Television Broadcasters, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1965

152 N.L.R.B. 1237 (N.L.R.B. 1965)

TELEVISION BROADCASTERS, INC. 1237
Television Broadcasters, Inc. and Local Union 479, International
Brotherhood of Electrical Workers, AFL-CIO. Cases Nos. 23-
CA-1841, and 23-0A-1914. June 8, 1965
DECISION AND ORDER
On March 15, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision, insofar as violations were
found therein, and a supporting brief. The General Counsel filed lim-
ited exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, as modified
herein, and orders that the Respondent, Television Broadcasters, Inc.,
Beaumont, Texas, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
1 The Trial Examiner found that the union or concerted activity of Daniel Labbit, Billy
Barrett, and Reginald Ferrell was a motivating factor leading to their discharges. On
the record before us , we find that Labbit's, Barrett 's, and Ferrell 's union or concerted
activity was the motivating factor for their discharges.
152 NLRB No. 126.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amend the second sentence of the second indented paragraph of the
Appendix by adding thereto following the words "threaten them for
doing so," the clause: "or threaten to withhold job recommendations if
they press charges under the Act, . . ."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Frederick U. Reel at Beaumont, Texas,
on October 22 and 23, 1964, and January 14 and 15, 1965,1 pursuant to charges
filed the preceding July 1 and September 28, and a consolidated complaint issued
October 13, presents primarily questions as to whether Respondent discharged or
otherwise discriminated against four employees because of union or concerted activ-
ity, and also whether Respondent by interrogating and threatening employees with
respect to their union membership or activity unlawfully interfered with their Sec-
tion 7 rights. Upon the entire record, including my observation of the demeanor
of the witnesses, and after due consideration of the briefs filed by Respondent and
by General Counsel, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED
Respondent, a Texas corporation hereinafter called the Company, is engaged at
Beaumont in the operation of a television broadcasting station, whose annual rev-
enues exceeded $100,000, including $50,000 received from a national network for
broadcasting programs which originated outside the State. I find that the Company
is engaged in commerce and in activities affecting commerce within the meaning of
Section 2(6) and (7) of the Act. The parties stipulated that the Charging Party,
herein called the Union, is a labor organization within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
In the course of operating its television broadcasting station the Company employs
not only full-time engineers and studio and office employees, but also part-time
employees, college students at Lamar Tech in Beaumont, who are employed at the
station on an hourly basis. In June 1964 several of these part-time employees
engaged in union and concerted activity. The primary issue in this case is whether
the Employer's subsequent discharge or suspension of four of these employees was
caused by their union or concerted activity (as General Counsel contends) or by
their own shortcomings and derelictions of duty (as the Company contends).
A. The discharges of Labbit and Barrett, and the "suspension" of Ferrell
On Wednesday, June 17, Daniel Labbit and Billy Barrett, two of the Lamar Tech
students employed part-time at the Company, went to the Houston office of the
Board to inquire as to whether they and certain other employees of the Company
would be acting lawfully if they entered into a joint agreement or "pact" that in the
event any person was "fired unjustly" the others "would all walk away from [their]
jobs." As a result of their Houston conference, Barrett and Labbit recommended to
the other employees involved in the matter that they join a union, and on Thursday,
June 18, Barrett, Labbit, and Ray McCuller, another student-employee, went to the
Beaumont office of the Union and asked the union representative there if the Union
could serve as their bargaining representative The Union in question already rep-
resented the engineers employed by the Company; indeed, one of the engineers,
Boyd Rich (Labbit's roommate but a full-time employee of the Company), accom-
panied the three student employees on their visit to the union office. The union
representative told the delegation that he would have to inquire of his superiors in
Houston whether the Union could represent these men. The following day (Friday,
June 19) he advised them that the Union could do so. On Monday morning, June 22,
Barrett and Reginald Ferrell, another student-employee, went to the union hall,
where they each signed a union card, and they obtained five other cards which they
had signed by employees of the Company later that day.
1 All other dates herein refer to the year 1964, unless otherwise indicated
TELEVISION BROADCASTERS, INC. 1239
Other employees of the Company were aware of the union activity and also of
the "pact" that a number of employees would walk off the job if any one of them
should be "unjustly" discharged. During the week of June 15, however, when most
of the events described above occurred, the active owner of the station, N. D. Wil-
liams (a co-owner, one Reed, is inactive in the business), and the station's general
manager, Doug Thompson, were both out of the city. They both returned to the
station on Monday, June 22, and on that date they discharged Barrett, Labbit, and
Ferrell, later changing the latter's "sentence" to a 30-day suspension, on conditions
described below. General Counsel contends that Williams., and Thompson, upon
learning of the union and concerted activity, promptly took action against the three
employees for engaging therein. The Company contends that employee dereliction
led to the disciplinary action, that the same action would have been taken whether
or not the employees had engaged in union or concerted activity, and that they
resorted to this activity at the time in question because they had good reason to fear
they were to be discharged for their own transgressions In the light of these con-
tentions the decision here cannot turn on the mere coincidence in time (union activ-
ity closely followed by employer knowledge closely followed by discharge), and we
must consider the nature of the alleged misconduct and the testimony as to what
was said at the time of the discharges and suspension to determine whether the
union or concerted activity played a significant role in causing the Company's action.
With respect to Barrett and Labbit, the Company's primary complaint was that
on several occasions Barrett, a less qualified and lower paid employee than Labbit,
had substituted for Labbit at the television station during hours when Labbit was
scheduled to work, that this substitution had been without prior approval of super-
visors, and that Barrett and Labbit on those occasions reported in their respective
timecards the hours originally scheduled, rather than the hours actually worked.
Both Labbit and Barrett admitted that on several Sundays, on occasions when Lab-
bit had to study for an examination in one of his college courses, Barrett would
"switch" the Sunday night moving picture at the television station in Labbit's stead,
and the latter would appear only to do the "live" telecasts of news and weather,
which followed the movie. They were not the only employees at the station who
engaged in such substituting, and the practice was known to, and accepted by, Ed
Smith and Fritz Delano, who were chief director and program director, respectively,
during the early months of 1964. Delano and Smith left, however, and their duties
devolved upon Charles Pierce, who was hired before their departure, and whose
duties gradually expanded to take over their functions Pierce on a Sunday eve-
ning in April or May discovered Barrett substituting for Labbit. On this occasion
Labbit was ill, and had made unsuccessful efforts to locate Pierce (who had no tele-
phone), Delano, who was away, and Thompson, the general manager. Pierce told
Barrett that Barrett could switch the movie and that Pierce would do the "live" work
that followed it. On Sunday, June 14, Barrett again substituted for Labbit on the
movie, as the latter was studying; Labbit, however, did the live programs. While
Barrett was at work and before Labbit arrived, Pierce came to the station and dis-
covered the substitution. Pierce was annoyed, although there is some conflict in
the testimony as to whether he was disturbed because he thought (mistakenly) that
Barrett was to do the live work, or because he had not been told of the substitution
on the movie.
With respect to the timecards, the general practice when one man substituted for
another had been to have the timecards reflect the originally scheduled hours rather
than the hours actually worked, even though the two men involved in the sub-
stitution had different rates of pay. Pierce and Thompson decided to reverse this
practice, and Pierce instructed Barrett and Labbit to report their actual hours of
work. Their timecards for June 14 reflected an "overlap" of 1 hour, in that each
showed himself as working from 8:30 p.m. to 9:30 p.m., but according to Labbit's
testimony, which I credit, Pierce expressly told him he could show his regularly
scheduled time (which included this hour) on that occasion. The Company also
introduced evidence that Labbit reported other hours he did not work, but with one
exception the explanation, which I credit, is that Labbit worked 15 or 20 minutes
late each day and reflected this on his timecard by adding an extra 30 minutes twice
a week. The sole exception was an occasion when Labbit was excused from work
early in the evening, but later in the week when filling out his timecard he reported
full time for the day in question. He immediately corrected the timecard when
reminded of his absence.
With respect to Ferrell, an announcer, the Company's primary complaint was that
on Thursday, June 11, he had been about 10 seconds late in coming on the air with
the sound portion of a "Murine" commercial, with the result that the station had to
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rerun the commercial at a later time. At that time Pierce noted in the logbook
maintained for such departures from schedule that Ferrell was asleep in the booth.
Ferrell, apprised of this notation and disturbed by it, telephoned Thompson that
same afternoon, and Thompson, who was about to leave town on a 10-day trip, told
Ferrell not to worry about it. The Company also showed in explanation of its disci-
plinary action against Ferrell that he rearranged equipment in the announcer's booth
without first obtaining Pierce's approval, although Ferrell did on one occasion have
prior approval of the chief engineer. The moving episodes predated the "sleeping"
episode, and Thompson was aware of them when he left on his June 11 trip.
When Thompson and Williams returned to the station on Monday, June 22,
Pierce told them of Barrett's substituting for Labbit on June 14, and also of Fer-
rell's "sleeping" in the booth on June 11. They also learned, early that day, of the
employees' group action in determining to walk out if any one of them were "unjustly"
fired, and they also learned that day of the employees' union activity. Williams and
Thompson conferred during the day, and late that afternoon Williams discharged
Barrett and Labbit. Ferrell's discharge, later changed to suspension, followed later
in the evening.
Manifestly, the discharges and suspension did not violate the Act if the Company
was not motivated by the union or concerted activity. In Ferrell's case, for exam-
ple, he denied "sleeping" and asserted that he was guilty only of a "mental lapse."
But whether Ferrell was literally asleep, or figuratively "asleep at the switch,"
whether he was "caught napping" in a literal or figurative sense, is not the issue.
The Company could lawfully discharge him or suspend him for the lapse, or for the
furniture moving. Similarly the Company could lawfully discharge Barrett and
Labbit for their conduct in substituting on the job without the prior approval of
Pierce, whether or not their conduct merits the appellation of "stealing from the
station" because the lower paid man did the work and the higher paid man recovered
for the time. Nor does it lie in the Board's mouth to say that the punishment did
not fit the crime, for it is not for the Board to determine the appropriate measures
an employer may take to enforce discipline.2
Furthermore, there may be considerable merit in the Company's suggestion that
Labbit, Barrett, and Ferrell were fearful of discharge for their conduct on June 14
and 11, respectively, and that their resort to union and concerted activity was the result
of this concern. Indeed, they all but admitted as much, for they had been apprised
that Pierce had uttered a veiled threat that Labbit would soon have plenty of time
to study, and had expressed an intention to replace Ferrell. These statements, added
to the recent departures of Delano, Smith, and an employee named Ramsey, impelled
them to collective action.
But the issue in this case is not whether Labbit, Barrett, and Ferrell engaged in
conduct for which their employer could lawfully or even reasonably discharge them.
See, for example, N.L.R.B. v. Sunnyland Packing Co., 211 F. 2d 923, 924 (C.A. 5),
where the court sustained a finding of discriminatory discharge and ordered reinstate-
ment of two employees who on "the admitted facts of record ... were unsatisfactory
employees, both guilty of petty pilfering, `cheating the clock,' and otherwise generally
undesirable ...... See also Edward G. Budd Manufacturing Co. v. N.L.R.B., 138
F. 2d 86, 90 (C.A. 3), where the court in enforcing a reinstatment order observed,
"If ever a man deserved summary discharge, it was he." As stated in David W. Onan
et al., d/b/a D. W. Onan & Sons v. N L.R B., 139 F. 2d 728, 730 (C.A. 8), the issue
in these cases is "not only whether there was a proper ground for the discharge of
the employees in question, but also, conceding such cause, whether the [employer]
acted upon it, or for reasons prohibited by the Act." To similar effect is Wells,
Incorporated v. N.L.R B., 162 F. 2d 457, 460 (C.A. 9), "The existence of some justi-
fiable ground for discharge is no defense if it is not the moving cause." Accord:
N.L.R.B. v. Texas Independent Oil Company, Inc., 232 F. 2d 447, 450 (C.A. 9).
And General Counsel in cases of this nature sustains his burden of proof if he estab-
lishes that the employees' union or concerted activity was a motivating factor in their
discharge, even if other lawful factors also motivated the employer. See, for example,
N.LR.B. v. Electric Steam Radiator Corporation, 321 F. 2d 733, 738 (C.A. 6);
N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F. 2d 352, 355 (C.A. 2),
cert. denied 373 U.S. 950; N.L R B v. Jamestown Sterling Corp., 211 F. 2d 725, 726
(C.A. 2). A very recent holding to this effect is to be found in Local No. 152 al/w
International Brotherhood of Teamsters, etc. v. N.L.R.B. (American Compressed
21t may be noted, however, that the practice of one employee substituting for another,
even for a much higher paid man, was widely followed, and that the episode of the missed
commercial was likewise not unique.
TELEVISION BROADCASTERS , INC. 1241
Steel Corporation ), 343 F. 2d 307 (C.A D C.), where the Board found a discharge to
be lawful. The court reversed , holding that although evidence may have supported
the Board 's finding that the employee had failed to turn off certain valves on his
equipment thus possibly causing a dangerous loss of gas , the question remained
whether the sole reason for the employee 's discharge the next morning was this neglect
of duty or whether the company was motivated even in part by what it thought was
the employee 's support of the union . The fundamental inquiry here , therefore, is
into the Employer 's mental state ; was he motivated in significant part by the employ-
ees' union or concerted activity?
Strong support for the Company 's position comes from the sworn testimony of
Thompson and Williams that they were not motivated by any consideration other
than the employees ' misconduct . (Thompson 's testimony , as will be seen , is a bit
more equivocal than Williams ' on this matter .) Their sworn statements are not to
be mmimized or rejected merely because of their self - interest in so testifying. On
the other hand, their testimony does not conclude the matter ; the other testimony in
the record must also be weighed, and a finding must be made based on the preponder-
ance of the evidence . Labbit testified that on the evening of June 22, immediately
preceding his discharge , he had the following conversation with General Manager
Doug Thompson:
He came to the control room and said he would like to speak to me. So I got
Billy to watch the control board for me, and I went with Doug into Charles
Pierce's office.
The first thing he said was, "Danny , what is all this I hear about you boys try-
ing to organize a union?"
I said, "I know very little about it."
He said, "That is not what I understand . I understand you are involved in this
pretty deep."
I said, "I don't know where you got the information , but it isn 't true."
So he said something about-
Let me think.
He said , "Well, could you tell me who approached you about the subject?"
And I said, "Mr. Thompson , I would rather not say."
When I said that , he got angry with me and he ripped off a time card sitting in
front of him and threw it in front of me and said , "Fill out your timecard as of six
o'clock."
I began filling it out , and, when I finished , I handed it back to him and he said,
"I think Mr . Williams wants to see you ." He said he was sitting up in his office.
The foregoing testimony of Labbit was corroborated by his roommate , Boyd Rich,
who is a full -time employee of the Company , and who testified that he eavesdropped
on the Thompson -Labbit conversation in Pierce 's office.
Labbit and Thompson proceeded to see Williams , who discharged Labbit on the
spot, accusing him of stealing from the station . A short time after Williams dis-
charged Labbit , the latter again met Thompson at the door of the building . Labbit
described the episode as follows:
He said, "I have been out of town a whole week and I didn't know anything
about this . I want you to know I didn't know you were going to get fired, and
I want you to know I am not responsible for any of this. It's all Mr. Williams'
idea."
I said, "What do you mean9"
He said, "All I can tell you is this morning when I got back , Mr. Williams
came raising hell in my office about you guys trying to organize a union . I didn't
know what to do, and I didn 't know what to say." He said, "All I can tell you is
that I am very sorry about what happened and your losing your job. If there is
anything I can do, give you a future reference , feel free to call on me."
Ferrell's testimony as to his discharge -suspension interview that evening also indi-
cates employer concern over the union activity . He came to the station on the eve-
ning of June 22, having been advised earlier in the day that Thompson wanted to see
him that night or first thing in the morning . Thompson and Williams were in Thomp-
son's office , and Williams promptly discharged Ferrell for being asleep in the booth.
Ferrell pleaded with them that the penalty was too severe , and Thompson and Wil-
liams changed it to 30 days' suspension . Ferrell 's testimony continues:
Q. (By Mr. TILLEY.) Getting back to the conversation where it became a sus-
pension, let's take it step by step . Prior to the time they decided to make it a
suspension , what else did Mr . Williams have to say to you?
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. We discussed the organization at the station, what was taking place down-
stairs, back in the production department. I think it was phrased as "What is
going on down there?" or "What seems to be the problem, this organizing that
we are going through down there?"
Q. Either Mr. Thompson or Mr. Williams asked you that?
A. Yes, sir.
Q. Which one asked you that?
A. I am almost certain Mr. Thompson asked me that question.
Q. What was going on down there?
A. That's right.
Q. And what was the problem?
A. That's right.
Q. What was your answer to that?
A. I told him we were doing a little organizing He asked me if I was a part
of it. I told him yes, as far as this group organization we were talking about
first.
Now, the union told us we didn't have to tell him anything. We were advised
about that. We didn't have to give any more information than necessary. And
I didn't openly say "I am a member of the union" or signed a card, which I had
by that time. I simply mentioned I was part of the organizing group that had
decided we would walk off the job if somebody was unduly let go. This is the
organizing we are talking about at this point.
They also asked if we had gone to the NLRB in Houston, and I admitted
some members of our group had gone over there and asked the NLRB what we
should do. They wanted to know how it started or who approached us about it,
and I simply reminded them no one had actually approached us about it; it
came from group discussion and not from any one individual trying to start a
union action of any kind.
Likewise bearing on this issue is the testimony of Henry Larcade, who at the time
of the events in question was a full-time employee of the Company, but who left its
employ a few days later and obtained employment at another television station. Lar-
cade testified as follows with respect to a conversation he had with Williams on Mon-
day afternoon, June 22, before the discharge interviews:
Q. Did Mr. Williams have anything to say to you about the union?
A. He asked me what I knew about it.
Q. About the union?
A. He asked me what was going on, if I knew what was going on and who
was involved in it, and so forth.
Q. And who was involved in it?
A. Yes, sir
Q. And so forth Can you go into any more detail?
A. He asked me if I knew what the boys had been doing and who was involved
in it and what part I played in it, if any, and what I thought about it.
Q. What did you tell him, Mr. Laicade?
A. I told him that- I don't remember the exact words, but something to the
effect that I would rather not be involved in this in such a way as to violate any
confidences because the boys that talked to me about this asked me to keep it in
confidence and not say anything about it, and I told him I respected their request
and I would rather not mention any names.
Q. Were any names mentioned in the conversation?
A. Yes, sir. He asked me specifically about some of the people involved.
Q. Which people did he ask you about?
A. About Danny.
Q. Who is that?
A. Danny Labbit, and Reggi Ferrell and Billy Barrett.
Q All right, sir.
Was anything said in the conversation about any of those three going to the
National Labor Relations Board in Houston? .
A. He asked me if I knew they had gone there. I told him once again I would
rather not say because I was asked not to say anything about it.
Q. All right, sir.
And did he have anything to say about the engineers during this conversation?
A. Yes, sir. He asked me if the engineers were involved in this in any way,
and I told him I had no idea whether they were or were not.
Larcade also testified that a few days after the discharges Thompson upbraided him
for not telling Thompson that "the boys were trying to form a union."
TELEVISION BROADCASTERS, INC. 1243
John McGee, who is allegedly the victim of later discrimination, testified that on
June 24, 2 days after the termination of Labbit and Barrett, Thompson came up to
him at work and in the course of the conversation told McGee "to keep [his] nose out
of this union business" as Thompson would "hate to see [McGee] lose [his] job."
Other evidence, if credited, also tends to show that the Company was motivated by
the union or concerted activity in taking action against Labbit, Barrett, and Ferrell.
The latter testified that in commuting his discharge to a 30-day suspension, Williams
and Thompson said that he could return in 30 days "if all this had blown over and
[Ferrell's] attitude had changed " As late as September 24 when Ferrell's reemploy-
ment was under discussion, Thompson inquired whether Ferrell would be a union
member if he returned. Finally, Thompson himself on direct examination by com-
pany counsel testified as follows:
Q. Was there any other reason, even though it be unstated, that these boys
were discharged other than the reasons publicly assigned?
A. Were there any other reasons)
Q. Yes, that these boys were not told about.
A. I would say when a man threatens me if I fire him everybody is going to
walk out of the building, he has put a threat on me, to say, "if you fire me every-
body is leaving," that again gets back to the employees running the station. And
if it takes it, we will have to do without the whole group and operate it ourselves.
The following day Thompson qualified this testimony on cross-examination as
follows:
Q. (By Mr. TILLEY.) Now, at the time you learned this I believe you testified
yesterday that if there was any other reason for discharging these boys it would
be because they had entered into such agreement. Was that your testimony
yesterday?
Mr. THORNTON [Respondent's counsel]: No, sir. That's counsel's interpreta-
tion The record will speak for itself.
To the best of my recollection, the question was did this threat in any wise
deter or influence your previous decision to discipline these boys, and you said
not at all.
TRIAL EXAMINER: There's no point debating at this point.
Mr. THORNTON' Yes, sir.
Mr. TILLEY. I will go ahead with what's left.
Q. (By Mr. TILLEY.) Mr. Thompson, did you testify yesterday it was a source
of resentment that these boys agreed to walk out?
A. That wasn't the reason the boys were fired.
Q. Was it a source of resentment to you to learn that your men were going to
walk out if you fired somebody?
A. Not resentment, no.
Q What was it?
A. I think it was a demand and a threat, but not resentment. No, sir.
Q. I am talking about your reaction. Were you resentful about the fact that
your Production Department had agreed to walk out?
A. No.
Q. That did not bother you9
A. They could all walk out.
Williams, who testified after Thompson, substantially reiterated Thompson's last
answers, which in effect repudiated Thompson's prior testimony.
The testimony quoted above-that of Labbit, Ferrell, Rich, Larcade, and McGee-
in large part conflicts with that adduced by the Company. None of the witnesses for
either side is altogether disinterested. Rich, although not a party, is a roommate of
Labbit; on the other hand, Rich is still an employee and testified against his employer.
Larcade has no direct interest in the case, but harbors hostile feelings toward Thomp-
son, dating from Larcade's leaving the job. On the other hand, Larcade is still
employed in the industry, and the record attests that recommendations from former
employers are of some significance in this work. Larcade's role in this matter is
shrouded in some mystery, however, for it appears that it was he who sought out
Williams, and not vice versa, on the afternoon of June 22.
In any event, after weighing all the factors and all the evidence, taking into account
the demeanor of the witnesses, and recognizing the degree of self-interest present in
the testimony, I am of the view that the above-quoted testimony of Labbit, Ferrell,
Rich, Larcade, and McGee is to be credited. This testimony, and that of Thompson
in his initial response to whether there were unstated reasons for the discharges, leads
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me to the conclusion that the employees' union or concerted activity was a motivating
factor in the Company's actions in terminating or suspending them on June 22, and
that the Company therefore violated Section 8(a)(3) and (1) of the Act.
B. Ferrell's status (suspension or discharge) and his right to reinstatement
Although the foregoing discussion establishes unlawful discrimination against Fer-
rell on June 22, the question whether he was suspended or terminated on that date
is of critical importance in determining whether a reinstatement order should issue
in his behalf, and whether backpay should be ordered for more than 30 days.
According to all three of the witnesses to the interview on June 22 (Ferrell, Wil-
liams, and Thompson), the penalty originally announced to Ferrell was outright
discharge as in the cases of Labbit and Barrett. Ferrell's eloquence on the occasion
won him a reprieve, and the "sentence" was "commuted" to 30 days' suspension.
According to Ferrell, however, he was told that he could return after 30 days "if all
this had blown over and [his] attitude had changed." Ferrell at the time expressed
great pleasure over not being fired. Nevertheless, if in fact his return to work was
conditioned upon his abandoning union or concerted activity, then the illegality of
the condition converts the suspension into a discharge. The questions are, first,
whether Ferrell's testimony is to be credited in this respect, and, if so, whether he
correctly construed the references to his attitude and to something "blowing over" as
conditioning his return on the abandonment of union or concerted activity.
In passing upon these issues it is appropriate to note that 2 weeks after the "sus-
pension," on July 6, when Ferrell came to the television station to talk to company
counsel concerning the charge filed in this case, Thompson, who saw Ferrell at that
time, told him (in Thompson's own words on direct examination), "I hoped we could
get this settled so we could all get back to work." The record is far from clear,
although Thompson was twice asked to explain, what he meant by getting things
settled. In any event, Ferrell, who told company counsel on July 6 that in Ferrell's
opinion he had been discharged for union activity, did not return at the end of the
30 days, although the Company had expected he would do so. Some weeks later,
on September 24, Ferrell appeared at the station accompanied by Union Representa-
tive Rich. On this occasion Ferrell indicated that he would return to work on certain
conditions , including , inter alia, backpay for the period of his absence , and a certain
schedule of hours. At this time Thompson admittedly asked Ferrell if Rice repre-
sented Ferrell, and whether Ferrell was a member of the Union. On cross-examina-
tion Thompson testified as follows:
Q. And did I understand you to testify yesterday that you asked Mr. Ferrell
in that conversation if he was a member of the union?
A. We discussed that. We did.
Q. Did I understand you to say that you asked him that question9
A. Yes, sir, I didn't-well, let me say this. I didn't exactly ask that question.
I asked him on what terms he would come back. Would he be a union member
or would he be-just what terms he would come back on. He spoke very vaguely
to me. He said he would be connected with the local union But he would not
be a union member. I couldn't understand what he was trying to say.
Q. Well, can you clarify for us why you asked him whether he would be a
union member9
A. Because he put so many restrictions on me. I just wanted to know on what
basis he was coming back into the organization. He had put so many demands
on me.
Q. Would it make any difference if he came back as a union member?
A. It wouldn't matter to me. I don't care.
Q. Why did you ask if it didn't matter to you9
A. I wanted to know why Mr. Rice was there and what his purpose was. He
had his witness there and I just wanted to get a clarification.
May I add that it made-
TRIAL EXAMINER' Go ahead.
A. -can I add it made no change in my final decision as to whether the
man would come back or not for us.
On the record as a whole, in the light of the findings made above, and upon con-
sidering the demeanor of the witnesses, I credit Ferrell's version of the June 22 inter-
view, and I find that at that time Williams and Thompson gave him to understand
that upon returning to the studio after his suspension he would be expected to abstain
from the union and concerted activities which were prominent in their minds on
TELEVISION BROADCASTERS, INC. 1245
June 22. As Ferrell had a statutory right to engage in those activities, the effect of
the condition was to impair his rights under the Act. His refusal to report back
under such conditions was likewise statutorily protected, and the Company by impos-
ing such conditions in effect constructively discharged him in violation of the Act.
We come next to the question whether Ferrell, who under the above findings would
normally be the beneficiary of a reinstatement order, should be denied such relief
because of the conditions he attached to his return to work. On September 16
Thompson wrote Ferrell the following letter:
As you know, you were placed on a 30-day suspension June 22, 1964, and
could have returned at the end of that time to your regular duties. Since you
have not returned after the expiration of the 30-day period, we assume that you
are no longer interested in returning to work for this station.
Should you care to discuss this further, please contact us.
Pursuant to that letter Ferrel went to the company office on September 24 where, as
noted above, he and Thompson discussed whether Ferrell would return to work for
the Company. At this time, and at the time of the hearing, Ferrell had other employ-
ment, but he testified that he would have preferred, and would still prefer, his old
job at the Company.
According to Thompson (Ferrell did not testify as to the September 24 interview),
the conversation on September 24 was as follows:
And he asked me, he said , "Do you want me to come back to Channel 12 to
work?"
I said, "Reggie, let's turn the question around. Do you want to come back
to Channel 12 to work?"
He said, "Yes, sir," that he did, and that he had certain demands or certain
requests that he would like to make in order to come back to work for Chan-
nel 12.
I said , "What are those requests'"
He said, "I would like the same shift I was working, which was on Saturday
and Sunday, which is from sign-on to sign-off. I would like exactly the same
hours and a consideration of the fact I will be able to continue my college edu-
cation and that you won't give me some shift that I can't possibly work so you
can get rid of me."
I said , "Reggie, you are putting me on the spot because you have a lot of
demands there."
He asked for his job back. In fact, I asked him, "Reggie, are you asking or
demanding your job back?"
He said, "I want to go back to work for Channel 12."
He said also , "I want to say this, I want a week's paid vacation, and I want
back pay for the money I haven't-for the money-" he wanted back pay.
And I said, "Reggie, it's my understanding you are working for KOLE or
KPAC-"
Q. He wanted back pay for what period? Thirty days or during September,
from September 24-
A. For the entire period.
Q. Back to June 22?
A. Yes.
Q. All right.
A. And I said it was my understanding he was working for KOLE in Port
Arthur, making more money than we were paying him, so what would he deter-
mine his back pay on?
He said, "Well, that would be determined at a later date."
I asked him when he came back-no, I asked him in front of Mr. Rice, I said,
"Are you represented by Mr. Rice since Mr. Rice is a union man?"
He said, "I am not."
I said, "At this time are you a member of the union?"
He said, "I am not."
I said , "What terms will you come back on?"
He said, "Well, I will be a union member, but I wouldn't be in this union."
He was very vague on the question of what he was going to be when he came
back to work.
I asked him what his shift was with our station, and he said he had a morning
shift and worked all day Saturday.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I reminded him of the complications we had last year when he wanted off
Saturday so he could go out and play in the football game, which caused prob-
lems. I said, "I do not like to work a man from sign-on to sign-off. It's too
long a shift."
Q. How long is that?
A. That is from 7:00 o'clock on Saturday morning to sign-off, which is
about 11:30 or 12:00.
And I told him in front of Mr. Rice that I felt like the terms were awfully
stiff and that if he could call me back in two days I would give him my answer
at that time, to give me some time to think about it and check our schedule.
In the meantime, he hadn't reported back and we had hired men and had prac-
tically a full staff. I explained that to him. I said, "If we need part-time help
or something, call me back in two days and I will give you my answer then."
I think that is pretty much the highlights of the conversation.
Q. Did he call back in two days?
A. He did call back in two days.
I said, "Reggie, your demands are so stiff, I can't meet them. I can't meet
the back pay. I can't meet the vacation or the schedule you want. I think the
best thing for us to do at this time, I just don't have a job at this time-"
Thompson further testified with respect to Ferrell's "condition" that he be given the
"sign-on sign-off" shift:
Q. Regardless of whether his name was Ferrell or anybody else?
A. It don't make any difference who it is. So when Mr. Ferrell failed to
report at the end of his thirty-day suspension and we saw that we had this
vacancy, we hired another man to take Mr. Ferrell's place. We changed the
shifts. We no longer work from sign-on to sign-off.
And again, on cross-examination:
Q. (By Mr. TILLEY.) Mr. Thompson, was Mr. Ferrell working from sign-on to
sign-off at the time he was discharged?
A. Yes, sir.
Q. And is it true that this gentleman that you had was sort of a replacement
for Mr. Ferrell')
A. Mr. Ferrell did not show up. Yes.
Q. This gentleman was a replacement?
A. Yes.
Q. And therefore one of the problems in giving Mr. Ferrell his job back
would be that you would have to let his replacement go?
A. That's correct. I would have to terminate his employment.
The issue here is whether Ferrell's "conditions" absolved the Company of what
would otherwise be its normal duty to offer unconditional reinstatement to a dis-
criminatorily discharged employee. Although as appears below, I resolve this issue
in Ferrell's favor, there are significant considerations on both sides of the contro-
versy which should be set forth.
In the first place, the Company's letter of September 16, although not in terms
an offer of reinstatement, stated that as of July 22 Ferrell "could have returned"
and invited further discussion. The "further" discussion" commenced with Fer-
rell's inquiring if the Company wanted him to return. At this point the Company
was under a legal duty to offer him unconditional reinstatement (assuming, of course,
that I am sustained in my findings thus far as to Ferrell; if not, this discussion is
superfluous), but instead of making such an offer, Thompson parried the inquiry
by asking if Ferrell wanted to return. Of course, as Thompson viewed the matter,
his inquiry was a natural one, arising out of Ferrell's failure to return at the expira-
tion of his suspension. Nevertheless, at this point the legal posture of the parties
was such that the Company was under a duty to offer reinstatement and had not
unequivocally done so. But now Ferrell stated his conditions for returning to work,
and our question becomes whether his statement of conditions relieved the Com-
pany of making an offer which complied with its legal duty but did not meet Fer-
rell's conditions.
Ferrell asked for backpay to the date of his discharge-suspension. The Company
was not legally obligated to include this in a valid offer of reinstatement. In any
ordinary unlawful discharge case the employer may toll his future liability by offer-
ing reinstatement; he is not required to surrender his position that his original action
was lawful. Ferrell also asked that he be given his old schedule of working hours,
TELEVISION BROADCASTERS, INC . 1247
from "sign on" to "sign off" on weekends. So far as he knew this was simply a
request for reinstatement to the conditions of the job from which he had unlaw-
fully been discharged. If the Company had decided for nondiscriminatory reasons
to discontinue the practice of working any employee such hours, it would not have
been obligated to reinstate Ferrell to those hours, any more than an employer who
has abolished a night shift for economic reasons is obligated to offer employment
at his former hours to a night-shift employee who was unlawfully discharged when
that shift was still operating. Thompson told Ferrell that the Company "did not
like to work a man from sign-on to sign-off."' This would seem to suggest that the
Company should have offered Ferrell his old job, and then after reinstating him,
have gone into the question of changing his hours, for nondiscriminatory reasons.
Thompson's later testimony indicates that the sign-on to sign-off shift had already
been abandoned, but it is far from clear that Thompson put the matter in those terms
to Ferrell.
Other testimony of Thompson reflects adversely on the Company's position.
Thompson was concerned that he would have to discharge a replacement if Fer-
rell returned on the terms Ferrell stated. But because Ferrell was the victim of an
unlawful discharge, his claim to the job enjoyed statutory protection even though
the Company would have to discharge a replacement to make room for Ferrell.
Finally, it must be remembered that the original discrimination against Ferrell
included an admonition that his return to duty was conditional upon a change in
his "attitude," which Ferrell understood (correctly, as I have found) to mean that
his union and concerted activity must cease. The Company never took any action
to advise Farrell that this illegal condition was removed. On the contrary, Thomp-
son injected the issue into the interview by inquiring of Ferrell if the latter was a
union member and would be one if he returned. To be sure, Thompson did not
rely on this factor in finally rejecting Ferrell for reemployment, and he testified,
self-servingly, that union membership was not a factor in the decision not to take
Ferrell back. But Thompson at no time expressly advised Ferrell of this alleged
change of heart since the suspension interview on June 22, and the uncalled-for
inquiry as to union membership raises considerable doubt as to whether Thompson's
professed indifference on the subject is to be believed.
In sum, although the Company was not legally obligated to meet all of Ferrell's
conditions in order to toll its reinstatement and backpay liability, it was obligated
to undo its original wrong to the extent of making a firm and unequivocal offer of
reinstatement. This it failed to do. I should add that the consequence of this
failure, in the event my views are ultimately sustained, will in all probability only
require it to make such an offer in the future, for although backpay liability is
technically continuing to run, the record reflects that Ferrell, at least at the time of
the hearing, held a better paying job than that from which he was discharged.
C. The discharge of McGee
The complaint alleges that on July 7, and thereafter, the Company reduced the
working hours of John McGee, that it discharged him on September 21, and that it
took these actions because of McGee's union and concerted activity, and because he
"gave testimony under the Act."
McGee signed a union card on Monday, June 22, but engaged in no other union
activity. On June 24, as recounted above, Thompson advised McGee to keep his
"nose out of this union business" as Thompson did not want to see him lose his job.
About 10 days later some of McGee's duties were taken away from him and his
hours were cut from nearly 40 per week to 4 per day. About 2 weeks later his
hours were cut again, and he worked only 6 to 7 hours on Saturdays. Finally in
the latter part of September he was discharged. McGee had given a statement to a
Board investigator in July, in which McGee related his June 24 conversation with
Thompson.
I see little point in stating at length the Company's explanations for its treatment
of McGee. Basically the contention is that the cut in hours was dictated by eco-
nomic circumstances, that McGee's work was inferior, that he was not sufficiently
capable to be promoted, and that a new man had to be hired and groomed for an
impending vacancy. Be that as it may, there is no evidence that the Company knew
of McGee's union activity (which in no way exceeded that of other employees as
to whom no discrimination is alleged), or of his statement to the Board agent, and
the cut in his hours and his discharge are not closely related in time to his union
activity. The complaint as to him should be dismissed.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Interference, restraint, and coercion
The discharges of Barrett, Labbit, and Ferrell for union and concerted activity
were, of course, violative of Section 8(a) (1) as well as of Section 8(a)(3). In the
course of Thompson's and Williams' conversations with Labbit and Ferrell on June 22,
the company representatives asked them about their organizing activity; such an
inquiry under the circumstances constitutes unlawful interrogation and interfered
with the employees' Section 7 rights. Thompson's threat to McGee on June 24 that
engaging in union activity would endanger McGee's job likewise violated Section
8(a)(1).
At the conclusion of the hearing General Counsel moved to amend the complaint to
allege that Thompson's inquiry of Ferrell on September 24 as to whether Ferrell
would be a union member if he returned to work constituted unlawful interference
violative of Section 8(a) (1). I permitted the amendment, pursuant to Section 10(b)
of the Act and Section 102.17 of the Board's Rules. The pertinent facts are estab-
lished by the uncontradicted testimony of Thompson, who is the Company's general
manager and was called as a witness by the Company. After the amendment was
allowed, the Company declined an invitation to present further testimony. The
interrogation was clearly unlawful under the circumstances, whether Ferrell be viewed
as an unlawfully discharged employee or merely as an applicant for a job. See
N.L.R.B. v. National Plastic Products Co., 175 F. 2d 755, 760 (C.A. 4).
I credit the testimony of Ferrell, over the somewhat oblique denial of Thompson,
that on July 6 Thompson told Ferrell that if Ferrell pressed his unfair labor practice
charge Thompson would not give him a job recommendation. This conduct likewise
violated Section 8(a) (1). The complaint also alleges that on July 6 Company Coun-
sel McNicholas interrogated Ferrell as to whether Ferrell was a union member and as
to what other employees were engaging in union activity. The record is clear that
McNicholas interviewed Ferrell that day, and told Ferrell that he was free to refuse
to answer any and all questions. The testimony is in conflict as to whether McNicho-
las put the questions alleged in the complaint. In view of the other evidence of unlaw-
ful interrogation in this record, I see no need to resolve the conflicting testimony on
this matter, for a finding adverse to the Company would add nothing to the order
recommended below.
III. THE REMEDY
I shall recommend the conventional relief for the violations found, including an
order to cease and desist from the unfair labor practices, and affirmative relief of rein-
statement and backpay for the victims of discrimination. In view of the nature of the
violations, their widespread character, and the hostility which the Company displayed
to employee exercise of Section 7 rights, the cease-and-desist order should be broad
enough to encompass any future invasion of those rights. Backpay should be com-
puted in accordance with the formulas set forth in F. W. Woolworth Co., 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By discharging Daniel Labbit and Billy Barrett on June 22, 1964, for concerted
or union activity, the Company engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By suspending Reginald Ferrell on that date for such activities, and by condi-
tioning his return to work on his changing his attitude with respect to such activities,
the Company engaged in further unfair labor practices affecting commerce within the
meaning of the above-cited section of the Act.
3. By interrogating and threatening employees with respect to their union and
concerted activity, and by threatening to withhold a favorable job recommendation
from an employee if he pressed a charge under the Act, the Company engaged in fur-
ther unfair labor practices affecting commerce within the meaning of Section 8(a) (1)
and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Accordingly, on the basis of the foregoing findings and conclusions and on the
entire record, I recommend, pursuant to Section 10(c) of the Act, that:
A. Respondent Television Broadcasters, Inc., Beaumont, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from-
(a) Discriminating against any employee for having joined, or engaged in activity
on behalf of, Local Union 479, International Brotherhood of Electrical Workers,
AFL-CIO.
TELEVISION BROADCASTERS, INC. 1249,
(b) Interrogating or threatening employees as to their union membership or activi-
ties, discriminating against them for engaging in concerted activity for mutual aid or
protection, threatening to withhold job recommendations if they press charges under-
the Act, or in any other manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Offer to reinstate Daniel Labbit, Billy Barrett, and Reginald Ferrell to their-
former or substantially equivalent positions without prejudice to their seniority or
other rights and privileges, and make each of them whole in the manner described in
the section of the Trial Examiner's Decision entitled "The Remedy" for any loss of
earnings suffered by reason of the discrimination against them.
(b) Notify any of the above-named employees who may be serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or its agents, for exam-
ination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount
of backpay due under the terms hereof.
(d) Post at its television station in Beaumont , Texas, copies of the attached notice
marked "Appendix." 3 Copies of such notice, to be furnished by the Regional Direc-
tor for Region 23, shall, after being duly signed by an authorized representative of
the Respondent, be posted immediately upon receipt thereof, and be maintained by it
for a period of 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 cov-
ered by any other material.
(e) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of the receipt of this Decision , what steps the Respondent has taken to comply
herewith.4
B. The complaint insofar as it alleges discrimination against John McGee should
be, and the same thereby is, dismissed.
8In the event that this Recommended Order be adopted by the Board, the words "As
ordered by" shall be substituted for "As recommended by a Trial Examiner of" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be Inserted Immediately following "As ordered by."
* In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board, we
are posting this notice to inform our employees of the rights guaranteed them in the
National Labor Relations Act:
WE WILL offer Daniel Labbit, Billy Barrett, and Reginald Ferrell their former
jobs, and pay them for wages they lost since their discharge in June 1964.
ALL OUR EMPLOYEES have the right to join or assist Local 479, International
Brotherhood of Electrical Workers, AFL-CIO, or any other union, and to engage
in other concerted activity for mutual aid or protection. WE WILL NOT question
them as to whether they are members of or support a union or are engaging in,
concerted activity, or discharge them or threaten them for doing so, or interfere
with them in any way because of their union or concerted activity.
TELEVISION BROADCASTERS, INC.,
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 full reinstatment upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed' Forces.
789-730-66-vol. 152-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. Capitol
8-0611, if they have any questions, concerning this notice or compliance with its
provisions.
Kay Allen Classics, Inc. and International Ladies' Garment Work-
ers' Union , AFL-CIO. Case No. 4-CA-3382. Jwn.e 8, 1965
DECISION AND ORDER
On March 24, 1965, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof, and the General Counsel
filed cross-exceptions to the Trial Examiner's Decision, a brief in sup-
port thereof, and a brief in answer to the Respondent's exceptions and
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
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 Trial Ex-
aminer's Decision, the Respondent's exceptions and brief, the General
Counsel's cross-exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following modifications and additions.
The Trial Examiner found, and we agree, that the Respondent
unlawfully refused to bargain with the Union on June 4, 1964. The
General Counsel excepts to the Trial Examiner's failure to find an
unlawful refusal to bargain on and after May 13, 1964. For the rea-
sons set forth below, we find merit in the exceptions.
On May 13,14 of the 25 employees in the production and maintenance
unit, which was stipulated by the parties to be appropriate, signed
union cards. On that date, a committee of union representatives and
employees presented to Trostle, the Respondent's plant manager, a
written demand for recognition which claimed majority representa-
tion, requested a bargaining meeting, and was signed by a union rep-
resentative and by 12 employees designated as a "committee of the
employees of the Gettysburg plant." The committee told Trostle that
152 NLRB No. 134.