Biscayne Television Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1959

125 N.L.R.B. 437 (N.L.R.B. 1959)

BISCAYNE TELEVISION CORPORATION 437
Biscayne Television Corporation and Local No. 666, Interna-
tional Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada,
AFL-CIO
Biscayne Television Corporation and Local 780, International
Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada, AFL-CIO
Biscayne Television Corporation and Motion Picture Film Edi-
tors, Local 780, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO, Petitioner and National
Association of Broadcast Employees and Technicians, AFL-
CIO. Cases Nos. 1?-CA-494, 12-CA-587, and 12-RC-348. No-
vember 30, 1959
DECISION AND ORDER
On May 5, 1959, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the 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 of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, as modified herein.
We agree with the Trial Examiner that the Respondent, through its
supervisors, Strul and Struzzieri, violated Section 8(a) (1) of the Act
by the following conduct :
a. In context with the other unfair labor practices found herein,
interrogating employees as to their union membership and activities,
requesting them to withdraw their union membership applications,
and asking them to vote against the Union.
b. Advising employees that opportunities to become a director or
to be promoted to the management level would not be as good if they
Joined the Union.
125 NLRB No. 44.
535 828-60-vol. 125-29
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Threatening a reduction in force and dissolution of the news
department if the Union were successful in the election.
d. Refusing Lipari a letter of recommendation because the Union
had filed unfair labor practice charges against the Respondent.
We further agree with the Trial Examiner that the election in Case
No. 12-RC-348, held for the three employees in the film editing de-
partment, should be set aside.' However, in so holding we do not
rely on the Respondent's conduct prior to August 12, 1958, the execu-
tion date of the consent-election agreement. We rely instead only on
Struzzieri's interrogation of Hirsch on August 18, 1958, as to what
he was going to do about the Union, and Struzzieri's reply, on being
informed that Hirsch intended to vote "No," that the decision was
"good," and that the Respondent could cut down on the film load and
let a man go .2 We find that this conduct constituted interference
with the election.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We have found, in agreement with the Trial Examiner, that the
Respondent unlawfully discriminated against. Cal Marlin, Charles
Filer, and Joseph Lipari by discharging them, and against Jay
Weand by demoting him. However, it appears that since the date of
the discharges and the demotion the Respondent may have perma-
nently altered its method of operations, so that it no longer requires the
same number of employees in its news department as it did prior to
the discharges and the demotion. It is therefore possible that some of
these employees might have been affected in such a curtailment of
operations, absent the Respondent's unfair labor practices. The
record, however, furnishes no basis for determining the order in
which these employees might have been discharged or demoted. Un-
der these circumstances, we shall order the Respondent to offer these
employees immediate and full reinstatement to their former or sub-
stantially equivalent positions,3 without prejudice to their seniority
and other rights and privileges, and in the event that there is insuf-
ficient work for Marlin, Filer, and Lipari, or in the event that Weand's.
former position has been discontinued, we shall order the Respondent.
to dismiss, if necessary, all persons newly hired after the Respondent's
discrimination. If there is not then sufficient work available for
them, all available positions shall be distributed among all of the.
eligible employees without discrimination against any employee be-
1 In Case No . 12-RC-347, the employees who were the subject of 8(a) (3) charges herein
voted in a simultaneous election held for the employees in the film -editing department.
That election is not in issue in the instant proceeding.
2 The Great Atlantic and Pacific Tea Company , 101 NLRB 1118, at 1120-1121.
8 The Chase National Bank of the City of New York , etc., 65 NLRB 827.
BISCAYNE TELEVISION CORPORATION 439
cause of concerted activities, in accordance with the system of sen-
iority or other nondiscriminatory practice heretofore applied by the
Respondent in the conduct of its business. The Respondent shall
place those employees, if any, for whom no employment is available,
on a preferential list, with priority in accordance with such system of
seniority or other nondiscriminatory practice heretofore applied by
the Respondent in the conduct of its business, and thereafter offer
them reinstatement as such employment becomes available and before
other persons are hired for such work 4
We shall also order the Respondent to make whole those employees
against whom it has discriminated for any losses that they may have
suffered because of the Respondent's discrimination, by payment to
each of them of a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on a preferential
list, as the case may be, less his net earnings during said period,5 the
backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. TT7. Woolworth Company.6 Earnings in one
particular quarter shall have no effect upon the backpay liability for
any other such period. We shall also order the Respondent to pre-
serve and make available to the Board, upon request, payroll and
other records necessary to determine employment rights and the
amount of backpay due.
As it is possible, however, that one or;nore of these employees might
have been discharged in the reduction of the work force even if the
Respondent's selection has been made on a nondiscriminatory basis,
this possibility will be taken into consideration in determining the
amounts of backpay due to these employees, in compliance with our
Order herein?
ORDER
Upon the entire record in this 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, Biscayne Tele-
vision Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Locals Nos. 666 and 780, Interna-
tional Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada, AFL-CIO, or
in any other labor organization of its employees by discharging, re-
fusing to reinstate, reducing wages, and changing jobs or in any other
* Cleaver-Brooks Mfg. Corporation, 120 NLRB 1135, 1136-1137.
5 Crossett Lumber Company, 8 NLRB 440.
9 90 NLRB 289.
7 Cleaver-Brooks Mfg. Corporation, footnote 4, supra.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner discriminating against them in regard to hire or tenure of
employment or any term or condition of employment.
(b) Interrogating its employees as to their union membership and
activities, or requesting them to withdraw their union membership
applications, or asking them to vote against the Union, in any manner
which tends to restrain, coerce, or interfere with them in the exercise
of their rights guaranteed in Section 7 of the Act, and advising em-
ployees that opportunities to become a director or to be promoted to
the management level would not be as good if they joined the Union;
threatening a reduction in force and the dissolution of the news de-
partment in reprisal for selection of the Union; refusing employees
letters of recommendation because the Union filed unfair labor prac-
tice charges against the Respondent, or in any other manner inter-
fering with, restraining, or coercing its employees in the exercise of
the right to self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, 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 as guaranteed in Section 7 of the
Act, and to refrain from any and all such activities, except to the
extent that such rights 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.
(c) Interfering with its employees' rights to an uncoerced Board
election.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Cal Marlin, Charles Filer, Joseph Lipari, and Jay Weand
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges previously enjoyed and make each whole for
any loss of pay each has suffered by reason of the discrimination
against him, in the manner set forth in the section in the Intermediate
Report entitled "The Remedy," as modified herein.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the right to reinstatement under the terms of this Recommended
Order.
(c) Post at its station in Miami, Florida, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region,•shall, after
e In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
BISCAYNE TELEVISION CORPORATION 441
being duly signed by Respondent, be posted immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter in
conspicuous places where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the aforesaid Regional Director in writing, within 10
days from the date of this Order, what steps the Respondent has taken
to comply herewith.
IT IS FURTHER ORDERED that the election held on August 22, 1958,
among employees in Respondent's film-editing department be set aside
and that Case No. 12-RC-348 be remanded to the aforementioned
Regional Director for the Twelfth Region for the purpose of conduct-
ing a new election at such time as he deems that circumstances permit
the free choice of a bargaining representative.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
IVE WILL NOT discourage membership in Locals 666 and 780,
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and Canada,
AFL-CIO, or in any other labor organization of our employees,
by discharging or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT interrogate our employees as to their union mem-
bership, or request them to withdraw their union membership
applications, or ask them to vote against the Union, in any man-
ner which tends to restrain, coerce, or interfere with them in the
exercise of their rights guaranteed under the National Labor
Relations Act, as amended; advise employees that opportunities
to become director or to be promoted to the management level
would not be as good if they joined the Union; threaten a reduc,
tion in force and dissolution of the news department in reprisal
for selection of the Union; refuse employees letters of recom-
mendation because the Union filed unfair labor practice charges
against us; or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organization, to join or assist the above-
named Unions, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection, and 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 authorized by Section 8(a) (3) of the Act.
WE WILL NOT interfere with our employees' rights to an unco-
erced Board election.
WE WILL offer Cal Carlin, Charles Filer, Joseph Lipari, and
Jay Weand immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges previously enjoyed by them
and make them whole for any loss of earnings resulting from our
discrimination against them.
All our employees are free to become or remain members of the
above-named or any other labor organization.
BISCAYNE TELEVISION CORPORATION,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF TILE CASE
This proceeding, with all parties represented, was heard before the duly desig-
nated Trial Examiner in Miami, Florida, on November 12, 13, 14, 15, and 17, 1958,
on the amended complaint of the General Counsel and the amended answer of
Biscayne Television Corporation, herein called the Respondent. The issues litigated
were whether the Respondent violated Section 8(a)(1) and (3) of the Act and
whether an election conducted on August 22, 1958, should be set aside and a rerun
election be held. The parties waived oral argument. A brief has been received
from counsel for the Respondent and has been duly considered.
Upon the entire record, and from my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Biscayne Television Corporation, a Florida corporation, has its principal office
and place of business in North Bay Village, Miami, Florida, where it is now and
at all times material hereto has been engaged in the business of radio and television
broadcasting. Its range includes south Florida and adjacent United States territory
and foreign countries . Its programs are sponsored by local and nationally sold
products. It utilizes the services of both the Associated Press and the United
Press. Its annual gross revenue is in excess of $500,000. I find , based on these
facts which Respondent admitted in its answer , that the Respondent is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local No. 666 , International Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada, AFL-CIO (herein-
after referred to as Local 666 and the Union ), and Local 780, International
Alliance of Theatrical Stage Employees and Moving Picture Machine Operators
BISCAYNE TELEVISION CORPORATION 443
of the United States and Canada, AFL-CIO (hereinafter referred to as Local 780
and the Union), are labor organizations within the meaning of Section 2(5) of the
Act.
M. THE UNFAIR LABOR PRACTICES
A. Organization of the film-editing and news department employees; interference,
restraint, and coercion
Biscayne Television Corporation, also known by its call letters WCKT, went into
operation on August 29, 1956.
Cal Marlin, a photographer-reporter , became employed by the Respondent in
September 1956. His alleged discriminatory discharge will be discussed in detail
hereinafter . Marlin testified that sometime in May 1958, on behalf of other em-
ployees as well as himself, he wrote a letter to Arthur Bigman , business agent of
Local 666, inquiring about the Union. As a result, a meeting was held on June
29 at the Biscayne Terrace Hotel in Miami, attended by Bigman as well as Marlin,
Jay Weand, Charles Filer, Ben Silver, and Joe Lipari from Respondent's news depart-
ment and Peter Barton , Charles Folds, and Herb Hirsch from Respondent's film-
editing department. Bigman explained the purposes and operation of the Union. A
question session followed, at the conclusion of which all of the employees who were
present signed applications for membership in the Union.
On July 11, Bernard Mamet, attorney for the Union, spoke to Charles Kelly,
station manager of WCKT, on the long-distance telephone from Chicago, Illinois.
Mamet advised Kelly that the Union represented all of the photographer-reporters
in the news department and the film editors in the film-editing department and
requested recognition of the Union.
Shortly thereafter Kelly called Frank Struzzieri, Respondent's film buyer and
supervisor of the film-editing room, and Eugene Strul, news director and supervisor
of the photographer-reporters, to his office and told them of the telephone call he
had just received from Mamet.
Struzzieri testified that Kelly asked if there was any truth to the representations
made by Mamet. Struzzieri told Kelly he did not know but that he would find out.
Strul testified that Kelly asked him to inquire among the employees in order to find
out if the news department was 100 percent organized and further to inquire what
motivated the employees' desire to join the Union.
Struzzieri lost no time in carrying out Kelly's orders. He admitted that he
called Peter Barton at the latter's home on Sunday and asked if he had signed a
union card. Barton told him that he had, as had employees Charles Folds and
Herb Hirsch. Struzzieri also admitted that he told Barton he was very disappointed
and that he did not think Barton had to join a union. Barton told Struzzieri he felt
he had to go along with the employees in the news department but that he would
look into the matter very thoroughly before he made any further move. Struzzieri
asked Barton if he would like to discuss the Union further with him and Barton
said he would.
On July 14, Barton saw Struzzieri in his office where they again talked about the
Union. Struzzieri repeated that he was disappointed to think that Barton had to
join the Union, particularly since Respondent had given him many benefits including
hospitalization, free insurance, and periodic pay raises in accordance with his ability.
Struzzieri beseeched Barton to go home and talk over with his family the question
of joining the Union before he made up his mind. Barton said he would.
Charles Folds, a film editor in the Respondent's employ for approximately 8
months, testified that he was called into Struzzieri's office on July 14. Struzzieri
told Folds he did not have the right to question him about the UP-ion, and that he
did not have to answer any questions. Struzzieri wanted to know Folds' reason
for joining. Struzzieri called to Folds' attention their correspondence when Folds
applied for employment with the Respondent, noting that Folds did not show any
intention of wanting to join the Union but rather indicated that he would like to
become a director or manager at station WCKT. Struzzieri told Folds his chances
of becoming a director or being promoted to the management level would be hurt
if he joined the Union. Struzzieri questioned Folds as to the happiness of Herb
Hirsch, the third employee in the film-editing department. Struzzieri told Folds
that if the Union was successful in organizing the employees there could be a cutback
in the use of film with a resulting decrease in employees and that if Hirsch was
unhappy he could be let go.
On July 17 Folds was again summoned to Struzzieri's office. Struzzieri inquired
if he had made up his mind as to whether or not he was going to join the Union.
Folds replied that he had thought it over and that he was not going to join.
Struzzieri told Folds that Kelly would be very happy to hear that . He volunteered
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he did not believe that Barton was going to join either and mentioned that
Herb Hirsch could go right ahead and join the Union. Folds, who had been in
the Respondent's employ approximately 31 months, testified that he then inquired
about a pay raise, mentioning that the film load was getting heavy and he thought
he was deserving of one. Struzzieri said, "I don't know about a raise now, but
after this all blows over I'll talk to you and then you'll probably get one, after it
blows over."
Folds further testified that about 2 hours before the Board election on August
22 Struzzieri accosted him in the film-editing room and instructed him "to be sure
and mark [your] `X' in the neither `box' on the ballot."
Herbert Hirsch, an employee in the film-editing department for approximately 9
months, testified that he was summoned to Struzzieri's office on July 14. Struzzieri
told Hirsch he did not know if he had the right to ask him a certain question and
that if Hirsch wanted to leave, he could do so. Hirsch told Struzzieri he would
stay. Struzzieri asked Hirsch what made him decide to join the Union. Hirsch
replied that he had not yet decided to join any union because he had no idea
what it had to offer and until he knew that, he could not say whether or not he would
join. Hirsch explained to Struzzieri that the only reason he would ever join a
union was for the purpose of getting more money in his job and if he felt that the
Union could get him a sustained and substantial increase he would join, otherwise
he would not. Struzzieri also told Hirsch that while his chances of getting into
management were good they would not be as good if he joined the Union. Hirsch
further testified that on August 18 Struzzieri stopped him in the hallway at the
station, and inquired if he had yet made up his mind as to what he was going to do
about the Union. Hirsch replied that in thinking about the problem he had decided
that under the existing conditions, that is to say, with his two fellow employees
deciding against the Union he would also vote "no." Struzzieri told Hirsch his
decision was "good." He mentioned that Respondent could cut down on the film
load and let a man go.
Struzzieri admitted on cross-examination that after he talked with Barton, he
called Kelly at his home and reported that the three men in the film-editing depart-
ment had signed the union membership application cards. Struzzieri also admitted
that in subsequent conversations with Kelly on July 14 and 15 he made specific
mention of the fact that he had been talking the employees out of joining the Union.
Further Struzzieri admitted that in relating his previous experience with unions to
his employees he told them that when he was employed with the National
Broadcasting Company in New York, the employees had voted to join the union but
after negotiations had been completed, he did not receive any benefits from the
union, that as a matter of fact he had to take a pay cut. He also stated he told
the men he did not care to have a union represent him because if he thought he
was worth a salary of $200 a week he did not want the union to dictate to him that
he could only earn $100 a week. He advised the employees of the existing law
in the State of Florida with respect to union contracts and told them that since a
closed shop was not permitted in Florida they did not have to become members of
the Union. He admonished them to go home and think the matter over, akd
discuss it with their parents.
Struzzieri denied that he talked with Hirsch on July 14. He testified he talked
with Hirsch on August 18 when the latter stopped him in the hallway at the studio.
Hirsch, according to Struzzieri, asked for a raise and stated he would have to go
on the side that gave him most money. Struzzieri testified he told Hirsch he was
not free to discuss union activity and Hirsch would have to go back and talk it over
with his fellow employees. Struzzieri further testified that on August 22, the day
of the Board election, Hirsch again stopped him in the hallway and asked for a
raise. Struzzieri told Hirsch there was nothing he could do at the time, that he
was not free to talk about a raise, and that Hirsch volunteered that since Barton
and Folds indicated they would vote against the Union he would undoubtedly go
along with them. Struzzieri stated he merely shrugged his shoulders and told
Hirsch he was not free to discuss anything with him and walked away. Struzzieri
denied that he told Hirsch that all Respondent had to do was to cut down the
film load and it could then let someone go. He further denied that he ever made
any remark similar to that to any employe,, and he also denied that in his conver-
sation with Folds he ever mentioned that Folds would probably get a pay raise
"when this blows over."
Struzzieri did not impress me as a credible witness. On several material matters he
failed to testify in a forthright manner. He was evasive, displayed a lack of candor,
and tried to fence with the General Counsel in his answers. He testified in a manner
which indicated to me more of a concern not to give answers unfavorable to the
BISCAYNE TELEVISION CORPORATION 445
Respondent than to disclose the true facts as he knew them. Folds and Hirsch
impressed me as honest and sincere witnesses. They testified in a calm, assured,
and specific manner. I find that the conversations took place substantially as
testified to by Folds and Hirsch.
Strul embarked on a regular campaign of interrogation and persuasion against
the Union shortly after Kelly requested him to find out if all the news department
employees were in favor of the union and what motivated them to join. Thus,
Charles Filer, a photographer-reporter in the Respondent's employ from September
1957 until August 12, 1958, and assigned to the 2 to 11 p.m. shift, testified that
either on July 11 or 14 Strul came into the editing room at the station where he
was working, and told him that Kelly was upset and unhappy about the men applying
for membership in the Union. Strul requested Filer to withdraw his application,
mentioning that if he did not, his job would be in jeopardy. Strul also told Filer
that there were plans for reorganizing the news department, to improve conditions,
to provide for periodic pay increases, and if the employees stuck with the station
and forgot about the Union, they would all benefit.
Filer testified that in a second conversation several weeks later, Strul asked if
he had thought over what they had previously talked about and what he planned
on doing. Strul told Filer that one of the men had withdrawn his application and
another was planning to. He again asked Filer if he would withdraw his applica-
tion. Strul reiterated management's displeasure with the "whole thing" and stated
that if Filer did not withdraw his application for membership in the Union, his
job was in jeopardy. During the conversation, Strul mentioned that news depart-
ment employees Jay Weand and Cal Marlin were the ringleaders and the instigators
of the union organization among the employees.
Filer was discharged on August 12.1
Filer also testified that while visiting the station about a week before the Board
election, he met Strul in one of the reception rooms. Among other things, Strul
told Filer that it did not concern him much whether he withdrew his application for
membership in the Union, but that management would like him to vote "no" in the
Board election.
. Joseph Lipari was employed by the Respondent as a photo-lab technician, under
Strul's supervision from November 4, 1957, until his discharge on August 12, 1958.
Lipari testified that July 14, 1958, was the first time that Strul came up to the lab
to see him since he started his employment. Strul told Lipari that he heard about
the Union, and that management "did not like the idea of this union." When
Lipari could not understand why and told Strul that "it has been a proven fact that
unions and management can get along," Strul retorted, "that is not the way we feel
about it." Strul asked why Lipari wanted a union. He replied for job and pay
security. Strul, according to Lipari, said he did not have a thing to worry about
because Strul knew he had been doing a good job. Strul also inquired if Lipari
could repair freezo-units.2 Lipari answered that he repaired projectors while in the
service and thought he could handle the freezo-units. Strul also told Lipari that if
the Union was successful in organizing Respondent's employees, he was pretty sure
it would result in a reduction in force and Lipari would be laid off. The conversa-
tion was concluded with Strul admonishing Lipari to think over what he said.
Lipari was discharged on August 12. About a month later, Lipari in the course
of applying for jobs, returned to the station and asked Strul for a letter of recom-
mendation. Strul told Lipari that he would have to see Kelly, but the latter was
not there at the time. Lipari wanted to know what the "big deal" was, and why
Strul would not give him the letter, since he had given one previously to Carl Marlin.
.Strut replied that Marlin obtained his letter before the Union filed charges against
the Respondent. Lipari did not get a letter of recommendation.
Jay Weand commenced his employment with the Respondent in July 1956 as a
news photographer.3 In May 1957 his title was changed to chief photographer, in
which capacity he was the liaison between the news director and the other photog-
raphers so far as transmitting orders and instructions. In addition he ordered and
maintained all photographic equipment, he ordered and processed films, he edited and
supervised the editing of film in order to obtain the best story possible from the shot
3 A separate section of this report will be devoted to the alleged discriminatory dis-
charges of Filer, Marlin, and Lipari and the alleged discriminatory treatment of Jay
Weand.
a This is a lighting unit used by cameramen working indoors. Previously such repair
work on freezo-units was being performed by Jay Weand.
a Weand testified that the photographers in the news department did not become
known as photographer-reporters until Strul became the news department director.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
film, and from time to time went out to shoot film stories. In June 1958, for reasons.
which will be discussed fully hereinafter, Weand was relieved of his liaison duties.
As heretofore noted Weand attended the Biscayne Terrace Hotel meeting on
June 29 and signed an application for membership in the Union.
Weand testified that at about the time the employees were engaged in union
organization, Strul was recovering from an accident and Weand drove him to and
from the station daily. Their conversations at various times veered toward the
Union. Weand further testified that Strul said management had received word that
all of the employees were interested in the Union and he did not think it could do
them any good. After some further talk on the merits of the Union, Strul told
Weand "he was afraid that if the Union came in [they] would dissolve the news
department."
Cal Marlin, who was instrumental in arousing employee interest in the Union
and who solicited the membership of new employee Dick Lobo,4 testified that while
he was editing film on July 14, Strul came to where he was working and said he
was instructed to talk to Marlin and would do so within a day or two.
On July 15 Strul talked to Marlin in the station rehearsal hall. Marlin testified
that Strul told him the Respondent was very much against the Union, that the em-
ployees were making a bad mistake by associating with the Union, and that if the
employees insisted on being represented by the Union it would mean a reduction in
force in the news department and could probably result in the dissolution of the
news department so far as photography was concerned. Strul also told Marlin that
since he knew he was the ringleader in the organization for the Union, he was not
going to attempt to talk him into anything.
Richard Lobo was employed in the Respondent's news department from July 7
to September 3, 1958, when he entered the Army. Lobo testified that he was ap-
proached by Marlin a few days after he started his employment and asked if he
would consider making an application for union membership along with the other
men who had already done so. Marlin left the application with Lobo, who pondered
the question several days and then sent it directly to the union office in Chicago.
Lobo further testified that within several days and to be specific on July 14, Strul
met with him in the property room adjoining the main studio at the station and in-
quired if he was displeased with the station and the way his work was going; and
whether he had any gripes or complaints about his work to date. Lobo answered
that he was very pleased with what he was doing and that he was being treated very
fair. Strul told Lobo he found out that he cast his lot with the other employees
in the news department and applied for membership in the Union. Upon Lobo's
affirmative reply, Strul said he was very discouraged with Lobo's actions, because
he felt Lobo should have come to him if he had any complaints or gripes about the
operations. Lobo told Strul he did not have any complaints, that he had nothing
against Respondent or Strut personally, but thought he would benefit by applying
for union membership.
Lobo testified that about a week later Strul approached him in the hallway ad-
joining the news department and inquired if Lobo was not aware that Respondent
was in quite an uproar about the union activity going on in the news department.
Strul continued that Respondent was very upset about the situation and it was con-
templating either a major reduction in force or abolishing the news operation. He
said that if he was ordered to make a cutback in staff he did not know who would be
let out. It might be the more experienced men or those at the "bottom of the list."
Strul reminded Lobo that he was on the bottom of the list.
About the first week in August, Strul engaged Lobo in another conversation.
Lobo testified that Strul asked if he knew how things were going. Lobo replied that
he did not, because he did not know what Strul was referring to. Strul then said
Lobo would be happy to know that two men from the film-editing department and
two men from the news department had reconsidered and were thinking of with-
drawing their applications for union membership. Strul remarked that the trend
was toward nonunion. He inquired if Lobo would not reconsider his decision re-
garding the application and ask for its return.
Strul then made some reference to "troublemakers" in the department. Strul
asked if Lobo knew who his supervisor was. When Lobo answered that it was
Strul, the latter remarked that Lobo did not have to take any direct orders from
Weand. Strul inquired if Weand was "pressuring" Lobo and telling him what to do.
Lobo also testified that about a half hour before the Board election on August 22,
Strul talked to him in the hallway adjoining the rehearsal room in which the election
took place. Strul asked Lobo if he knew that someone had gone to Kelly that day
and had attempted to make a "deal"; that another man told him he was not sure
t Lobo commenced his employment with Respondent on July 7, 1958.
BISCAYNE TELEVISION CORPORATION 447
of his vote; and that the employees in the film-editing department were 100 percent
against the Union and would vote that way. Lobo replied that he was not aware
of all of this and had not yet made up his mind how he would cast his ballot. Strul
finally asked Lobo if he would not reconsider and come on Respondent's side.
Ben Silver, a photographer-reporter in the news department for about a year and
a half, testified that several weeks after the union organization meeting of the
employees, Strul asked him if the information he had, that 100 percent of the news
department employees were represented by the Union, was correct. Silver also
testified that about a week later he inquired of Strul what would happen if the men
voted in favor of the Union. Strul replied that he was not sure but it might mean
the end of the news department "as we know it." Silver and Strul had several other
conversations regarding the Union, in one of which Silver asked whether any men
would be fired or laid off and Strul answered "possibly."
Subsequent to the Board election Strul told Silver he was surprised that he voted
for the Union since he had the impression from their previous conversations that
Silver favored the Respondent.
Strut admitted questioning the employees in the news department about their
applications for membership in the Union, and what motivated them to do this.
He also admitted that he asked various employees to reconsider their applications
and in explanation stated he felt they could not derive any benefits from the Union
which they were not already receiving from the Respondent.
Strul denied that he told Filer his job was in jeopardy if he continued with his
union activity and that he had plans to enlarge the news department.
Strul denied that while talking with Lipari he made any statement that would
convey the meaning that Respondent was going to lay off any employee and more
specifically Lipari, because of union activity.
With regard to Weand's testimony, Strut testified that they had a few brief
exchanges regarding the Union in their trips to and from the studio. He denied
that he told Weand that if Kelly could convince Nils Trammel, Respondent's presi-
dent and general manager, the news department would be abolished by Kelly if
the Union was successful. Further, he categorically denied that he ever entertained
the idea of abolishing the news department.
Strul testified he was aware that Marlin was one of the ringleaders in the union
activity and that was one of the reasons he did not talk to Marlin until July 15.
He denied he told Marlin the Respondent was against the Union and would cut back
the news department if the Union organized the employees.
Strul testified that Silver continually questioned him about what was going
to happen and what Respondent would do because of the union activity among the
employees. He stated he told Silver he had no knowledge of what was going to
happen and that nothing could be done about the union activity. Strul denied
he told Silver he was not sure of what was going to happen but that it might be
the end of the news department "as we know it."
Concerning Lobo's testimony, Strul denied that he said anything about Respondent
being in an "uproar" over the union activity of its employees, or that a cutback was
in the offing if such activity continued and that Lobo might be a victim because he
was on the bottom of the list.
I do not credit Strul's denials. From his demeanor on the witness stand, he did
not impress me as a credible witness. His testimony was inconsistent in several
respects and was lacking in candor. I have the definite impression that Strul
did not disclose the true facts as he knew them, but rather was concerned primarily
with giving answers most favorable to his employer. I find based on the testimony
of Lobo, Lipari, Marlin, Weand, Filer, and Silver, which I credit, that Strul engaged
in the conversations as testified to by them and made the statements attributed
to him.
On the basis of the foregoing and the record as a whole, I find that Strul and
Struzzieri exceeded the permissible "free speech" limits set forth in the Act. I
further find that Respondent by the conduct of Strul and Struzzieri interrogating
the employees as to their union membership and activities; 5 advising employees
5 While interrogation is not unlawful per se, its legality depends, as the Board stated
in Blue Flash Express. Inc., 109 NLRB 591, 593, "whether, under all the circumstances,
the interrogation reasonably tends to restrain or interfere with the employees in the
exercise of rights guaranteed by the Act." In Blue Flash it was pointed out by the Board
that the interrogation had a legitimate purpose, was accompanied by assurances against
reprisals , and occurred in an atmosphere free from hostility to unions. Here , the interro-
gation did not stand alone but occurred in a context of threats, promise of benefit, and
requests to withdraw union membership applications and to vote against the Union. Such
interrogation is coercive.
-448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that opportunities to become a director or to be promoted to the management level
would not be as good if they joined the Union; threatening a reduction in force and
dissolution of the news department "as we know it"; requesting employees to with-
draw their union membership applications; asking employees to vote against the
Union; and refusing Lipari a letter of recommendation because the Union filed
unfair labor practice charges against the Respondent, interfered with, restrained,
and coerced its employees in the exercise of their statutory rights in violation of
Section 8(a) (1) of the Act.
B. The discharges on August 12, 1958
The complaint as amended at the hearing alleges that Respondent did select for
discharge Marlin, Filer, and Lipari, or otherwise decided to reduce the number of
its employees for the reason that the employees had authorized the Union to
represent them for purposes of collective bargaining or had engaged in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection.
The Respondent's answer denies the said allegation and affirmatively avers that it
discharged the employees because it is economically unsound to retain six employees
to do work that could be performed by three.
Following its request to bargain made by Mamet on July 11 in his telephone
conversation with Kelly, the Union on July 14 filed petitions for certification of
representatives in Cases Nos. 12-RC-347 and 348 on behalf of the employees in
the news department and film-editing . department, respectively.
As previously found, contemporaneously with the Union's request to bargain,
the Respondent embarked on its campaign of interference, coercion, and threats of
loss of jobs to individuals, as well as the overall threat of dissolution of the news
department "as we know it," which it continued up to a half-hour before the Board
election.
On August 8, a conference was held to discuss stipulations for certification upon
consent election in the above-enumerated cases, attended by Alfred McCarthy,
attorney for the Respondent, Mamet, attorney for the Union, and representatives
of the various parties, including Kelly and Strul for the Respondent and Board Field
Examiner Strickland. While oral agreement was obtained on the appropriate unit,
the payroll period for eligibility (August 2, 1958), and the date of the election
(August 22, 1958), Kelly did not sign the stipulations at the meeting, but asked
for the weekend to think over whether the positions of several employees should be
included in the unit. The Respondent furnished a list of eligible employees to vote
in the election which included Barton, Folds, and Hirsch in the film-editing depart-
ment and Lipari, Weand, Marlin, Filer, Silver, and Lobo in the news department.
By letter dated August 12, McCarthy sent Strickland the signed stipulations 6 and
noted that, "the list of eligible employees in both cases which was furnished to you
and the associations' representatives last Friday remains unchanged."
On the morning of August 12, without prior notice to the employees involved,
without discussion with the Union even though the parties were together at the
meeting on August 8 as described previously, and in spite of McCarthy's notation
regarding eligible employees in his letter above, the Respondent terminated the
services of Marlin, Filer, and Lipari.
Lipari testified without contradiction, that on August 12 he was called into the
station by Strul, who told him he did not like the job he had to do, but that Marlin
and Filer were also being laid off and Lipari was handed a termination notice.
Lipari said, "I guess this comes from union activity," which Strul denied. Lipari
asked Steil how he accounted for Marlin being laid off rather than Lobo since Marlin
had much more seniority. Strul answered that Marlin did not write, whereas
Lobo did.
Filer, who was employed on the 2 to 11 p.m. shift, testified without contradiction
that about 9 a.m. on August 12, Strul's secretary called him at home to come right
out to the station. Upon arrival, Filer was given a termination notice, and a check
for 2 weeks' pay in advance.? Strul told Filer he was afraid this was coming up
and hated to see him go, mentioning that he did not know what the future would
hold or what Respondent could promise him, but he would be given the first
opportunity if it ever hired back again.
a They already had been signed at the August 8 meeting by the union representatives.
* All three employees received 2 weeks' pay in advance with the termination notice.
It should be noted that August 12 was a Tuesday. Respondent's payroll period begins
on Monday, ends on Saturday and the employees were paid every other Thursday.
BISCAYNE TELEVISION CORPORATION 449
Filer inquired if there was anything wrong with his work. Strut said that hence-
forth all photographers would be required to have a college degree in journalism.
Filer also testified that prior to August 12 he had no notice, nor was he given any
idea that he was to be discharged.
Marlin testified that Strut handed him an envelope containing the termination
letter.8 Strut told Marlin he was sorry but "that is the way it was." Strut also
told Marlin he would have first consideration for any new job.
It is worthy of note that the original draft of the notice of termination was dic-
tated jointly by Kelly and McCarthy in the latter's office on August 8, before they
sat down to meet with Board Field Examiner Strickland and the Union's repre-
sentatives, where as previously found they discussed the employees eligible to vote
in the Board election and included Marlin, Filer, and Lipari in this category.
In support of its defense, it is the Respondent's main contention that with the
coming of Wayne Fariss to the station on July 1, 1958, to telecast the news, "face
to face," the use of the "rear screen" was abandoned causing a drop in the number
of films used, and since most of the film was shot for the 6:30 news program (Fariss'
spot), it was an economic waste to keep five photographers in Respondent's employ.
Thus Kelly testified that in the middle of June he discussed with Strul the fact
that Respondent had a newcaster (Fariss) which made it possible to go forward
with their plan to lay off Marlin, Filer, and Lipari and it was decided to do this when
the news department completed its vacation schedule and when it finished filming the
documentaries.
Strut testified that the joint decision participated in by Kelly and himself, "to
definitely fire was certainly undertaken" about 2 weeks before July 17 when Kelly
went on vacation. Strul went on to testify that in April 1958 "the idea [itself] was
firmed up" that if Respondent could get the right man, a personality type, to do the
news show it would cut back on the photographic material and definitely make the
cutback.
In spite of Strut's testimony above and the fact that Respondent claims to have
known in the middle of June that it would obtain Fariss' services starting July 1,9
it nevertheless hired a replacement for photographer Tom Collins who quit the last
week in June or the first week in July. Strul's testimony in this regard is quite
confused and is as follows:
Q. Now, how many photographer-reporters did you have in April of '58?
A. In April of '58?
Q. Yes; you had Collins-
A. Well, there were five photographer-reporters at that time, I believe. We
had lay Weand, and Tom Collins then Silver, Cal Marlin.
Q. And you had a need for each of those men?
A. In April; yes.
8 The notices of termination were similar for all three employees, except that in the case
of Marlin it contained a clause dealing with vacations and vacation pay. It read as
follows :
AucusT 12, 1958.
NOTICE OF TERMINATION TO: Mr. Cal Marlin
For some months, as you probably know, we have been giving serious considera-
tion to cutting down on the amount of photography to be used in our newscasts. In
fact when we engaged our present 6:30 newscaster we had this in mind and since
that time have cut down on the amount of photography used in connection with
news programs.
Inasmuch as the company has definitely decided on this change in its newscasting
programs it is not economical to continue the present extent of the photographic
activity nor the present number of personnel working on photography in the news
department.
Accordingly we find it necessary to terminate your services with the company
effective today. However, in accordance with our practice we are including in your
paycheck delivered herewith 2 weeks' pay in lieu of 2 weeks' notice. Also included
in your check is an allowance for your vacation pay in lieu of the vacation which
you have not taken this year.
We shall be glad to give you first consideration in connection with any vacancies
which may occur in the photography section of the news department.
GENE STaun, News Director.
° See, however, Strul's memorandum to Kelly "News Room Reorganization," dated
May 23, 195 8, referred to infra, wherein Fariss' name is mentioned as a possible TV 7
newscaster.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When did Collins leave?
A. Collins left on the 1st-let's see-either it was the last week of June
or the first week of July.
Q. And he was replaced by Lobo, at that time wasn't he?
A. Dick Lobo, yes.
Q. And you had a need for Lobo, and obviously you liked him?
A. Yes.
Q. So that, if he was hired to replace Collins at the beginning of July, then
obviously you had a need at the time for five photographers?
A. Yes.
Q. When did you stop having the need for the five photographers?
A. I would say this. That, when we knew that we were not going to have a
need for the five photographers, at that time, we had a documentary series go-
ing at that time, and we then knew of the fact.
Q. Can you give us the date, Mr. Strul, what date that was when you stopped
having a need for the five photographers?
A. We actually had no need for five photographers at that time.
Q. What time was that?
A. At the time of the hiring of Dick Lobo.
Q. And for how long prior to that time did you not have a need for five
photographers?
A. In June.
There is also confusion in the record as to the use of the rear screen in Fariss'
newscasts and the future use of the news department staff. In a memorandum to
Kelly dated May 22, 1958, Strul, reporting on his observations of the "WTVT,
Tampa, News Operations," the station where Fariss had been doing the 6:30 news-
casts, stated, "WTVT is now considering the use of rear screen on their newscasts.
This is something we have put to good use. We are currently revising our rear
screen use policy which requires the rear screens to be pertinent to the story or to
replace film."
Although, at one point, Strul testified that in April 1958, "the idea was firmed up"
that if Respondents obtained the services of a personality type newscaster, it would
cut back on the photographic material and definitely have a reduction in force in
its news department, it is significant that on May 23, 1958, in a report to Kelly on
the subject of "News Room Reorganization," he had among other things, the fol-
lowing to say:
I recommend continued use of the rear screen at 6:30 but with the basic
operation in the news room. To accomplish this I propose the teaming of two
newsmen . . . one functioning out of the news room . . . the other in front
of full rear screen.
The 6:30 news team of be comprised of either someone like Wayne Fariss
and Charles Baxter, Baxter and Barber or if preferred Brown and Baxter which
would require a change in the early morning newscaster. I am not eliminating
the possibility that Frank Fredrick might work out well in a news team ar-
rangement. However, the new man-Fredricks, Fariss or whoever is selected
should do our 11 p.m. news out of the news room.
I recommend that all changes be made at the same time with one eye towards
publicizing it as a big news reorganization plan for TV 7.
We have already begun putting our photographers on beats. Whenever they
are not covering an assignment they will report to their beats in search of news-
photographic or otherwise. If the story is good we plan to refer to our city
hall reporter, our police reporter, etc. And possible we will use a rear screen
of that reporter in connection with the story. We hope that this will lead
to a flurry of news tips and a fresh TV 7 news approach.
Thus it appears clear from Strul's recommendations to Kelly, made less than 3
months before the terminations, and prior to the advent of union organization among
the employees, that a reduction in force in the news department was not in con-
templation, but on the contrary the focus was on building up "a fresh TV 7 news
approach" with the use of Fariss and other newscasters, the continued use of the
rear screen technique, and the reassignment of photographer-reporters to keep
.searching for news-photographic or otherwise.
Significantly, there is no evidence in the record to show why Respondent did not
act on the recommendations to build up "a fresh TV 7 news approach."
While Respondent did adduce some evidence to show a decrease in the use of
film on the 6:30 p.m. newscast, since Fariss started the show on July 1, and
BISCAYNE TELEVISION CORPORATION 451
assuming arguendo that this situation would warrant an inference that economic
conditions necessitated layoffs, I am not persuaded that economic conditions moti-
vated the layoffs on August 12. A justifiable ground for dismissal is no defense if
it is a pretext and not the moving cause. See N.L.R.B. v. Solo Cup Co., 237 F. 2d
521 (C.A. 8); L. C. Ferguson, et al., dlbla Shovel Supply Co., 118 NLRB 235,
enfd . 257 F. 2d 88 (C.A. 5).
In addition to the evidence of Respondent's hostility toward the Union, and its
overwhelming efforts to get its employees to withdraw their applications for mem-
bership in the Union, there are a number of factors which lend persuasive support
to the theory that the layoffs were not motivated by economic considerations.
If a reduction in force in the news department had been decided upon in June,
as Kelly and ^Strul testified, would Strul have thought in July of shifting Marlin
to cover the hours from midnight to 9 a.m., "like our competition did" so as to
afford the Respondent "some protection along that line" since it did not have
stronger coverage during those hours? 10
Moreover, would Strul have told Lipari 2 weeks before the latter was discharged,
that he would not transfer him to the day shift because he did not think Lipari would
be more valuable to the Respondent in the production of slides if he worked morn-
ings, since he was planning on having more film shot at night which Lipari would
have to process? Strul also told Lipari in this conversation, that he was not pleased
with the night coverage and wanted more stories covered during the night hours;
that his plans called for the photographer-reporter on the 2 to 11 p.m. shift to
shoot more than one story during those hours; that he would also cover conventions
and similar functions which take place at night; and that he was to bring the film
back to the station to have Lipari process it for the 11 p.m. news show."
Why did Strul repeatedly ask Filer to reconsider his application for union mem-
bership and come over to Respondent's side, making note of the fact that he had
gone out of his way to keep Filer in the job, if he and Kelly had already decided
to fire Filer?
It will be recalled that Kelly testified that he and Strul decided in June that Marlin,
Filer, and Lipari could be laid off, but deferred the actual date of termination until
the completion of the documentaries and the news department vacation schedule.
What explanation is there for Strul's statement to Lobo in the latter part of July
that Respondent was merely contemplating either a major reduction in force or
abolishing the news operation and if he was ordered to make a cutback he did not
know who would be let out?
It is significant that on August 12, when the discharges took place, Marlin had
not yet taken his vacation and Weand was on vacation. Because of the precipitous
discharge of Lipari, while Weand was on vacation, Respondent was unable to per-
form any of its lab work and had to ship it out to a private laboratory for processing.
With regard to the documentaries, Weand testified without contradicition, that
while they were in the last stages of completing the documentary "Port of Return,"
which was finished on August 8, Strul talked to him about filming a new docu-
mentary on "Metro." It was never filmed. Also worthy of note in this regard is
Struzzieri's testimony on cross-examination, that the filming of more documentaries
by the news department was discussed at executive staff meetings. A reduction in
force in the news department was never mentioned at these meetings.
When we consider these facts, together with the timing of the layoffs (shortly
before the Board election), the precipitousness of the layoffs without any intimation
of such action to its employees, no notice to the Union even though the parties were
meeting together shortly after the notices of termination were drafted, and the
threats set out in detail previously, it becomes apparent and I find that the discharges
of Marlin, Filer, and Lipari on August 12, 1958, did not come about because of
economic considerations, but because Respondent was motivated by antiunion con-
siderations. It stretches credulity too far to believe that there was only coincidental
connection between the union activities then current, and the abrupt discharges of
the employees. Accordingly, I find that Respondent discriminatorily discharged
Marlin, Filer, and Lipari in violation of Section 8(a)(3) of the Act.
In arriving at this finding, I have given serious thought to the contention raised by
10 This finding is based on Weand's testimony which I credit, and Strul's admission that
lie talked with Weand about the second week in July regarding photographic coverage
during the midnight shift. As previously indicated Strul did not impress me as a credible
witness. I do not accept his explanation that after thinking over the plan carefully and
reviewing the records he concluded there did not appear to be sufficient nightwork for
one man, and since it did not seem to be financially feasible, he "just dropped it."
"This finding is based on Lipari's undisputed testimony, which I credit.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in its brief and at the hearing, that since August 12, 1958, the news
department has operated satisfactorily without the three dischargees and the cost
of producing the program has been reduced by the salaries of the three dischargees.
While evidence of such a nature tends to show that the discharges were not discrimi-
natory, N.L.R.B. v. Boss Manufacturing Company, 107 F. 2d 574 (C.A. 7), never-
theless, as the court noted in N.L.R.B. v. Adkins Transfer Company, Inc., 226 F. 2d
324 (C.A. 6), "The crucial and controlling fact is what was the true reason back
of the discharge." Indeed, a controlling factor which led to my finding above was
the antiunion attitude on the part of the Respondent as soon as it became aware
of the union organization among its employees. This together with the overwhelm-
ing array of facts, which in my opinion prove discriminatory motivation on Respond-
ent's part and the desire to prevent unionization of its employees, clearly distinguishes
the instant case from the Adkins case. In the other cases cited and relied upon by
Respondent in its brief, it appears that either jobs were combined or departments
were closed down resulting in layoffs, solely for economic reasons.
C. The reduction in wages and alteration in job duties of Jay Weand commencing
August 12, 1958
The complaint as amended at the hearing alleges that Respondent on August 12,
1958, discriminatorily reduced Jay Weand's wages from $110 a week to $95 a week
and has otherwise added to and altered his job duties and content because he had
authorized the Union to represent him in collective bargaining or had engaged in,
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
Weand started his employment with Respondent as a news photographer in July
1956. In May 1957 he was promoted to chief photographer. When Strul became
news director in September 1957, the job description of the chief photographer was
written up by him as follows: "Responsible for performance of all photographers,
film editor and lab man. Responsible for maintenance of lab and editing room
equipment. Requisitions purchases with approval of managing director to whom
he is directly responsible. Responsible for film processing, maintenance of cameras,
keeping adequate supplies on hand, maintaining close watch on amount of film
shot. When film schedule is heavy fills in as active photographer. Responsible for
maintenance of cars." Weand's salary as chief photographer was $110 per week.
Weand testified that in the performance of his duties as chief photographer he
transmitted instructions from Strul to the photographer-reporters, but actual job
assignments were given them by the assignment editor, Zeke Segal.
Weand testified that some time in May 1958, acting as spokesman for the
photographer-reporters, he talked with Kelly about some grievances which had
developed in the news department.12 As a result, early in June 1958, Weand was
relieved of his liaison duties by Strut on the ground that he was insubordinate. His
salary and other duties remained the same.
Weand attended the union meeting on June 29 and filed his application for union
membership along with the other employees. Thereafter, as found above, Strul
talked with him about the fact that Respondent knew that all of the employees
signed union membership applications and told him what results might ensue there-
from. Strul also in conversations with other employees, characterized Weand as
a "ringleader" and "instigator" of the Union and "troublemaker" in the news
department and suspected Weand of "pressuring" other employees into the Union.13
Weand was on vacation on August 12. He testified he was at home when he
received a call to come into the station. Strul told Weand that Respondent was
going to have an economy wave and was laying off three men. Strul then informed
Weand that the position of chief photographer was eliminated and his pay was
reduced to $95 a week. Weand inquired why this change had not taken place
before: Strul replied, "you are a victim of the squeeze play between Union and
management."
Upon his return to the station on August 17, Weand was placed on the 2 to 11
p.m. shift. He has since that time performed all of the lab work, which takes up
from 70 to 80 percent of his time, he does all of the film editing for the 6:30 p.m.
and 11 p.m. newscasts 14 he shoots promotion films, he prepares slides, and he is
worked in on news stories from time to time. He has worked an average of 41/2
hours per week overtime from August 17 to the week preceding the hearing.
17 Weand stated he had previously taken the grievances up with Strul, without result.
13 See testimony of Filer and Lobo above and findings made with respect thereto.
14 Previously two or three men assisted editing the film for the 6 :30 show and one man
did the 11 p.m. show.
BISCAYNE TELEVISION CORPORATION 453.
Strul, testifying regarding his conversation with Weand on August 12, stated that
he advised Weand the chief photographer's job was abolished, and he was being
offered "another job which primarily consisted of the same duties with the exception.
of serving as a liaison between [me] and the men, and that he would have no
supervisory authority." Strul asked Weand if he would accept that position.
Weand replied that he had to eat, but otherwise did not indicate he would accept.
Weand told Strul he thought his union activity was the reason for the change in,
jobs. Strul stated that the only reason was a reduction in photographic activity,.
"that the cutback had been going along for some time," and that Respondent no
longer needed a chief photographer with only two men on the news photographic
staff. Strul admitted that something about "squeeze play" was mentioned in their
conversation. His testimony in this regard is as follows: "When he [Weand] said
it was because of union activity and nothing else, I told him, I repeated again why
he had been given him new job, and why his job had been abolished, and I told
him that he was caught in a squeeze between the Union and the Company because
on August the 8th at the original National Labor Relations Board meeting, with
Mr. Strickland when Mr. Mamet was present, and we suggested that, we said, that
we considered Mr. Jay Weand a supervisor and Mr. Mamet said that he was not a
supervisor, but Mr. Mamet made the statement that if necessary he could be
considered a supervisor. But he was doing us a favor, because if he was to remain
as a supervisor he would not be permitted to shoot film, edit film or handle any of
his normal duties. Therefore, he was caught in a squeeze between the Company
and the Union, since we were cutting back on our film and as a member of the
Union, he would still not be a chief photographer."
I do not credit Strul's testimony regarding his explanation of "squeeze play" to
Weand. As noted, Strul told Weand that although the job of chief photographer
was abolished, his new job consisted of the same duties except that he would not
act as liaison. Weand, however, had already been relieved of the liaison duties in,
June, with no change in salary, hours of employment, or job content. It was only
after union organization had gotten underway and Weand was considered by
Respondent as a "ringleader" and "instigator" of the Union and "troublemaker" in
the news department that Respondent took action against him while at the same
time discharging the other employees for their union membership and activities as,
found above. I find that in reducing Weand's wages from $110 to $95 a week on,.
August 12, 1958, and altering his job duties and content, Respondent was motivated
by antiunion considerations, and by so doing violated Section 8(a)(3) of the Act.
D. Objections to the election in Case No. 12-RC-348
On November 6, 1958, by direction of the Board, it was ordered that a hearing
be held to resolve the issues raised by the petitioner's (Union's) objections to the
conduct of the election in Case No. 12-RC-348 15 and the employer's (Respondent's)
exceptions to the Regional Director's report on objections. Said hearing was
consolidated with the hearing in Cases Nos. 12-CA-494 and 12-CA-587.
It is unnecessary to belabor this report with separate resolutions of each of the
Union's objections. Suffice it to say that I believe and find that by the conduct of
Struzzieri set out in detail in the section of this report "Organization of the film-
editing and news department employees; interference, restraint, and coercion," the
Respondent interfered with the conduct of a free election contemplated by the Act.
Accordingly, I will recommend that the election be set aside and a new election
held.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type ordered in such cases.
I have found that the Respondent has discriminated and continues to discriminate
in regard to the hire and tenure of employment of Cal Marlin, Charles Filer, and
Joseph Lipari and in regard to the terms and conditions of employment of. Jay
Weand. It will be recommended that Respondent offer to Marlin, Filer, and Lipari
immediate reinstatement to his former or substantially equivalent position and make
each whole for loss of pay he suffered as a result of the discrimination against him
by payment to each of a sum of money equal to that which he would have earned
15The appropriate unit in the stipulation for certification upon consent election con-
sisted of three employees in the film-editing department. The election resulted in three
votes cast against the participating labor organizations.
535828-60-vol. 125-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as wages from on or about August 12, 1958, to the date of the offer of reinstatement
less his net earnings during such period, the backpay to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. I shall also recommend that the Respondent fully restore the status
quo of Jay Weand as to wages and job and that Respondent make him whole in a
sum of money by which it reduced his wages from on or about August 12, 1958. It
will also be recommended that Respondent preserve and upon reasonable request
make all pertinent wage records available to the Board or its agents.
I am of the opinion that the unfair labor practices found herein disclose a course
of conduct displaying a deliberate intent on the part of the Respondent in opposition
to the purposes of the Act and indicates the likelihood of Respondent resorting to
other acts of interference, restraint, and coercion in violation of the Act. I will
therefore recommend that Respondent cease and desist from in any manner infring-
ing upon the rights of the employees as guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Locals Nos. 666 and 780, International Alliance of Theatrical Stage Em-
ployees and Moving Picture Machine Operators of the United States and Canada,
AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act.
2. By interrogating its employees as to their union membership and activities;
by advising its employees that opportunities to become a director or to be promoted
to the management level would not be as good if they joined the Union; by threaten-
ing a reduction in force and the dissolution of the news department "as we know it";
by requesting its employees to withdraw their union membership applications; by
asking its employees to vote against the Union; and by refusing employee Lipari a
letter of recommendation because the Union filed unfair labor practice charges
against it, the Respondent engaged in interference, restraint, and coercion of its
employees in the exercise of rights guaranteed by Section 7 of the Act and thereby
engaged in unfair labor practices proscribed by Section 8(a)( I) of the Act.
3. By discriminating in regard to the hire and tenurmof employment of Cal Marlin,
Charles Filer, and Joseph Lipari and by discrimination in regard to the terms and
conditions of employment of Jay Weand, thereby discouraging membership in Local
No. 666, International Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada, AFL-CIO, the Respondent
has engaged in and is engaging in unfair labor practices proscribed by Section
8(a)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
the Act.
5. The Respondent engaged in conduct which interfered with the election in
Case No. 12-RC-348 and deprived its employees of their freedom of choice.
[Recommendations omitted from publication.]
Miranda Fuel Co., Inc. and Michael Lopuch and Local 553, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Party to the Contract
Local 553, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Michael Lopuch
and Miranda Fuel Co., Inc., Party to the Contract . Cases Nos.
2-CA-5833 and 2-CB-2179. November 30, 1959
DECISION AND ORDER
On December 18, 1958, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain unfair
125 NLRB No. 53.