Hennepin Broadcasting Associates, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 326 (N.L.R.B. 1974)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hennepin Broadcasting Associates, Inc. andAmerican
Federation of Television and Radio Artists, Twin
City Local, AFL-CIO. Case 18-CA-3908
December 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On February 11, 1974,- Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
Respondent operates two radio stations at separate
locations in the Minneapolis area. In early June
1973' Respondent employed 10 announcer-engineers
at its two stations. Following discussions among these
employees about the feasibility of having a union repre-
sent them, two employees, Carey and Ellsworth, ar-
ranged a meeting with the Union at Carey's house on
June 10. The meeting was attended by 7 of the 10
employees. By June 14 all seven of these employees had
signed authorization cards.' On June 15, the Union in
a letter to Respondent stated that the Union repre-
sented a majority of Respondent's employees and de-
manded recognition. The Union also filed a petition for
an election with the Board on June 18. The allegations
presented in this case essentially arise from Respon-
dent's conduct during the period of June 18-22.
We agree with the findings by the Administrative
Law Judge that Respondent violated Section 8(a)(1) by
(1) interrogating employees on June 18 about their
knowledge or interest in the Union without adequate
safeguards or assurances against reprisals; and (2) pro-
mising wage increases to employees Bortnem and Hub-
bard on June 20 and 21, respectively, intending thereby
to frustrate and interfere with the employees' rights as
I The request by the Respondent for oral argument is hereby denied as
the record, including the briefs, adequately presents the issues and positions
of the parties
2 All dates hereafter are 1973
3 These seven employees included Gustafson, McKeever, Hubbard, Bort-
nem, Ellsworth , Peterson, and Carey Employee Walby signed a card on
June 25 and Campbell signed a card on June 6 Only one employee in the
unit found to be appropriate by the Administrative Law Judge, which find-
ing we adopt, did not sign a card
guaranteed by Section 7 of the Act. We also agree with
the Administrative Law Judge's conclusion that em-
ployee Carey was discharged on June 21 solely because
Respondent believed him to be the one responsible for
promoting the Union's organizational campaign and
that the reasons offered by Respondent as justification
for Carey's discharge were purely pretextual. In view
of this conclusion, we find it unnecessary to consider or
adopt the Administrative Law Judge's further conclu-
sion that, even under an application of a mixed motive
theory, Carey's discharge would still be unlawful.
The Administrative Law Judge found and we agree
that, because of Carey's discharge, Respondent's em-
ployees commenced an unfair labor practice strike and
picketed at the two radio stations on June 22. Shortly
thereafter, Respondent's vice president, Rock, ap-
peared first at one and then the other radio station and
ordered the picketing employees to return to work or
face immediate discharge. The employees refused to
return to work and Respondent discharged them. We
adopt the Administrative Law Judge's finding that the
picketing employees were engaged in a legal work stop-
page and that their discharge violated Section 8(a)(1)
of the Act. For the reasons described infra. we find that
the discharge of the striking employees also violated
Section 8(a)(3) of the Act.
The record shows that the strike and picketing com-
menced just 4 days after. Respondent received the Un-
ion's letter demanding recognition and the filing of the
election petition. As described supra, Respondent
found time during the intervening 4-day period to un-
lawfully interrogate employees concerning the Union,
make unlawful promises of wage increases to two em-
ployees, and unlawfully discharge a known and active
union adherent. This conduct reveals a vigorous effort
by the Respondent to influence and coerce its em-
ployees to abandon their efforts to have the Union
represent them. In these circumstances, it is clear that
Respondent's action in discharging the striking em-
ployees also had the effect of discouraging membership
in the Union and, thus, the discharges must be deemed
to be violative of both Section 8(a)(3) and Section
8(a)(1) of the Act.
The General Counsel has filed exceptions to the Ad-
ministrative Law Judge's failure to make certain addi-
tional findings and conclusions of law related to the
discharge and reinstatement of the striking employee.
We find merit in these exceptions inasmuch as they are
directed at what appear to be inadvertent omissions by
the Administrative Law Judge in view of other findings
regarding these same employees and his recommended
order which provides for reinstatement of them.
Specifically, we find, therefore, that Richard Campbell
joined the strike on June 23 or 24 and thereby became
an unfair labor practice striker, and that by refusing to
215 NLRB No. 32
HENNEPIN BROADCASTING ASSOCIATES
reinstate :unfair - labor practice 'strikers, Bortnem, Ells-
worth, t Gustafson, . Peterson , McKeever, - Hubbard,
Walby, and Campbell on June 26 and on August 16,
Respondent violated Section 8(a)(3) and (1) of the Act.
Finally , we, do not, adopt the, administrative Law
Judge's finding . that Respondent violated Section
8(a)(5) of the Act, for the reasons stated in Steel-Fab.
Inc., 212 NLRB No. 25 (1974)4 iii 'view of the serious
unfair labor practices committed by the Respondent,
we do , however, enter a bargaining order as a remedy.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge as modified below and
hereby orders that Respondent, Hennepin Broadcast-
ing Associates, Inc., Minneapolis, Minnesota, its offic-
ers, agents, successors, -and assigns, shall take the ac-
tion set forth in the recommended Order, as modified
below:
1. Eliminate paragraph 1(d).
2. Substitute the following as paragraph 2(a):
"Upon request, recognize and bargain with Ameri-
can Federation of Television and Radio Artists, Twin
City Local, AFL-CIO, as the exclusive bargaining re-
presentative of all full-time and regular part-time em-
ployees employed by the Respondent at its AM and
FM radio stations located in the Greater Saint Paul-
Minneapolis areas, who regularly are heard on the air,
excluding office clerical employees, guards, and super-
visors as defined in the Act, with respect to rates of pay,
hours of employment, or other terms and conditions of
employment and, if an understanding is reached, em-
body such understanding in a signed agreement."
3. Substitute the attached notice for that of the Ad-
ministrative Law Judge.
For the reasons set forth in his concurring and dissenting opinion in
Steel-Fab, Member Jenkins would find a violation of Sec 8(a)(5) as well as
entering a bargaining order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which parties had the opportunity to
give evidence, it has been decided that we, Hennepin
Broadcasting Associates, Inc., have violated the Na-
tional Labor Relations Act and we have been ordered
to post this notice.
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the right to support
327
and join a labor union and to bargain through your
representative without fear of discharge or other inter-
ference, restraint, coercion, or discrimination.
Accordingly we give you these assurances:
WE WILL, upon request, recognize and bargain
with American Federation of television and Radio
Artists, Twin City Local, AFL-CIO, as the exclu-
sive bargaining representative of all full-time and
regular part-time employees employed by the Re-
spondent at its AM and FM radio stations located
in the Greater Saint Paul-Minneapolis areas, who
regularly are heard on the air, excluding office
clerical employees, guards, and supervisors as de-
fined in the Act, with respect to rates of pay, hours
of employment, or other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment.
WE WILL offer to Rich Carey immediate and full
reinstatement to his former position or, if such
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
and other rights and privileges previously enjoyed,
and make him whole for any loss of pay suffered
by reason of his termination in the manner set
forth in the section entitled "The Remedy."
WE WILL offer immediate and full reinstatement
without prejudice to their seniority or other rights
and privileges, dismissing, if necessary, any em-
ployee hired subsequent to the day the strike be-
gan, the following named employees: John Bort-
nem, Robert Gustafson, James Hubbard, Gregory
Ellsworth, Gregory Peterson, Patrick McKeever,
Raymond Walby, and Richard Campbell and
make each of them whole for any loss he may have
suffered as a result of our failure to reinstate each
of them on or before July 4, 1973, in the manner
set forth in the section entitled "The Remedy."
WE WILL NOT discourage membership in Ameri-
can Federation of Television and Radio Artists,
Twin City Local, AFL-CIO, or any other union
by discharging or otherwise discriminating against
any of our employees because of their union or
concerted activity.
WE WILL NOT interrogate employees concerning
their union activity or those of other employees.
WE WILL NOT promise employees wage increases
on an individual basis tending to interfere with the
employees in their rights to bargain collectively or
otherwise engage in concerted activity.
WE WILL NOT in any manner interfere with, re-
strain, or coerce our employees in the exercise of
their rights to self-organization, to form labor or-
_Sanizations, to join or assist the above-named
union or any other labor organization, to bargain
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities.
HENNEPIN BROADCASTING
ASSOCIATES, INC
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was tried at Saint Paul, Minneasota, on November 7, 8, 9, and
12, 1973.' The complaint and notice of hearing was issued
on September 6, based on a charge filed on June 22 and an
amended charge filed on August 31.
The complaint alleges, in substance, that Hennepin Broad-
casting Associates, Inc. (herein Respondent), engaged in, and
is continuing to engage in, unfair labor practices in violation
of Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended (herein Act), in that said Respondent
unlawfully interrogated employees concerning their union
membership, activities, and desires and granted wage in-
creases to two employees in order to discourage union mem-
bership and activities all in violation of Section 8(a)(1); dis-
criminatorily discharged an employee because of his union
membership and activity and thereafter discharged several
other employees who were engaged in a lawful concerted
work stoppage in violation of Section 8(a)(1) and (3); and
through its continued refusal to recognize, meet, and negoti-
ate with the authorized collective-bargaining representative
of the employees in an appropriate bargaining unit, Respond-
ent has and is continuing to violate Section 8(a)(5) of the Act.
Respondent's answer denies the commission of the unfair
labor practices as alleged in the complaint.
Helpful briefs have been filed by the General Counsel and
the Respondent and have been carefully considered.
Upon the entire record and my observation of the de-
meanor of the witnesses, I hereby make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is, and at all times material herein has been,
a corporation duly organized and existing by virtue of the
laws of the State of Minnesota. Respondent maintains its
principal office and operates an AM radio station (KTCP-
AM) at 3701 Winnetka Avenue, New Hope, Minnesota. Re-
spondent also maintains and operates an FM radio station
(KTCR-FM) at 3800 Minnehaha Avenue, Minneapolis, Min-
nesota. Respondent's answer acknowledges that KTCR-AM
during the fiscal year ending June 30, 1973, had gross revenue
in excess of $500,000 with gross profits before taxes and
bonuses of over $100,000. Respondent's answer states that
KTCR-FM had gross revenues of less than $50,000 and
losses of approximately $40,000. Respondent receives reve-
nues generally from the sale of time for commercial advertis-
ing and its general manager acknowledged during the course
' All dates hereinafter will be 1973 unless otherwise indicated
of the trial that it had accounts in Chicago, Detroit, and New
York. Additionally, General Counsel Exhibit 17 is a "cover-
age map" prepared by Robert A. Jones, a counsulting engi-
neer located in La Grange, Illinois, indicating the area cover-
age of Respondent to include not only the greater
Minneapolis and St. Paul area, but also rural areas in counties
located both in Wisconsin and Minnesota. These coverage
maps are utilized by Respondent's salesmen.
To insure the elimination of obstacles to the free flow of
commerce, Congress granted the Board authority over all
labor disputes, as defined in the Act, occurring in commerce
or affecting commerce. By this grant of authority Congress
intended to delegate to the Board the full limit of the com-
merce power of Congress as that power may be marked out
by the courts. As marked out by the courts of authority of the
Board extends to activities which in isolation might be
deemed to be merely local but in the interlacings of business
across state lines abversely affect such commerce.' Within
these mandates the Board has asserted jurisdiction over all
enterprises engaged in the operation of radio or television
broadcasting stations which do a gross volume of business of
at least $100,000 per year.' The Board's standards adopt the
concept that it is the totality of an employer's operations
which determine whether or not jurisdiction should be as-
serted. Thus the dollar volume from all of the employer's
plants or locations constituting a single enterprise is totaled
to determine whether the relevant jurisdiction standard is
met.' On the basis of these facts, and consistent with Board
and court decisions, I find that the Respondent is an em-
ployer engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
i[ THE LABOR ORGANIZATION INVOLVED
The Board has, on previous occasions, found the American
Federation of Television and Radio Artists, AFL-CIO, to be
a labor organization within the meaning, of the Act.' Hal
Newell, the executive secretary of the Twin City Local, testi-
fied that the Union exists for the purpose of representing
employees in collective bargaining and in the administration
of the negotiated contracts such as the processing of griev-
ances and, further, that employees participate in the activities
of the Union. On the basis of these undisputed facts, I find
the American Federation of Television and Radio Artists,
Twin City Local, AFL-CIO (the Charging Party of AF-
TRA), to be a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
In addition to the question of jurisdiction raised by the
pleadings and evidence in this case, which has already been
disposed of, the Respondent seriously questions the treatment
2 See Polish National Alliance of the United States of North America v
N.L.R B, 322 U S 643 (1944)
3 See Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958),
and Siemons Mailing Service, 122 NLRB 81 (1958)
4 See T H Rogers Lumber Company, 117 NLRB 1732 (1957) Also
Siemons Mailing Service, supra.
5 See for example Raritan Valley Broadcasting Co., supra
HENNEPIN BROADCASTING ASSOCIATES
of the two radio stations as one business enterprise which
raises an issue as to the appropriate bargaining unit. Other
issues to be resolved might be framed in the form of questions
as follows: (1) What was the reason for Carey's discharge? (2)
Was it a violation of the Act to question the employees about
their knowledge of union activity? (3) Were the strikes unlaw-
fully discharged? (4) When did the strikers offer to return to
work? And (5) are they entitled to reinstatement under all the
circumstances?
B Chronology of Relevant Events
The parties hereto are not in serious disagreements as to
the sequence of events and many of the basic facts surround-
ing this labor dispute.' It is those "shaded" areas of differ-
ence and the impact or consequences which flow therefrom
that must be resolved.
KTCR-AM is operated from sunrise to sunset. KTCR-FM
is operated 24 hours each day except for 6 hours from mid-
night Saturday (or 12:01 a.m. Sunday) until 6 a.m. on Sun-
day. Mr. Tedesco is the president and owner of both stations.
Robert J. Rock is a vice president and the general manager
of both stations, responsible for the day-to-day operation.
Gerald D. Cunning is program director for both stations and
the immediate supervisor of the announcer-engineers herein
involved. Cunning was responsible for scheduling the air
shifts of the employees at both the AM and FM stations, does
some newscasting, has authority to hire and fire, and gener-
ally serves as an assistant to Robert Rock in the daily opera-
tion of the stations.
At the relevant time surrounding this dispute, there were
four announcer-engineers at the AM station-these were
Richard Carey, Gregory Peterson, Michael Fitzpatrick, and
a regular part-time announcer-engineer, James Hubbard,
who worked on the weekends. Mr Cunning was responsible
for a morning news sportscast. At the FM station the regular
full-time announcer-engineers were John Bortnem, Patrick
McKeever, Robert Gustafson, and Gregory Ellsworth. Ray-
mond Walby and Rick Campbell were regularly employed on
a part-time basis.
In the latter part of May, Gregory Ellsworth became quite
unhappy and upset about his wages because he received a cut
in pay when his shift was changed. This prompted Ellsworth
to discuss the feasibility of a union with some of his fellow
employee announcer-engineers, including Richard Carey.
Carey and Ellsworth then contacted Hal Newell, executive
secretary of the Union, and made an appointment to meet
with him to discuss "what is involved in putting in the union,
what a union could do for me, what a sample contract was
like, so we could determine if we were interested at all'in
doing anything further at this point." The meeting with Ne-
well occurred on June 5. Carey and Ellsworth, after having
their questions answered satisfactorily, were told by Newell
to contact the other announcer-engineers to see if a majority
of the employees were interested in joining the Union. There-
6 The Act defines labor disputes at Sec 2(9) as follows "The term labor
dispute includes an controversy concerning terms, tenure or conditions of
employment, or concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to arrange terms or
conditions of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee "
329
after, Carey and Ellsworth contacted the other announcer-
engineers and, after, ascertaining that there was interest
among the group, a meeting was held at Richard Carey's
house on or about June 10. This meeting was attended by
Peterson, Gustafson, McKeever, Hubbard, Bortnem, Ells-
worth, and, of course, Carey. This group of seven included
all of the announcer-engineers except full-time regular em-
ployee Michael Fitzpatrick and part-time regular employees
Raymond Walby and Rick Campbell. According to Richard
Carey, whose testimony I find fully credible, the group unani-
mously decided to arrange a date with Newell for the purpose
of joining AFTRA.,
All of the employees who had attended the meeting at
Carey's home on or about June 10, except Gustafson, met
with Newell on June 14 and signed forms captioned, "Desig-
nation and Application for Membership in the American
Federation of Television and Radio Artists."' Gustafson
met with Newell on the afternoon of June 13 because he was
scheduled to be working at the time the others planned to
meet with Newell on June 14. His application is, therefore,
dated June 13. It might be mentioned, parenthetically at this
point, that the applications of the two part-time regular em-
ployees Rick Campbell and Raymond Walby were signed and
dated July 6 and June 25, respectively, and appear in the
record as General Counsel Exhibits 13 and 15.
On Friday, June 15, Mr. Newell wrote to the Respondent,
attention Mr. Robert J. Rock, stating that AFTRA repre-
sented a majority of the employees and demanded recognition
(G. C. Exh. 2).
On Monday, June 18, AFTRA filed an RC petition
(18-RC-9614) with the Minneapolis Regional Office of the
NLRB seeking to have an election conducted among the
announcer-engineers of KTCR-AM and FM in accordance
with the applicable provisions of the Act (G. C. Exh. 10).
Mr. Rock testified he received the Union's June 15 letter,
demanding recognition, on June 18 at or about 10 a.m. He
further testified that he immediately called his attorney and
read the letter to him and was told by his attorney that
inclusion of the clerical help in the bargaining unit was an
error. (See G. C. Exh. 2 which uses the word "including"
instead of "excluding" in the paragraph describing the bar-
gaining unit. Such an inadvertent error would normally be
immediately recognized by an attorney familar with the field
of labor law ) Mr. Rock also testified that his attorney advised
him, "not to, in any way, discuss it with the personnel at the
radio station, which I didn't do. And, also, to not have any-
body else talk to them or give any raises or fire anybody." The
attorney advised Mr. Rock that he would handle the reply to
the Union's letter.
Program Director Cunning testified that Mr. Rock talked
to him by telephone on Friday, June 15, saying that Carey's
7 See G C Exh 3 through 9 for copies of the applications Par (2) of these
exhibits reads as follows "1 hereby designate the American Federation of
Television and Radio Artists as my exclusive agent for collective bargaining
purposes in any and all matters dealing with the radio industry, television,
television recorded commercials, records, slide films, electrical transcrip-
tions, any other means for mechanical reproduction, and any other matters
of industries within the jurisdiction of the said Federation I hereby further
authorize the said Federation to delegate its right to be my collective bar-
gaining agent to the said Local or to any other subdivision, agent or affiliate
of said Federation "
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"got to go. I want him to go now." Cunning replied by saying,
"Can we talk about it Monday viorning?"
On Monday, June 18, before the letter from Newell was
received by Respondent, Rock and Cunning discussed Ca-
rey's status. According to Respondent's own witnesses, Rock
wanted Carey to go, but was convinced by Cunning that
under all the circumstances Carey should stay. The decision
to retain him was left up to Cunning. After relating the June
18 discussion with Rock, Cunning gave these responses:
Q. So, at this time, would you say then, that you
decided not to fire Mr. Carey?
A. I had decided. I don't think Mr. Rock was of that
opinion, but I decided to retain him.
Q. What time did this conversation take place?
A. Between 8:30 and 9, right upon Mr. Rock's arrival
at the station.
According to Cunning when the letter from the Union
arrived , Rock discussed it with him and then it was decided
to call the attorney . According to Cunning , he asked the
attorney if, "there was any procedure we could follow that
would prove or disprove the truth of this letter ." Counsel
advised him not to "go around and browbeat them or any-
thing , but he said , 'I think you have the right to ask them if
they are represented by AFTRA "'
Mr. Cunning testified that thereafter he asked several of
the employees if they belonged to AFTRA or knew anything
about AFTRA . Cunning further testified , "Then I believe I
talked to Mike Knight ' and asked him what he knew about
it. He said, 'Oh, there was some talk about it awhile back.'
I said, 'What do you mean?' He said , 'Rich Carey came to me
and wanted me to join the union.' I said , 'What did you do?'
He said, 'I told him I wasn 't interested."' Cunning acknowl-
edged that on the afternoon of June 18 he discussed the
results of his questioning of the employees with Mr. Rock.
The testimony of witnesses McKeever and Peterson indi-
cates that Cunning not only interrogated them concerning
their interest or membership in AFTRA, but Cunning was
quite specific in seeking information concerning the extent of
Rich Carey 's activities on behalf of the Union.
On Wednesday , June 20, at a staff meeting-without any
mention of the Union being in the picture-the Respondent
sought to resolve the gripes and complaints of the employees.
While in some instances such conduct has been construed to
be interference and coercive of the employees (after the Com-
pany has received notification of a claim of majority represen-
tation by a labor organization), in this instance it was not
alleged in the complaint as a violation and in view of all the
evidence shall not be so considered herein . However, this
meeting is of significance because it was immediately follow-
ing this meeting that Mike Fitzpatrick ac'vised John Bortnem
that he had talked to Mr Rock and Mr . Rock had approved
a $50-a-month raise for Bortnem.9
James Hubbard , who was first employed by Respondent in
1968 and who has had various jobs at both the AM and the
FM station since that date, but at the time of the strike was
8 Mike Knight was the "air" name used by Mike Fitzpatrick, the announc-
er-engineer who also served as music director
9 There was no proof to indicate the raise was actually paid, only pro-
mised The employees, including Bortnem, went on strike 2 days later.
a week-end, part-time announcer,1° testified that he had
written a memorandum to Cunning in May requesting a raise
from $3 an hour to $3.50 an hour. On June 21 Cunning
advised Hubbard by way of a telephone call to Hubbard's
office that he had approved the raise and he would check into
it to see that it was paid."
On June 21 Rich Carey received a phone call at his home
from Cunning advising him, "Before you hear from some-
body else, Rich, I wanted to tell you that your services have
been terminated here at the radio station." Carey inquired as
to the reason and was told, "There is a letter here at the
station from the manager explaining the circumstance "
Carey went to the radio station, found the letter in his mail
box, and, after clearing out his desk, he departed without
anything further being said to him other than a "Good Morn-
ing" from Mr. Cunning. The termination letter was signed by
Robert J. Rock, general manager, and read as follows:
June 21, 1973
Mr. Richard Carey
This letter is to inform you that, effective immediately,
your services will no longer be required by KTCR
AM/FM Radio. The reason for this termination is be-
cause your activities on the air at KTCR are not in good
broadcast taste. Some examples are:
1.) The broadcasting of competitive dealer or product
spot announcements in the same commercial cluster;
2.) The disregard for the logged length of commer-
cials, specifically as they apply to Nashville North;
3.) The apparent willful disregard for the music poli-
cies of KTCR which resulted in a large number of lis-
tener complaints; and
4.) Your disregard for carrying through instructions
relative to furnishing commercials for KTCR-FM.
As compensation for lack of notice concerning this sepa-
ration, you will receive one (1) week's pay. You will also
receive one (1) week's pay for accrued vacation time.
Since Mrs. Thomas, our bookkeeper is on vacation this
week, your check for this money due you will be mailed
to your home on Monday, June 25. If you have any
further questions regarding this action, you may come in
and see me.
Robert J. Rock
General Manager
On the evening of June 21, several of the announcer-engi-
neers met with the Union's attorney at the home of Carey.
There they unanimously decided that their best course of
action would be to strike the Respondent at 5 p.m. the follow-
ing day
10 Hubbard resigned as a full-time employee of Respondent on December
31, 1971, and is employed full time at another vocation, but has remained
continuously employed by Respondent as a regular part-time employee
11 Hubbard participated in the strike of June 22 and, as in Bortnem's case,
there is no proof the promised increase was ever paid
HENNEPIN BROADCASTING ASSOCIATES
The following day the decision to strike was communicated
to Newell who advised that he would have to obtain the
sanction of the National AFTRA According to Newell's
testimony, this was done immediately by way of a long dis-
tance phone call to Sanford I. Wolfe, the national secretary.
On June 22 John Bortnem was the announcer-engineer on
duty at KTCR-FM on the afternoon shift. Sometime shortly
before 5 p.m., McKeever and Gustafson arrived at the radio
station and informed Bortnem that the strike had been sanc-
tioned by AFTRA. At 5 p.m. Bortnem read a "sign off'
which indicated the station was going off the air; the trans-
mitter was turned off; the building and equipment was gener-
ally made secure and the three announcer-engineers went
outside and began to picket.
At approximately the same time, Peterson, who was work-
ing at the AM station, was joined by Ellsworth and a similar
procedure was followed-the "sign-off" was read and the
transmitter was turned off. Carey, Peterson, and Ellsworth
began picketing; some time shortly after 7 p.m. Hubbard
joined the picketers.
According to Rock he had left the radio station and was
at a nearby gasoline service station when he received a phone
call from Robin Hanson, an office clerical, just before 5 p.m.
and was told that the announcer-engineers were going on
strike at 5 p.m. He testified that he heard the "sign-off' by
both stations over his car radio and immediately returned to
his office at KTCR-AM.
Mr. Rock's attorney arrived at the station within the hour
and after a consultation the following occurred as evidenced
by the testimony of Mr. Rock.
Q. And would you outline in the record precisely what
I .told you and precisely what you did?
A. I asked your advice. I said the stations have to be
signed on the air. Your advice was to go out and contact
each employee and order them to put the station back
on the air.
Q. Did you in any way order them to make any an-
nouncements or any personal statement?
A. I just ordered them to put the station on the air,
period. And I said, "If you don't, I am going to have to
replace you because the stations have to go on the air.
We have to broadcast." In fact, I told one of the people,
I think Mr. Peterson, "If you have some grievances, we
can talk about it on Monday, but let's keep the show on
the road." There were extremely hostile. In fact, there
was no conversation after that I went to each and every
employee and asked them the same question.
Q. Did any of them agree to turn the station back on?
A. No, sir.
Q. Did you then proceed over to the FM station?
A. Yes, sir.
Q. And what did you do there?
A. The same thing was asked those employees there.
Q. Did any of them agree to turn the station back on?
A. No, sir.
In Mr. Rock's affidavit (Resp. Exh. 5), he indicates that
when the employees refused to return to work they were told
they were discharged. The employees testified that when they
refused to return to work Rock said, "Then you are
fired."12 I do not.believe Rock used the word "replaced"
331
and I credit the testimony of Hubbard who testified the em-
ployees were told they were fired.
C. Analysis
1. The bargaining unit
Respondent argues that the AM and FM stations be
treated separately because "the economic realities require
separate bargaining units for each station " While the evi-
dence does indicate that there is a substantial difference in the
income of the two stations , income is not a relevant factor to
be weighed in ascertaining a unit appropriate for purposes of
collective bargaining . The Board considers a number of fac-
tors in resolving the appropriate unit issue , which include (1)
extent and type of union organization of the employees, (2)
bargaining history in the industry, (3) similarity of duties,
skills, interests , and working conditions of the employees; (4)
organizational structure of the company; and (5 ) the desires
of the employees
In the instant case, the supervision of both stations is the
same. Mr. Tedesco is the president and owner of both sta-
tions. Rock is the general manager of both stations and all the
"announcer-engineers" involved have the same immediate
supervisor-namely Mr. Cunning . Respondent 's stationery
(see G . C. Exh . 10) gives the appearance of a single unified
operation for both the AM and FM stations. The
salesmen-who are not herein directly involved-solicit ad-
vertising for both stations. Both stations have the same chief
engineer who performs the maintenance work for both sta-
tions. The personnel policies appear to be determined and
administered by Mr. Rock for both stations A number of the
employees have worked at both stations. There is a similarity
of the duties, skills , interests , and working conditions of the
employees. Based on the testimony and written applications
for membership , all the announcer-engineers employed by the
Respondent on June 15, except one, desire to be represented
in one bargaining unit by AFTRA.
Respondent also argues that the announcer-engineers are
professional because they do engineering work, and are
managerial because they often work alone and, as such, they
are management's only representative at the station at the
time. Both of these arguments are shallow and superficial.
For the most part the employees involved are only high-
school graduates with a cursory knowledge of how a radio
transmitter works. This knowledge is attained through at-
tendance at an 8 or 10 week school that enabled them to
memorize a few answers and thereby obtain a required FCC
operator 's license . This training enables them to turn the
"off-on" switches and to read and make log entries of certain
meter readings in compliance with FCC regulations. Such
training and activity hardly qualifies these "announcer-engi-
neers" as professionals . At most, it might be said they have
some technical skills and might more accurately be called
"announcer-technicians.""
12 Walby and Campbell-part-time regular employees at the FM
station-were not parties to the initial walkout and picketing, but they
joined AFTRA within the next few days (see G C Exh 13 and 15) and have
continued to participate in the strike
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Managerial employees are deemed to be employees who are
in a position to formulate , determine, and effectuate manage-
ment policies." Managerial employees, as such, are not
specifically excluded from a bargaining unit by the Act, but
truly nonsupervisory policymakers have been elevated or as-
similated to the status of supervisory employees by Board and
Court interpretation and supervisors are specifically excluded
by the Act. The mere fact that these "announcer-engineers"
are on duty alone or have a key to the premises hardly ele-
vates them to the status of managerial employees. There was
no evidence that the employees herein concerned formulate
or determine management policies. They perform limited du-
ties within the confines of rather narrowly drawn guidelines
prescribed by the Respondent. The "announcer-engineers"
are neither professional nor managerial employees. Accord-
ingly, I find that all full-time and regular part-time employees
employed by the Respondent at its AM and FM radio sta-
tions located in the greater Saint Paul-Minneapolis area, who
regularly are heard on the air, excluding office clerical em-
ployees, guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.15
2. Agents and supervisors
The complaint alleges the following individuals to be
agents acting for and on behalf of the Respondent and to be
supervisors within the meaning of Section 2(11) of the Act:
Robert J. Rock
Gerald D. Cunning
Charles E Ingle
Michael Lee
Fitzpatrick
Vernon C. Weegman
Vice President and
General Manager
Program Director
Chief Engineer
Music Director
Assistant Sales Manager
Ingle, Fitzpatrick, and Weegman did not testify and there
is a paucity of evidence relating to their authority and activity
that might enable one to determine whether they are supervi-
sors within the meaning of the Act.16 While there was evi-
dence to indicate that Fitzpatrick played a part in obtaining
a promise of a raise for an employee, this evidence is insuffi-
cient to make a definitive determination regarding his super-
visory status. It appears that this act was more that of a Good
Samaritan, or the act of a "spokesman," rather than the act
of an employee clothed with supervisory authority. The
status of employees Ingle, Fitzpatrick, and Weegman is being
left unresolved because, as indicated, the paucity of evidence
makes it impossible, and, furthermore, I find it unnecessary
13 But see KPOJ, Inc, et at, 129 NLRB 727 (1960), where the Board
included the "announcer-technicians" in the same unit with the "pure"
announcers
14 Ford Motor Co, 66 NLRB 1317 Also Palace Laundry Dry Cleaning
Corp, 75 NLRB 320, see especially fn 4 at 323
is See El Mundo, Inc, 127 NLRB 538 (1960)
16 See Sec 2(11) "The term 'supervisor' means any individual having
authority, in the interest of the employer, to hire, transfer, suspend , lay off,
recall, promote , discharge, assign, reward , or discipline other employees, or
responsibly to direct them, or to adjust their grievances , or effectively to
recommend such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature , but requires the
use of independent judgment."
to definitively determine their status in order to resolve all the
issues in this dispute.
The testimony of Robert J. Rock and Gerald Cunning as
to the authority they exercise in connection with Respon-
dent's business leaves no doubt that they are agents and
supervisors of Respondent within the meaning of Section
2(11) and (13) of the Act and I so find.
3. Restraint, coercion, promises of benefit
The interrogation by Cunning of the employees about their
interest in AFTRA, shortly after the letter from the Union
was received, and the promises made to Bortnem and Hub-
bard of wage increases within a few days following receipt of
the Union's letter demanding recognition are not denied by
Respondent. Respondent's counsel would seek to justify or
explain away the interrogation by contending the employees
were not "brow-beaten" and they did not feel they were being
coerced or threatened. This is not the law. "Questioning se-
lected employees about their union sympathies without any
legitimate reason therefor and without any assurance against
reprisal, by its very nature tends to inhibit employees in the
exercise of their right to organize." Engineered Steel Pro-
ducts, Inc., 188 NLRB 298 (1971). For example, see N.L.R.B.
Y. Illinois Tool Works, 153 F.2d 811 at 814 (C.A. 7, 1946),
where the court observed that "the test of interference, re-
straint and coercion under § 8(1) of the Act does not turn on
the employer's motive or on whether the coercion succeeded
or failed. [Citations omitted.] The test is whether the em-
ployer engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee rights
under the Act." The reluctance of some of the announcers to
acknowledge their membership in AFTRA or discuss their
interest in the Union, as testified to by Cunning, is, of itself,
indicative of the coercive nature of the interrogation. I find
the wholesale questioning of a majority of the employees in
a rather small unit, as to their knowledge or interest in AF-
TRA by Cunning on June 18, without adequate safeguards or
assurances against reprisals, to have interfered with and re-
strained employees in the exercise of their rights as guaran-
teed by Section 7 of the Act and thus violative of Section
8(a)(1) . "
The promise of wage increases to Bortnem and Hubbard
after having received the Union's letter demanding recogni-
tion and after having received the Union's petition for an
election, can only be interpreted as an act intended to curry
favor with the employees on behalf of Respondent thus inter-
fering with the employee' Section 7 rights. A promise or grant
of a calculated benefit to stifle an organizational campaign
may be unlawful interference even though no strings are ex-
plicitly attached. As the Eighth Circuit said in N.L.R.B. v.
Crown Can Company, 138 F.2d 263, " Interference is no less
interference because it is accomplished through allurements
17 There was some testimony by Rock suggesting that the ascertaining of
AFCRA's majority status by questioning the employees was permissable
and had been authorized by the N L R B. field investigation This evidence
has not been considered because (1) 1 do not credit the testimony attribut-
ing such a remark to the field investigator and (2) admittedly the field
investigator did not contact Mr Rock until June 20-after the RC petition
had been received by Respondent-and the violative interrogation found
herein occurred on June 18
HENNEPIN BROADCASTING ASSOCIATES
rather than coercion." (Citing Western Cartridge Co. v.
N.L.R.B., 134 F.2d 240 (C.A. 7). The infringement stems
from the timing and the impact. As the Supreme Court has
said:
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up
if it is not obliged."
I find that Respondent did promise wage increases to Bort-
nem and Hubbard on June 20 and June 21 intending thereby
to frustrate and interfere with the employees' rights as guar-
anteed by Section 7 of the Act and did thereby violated
Section 8(a)(1) of the Act."
4. The discharge of Carey
As indicated hereinbefore, Respondent' s witnesses testified
that a discussion had occurred between Rock and Cunning
on June 15 and again on June 18 relative to terminating
Carey's employment. According to the testimony of Respon-
dent's own witnesses , the final decision on June 18 was to
retain Mr. Carey's services. There is no evidence, however, to
indicate that Mr. Carey was advised, either written or orally,
that his job was in jeopardy. What happened then between 9
a.m. on June 18 and June 21, the date of Carey's discharge?
Mr. Carey is blamed for having played a competitive adver-
tisement during a Hamm's Beer remote. The other things
which happened are: Respondent learned that Rich Carey
was actively soliciting and encouraging employees to affiliate
with AFTRA; AFTRA demanded recognition and was ac-
tively seeking to have an election held by the National Labor
Relations Board in the event the Respondent failed to volun-
tarily recognize AFTRA.
The first incident hardly seems sufficient to justify a dis-
charge. Mr. Cunning agreed with the testimony of some of
the announcers that the announcers had never been in-
structed that they were not to play competitive ads in the
same cluster. The testimony of both Cunning and Rock indi-
cates that there is some uncertainty as to whether or not the
responsibility for the misplacement of the competitive ad
belonged to Greg Peterson or Rich Carey. Nevertheless, it
was Carey that was discharged immediately without a
thorough investigation of the facts. Carey and Ellsworth had
been the two most active ringleaders in soliciting the an-
nouncer-engineers to interest them in AFTRA. A meeting of
the employees had been held at Rich Carey's house and there
it had been decided that they would go as a group and join
AFTRA. Knowledge and information concerning Carey's
interest and activity on behalf of the Union was known to the
management. Not only on the part of Cunning, the supervisor
responsible for drafting the discharge letter received by
Carey, but also Mr. Rock who signed the letter. Cunning
acknowledged having reported to Rock following his interro-
gation of the employees concerning their interest and activity
on behalf of AFTRA, but was unable to recall whether or not
]B NLRB v Exchange Parts Co, 375 U S 405, 409 (1964)
19 U-Wanna-Wash Frocks, Inc, 203 NLRB 31 (1973)
333
he specifically related the conversation had with Fitzpatrick,
who had told Cunning that Carey had solicited his member-
ship . It is inconceivable that Cunning would have failed to
relate the only real , definitive piece of information obtained
as a result of his interrogation.
The reasons for discharge given in the termination letter
were all events that had happened in the past and had been
thoroughly discussed between Cunning and Rock on the
morning of June 18 when it was decided to retain Carey. The
reasons given by Rock at the hearing in this case are different
from those given by Rock in his affidavit. From my careful
review of all of the evidence, I am convinced that the reasons
given by the Respondent for the discharge of Carey were a
pretext, and that Carey was discharged solely because Re-
spondent was of the opinion that Carey was the leader in the
formation of the interest among the employees to join AF-
TRA. In my opinion, the testimony of Respondent' s witness
Rock is not to be credited. He was evasive, unresponsive, and
it was frequently necessary for his own counsel to remind him
to listen to the questions being asked. James. Hubbard, who
struck me as being an extremely credible and reliable witness
and a former manager of the FM station and perhaps the
most experienced of the announcers, testified that he has
played competitive dealer commercials in the same cluster
and that he had never been informed that this should not be
done. Carey testified that he was following the instruction of
Mr. Weegman, the assistant sales manager, in the time al-
lowed for the Nashville North commercials. Not only was
Mr. Carey a very credible witness, but failure of the Respond-
ent to call Mr. Weegman to rebut Mr Carey's testimony in
this regard warrants an inference that, if this witness had been
called to testify, it would not have been favorable to the
Respondent.20 The reference in the discharge letter to the
"willful disregard for the music policies," had reference to the
very brief period of time when Carey was in charge of the
music policy for the station, but he was relieved of these
duties some 6 to 8 weeks prior to the discharge and without
any apparent hard feelings on the part of the Respondent
toward Carey. There is insufficient evidence to find that
Carey ever disregarded his instruction relative to furnishing
commercials for KTCR-FM.
The record is abundantly clear that Rich Carey was. the
most obviously active union adherent While it is true as the
Respondent's brief points out that union activity does not
confer immunity or provide a guarantee against discharge for
cause, nevertheless, when the reasons advanced by the Re-
spondent are so vague, veiled, confused, and inconsistent, it
causes one to reach the inescapable conclusion that the real
cause of the discharge was the union activity on the part of
the dischargee. The discharge of a leading union advocate is
a most effective method of undermining a union organization
effort. 21 It strains credulity that an employee's conduct
might have been so serious as to precipitate a discussion
between the operating vice president and the employee's im-
mediate supervisor, relating to whether the employee should
be discharged and then, following a decision that he would
be retained, that the employee was not even talked to or warned
r
20 Interstate C,rculty US., 306 U S 208 , NLR B. v Wallick & Schwalm
Co., 198 F 2d 477 (C A 3)
21 N.L.R B v Longhorn Transfer Service, Inc., 346 F 2d 1003 (C A 5,
1965)
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his tenuous situation. The testimony by Respondent's wit-
nesses of such a conversation was the only evidence in the
record to reflect adversely on Cab ey's "job status" prior to
Respondent's learning of Carey's involvement with the Un-
ion. A complete failure to discuss with Carey his shortcom-
ings causes me to seriously doubt that the discussion ever
occurred. As related earlier herein, the only thing that oc-
curred thereafter to provide an excuse for the discharge was
the "airing" of a competitive ad in the same "cluster" or
sequence. This, however, had been previously done by others
without such dire results and the evidence is that there were
no instructions that it should not be done. The evidence seems
overwhelming that Respondent was motivated in his actions
toward Carey to rid itself of a known and active union adher-
ent. Even though part of the motivation for Carey's discharge
might have been his action of poor timing in airing competi-
tive commercials, in light of the total conduct of Respondent,
such circumstances cannot be legally used to effectuate a
companion motive to rid the Company of a union protago-
nist N.L.R B. v. West Side Carpet Cleaning Co., 329 F.2d 758
(C.A. 6, 1964). The discharge of an employee is violative of
the Act if Respondent is partially motivated by union ac-
tivity, even though the discharge may have been based on
other reasons as well. N. L.. .R.B. v Great Eastern Color Litho-
graphic Corp., 309 F.2d 352 (C.A. 2, 1962), cert denied 373
U S 950 (1963). I find the discharge of Rich Carey to have
been at least partially, and probably entirely, because of his
activity on behalf of the Union and thus violative of Section
8(a)(3) and (1) of the Act 22
5. The tactical discharge of the strikers
As related herein before, sometime shortly after counsel for
Respondent arrived at the AM station, Rock proceeded to
order employees Ellsworth, Hubbard, and Peterson (Carey
was also picketing, but of course had previously been dis-
charged) that if they did not return to work immediately they
would be fired. Rock then proceeded to the FM station where
McKeever and Gustafson were ordered back to work at their
next scheduled work shift with the alternative that if they did
not -eturn to work they would be fired. Bortnem was not
present when Rock discharged the other employees at the
FM station but a few days later Cunning approached him
while he was picketing and asked for his keys to the station.
Walby's discharge followed a slightly different pattern. Fol-
lowing the discharge of Carey, Walby was offered a full-time
job at the AM station and worked at the AM station from 10
a.m until 4:30 p.m. on June 22. Later that evening he visited
the FM station between 6:30 and 7 o'clock and whi! „ visiting
with Bob Gustafson and Pat McKeever heard Rock dis-
charge them. When Rock asked Walby if he was going to
return to work on his next scheduled shift, Walby replied as
far as he knew he was going to. The following day when he
reported for work he was told by the men on the control
22 See also N.L R.B. v Howell Automatic Machine Co, 454 F 2d 1077
(C A 6, 1972), NL R B v Adam Loos Boiler Works Co, 435 F 2d 707
(C A 6, 1970), and The Singer Company v N.L R B 429 F 2d 172, 180
(C A 8, 1970), where the court said "we think Jones ' discharge was han-
dled precipitately and, when coupled with the trivial nature of the violation,
it affords substantial evidence that the alleged rule violation was a mere
pretext for discharging Jones because of his union activities "
board that he was not allowed in the station or on the prem-
ises. Walby left and thereafter participated in the strike.
The evidence amply supports a finding that a majority of
the employees in the bargaining unit met with their counsel
on June 21 at Rich Carey's home and there a majority of them
decided they would strike Respondent on the following day
because of Respondent's illegal course of action in discharg-
ing Rich Carey. As heretofore found, the discharge of Rich
Carey was an unfair labor practice on the part of Respondent.
It follows therefore that the strike by the employees protest-
ing the discharge of Rich Carey was an unfair labor practice
strike. A primary strike, such as this was, is protected
whether called for economic reasons or to protest unfair labor
practices. It is a clear violation of the Act for an employer to
condition an employee's continued employment on his aban-
doning the Union since that indirectly interfers with the right
of the employee to choose a collective-bargaining representa-
tive free of employer coercion.23 The discharge of picketing
employees involved in a legal work stoppage for their own aid
and protection has generally been held not to be violative of
Section 8(a)(3) of the Act, because such discharges do not
have the affect of discouraging union membership. However,
discharges of this nature have been found to be violative of
Section 8(a)(1) of the Act inasmuch as such conduct by the
Respondent tends to interfere with the concerted activities by
employees undertaken for their protection.24 It is the affect
and not the motivation of an employer's action which deter-
mines whether the Respondent has violated Section 8(a)(1) of
the Act.25
Respondent argues that it was justified in discharging these
striking employees because their actions in shutting the trans-
mitter off and in refusing to return to work caused Respond-
ent to violate a regulation of the Federal Communications
Commission which requires that respondent maintain its sta-
tions on the air a specified number of hours a day. Respon-
dent's assertion is without merit. I know of nothing in the
Federal Communications Act which enslaves employees or in
any manner diminishes the protection afforded all other em-
ployees under the National Labor Relations Act. The argu-
ment advanced by this Respondent was asserted by the Re-
spondent in N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748
(C.A. 9, 1951), enf. 88 NLRB 1262. There the court affirmed
a Board holding saying: " . . the Communications Act
does not confer upon licensees thereunder the right to con-
script labor, nor does it expressly or by reasonable implica-
tions undertake to restrict the right of employees to strike or
quit their jobs, either singly or in concert. On the other side
of the picture the right of employees to strike and to engage
in concerted activities for their mutual aid and protection is
expressly recognized in the National Labor Relations Act
[citations omitted]. It seems purely fanciful to assume, as does
respondent, that the failure of a licensee to perform the obli-
gations prescribed by the Communications Act would consti-
tute a breach of such obligations on the licensee's part in
instances where the failure was caused by an economic
strike."26 The employees had a right to strike. In exercising
23 Georgia Hosiery Mills, 207 NLRB 781 (1973)
24 Modern Motor, Inc v N.L R B, 198 F 2d 925 (C A 8, 1952)
25NLRB.v McCartron,etal,d/b/a Price Valley Lumber Co, 216 F 2d
216 F 2d 212 (C A 9 1954), cert denied 348 U S 943
HENNEPIN BROADCASTING ASSOCIATES 335
that right they took the only reasonable and prudent course
of action available to them-namely , turning off the transmit-
ter and snaking the stations reasonably secure and safe before
leaving the premises to exercise rights given them under the
Act.
Respondent further asserts that the strike was illegal and
therefore unprotected because the announcer -engineers gave
no notice and voiced no demands before they walked out.
Again the Respondent 's assertion is erroneous . Notice is not
a prerequisite to engaging in a protected strike . In N.L.R.B.
v. Washington Aluminum Co., 370 U.S. 9, 14 (1962), the
court said : "We cannot agree that employees necessarily lose
their right to engage in concerted activities under § 7 merely
because they do not present a specific demand upon their
employer to remedy a condition they find objectionable. The
language of § 7 is broad enough to protect concerted activities
whether they take place before, after, or at the same time such
a demand is made."
I find the discharge of all the announcer-engineers because
they refused to abandon their picketing and striking activities
in protest of the unfair labor practice discharge of Rich Carey
to have further interfered with the Section 7 rights guaran-
teed by the Act and therefore to be further violative of Section
8(a)(1) of the Act.
6. The reinstatement
Respondent argues that even though an employee's aims
may be legitimate , if the concerted activity amounts to disloy-
alty, such disloyalty may merit a discharge and/or relieve the
employer of reinstatement obligations . In support thereof Re-
spondent cites Local Union No. 1229, International Brother-
hood of Electrical Workers (Jefferson Standard Broadcasting
Co.), 94 NLRB 1507, enfd . 346 U.S. 464 ( 1953). In that
decision the Supreme Court in overruling the D . C. Circuit
and agreeing with the Board quoted the Board as follows:
"We .. . do not decide whether the disparagement of pro-
duct involved here would have justified the employer in dis-
charging the employees responsible for it had it been uttered
in the context of a conventional appeal for support of the
union in the labor dispute ." The court then says, "This un-
derscored the Board's factual conclusion that the attack of
August 24 was not part of an appeal for support in the pend-
ing dispute . It was a concerted , separable attack purporting
to be made in the interest of the public rather than in that of
the employees." An examination of the letter which was
dated July 19, and mailed to the advertisers of station KTCR
fails to place it in the same category as the handbill dis-
tributed by the employees in the Jefferson Standard Broad-
casting Co. case . (See Resp . Exh. 2 .) The letter makes it
crystal clear that the employees are involved in a labor dis-
pute with radio station KTCR and sets forth some of the
reasons why they are involved in a strike . Thereafter the
handbill appeals to the advertisers to support the strikers by
withholding their advertising from KTCR with whom the
striking employees are involved in a legal labor dispute.
26 While the Glabe Wireless case dealt with an economic strike situation,
the principle enunciated would be even more applicable in an unfair labor
practice strike Also see Central Broadcasting Corporation , d/b/a WENO,
182 NLRB 866 (1970 ), enfd 441 F.2d 1145 (C A 6, 1971), wherein the
Respondent company raised similar defenses before the Board
Clearly this handbill is distinguishable from that which was
employed in the Jefferson Standard Broadcasting Co. case
and is not the kind of conduct which would remove the
employees from the protection of Section 7 of the Act.27
The Respondent introduced evidence in the form of an
affidavit by Robin Kay Hanson to support its contentions
that conduct by at least one of the employees had been of such
a nature as to prevent his reinstatement. Robin Hanson's
testimony was inconsistent with her affidavit and as a conse-
quence I place no reliability in either her testimony or her
affidavit. (See Resp. Exh. 7.) Robin Hanson was not a credi-
ble witness. Additionally, even if the statements attributed to
Greg Ellsworth were found to have been said, it is highly
doubtful that such language or conduct would prevent rein-
statement or justify a discharge. In Blue Jeans Corpora-
tion, 170 NLRB 1425 (1968), the Board held that an em-
ployee who had threatened to "kill the S.O.B." who had
informed the employer that she was soliciting for the Union
and threatened a supervisor with a pair of scissors, would not
forfeit her right to reinstatement since her misconduct was
provoked by her employer's unfair labor practices. In so hold-
ing the Board quoted in part from N.L.R.B. v. M & B Head-
wear Co., Inc., 349 F.2d 170 (C.A. 4, 1965), as follows: "An
employer cannot provoke an employee to the point where she
commits such an indiscretion as is shown here and then rely
on this to terminate her employment.. . . The more extreme
an employer's wrongful provocation the greater would be the
employee's justified sense of indignation and the more likely
its excessive expression. To accept the argument addressed to
us by the company would be to provide employers a method
of immunizing themselves from the only real sanction against
violations of section 8(a)(3). . . . [R]efusal to reinstate her
would put a premium on the employer's misconduct." After
a careful examination of all the evidence, I find nothing in this
case so flagrant as to render any of the employees unfit for
further service or to excuse the Respondent from its obliga-
tions toward the discharged employees.28
7. The unconditional offer to return to work
According to the testimony of Gregory Ellsworth , on June
26 (at a time when the parties were involved in the Minneapo-
lis, Minnesota , District Court concerning Respondent's ef-
forts to obtain a temporary restraining order), Mr. Hansing,
the attorney for the Charging Party, made an unconditional
offer on behalf of the employees to return to work. According
to Ellsworth, Mr. Rock responded by saying that the two
guys who shut his transmitter down would never work there
again , but he didn't know about the others. Hansing report-
edly replied, "These guys want to go back to work. Will you
give me an answer by Thursday?" To which Mr. Rock re-
sponded, " I don 't know." Carey's testimony corroborates the
testimony of Ellsworth as to the occurrence of the conversa-
tion . Both Ellsworth and Carey testified that they recalled
this incident rather specifically because immediately follow-
ing its occurrence they were asked by Mr. Hansing if each of
them had heard the conversation. They were asked by Hans-
ing to repeat what they had heard and then told that they
27 See Texaco, Inc, 462 F 2d 812 (C A 3, 1972)
28 ODamel Oldsmobile, Inc., 179 NLRB 398 (1969)
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should carefully remember the particular conversation. Mr.
Rock does not deny that a conve, sation concerning the em-
ployees returning to work occurred. His version is only
slightly different as to the language used by Mr Hansing
According to Rock, Hansing said, "What would you say if
I told you all of the employees were willing to return to
work?" Rock then said, "Are they?" And Hansing replied,
"No." Rock then stated, "At this time I don't know if I could
ever re-employ the two people that turned the station off the
air and I don't know if I could every employ Mr. Ellsworth
because of the personal remarks he made against me, but that
will remain to be seen." According to Rock, Hansing then
said, "Would you think about this and call me within a week
or 10 days?" Mr. Rock replied, "Our jobs have been filled,
these people walked out. If you want to contact me, you
certainly are very welcome to do it." I find it rather incredible
that Rock would have made such a statement as "our jobs
have been filled l e d . unless it was in reply to Mr. Hansing's
unequivocal offer on behalf of the employees to return to
work. Thereafter on August 16, when no offer of reinstate-
ment from the Respondent had been forthcoming, Mr. Ne-
well wrote to the Respondent again making an unconditional
offer on behalf of the eight striking employees and Carey to
return to work (G. C. Exh. 11). Respondent refused to rein-
state the strikers in a letter dated August 31 Mr. Newell
responded to the Respondent's August 31 letter on Septem-
ber 6, stating: "We stand by my letter of August 16, 1973. On
the basis of this evidence it seems perfectly clear and I find
that Hansing made an unconditional offer on the part of the
employees to return to work on June 26 and thereafter the
offer was repeated in letters of August 16 and September 6."
8 The refusal to bargain
The evidence and testimony unmistakably establishes that
seven employees had signed AFTRA application cards on
June 15. On that date, there were only 10 employees em-
ployed by Respondent in what I have heretofore found to be
an appropriate bargaining unit. The Union demanded recog-
nition by letter dated June 15 which was received by Re-
spondent on June 18. Respondent has ignored the demand
an, continues to refuse to recognize the Union. During the
interim period, Respondent has committed a number of un-
fair labor practices calculated to dissipate and destroy the
Union's majority as heretofore set forth in detail. Under such
circumstances the Respondent is guilty of violating Section
8(a)(5) of the Act and I so find. There remains, however, the
question of whether in the cirumstances of this case, consider-
ing particularly the nature and extent of Responder"s other
unfair labor practices a remedial bargaining order is war-
ranted under the principles declared in N.L.R.B. v Gissel
Packing Co., Inc., 395 U.S 575 (1969).
It might be well to recite significant portions of the Su-
preme Court's decision in Gissel in order to determine its
application to the facts herein.
The traditional approach utilized by the Board for
many years has been known as the Joy Silk doctrine. Joy
Silk Mills, Inc., 85 NLRB 1263 (1949), enforced &7 U.-$
App. D.C. 360, 185 F.2d 732 (1950). Under that rule, an
employer could lawfully refuse to bargain with a union
claiming representative status through possession of au-
thorization cards if he had a "good faith doubt" as to the
union's majority status, instead of bargaining, he could
insist that the union seek an election in order to test out
his doubts. The Board, then, could find a lack of good
faith doubt and enter a bargaining order in one of two
ways. It could find (1) that the employer's independent
unfair labor practices were evidence of bad faith, show-
ing that the employer was seeking time to dissipate the
union's majority. Or the Board could find (2) that the
employer had come forward with no reasons for enter-
taining any doubt and therefore that he must have re-
jected the bargaining demand in bad faith. An example
of the second category was Snow & Sons, 134 NLRB 709
(1961), enforced 308 F.2d 687 (C.A. 9th Cir. 1962),
where the employer reneged on his agreement to bargain
after a third party checked the validity of the card signa-
tures and insisted on an election because he doubted that
the employees truly desired representation
Continuing, the Court traced the Board's modifications to the
Joy Silk doctrine and then said:
Thus, an employer can insist that a union go to an elec-
tion, regardless of his subjective motivation, so long as he
is not guilty of misconduct,- he need give no affirmative
reasons for rejecting a recognition request, and he can
demand an election with a simple "no comment" to the
union [Emphasis supplied.]
After considering the cases and the legislative history and
concluding that Congress intended that there were acceptable
methods of ascertaining majority status other than by a
Board-conducted election, the Court said:
And we have held that the Board has the same authority
even where it is clear that the union, which once had
possession or cards from a majority of the employees,
represents only a minority when the bargaining order is
entered. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702
(1944). We see no reason now to withdraw this authority
from the Board. If the Board could enter only a cease-
and-desist order and direct an election or a rerun, it
would in effect be rewarding the employer and allowing
him to "profit from [his] own wrongful refusal to bar-
gain," Franks Bros., supra, at 704, while at the same time
severely curtailing the employees' right freely to deter-
mine whether they desire a representative. The employer
could continue to delay or disrupt the election processes
and put off indefinitely his obligation to bargain; and any
election held under these circumstances would not be
likely to demonstrate the employees' true, undistorted
desires.
In giving approval to a bargaining order without an election,
the Court then concluded:
The only effect of our holding here is to approve the
Board's use of the bargaining order in less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes. The Board's
authority to issue such an order on a lesser showing of
HENNEPIN BROADCASTING ASSOCIATES
employer misconduct is appropriate, we should empha-
size, where there is also a showing that at one point the
union had a majority; in such a case, of course, effectuat-
ing ascertainable employee free choice becomes as im-
portant a goal as deterring employer misbehavior. In
fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration the
extensiveness of an employer's unfair practices in terms
of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board finds
that the possibility of erasing the effects of past practices
and of ensuring a fair election (or a fair rerun) by the use
of traditional remedies, though present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargaining
order, then such an order should issue.
In the instant case , there can be no doubt but that the
Respondent's illegal course of conduct-interrogating em-
ployees, promising wage increases, and discharging em-
ployees engaged in union or concerted activity-was cal-
culated to cause the Union's majority strength to be
dissipated and I have so found. To hold otherwise would
allow the Respondent to profit by its own illegal conduct. I
find that the Respondent's course of conduct was not only
violative of Section 8(a) (1) and (3) of the Act, but its course
of conduct after having knowledge of the Union's majority
status and demand of recognition was clearly a violation of
Section 8(a)(5) of the Act. Under the doctrine expressed by
the United States Supreme Court in Gissel, supra, a bargain-
ing order remedy is appropriate in situations where, in fact,
a union's majority can be clearly established by authorization
cards and the nature and extensiveness of the employer's
unfair labor practices make a subsequent free choice by the
employees problematical. Clearly a Gissel-type remedy is
warranted under all the circumstances of this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2) and (6) of the Act.
2. American Federation of Television and Radio Artists,
Twin City Local, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees employed
by the Respondent at its AM and FM radio stations located
in the greater Saint Paul -Minneapolis area, who regularly are
heard on the air, excluding office clerical employees , guards,
and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. The Union , at all times since June 15, 1973, has been and
is now the exclusive representative of a majority of the em-
ployees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing on June 18, 1973, and at all times since, to
recognize and bargain collectively with the Union as the
exclusive representative of its employees in the appropriate
bargaining unit , the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
337
6. By discharging Rich Carey on June 21, 1973, because he
was actively promoting the employees to become interested
in and to join the Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act:
7. A strike which commenced on June 22, 1973, because
of Respondent's discharge of Rich Carey was an unfair labor
practice strike.
8. By its course of conduct and language to the striking
employees on June 22, 1973, Respondent tactically dis-
charged the following named strikers in violation of Section
8(a)(1) of the Act: John Bortnem, Gregory Ellsworth, Robert
Gustafson, James Hubbard, Patrick McKeever, and Greg
Peterson.
9. By interrogating the employees concerning their interest
or activity relating to the Union and in seeking to ascertain
who was the most active union adherent, Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
10. By promising wage increases to employees Bortnem
and Hubbard after knowledge of the Union' s claims of
majority representation, the Respondent engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(1) of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
12. Any and all allegations contained in the complaint not
specifically found herein are to be dismissed.
THE REMEDY
Having found that Respondent engaged in and is engaging
in certain unfair labor practices, it will be recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
Respondent has committed unfair labor practices tending
to destroy the Union's majority and to make a fair election
impossible. The affects of such conduct can only be remedied
by an order requiring Respondent to bargain with the Union.
By its conduct in interrogating its employees, by discharging
Rich Carey because of his union activity, and by tactically
discharging a majority of the employees who elected to strike
in protest of Respondent's unfair labor practices, Respon-
dent's conduct has been so egregious as to warrant a
Gissebtype bargaining order.29 Clearly the unfair labor
prctices committed herein by the Respondent were so perva-
sive and outrageous that their coercive effects cannot be
eliminated by the application of traditional remedies.30 Ac-
cordingly the remedy shall require the Respondent to recog-
nize and, upon request, bargain with the Union.
Having found that Respondent unlawfully discharged
Rich Carey in violation of Section 8(a)(3) of the Act, it will
be recommended that Respondent offer him immediate and
full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and
privileges and to make him whole for any loss of earnings or
29 Gissel Packing Co, Inc., supra; Peerless ofAmenca, Inc, 198 NLRB
982 (1972).
30 United Electric Company, 194 NLRB 665 (1967)
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other monetary losses he may have suffered as a result
of such discrimination from the date of his discharge until
reinstated.
Having also found that Respondent tactically discharged
the striking employees and that the strike was an unfair labor
practice strike from its inception, I shall recommend that
Respondent be required to reinstate, or offer immediate and
full reinstatement to each employee to his prestrike or sub-
stantially equivalent position with all the rights and benefits
he would have accumulated but for the discrimination against
him, discharging, if necessary, any strike replacements. The
Respondent shall also be required to make whole all of the
striking employees for any loss they may have suffered as a
result of the Company's failure to reinstate them beginning
5 days after their unconditional application for reinstatement
was made. I have found that counsel representing the Union
made an unconditional offer of reinstatement on behalf of the
employees to the Respondent's vice president and general
manager, Mr. Rock, on June 26, thus the backpay shall run
from July 4, 1973, until the date of their reinstatement.
Any backpay will be determined in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Hennepin Broadcasting Associates, Inc.,
its officers, agents, successors and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees in an effort to ascertain their
interest or activity on behalf of a union, or other efforts of the
employees to engage in concerted activity.
(b) Directly or indirectly promising employees increases in
wages tending to influence them in their interest and activity
on behalf of the Union or other concerted activities.
(c) Discouraging membership in the American Federation
of Television and Radio Artists, Twin City Local,
AFL-CIO, or any other labor organization by discharging or
in any other manner discriminating against employees in re-
gard to hire or tenure of employment or any other term or
condition of employment.
(d) Refusing to bargain collectively with American Federa-
tion of Television and Radio Artists, Twin City Local,
AFL-CIO, as the exclusive bargaining representative of the
employees in the following unit:
All full-time and regular part-time employees employed
by the Respondent at its AM and FM radio stations
located in the greater Saint Paul-Minneapolis area who
regularly are heard on the air, excluding office clerical
employees, guards and supervisors as defined in the Act,
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
constitute a unit appropriate for the purposes' of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the Union, or any other
labor organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request, bargain with the Union named above as
exclusive representative of the employees in the appropriate
unit described above with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed statement.
(b) Offer to Rich Carey immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges and
make him whole for any loss of earnings or other monetary
losses suffered by him, in the manner set forth in the section
above entitled "The Remedy."
(c) Offer to Bortnem, Campbell, Ellsworth, Gustafson,
Hubbard, McKeever, Peterson, and Walby immediate and
full reinstatement to their former or substantially equivalent
positions, respectively, without prejudice to their seniority or
other rights and privileges, dismissing, if necessary, any em-
ployees hired subsequent to the day the unfair labor practice
strike began. In the manner set forth in "The Remedy," make
each of them whole for any losses they may have suffered as
a result of Respondent's failure to reinstate them beginning
5 days after their unconditional offer to return to work, which
date I have found to be June 26, 1973, and continuing until
the date of their reinstatement.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary for
determination of the amount of backpay due and the right of
reinstatement under the terms of this order.
(e) Post at its principal office in the city of New Hope,
Minnesota, and on its bulletin boards, or such other place as
the usual notices to employees are posted, at its KTCR-AM
and KTCR-FM radio stations, copies of the attached notice
marked "Appendix."32 Copies of such notice, on forms
provided by the Regional Director for Region 18, after being
signed by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
32 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
HENNEPIN BROADCASTING ASSOCIATES 339
taken by Respondent to insure that said notices are not al- within 20 days from the date of this Order, what steps the
tered , defaced , or covered by any other material. Respondent has taken to comply herewith.
(f) Notify the Regional Director for Region 18, in writing,