WTVJ, Inc.

National Labor Relations Board - Board Decisions

May 28, 1958

120 N.L.R.B. 1180 (N.L.R.B. 1958)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondents also had as an object of its Madera picketing , the causing or re-
quiring of Madera to cease doing business with Topper.
Absent a presumption of guilt arising from the ambulatory picketing, and the in-
cidents attending that picketing , we have then the delay in organizing Madera em-
ployees and the resort to picketing when , according to the General Counsel's theory
of the case , no picketing was required inasmuch as Local 431 had been informed by
a single employee of the Kerman plant , that a majority of Madera employees wanted
to be organized . As to the delay, it appears to me that the Respondent has given a
satisfactory explanation . We would certainly have to know more about the internal
affairs of this union than we do on the basis of this record, reasonably to draw adverse
inferences from the fact that it did not proceed immediately upon notice that Madera
employees were interested in being organized . And inasmuch as Madera operations
were seasonal , the timing of the organizational effort is consistent with bona fide
organizational aims. As to the picketing when, according to the General Counsel
no picketing was necessary to gain its organizational objectives, we can only speculate.
Is there some rule of thumb by which we can find, as a fact, that there is one particular
mode of organizing which is standard and traditional and that all others are suspect?
The picketing was accompanied by the distribution of circulars stating the Respond-
ents ' objectives and advertising to Madera employees the benefits of unionization.
Are we in position to say that this was not an effective and economical way to get and
focus the attention of Madera employees, or that Local 431 was required, in order to
avoid suspicion , to adopt some other method because it had been reported by a single
employee of the Kerman plant that Madera employees were ripe for organization?
I think that, except for the prior picketing of Topper trucks at Madera premises, no
question whatever would, or legitimately could have been raised concerning the law-
fulness of the Madera picketing , unless organizational picketing itself is unlawful,
and the General Counsel here makes no such contention . Perhaps the circumstances
and a combination of them , are sufficient to arouse a suspicion that the Respondents
may have had as an object in its Madera picketing the causing of Madera to cease
doing business with Topper, but suspicions and conjectures are not enough,i° and
even were we to presume an unlawful motive on the basis of the ambulatory picketing
of Topper trucks, unless such a presumption be irrebuttable, I would incline to the
opinion that it has been rebutted by the entire congeries of circumstances attending
the picketing of Madera by Local 431. If Respondents once raised the Topper dis-
pute with any employee or with management during the entire picketing of Madera
premises , there is no evidence of it . Viewing the General Counsel's position in its
most favorable aspect, it appears to me that he has at best no more than balanced
interferences which must in all fairness be drawn in the Respondents ' favor, and
therefore has failed to show by a predominance of the probative evidence that
Respondents through the ambulatory picketing of Topper' s trucks at Madera prem-
ises, and later picketing of Madera , induced and encouraged Madera's employees to
strike or engage in concerted activities , with an object of causing Madera to cease
doing business with Topper. Accordingly, I must recommend dismissal of the
complaint."
[Recommendations omitted from publication.]
10 For an illustration of the Board 's distinction between "bare conjecture" and "rea-
sonable inference ," see F . W. Woolworth Co., 109 NLRB 196, at pp. 199, 201.
11 Believing as I do that the labor dispute with Topper and the labor dispute with
Madera are separate and severable , I have indicated above , and find, that the Topper
dispute involved the Respondents but that the Madera dispute involved Local 431 solely.
On a contrary finding that the disputes were intermingled and unlawful , both Local 431
and Local 386 would , in my opinion , be jointly and severally liable for the entire course
of picketing.
WTVJ, Inc. and Local Union 349, International Brotherhood of
Electrical Workers, AFL-CIO. Case No. 12-CA-31. May 28,
1958
DECISION AND ORDER
On July 17, 1957, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
120 NLRB No. 155.
WTVJ, INC. 1181
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 copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not unlawfully refused to bargain collectively and recommended.
that the complaint be dismissed insofar as it so alleged. Thereafter,
the General Counsel, the Charging Party, and the, Respondent filed
exceptions.to the Intermediate Report, and the General Counsel and
the Respondent filed supporting briefs, including reply briefs pur-
suant to leave granted.
Pursuant to the provisions of Section 3 (b) of the National Labor,
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Leedom
and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the'Trial Examiner's findings, conclu-
sions, and recommendations, except as modified below.
1. We agree with the Trial Examiner insofar as he found, in sub-
stance, that the Respondent violated Section 8 (a) (1) of the Act in
that John Shay, the Respondent's vice president in charge of its
operations division, and Ashley Dawes, the Respondent's director of
production operations, threatened employees with reprisals for engag-
ing in union activities, promised them job security for withdrawing
from the union, and interrogated them in a coercive manner concern-
ing their union activities, as more fully set forth in the Intermediate
Report. I
2. The complaint alleges that, because of their union activities, the
Respondent discharged Joe DiSimone, George Schwartz, Dimitry
Alexander, Wilson Griffith, and Lloyd Gaynes. The Respondent
contends that they were discharged for cause.
In his Intermediate Report, the Trial Examiner indicated, in sub-
stance,,that, in the case of all 5 dischargees, the Respondent initially
decided to discharge them for cause, but that, in the interim between
the date of the Respondent's initial determination to discharge the 5
employees and the date of their actual discharge, the Respondent
reformulated the basis for its discharge decision and decided to dis-
charge them not only for cause but for the additional reason that they
were engaged in union activities. Thus, according to the Trial Ex-
aminer, these dual motives were the operating reasons for the dis-
charge of the five employees. Applying the rule that "where an un-
lawful reason is a motivating cause, the coexistence of separate lawful
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons do not eliminate the unlawful aspect of the conduct," 1 the
Trial Examiner concluded that the Respondent violated Section 8
(a) (3) of the Act in discharging the five employees. He further
'concluded that these discharges were part of the Respondent's efforts
to discourage "concerted activity" and were, therefore, violative of
,Section 8 (a) (1) of the Act, even if they do not constitute violations
,of Section 8 (a) (3) 2
We agree with the Trial Examiner that the Respondent unlawfully
'discharged the five employees in question. However, unlike the Trial
lxaminer, we conclude, for the reasons hereinafter indicated, that the
causes assigned by the Respondents were pretexts and that the Re-
spondent discharged the five employees because of their union
activities.
The facts, as found by the Trial Examiner, with respect to the dis-
charges of DiSimone, Schwartz, Alexander, Griffith, and Gaynes are
correct except as follows :
The Trial Examiner found that, because of frequent disagreements,
Dawes would have discharged Gaynes long before January 28, 1957,
but for Shay's intervention. The Trial Examiner also indicated that,
before the union meeting of January 13, in a private conversation
between Dawes and Shay, Dawes issued an ultimatum that he would
quit unless Shay discharged Gaynes, and that Shay at that time agreed
to discharge Gaynes at a future date. We reject these findings. These
findings are based solely on the testimony of Shay and Dawes. In
resolving numerous conflicts in testimony with respect to other aspects
of the case, the Trial Examiner repeatedly and consistently discredited
the testimony of Shay and Dawes. Their testimony, now in question,
was conclusive or self-serving in nature, difficult if not impossible to
contradict, and of a type easy for untrustworthy witnesses, such as
Shay and Dawes, to fabricate. Moreover , on January 22, 1957, after
the union meeting, Shay solicited Gaynes' withdrawal as a union
adherent, thus indicating, for the reasons hereinafter more fully set
forth, that the Respondent had not previously decided to discharge
Gaynes for cause. Under the circumstances, we do not credit the
testimony of Shay and Dawes now in question and hence we do not
adopt the findings of the Trial Examiner based on such testimony s
For the following reasons, we conclude that the causes assigned by
the Respondent for the discharges were pretexts and that the five em-
ployees in question were discharged for their union activities.
1 See, for example , N. L. R. B. v. Whitin Machine Works , 204 F. 2d 883 , 885 (C. A. 1).
2In view of our decision herein, we do not reach and therefore do not pass on the ques-
tion whether the Respondent in this respect violated Section 8 (a) (1), except as such a
violation derivatively flows from a violation of Section 8 (a) (3), hereinafter found.
8While the Board attaches great weight to a Trial Examiner ' s credibility iPcohnions
(see Standard Dry Wall Products , Inc., 91 NLRB 544, 545 ), we are persuaded that the
Trial Examiner 's resolution was incorrect in this instance.
WTVJ,,INC. 1183
On January 13, 1957, the Union held a meeting, attended by 2 of
the Respondent's supervisors, at which the 5 employees in question
signed union authorization cards and all 5, except Alexander, made
statements favoring union organization.
Between January 16 and February 4, 1957, the following, in sub-
stance, occurred:
On January 17, Shay and Dawes questioned DiSimone about the
union meeting of January 13, asking why the employees were dis-
satisfied and their reasons for wanting a union. Dawes accused
DiSimone of "letting him down."
In the discharge interview with DiSimone on or about January 23,
when asked for an explanation,for DiSimone's discharge, at first
Dawes stated that the station was overstaffed but, when this ex_ plana-
tion was challenged, Dawes stated that DiSimone had been taking
more than.1 hour for dinner. In the course of the interview, Dawes
asked Di Simone what' he expected to gain through the Union, and
added :
You will never make it . . . the Colonel (referring to Mitchell
Wolfson, the Respondent's president) fought the unions for 4
years ... The Colonel has threatened ,to sell the (station's
remote) truck or sell the station before he would go union.
On January 23 or 24, after DiSimone's discharge, James Bishop,
who worked as a cameraman on the day shift,, asked Dawes why
DiSimone was discharged. At,first, Dawes stated : "we are overstaffed
and he was taking too'much off for supper." When Bishop character-
ized this explanation as "ridiculous," Dawes stated: "Joe (DiSimone)
was agitating." - ..
On January .21, in a conversation with Alexander who was dis-
charged on February 4, Dawes stated :
... It is quite a' mess we are in . . . I can't understand why a
thing like this happened ... that 17 or 18 men ... went to a
union meeting and 17 signed IBEW cards ... I [don't] know,
where the guys think they are going, but this thing is never going
to come to' a vote- ... I am not concerned about it because by
the time the vote, comes up the fellows who are concerned in it
won't be there any more 4- '
Then, extracting an IBEW authorization card from his desk drawer;
Dawes suggested to Alexander that, the only way "we can get off, the
hook is to write 3 letters," withdrawing the' union authorizations.5
, 14 The Respondent had received , from the Union a letter requesting recognition as the
representative of, the production department employees and there was then pending a
petition for certification of representatives filed by the Union.
5 Dawes stated that the three letters should be directed to the Board, the IBEW local, and.
the Respondent.
1184 DECISIONS OF NATIONAL • LABOR RELATIONS BOARD
Later on the' same day or on the next day, Dawes asked Alexander
whether he had written the letters. When Alexander stated that he
wanted more time "to find out what the others were going to do" and
to think about the matter, Dawes told Alexander that he "did not have
too many days left" and he had "better hurry up."
About February 1, Dawes further told Alexander that, if he re-
mained in the union group, he would be "out of a job," and that he
should resign from the Union.
On February 2, Alexander presented such revocation letters to Shay.
However, Shay refused to accept them, saying :
I don't want them right now. Hold on to them. We have got
enough . . . we have got the NLRB so confused now we better
not confuse them any more. If we need some more, we 'll send
them in.
On February 4, after being notified of his discharge by Dawes,
Alexander asked Shay for an explanation of such action in view of
the fact that Alexander had written the revocation letters requested.
Shay replied: "Well, you took so long, I didn't think you were
interested."
On January 22, in a conversation with Griffith who was discharged
on February 4, Shay questioned Griffith as to why he joined the Union.
Stating that it was a mistake for Griffith to have done so, Shay added :
You boys have gone to a meeting and you have decided against
the Company ... you just may not be here when the vote comes
up ... you know what you can do about it ... don't find your-
self standing alone.
On January 18, Shay asked Gaynes what the "union mess" was
about. When Gaynes refused to comment, Shay told Gaynes that
Shay had "a case a mile long" against Gaynes and could "build it 2
miles" if Shay so desired. Shay informed Gaynes that, during his
absence for military duty in 1953 when the Union attempted to or-
ganize the Respondent's employees, "Colonel Wolfson spent twenty
grand" in retaining an "experienced lawyer," and that this lawyer was
"well familiar on how to beat this case if it ever gets to court." Shay
further stated that he "didn't see why we wanted a union here," char-
acterized the employees as "idiots" for wanting the Union, and warned
Gaynes that the Respondent would sell its "remote truck" and discon-
tinue remote broadcasts rather than have a union and that the em-
ployees would never get an election because "the people will not be
here to vote."
On or about January 22 Gaynes and another union employee, Rosen,
were relieved of their duties on certain shows and were replaced by a
nonunion man. When Gaynes and Rosen went to see Dawes about the
change, Dawes stated : "Now that you guys have signed with 'the
Union, you think you can come in here and get away with anything."
WTVJ, INC. 1185
` On January 22 Shay told Gaynes' and another union employee, Bru-
ton, that Shay was dealing directly with the Respondent's president
and that it was Shay's job "to clear up this union mess in the Produc-
tion Department." Shay suggested to Gaynes and Bruton that they
"write a letter to the National Labor Relations Board, to the local
IBEW, and a copy to Mitchell Wolfson" stating that they did not un-
derstand what they had signed at the union meeting. On the same
day; Gaynes mailed to the' IBEW a letter requesting cancellation of his
authorization card, with copies to the Board and President Wolfson .6
In the discharge interview on January 28, Shay stated that Gaynes
was being discharged because of his inability to get along with Dawes,
because of Gaynes' conduct in connection with a remote broadcast in
February 1956, 'and because Gaynes had let Shay down. Shay ex-
plained to Gaynes that he had let Shay down by telling Gaynes that
Shay had "gotten indications from WTVJ employees that you are still
talking union even though you sent the letters to the NLRB." Shay
further stated that DiSimone and Schwartz had been discharged and
that Shay was getting rid' of the employees in the production depart-
ment because they wanted unionism. In lieu of discharge, Gaynes
asked for and was granted permission to resign. In Gaynes' presence,
Shay telephoned Dawes and informed Dawes that Shay and Gaynes
had "kicked this Union mess around and we have decided for the good
of everybody that Bud Gaynes has resigned from WTVJ as of this
date."
It is true that the floor crew reported late at the studio after dinner
on January 16 and that they had taken more than an hour for dinner
on many occasions theretofore. It is also true that, on the night of
January 16, the Respondent at least considered discharging them at
a future date. However, the late appearance of the floor crew on
the night of January 16 was the fault of management. The Re-
spondent knew of the employees' practice, if not the extent thereof,
of taking an extended dinner period and had acquiesced therein for
a long time. And, the Respondent had knowledge of the union meet-
ing of January 13 on the night of January 16 and was at that time,
as well as at the time of the actual discharges, opposed to union
organization and disposed to eliminate union adherents from employ-
ment. Indeed, the presence of antiunion-motivation in these discharge
decisions is further emphasized by the fact that Respondent's presi-
dent had "fought the unions for 4 years" and, by subsequent state-
ments of Shay and Dawes hereinabove related.
It is also true that Gaynes did not get along with Dawes: However,
this situation had existed for at least several years. And in explaining
to Gaynes the reason for his discharge, the Respondent found it
Bruton mailed similar letters.
483142-59-vol. 120-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to resurrect an incident which had occurred more than a
year before, thus indicating that Gaynes' performance as an employee
had not substantially deteriorated since April 1956 when the Re-
-spondent signed him to a 3-year contract and gave him a pay increase.
In sum, all five employees engaged in union activities. The Re-
spondent knew of the union meeting. It had knowledge of their union
activities before it decided to discharge them and did decide to dis-
charge them only after the employees began to engage in union activi-
ties. The Respondent was opposed to union organization of its
,employees. It questioned the employees concerning their union ac-
tivities and made statements hostile to union organization. The
Respondent threatened its employees with reprisals for engaging in
union activities. It warned them that remote broadcasting would be
discontinued or the station would be sold to thwart union organiza-
tion, and that they would be discharged to preclude their voting in an
Selection to determine whether they desired union representation. The
discharges occurred less than 1 month after the employees began
engaging in union activities. When asked for the reason for the
-discharges, the Respondent gave shifting explanations and, in at least
.one instance, when pressed, admitted that the employee in question
-was actually discharged because he had been "agitating." In the dis-
charge interviews, the Respondent acknowledged that union activity
,of each of the five production department employees in question was
at least a reason for the discharge. Indeed, the Respondent , also
acknowledged that itwas eliminating employees from' the production
,department because they wanted unionism. We think it significant
that, between the date when the Respondent allegedly decided to dis-
charge the five employees for cause and the date of their discharge,
-the Respondent engaged in a persistent effort to induce these em-
ployees to revoke their union authorizations. We believe it unlikely
-that the Respondentwould have sought to sever the union ties of these
,employees if, in fact, they had been slated to be discharged for cause
-as the Respondent contends. Under all the circumstances, we find
that the Respondent would not have resorted to the drastic remedy
.of discharge, without warning, for the shortcomings of these five
.employees, but for their union activities?
3. The complaint also alleged that, in violation of Section 8 (a)
<5) of the Act, the Respondent refused to bargain with the Union
with respect to a unit of production department employees. The pro-
duction department includes such employees as directors and em-
-ployees 'h'andling physical equipment such as cameras ,- microphones,
and lighting equipment. -
7 As the preponderance of the evidence shows unlawful discrimination, the fact that
,the Respondent did not discharge other union adherents , including Carr, does not establish
there was no such discrimination against the five employees involved here.
WTVJ, INC. 1187
Asserting that he was bound by the Board's determination in
Southern Radio and Television Equipment Co., etc.,' 107 NLRB 216,
the Trial Examiner found that the Respondent's production depart-
ment was an inappropriate unit,and-hence recommended dismissal of
the 8 (a) (5) allegation. We agree with the Trial Examiner that
the production department does not constitute an appropriate unit,
but we so find on the basis of the merits of the unit question rather
than on the basis of the Board's earlier determination in the repre-
sentation proceeding.
In Southern Radio, the Union filed a petition seeking certification
as the representative of a single unit of production and engineering
departments. The Employer agreed that this was an appropriate
unit, except as hereinafter indicated. However, another union,
IATSE, as Intervenor, sought to represent the foregoing employees
in separate departmental units. Both the petitioning Union and the
Intervenor agreed that the employees in the Respondent's program-
planning unit, hereinafter referred to, should be excluded from any
unit found appropriate, while the Employer contended that they
should be included. Under the circumstances there presented, the
Board stated that either a single two-department unit or separate
units might be appropriate. However, the Board refused to direct
an election in separate units because IATSE had failed to make an
adequate showing of- interest in either of the departments, and found
appropriate a single two-department unit of-production and engineer-
ing employees, including the program-planning unit.
The Board there included the employees in the program-planning
unit because in its opinion they belonged with the other production
employees in the two-department unit found appropriate. It also
pointed out that the program-planning employees worked in close
contact with employees in the production department and that the
employees in the program-planning unit were nontechnicians who
contributed to the presentation of, but did not appear on, television
programs.'
Thus, the issue in the representation case, now, pertinent, was
whether the program-planning employees should be included in a
combined unit of production and engineering department employees.
The issue there was not, as it is here, whether the employees of the
production department by themselves constitute an appropriate unit.
Hence, in the instant case, the Trial Examiner was not bound by the
Board's determination in Southern Radio.
8 This is the same employer; as the Respondent under another name.
8 The Board had previously indicated that all employees , other than technicians, who
contribute to the presentation of, but do not appear on , television programs form an
identifiable , cohesive unit and may constitute an appropriate unit. See, for example,
1VCAU, Inc., 93 NLRB 1003.
1188 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
However, we find, as did the Trial Examiner and, for essentially the
same reasons which underlay the Board's determination in Southern
Radio, that the Respondent's production department alone does not
constitute an appropriate unit. The duties of the program-planning
employees are planning the show, writing the script, and determining
the material, such as scenery to be used in it. They also prepare pro-
gram logs which are used by operating personnel and also distributed
for publication to newspapers. While the employees in the program-
planning unit are not employed in the production department, they
are essentially production employees and work in close contact with
the employees in the Respondent's production department proper;
and, like the production department employees, the program-planning
employees are nontechnicians who contribute to the presentation of,
but do not appear on, television programs.10 Thus, without the
program-planning employees, the production department constitutes
but a segment of an appropriate unit.
Accordingly, as the Respondent was under no duty to bargain with
respect to an inappropriate unit, we shall dismiss the 8 (a) (5) allega-
tion, as the Trial Examiner recommended."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, WTVJ, Inc.,
Miami, Florida, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local Union 349, International
Brotherhood of Electrical Workers, AFL-CIO, or in any other labor
organization of its employees, by discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Interrogating its employees concerning their union activities
in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a) (1) of the Act.
(c) Threatening employees with reprisals for engaging in union
activities or offering them any benefit to refrain therefrom.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist the Union named above, or any other labor organization,
10 See BI-States Company, 117 NLRB 86, citing Southern Radio (traffic assistant and pro-
motion assistant working in close contact with other production employees and contribut-
ing directly to the production of television programs included in a unit of studio and
engineering employees)
n In view of our decision herein, we do not pass on other contentions urged by the
Respondent with respect to this aspect of the case.
WTVJ, INC. 1189
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be
affected by, an agreement requiring membership in a labor organ-
ization as a condition of employment, as authorized in Section.8 (a)
(3) of the Act.
2. Take the following 'aff'irmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Joseph DeSimone, George H. Schwartz, Dimitry N.
Alexander, Wilson Griffith, and Lloyd Gaynes, immediate and full
reinstatement to their former positions without prejudice to any rights
and privileges previously enjoyed.
(b) - Make whole Joseph DeSimone, George H. Schwartz, Dimitry
N. Alexander, Wilson 'Griffith, and Lloyd Gaynes for any loss of pay
that they may have suffered by reason of the discrimination against
them in the manner described in the Intermediate Report.
(c) Preserve and, upon request, make available to the National
Labor Relations Board, or its agents, for examination and copying
all payroll records, social-security payment records, timecards, per-
sonnel records and reports, and all other records necessary or useful
to determine the amount of back pay due under the terms of this Order.
(d) Post at its place of business in Miami, Florida, copies of the
notice attached hereto marked "Appendix A." 12 Copies of such notice,
to be supplied by the Regional Director for the Twelfth Region, shall,
after being signed' by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and
maintained for sixty (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 such notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Twelfth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the allegation of the complaint that the
Respondent, in violation of Section 8 (a) (5) of the Act, refused to
recognize and bargain with Local Union 349, International Brother-
hood of Electrical Workers, AFL-CIO, be, and it hereby is, dismissed.
>a In the event that this Order is enforced by decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of, Local Union 349, International Brotherhood of Electrical
Workers, AFL-CIO, or in or on behalf of any other labor
organization, by discriminating in any manner in regard to terms
or conditions of employment.
WE WILL NOT discharge any of our employees or discriminate in
regard to their hire or tenure of employment, or any term or
condition of employment, because they have engaged in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to engage in union or
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Joseph DeSimone, George H. Schwartz,
Dimitry N. Alexander, Wilson Griffith, and Lloyd Gaynes imme-
diate and full reinstatement to their former positions without
prejudice to any rights previously enjoyed.
WE WILL make whole Joseph DeSimone, George H. Schwartz,
Dimitry N. Alexander, Wilson Griffith, and Lloyd. Gaynes for
any loss of pay suffered as a result of their discharges.
All employees are free to become, remain, or to refrain from becom-
ing or remaining, members of Local Union 349, International Brother-
hood of Electrical Workers, AFL-CIO, or any other labor organiza-
tion.
WTVJ , INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
.This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
WTVJ, INC.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1191
STATEMENT OF THE CASE
The primary issues herein are whether WTVJ, Inc.,' herein called Respondent of
WTVJ, discharged Joseph DeSimone, George H. Schwartz, Dimitry N. Alexander,
Wilson Griffith, and Lloyd Gaynes in violation of Section 8 (a) (3) and 8 (a) (1) of
the National Labor Relations Act, as amended (herein called the Act) and whether
Respondent in violation of Section 8 (a) (5) of the Act refused to recognize and'
bargain with Local Union 349, International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union, or Local 349 or IBEW. The issues, framed by
a complaint and an answer were litigated at a hearing in Miami, Florida, before
the duly designated Trial Examiner on May 14, 15, and 16, 1957. After close
of the hearing well-prepared briefs were received from counsel which have been
considered in the preparation of this Report.
Organizational Efforts and Request for Recognition
In 1953, in Southern Radio and Television Equipment Company, Television
Station WTVJ,2 Case No. 10-RC-2398, the Union involved herein sought to be
certified as the bargaining agent of Respondent's employees in a single unit of
employees in both the production and engineering departments and contended that
"the employees in the Program Planning unit, a subdivision of the Production De-
partment, should be excluded." The Board directed an election among the employees
in the following unit:
All production department and engineering department employees at the Em-
ployer's television station at Miami, Florida, including program planning em=
ployees, but excluding company officers, receptionist, administrative officer,
clerical, personnel department and sales department employees, announcers,
talent, film cameramen and news editors, professional employees, and all'
supervisors as defined in the Act.3
With respect to the program planning unit, the Board stated: (Page 218)
The program planning unit. There are approximately eight employees in the
program planning unit. The primary duties are to plan the show under
consideration, writing the scripts and determining the material, such as scenery,
to be used in it. They also meet the sponsors and prepare program logs which
are used by operating personnel and also distributed for publication to news-
papers. Program planning employees do not usually handle or operate any
of the physical equipment or material used in putting on the television shows.
In the course of their duties they are, of necessity, in close contact with other
employees in the production department as well as the engineering department.
The Board has previously determined that all employees, other than tech-
nicians, who contribute to the presentation of, but do not appear on, television
programs form an identifiable cohesive unit and may constitute an appropriate
bargaining unit. Accordingly, we find that the program planning employees
may be included with other production department employees in the single
two-departmental unit found appropriate herein.
The Union was not thereafter certified.
During December 1956 the Columbia Broadcasting System, through Station
WTVJ, televised a program originating at the Kenilworth Hotel in Miami Beach,
Florida. During preparations for this program Sam Burch, assistant business
manager of Local 349, informed officials of the Columbia Broadcasting System
that the employees of WTVJ were nonunion and that he (Burch) was "considering
putting a picket on the show." Thereafter a meeting was scheduled for on or
about December 6, 1956, between Burch and certain officials of WTVJ (Robert
F. Green, personnel director, and Joe Kline, director of engineering operations).
At the meeting on or about December 6, 1956, Burch asked the officials of
WTVJ to schedule a meeting of employees of WTVJ at which he (Burch) could
1 At the hearing the complaint ' was amended so as to substitute WTVJ , Inc., for South-
ern Radio and Television Equipment Company, Television Station WTVJ.
2 Respondent is the same corporation as Southern Radio and Television Equipment
Company. Only the name has been changed.
8 Reported in 107 NLRB 210.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talk to the employees " to see if they wanted a union or if they did not want a
union." Green agreed to "take that up with his superiors and let [Burch] know
in a day or two" and it was agreed that pending such meeting, there would be
no picketing. On or about December 17, 1956, Burch and Green again conferred.
At this meeting Green said he could not arrange the meeting requested by Burch
but that he had no objection to Burch arranging a meeting of WTVJ employees
at the Union's office. , Upon returning to his office, Burch found that he did not
have an up-to-date list of employees and their addresses and telephoned Kline
and asked for such a list. Kline declined to supply such a list but said that if
Burch would submit a list of employees and their addresses he (Kline) would
correct such a list so that it would reflect correct addresses. Thereafter Burch
submitted a list of employees and their addresses to Kline who corrected it and
returned to to Burch.
On or about January 8, 1957, Burch mailed to the employees whose names ap-
peared on the list as corrected by Kline, and to Personnel Director Green, a
mimeographed letter reading as follows:
To EMPLOYEE OF WTVJ,
Miami, Florida.
JANUARY 8, 1957.
DEAR SIR: 'There will be a meeting of all engineering and production depart-
ment employees of Station WTVJ-TV on Sunday, Jan. 13, 1957 at the Elec-
trician's Building, 1657 N. W. 17th Ave. There will be one meeting at 1:30
P. M. and another at 5:00 P. M. to try and make it convenient for both shifts.
We would like very much to have the opportunity to talk to all employees
engaged in the engineering and production departments; but excluding all com-
pany officers, receptionists, administrative officers, clerical, personnel department
and sales department employees, announcers, talent, editors and professional
employees.4 If we missed anyone please tell them that they are cordially
invited and they did not receive a letter only because we did not have their
name and address.
We feel that this is a very important meeting and to your advantage to attend.
It will be a discussion on the advantages of a union contract, to both employer
and employee. We feel 'that it is only fair that you let, us explain a union
agreement to you and answer any questions that you may have regarding organ-
ized labor or a union contract.
Hoping to see you on January 13th, we remain
Sincerely yours,
bb
oeiu: 128
afl: cio
c. c. Mr. Green
(Signed ) Sam Burch,
SAM BURCH,
Ass't, B. M., Local Union 349, 1. B. E. W.
(Signed ) Albert M. Stasko,
ALBERT M. STASKO,
Sec., Local Union 545, I. A. T. S. E.
(Signed ) Geo. E. Raywood,
GEORGE E. RAYWOOD,
B. M., Local Union 316, 1. A. T. S. E.
Approximately 22 employees of WTVJ (18 from the production department,5
2 from the engineering department and 2 supervisors-Joe Kline and Spears Mallis)
appeared at the Electrician 's Building for the 1: 30 p. m. meeting on January 13, 1957.
On this occasion representatives of Local 349 and representatives of International
Alliance of Theatrical and Stage Employees (IATSE) sought to have the employees
present join their respective organizations . After telling the individuals present the
advantages of their respective organizations the union representatives left the room.
A general discussion and "gripe session " then ensued in which employees Rusty
Bruton , Bernie Rosen , Joe DeSimone , George Schwartz , Lloyd Gaynes, James Bishop,
'It is noted that the unit here involved is the same as the unit involved In Case No.
10-RC-2398 except that no reterence is made to program-planning employees or to
supervisors.
5 There is a dispute concerning the composition of the production department but there
is no dispute that the production department included at least these employees.
WTVJ, INC. 1193
Wilson Griffith, and Grant Gravitt and Supervisors Joe Kline and Spears Mallis
participated. Spears Mallis stated inter alia: "Look, you fellows, you join and you
are going to lose your profit sharing, you are going to lose hospitalization, you are
going to lose your movie pass, and you are going to lose out on insurance." 6
DeSimone replied to these comments by stating that profit sharing could not be
taken away without at the same time revealing discriminations against the employees,
that if profit sharing was discontinued employees would make more money by getting
overtime, that organized concerns have hospitalization and insurance programs and
that the movie pass was of little value since it was only infrequently used. Following
the discussion a "show of hands" vote was taken to determine whether those present
favored the IBEW, IATSE or no union. IBEW received a majority of the votes.
Then the union representatives came back into the room and a written vote was
taken (slips of paper were passed around and the individuals present wrote on the
papers IBEW or IATSE or no union). Approximately 16 votes were cast for IBEW
and 3 for no union and 1 for JATSE. After the balloting IBEW authorization cards
were distributed and the employees went into another room where they "filled out
the cards and dropped them into the ballot box." Seventeen of these cards were
signed by employees (not including Joe Kline or Spears Mallis or the two employees
from the engineering department).
Only three employees (each from the engineering department) appeared for the
meeting scheduled for 5 p. in. on January 13. These three employees were told
what had occurred at the earlier meeting and left the Union's office without taking
any action.
By letter dated January 17; 1957, Local 349 requested bargaining negotiations.
This letter reads as follows:
JANUARY 17, 1957.
SOUTHERN RADIO & TELEVISION EQUIPMENT CO.,
Television Station WTVJ,
316 North Miami Ave.,
Miami 31, Fla.
Attention: Station Manager.
DEAR SIR: This is to advise that the majority of the Employees employed in
the Production department at Television Station WTVJ, have designated the
International Brotherhood of Electrical Workers Local Union 349 (AFL-CIO)
as their representative for;the purpose of collective bargaining in regard to rates
of pay, hours of work and other conditions of employment.
On behalf of the Union,'request is hereby made of your Company to recognize
the International Brotherhood of Electrical Workers, Local Union 349, as the
collective bargaining representative of the above described employees.
We would appreciate reply indicating whether or not such recognition is ex-
tended by your Company. We are ready for a conference on any date that is
convenient to you in the immediate future, to discuss this matter.
Very truly yours,
SB:bb
oeiu: 128
afi: cio -
(Signed ) Sam Burch
SAM BURCH,
Assistant , B. M., Local Union No. 349, IBEW.
Respondent received the letter requesting recognition and a date for a conference
but did not reply thereto.
On or about the same date (January 17, 1957) the Union mailed to the National
Labor Relations Board a petition for certification, which was docketed as Case No.
12-RC-52 on January 21, 1957, requesting a unit of production department em-
ployees, without specifying whether the unit sought included or excluded program
planning employees. However, the Union continued its efforts to organize the em-
ployees of the engineering department and to become the bargaining agent for em-
ployees in a unit of production and engineering employees.
On January 24, 1957, the original charge involved herein was filed. Amended
charges were filed on January 30 and February 5 and the complaint issued April 10,
1957. The complaint alleges that "the production department employees of Respond-
ent employed at and in its Miami, Florida place of business" constitutes an appropriate
Counsel for the General Counsel does not contend that these statements by Mallis
violated 8 (a) (1) of the Act.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit . The complaint does not amplify the meaning of production department
employees.?
Unit-Majority
Respondent is engaged in producing and transmitting television programs at its
station in Miami , Florida, and for this purpose has a total complement of about 196
employees . The production and transmission of television programs is a highly com-
plicated business and the work and working conditions of the various departments of
Respondent 's business are closely related and there is some exchange of employees
from one department to another . On the other hand , each department has a specific
function and the duties of employees are primarily those connected with the function
of the department where they are employed.
The operations division , headed by the vice president in charge of operations (John
Shay ) encompasses the functions of studio engineering , remote engineering, pro-
graming, production , copy, traffic, talent , construction , development , and mainte-
nance departments and the vice president in charge of operations is responsible for
the entire operation and supervision of the operations division.
The production department, headed by the director of production operations
(Ashley Dawes ), is a department within the operations division and is responsible
for "overall production ." There are approximately 80 employees in this department.
Within the production department there is a unit (the mainstay of the production
department ) known as the production operations department which is headed by
the supervisor of production operations (Zane Radney ). This department is
concerned primarily with adequate utilization of techniques and equipment and
the employees in this department for the most part operate equipment used during
the televising of a program , i. e., the director directs the show by giving instructions
and necessary cues and by punching buttons which switch cameras, and other
personnel operate cameras, microphones , lights, etc. There are approximately 22
employees engaged in such duties in this department . These are the employees for
whom the Union seeks bargaining negotiations.
The programing department , another department within the operations division,
is headed by a director of program operations (Lee Waller), and is responsible for
the selection and scheduling of network programs , network and agency contacts,
and for the selection, scheduling and requisitioning of film programing . In addition
to announcers , talent , copy writers, and editors there is also under the supervision
.of the director of program operations the traffic manager who is responsible for
the "compilation of complete station log and operations sheet , the keeping of a
complete scheduling board , and the double checking and insertion of material on
the Sales Traffic Board...."
The employees in the engineering department , headed by the director of engineering
operations (Joseph Kline ) in the main are technicians who are responsible for
the correct functioning and maintenance of electronic equipment . Also under the
supervision of the director of engineering operations is the supervisor of remotes
(Spears Mallis ) who is responsible for all remote telecasts and supervises all
personnel on remotes . There are approximately 23 employees responsible for
technical operations and maintenance.
A comparison of the information in the record in the instant matter and the
Board 's decision in Case No . 10-RC-2398 indicates that the manner or methods
of operations now in effect are substantially the same as those in effect at the time
of the Board 's decision except that now engineering employees are frequently
required to perform functions normally assigned to production workers.
As indicated by the above outline it may be argued that production operations
department employees , excluding employees in the program planning unit, are a
functionally distinct group whose interests and duties are sufficiently diverse to
-warrant their placement in a separate unit .8 This is the contention of counsel for
the General Counsel . However, in view of the Board 's decision in Case No.
10-RC-2398 and the fact that the only substantive difference in the facts now and
when the Board considered this matter is a greater use of engineering employees to
perform production workers duties, the Trial Examiner believes himself bound to
follow the Board 's decision and, consequently , bound not to find such a unit
appropriate for the purposes of collective bargaining . The evidence adduced does
not reveal that the Union represents a majority of the employees in a unit of
7 Case No. 12-RC-52 Is currently pending in the Regional Office of the National Labor
Relations Board although the parties have been advised that it will not be processed
pending disposition of the instant matter
8 On January 13, 1957, a majority of these employees designated the Union as their
bargaining agent.
WTVJ, INC. 1195
production department employees, including program planning employees, or in a
unit of production and engineering department employees, excluding program
planning employees.
The Discharges
Joe DeSimone
It had been the custom or practice of the night floor crew 9 to take more than an
hour for dinner on those occasions , which apparently were rather frequent, when
they were not scheduled to work on a particular project and, except for Carr, to
leave the studio for their dinner.10 On the night of January 16, 1957, the floor crew
was not scheduled to work on a particular project until considerably after 9 p. in.
Consequently , they did not limit their dinnertime to the prescribed 1 hour. Rather,
they took 1 hour and 40 minutes , which was not unusually long in the light of their
practice and understanding ." Although the floor crew was not informed that there
would be a program requiring their presence and participation and such program did
not appear on the schedule , customarily posted ,12 such a program-a rehearsal of
the Frank Parker show "Second Honeymoon"-was anticipated by studio officials
for the night of January 16. While the floor crew was out to dinner a substantial
number of people, including officials and dignitaries of a competing television
system , assembled for such rehearsal . The absence of the floor crew was apparent
and no doubt was a source of embarrassment and irritation to the officials of
WTVJ. About 8:10 Vice President Shay asked Dawes, director of production
operations , the whereabouts of the floor crew and Dawes responded they had gone
to dinner and would be back in a little while. About 8:15 Shay again asked Dawes
the whereabouts of the crew and Dawes said he did not know , that they should be
back from dinner but he would check and see what time they signed out. Dawes
then checked a record book which the floor crew was required to sign upon entering
or leaving the studio 13 and found that the floor crew had departed at 7 p. in. He
reported this information to -Shay who then remarked "where the hell are they?"
Between that time and 8 : 40, when the floor crew appeared , Shay made several
inquiries of Dawes concerning the whereabouts of the floor crew . About 8:40
p. in. floor crew members DeSimone , Griffith , Alexander, and Schwartz 14 appeared
in the studio.
When the floor crew returned to the studio (according to DeSimone):
A. We came in and Grant Gravitt says, "You guys better get upstairs.
Dawes and Shay are running around with blood in their eyes."
So Wilson Griffith says, "You must be kidding ." "No." "What is it all
about?" "There is a rehearsal ." "A rehearsal for what?" He says, "The
• The night floor crew consisted of DeSimone, Alexander, Griffith, Schwartz, and Carr.
If Zane Radney, supervisor of,production operations, denied that he was aware that this
was a frequent practice. However, in the light of the entire record herein, including his
own testimony, it appears that he was aware that frequently more than an hour was
taken for dinner. His denial is not credited by the Trial Examiner:
n They had been told that rather than lounge around the studio when not actually
working they should get away from the studio. Dawes', director of production opera-
tions, testimony to the contrary is not credited by the Trial Examiner.
11 Zane Radney, supervisor of production operations, prepares daily a schedule which
the employees consult to determine their duties for that day. The schedule for January
16, 1967, did not list the Frank Parker show "Second Honeymoon." The record does not
reveal why it was not listed. The record does reveal that Radney was not criticized
for his failure to list this show. Furthermore, Bill Carr testified, without contradiction,
that he checked with Radney immediately prior to the dinner hour and was informed
that there would be no rehearsal that night . John Shay, vice president in charge of op-
erations, testified that at the end of the rehearsal the 'previous night the audience was
asked "How many of you people would like to come back [ to] tomorrow night's rehearsal?"
and "everybody said sure" and that - the floor crew was aware of this. Assuming, argu-
endo, that this actually occurred it is-not, in the Trial Examiner's opinion, notice to the
floor crew that a rehearsal was thereby being scheduled and that they should be present.
1s After 6 p. in. Respondent maintained at its reception desk a book in which persons
entering or leaving the studio listed their name and time of entry and departure,
14 Carr did not go to dinner with these four and did not report back with them. He
did not get back to the studio until about 9 p in. although he was in the building through-
out the period in question. Dawes' testimony that Carr "dropped around in the Studio"
about 8:10 and "Intermittently" thereafter and Shay's testimony that Carr came in
the studio before the rest of the crew are not credited by the Trial Examiner.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Parker show." He says, "We don't know anything about any Frank
Parker show." He says, "I am not kidding you." Well, Griffith laughed it
off and he just went about his duties, starting to get his paraphanalia together for
the midnight movie which he was directing. And I walked up on the floor,
and there it is, all light itself; Mr. Shay sitting down by the mike boom at the
other end of the studio. There- was a group of people there and Mr. Dawes,
he comes walking over to me. He says to me, "Jesus Christ, where have you
been?" I says, "What do you mean, where have we been?" "We have been
out for dinner."
Q. What time had you gone out?-A. I don't know. I guess approximately
7:00 o'clock.
Q. What time was this? It was after 8:00 o'clock?-A. Right. 20 minutes
to 9:00, because I remember I looked at the clock.
"How long do you fellows take for dinner?" I says, "Are you kidding?" I
said, "An hour and 40 minutes tonight." I says, "You didn't tell me anything
about this rehearsal. It is not posted on the bulletin board."
I asked Zayne Radney when I came in if there was going to be a rehearsal,
because there had been talk that we might have a rehearsal some of these
nights, and Zayne said, "No." -
"I don't know about that," Ash Dawes says to me. "You will have to punch
a clock." And he walked away mad towards the boom.15 With that, I
thought, what happened to Bill Carr. He is one of our crew. He wasn't
there. We found out later he was up in the news room. He was watching a
program up there, and he came drifting down about 9:00 o'clock.
Then Zayne Radney came up on the floor-Zayne Radney, who is our
supervisor in production. I walked over to Zayne, "What is the idea; what
are you trying to pull? I asked you this afternoon whether there was going
to be a rehearsal tonight and you said, "No." "Now we come up here and
we find the whole studio full." And Zayne said to me, "I made a mistake.
Kick me." He bent over, lifted up his jacket in a joking way.16
Q. What happened then?-A. Oh, we sat around on the kitchen set.
Nothing actually happened. These people were just hashing back and forth.
They didn't know what they wanted to do. They just couldn't seem to get
their plan set for the show. And we just moved around for about an hour
and, finally, we start preparing for our evening duties.
I went over to the weather board and started getting the Atlantic show
ready. I don't know what the other boys were doing. I do think, though,
about 10:00 o'clock we did open the cameras. I think Dawes went up that
night and looked at a couple of shots and that was that. They called it a
night.
15 When the floor crew returned to the studio ( according to Dawes) :
... . In my phrase at that time, I said, "where in the hell have you been?" They
knew I was mad at that time. And Joe [DeSimone] said , "Sam, what is the
trouble1" I says, "what is the trouble? We have got a rehearsal. We have been
waiting here since 8:00 o'clock. We have got an audience, part of who have left
the place. They have been wondering when they are getting into the studio. We
have been trying to pacify them If you set up, you must have known there was
something going on."
"We didn't know anything about this."
Q. Who said that?-A. Joe DeSimone.
Q. All right.-A. I said, "Joe, whether you knew there was something going on or
not it is obvious the set is up ; you knew there was something going on Since when
do you take an hour and 40 minutes for a dinner break?" And they just looked at
me and walked past and went over to their places.
The Trial Examiner is not persuaded that this floor crew "set up" the studio-placed
chairs etc ., in position-or was otherwise aware of this rehearsal prior to their return
from dinner. Consequently , the Trial Examiner believes and finds that DeSimone's ac-
count of this incident is more reliable than that given by Dawes.
1 Radney testified that DeSimone said "that Dawes was mad because they had taken
a long lunch hour . And that was all that was said by him [DeSimone ]." Radney de-
nied that DeSimone asked him whether there would be a rehearsal that night , denied
that DeSimone asked him why be had not told him (DeSimone) there would be a re-
hearsal and denied that he remarked to DeSimone, in substance, " so I made a mistake :
kick me." In the light of established nondisputed facts DeSimone's testimony concerning
WTVJ, INC. 1197
After the floor crew members went to their duties Shay told Dawes that these
floor crew members would have to be discharged as soon as they could be spared.
Dawes commented that they could not be spared immediately because they were
needed to help carry out certain commitments (to help put on certain remote broad-
casts) 17 and Shay then told Dawes to get rid of them as soon as he could. Shay
and Dawes agreed to get together about this matter the following day. The following
day Shay wrote an interoffice memorandum to Dawes stating:
JANUARY 17, 1957.
The Wednesday night rehearsal of "Second Honeymoon" with Frank Parker
was delayed causing the', audience to become impatient, and allowing insufficient
time remaining before the 10:30 p. in. close to conduct adequate rehearsal
of the kine.
This delay was caused by the Production night crew's late return from their
dinner break. They left at 7:00 p. in. and were not available again until nearly
9:00 p. in.
I am having an accurate report made concerning the hours of this crew. If
the record substantiates the suspicion that I have, these regular violators should
be discharged. Am I correct in believing that the crew chief is responsible for
their duties during these hours?
Evidence (but I may be wrong) indicates that the Chief is "working" with
the men to "bury" this condition.
Also, install tight controls on all crews and personnel.
I regret that this becomes necessary. It may be necessary that you, Lyn and
Zane personally "ride herd" for as long as necessary. Let's discuss at once.
(Signed) JoiN A. SHAY.
Within the next few days the record book usually kept at the reception desk was
checked and it revealed that on numerous occasions these four employees had taken
more than an hour for dinner. Checking of this record book was completed on
January 21, 1957, and that night Shay and Dawes conferred as to how soon these
four could be spared and the order in which they should be discharged. It was
decided that DeSimone, being the crew chief-in effect a group leader-should
go first. ' "
On January 17, 1957,18 at about 4:30 p. in. Director of Production Operations
Ash Dawes asked DeSimone "what happened; you let me down?" and why the men
were "so dissatisfied?" A discussion then ensued concerning "why the men were
dissatisfied" and the reasons for "wanting a union." While Dawes and DeSimone
were talking Jack Shay, vice president in charge of operations, walked past the door
to Dawes' office and was invited into the office by Dawes. Shay also asked DeSimone
"about the meeting" and why the men were dissatisfied and participated in a dis-
cussion about these matters.19
On or about January 23,:1957, Director of Production Operations Ash Dawes
discharged DeSimone. According to DeSimone:
A. I went into the office. Mr. Dawes says, "Hello Joe." He says, "Be
seated, please."
I sat down. He started off by saying something-"You know, Joe, sometimes
the supervisor has an unpleasant duty to do." And he hesitated for a minute.
I says, "Let's not beat around the bush, Ash; I know why I am here," I says,
"Let's get it over with."
So he says, "All gith," [sic] he says, "The Colonel's office told me that I
have to lay off two men."
Q. Who, if you know, is the Colonel?-A. He was referring to Colonel Wolf-
son, who is one of the owners of the station, WTVJ. He says, "The Colonel
told me I have to lay off two men and you are one of the men I must let go."
I says, "I must let go? You mean that you want to let me go, or you have
been ordered to let me go?"
He says, "You are one of the mean [sic] I must let go."
I says, "All right. Give me a reason, Ash."
He says, "We are overstaffed."
these matters appears more probable than that of Radney and the Trial Examiner credits
DeSimone's testimony and finds the facts to be as set forth above.
17 At that time remote telecasts were scheduled for January 20 and February 1, 1937.
18 It is noted that this is the date of the Union's request for recognition.
19 Dawes and Shay did not,, testify' concerning, this conversation. However, Shay did
testify that he often conferred with different employees about these matters.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I says, "That will never work. You got to give me a better reason than that."
So he says, "Okeh, we will use the time book, we will use the time book." I says,
"What time book?" He says, "The sign out book that you go out in the evening.
You have been taking more than an hour for lunch."
I says, "I certainly have, and so has everyone else. We have been doing that
for years; that is more less normal procedure."
I says, "First of all, the time book is not an accurate time as to how long we
were in the station. There are times I am scheduled in at 4:30, we never sign
when we come to work. I may come in at 2:00 and 3:00 in the afternoon and
my day officially starts at 4:30. We sign out to go to dinner and sometimes
we have an hour break; we sometimes don't have an hour for ' dinner. We
work the midnight movies," and I said, "Ash, you know yourself that I have
asked for overtime, the crew has asked for overtime when our midnight movie
runs past 1:30; we will run til 2:00 o'clock in the morning or later. You know,
the Colonel says no overtime, so you have told us to take as much time as we
need so long as we don't have live shows in the evening, to take more than an
hour for lunch."
Q. What did he say to this, if anything?-A. So to that he says, "I don't
have to discuss it with you. Here is your check." So he handed me my
check, and on it was two weeks vacation, two weeks severance, and I was
being paid till the end of that week, which would have ended Saturday.
When I asked, "Can I go up on the floor?" he says, "No, under the circum-
stances, I would prefer that you leave." I says, "All right." I was getting
ready to leave and then he says to me-he says, "What do you hope to gain
by all that, Sam?" And I says, "I don't hope to gain anything by it."
Q. He said what?-A. "What do you hope to gain by all this, Sam?" Sam
is a nickname that he calls most of the boys; he called everyone Sam.
"I don't know if I will gain anything by this, Ash." I says, "You know how
I feel and I know how you feel; we are on opposite sides of the fence now.
I want to join the union and it is my right and I am going to join the union
and you can't stop me."
And he went on to say-he says, "You will never make it." He says,
"You know, the Colonel fought the theatres for four years-fought the
unions in the theatres for four years." I says, "That's right, but they won."
He says, "You also know the Colonel has threatened to sell the truck or
sell the station before he would go union ." I says, "That's right," I says,
"But he hasn't sold the truck, he hasn't sold the station, and he hasn't sold
his theatres, and they are union."
So with that, we got in a little more discussion about I thought network
remotes would benefit us. And it wound up by my getting up and leaving,
and I said as I left, "I will be back."
According to Dawes, the conversation with DeSimone was as ' follows:
Joe got in about 3:00 o'clock. And I started talking the sentence-and
I think strictly off the record; that has got to be a coined phrase-on the
record, "one of the unpleasant things a supervisor has to do"-
The TRIAL ExAMINER: It is all on the record. I don't know what he means
by that.
The WITNESS: Each time it has been mentioned, we have gotten a laugh
out of it.
Q. (By Mr. Constangy.) Tell us what happened, Mr. Dawes. Don't
make any side remarks.-A. "As a supervisor, we have a very unpleasant duty
sometimes , and one of them is to tell a fellow he is terminated from service."
And I said, "You have let me down, Joe."
And he said, "What do you mean?"
I said, "Joe, you had the responsibility as a crew chief-you had the re-
sponsibility of having these fellows in here on time."
And Joe says, "Since when do we go into these violations of the dinner
hour? We have been doing this for a long time."
I Said, "Joe, there have been special occasions where you have received
permission to take in excess of one hour for dinner ." But I said, "You know
as well as I do, Joe, you work here, your schedule is nine hours a day, you
turn in 40 hours a week, which means you have got five hours during the
week to have dinner."
He says, "Well, we have been doing that for a long time."
I said, "Yes, I know it has been taking place for quite a while as the record
indicates." 0, 1
WTVJ, INC. 1199
He said, "Well, I have been expecting this." And he says, "Of course,
you haven't heard the end of this; I will be back working for you whether
you know it or not."
I said, "I haven't the least idea of what you are talking about."
He said, "Well, I know how the company feels about unions. And he
says, "It is going to be in here; it is inevitable."
I says, "That may be,; Joe; I don't know. Joe, we will have to see."
So I gave him his final check and discharged him.
On January 23 or 24, 1957 (after DeSimone's discharge) James E. Bishop, a
cameraman (a member of the floor crew) on the day shift, called upon Dawes
and inquired whether he (Bishop) was also going to be "let go." Dawes told
Bishop: "I don't think you have to worry. They are not after you." Bishop
then asked the reason for DeSimone's discharge and was told "we are overstaffed
and he was taking too much time off for supper." Bishop then commented that
the reason stated was "ridiculous," that DeSimone and the other members
of the floor crew were merely following "customary procedure" in taking more
than an hour for supper and Dawes then, in an indirect fashion, indicated that
DeSimone's union activities caused his discharge.20
Dawes testified that in the conversations he had with the men who were dis-
missed, he (Dawes) never mentioned the matter of union organization, that
DeSimone was the only one who mentioned it and that he (DeSimone) did so as
indicated in the quotation of Dawes' testimony above. In the light of the entire
record herein the Trial Examiner does not credit Dawes' testimony concerning this
matter. On the other hand DeSimone testified that he did not remember whether
the incident of January 16, 1957, was discussed at the time of his discharge but
that Dawes "may have" discussed the fact that Shay was "embarrassed" by the
delay. In the light of the entire record it appears to the Trial Examiner that
Dawes probably did refer (directly or indirectly) to the incident on January 16
and the Trial Examiner so finds.
After observing the witnesses and analyzing the entire record herein, the Trial
Examiner is convinced, and finds, that at the time Dawes discharged DeSimone
he (Dawes) indicated that the reasons for the discharge were DeSimone's "long
dinner hours" and his activity on behalf of the Union. _
George Schwartz
As noted above, Schwartz attended the meeting at the IBEW hall on January 13,
1957, and took an active part in the discussion and gripe session. • He argued in favor
of representation through a union.
Also as noted above, Schwartz was a member of the night floor crew. He was with
DeSimone on January 16, 1957, and consequently late reporting for a rehearsal of
the Frank Parker show "Second Honeymoon." He was with DeSimone when Dawes
complained about their lateness or absence.
On January 24, 1957, Schwartz was discharged by Dawes. Schwartz's version of
the discharge conversation follows:
A. Well, I went down,to the studio to see-meet with Mr. Dawes as he re-
quested me to meet with him the previous day. I went into his office and-the
first thing he said, "Well, one of the unpleasant jobs about being a supervisor is
the fact that he has to tell a man when he is about to be let go," and "That the
Colonel had said the production department was overstaffed by two men."
And I said-I asked him, "Why me?" He said, "I had always been taking
too much time off on my dinner hours."
Q. Then what happened?-A. Well, I said, "What but everyone takes times
off, including the day crew." He .said, "Yes, he knows that, but that doesn't
mean to say it is going to continue."
Q. And then what happened, if anything?-A. At one point, he mentioned the
fact that the past Wednesday we had come in-late for the Second Honeymoon
rehearsal and Mr. Shay was about to fire all of us; it was only because he stepped
in that Mr. Shay didn't fire us. He also said that besides taking off time for
dinner hours, I also was putting in for overtime.
Q. And then what happened, if anything?-A. He gave me my check.
Q. And you left?-A. And I left.
Dawes ' version of this discharge conversation reads as follows:
And George Schwartz came in and didn't -have too much to say. I says,
"George, it is an unpleasant thing, but I have to tell you we are terminating your
21 Dawes did not testify concerning this conversation.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service. We have been requested to cut down on the number of people we have
here. The decision to discharge you has been decided because of these violations
of dinner hours."
I said, "Last night, or the Wednesday night incident with your four fellows,"
I said, "really capped this thing off." I said, "We have no idea of the eventual
results of this thing. We know that it has caused bad feelings with the individ-
uals we were working with, plus some people from the public."
And I said, "I am-we are cutting this thing off right now."
George asked me would it be possible to have a recommendation. I said,
"I will give you a recommendation, but I am going to be honest to whoever your
next employer might be and tell them the reason you were discharged."
He said, "Well, that will be all right with me."
I said, "I will dictate it sometime in the future, George."
"Shall I call to find out when it is ready?"
"That won't be necessary; Miss Magura will type it up and send it to you."
Q. Miss who?-A. Miss Ann Magura. I am sorry; my secretary.
Q. Did Schwartz say anything else?-A. No, sir.
Q. Did you say anything else?-A. No, sir.
On or about February 15, 1957, Schwartz went to Respondent's place of business
about other matters and while there received a letter of recommendation, reading
as follows:
To Whom It May Concern:
FEBRUARY 1, 1957.
This letter will introduce George Schwartz, a former employee of WTVJ.
George Schwartz first started working with us as a University of Miami interne
on June 17, 1953, and then on a part-time basis on September 27, 1953. He was
hired on a full time basis on December 20, 1953.
He was with us approximately eight months when he went into the Armed
Services (August 14, 1954).
While with WTVJ, George acted in the capacity of cameraman, boom opera-
tor and stage manager, and showed quite a bit of ability.
During his tenure in the Services, he spent the largest part of two years in
the television field.
Upon his return, September 4, 1956, George resumed his position with us as a
member of the floor crew and was progressing nicely up to the time of his
discharge.
A series of violations concerning scheduled hours was the reason for his dis-
charge; prompted by the fact that I had to reduce the number of personnel in
the Production Department.
Sincerely,
(Signed) E. ASHLEY DAWES,
Director, Production Operations.
Dimitry Alexander
As noted above, Alexander attended the meeting at the IBEW hall on January 13,
1957. He signed a union-authorization card on that date.
As previously noted Alexander was a member of the night floor crew. He was
with DeSimone on January 16, 1957, and consequently late reporting for a rehearsal
of the Frank Parker show "Second Honeymoon." He was with DeSimone when
Dawes complained about their lateness or absence. He was discharged February
4, 1957.
During the afternoon on January 19, 1957, Alexander told Shay, vice president in
charge of operations, that he (Alexander) was "going to be a father in July" and
Shay responded "Well, you better have a job by then." Alexander asked Shay what
he (Shay) meant and Shay said "Well, I will talk to you about if." Later that
day Alexander again asked for an explanation and Shay suggested that Alexander
come to his (Shay's) office in the near future and discuss the matter. The following
Monday (January 21, 1957), Alexander went to Shay's office. According to
Alexander:
A. Well, I came in and Mr. Shay just opened the meeting. He said, "It is
quite a mess we are in." And he didn't say anything more. I waited for the
next comment. Then he said, he can't understand why a think [sic] like this
happened, that 17 men, or 18 men, rather, went to a union meeting and 17 of
them signed IBEW cards.
He asked both of us whether or not we were dissatisfied with himself and
Mr. Dawes. McDermott said that this had nothing to do with -personalities,
WTVJ, INC. 1201
that it wasn 't that we were dissatisfied with Mr . Shay or Mr . Dawes, nothing
to do with personalities ; that this was just the way the men felt, the only way
they could get satisfaction was to have a union.
Q. Anything else that was said that you can recall at that time ?-A. Yes.
Mr. Shay also said that he doesn 't know where the guys think they are going,
but this thing is never going to come to a vote; he is not very concerned about
it because by the time the vote comes up the fellows who are concerned in it
won't be there any more.
Q. Do you recall anything else that was said during this conversation?-A.
Yes, I-he asked us if we understood what the cards meant. We said that so
far as we know, it means that the IBEW ' will act as our bargaining agent.
He then opened up his desk drawer and got out a card which I didn 't actually
see close, but I recognized it enough to know what it was.
Q. What was it?-A . It was an IBEW authorization card , just the same as
if it had been signed, and he, of course , read just exactly what was on the card.
Q. Then exactly what, if anything , did you say or he say?-A . He said
he doesn't know how we are going to get out of this thing, but the only way
he feels we can get off the hook is to write three letters. He said he doesn't
know if it is going to help any because of the date on the IBEW authorization
cards we signed . But he felt that if we wrote three letters, one to the National
Labor Relations Board , one to the IBEW local , and one sent to the studio and
have it " notarized , that, possibly , we can get our cards withdrawn . He said
that the studio could type them up for us, but it wouldn 't look good.
Q. Do you recall anything else that was said at that time?-A. Not at that
meeting, no.21
Alexander also testified that on this occasion:
A. He [Shay ] -said that in reference to this Union thing which we were
talking about at the time , he said that he had a perfect right to fire every man
in the late crew because they had a habit of coming in late. And he said he
caught them during this Frank Parker Show-not that he caught them , but they
did it the other night of the Frank Parker Show , and that I was one of them.
And he would fire anyone without any recourse and it would be stupid to even
sign in the right times in the book.
I said at that time "If we thought we were doing anything wrong we wouldn't
sign in the right times in the book ; it would be falsified."
Later on January 21 or on January 22, 1957, Shay asked Alexander if he "had
written the letters yet?" When Alexander responded that he had not Shay asked
"why not?" Alexander stated he wanted "more time to think about it" and "to
find what the rest of the fellows are going to do" and Shay told Alexander he did not
"have too many days left" and he had "better hurry up." The conversation ended
with Alexander promising to "think about it some more." 22
On or about February 1, 1957 , Alexander told Shay that he (Alexander) would
not write "a letter directly to the Union " but that he would sign a petition "to with-
draw the union authorization" which he (Alexander ) understood was being circulated.
Shay and Dawes , who was also present , indicated they were not aware of such a
petition and Shay again told Alexander to write "three letters." Alexander protested
that he was being forced to "choose sides" and Dawes stated "it looks like, Alexander,
you put yourself in this position . You had an opportunity to make your choice and
21 Shay admitted that he had a conversation with Alexander in which he ( Shay) re-
marked that he could not "understand why 18 men went into a meeting and 17 signed
IBEW cards," in which he (Shay) read an IBEW card and asked Alexander if he "under-
stood what the card meant" and in which he told Alexander " that in signing a card such
as this, he bound himself for a year and thirty days rather than thirty days, which was
the opinion of some of the people who signed them." Shay denied stating that "this
thing is not coming to a vote" and that he was not concerned about it "because at the
time it comes to a vote, the fellows covered by it won't be there" or a statement to that
effect. He did not deny suggesting that Alexander write letters revoking the authoriza-
tion previously given the Union It is apparent from reading Shay's testimony that more
occurred on this occasion than is detailed in his testimony but the undersigned cannot
determine from his testimony his version of what was said on this occasion . The Trial
Examiner finds the facts to be as stated above.
2' Shay denied that such a conversation occurred, denied asking Alexander whether he
had written the letters and denied telling Alexander he had better hurry up because there
was not much time left The Trial Examiner finds the facts to be as noted above
483142-59-vol. 120-77
-1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you did." Dawes then told Alexander that if he stuck with the union group he would
be "out of a job" and that he should resign from the Union.23
Alexander wrote the letters requested and on or about February 2, 1957, tossed
them on Shay's desk saying "1'm going to need some addresses on these." Shay
gave them back to Alexander saying "I don't want these right now. Hold on to
them. We have got enough, and we have got the NLRB so confused now we had
better not confuse them more If we need some more, we will send them in." 24
On February 4, 1957, Alexander was discharged. According to Alexander when
he (Alexander) went to Dawes' office, at Dawes' request,
A. He [Dawes] asked me to come in, close the door and sit down. And
then he said, "One of the unpleasant jobs of being a supervisor is telling a man
he no longer works here," and he says, "That is what I have to tell you."
Q. What did you say?-A. I didn't have any comment because already there
was two men fired and I was half expecting it. I had an idea it was coming
after that because I had heard this speech before from the other two fellows.
Q. Just what did you say?-A. I said that-"What was this about; why was
I being fired?"
And he said that first of all, I had some number of violations, I believe he
said some 30 violations of a signout book, whatever kind of a list he had, which
I didn't have a chance to see, a list of some sort. He said, "We can't have that
sort of thing going on," and he said, "I am going to have to let you go."
Q. And then what happened?-A. Well, he was talking to me, and Miss Ann
Migura walked in and she had two envelopes in her hand. She laid them on
the desk and I noticed that one was, as I found out later, my check, and the
other was Mr. Griffith's check. And he told me that as a result of this signout
book, I was going to have to be let go.
Q. Was anything else said that you can recall at the time?-Well, I started
to say something about the fellows signing out in the signout book the accurate
time, there was no reason-that the boys could have put any time they wanted
to, there was no supervisor there at night. There was no reason why we thought
we were doing anything wrong since we had never been warned about it; that
we didn't have to sign the proper time in the book but we did, which indicated
we felt we done nothing wrong.
He said, well, he is not going to discuss that with me. I just got ready to go
and his last comment was, he felt that we would just let the whole thing go as
just a bad deal.25
23 Dawes categorically denied that he had a conversation or was present at a conversa-
tion on February 1 or thereabouts when Alexander asked to or stated he would sign a
petition as a group withdrawing from the Union or protested that he was being forced to
choose sides or was told if he stuck with the group he would be out with the group and
he should resign from the Union. Shay testified he did not remember such a conversation
but he would say it did not happen . Shay denied that Alexander stated he was being
forced to choose sides, and denied that he said to Alexander in words or effect that Alex-
ander had already chosen sides and that if he stuck with the group he would be out
with the group and that the only honorable thing he could do would be to resign The
Trial Examiner finds the facts to be as noted above
24 Shay did not testify concerning this conversation.
s According to Dawes :
A. Mr Alexander cane in And I greeted him the same way, that I had a very
unpleasant duty to do as a supervisor, and that is to tell him that his services were
terminated, and I related it to he being one of the crew on January 16th
And I said, "We have checked the recoids, Dimitiy, and your records show that
you violated this thing many, many times. Mr. Shay has said that we cannot tolerate
this and you must be -your service must be terminated."
Q What did Mr Alexander says-A He thought it very unfair, of course, in view
of the fact that his wife was in a family way I sympathized with him 100 percent,
but I said, "Business is business, and evidently you people haven't considered it as
such "
Q. Was there any discussion with Mr Alexander about the sign-out book, Mr
Dawes, on account of his discharge9-A. I had mentioned to him that he had-I
don't have the number on the tip of my tongue-but had many violations on the
sign-out book of taking over a period of just the two and a half months that we
just happened to go back and cheek on
And he admitted to these and wanted to know why he was being singled out on the
violations I said, "You are not being singled out on them ; it just so happens that
WTVJ, INC.- 1203
Q. Then what did you do?-A. I went to Mr. Shay's office right after that.
Q. Was Mr. Shay in his office9-A. Yes, he was.
Q. Did you have a conversation with him?-A. I did, sir.
Q. What did you say to him and what did he say to you?-A. I walked into
Mr. Shay's office and I said, "Mr. Shay, what is this all about? Why was I
fired? After all, I wrote the three letters you wanted. Isn't that what you
wanted?"
He said-well, he hemmed and hawed for awhile-"Well, you took so long,
I didn't think you were 26 interested." I just said, "Thank you." and I left. ,
Wilson Griffith
Griffith attended the union meeting on January 13, 1957, and participated in the
discussion and gripe session . He also signed an IBEW authorization card.
Griffith was a member of the night floor crew. He was with DeSimone on
January 16, 1957, and consequently late reporting for a rehearsal of the Frank
Parker show "Second Honeymoon." He was discharged February 4, 1957.
During the show called "Midnight Movie" on January 22, 1957, Shay came to the
location where Griffith was working and conversed with him about the Union.
During the course of this conversation Shay made it plain that Griffith had made
a "big mistake" by joining the Union and that as a consequence his job, and the
jobs of other employees of the production department who joined the Union, was
in jeopardy 27
On Monday, February 4, 1957, Dawes discharged Griffith. Dawes told Griffith
he was being discharged because "we are overstaffed. The Colonel [Mitchell
Wolfson, president of Respondent] has told me to let some people go and you are
one of them." Griffith asked "why me?" and was told "because you disobeyed
company rules and stayed out too long at dinner." Griffith protested that others
had also taken lengthy dinner periods and that Dawes was aware of this practice.
Dawes denied that he was aware of the practice and told Griffith the names of the
other floor crew members who had been discharged and told Griffith that the
records showed that he (Griffith) had taken long dinner breaks on "too many"
occasions. Griffith asked how many was "too many" and Dawes answered that
he did not care to discuss it any further, that Griffith was "through" and gave
Griffith his check.28
Lloyd Gaynes
Gaynes was one of the employees who was active at the union meeting held on
January 13, 1957. He signed an IBEW authorization card on that date. ,
On January 18, 1957, at about 11:30 p. m. Shay came to where Gaynes was
working and engaged him in a conversation. Shay asked what the "union mess"
was about. When Gaynes said he did not have anything to say about it, Shay
asked "do you want me to fire you with cause, or would you like to resign?" and
told Gaynes he (Shay) had "a case a mile long" against him and he could "build
it two miles if"• he wanted. Shay then told Gaynes that during his (Gaynes)
absence for military duty in 1953 the Union attempted to organize Respondent's
employees and Respondent "spent twenty grand" opposing such organization 29 and
that Respondent was still opposed to such organization. A discussion then ensued
this has been determined by the four of you missing out on a rehearsal for this
SECOND HONEYMOON show."
2e Shay denied that Alexander came into the office and said he had written the three
letters, denied that he (Shay) told Alexander he had waited so long he did not think
Alexander would write the letters, denied that there was any conversation of that sort
with Alexander and denied that Alexander ever told him lie had written the letters.
The Trial Examiner finds the facts to be as noted above
Shay admitted having a conversation with Griffith at this time and place about the
union organizational drive but denied that he told Griffith he had made a mistake by
joining the Union and that as a consequence his job was in jeopaidy Shay did not state
his version of this conversation In the light of the entire record and especially the tes-
timony of Griffith and Shay it appears probable that the conversation was as indicated
in the testimony of Griffith The Trial Examinei finds the facts to be as stated above.
28 Except for the reference to "iverstafling" Dawes' version of this conversation does
not vary in substance from that given by Griffith, which is stated above
29 See Southern Radio and Television Equipment Company, Television Station WTVJ,
107 NLRB 216.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to why the employees were interested in the Union. During the course of this
discussion Shay stated that the employees were "idiots" for wanting the Union and
they would never get an election because "the people will not be here to vote"
and that Respondent would sell the "remote truck" and discontinue a portion of
its business (remote broadcasts) rather than have a union at WTVJ.30
On January 22, 1957, while enroute to Respondent's place of business Gaynes
and Carl (Rusty) Bruton, another director who had attended the union meeting
on January 13, 1957, met Shay and asked him (Shay) his "viewpoints" concerning
the current union activities. Shay told them that he (Shay) was dealing directly
with Respondent's president and it was his (Shay's) job "to clear up this union
mess in the Production Department" and suggested that they (Gaynes and Bruton)
"write a letter to the National Labor Relations Board, to the local IBEW, and a
copy to Mitchell Wolfson [Respondent's President] stating that" they did not under-
stand what they had signed at the union meeting.31 On that date Gaynes signed and
mailed to the IBEW a letter requesting cancellation of his authorization card. He
mailed copies of this letter to the NLRB and to Mitchell Wolfson (Respondent's
president).32 The letter reads as follows:
JANUARY 22, 1957.
I. B. E. W. LocAL #349,
1757 N. W. 17th Avenue
Miami, Florida
GENTLEMEN: After considerable after thought I find that I personally have
made a great error in signing your I. B. E. W. card at the January 13th meeting.
I did not realize fully at that time the full meaning of my signature. I
do now and request that my card be cancelled as of this date.
Yours truly,
(Signed) LLOYD H. GAYNES,
Production Dept., WTVJ, Miami.
CC:
National Labor Relations Board
10th Region
Atlanta, Georgia
Mitchell Wolfson
WTVJ
MIAMI
"Late in the week of the 14th [of January 1957] or the beginning of the next
week" and probably on January 22, 1957, Gaynes was relieved of his duties as
director of the "Science Fiction Theatre show" and the "Liberace show" and
Bernie Rosen, another director who attended the union meeting on January 13,
1957, and signed an IBEW authorization card, was relieved of his duties as director
3 Shay admitted that he talked to Gaynes, and to other employees about union activities
and that he indicated to these employees that he was "hurt" by the efforts to organize
and could not understand why the employees wanted a union rather than bring their
problems to him. His recollection of this particular conversation was hazy but he did
remember that the conversation occurred in the manner described by Gaynes, that it
concerned the Union and why the employees had gotten into it and why he (Shay) ob-
jected. Shay denied asking Gaynes whether he wanted to be fired or wanted to resign,
denied telling Gaynes that he had a case a mile long against him and could make it
2 miles, denied telling Gaynes that "Colonel Wolfson spent twenty grand [in 1953] to
hire a lawyer to fight this union case" but admitted that he told Gaynes that the 1953
efforts of the Union to organize had cost Respondent "in the neighborhood of twenty thou-
sand dollars," denied that he told Gaynes that the people who signed cards would
not be there to vote and denied that he told Gaynes he was going to break up the organ-
izing. The Trial Examiner finds the facts to be as noted above.
Si Shay admitted that the conversation occurred at the time and place indicated above
and that he might have told Gaynes and Bruton that they did not understand what they
were signing when they signed the IBEW authorization card and he would like to see them
get off the hook However, he denied telling Gaynes and Bruton that he was dealing
with Respondent's president and it was his job to clean up this union mess in the produc-
tion department and denied telling them that he was going "to fire him [Gaynes] and
the other people that signed cards in order to keep them from being able to vote yes"
The Trial Examiner finds the facts to he as stated above
12 Similar letters were mailed by Bruton.
WTV.7, INC. 1205
of the "Ralph Renick News Program" and Shannon Wallace, a director who had
not attended the union meeting on January 13, 1957, was assigned to direct
these shows. Gaynes asked Dawes about the interoffice communication ordering
these changes and Dawes said "Well, I just want to show you yokels that we can
get along here in the Production Department-that we can get along without you
and anybody in the Production Department." Gaynes accompanied Rosen when
Rosen went to Dawes about this matter and on that occasion Dawes stated "Now
that you guys have signed with the Union, you think you can come in here and
get away with anything" and told them he (Dawes) had issued these orders and that
they were to be carried out 33
At the end of his workday on January 28, 1957, Gaynes was called to Dawes'
office and told (by Dawes) that he was being fired "as of this day" and that the
reason for the discharge was that he (Gaynes) and Dawes had not gotten along
and had not seen eye to eye on production problems and techniques 34 and because
of his (Gaynes) conduct during a remote broadcast during February 1956, of the
Tampa Home show.35 In April 1956 Gaynes was given a contract for employment
for 3 years.36 When he called this matter to Dawes' attention Dawes told him
"contract or no contract, pick up your check tomorrow morning." 37 Gaynes then
went to Shay's office and asked him (Shay) why he (Gaynes) was being fired. Shay
indicated Gaynes was being discharged because of his inability to get along with
Dawes and his conduct during the remote broadcast of the Tampa Home show
and because he had left him (Shay) down. Shay explained how Gaynes had let
him down by telling Gaynes that he (Shay) had "gotten indications from the
employees at WTVJ that you are still talking union, even though you sent the
letters to the National Labor Relations Board." Shay further indicated that
DeSimone and Schwartz had been discharged and that he (Shay) was getting rid of
the production department because they wanted unionism.38 Gaynes asked per-
mission to resign rather than be fired and such permission was granted. On May 9,
1957, Gaynes wrote out and gave to Shay a letter of resignation dated January 28,
1957. This letter reads as follows:
83 According to Dawes, at Renick's request it was decided that the same director (in-
stead of two directors) would direct the 6 • 45 to 7 o'clock and the late news programs
and this assignment was given to Wallace since he was then directing the late news
program and could work more closely with Renick than could Rosen who "does all our
sports shows." This change haling been made it was determined, according to Dawes,
to have Wallace also direct the Science Fiction Theatre and Liberace shows which oc-
curred during the regular work shift of Wallace rather than have Gaynes come in special
for these shows at 7 and 11 p in twice each week. Dawes testified Rosen did not like
the idea but was pacified to a certain extent by his (Dawes') explanation and that Gaynes
was dissatisfied with his (Dawes'l explanation Dawes denied that he remarked to Gaynes
"you yokels think we can't get along without you" or words to that effect but did not
deny the statements which he '(Dawes) allegedly made when Rosen accompanied by
Gaynes asked about this matter.' The Trial Examiner finds the facts to be as set forth
above.
sa Over the years Gaynes and Dawes had frequent disagreements about these matters.
80 On this occasion Gaynes, without permission, left a camera he was assigned to operate
to "straighten out some lights." However, he later acknowledged that he should not have
done this and apologized and was thereafter assigned to other remote broadcasts.
80 Shay testified that by this time (April 1956) Gaynes was "doing a better job" and
had been "penalized" enough and that by means of the contract Gaynes was given a pay
increase beyond that provided for in the "automatic progression scale."
87 Dawes and Gaynes had frequent disagreements and Dawes would have discharged
Gaynes long before he did except for Shay's intervention on Gaynes ' behalf. According
to Dawes, on January 4, 1954, Gaynes "goofed up"-fouled a spot on the air, a commercial
spot, during a film show on the air-and "once again during January" "was up there
[in the control room] eating his,lunch on the desk while he was directing a show" and
he (Dawes) then told Shay he (Shay) would have to make a choice "either Gaynes goes
or I go" and Shay agreed to let Gaynes go but Gaynes was held on until after the remote
broadcast scheduled for January 20. Dawes' version of the discharge conversation does
not vary in substance from that, given by Gaynes, which is set forth above.
88 Shay testified that probably something was said about the Union but that he could
net,recail what was said or by whom However, he denied making the statements attrib-
uted to him by Gaynes The Trial Examiner finds the facts to be as stated above.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WTVJ VIDEOGRAM INTER-OFFICE USE
To: JACK SHAY.
From: LLOYD GAYNES.
Date: January 28, 1957.
Subject: Formal Resignation.
WRITE-DON'T SAY IT
After seven and one half years of faithful employment with WTVJ, I have
come to the conclusion; that because of my creative ability and interest in live
TV-production; my talents here are no longer needed or appreciated.
Therefore, please consider this note my two weeks (or four depending on your
decision) notice.
As you know, we have discussed this matter before and I certainly know that
you feel, as I do, that my future in live TV is with the networks.
Thanks for the opportunity-.
(Signed ) LLOYD H. GAYNES.
Conclusions
The Floor Crew
From the facts found above it appears that the decision to discharge the floor crew
'was made in haste and without regard to union activities but before the discharges
were made effective the union activities of these employees became an independent or
additional motivation for their discharge. The Trial Examiner is not persuaded that
union activities was the sole reason for the discharges and the late appearance of the
floor crew at the "Second Honeymoon" rehearsal and/or the "long dinner periods"
were pretexts to conceal the true reason. On the other hand, the Trial Examiner is not
persuaded that these discharges were made effective without regard to union activities.
In the opinion of the Trial Examiner, there were dual motivations for the discharges-
the reasons assigned by Respondent and the union activities of the floor crew. It is
now well settled that where an unlawful reason is a motivating cause, the coexistence
of separate lawful reasons do not eliminate the unlawful aspect of the conduct. Ac-
cordingly, the Trial Examiner concludes and finds that by the discharge of Joe
DeSimone, George Schwartz, Wilson Griffith and Dimitry Alexander, Respondent
violated Section 8 (a) (3) of the Act. Furthermore, in the opinion of the Trial
Examiner, the facts found reveal that the discharges were part of Respondent's efforts
to discourage "concerted activity" and were, therefore, violative of Section 8 (a)
(1) of the Act, even if they do not constitute violations of Section 8 (a) (3).
Lloyd Gaynes
The facts found above reveal that Gaynes and Dawes constantly disagreed, that
Dawes would have discharged Gaynes long before he did except for Shay's interven-
tion, that Dawes finally delivered an ultimatum to Shay giving Shay a choice of dis-
charging Gaynes or Dawes, that Dawes discharged Gaynes assigning as the reasons
therefor the difficulties he (Dawes) and Gaynes had experienced, that Gaynes then
saw Shay and was told by Shay that he (Gaynes) was being discharged because of the
difficulties he (Gaynes) and Dawes had experienced and because of his (Gaynes')
union activities. Here, as in the case of the floor crew, the Trial Examiner believes
that the discharge was not a pretext situation but that the motivation for the discharge
included Gaynes' union activity. Accordingly, here, as in the situation involving the
floor crew, the Trial Examiner believes, finds and concludes that the discharge vio-
lated both Section 8 (a) (3) and 8 (a) (1) of the Act.
Refusal to Bargain
The facts found above reveal that by letter dated January 17, 1957, the Union
requested recognition as the bargaining agent of the employees in "the Production
Department" and a conference for the purpose of negotiation and that Respondent
did not reply to this letter except by contemporaneously engaging in conduct designed
to destroy the Union and oust it from Respondent's place of business. This conduct
by Respondent was clearly violative of Section 8 (a) (5) of the Act if the unit sought
was an appropriate, unit for the purposes of collective bargaining and if the Union
represented a majority of the employees' in the said unit. In its answer to the com-
plaint Respondent denies that the unit specified in the complaint is an appropriate
unit and denies that a majority of the employees in this unit designated or selected the
Union as their bargaining agent.
WTVJ, INC. 1207
Respondent contends that the unit which is claimed to be appropriate is based on
the extent to which the employees have been organized and that since the Act (Sec-
tion 9 (c) (5)) proscribes establishment of a unit determined by the extent to which
employees have been organized, the unit claimed is not appropriate. Respondent
relies upon N. L. R. B. v. Glen Raven Knitting Mills, Inc., 235 F. 2d 413 (C. A. 4).39
Respondent urges further that a unit of employees in the "Production Department"
(production operations department) is not consistent with plant operational realities
and is therefore inappropriate.
In 1953, in Southern Radio and Television Equipment Company, Television Station
WTVJ, Case No. lO-RC-2398,40 the Union involved herein sought to be certified as
the bargaining agent of employees in a single unit of employees in both the production
and engineering departments and the Board directed an election in this unit. The
Union was not thereafter certified. The facts found above reveal that in 1957 the
Union again sought to organize the employees in a single unit composed of employees
of Respondent's production and engineering departments, but failed to persuade the
engineering department employees to designate the Union as their representative and
that the Union then applied for recognition as the bargaining agent of the employees
in a departmental unit composed of employees in the production operations depart-
ment and simultaneously continued to organize employees in a single unit of em-
ployees in both the production and engineering departments intending to seek recog-
nition on the basis if it should be able to persuade a majority of the employees in this
unit to designate it as their bargaining agent. In other words the Union sought
recognition as the bargaining agent of production operations department employees
because only these employees had been organized. These facts are on all fours with
the facts in Glen Raven.41 However, in Wytheville Knitting Mills (cited in footnote
41) the Board respectfully disagreed with the court in Glen Raven "that the Board's
unit determination rested on extent of organization... .
The Trial Examiner believes that he should abide by and adhere to interpretations
of the Board rather than those of particular courts, other than the Supreme Court,
where there is a conflict and the Board has indicated it is not accepting the
interpretation made by the court It follows that the Trial Examiner hereby rejects
Respondent's contention that the unit claimed is inappropriate because it is based
on the extent to which employees have been organized. However, for reasons stated
in the section of this Report entitled "unit-majority," the Trial Examiner finds and
concludes that the unit claimed is not an appropriate unit for the purposes of collective
bargaining.
It is now well settled that, absent special circumstances, a clear and unambiguous
request to bargain must precede a finding that Section 8 (a) (5) has been violated 42
and Respondent contends that in the light of the entire circumstances the union
letter dated January 17, 1957 (set forth above), was not a clear and unambiguous
requl;st in that it, did not clearly set forth the unit which the Union claimed to be
appropriate. The absence of a specification as to whether the Union was claiming
or not claiming to represent employees in the programing department, in the light
of the history of this matter, lends support to Respondent's contention. On the
other hand, the facts revealing that Respondent was fully aware of the Union's
activities, especially of the persons designating the Union as their bargaining agent,
tends to support the view that Respondent knew exactly the unit claimed, even if
the phrase "Production Department" as used in the union letter of January 17, 1957,
is construed to be ambiguous. Respondent further contends that since Case No.
12-RC-52 is currently pending in the Board's Regional Office (see footnote 7) a
finding of a refusal to bargain within the meaning of Section 8 (a) (5) of the Act
,may not be made herein. (See Aiello Dairy Farms, 110 NLRB 1365.) In view
of the Trial Examiner's findings and conclusion that the unit sought is not an appro-
priate unit, the Trial Examiner is not passing upon these contentions.
In view of the foregoing and upon the basis of the entire record herein, the
Trial Examiner recommends that the allegations of the complaint to the effect that
Respondent violated Section 8 (a) (5) of the Act be dismissed.
39 Reaffirmed in N L R. B. v, Morganton Full Fashioned Hosiery Company, etc., 241
F 2d 913 (C A-4).
40 Reported in 107 NLRB 216
41 The facts herein are substantially different from the facts in the Morganton case and
from the facts in Wytheville Knitting Mills, Inc , 117 NLRB 1719
42 See Toslin Dry Goods Company, 118 NLRB 555 and cases cited therein. John A.
Klinlra d/b/a Klinka's Garage, 106 NLRB 969 and Southeastern Rubber Manufacturing
Co, Inc, 106 NLRB 989 and cases cited therein.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ultimate Findings and Conclusions
In summary, the Trial Examiner finds and concludes:
1. The evidence adduced in this proceeding satisfies the Board's requirements for
the assertion of jurisdiction herein.43
2. Local Union 349, International Brotherhood of Electrical Workers, AFL-CIO,
is a labor organization within the meaning of the Act.
3. The evidence adduced establishes that Respondent discharged Joseph DeSimone,
George H. Schwartz, Dimitry N. Alexander, Wilson Griffith, and Lloyd Gaynes, and
thereby violated Section 8 (a) (1) and (3) of the Act.
4. The evidence adduced establishes that Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed in the Act by the
aforementioned discharges and by interrogating employees as to their activity on
behalf of the Union and by threats of reprisal or force or promise of benefit and"
thereby violated Section 8 (a) (1) of the Act.
5. The aforesaid activities are unfair labor practices affecting commerce within
the meaning of Section 2 (6) of the Act.
6. The evidence adduced does not establish that Respondent in violation of
Section 8 (a) (5) of the Act refused to recognize and bargain with the Union.
[Recommendations omitted from publication.]
43 Respondent engages in Miami, Florida, in the operation of a television station, and in
the course and conduct of its business broadcasts programs originating outside of Florida,
receives and transmits news and other material from and through the facilities of Na-
tional News Service, and advertises products distributed throughout the United States.
Respondent's gross income annually exceeds $200,000.
Anderson, Clayton & Co. Foods Division and International Chem-
ical Workers Union and Local No. 635, International Chemical
Workers Union, AFL-CIO. Case No. 13-CA-2392. May 28,1958'
DECISION AND ORDER
On December 4,1957, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-engitled proceeding finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the Charging
Union filed exceptions to the Intermediate Report and supporting
briefs. Respondent filed exceptions to certain findings of the Trial
Examiner therein and a brief in support of its exceptions and also in ,
support of the recommendation that the complaint be dismissed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
120 NLRB No. 156.