Crescendo Broadcasting, Inc.

National Labor Relations Board - Board Decisions

May 2, 1975

217 N.L.R.B. 697 (N.L.R.B. 1975)

CRESCENDO BROADCASTING, INC.
Crescendo Broadcasting, Inc., WATV Radio andlnter-
national Brotherhood of Electrical Workers, Local
Union 253 , AFL-CIO.' Case 10-CA-10768.
May 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 19, 1974, Administrative Law Judge
Irving M. Herman issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs, and Re-
spondent filed a brief in opposition to General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings of the Administra-
tive Law Judge but, for the reasons set forth below, has
decided to dismiss the complaint in its entirety.
'We do not agree with the Administrative Law
Judge's conclusion that the reduction of the two-man
radio technician unit to one employee was temporary,
and therefore find that Respondent did not violate Sec-
tion 8(a)(5) of the Act when it refused to bargain with
the Union over terms and conditions of employment
within that unit.
;Pursuant to a secret ballot election, the Union was
certified on May 22, 1974, as the exclusive bargaining
representative of a unit of radio technicians at Respon-,
dent's radio station. At the time of both the election
and certification, the unit consisted of only two, radio
technicians, Gordon Bishop and Oscar Roy Harrison,
both of whom were licensed by the Federal Communi-
cations Commission (herein FCC) as first-class radio-
telephone operators.' On May 26, the Union, by let-
ter, requested Respondent to bargain over terms and
conditions of employment within the unit. Four days
later, Harrison, who had been ill and not at work since
the election, died. Respondent never having responded
to the request to bargain, the Union filed charges alleg-
ing an 8(a)(5) violation by Respondent and the instant
complaint issued. At the hearing, Respondent defended
its refusal to bargain, arguing that upon Harrison's
death Respondent had no intention of replacing him
I Herein the Union
2 The FCC licenses three classes of radiotelephone operators The more
sophisticated and complex operations associated with radio station opera-
tion are reserved to first-class operators Tasks demanding a decreasing level
of skill can be performed by second- and third-class operators Each of the
three classes of licenses is granted only after the applicant passes an exami-
nation.
697
but planned to operate permanently with only one ra-
dio technician, Bishop. Since the bargaining unit now
contained only one employee, Respondent contended
that it no longer had a duty to bargain.
In Crispo Cake Cone Company, Inc.,' we held that
in situations where a multiemployee unit has been re-
duced to one employee the respondent has the burden
of proving that the reduction is permanent to establish
a termination of its duty to bargain with the exclusive
bargaining representative of that unit. The Administra-
tive Law Judge, after analyzing the evidence, con-
cluded that Respondent failed to meet its burden of
proof. Specifically, the Administrative Law Judge
found that Respondent intended to hire another first
class radiotelephone operator in order to comply with
section 73.93 of the rules and regulations of the FCC
which requires, in part, that radio stations such as Re-
spondent must insure that a first-class radiotelephone
operator is readily available at all times to perform
complicated maintenance and repair work on the trans-
mitter and other electronic equipment whenever
needed.' The Administrative Law Judge reasoned that
with the departure of first-class operator Harrison it
would be extremely difficult, if not impossible, to have
only one remaining first-class operator, Bishop,
"readily available at all times" to perform transmitter
repair work. Bishop worked only 40 hours per week,
while the station operated from 6 a.m. to 7 p.m. 6 days
a week, and 6:30 a.nl. to 7 p.m. on Sundays, 90-1/2
hours per week in all. There is no evidence that Re-
spondent could insure the availability of another first-
class operator if Bishop was indisposed while off duty,
e.g., sick, on vacation, etc. Therefore, the Administra-
tive Law Judge concluded, Respondent knew it could
not operate for long with only one first-class operator
working less than 50 percent of the time the station was
on the air and surely must have intended to hire
another first-class operator to take up the slack.
We do not agree. The Administrative Law Judge has
erroneously substituted his own business judgment for
that of Respondent in concluding that it could not
operate its radio station in compliance with FCC regu-
lations with only one first-class operator. The record
does not support his conclusion. The type of work
which first-class operators like Bishop and Harrison
are uniquely and exclusively qualified to perform, i.e.,
transmitter repair and maintenance , arises relatively
infrequently. The uncontroverted testimony of Respon-
dent's station manager, Thomas Whitley, indicates that
first-class type work would be performed by Bishop
only in the rare isolated instance where the radio trans-
3 190 NLRB 352 (1971)
An earlier version of this regulation was more stringent in that it re-
quired a radio station to maintain a first-class operator on duty at all times
the station was operating. However, in January 1973, the rule was amended
to provide that a first-class operator need only be available at all times.
217 NLRB No. 110
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitter or other piece of technical equipment malfunc-
tioned: Most of Bishop's worktime, as was Harrison's
is taken up with tasks of a more routine nature, such
as program volume control, broadcast monitoring,
phonograph needle replacement, and splicing of tapes,
tasks which other employees of Respondent, announc-
ers, are qualified, as third-class operators, to
perform.' This being the case, there is no reason why
Respondent cannot operate with just one-first-class op-
erator. In the unlikely event that a need for emergency
repair might arise while Bishop was off duty and could
not be summoned on an on-call basis, Respondent
could, consistent with FCC regulations, call on the
services of any other first-calss operator throughout the
Birmingham metropolitan area.' From the time of
Harrison's death, on June 1, 1974, until the time of the
instant hearing, in mid-September, there was no indica-
tion that Respondent experienced any difficulty operat-
ing with only one first-class operator. Furthermore, the
FCC conducted an investigation of Respondent's radio
station during the summer of 1974 without finding
anything untoward about the employment of a single
first-class operator.
In sum , we find, contrary to the Administrative Law
Judge, that the reduction of the radio technician unit
to one employee was permanent.
General Counsel, in his exceptions, advances an al-
ternative theory to that of the Administrative Law
Judge which would support the existence of a multiem-
ployee radio technician unit and the consequent duty of
Respondent to bargain with the Union certified to
represent such a unit. Specifically, General Counsel
argues that after Harrison died Respondent brought in
other employees to do unit work, thereby perpetuating
a multiemployee radio technician unit. The record does
show that a large portion of Harrison's work was, in the
ensuing few months, assumed by radio announcers Bill
Woody and Lewis Christian. While the major portion
of Woody's and Christian's time has been spent per-
forming announcers duties, they have, as third-class
license holders, spent a substantial portion of their time
doing many of the same routine technical operations at
the studio that Bishop and Harrison performed, such
as broadcast monitoring, record changing, and volume
control. However, they have performed no first-class
duties. Since Harrison and Bishop spent but a small
portion of their time performing first-class duties, and
the bulk of their time performing the more routine
5 In order to comply with that portion of sec. 73 93 of the FCC rules and
regulations which requires that an employee holding at the minimum a
third-class license must be on duty at all times, Respondent, in July 1974,
instituted the requirement that all newly hired announcers hold third-class
licenses Even before that time, most of Respondent' s announcers were
third-class operators
6 Sec. 73 93 provides that on-call services of a first-class operator other
than those employed by the radio station could be contracted for.
third-class duties, General Counsel argues that the per-
formance of these same third-class--duties by Woody
and Christian dictates their inclusion in the technician
unit :long with Bishop.
While we do not dispute General Counsel's argu-
ment on the facts, we note that this issue has been
litigated in a preelection hearing,- wherein the Union
had sought to include announcer Woody in the unit for
the same reasons it puts forth now, substantial time
spent in performance of technician's duties identical to
those performed by Harrison and Bishop. The Re-
gional Director did not accept the Union's argument,
however, and excluded Woody from the unit. As the
nature of the present duties of Woody and, for that
matter, of Christian, is not substantially different from
Woody's duties prior to Harrison's death,' we see no
reason to reverse the Regional Director and include
either announcer in the unit.
There is the remaining question as to when Respond-
ent decided not to fill the position vacated by Harrison.
Whitley testified that the decision was made immedi-
ately upon Harrison's death. The Administrative Law
Judge cites testimony of Whitley to the effect that the
decision not to hire another first-class operator was not
made until mid-July.' Whichever time might be ac-
cepted, it is clear that the Union's bargaining request
of May 26 occurred when Respondent's intention to
operate with a two-man unit was still a possibility.
However, we do not attach any significance to the fact
that for a short time, be it 4 days or 6 weeks, there was
an outstanding request to bargain on behalf of a possi-
ble two-man unit, given our finding that at least no
later than mid-July, Respondent had determined to
operate permanently with a one-man radio technician
unit. It would not effectuate the policies of the Act to
proceed further in this matter inasmuch as the Board
will not require an employer to bargain in a unit perma-
nently consisting of only one employee.' We shall
therefore dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it-hereby is, dismissed in its entirety.
I Woody's 40-hour workweek was temporarily extended to 60 hours for
some time following Harrison's death in order that he, along with Bishop,
could assume Harrison's workload However, contrary to General Counsel,
we do not regard this as a change in the nature of Woody's Job Woody was
not performing any of Harrison's first-class duties, but merely performing
more in the way of third-class duties, the nature of which had earlier been
found insufficient to place him in the unit of first-class operators Bishop and
Harrison
B However, there is no such testimony by Whitley in the transcript
9 Westinghouse Electric Corporation, 179 NLRB 289 (1969)
CRESCENDO BROADCASTING, INC _ 699
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN , Administrative Law Judge : This case
was tried before me on September 18, 1974,' at Binning-
hamm, Alabama . The charge was filed on June 20 by Interna-
tional Brotherhood of Electrical Workers, Local Union 253,
AFL-CIO (herein called the Union), and duly served on
Respondent the following day. Complaint issued August 16.
The primary issue is whether Respondent violated Section
8(a)(5) of the National Labor Relations Act, as amended (29
U.S.C. Sec 151 et seq.), herein called the Act, by refusing to
recognize the Union since May 26 for collective -bargaining
purposes.
Upon the entire record', including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent , I make the
following:
FINDINGS AND CONCLUSIONS
I RESPONDENT 'S BUSINESS
The complaint alleges, the answer admits , and I find that
Respondent is an Alabama corporation engaged at Birming-
ham, Alabama, in the commercial operation of radio station
WATV, licensed by the Federal Communications Commis-
sion; that during the 12 months immediately preceding the
complaint Respondent received in excess of $100 ,000 from
the sale of air time for commercial advertising of national
brand products and subscribed to an interstate news service
including the CBS network ; and that Respondent is an em-
ployer engaged in commerce within the meaning of, Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. The Union's certification
Following an election, the Union was certified on May 22
as bargaining representative for:
All radio technicians employed by the Employer at its
Birmingham, Alabama, facility' excluding all other
i All dates are in 1974 except as otherwise stated
2 The following corrections of the transcript of testimony are hereby made
to clarify the record : p 7, 1 12, from "knowledge" to "license," p 85,1. 15,
from "leaders" to "needles ;" p. 151 1 2, from "Roy" to "Bill."
3 It was stipulated that the facility uses "a non-directional antenna with
nominal power of 10 kilowatts or less" within the meaning of sec. 73 93 of
the rules and regulations of the Federal Communications Commission. Sec
73 93 reads in pertinent part as follows
employees, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.
At the time of certification the unit consisted of the two
employees who were on the Excelsior list4 and had voted in
(a) One or more operators holding a radio operator license or per mit
of a grade specified in this section shall be in actual charge of the
transmitting system, and shall be on duty either at the transmitter
location or at the remote control point. .
(b) With the exceptions set forth in paragraph (f) of this section,
adjustments of the transmitting system, an (sic) inspection, mamte-
nance, required equipment performance measurements, and required
field strength measurements shall be performed only by a first-class
radiotelephone operator, or, during the periods of operation when a
first-class radiotelephone operator is in charge of the transmitter, by or
under the direction of a broadcast consultant regularly engaged in the
practice of broadcast station engineering
(c) A station using a non-directional antenna with nominal power of
10 kilowatts or less may employ first-class operators, second-class oper-
ators, or operators with third-class permits endorsed for broadcast sta-
tion operation for routine operation of the transmitting system if the
station has at least one first-class radiotelephone operator readily avail-
able at all times This operator may be in full-time employment, or, as
an alternative, the licensee may contract in writing for the services, on
a part-time basis, of one or more such operators Signed contracts with
part-time operators shall be kept in the files of the station and shall be
made available for inspection upon request by an authorized represen-
tative of this Commission.
* * * * *
(f) Subject to the conditions set forth in paragraphs (c), (d), and (e)
of this section, the routine operation of the transmitting system may be
performed by an operator holding a second-class license or third-class
permit endorsed for broadcast station operation. Unless, however, per-
formed under the immediate and personal supervision of an operator
holding a first-class radiotelephone license, and operator holding a sec-
ond-class license or third-class permit endorsed for broadcast station
operation may make adjustments only of external controls, as follows
(1) Those necessary to turn the transmitter on and off,
(2) Those necessary to compensate for voltage fluctuation in the
primary power supply;
(3) Those necessary to maintain modulation levels of the transmitter
within prescribed limits,
(4) Those necessary to effect routine changes in operating power
which are required by the station authorization;
* * * * *
(g) It is the responsibility of the station licensee to insure that each
operator is fully instructed in the performance of all the above adjust-
ments, as well as in other required duties, such as reading meters and
making log entries Printed step-by-step instructions for those adjust-
ments which the lesser grade operator is permitted to make, and a
tabulation or chart of upper and lower limiting values of parameters
required to be observed and logged, shall be posted at the operating
position. The emissions of the station shall be terminated immediately
whenever the transmitting system is observed operating beyond the
posted parameters, or in any other manner inconsistent with the rules
or the station authorization, and the above adjustments are ineffective
in correcting the condition of improper operation, and a first-class
radiotelephone operator is not present
* * * * *
(i) The operator on duty at the transmitter or remote control point,
may, at the discretion of the licensee and the chief operator, if any, be
employed for other duties or for the operation of another radio station
or stations in accordance with the class of operator's license which he
holds and the rules and regulations governing such other radio stations.
Provided, however, that such other duties shall not interfere with the
proper operation of the standard broadcast transmitting system and
keeping of required logs.
(j) At all standard broadcast stations, a complete inspection of the
transmitting system and required monitoring equipment in use, shall be
made by an operator holding a first-class radiotelephone license at least
once each calendar week. The interval between successive required
inspections shall not be less than 5 days. This inspection shall include
such tests, adjustments, and repairs as may be necessary to insure
operation in conformance with the provisions of this subpart and the
current station authorization
4 Excelsior Underwear, Inc., 156 NLRB 1236 (1966)
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election, Gordon- Bishop and Oscar Roy Harrison, both
of whom held first-class FCC licenses as radiotelephone
operators.' The Union's contention in the representation
proceeding that Bill Woody also belonged in the unit was
rejected by the Regional Director who, despite the fact that
Woody, a third-class FCC permit holder, punched the trans-
mitter on and signed the transmitter log,' concluded that
"the record discloses that Woody is indeed an announcer
[as contended by Respondent], and contains no evidence that
he is a radio technician."'
2. The refusal to bargain
By letter of May 26, the Union requested bargaining in the
certified unit. On June 1, Harrison, who had become ill and
never returned to work after the election, died.' Respondent
thereupon took the position that the unit now consisted of
only one man and that its bargaining duty had consequently
terminated, and has declined to bargain since.
3. The work involved
Respondent's transmitter is about 3 miles from its studio
located in downtown Birmingham. They are linked together
by telephone lines so that the transmitter can be controlled
from the studio, the remote control point. This involves
monitoring the emissions by ear and observing the four me-
ters maintained at the studio. Once a week the FCC requires
"a complete inspection,of the transmitting system and re-
quired monitoring equipment in use" by a first-class operator.
This entails calibration of the studio meters to preserve con-
formity with similar meters at the transmitter, and requires
a first-class license holder to visit the transmitter and call in
his readings for the necessary adjustments at the studio,
which can be and are made by third-class permit holders who
record the changes on the so-called transmitter log. Only
first-class operators may maintain or repair the transmitter.
Prior to Harrison's departure both he and Bishop worked
40 hours a week, including weekends, but their duty hours
did not coincide generally, so that at least one or the other
was on duty whenever the station was on the air. As of the
time of the representation hearing, according to Whitley,
Mr. Harrison's duties and Mr. Bishop's duties ostensi-
bly were one in the same. Their basic duty, and basic
reason for their being there was to maintain the equip-
ment and maintain the transmitter if it went off the air.
5 Respondent's initial contention that Bishop was not an employee but an
independent contractor had been rejected by the Regional Director's Deci-
sion and Direction of Election
6 All parties have adverted to "the transmitter log," evidently referring
to what the FCC rules call the "operating log," as distinguished from the
"maintenance log" whose entries may be made only by a first-class licensee
47 CFR 73.113,and 73 114
7 Respondent's general manager, Whitley, had taken the position that
Woody performed "no technician or engineering work whatsoever," and
that if he was to be included in the unit then its other third-class permit
holders also deserved inclusion Although he testified in the representation
proceeding that "some" of the employees, "other people" than Woody, had
third-class permits, his testimony in the instant case indicated that only
Glass (who is pnniarily a salesman) held such a permit at that time and that
one other employee then on the payroll (announcer Pumphrey) did not get
his permit until July or August.
And do this sort of thing. Do repairs on all of our techni-
cal equipment. All of our technical equipment was under
their maintenance.
Woody also worked a 40-hour week at that time. Immedi-
ately upon the cessation of Harrison's employment, and con-
tinuing until around mid-July, Bishop and Woody split Har-
rison 's hours,- each working 60 hours a -week. Since then
Bishop has been working an 8-hour day, Monday through
Friday, performing exactly the same duties he did previously;
and Woody, whose third-class permit had expired, was
removed, following an FCC inspection, from all contact with
the operation of the transmitting system until such time as his
permit is renewed. Meanwhile, other employees have been
performing the same control duties of the station involving
the operation of the transmitter that Woody had performed
since Harrison's departure. For some period this was done by
Lewis Christian (hired in mid-July) who in turn was followed
by Frank Chester (hired in mid-September). According to
Bishop, whom I credit, this entailed many of the functions he
himself performed which were outside the scope of those
controlled by his first-class license, and indeed some wholly
uncontrolled by the FCC. Thus included were turning the
transmitter on and off, observing the meters, playing tapes,
monitoring the sound, adjusting the volume, and making the
necessary operating log entries.' The performance of some
of such duties required at least a -third-class permit, and
accordingly since about mid-July Whitley has required his
newly-hired announcers' to have third- class permits. In this
connection the following colloquy occurred at the conclusion
of Whitley's cross-examination:
JUDGE HERMAN Mr. Whitley, how long did Bishop
and Woody . . .
THE WITNESS Work the logs, sir?
JUDGE HERMAN Yes.
THE WITNESS I guess, Your Honor, maybe four or five
weeks, something like that; after Mr. Harrison's death.
JUDGE HERMAN Up to that point, had the company
required its announcers to have a Third Class license?
THE WITNESS No, sir, no, sir, we did not require this.
JUDGE HERMAN When did you decide on that require-
ment?
THE WITNESS All of our announcers don't have them
right now, sir.
JUDGE HERMAN I understood you to testify earlier that
you required your announcers to.
THE WITNESS I don't require; we're asking, we're hop-
ing that we get most of them to have it because if some-
body gets sick and we're not covered with a man, but we
have, still some who do not have it.9
8 Although the announcers' turntables and microphones are in a so-called
announcers' room, similar equipment is also kept in the production room,
where the announcer-operators also work.
9 If the statement in Respondent's brief (p. 6) that "Not all of Crescendo's
announcers are required to have third-class licenses" is intended to apply
to announcers hired since mid-July, I do not so read Whitley's testimony
above quoted on which it purports to rest His earlier testimony both on
direct and cross-examination made clear that Respondenthad imposed such
a requirement. To the extent that his later testimony may be deemed contra-
dictory, I would not credit it, and it can be read to mean only that some of
the older announcers do not have such permits.
CRESCENDO BROADCASTING, INC.
JUDGE HERMAN Well when did you decide on trying
to get announcers with Third Class licenses?
THE WITNESS I'd say in the last six weeks or so.
JUDGE HERMAN That takes us back to around the
beginning of August?
THE WITNESS Somewhere in that period, maybe the
middle of July.
JUDGE HERMAN But the union requested to bargain on
May 26 and you refused. Why was that?
THE WITNESS The union requested we bargain on May
26?
JUDGE HERMAN Yes. -
THE WITNESS I think you'd find, sir, that, was that
when the hearing was held, on May 26?
JUDGE HERMAN No, the certification was issued on
May 22.
THE WITNESS. Now at what point did they ask me to
bargain? Was this in the form of a petition written to me
on May 26?
JUDGE HERMAN The complaint alleges that on May
26, the union requested you to bargain and that you
refused. And the answer admits it.
THE WITNESS I hadn't refused until after Mr. Harrison
died. After Mr. Harrison died, we took the position that
we had had one man, Mr. Bishop, who in fact, had been
retired prior to that time and the NLRB said Look, you
let the man work for a period of two-or three months,
so you can't classify him as being retired.
But after Mr. Harrison died, I still said well all right,
two minus one, best of my calculation equals one. We've
got one man left there and that's it. And . . . .
JUDGE HERMAN But you had other people doing work
at that point and ... .
THE WITNESS. No, sir, we didn't have anyone taking
Mr Bishop's, Mr. Harrison's place. I'll contend that. I'll
argue that with you. -
JUDGE HERMAN Well what were Woody and-Bishop
doing then, putting in the sixty hours?
THE WITNESS. Woody is an announcer, Bishop was
performing technical duties. Mr. Woody has never per-
formed technical duties, sir.
JUDGE HERMAN But what required them to go on the
sixty hour week at that point?
THE WITNESS Because we had to have somebody with
at least a Third Class ticket working the board. But
that's not to be confused with a First Class ticket. The
law now says we cannot, we must have somebody with
at least a Third Class ticket on duty at all times. Third,
First, Second, makes no difference. But you must have
somebody with a Third Class. Now I had Woody and I
let Bill work the overtime until such time as we could
add additional folks, announcers, round out our staff.
JUDGE HERMAN But you weren't contemplating then
that your additional announcers would have Third Class
tickets, you didn't contemplate that until around the end
of July, you said.
THE WITNESS Well you can't work them sixty hours
a week forever, Your Honor.10
701
Although Whitley testified that the nonannouncing duties
mentioned above are not "technical" " but merely "incidental
to" or "an extension of such employees' announcing duties,
he agreed that the third-class permit holders were "technf-
cians" in "the jargon of the trade," but maintained that only
2 to 5 percent of their time was spent "in the category of the
licensee," i.e., in performing "technical" functions. He also
testified that Respondent's announcers spent only about 6 to
7 minutes an hour actually announcing," the remainder of
their time being devoted to playing recorded music, commer-
cials, and other sounds and noises.
Until January 1973 a first-class operator had to be on duty
at all times the station was operating." Since then, as pro-
vided in section 73.93 (a) and (c) of the FCC rules (fn. 3,
supra,) it has been sufficient if a third-class operator, is on
duty at all times and "if the station has at least one first-class
radiotelephone operator readily available at all times."
Whitely testified that he has no intention of restaffing the
position formerly held by Harrison, that such restaffing is
neither required by FCC rules nor economically needed, and
that the position would not be restaffed "[w]ithin the foresee-
able future."
B. Analysis
Respondent makes no contention-as indeed it cannot in
view of its failure to seek review of the Regional Director's
decision in the representation proceeding-that .the Union
was not properly certified as the bargaining representative in
an appropriate unit. And its answer admits its refusal to
bargain in that unit since the Union's request of May 26. The
burden of Respondent's position is that Harrison's death on
June 1 reduced the unit to one man and hence, under Board
law, extinguished its bargaining obligation under the certifi-
cation. General Counsel contends that no such reduction
occurred because other employees continued to perform ra-
dio technicians' work, and that in any event no decision
against hiring another-first-class technician to fill Harrison's
slot was made before mid-July by which time Respondent
had already defaulted in its bargaining obligation. Respond-
ent argues that the employees (other than Bishop) allegedly
performing technicians' work are primarily announcers and
were hired as such, and that the work they do pursuant to
their FCC permits is only incidental to, or an extension of,
their announcing duties. Respondent does not address itself
to the contention that Respondent's determination to change
its method of operation followed its refusal to bargain.
Respondent correctly urges that the Regional Director's
decision in the representation proceeding settled, for pur-
poses of this case, that Woody was not in the unit in respect
to the duties he performed at that time; and even if the instant
record showed Woody's duties to have been different in fact
at that time from what the representation case record estab-
lished, his exclusion from the unit on the basis of such duties
10 Bishop and Woody received premium pay for such overtime work
According to Whitley; "Like to broke us. That's a fast way to get in a fix
of financial duress."
11 As compared with about 2-1/2 minutes on the average station.
12 The normal operating period is 6 a.m to 7 p.m. except Sunday when
air time starts at 6 30 a.m.
- 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could still not be challenged here, in view of Section 102.67(f)
of the Board's Rules and Regulations. Moreover, the Re-
gional Director's decision might also, fairly be deemed to
exclude any other employee whose functions do not go
beyond those performed by Woody at that time. I do not
understand the General Counsel to contend otherwise. What
the General Counsel does argue, however, is that Woody's
duties changed upon Harrison's departure so as'to embrace
part of Harrison's duties, and that when Woody was com-
pelled to cease performing such functions as a result of an
FCC inspection disclosing the expiration of his third-class
permit, those functions were assigned only to employees who
had such permits and who had indeed been hired with that
purpose in mind.
The difficulty with this position is that while it pays lip
service to Section 102.67(f) of the Board 's Rules, it essentially
bypasses that rule. Whatever portions of Harrison's duties
were assumed by Woody, even such as may have'been con-
trolled by the FCC, did not include any peculiar to the first-
class license. They could not, under section 73.93(c) of the
FCC rules, be other than "routine," and there is nothing to
indicate that the FCC inspection found any violation other
than Woody's performance of third-class duties without a
permit. Nor is there any evidence that the nature of Woody's
duties changed when he went on the 60-hour week. 13 This is
not to say that a unit category of "radio technicians" is
necessarily confined to first-class licensees . A sufficient com-
munity of interest between first-class licensees and third-class
men employed as projectionists at a television station was
found. in . Newhouse Broadcasting Corporation, d/b/a
WAPI-TV-AM-FM, 198 NLRB 342 (1972), notwithstand-
ing the absence of any reference to third-class permit holders
in the FCC, rule governing the operator requirements for
television stations. !' But the evidence there showed that the
projectionists, unlike the third-class men here, engaged in "a
full range of station maintenance work." Id. And while the
evidence in the instant record enlarges somewhat on the rep-
resentation case record in respect to the similarity of duties
between the first- and third-class men here, the Regional
Director's decision precludes any argument based thereon.
The foregoing, however, is not dispositive of the case. An
employer that seeks-to avoid bargaining on the ground that
the unit has been reduced to a single individual has "the
burden of proving that this was not a temporary reduction
but was one of a-permanent nature." Crispo Cake Cone Com-
pany, Inc., 190 NLRB 352, 354 (1971), enfd., 464 F.2d 233
(C.A. 8, 1972).15 In recognition of this, Whitley testified
that Respondent had no intention of restaffing Harrison's
position. And Respondent properly argues that "It is not
within the Board's province to require Crescendo to employ
a first-class license holder to replace-Harrison" (Br., p. 13).
Nevertheless-it is within the Board's province to determine
whether Whitley's testimony in this respect is sufficiently
13 No breakdown of the time spent on Harrison's nonfirst-class duties has
been attempted by General Counsel as a predicate for a possible finding
based upon the increased amount of time required for the performance of
his third-class duties as distinguished from those of his duties uncontrolled
by the FCC
14 Compare sec 73 661 of the FCC rules with sec. 73.93.
15 Subsequently vacated upon employer's sustaining the burden in the
compliance proceeding 201 NLRB 309 (1973)
consistent with the other evidence in the case to be credited.
Certainly Respondent's obligation to bargain existed at the
time of the Union's request of May 26.
There is no evidence, prior to Harrison's death on June 1,
of any contemplation by anyone that he would not return.
Yet Respondent utterly failed to respond to the Union's re-
quest. Respondent still took no action to honor or even reply
to that request following Harrison's death.16 It was not until
around mid-July, several weeks after the Union had filed its
charge herein in the face of Respondent's continued silence,
that Respondent now claims to have arrived at its decision to
leave Harrison's position unfilled. If the claimed permanence
of the vacancy could be credited, this admitted failure to
bargain at least between May 26 and mid-July might be pre-
termitted under Board policy.17 However, the admission that
the decision to eliminate the position was not reached before
mid-July, and Whitley's further testimony that the corollary
decision to require new announcers to hold third-class per-
mits was made because "you can't work them sixty hours a
week forever," strongly suggest that the expensive division of
Harrison's work between Bishop and Woody was a holding
action pending Respondent's careful consideration of how
best to resolve a difficult problem only heightened by the
presence of the Union, to wit, to avail itself of the benefits of
the liberalized FCC rules which, while no longer requiring (as
they did prior to January 1973) a first-class operator to be on
duty at either the transmitter location or the remote control
point throughout the broadcast day, still require such an
operator to be "readily available at all times "18 Respon-
dent's decision was undoubtedly hastened by the FCC inspec-
tion which uncovered Woody's ineligibility. But the decision
did not quite settle the matter because it leaves Respondent,
as far as this record shows, short of compliance with section
73.93(c) of the FCC.rules, i.e., without a first-class operator
"readily available at all times." The only first-class operator
available to Respondent, according to this record, is Bishop,
and he is employed on a 40-hour week, less than half the time
the station is on the air. There is utterly no evidence of
another such operator's availability, either as an employee or
on a contract basis, when Bishop is off duty or ill or on
vacation. No one appears to be performing even those "tech-
nical" duties of Harrison's admittedly performed by Bishop
while he was on the 60-hour week. I find it too difficult to
believe that Respondent really intends to allow this situation
to prevail permanently, and absent some explanation of how
it intends to alter the present arrangement without hiring
another first-class operator I must conclude that Respondent
has failed to sustain its burden of proving that the reduction
to a one-man unit was not just temporary. It follows that by
refusing to bargain with the Union since May 26, Respondent
has violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
16 Nor did Respondent move the Board to revoke the certification. See
Sonoma-Mann Publishing Company, 172 NLRB 625 (1968).
17 Cf Westinghouse Electric Corporation, 179 NLRB 289 (1969).
18 It is noteworthy that Harrison was retained on the payroll for almost
a year and a half after the amendment to the FCC rules
CRESCENDO BROADCASTING, INC.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act. -
3. Respondent has violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with 'the Union since May 26,
1974, in the unit certified by the Board on May 22.
4. The aforesaid unfair labor practice affects commerce
within the-meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practice found herein,
703
my recommended Order will require Respondent to cease
and desist therefrom and from any like- or related conduct.
Moreover, in order-to effectuate the policies of the Act, my
recommended Order will require Respondent to fulfill its
duty to bargain in good faith with the Union in the certified
unit upon the Union's request; to this end the certification
year shall be deemed to start from the date Respondent com-
mences to bargain in good faith. See, e. g., Duncan Foundry
& Machine Works Inc., 185 NLRB 16, fn. 1 (1970). I shall
also recommend the usual posting of notices.
[Recommended Order omitted from publication.]