day, or on the previous Friday, April 2, Custer
was informed by an agent of the Board ' s Regional Office
that a conference on KPOL 's petition for election would
be held on April 7.
During the afternoon of Monday , April 5, Respondent
sent to newsman Paul McElroy and to announcers Cad-
well, Crofford, Farrell, and Mallicoat the following
discharge telegram:
ACQUISITION OF AUTOMATIC EQUIPMENT HAS
OPENED THE WAY FOR KPOL TO OPERATE WITH
REDUCED PERSONNEL REQUIREMENTS ALTHOUGH
PREVIOUSLY PREPARED TO OFFER JOB SECURITY TO
THE COMPLETE STAFF OF 12 MEN OUR POSITION IS
NOW THAT THE TOTAL COMPLEMENT OF AIR WORK-
ERS WILL NUMBER 7 . THIS IS TO ADVISE YOU
DIRECTLY IN AS MUCH AS AFTRA HAD NOTIFIED THE
NLRB THAT IT DISCLAIMS REPRESENTATION OF THIS
STATION'S ANNOUNCERS THAT YOUR SERVICES ARE
NO LONGER REQUIRED FOR EFFICIENT OPERATION
AND YOUR EMPLOYMENT IS HEREBY TERMINATED.
Frederick D. Custer
The following day Respondent offered employment to
McElroy by telegram reading:
KPOL WOULD LIKE YOU TO RESUME YOUR DUTIES
AS A NEWSMAN ON THE BASIS OF THE COMPANIES
[SIC] LAST OFFER TO AFTRA WHICH INCLUDED
$210.00 PER WEEK PLUS OTHER BENEFITS PLEASE
REPLY BY NOON APRIL 8, 1965.
McElroy refused the offer.
David Woods was hired by KPOL as a full-time per-
manent employee on April 7 after an audition the preced-
ing day. (See section IV, The Challenged Ballots.)
The April? conference on Respondent's petition for
election lead to a stipulation for certification upon con-
sent election providing for an election to be held April 15,
1965.
The election on April 15 resulted in three votes for
continued AFTRA representation , three opposed, and
eight ballots were challenged . McElroy voted without
challenge.
Newsman Ray Owen abandoned the strike on April 17
and returned to Respondent's employ. Though all of the
engineers joined in IBEW 's strike, none has been ter-
minated.
In the weeks following the strike and installation of the
new equipment the machines did not work to Respond-
ent's satisfaction . It was decided to hire an additional
announcer and on May 12, Scott sent a wire to Crofford
advising there was "a job opening at KPOL for position
of staff announcer if you are interested in accepting this
position please contact me tomorrow morning. " Crofford
did not accept the proffered position . Thereafter KPOL
hired Larry Reed who remained until some time in 1966.
Some weeks after Reed left Respondent's employ, Harris
gave up the strike and returned to KPOL.
E. Conclusions and Findings
General Counsel urges the simple theory that the four
announcers were discharged because they participated in
the strike . As seen by General Counsel, it is crucial that
RADIO STATION KPOL
I find Respondent unconditionally promised to continue
the employment of all its announcers. For, it is argued, at
the moment of discharge, other than the onset of the
strike, surrounding conditions were unchanged from
those when Respondent enunciated its assurances of job
security. Ergo, argues General Counsel, it was solely
their participation in the strike which precipitated ter-
mination of the four employees. Important also to
General Counsel is a finding that the assurances of con-
tinued employment were not made as contract proposals
in the context of collective bargaining.
Respondent rejects any suggestion that job security
was not part of the contract negotiations as resting "on a
myopic view of the bargaining process." Respondent
states it was willing to forego the obvious economic ad-
vantages of automation and not cut its employment rolls
but only as a quid pro quo for an acceptable collective-
bargaining agreement. But, the offer of job security was
not unconditional. Like all other contract proposals, it
was conditioned upon final agreement on all terms of a
new contract. Thus, Respondent urges, when the strike
occurred and bargaining broke down, it was free of its
offer of continued employment. Free therefore to reap the
economic advantages of the new equipment, Respondent
pared its "featherbedded payroll," but in so doing was
motivated only by the economics obtained.
Thus, in substance, Respondent and General Counsel
are in essential agreement as to the threshold issue.
Preliminary to any finding of violation is a conclusion as
to the nature of Respondent's assurances of job security
for the announcers. Were the assurances submitted as a
contract proposal conditioned on the parties' reaching
agreement on a total contract as urged by Respondent; or,
as argued by General Counsel and the Union, was the
promise put forward in an effort to remove the issue as a
subject for bargaining on the terms of a new contract?
Though not without considerable doubt, I cannot ac-
cept General Counsel's hypothesis of an unconditional
offer by Respondent to continue the employment of all
announcers regardless of all other factors in the relation-
ship among KPOL, the Union, and the announcers. This
is not to bar such a finding in other circumstances. Thus,
I can conceive of a party to collective bargaining making
an unconditional offer on a mandatory subject of bargain-
ing, seeking nothing in return other than removal of a
potential area of disagreement from the bargaining table.
However, the facts of this case do not lead to such a find-
ing. As early as June 1964, Respondent sought modifica-
tion of the contract restrictions on utilization of the an-
nouncers' services and their voices off shift. In the con-
text of the 1965 negotiations, Respondent during the
same bargaining sessions at which it put forward as-
surances of continued employment for all announcers
again asked for the right to use announcers' voices off
shift and to employ announcers at duties formerly per-
formed in the IBEW unit. McCue's agreement to use
voices off shift was limited, restricting his consent to the
newsmen but not to the announcers. As to AFTRA peo-
ple performing work from the IBEW unit, McCue condi-
tioned his agreement upon prior release of the work by
IBEW. Such release obviously was not forthcoming.
9 The timing and terms of the Alto Fomc-KPOL contract precludes any
argument that this contracting cut was within the court 's rationale excul-
pating such an agreement if made in contemplation of a strike . Hawaii
Meat Co. v. N.L.R.B, 321 F.2d 397 (C.A. 9).
369
Thus, I conclude that the assurances of continued em-
ployment put forward in negotiating sessions starting on
February 8, 1965, were in the context of the give and
take of collective bargaining. Accordingly, and in view of
the parties' failure to reach a collective bargain, I cannot
conclude that, but for the strike, Respondent would have
maintained unbroken the employment of all announcers.
In so resolving the narrow issue presented to me by the
complaint, I am not unmindful that Respondent's conduct
in the months before the strike raises serious doubts con-
cerning its devotion to collective bargaining. Scott's con-
versations with Crofford and Farrell and his January 29
memorandum to the employees were offered as evidence
of an unconditional promise to the employees of con-
tinued employment. They were that and more. I see this
conduct as evidence of direct bargaining with the em-
ployees in the face of Respondent's demonstrated aware-
ness of its obligation to deal only with the employees' ex-
clusive bargaining representative. But this indication of
bad-faith bargaining does not broaden the narrow issue
concerning unlawful discharge presented to me by
General Counsel.
Additionally, Respondent's contract with Alto Fonic
for production of music -tapes casts doubt on Respond-
ent's adherence to the statutory scheme. Thus, without
notice to the Union, KPOL unilaterally entered into an
agreement removing work from the bargaining unit and
having a substantial impact on unit employment.9 See
Westinghouse Electric Corporation (Mansfield Plant),
150 NLRB 1574, 1576. However, repetition of its as-
surances of continued employment for all announcers at
times subsequent to the Alto Fonic contract, lends cre-
dence to KPOL's assertion that it offered job security, at
potential cost to itself, as bait for AFTRA agreement to
contractual provisions favorable to Respondent.
In their briefs General Counsel and the Union for the
first time raise the proposition that the four announcers
were discharged to affect their eligibility to vote in the
forthcoming representation election. With the arithmetic
of the situation in mind a fair inference of such motivation
may be drawn. But, the complaint does not allow for such
a finding; General Counsel on the record limited the is-
sues to discharge occasioned by the employees' participa-
tion in the strike; and, Respondent was not called upon to
present any defenses to such a charge. Moreover, though
the instant 8(a)(3) charge was filed on April 7, the Union
did not file objections to the April 15 election. Thus in
April 1965, the Charging Party apparently did not view
the terminations as interfering with the election. Ac-
cordingly, since Respondent was entitled to try its case
by reference to the issues framed by the pleadings and in
reliance upon General Counsel's delineation of those is-
sues at the hearing, I will find no violation of the Act
based on this unlitigated theory of unlawful discharge.
Northeastern Indiana Building and Construction Trades
Council, et al. v. N.L.R.B., 352 F.2d 696 (C.A.D.C.).10
Upon the record as a whole, I do not find that the al-
legations of the complaint charging Respondent with
violation of Section 8(a)(3) and (1) of the Act are sup-
ported by substantial evidence. Accordingly, I shall
recommend that the complaint be dismissed.
' In view of this ruling I do not deem it necessary to pass upon Respond-
ent's motion to strike those portions of the cited briefs raising this theory
o€ violation.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE CHALLENGED BALLOTS
As previously noted, by order dated May 2, 1966, the
Board consolidated for hearing with the unfair labor prac-
tice complaint challenges to certain ballots cast in the
representation election held on April 15, 1965, in Case
31-RM-3. KPOL challenged the ballots of the four an-
nouncers whose discharges generated Case 31-CA-61.
Respondent argued that the four were ineligible to vote
because their jobs had been eliminated for economic
reasons. The Union contended the four were unit em-
ployees on strike at the time of the election and therefore
eligible voters. As to David Woods, an issue has been
raised as to whether he was a replacement for a dis-
criminatorily discharged employee and therefore ineligi-
ble to vote. For the reasons stated below, I recommend
that the Board overrule the challenges to the five ballots
in question.
A. David Woods
I have found above (section III, THE ALLEGED UNFAIR
LABOR PRACTICES) that KPOL did not unlawfully
discharge the four named announcers. It must necessarily
follow that Woods' ballot was not tainted on the grounds
that he replaced a discriminatorily discharged striker. As-
suming arguendo that Woods had replaced one or more
of the four named announcers he would be eligible to vote
in the election as a permanent replacement for an
economic striker. See e.g., Booth Broadcasting Com-
pany, 134 NLRB 817. On this basis alone I would recom-
mend that the Board overrule the challenge to his ballot.
In any event, I further find that Woods was hired as a
replacement for Bob Harris, an announcer recognized by
all parties to have been an economic striker at all times
material herein. The production aids written by Scott (the
pseudo-poetry whereby KPOL romances Los Angeles)
varies to conform to the type of music customarily played
on the station's programs. 11 For example, as described by
Scott, the Morning Magic program featured bright, cheer-
ful music. To read the production aids for this show Scott
selected an announcer with a bright and cheerful presen-
tation as opposed to one with the soothing, soft delivery
which one would expect at bedtime. The Rhapsody show,
which Harris handled on Monday through Friday before
the strike, featured semiclassical music emphasizing "the
full, rich sound of an orchestra." Scott testified that the
production aids he wrote for Rhapsody were "schmalt-
zy." The announcer on Rhapsody, Scott felt, needed a big
voice and dynamic delivery with the ability to read with
great enthusiasm and movement.
Shortly after the strike began Scott visited Harris at his
home in a vain attempt to induce Harris to abandon the
strike and resume his duties at KPOL. After this failed,
Scott began auditioning applicants for employment as an-
nouncers, using for the test Rhapsody and Commuter
Carousel production aids which had been used by Harris.
When Woods was hired following such an audition, he
was placed on two programs which Harris had handled
before the walkout. While it is true that Woods was able
to handle as well the Saturday Carousel and Rhapsody
programs done before the strike by one or more of the
11 See section III, A, 1, above, Respondent's operations.
12 Woods was able to announce the Saturday Carousel and Rhapsody
programs as they were recorded and Respondent had unilaterally
dischargees, this Saturday recorded work was peripheral
to Woods' main assignment, which I conclude was
replacement of Harris on the two programs named.12
Indeed, when Harris did abandon the strike Woods con-
tinued with the Rhapsody and Carousel programs and
Harris was given other duties. Thus, without regard to the
status of the alleged discriminatees, based on my finding
that Woods was a permanent replacement for Harris, I
recommend that the challenge to his ballot be overruled.
B. George Crofford, Rod Farrell, Clyde Cadwell, andAl
Mallicoat
Though I have found that the discharges of the four
named announcers did not violate Section 8(a)(3) and (1)
of the Act, I further conclude, based on the record made
before me, that my examination of the challenges to their
votes cannot stop at that point.
The Employer contends that the four announcers were
ineligible voters because their jobs had been eliminated.
The record as a whole does not support that position.
Briefly stated, for full, nonautomated operation, KPOL
required the services of five full-time announcers and one
part-time announcer. Harris, Brandt, Crofford, Mallicoat,
and Cadwell were the five full-time announcers. Farrell
was the regular parttimer. Due to Cadwell's illness and
his excused absence from work, Farrell worked full time
and Bastian worked the 12 hours needed to round out the
broadcast schedule. Thus, it is against a complement of
five and two-fifths announcers that we must measure the
number of jobs eliminated by automation of KPOL.
Following the strike the Employer had the full-time ser-
vices of the Alto Fonic employee assigned by that con-
tractor to work exclusively on music tapes for KPOL.
That this is announcers' work is shown by Scott's Janua-
ry 29 memo listing the work as such and by KPOL's ex-
planation that work for announcers had been cut by the
contracting out to Alto Fonic. Additionally, KPOL had
the full-time services of Brandt, who did not strike; Van-
derhurst, who was hired as a full-time announcer to
replace Bastian, a part-time announcer; and Woods, who
I have found to have replaced Harris; and, by May 12,'
KPOL found it necessary to hire an additional an-
nouncer, first offering the job to Crofford and when he
refused to give up the strike hiring Larry Reed. In time
Reed left and was replaced by the returning Bob Harris.
Thus, KPOL had five full-time employees doing announc-
ers' unit work; Brandt, Woods, Vanderhurst, Reed, and
the Alto Fonic man. As well, on a regular basis, Woods
was carrying the load of the former part-time announcer.
In addition to replacing Harris on the Monday through
Friday Rhapsody and Commuter Carousel programs,
Woods replaced Crofford and Farrell on the Saturday
versions of these shows. If further evidence is needed to
establish that the jobs of the dischargees were not
abolished, Scott testified to the use of his "wee small
voice on the wee small hours," midnight to 6 a.m.
In effect, there were more, not fewer, jobs available in
the announcers' unit after automation.
Automation of KPOL's operations took place only
after the strike commenced; the announcers were
discharged subsequent to the strike; automation has not
abrogated the contractual limitation on use of announcers' voices off shift.
Cf. Bethlehem Steel Company (Shipbuilding Division), 136 NLRB 1500,
1501-02.
RADIO STATION KPOL 371
resulted in elimination of their jobs; and, with Scott
planning to replace himself as an announcer, there is
chance of their reemployment. Cf. Booth Broadcasting
Company, 134 NLRB 817, 823.
I conclude that on April 5, 1965, KPOL assumed that
it had permanently replaced the four announcers, not with
other announcers subject to human foibles but with the
theoretically perfect replacement, a machine.' 3 And when
the machine, despite Scott's and Custer's high expecta-
tions noted in the January 29 memo, could not do "things
as well as men can do them," the permanent replacement
became transient. Accordingly, the four announcers are
in the same posture as any permanently replaced
economic striker (Union Bus Terminal of Dallas, Inc., 98
NLRB 458), including the right to vote in the instant elec-
tion.
Accordingly, I recommend that the challenges to the
ballots of the four named striking announcers be over-
ruled.
CONCLUSIONS OF LAW
1. Coast Radio Broadcasting Corporation., d/b/a Radio
Station KPOL is engaged in, and during all times material
has been engaged in, commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
4. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact, and upon It is recommended that the Board enter an order
the entire record in the case, I make the following: dismissing the complaint in its entirety.
" A machine is not covered by wage and hour laws; does not insist on
coffee breaks; has no funerals to attend on Opening Day; does not seek
early retirement; and is impervious to the blandishment of union agents.