Trent Broadcast Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1943

50 N.L.R.B. 739 (N.L.R.B. 1943)

c . rc
In the Matter of TRENT' BROADCAST CORPORATION and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, ' A. F. ,oF L. and AMERICAN
COMMUNICATIONS AssoclATtoN BROADCAST DEPARTMENT, LOCAL 1,
EASTERN BRANCH, PARTY TO THE CONTRACT
Case No. C-2622.-Decided June 22, 1943 -
DECISION.'
AND- -
ORDER
On May 21,1943, the Trial Examiner issued his Intermediate Report
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 af-
firmative action, as set forth in the copy of the Intermediate Report
annexed' hereto. No exceptions to the Intermediate Report have been
filed. The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations made by the Trial Examiner, with the following
exception :
The Trial Examiner has found that the contract would be invalid
even if it were construed as covering a unit of licensed technicians
only, since the respondent had only one licensed technician in its
employ at the time the contract was made, and since a unit of only one
employee is not appropriate for the purposes of collective, bargain-
ing. In view of the Trial Examiner's finding, adopted by us, that
the contract covered, and was intended to cover, all broadcast tech-
nicians in the respondent's employ, we deem it unnecessary to express
any opinion as to the validity of the contract otherwise construed. '
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Trent Broadcast Corporation,
50 N. L. R. B., No. 105.
739
740 DECISIONS OF NATIONAL LABOR ,RELATIONS B,OAi D
Trenton, New Jersey, and its officers,, agents, successors, and assigns,
shall :
1. Cease and desist from : -
(a) Recognizing American Communications Association, Broad-
cast Department; Local 1, Eastern Branch, as the representative of any
of its employees for the purpose, of, dealing with the respondent in
regard -to grievances, labor disputes,` wages rates of; pay,, hours of
employment, or other conditions of employment, unless and until that
organization shall have been certified by the Board as the representa-
tive of the employees; -
(b) Giving effect to the contract of December 1, 1942, with Ameri-
can Communications Association; Broadcast Department, Local 1;
Eastern Branch, or to any extension,•renewal, modification, or supple-
ment thereof, or to any superseding contract with that labor organiza-
tion which may now be in force, unless and until that organization
shall have been certified by. the Board as the representative of the
respondent's employees; fl
(c) Engaging in any like or related acts or conduct interfering with,
restraining, or coercing its employees in the exercise of the right to
self-organization, to form, join or assist labor organizations, to bargain
collectively through representatives -of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act. ,
. 2. Take the following affirmative action which the Board finds will
effectuate the pplicies of the Act : -
(a) Withhold recognition from American Communications Asso-
ciation, Broadcast Department, Local 1, Eastern Branch, as the repre-
sentative of any of its employees for, the purpose of dealing, with the
respondent in regard to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until, that organization shall have been certified by the Board as the
representative of the employees;
(b) Post immediately in conspicuous places in its broadcast' studio
at Trenton, New Jersey, and its transmitting plant at Yardley, Penn-
sylvania, and maintain for a period, of at least sixty, (60) consecutive
days from the date of posting, notices,to its employees stating : (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in pdragraphs 1 (a), (b), and (c) of this
Order; and (2) that the respondent will take the affirmative action set
forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director-for the Fourth Region in writing,
within. ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
TRENT BROADCAST CORPORATION 741
CHAIRMAN MI;rnts took no -part in the consideration of the above
Decision and Order. -
INTERMEDIATE REPORT
Mr. Geoffrey J. Cunni ff, for the Board.
Messrs. Nicholas 0. Beery,' of Paterson, 'N. J., and A. Harry Zoog, of Mor-
risville, Pa., for the respondent.'
Messrs. Saul C. Waldbaum, of Philadelphia, Pa, and R. E. Shtipp, for A. C. A.
Messrs. Lawrence F. Daly and Lawson Wsnaberly, of Washington, D. C., and
Freeman L Hard, for the Union.
' STATEMENT OF THE CASE
Upon a second amended charge duly filed February 18, 1943, by International
Brotherhood of Electrical Workers, affiliated with the American Federation
of Labor, herein called the Union, the National Labor Relations Board, herein.
called the Board,,by the Regional Director for the Fourth Region (Philadel-
phia, Pennsylvania) , issued its complaint dated April 13, 1943, against Trent
Broadcast Corporation, Trenton, New Jersey, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging-in an unfair labor
practice within the meaning of Section 8' (1) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance:
(1) that on November 27, 1942, the respondent entered into a closed shop con-
tract with American Communications Association, Broadcast Department, Lo-
cal 1, Eastern Branch, herein called the A C A., requiring as a condition of
employment membership in the A. C. A. of all employees of the respondent's
technical staff "and/or" of all licensed technicians, at a time when the A. C. A.
represented only a minority of the respondent's technical staff "and/or" its
licensed technicians; (2) that the aforesaid closed shop contract is illegal in
the light of the provision set forth in Section 8 (3) of the Act; and (3) that
by entering into the aforesaid contract the respondent has interfered with, re-
strained, and coeiced its employees in the exercise of'rights guaranteed in
Section 7 of the Act.
The complaint and accompanying notice of hearing were, duly served upon
the respondent, the Union and the A. C. A.
Pursuant to notice, a hearing was held at Trenton, New Jersey, on May 10,
1943, before the undersigned, the Trial Examiner duly designated by the Chief
Trial Examiner The Board, the respondent, the Union and the A. C. A. were
represented by counsel. All parties participated in the hearing and were
afforded full oppportuuity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues At the opening
of the hearing counsel for the respondent orally stated for the record the
respondent's general denial of the unfair labor practice alleged in the complaint.
At the close of the Board's case the Trial Examiner denied a motion by coun-
sel for the A. C. A. to dismiss the complaint At the close of the hearing coun-
sel-for the respondent and counsel for the'A. C. A separately moved for dis-
missal of the complaint. Rulings were reserved. Both motions are hereby de-
nied. Without objection by any of the other parties, a motion by counsel for
the Board was grdnted at the close of the hearing to conform the complaint to
the proof. Also at the close of the hearing opportunity was afforded to all
parties to argue orally on the record Counsel for the Board and for A.C. A.
availed 'themselves of this opportunity, counsel for the respondent and for the
5 36105-44-vol 50-48 1
742
k
DE01SIONS OF' NATIONAL LABOR RELATIONS BOARD
Union waived the o privilege., All - of `the parties waived the privilege • to file
briefs with the Trial Examiner . - I '
'
.
Upon the record thus made the Trial Examiner makes, in addition to the
above, the following : -
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT'
The Trent Broadcast Corporation is a New Jersey corporation with its prin-
cipal office and broadcasting studio in Trenton, New Jersey, and its trans-
mitting plant in Yardley, Pennsylvania. It is engaged in the transmission, by,
radio through Station WTTM, of entertainment, advertising and intelligence
into and through the States of New Jersey and Pennsylvania.
The respondent operates 24 hours per day over a designated wave length of
920 kilocycles with 1000-watt power. Its operations are conducted under a
license granted'by the Federal Communications Commission. Its income is de-
rived entirely from the sale of advertising broadcast over its Station, and about
20 percent, of such income is received from advertisers engaged in interstate
commerce . It employs about 30 persons.
The respondent concedes that it is engaged- in interstate commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical- Workers, affiliated with the Ameri-
can Federation of Labor, and American Communications Association, Broad-
cast Department, Local 1, Eastern Branch, are labor organizations admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
1. Events leading up to the A. C. A. contract
Station WTTM began operating in April, 1942. The record reveals no labor
organization activity among the respondent's employees until early November,
when more than 20 of them signed authorization cards in the Union. At that
time there were about 30 persons on the respondent's payroll.
Early in October General Manager A Harry Zoog was experiencing difficulty
in obtaining technicians licensed by the F. C C. to operate the station's trans-
mitter.- He appealed to R: E. Shipp, secretary of the A. C A. and a former
union "brother," and on October 15 sent him the following letter :
Dear Dick :
Confirming our telephone conversation of this date, I want to impress upon
you again the urgency of the plight in which I find myself.
You realize, of course, that our station started after war was declared and
the personnel problem, particularly the licensed group, has been a series
(sic) one from the very beginning, and as I stated to you over the phone,
I have exhausted every means at my command to procure licensed men. I
am asking you, not only as a friend, but as one in a position to do so,,-to
help me obtain some relief. ,
As I,stated to you, I am perfectly willing to sign a contract with ACA
under the general terms we discussed. I believe the wages and hours are
not too far out of line with what you are receiving in Philadelphia, and any
reasonable adjustment certainly can be made.
1 The facts found in this section are based upon a stipulation entered into at the bearing
by the parties.
a
TRENT BROADCAST CORPORATION 743
At the present time I am standing a double transmitter watch, besides
acting as General . Manager, and I cannot keep this sort of thing up very much
'longer . So, I am pleading with 'you to follow ' through on all the angles
which we discussed over the phone . I know that ACA represents a 'fine group
of broadcastpeople and certainly among your membership will be the 'answer
to our problem. - -
,Keep in touch with me and I will do. likewise.
On October 19, Shipp replied as follows :
Dear Harry:
In verification of our telephone conversation of last ' Thursday and your
letter of the 15th , I am contacting as many licensed men as are available
at this time , and hope to have some up for interviews . Meanwhile I will
draw up a rough contract , the details to be worked out later , covering working
conditions and stipulations of their employment.
Some weeks later A. C. A. supplied a,licensed technician , Richard Jenkins,' to the
respondent . Jenkins was then the only licensed technician at the station , except
Zoog and the chief engineer , both of whom were of managerial capacity.
On November 8 International Representative Freeman L . Hurd of the Union
orally informed Zoog that. the Union represented a majority of his employees,
and asked to negotiate concerning working conditions and wages . Zoog referred
Hurd to Congressman Elmer. Wene, president of the respondent . Hurd made
many unsuccessful efforts to meet with Wene. On November 24 Hurd sent the
respondent the following letter ;
Confirming oral notice given your Mr. Harry Zoog ,' Mr. Elmer Wene, et al,
on and subsequent to November 7th, 1942 by the undersigned , the Inter-
national Brotherhood of Electrical Workers (AFL) hereby further states
that a majority of the radio broadcast technicians and a majority of all other
employees employed by the Trent Broadcast Corporation have designated it
as their sole and-exclusive collective bargaining agency for the purpose of
bargaining collectively with employer , in respect to wages, hours of work
and other conditions of employment.
Because of the extraordinary problems involved in the situation at WTTM
a meeting with the Board of Directors or majority stockholders had been
requested . In fact two appointments for such a meeting were made but failed
to materialize although the undersigned made special trips of considerable
distance to Trenton in order to keep such appointments.
The IBEW again requests - in writing such a meeting . In view of the ur-
gencies of the situation , as is unanimously recognized by impartial observers,
such a meeting should be held within as short a time as possible. The
courtesy of an early reply setting a definite and immediate date will be
appreciated.
On the following day, November 25, Shipp for - the A. C. A. sent Zoog copies of a
proposed contract , quoted below , which were accompanied by the following
letter :
Here are copies of the proposed contract ; I believe that there is everything
included which we have discussed.
I have come in contact with a couple more licensed men which I am sending
up to see you.
In regards to getting some one up to see you , I shall try in every way to
let you know Friday A. M. who •it will.be, if any one is available.
Guess that about covers everything for this time.
70DECJDSIONS-, OF NATIONAL! LABOR RELATIONS BOARD
On-November 27 Zoog replied to Hurd's letter , above quoted ,- as follows:
I have , been in communicated with Congressman ;Wene and he has set
Thursday , December 3rd, 71:30 P. M. at the WTTM- Studio 's as-tbe date for
the meeting with you. I ,
This appointment has been made with considerable inconvenience to the
Congressman , therefore , we would appreciate your advising ' us immediately
whether or not this date is satisfactory.
On the same day, however , Zoog 41so signed and returned the agreement sub- -
mitted by A. C ' A , with the accompanying letter :
The enclosed original and, copy of AGREEMENT has been - executed by
this corporation , after having been referred , to a technician member of your
body. Please approve same and return copy thereof to this office for our
files.
Perusal of this document reveals that' it does not embrace "announcers"
and we understand that consideration is to be given to question of preparing
and forwarding agreement to embrace "announcers" after consideration by
your ' executive committee . We would appreciate prompt advice as to the
course adopted in respect thereto.
A. C. A., signed the contract . Relevant sections of the agreement , which was
dated December 1, are as follows : .
Whereas, the Union represents , for the purpose of collective bargaining,
a majority of, the Licensed Technicians in the employ of the Employer, and
Whereas, the Employer and the Union desire to enter into an agreement,
covering the terms and conditions of employment of the technicians of the
Employer so that their relations shall be mutually beneficial and harmonious :
Now therefore , In consideration of the mutual promises and covenants
hereinafter set forth , the parties hereto agree as follows :
1. The Union [A. C. A .] is hereby recognized as the bargaining agent for
all of the Technicians in the employ of the Employer.
2. Employer agrees that as a condition of employment all Technicians
shall ' remain members , in good standing of the Union . Newly employed
Technicians who are not members of the Union shall become members of
the Union within thirty (30)-days. -
3 Employer agrees that no Technicians shall be discharged without the
consent of the Union.
4, Technicians who hold FCC Licenses and are employed during the term
rof this contract shall receive not less than forty ( 40) dollars per week
during the first year of employment and shall in addition receive Two (2)
dollars and Fifty ( 50) cents ($250) per week additional for each year's
employment thereafter from such Technician 's original date of employment.
5. Technicians employed but who do not hold valid FCC licenses shall
receive not less than Thirty ( 30) Dollars per week during the first year of
their employment and shall in addition receive Two Dollar ( sic) and -Fifty'
($250) per week increase after each year's employment from original date
of employment.
5-A- Technicians employed but without licenses and who secure valid
FCC licenses 'during the term of this agreement shall immediately receive
"remuneration as outlined in Par. 4, without loss of seniority:
6. Technicians in the employ of-Employer for 12 consecutive months shall
receive seven ( 7) consecutive , days vacation with full pay. Technicians
who have been employed for two or more years shall receive fourteen (14)
consecutive days as vacation with full pay. ,
TRENT BROADCAST CORPORATION 745,
7. Technicians' shall be entitled to Two (2) weeks sick leave with full
pay and four (4) weeks additional at half pay. Sick leave shall be accumu-
lative during the year but -shall not be carried over from year to year.
(Italics supplied.)
The above-described contract, in existence at the time of the hearing, continues
in force until December 1, 1943, and contains an automatic renewal clause.
2. The Union strike of December and its contract with the respondent
During the latter part of December about 20 employees, including 5 techni-
cians,2 went on a strike authorized by the Union. A Commissioner of Concilia-
tion of the U. S. Department of Labor endeavored to settle the dispute. Con-
ferences of the parties were held. The Union maintained that the A. C. A. con-
tract was invalid, because it had been entered into at a time when,the A. C. A.
did not represent a majority of the technicians
It was stipulated at the hearing that on November 27, when the respondent
signed the contract with A. C. A., that it had on its pay roll a total of six
broadcast technicians, excluding Zoog and the chief engineer. Of the six, only
Jenkins was licensed by F. C. C.
As a result of the conciliation conferences, above referred to on December 30,
the respondent and the Union entered into a "memorandum agreement;" settling
the strike. Among other things, the agreement provided that the respondent
would recognize the Union as the exclusive bargaining agent of all its employees
except the broadcast technicians and.engineers . As to the latter categories,
the Union was to be the bargaining representative for such employees as were
its members , pending "determination -by the National Labor Relations Board
as to a collective bargaining agreement between Station WTTM and the Ameri-
can Communications Association the validity of which the International Broth-
erhood of Electrical workers questions." The agreement also contained the
following clause:
The validity of the agreement between Station WTTM and the American
Communications Association is in no way modified or abrogated by any
action herein of the employer, except to the extent that the employer has
secured the consent of the American Communications Association to permit
five (5) members of the International Brotherhood of Electrical Workers
now on strike, to return to work, pending the determination by the National
Labor Relations Board of the validity of the agreement. The International
Brotherhood of Electrical Workers will immediately institute appropriate
proceedings to determine the validity of said agreement.
On the same day the respondent received from the secretary of the A. C.•A. the
following telegram :
PENDING OUTCOME OF JOINT MEETING OF A F OF L ACA AND MR. MARGOLID (SIC)
THIS IS TO ADVISEIYOU THAT ACA IS STILT; IN THE PICTURE AND WILL CONTINUE
TO SERVICE ITS CONTRACT WITH WTTM COVERING TECHNICIANS.
Later the same day the A. C. A. sent the respondent the following telegram :
ACA HEREBY PERMITS REEMPLOYMENT OF FIVE IBEN (SIC) MEMBERS OF TECHNICAL
STAFF PENDING DETERMINATION BY NLRB OF VALIDITY OF ACA WTT_lM CONTRACT
AND AGREED TO RELEASE WITHOUT PREJUDICE FRIES AND WARD FROM TECHNICAL
STAFF.
2 One of the five technicians on strike was Chief Engineer Betz, a Union member. Betz
had the right to hire and discharge and clearly was a supervisor. As later discussed,
Betz was not solicited for membership by A C A , and was not considered eligible for
membership by it.
746 DEaSQ'ON OF NATIONAL ' LABOR RELATIONS BOARD
Also on December 30 Lawson Wimberly, International Representative of the
Union, sent the following letter to William N. Margolis;. Commissioner of Con-
ciliation :
This is to confirm my oral assurance to you, which you have relayed to Mr.
Shipp of the American Communications Association, that should the pro-
ceeding which are to be instituted. by the Brotherhood before the National
Labor Relations Board with respect to the agreement between the ACA and
Radio Station WTTM result in said agreement being voided, all broadcast
technicians and engineers, members of ACA, and employed by Station WTTM
as of the date hereof, will be afforded an opportunity to become members
of the Brotherhood, in accordance with its Constitution and laws.
Such opportunity to become members of the Brotherhood will be extended
for a period of thirty (30) days, without prejudice, to the above, mentioned
broadcast technicians and engineers.
On January 1, 1943, A. C. A. Secretary Shipp sent Wimberly the following letter :
I have been informed by Wm. Margolis, U. S. Dept. of Labor Conciliator,
that a stipulation for return to work has been executed by Station WTTM
& IBEW, and ACA having consented to the.re-employment of 5 IBEW mem-
bers of the technical staff, pending NLRB determination as to the validity
of ACA contract. Based on mutual assurance it is hereby agreed by ACA
that in the eventithe ACA contract is sustained by NLRB an opportunity will
be offered to the IBEW technicians to join ACA without prejudice within
30 days after date of NLRB determination.
On February 27, 1943, the respondent and the Union entered into a collective
bargaining agreement, for 1 year containing-an automatic renewal clause. It
provided for exclusive recognition of the Union as the bargaining agent for all
of the respondent's employees except, among others, technicians. A supplemental
agreement; of the same date, contains the following provision :
Whereas, the aforesaid Memorandum Agreement of December 30, 1942,
provided that, as to recognition of the International Brotherhood of Electrical
Workers as the exclusive bargaining agent for broadcast technicians, the
Trent Broadcast Corporation recognize said International Brotherhood of
Electrical Workers as the bargaining agent for its members only, pending a
determination of the validity of a collective bargaining agreement between
the Trent Broadcast Corporation and the American Communications Asso-
ciation by the National Labor Relations Board, or release of the Trent Broad-
cast Corporation from obligation of said agreement by the American Com-
munications Association, and in the event of such invalidation or release,
that the International Brotherhood of Electrical Workers shall be recog-
nized by the Trent Broadcast Corporation as the sole and exclusive collective
bargaining agency for all broadcast technicians and engineers in its employ.
Now therefore, the terms of said Memorandum Agreement of December
30, 1942, are hereby extended until the decision' of the National Labor Re-
lations f oard or the procuration of release from the American Communica-
tions Association and a reasonable time thereafter by mutual consent of the
parties hereto.
3. Contentions of the parties as to the A. C. A. contract
It'is the contention of the Board counsel that the A. C. A. contract, by virtue
of its "express and explicit" terms, was made to cover all technicians in the
respondent's employ. Counsel for the Board further contends that on December
1; the effective date of the contract, A. C. A. did not represent a majority of all
TRENT BROADCAST CORPORATION 747
,technicians , the unit covered by the contract,.and that therefore the contract
is invalid.
A. C. A. admitted, at the hearing that,on December 1 it represented none of the
non-licensed technicians, of whom there were five, but contended that the con-
tract covered, and was intended to cover, only licensed technicians. At the'
time the contract was executed by the respondent, as found above, Jenkins was
the only licensed technician on the staff. A. C. A. claims further that, because
it represented Jenkins, the only employee covered by the contract at the time
of its execution, the contract is valid.
Counsel for the respondent offered no evidence at the hearing. As grounds for
his motion to dismiss the complaint, made at the close of the hearing , counsel
for the respondent stated :
nothing in the evidence has created a scintilla of evidence from which
even a strained inference might arise to sustain the gravamen of the charge ;
the evidence seems to clearly demonstrate that the entire controversy here
is one arising out of a situation which gave birth to conscious desire that
the working staff of this corporation should have some form of protective
organization or a means of bargaining with the management and from that
time on the various departments were involved in such a fashion that on the
one hand the company found itself confronted by a situation where it could
not secure manpower to man its technical activities and found itself in a
position where, in order to secure aid and assistance, it had to enter into
a contract with the ACA, while, on the other hand , other exigencies gave
birth to the situation where at the same time the IBEW came into the picture
and they organized, so that we were caught, in the vernacular of the street,
between two millstones. Instead of coercing people to join or restraining
people from joining we found ourselves suddenly inundated by a flood of
organizing unions.
Zoog testified that the contract "represented the licensed technicians," and
stated that he could not answer a question as to why the terms of the contract
also covered unlicensed technicians.
4. CONCLUSIONS
Documentary evidence, quoted above, refutes A. C. A.'s claim that its contract
was not designed to, and does not, cover all technicians, as well as Zoog's claim
that the contract "represented the licensed technicians." Although the contract
states that the A. C. A. represents, "for the purpose of collective bargaining, a
majority of the Licensed Technicians," it thereafter specifies that the agree-
ment is to cover "the terms and conditions of employment of the technicians,"
agrees that membership in A. C A. of "all Technicians" shall be compulsory,
provides that "no Technician" shall be discharged without A. C. A.'s consent,
and sets forth wage provisions, separately, for technicians with licenses and
technicians without licenses. Moreover, A C. A.'s telegram, above quoted, to the
respondent on December 30, stating that it `.`permits reemployment of five IBEN
(sic) members of Technical Staff," plainly establishes that A. C. A. claimed
jurisdiction over them.3 Shipp's statement as to unlicensed technicians, "we
Shipp 's answer to the question as to why be sent 'this wire concerning men in whom
his union claimed to have no interest was as follows : "This situation would have re-
mained the same until such time as I agreed to that." The answer is unintelligible to the
Trial Examiner . At another point, when asked a similar question , Shipp replied that
Commissioner Margolis had asked him to help get "these people" back to work, that he had
told Margolis A. C. A. did not claim to represent them, that Margolis had then asked him
to send a wire " to that effect", and "that is the cause of this telegram here ." The Trial
r
748 , DEOIISTON]S 'OT NATiIONAL• LABOR RELATIONS BOARD
have never' considered them at all in the technical division as being, shall we
-say, subject to membership ; we would never accept them as members," is
wholly inconsistent with his letter to Wimberly of January 1, above quoted; in
which he said : ". . . an opportunity Will be offered to the IBEW technicians to
join ACA without prejudice . . ." in the event the A. C. A. contract should be
"sustained by the NLRB ." Finally, the following colloquy, quoted from the
'record , shows that , according to the A. C A. secretary , the contract was set up
.to cover non -licensed technicians :
Q.... Now you have stated that you do not represent these men. You
do not claim to represent them. - They were not your members. Why did
you negotiate with the company as to their remuneration if you did not
represent them and made no claim to represent them? '
A. (Shipp) The two are tied in in the substance of our general thought
and intent of the contract wherein we ]new that these men-or that this
manpower shortage of technicians was going to become more pressing, so
that these men could be taken in, they could secure or do other work around
the transmitter and, shall we say, maintenance or construction, which did
not involve the F. C. C. regulations ; yet at the same time they would be
securing the necessary requisite of the knowledge which would entitle the
manager or the chief engineer then to certify that man when he had a
license .. .
The Trial Examiner finds the contention of the A. C. 'A and of Zoog, that the
-contract covers only licensed technicians, to be without merit. The agreement
is a closed shop contract, despite the fact that the compulsory membership clause
has not been enforced. Section 8 (3) of the Act provides that "nothing in this
Act . . . shall preclude an employer from making an agreement with a labor
organization . . . to require, as a condition of employment, membership therein,
if such labor organization is the representative of the employees as provided
in Section 9 (a), in the appropriate collective bargaining unit covered by such
agreement when made." (underlining supplied). Section 9 (a) states, in part,
that "Representatives designated or selected for the purpose of collective bar-
-gaining by the majority of the employees in a unit appropriate for such pur-
poses, shall be the exclusive representatives of all the employees in such unit ..."
The question as to whether or not the unit covered by the contract was appro-
priate was not litigated at the hearing. A. C A. admitted, and the evidence
proves, that it did not represent a majority of the employees in the respondent's
technical staff, the unit covered by the contract. The contract was therefore
illegally entered into, and is invalid'
There is no evidence of any prior collective bargaining at WTTM. Its easy
compliance with A. C. A.'s request for a closed shop contract at a time when it
Examiner does not consider either answer to be a satisfactory or reasonable answer to
explain away the obvious import of the telegram, that A C. A considered it within its'
contractual province to claim jurisdiction of the technical staff as a classification which
includes licensed technicians.
4 As noted above, both A. C. A. and the respondent took the position at the hearing that
their contract was intended to cover a unit of licensed technicians only. Even if the evi-
dence supported this position , A. C. A. admitted that at the time the contract was signed
the claimed unit consisted of but one man, Jenkins. The Board has frequently held that
the Act does not empower the Board to find an appropriate unit where only one employee
is involved . (See Matter of Luckenbach Steamship Company, Inc, et al , 2 N L R B 181,
193; Matter of H. Rosenhirsch Company, 38 N. L. R. B. 619, 621 ; Matter of Crane Co, 41
N. I: R. B. 206). Thus, in consonance with established Board policy, if the joint position
of A. C. A. and the respondent were to be accepted at its face value it would be necessary
to find the unit of a single employee to be inappropriate. And, the unit being inappro-
priate , the contract would be invalid.
1
TRENT BROADCAST' CORPORATION 749
knew of the Union's claim as exclusive representative of all employees covered
by the A. C A. contract is convincing that the respondent hastened to enter its
contract with•A. C A. to the end that it might avoid the necessity of negotiations
except through A. C. A.6
Documents above quoted show that Zoog• well knew, at the time of executing
the contract with A. C. A, that the Union claimed to represent a majority of
the respondent's technicians, yet it entered into a contract with A. C. A. recogniz-
ing it as the bargaining agent for "all of the Technicians." Further evidence of
his disposition to favor A. C. A., in spite of the Union's formal demand for
recognition as exclusive bargaining representative of all the respondent's em-.
ployees, is contained in Zoog's letter to A. C A, when returning the signed con-
tract on November 27, wherein he suggested that A C. A. submit a contract
covering announcers.
The respondent's act in signing a closed shop contract with A. C. A., at a time
when A C. A. did not represent a majority of, the employees in the unit covered
by the contract, constituted interference, restraint, and coercion of its employees
in the exercise of rights guaranteed in Section 7 of the Act.
V. THE EFFECT OF THE'UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDI
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease%and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Since it has been
found that the contract with A. C: A executed on December 1, 1942 is invalid, it
will be recommended that it be voided, and that the respondent cease giving
effect to it, as well as to any extension, modification, renewal or supplement
thereof, or to any superseding contract with A. C. A. which may now be in force.
Nothing herein, however, shall be interpreted to vary those wages, rates, hours,
and other substantive features of its relations with its employees which the
respondent may have established pursuant to the contract, as extended, modified,
supplemented, or superseded. . .
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAw
1 International Brotherhood of Electrical Workers, A. F. of L., and American
Communications Association, Broadcast Department, Local 1, Eastern Branch, are
labor organizations, within the meaning of Section 2 (5) of the Act. ,
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in an unfair labor practice, within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practice is an unfair labor practice affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
IN L. R. B v. Stackpole Carbon Co.-105 F . -(2d) 167 , cert . den. 308 U 8 605.
750'
A
DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
RECOMMENDATIONS
1
Upon the basis of the above, findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends ' that the respondent,
Trent Broadcast Corporation , Trenton, New Jersey, and its officers , agents, suc-
cessors, and assigns, ' shall:
1. Cease and desist from :
(a) Recognizing American Communications Association , Broadcast Depart-
ment, Local 1, Eastern Branch; as the representative of ' any of its employees for
the purposes of negotiating with respect to grievances , labor disputes , wages, rates
of pay, hours of employment, or other conditions of employment, until that organi-
zation shall have been 'certified by the Board as their representative;
(b) Giving effect to the contract of December 1, 1942, with American Com-
munications Association , Broadcast Department , Local 1, Eastern Branch in
respect to rates of pay , wages, hours of employment ; or other conditions of em-
ployment , or recognizing said organization as the representative of any of its
employees , unless and until such organization is certified by the Board as their
representative;
(c) Engaging in any like or related acts or conduct interfering with, restraining,
or coercing its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection , as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Withhold recognition from American Communications Association,
Broadcast Department , Local 1, Eastern Branch, as the representative of any
of its ' employees for the purposes of negotiating with respect to grievances,
labor disputes , wages , rates of' pay , hours of employment , or other condi-
tions of employment, unless and until that organization shall have been certified
by the Board of their representative ;
(b) Post immediately in conspicuous places in, its broadcasting studio in
Trenton, New 'Jersey, and its transmitting plant in Yardley , Pennsylvania,
and maintain for a period of at least sixty ( 60) days from the date of post-
ing, notices to its employees stating: ( 1) that the respondent will not engage
in the conduct from which it is recommended that it cease and desist in para-
graphs 1 ( a), (b) and ( c) of these recommendations , and (2 ) that the
respondent will, take the affirmative action set forth in paragraph 2 (a) of
these ' recommendations ;
(c) Notify the Regional Director for the Fourth Region in writing, within
ten (10 ) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10 ) days from
the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of
the National Labor Relations Board-Series 2, as amended , effective October
28, 1942-any party may within fifteen ( 15) days from the date of the entry
of the order transferring the case to the Board , pursuant to Section 32 of
Article II of said Rules and Regulations , file with the Board, Shoreham
Building , Washington , D. C., an original and four copies of a statement in
TRENT BROADCAST CORPORATION 751
writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies
of a brief in support thereof. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request there-
for must be made in writing to the Board within ten ( 10) days from the
date of the order transferring the case to the Board.
C. W. WHITIEMORA
Trial Examiner.
Dated May 21, 1943.
r