KFXM Broadcasting Co.

National Labor Relations Board - Board Decisions

Jun 26, 1970

183 N.L.R.B. 1187 (N.L.R.B. 1970)

KFXM BROADCASTING COMPANY
KFXM Broadcasting Company and Los Angeles Lo-
cal, American Federation of Television and Radio
Artists, AFL-CIO. Cases 31-CA-1233 and
31-CA-1444
June 26, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 24, 1970, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
matter, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the com-
plaint and recommended that such allegations be
dismissed. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, both the General Counsel and the
Charging Party filed cross-exceptions and support-
ing briefs, and the General Counsel filed an answer-
ing brief.
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
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this proceeding and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as hereinafter
modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, KFXM Broadcasting
Company, San Bernardino, California, its officers,
agents, successors, and assigns shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Add the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Upon his unconditional application
183 NLRB No. 121
1187
therefor, offer to Claude Hooten immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, dismissing, if necessary, any replace-
ment employee "
2. Add the following as the last indented para-
graph to the Notice to All Employees:
WE WILL offer to Claude Hooten, upon his
unconditional application therefor, immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges,
dismissing, if necessary, any replacement em-
ployee
I The Charging Party has filed exceptions to the Trial Examiner's failure
to include a monetary remedy to make the employees whole for losses they
may have suffered as a result of the Respondent's unlawful refusal to bar-
gain We deem it inappropriate in this case to depart from our existing pol-
icy with respect to remedial orders in cases involving violations of Sec
8(a)(5), and therefore deny the said request Monroe Auto Equipment
Company, Hartwell Division, 164 NLRB 1051 Because employee Hooten's
request for reinstatement made on April 25, 1969, was unequivocally re-
jected by Respondent during the second week of May 1969, and because
thereafter he remained on strike as an unfair labor practice striker, we be-
lieve that he is entitled to reinstatement upon his subsequent application
Accordingly, we shall modify the Trial Examiner'\ Recommended Order
and require Respondent to reinstate Hooten upon his unconditional appli-
cation for reinstatement
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceed-
ing was heard before me in San Bernardino,
California, on October 7, 8, 9, and 10, 1969, on the
consolidated complaint of General Counsel, as
amended, and the answer, as amended, of KFXM
Broadcasting Company, herein called the Respon-
dent.' The consolidated complaint contains allega-
tions of violations of Section 8(a)(5), (3), and (1)
and Section 2(6) and (7) of the Labor Manage-
ment Relations Act, 1947, as amended, 61 Stat.
136, herein called the Act. The parties waived oral
argument, and briefs filed by General Counsel and
Respondent have been carefully considered.2
Upon the entire record, and from my observation
of the witnesses, I make the following:
' A charge in Case 31-CA-1233 was filed on October 23, 1968, and in
Case 3l-CA-1444 on May 16, 1969 A consolidated complaint was issued
on July 11, 1969, and amended at the outset of the hearing herein
P However, Respondent's brief is confined to a single issue , relative to the
adequacy of Respondent's answer in neglecting to set forth a matter of af-
firmative defense, as explicated infra
427-258 O-LT - 74 - 76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
on various dates, from June 1968, to and including
April 1969, as more fully set forth in the complaint,
or (2) by Robert Bunnell , General Manager, advis-
ing employees on June 18, 1968, that it would be
futile for them to strike because the Respondent
would not sign a contract with the Union; or (b)
failed and refused to bargain collectively, in good-
faith, with the Union as the exclusive collective-
bargaining representative commencing August 9,
1968, (1) by engaging in surface and bad-faith bar-
gaining, dilatory and evasive bargaining tactics, and
conduct calculated to frustrate reaching an agree-
ment, as more fully detailed in the complaint, (2)
by unilaterally, and without notice to the Union,
changing the salary or rate of pay for the position
of News Director, in April 1969, or (3) by uni-
laterally, and without notice to the Union, on or
about May 3, 1969, changing the salaries and
reducing the hours of work of employees, in each
instance in contravention of the provisions of Sec-
tion 8(a)(5) and (1) of the Act; or (c) dis-
criminated in regard to hire or tenure, or terms or
conditions of employment of its employees in con-
travention of the provisions of Section 8(a)(3) and
(1) of the Act by (1) failing and refusing to rein-
state strikers identified as James Conniff, Brad Ed-
wards (a/k/a Claude Hooten), or Craig Denny
(a/k/a Claude C Smith), upon their unconditional
application for reinstatement on or about April 26,
1969, or (2) by failing to fully reinstate Terrence
Frazier and Johnny Bruce (a/k/a Jon B. Thoen), on
April 15, 1969, and Don McCoy, Charles R. Wal-
ters, or Dennis West (a/k/a Dennis J. Pezzato)3 on
April 26, 1969, or to pay each his former salary, or
restore each to his former job duties or his hours of
work and pay, upon the unconditional application
of each on said dates, or (3) failed and refused,
upon his unconditional application, to reinstate
Sherman Mason from April 26, 1969, to June 19,
1969, and since the latter date failed and refused to
fully reinstate him by restoring him to his former
salary, or (4) failed and refused to pay Terrence
Frazier the normal rate of pay for the position of
News Director, commencing April 25, 1969, and
continuing until June 12, 1969, or (5) commencing
May 3, 1969, unilaterally changing salaries or rates
of pay and reducing the hours of work of the em-
ployees employed in the unit for the purpose of re-
warding those employees who did not support the
Union and punishing those employees who had
joined or assisted the Union or had engaged in
other concerted activities. In addition, it is alleged
that the separation of Terrence Frazier, who quit
his employment on June 12, 1969, was a result of
Respondent's failure and refusal to fully reinstate
him, and thus constituted a constructive discharge.
It is alleged that the unfair labor practices of
Respondent complained of caused and prolonged a
The complaint alleges, the answer does not deny,
and I find, that Respondent is a California corpora-
tion owning and operating an AM commercial
radio station with the call letters KFXM, serving
the area of San Bernardino, California. By reason
of its normal course of operations, Respondent an-
nually, a representative period, does a gross volume
of business in excess of $250,000, of which a sub-
stantial amount is derived from the sales of its ser-
vices to customers located outside the State of
California.
KDUO Broadcasting Company, a California cor-
poration, owns and operates an FM commercial
radio station with the call letters of KDUO, serving
the area of San Bernardino, California. By reason
of its normal course of operations, it annually, a
representative period, does a gross volume of busi-
ness in excess of $70,000, of which a substantial
amount is derived from the sales of its services to
customers located outside the State of California.
The Respondent and KDUO have the same
owners, operating their radio station out of the
same building, using common supervisors, and their
labor relations policies are established by the same
individuals. The complaint alleges, the answer does
not deny, and I find, Respondent and KDUO con-
stitute a single employer for the purposes of the
Act.
The complaint alleges, the answer does not deny,
and I find, Respondent is and at all material times
has been an employer engaged in commerce and in
a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Los Angeles Local, American Federation of
Television and Radio Artists , AFL-CIO, herein
called the Union , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The principal issues raised by the pleadings and
litigated at the hearing are whether the Respon-
dent: (a) interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in
Section 7 of the Act, in violation of Section
8(a)(1), by threats, promises, impeding employees'
use of free time, creating the impression of surveil-
lance, or soliciting employees to cease supporting a
strike, by (1) Al Anthony, Director of Operations,
' The name of Vic Morino was stricken during the hearing , by reason of
his failure to appear
KFXM BROADCASTING COMPANY
strike which commenced October 25, 1968, and
continued until approximately April 25, 1969.
Respondent, by answer, denied the commission
of any unfair labor practices. At the outset of the
hearing, Respondent asserted that it was not, by its
answer, raising any issue as to the continuance of
the Union's majority status. Respondent's answer
includes some seven paragraphs of minute detail, in
response to paragraph 14 of the complaint, which
sets forth 10 specifications of alleged indicia of
bad-faith bargaining. However, Respondent denied
generally the other allegations of unfair labor prac-
tices, and did not plead any affirmative defenses.
Supervisory Personnel and Agents
It is undisputed that Robert Bunnell, general
manager, and Al Anthony,' director of operations,
at all times material herein, have been and are
agents of the Respondent and supervisors within
the meaning of Section 2(11) of the Act.
Background and Sequence of Events
There is no dispute as to the background facts
and sequence of events set forth herein.
On June 21, 1968, in Case 31-RC-815, the Re-
gional Director issued a Decision and Direction of
Election for a unit sought by the Union, described
infra. On July 19, 1968, an election was held. On
July 29, 1968, the Union was certified.
On August 2, 1968, the Union requested Respon-
dent to meet for the purpose of collective bargain-
ing. Meetings were held on August 23, September
11, 17, and 30, 1968. Transcripts of the exchanges
between the parties at the last three meetings were
prepared by a court reporter.
The meetings were not productive of an agree-
ment. A strike ensued, commencing October 25,
1968, and terminating approximately April 25,
1969, when the Union requested unconditional
reinstatement of the striking employees.
Interference, Restraint, and Coercion
There are 10 specifications of conduct alleged to
be in derogation of Section 8(a)(1) of the Act, all
of which, with a single exception, are attributable
to Director of Operations Anthony, on various
dates from June 1968 to April 1969 The other
specification relates to conduct of General
Manager Bunnell, on June 18, 1968. The evidence
related to these matters is considered chronologi-
cally.
It is alleged that, in June 1968, Anthony
threatened employees that if they supported the
Union by striking Respondent would terminate
An alias, by which Amondo Fiore is commonly known
' Bunnell denied having any conversation relative to the Union with
Mason On the basis of demeanor, as well as the implausible recitation of
Bunnell , considering all of his testimony, on this conflict, I credit Mason
6 It appears from the record that a river bed, inferentially dry, is adjacent
to Respondent's property, and inferentially the nearest available space or
1189
their employment and not rehire them. It is also al-
leged that Anthony advised employees that if they
refrained from striking, if a strike occurred, they
would be given better paying jobs.
Terrence Frazier credibly related that he initiated
a conversation with Anthony, in the latter 's office,
shortly after the certification of the Union ( late Ju-
ly). Frazier, asserting he was unfamiliar with
strikes, was advised that he did not have to go out
on strike. Anthony also advised him that people
who went out on strike would have no guarantee of
their jobs. Anthony related that Respondent
"would not have to rehire" strikers who would be
treated the same "as if they walked off their job."
Anthony asserted there would be jobs open in the
event of a strike, and Frazier indicated an interest
in the job of News Director if the incumbent went
out on strike. Frazier acknowledged Anthony did
not make any commitment if Frazier did not go out
on strike. While Anthony testified at length, he was
not questioned about his alleged conversation with
Frazier.
Finding no evidence that Anthony offered Frazi-
er a better paying job if Frazier refrained from
striking, I will recommend dismissal of the allega-
tions of paragraph 17(`b) of the complaint.
It is alleged that Bunnell , on June 18, 1968, ad-
vised employees that it would be futile for them to
strike, because Respondent would not sign a con-
tract with the Union.
Sherman Mason credibly related that a few
weeks before the election, Bunnell advised that
there might be a strike, that it could last a long
time, as had a similar strike at another radio sta-
tion, KPOL, located in Los Angeles, and, in such
event, Mason could very well walk out on the street
"until there is a deep trench built along that
street," explaining "we haven't signed a contract
yet, and it could very well be that it will be some
time before we do, if ever."5
It is alleged that between June and September
1968, Anthony told employees to be prepared to
strike a long time because the Union's efforts to
secure recognition and/or a contract would be fu-
tile.
Sherman Mason related a conversation he had
with Anthony in the production room, during which
Al Barnett, a salesman , was present. Mason
described a reference by Anthony to the KPOL
strike, as similar to the earlier remarks of Bunnell.
Mason distinguished between "would" and
"could," asserting Anthony used the latter in ad-
vising that, if a strike ensued, the employees
"could walk out there until our knees were down
to the street before this thing was settled."',
place for pickets
Anthony described as a running joke the fact that there would not be any
place for pickets to walk as there was no sidewalk and an individual would
not wish to walk in the middle of a street
Anthony acknowledged having said that pickets would be walking in the
river bed, but denied stating they would be so engaged a long time
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Claude Hooten (a/k/a Brad Edwards) related a
series of conversations with Anthony relative to the
possibility of his working in the event of a strike.
Hooten asserted that Anthony mentioned three or
four times that if the employees went on strike "our
walking would dig a deep trench into the river bed,
that there would be long, cold nights on the strike
line, and that they would be inside and that
everything would be warm."
Hooten asserted that Anthony advised him that
the Union had given up on the strike at KPOL and
left everyone hanging, as no contract was written.
Hooten, however, indicated that he understood the
Union had obtained a contract. Hooten placed the
time of these conversations as shortly before the
strike, with Craig Denny (a/k/a Craig Smith)
present at one time. Denny corroborated Hooten in
part.
It is alleged that in October 1968, Anthony
promised employees more money if they refrained
from going out on strike.
It is undisputed that on October 15, 1968, the
unit employees voted to authorize a strike, and on
October 25, about 6 a.m. a strike commenced and
a picket line was established. There is no evidence
that any prestrike unit employee crossed the picket
line prior to April 15, 1969, to return to work.
Claude Hooten, also known as Brad Edwards,
was previously employed by Respondent from
November 1, 1966, to April 24, 1967, for one day
on October 12, 1967, and again commencing Au-
gust 1968, part-time, and September 1968, full-
time , continuing until the strike, October 25. His
last salary was $600 a month.
Hooten credibly related that before the election,
in late June or early July 1968, while Hooten was
employed in Spokane, Washington, he had a
telephone conversation with Anthony "and we both
agreed that $750 [a month] would be a fair figure
for San Bernardino, although he never did make
the offer to me." Hooten asserted Anthony ex-
plained "as soon as the situation with the union was
resolved ... that would be a fair salary."
Hooten related two conversations with Anthony,
one at the Holiday Inn before the strike vote and
one in the control room after the strike vote, both
on the subject of who might work during a strike.
Hooten was unable to recall if the subject of his sa-
lary was mentioned during either of these conversa-
tions.
r In his brief , General Counsel relies on the prehire conversation It is
patent that that conversation was 3 or 4 months before the strike , and unre-
lated to it
s Conniff and Sullivan corroborated Dixon relative to a phone call inter-
ruption, followed by Dixon 's advice that he and McCoy were ordered by
Anthony to return to the radio station
McCoy corroborated Dixon relative to a phone call interruption While
McCoy could not recall being told by Dixon to report at the station, he
acknowledged having given the Union a pretrial statement reciting this oc-
currence McCoy acknowledged he did go to Anthony's office with Dixon
McCoy related he inquired if Anthony wanted him to resign Anthony
responded , "That's up to you , but Mr Dixon doesn 't have a choice "
I do not credit the assertion of Mrs Selvm that she discharged Dixon
Absent any evidence to support the allegations, I
will recommend dismissal of paragraph 17(e) of the
complaint.'
It is alleged that on October 16, 1968, Anthony
directed employees not to engage in, or prevented
employees from engaging in, union activity off
Respondent's premises during lunch hour
I find it unnecessary to detail a lengthy series of
conversations, first between Anthony, Dixon,
Hooten, and McCoy, followed by telephone con-
versations by those named, with Respondent's labor
relations consultant, Mrs. Selvin. These conversa-
tions, according to Dixon, were to enable Dixon,
Hooten, and McCoy "to get both sides of the story"
and decide what they should do in the event of a
strike. It is undisputed that Dixon, who had been a
staff announcer since August 1967, was promoted
to program director in August 1968, and was a su-
pervisor thereafter until his discharge. These con-
versations took place on October 15 and 16, 1968.
During these conversations, Dixon and McCoy
indicated, first to Anthony, then to Selvin, that they
planned to meet with Sullivan, union representa-
tive, on October 16 during Dixon's lunch period to
get the union side of the bargaining controversy.
Dixon related the strike vote had been taken the
previous night, but he was a member of the Union,
and he was fearful of being blackballed if he
crossed a picket line.
Dixon and his wife met with Sullivan, Conniff,
another employee, and McCoy, at Sandy's Restau-
rant in San Bernardino . While this meeting was in
progress, Dixon was advised by Anthony by
telephone to return to Respondent's radio station at
once to await Anthony's return, and to bring
McCoy with him. Pursuant to these instructions,
Dixon advised McCoy of the direction issued by
Anthony that McCoy was to leave the meeting and
report at the station.' It is undisputed that McCoy
was not scheduled to report for work until 4 p.m.,
about 2 hours later.
Dixon and McCoy reported to Anthony, and,
upon the latter's return, Dixon was discharged pur-
suant to Mrs. Selvin's instructions for having at-
tended a union meeting.'
It is alleged that on or about October 21, 1968,
Anthony created the impression of surveillance.
Conniff credibly related that he had a conversa-
tion with Anthony on the afternoon of the day the
strike vote was taken. It appears undisputed the
prior to the meeting when Dixon did not accept her advice not to go to the
meeting This is a patently fraudulent effort to eliminate Dixon as a
member of management prior to the meeting to relieve Respondent of
responsibility for the action of Dixon in carrying out the instruction of
Anthony relative to McCoy
Anthony, at variance with Selvin, asserted Selvin advised him to advise
Dixon ( I) not to attend the meeting , and (2 ) that Selvin "would have to
ask me [Anthony ] to terminate him [ Dixon] if he insisted on going "
Anthony acknowledged instructing Dixon to leave the union meeting
and subsequently discharging him for attending However, he denied issu-
ing instructions for McCoy to leave the meeting On this conflict I credit
Dixon
KFXM BROADCASTING COMPANY
strike vote was taken on October 15. Conniff was
vague as to the subject of the conversation, except
that it related to his intended activity that evening.
He advised Anthony he had a meeting to attend but
did not know what time it was scheduled to begin.
Anthony took a piece of paper from his desk
drawer and advised Conniff the meeting was
scheduled for 8:30 p.m. at Howard Johnson's
Motel. This was the time and place of the strike
vote meeting.1°
Charles Walters credibly related that the day
after the union meeting, when the strike vote was
taken, Anthony advised Walters he had the poorest
attendance record at the station. When Walters as-
serted he had been ill the prior day, Anthony
responded that Anthony knew Walters had at-
tended the union meeting that evening. Anthony as-
serted if Walters health permitted him to attend a
union meeting he should have reported for work."
It is alleged that on or about October 22, 1968,
Anthony threatened employees with discharge for
supporting the Union.
Charles Walters related that on the day after the
strike vote meeting, during his conversation with
Anthony partially set forth in the subsection im-
mediately above, Anthony advised Walters to con-
duct his union activities outside the building, that
Anthony did not want to see Walters "con-
gregating" in the hallways or rooms with anyone,
and that Walters would lose his job if he did not
abide by this instruction.12
It is alleged that on or about December 3, 1968,
Anthony solicited employees to cease supporting
the strike and to return to work, promising better
positions and pay increases.
Terrence Frazier related that he called Anthony
in early December and advised Anthony that he
desired to return to work. A scheduled meeting in a
San Bernardino restaurant the following morning
did not ensue by reason of a fire at the radio sta-
tion. However, Barnett, a sales representative of
Respondent, met Frazier.
Frazier had a salary of $430 a month prior to the
strike. Having advised Barnett that he wished to
return to work, Frazier asserted: "and there was a
discussion of around $650 that Barnett and I had
10 Anthony did not deny this incident He asserted he had been supplied
the time and place of union meetings by employee " informers " without sol-
icitation
n Anthony did not deny this recitation of Walters, which I credit
12 Anthony did not deny the statements attributed to him
13 Incorrectly spelled Waganer in the transcript
1° Wagner examined a pretrial sworn statement taken by a Board
representative on December 12, 1968 He then asserted that he had called
Anthony about returning to work Upon Anthony's advice, supra, he called
Anthony again the following day, learned Anthony had been too busy to
call Selvin, and Wagner did not call back thereafter Wagner denied salary
was discussed
Wagner acknowledged the pretrial statement recited that Anthony had
initially called Wagner, but asserted this did not, in fact, happen He
acknowledged the statement recited that Anthony had noticed that
Wagner had not been on the picket line, etc , but asserted this did not, in
fact, happen
Wagner acknowledged returning to work on April 14 , 1969, before the
1191
agreed that I felt I was worth." Frazier quoted Bar-
nett as advising that the amount of pay would be up
to Anthony, with whom Barnett would check. Sub-
sequently, the same day, according to Frazier, he
talked to Anthony "and it was sort of unofficially
agreed that I could come back to work under those
conditions...." Asked to specify the conditions he
referred to, Frazier responded, "The figure stipu-
lated approximately $600 to $650 a month." While
scheduled to return to work the following Monday,
Frazier did not return at that time. Frazier
acknowledged that when he returned to work in
April at the end of the strike, as explicated more
fully, infra, his salary was the same as prior to the
strike, $430 a month.
Anthony denied sending Barnett as his represent-
ative to meet Frazier, but acknowledged a station
fire prevented him from keeping a scheduled meet-
ing with Frazier and that Barnett volunteered to go
and find out what Frazier wanted. Anthony asserted
there were several times that Frazier called him or
sent word through others that he wished to leave
the picket line and return to work. It is undisputed
that Frazier returned to work as a result of negotia-
tions which he commenced immediately before the
end of the strike in April 1969, explicated infra.
General Counsel in his brief also relies on a
pretrial statement of Jay Wagner,13 the content of
which Wagner recanted during the hearing herein.
Wagner was initially employed by Respondent in
August 1968, at a salary of $430 a month, as an FM
announcer. Dixon, who conducted the hiring inter-
view, explained that wages were frozen by the elec-
tion and no higher amount could be offered.
Wagner went on strike with the others on Oc-
tober 25, 1969. Wagner related that he initiated a
telephone conversation with Anthony, advising of
his desire to return to work because of difficulties
with the Union. According to Wagner, Anthony
responded that Anthony would talk to Mrs. Selvin
and find out how Wagner could legally return to
work. There was no mention of salary.14
Accordingly, finding no evidence of probative
value that Anthony solicited anyone to return to
work, I will recommend dismissal of the allegations
of paragraph 17(i) of the complaint.
end of the strike , without clearance from the Union , without reduction in
hours or pay He continued working until May 15, 1969, but has not
worked for Respondent since that date and was unemployed at the time of
his appearance herein
General Counsel urges the acceptance of Wagner 's pretrial statement as
substantial evidence of probative value as to the facts set forth Citing Star-
light Mfg Co , 172 NLRB No 2 The problem is the amount of credibility,
if any, which can be found
In the pretrial statement, Wagner asserted that in his conversation with
Anthony he advised Anthony and Bunnell he was interested in returning "if
they made it worth my while " Anthony , according to Wagner , responded
they were offering "the managership of the FM station with wages of
$1,000 per month " but had to clear it with Mrs Selvin
This record establishes staff salaries from $430 to $700 a month Wagner
was at the bottom of that scale both before and after the strike I find his
demeanor unimpressive and his recitation , including his pretrial affidavit,
implausible as well as self-contradictory and inconsistent
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is alleged that in April 1969 Anthony advised
an employee that Respondent conditioned the
granting of an increase in pay upon the employees
withdrawing their support from the Union.
Frazier related that about 2 days before reporting
for work on Friday, April 25, 1969, with the ap-
proval of Sullivan, union representative, he crossed
the picket line and had a conversation with
Anthony. Jonny Bruce Thoen and Jay Lawrence,
announcers, were also present. Anthony advised
they had to sign a written request for reinstatement
to their former position, which they did. Frazier
had been an FM announcer. He was told to report
on Friday.
Upon reporting, Frazier was advised by Anthony
that Frazier's former position had been per-
manently filled, and Anthony inquired if Frazier
could think of another position he would like to
have. Frazier related he responded he was in-
terested in the position of News Director which had
been vacant during the strike, had more responsi-
bility, different hours, and higher pay.
According to Frazier, Anthony agreed that Frazi-
er should receive more money, asserted he could
say nothing then, but in the future Frazier might
receive a raise commensurate to the position of
News Director. Anthony concluded by asserting he
would have to ask Mrs. Selvin if it was legal to
grant a raise. Anthony then advised Frazier he
would continue at his prestrike salary of $430 a
month, with daily hours of 7 or 7:30 a.m. to 10:30
and 2 to 5:30 p.m., Monday through Friday. On
Sunday his hours were 9 a.m. to 5:30 p.m.
On Monday, April 28, Frazier sought advice as to
the result of Anthony's conversation with Selvin.
Anthony related he had been advised it would be il-
legal for him to offer Frazier more than Frazier had
been making prior to the strike, even though Frazi-
er was now in a new position. Frazier then added
Anthony advised that "until the whole business of
the strike and the unfair labor practice ... is set-
tled, or until the decertification of the union . . .
Frazier's salary would remain at its present level,
even though he was in a new position.15
Concluding Findings
I first consider the statements of Bunnell to
Mason relative to the futility of the action of the
employees in selecting the Union as their represen-
tative and the futility of a strike, and Anthony's as-
sertions to Mason and later to Hooten and Denny
that a strike could be of long duration and futile, as
well as Anthony's threat to Frazier that Respondent
was not required to rehire strikers, whom Respon-
dent would consider as having voluntarily quit.
The Board has held that threatening employees
with replacement and impairment or loss of existing
rights and job tenure if they engage in concerted
activities protected by the Act is conduct violative
of the provisions of Section 8(a)(1). Rice Lake
Creamery Company, 131 NLRB 1270, enfd. 302
F.2d 908 (C A.D.C.); ITT Henze Valve Service, 166
NLRB 592.
In the Nabors case,', the court said:
As to the statements made by respondent ...
as to the consequences which might follow ad-
herence to a union: When statements such as
these are made by one who is part of the com-
pany management, and who has the power to
change prophecies into realities, such state-
ments, whether couched in language of proba-
bility or certainty, tend to impede and coerce
employees in their right to self-organization,
and therefore constitute unfair labor practices.
Accordingly, to the extent the conduct com-
plained of constituted threats, I find it was coercive
and violative of the provisions of Section 8(a)(1) of
the Act.
I have found, supra, that on October 16, 1968,
pursuant to instructions issued by Anthony, Dixon
advised McCoy to leave a union meeting and report
to Anthony's office 2 hours before McCoy was due
to report for work. I have also found that on the
same day, described as the day after the strike vote
meeting, Anthony advised Walters to conduct his
union activities outside Respondent's building.
It is well established by Board decisions with
court approval that an employer may not interfere
with the right of an employee to engage in union
activities during nonwork time.'7
Accordingly, I find Anthony's instruction to
McCoy to leave a union meeting during nonwork
time and Anthony's instruction to Walters not to
conduct union activities on Respondent's premises
during Walters' nonwork time were, in each in-
stance, coercive and violative of Section 8(a)(1) of
the Act.
I have found, supra, that Anthony, on October
15, advised Conniff of the time and place of the
union meeting scheduled for that evening, and the
following day advised Walters of Anthony's
knowledge of Walters' attendance at the same
meeting.
The conduct of Anthony, as found, created the
impression of surveillance and constituted inter-
" Anthony admitted Frazier worked in the news department after his
return from the strike but denied he was News Director, as more fully ex-
plicated infra Anthony acknowledged Frazier was paid the same rate after
the strike as he had been paid before the strike Anthony acknowledged ad-
vising Frazier another was working the shift Frazier had prior to the strike,
but asserted he offered to move the replacement out of that job if Frazier
wanted it According to Anthony, Frazier requested placement in the news
division Being shown a pretrial statement , Anthony acknowledged he did
tell Frazier his former job was filled, and he did not offer it to Frazier
Anthony did not deny the statement attributed to him by Frazier 1 find the
recitation of Frazier credible
"NLRB v Nabors Co, I96F2d272,276(CA 5)
" Walton Manufacturing Company, 126 NLRB 697, enfd 289 F 2d 177
(C A 5), citing Republic Aviation Corporation v N L R B, 324 U S 793,
NLRB v The Babcock & Wilcox Company, 351 U S 105, NLRB v
United Steelworkers of America, CIO (Nutone, Inc ), 357 U S 357 See also
N I. R B v Hill & Hill Truck Line, inc , 266 F 2d 883 (C A 5), Whitfield
Pickle Company, 151 NLRB 430
KFXM BROADCASTING COMPANY
ference, restraint, and coercion, violative of the
provisions of Section 8(a)(1) of the Act.18
I have found, supra, that when Frazier returned
to work at the end of the strike on April 25, 1969,
he was placed in the job of News Director. I have
also found that subsequently Anthony advised Fra-
zier that Frazier would remain at his prestrike sa-
lary until the strike and the unfair labor practice
charges were settled, or until the Union was decer-
tified. However, for reasons explicated infra, I find
no evidence which would support a finding that the
position of News Director had more responsibility
than announcers, some of whom were paid substan-
tially more.
I find Anthony's advice to Frazier ambiguous and
not an effort to solicit abandonment of the Union,
as alleged. I will accordingly recommend dismissal
of paragraph 17(j) of the complaint.
The Alleged Refusal To Bargain
The alleged indicia of Respondent's failure to
bargain in good faith and evidence of its bad faith
assertedly include, inter alia : (a) failure to clothe its
designated negotiator with sufficient authority; (b)
insistence throughout the negotiating period, and
particularly on September 25, October 22,
November 18 and 20, all 1968, that negotiations be
conducted at the residence of Respondent's
representative, an unsuitable location; (c) canceled
scheduled meetings on September 5 and 23, 1968,
(d) failure and refusal to schedule negotiating
meetings for reasonable times and at reasonable in-
tervals; (e) attendance at negotiating meetings on
September 11, 17, and 30, unprepared to discuss
proposals previously submitted by the Union; (f)
delayed unreasonably in submitting counter-
proposals on matters to which it objected; (g) was
unable to proceed or postponed meetings, on Sep-
tember 9, 11, 17, 23, and 30, because Respondent's
owners were traveling; (h) particularly on Sep-
tember 17, entered into negotiations with the intent
of advancing false explanations to justify its
economic position to avoid the obligation of mak-
ing company records available to the Union; (i)
repudiating an agreement to make available to the
Union, at the Union's expense, a copy of the trans-
cript of the negotiating sessions ; and (j) on Sep-
tember 17 [1969],19 refusing to bargain over terms
and conditions of employment of freelance announ-
cers. In addition, it is alleged, Respondent's uni-
lateral change of the salary paid for the position of
News Director in April 1969 and Respondent's uni-
Ainsworth Manufacturing Company, 131 NLRB 273
9 I find this date erroneous , in the light of this record It should read
1968
20 The transcript of the September i I meeting reflects that Mrs Selvin
moved her combined residence and office to the new location on that date
The two apartment buildings appear to have been primarily used as re-
sidences by the various occupants , even though others in addition to Mrs
Selvm may have maintained a combined residence and office
21 In view of my findings , infra, relative to the reason an impasse was
reached herein , 1 find it unnecessary to resolve conflicts in the testimony of
1193
lateral changes in salaries and hours of employment
of unit employees in May 1969 , in every instance
without notice to or bargaining with the Union,
were violative of Section 8(a)(5) and ( 1) of the
Act.
Appropriate Unit and Union's Majority Status
It is undisputed that the Board, in Case
31-RC-815, found, and I therefore find, the follow-
ing employees of Respondent constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All announcers, newscasters, and performers
employed by the Respondent at radio stations
KFXM-AM and KDUO-FM, but excluding all
other employees, guards, and supervisors as
defined in the Act.
It is undisputed that on July 19, 1968, an election
was held among the employees in the unit
described and, as a result, on July 29, 1968, the
Union was certified as the exclusive representative
for the purposes of collective bargaining of said em-
ployees. While Respondent, by answer, neither de-
nied nor affirmed these facts, it acknowledged at
the outset of the hearing that the majority status of
the Union was not an issue herein.
Events Culminating in Impasse and Strike
It is undisputed that on July 29, 1968, the Union
was certified as the collective-bargaining represent-
ative, as I have found supra. On August 2, Claude
L. McCue, executive secretary of the Union, by
letter to Howard L. Tullis, president of Respondent,
requested a meeting for the purpose of collective
bargaining. On August 10, by letter, Mrs. Edwin
Selvin responded. In her response, Mrs. Selvin
acknowledged the Union's request for bargaining,
called attention to the fact that the Union had been
notified, on April 26, 1968, that Mrs. Selvin had
been designated as the "sole representative" of
Respondent relative to collective-bargaining
negotiations. Mrs Selvin concluded by advising she
would "await a request to negotiate" before she
would undertake further action.
It is undisputed that the parties met subsequently
on August 23 at Mrs Selvin's Beverly Glen Towers
apartment on South Beverly Glen Boulevard in Los
Angeles and on September 11, 17, and 30, at Mrs.
Selvin's Sierra Towers apartment located at 9255
Doheny Road, Los Angeles.20
It appears undisputed it was Mrs. Selvin who in-
sisted that each of these meetings be held at her
apartment.21
Allan H Davis , assistant executive secretary of the Union, and Neil F Sul-
livan, special business representative of the Union, on the one hand, and
Mrs Selvin , on the other hand , relative to the adequacy of space and ac-
comodations provided for these meetings
Neither Howard Tullis nor John P Hearne, co -owners of Respondent,
was present at any of these meetings Their recitations as to adequacy of
the rooms used for negotiation meetings, thus, must be disregarded, par-
ticularly since more than one room in each location was designated as of-
fice space
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis and Sullivan credibly related interruptions
experienced in the meeting of August 23 when Mrs.
Selvin was in the process of moving out of her
apartment, and on September 11 when she was in
the process of moving into her new location.22
Sullivan credibly related that there were interrup-
tions on September 11 so that Mrs. Selvin could
direct placement of dishes, as well as furniture.
Mrs. Selvin, at variance with Sullivan, asserted the
dishes had been moved "by my personal friends
who had taken them over and put them in the cup-
boards about three weeks earlier." The transcrip-
tion of the negotiating meeting of September 11
contains the following:
Mrs. Selvin:... I think maybe we should ter-
minate this meeting because I have got five
people in the kitchen and not one of them with
anything to do until I get out there and show
them where to put the dishes.
It follows that I credit Sullivan on this conflict.
Davis credibly related a telephone conversation
on September 23, 1968, during which, inter alia, he
advised Mrs. Selvin that the Union desired to hold
negotiating sessions in Colton, California, at a
Howard Johnson Motor Lodge,23 explaining that
bargaining unit employees desired to attend as ob-
servers. According to Davis, Mrs. Selvin advised
that all of the people with whom she negotiated
came to her apartment, she had a large number of
clients calling in, and she was not prepared to go to
any other place to negotiate. Mrs. Selvin similarly
rejected suggestions that the parties meet in the
AFTRA conference room or in the offices of
Federal Mediation and Conciliation Service, both
located in Los Angeles.
Mrs. Selvin acknowledged that she refused to
travel to San Bernardino.24 In finding the reasons
assigned by Mrs. Selvin for her refusal to agree to
negotiating meetings in San Bernardino incredible
and lacking candor, particular attention is given to
her assertion appearing in the transcript of the
negotiating meeting of September 30, 1968, "I cer-
tainly don't wish to travel to San Bernardino
" Mrs Selvin acknowledged that on August 23 she was in the process of
moving , her furniture was packed, and her apartment in "disarray " She as-
serted she advised Davis when a meeting scheduled for September 6 was
rescheduled for September I 1 that the latter date was a " bad time," ex-
plaining that she had made essential reservations for use of freights eleva-
tors to move out on September 10, and to move in on September I I
Mrs Selvin admitted "it was not a satisfactory meeting" since she had to
give instructions on where to place furniture , requiring interruptions, and
telephone company representatives were installing her office telephones It
must be inferred these installations were in the same area as the place of
meeting or immediately adjacent thereto
" Colton, a suburb of San Bernardino , is the actual location of Respon-
dent's radio station
24 1 find no merit in the assertion of Mrs Selvin that she had a physical
disability which made it difficult for her to drive to San Bernardino In spite
of the assertion contained in a doctor's statement that travel any distance
was "inadvisable " because of a "marked increase in pain," it is undisputed
that Mrs Selvin did travel to San Bernardino on October 25, 1966, the day
of the strike She also traveled to San Bernardino to appear as counsel in
this hearing, and admittedly was present during another unfair labor prac-
tice hearing about a month earlier Mrs Selvin asserted , as an alternative
because I have work and I have to service a hun-
dred clients who require my services. "25
Mrs. Selvin asserted she had not met in a union
office in 30 years and knew of no requirement that
she do so. Mrs. Selvin advanced as a reason for
refusing to meet in the Federal Mediation and Con-
ciliation Service office inability to park within
seven blocks and her inability to carry heavy files
that distance and a "very great distance in the
building itself."26 In addition, Mrs. Selvin asserted
she had been advised (by employees of the Service)
that they had been instructed "by their top man not
to set any meetings where I am involved in their of-
fice." This assertion is not credited
Mrs. Selvin acknowledged attending the
representation hearing involving Respondent held
on May 20, 1968, in the Regional Office, lasting
from 10 a.m. until 8 :30 p.m., and some 12 to 15
other representation hearings in the Regional Of-
fice in a period of approximately 18 months.
It is undisputed that solely as a result of the
refusal of Mrs. Selvin to meet with the union
representatives anywhere except at her office, no
negotiating meetings were held after September 30,
1968.
It is alleged that Respondent failed to provide its
negotiator with competent collective-bargaining
authority. General Counsel, in his brief, correctly
calls attention to the discrepancies in the recita-
tions of Hearne, Tullis, and Selvin.
Hearne related that he and Tullis consulted with
and retained Mrs. Selvin in April 1968. Hearne
thought the negotiating sessions were within a
month thereafter and related he talked to Mrs. Sel-
vin once or twice "in the early summer period,
probably before September," to find out how things
were progressing. These meetings with Mrs Selvin
were at her Beverly Glen apartment.27 Hearne as-
serted that he and Tullis advised Mrs. Selvin that
they would allow her to entertain offers "but we
would reserve the right to approve or disapprove."
While Hearne was inaccurate as to the time of
negotiations , his recitation of a reservation of the
reason for her refusal, the office of the Union and one office of Tullis and
Hearne were located in Los Angeles Mrs Selvin's assertion of physical
discomfort appears to have been an afterthought, since it was never ex-
pressed prior to the hearing herein
" The following, from the same transcript, is illuminating as to Mrs Sel-
vin's reason for refusing to go to San Bernardino
No I am not going down to San Bernardino If you want to bring them
[employees] up here that is all right My office is here I ara the
negotiator and it is here I am willing to negotiate The bargaining is
done in my office It is almost universal I have made an exception and
gone to a city on one or two occasions, but 1 don't feel obligated to do
it I feel you are seeking to meet with us and therefore we are available
at a reasonable place for our negotiations
Now, if you want to bring some people up from San Bernardino, that
is perfectly all right
This doesn't happen to be my only client, I have a hundred clients
se An assistant provided porter service for Mrs Selvm throughout this
hearing
" It is undisputed that Mrs Selvin vacated the Beverly Glen apartment
on September 10
KFXM BROADCASTING COMPANY
right of approval is in accord with the representa-
tions of Selvin in bargaining sessions.
Tullis, at variance with Hearne, asserted that
Mrs. Selvin had authority to conclude an agreement
with the Union, pursuant to guidelines he had pro-
vided, without further consultation with Tullis and
Hearne . Tullis asserted this authority encompassed
"wages and working conditions." Tullis asserted
that after the Union had submitted a proposed con-
tract, which the evidence establishes was on August
23, he met on two occasions, spending 4 or 5 hours
each time, with Hearne, Bunnell , Anthony, and Sel-
vin also in attendance. These meetings were at Sel-
vin's Beverly Glen apartment. At this time, they
went through the contract page by page and gave
Selvin detailed instructions. Tullis placed the time
of these meetings as May and June 1968, with two
other meetings in early July. He was certain of the
time, as he left for Europe on July 22 and returned
on Labor Day. It is patent that the recitation of Tul-
lis is replete with inaccuracies. Illustrative, he as-
serted he advised Anthony to estimate the cost of
the AFTRA pension and welfare plan and to shop
around to ascertain what plan they might be able to
purchase. He gave this instruction before leaving
for Europe on July 22. It is patent this was a month
before the initial union submission, and the union
pension and welfare plan was not submitted to Mrs.
Selvin until after the September 17 meeting.
Mrs. Selvin asserted that it was on September 30
that she requested and obtained a wage proposal
from Tullis2s for submission as a counteroffer. The
transcripts of the bargaining sessions of September
11, 17, and 30, prepared by a court reporter, are
verbatim. On September 17, Selvin advised the
Union that she would prepare a complete coun-
teroffer. However, she would first have to obtain
the approval of Hearne and Tullis before submitting
it to the Union. On September 30, while asserting
she had authority to proceed on her own "to any
extent that I think we are going to need," Mrs. Sel-
vin asserted that any contract was subject to the
final approval of the employer when it was
completed. During the same meeting, she advised
the Union that she would have to consult with Tul-
lis and Hearne on the Health and Welfare Fund
proposal. The same day, Mrs. Selvin advised the
Union that the principals "are gone," and that
while she could make decisions, she did not intend
to make any decisions involving the payment of
moneys "except with their final approval "
It is alleged that Respondent canceled negotiat-
ing meetings, particularly on or about September 5
and 23, 1968.
'" The inaccuracy is reflected in the transcript of that date, at p 148
Mrs Selvin advised she would have to await Tullis' return from New York
to obtain some needed information
R8 1 do not credit the assertion of Mrs Selvin that it was on August 30,
after she had been advised of the death of her granddaughter in Alaska,
that she requested postponement of the meeting scheduled for September
6 Initially, Selvin asserted that her telephone call was to Davis On cross-
1195
Davis credibly related that on September 5, Mrs.
Selvin advised there had been a death in her family,
as the result of which she had been in Alaska. Sel-
vin explained that she was tired from the trip and
requested a postponement of the meeting
scheduled for September 6 at 10 a.m. According to
Davis, Selvin also advised that she had another
meeting scheduled the same day at 1 p.m. with a
client from Santa Barbara, which she was desirous
of keeping, even though she was requesting a post-
ponement of the meeting with the Union.29
Davis asserted that he called Selvin on Sep-
tember 23 to confirm a meeting scheduled for
Thursday, September 26. Selvin advised him that
she had given that day to someone else. The trans-
cript of the negotiating meeting on September 17
reflects that the parties agreed that the next meet-
ing date would be September 26 at 10 a.m. Accord-
ing to Davis, Mrs. Selvin explained that she had not
had a chance to formulate any counterproposals
and that she had not had time to discuss money of-
fers with Tullis and Hearne. It was during this con-
versation that further meetings were scheduled for
September 30 and October 4. During the meeting
of September 30, as the transcript of that meeting
reflects, Mrs. Selvin advised the union representa-
tives she had unilaterally canceled the meeting
scheduled for October 4.
It is alleged that Respondent failed and refused to
schedule negotiating meetings for reasonable times
and at reasonable intervals.
It is undisputed that following the Union's
request for bargaining on August 2, the parties sub-
sequently met on August 23 solely for the purpose
of having the Union submit its proposals. Accord-
ing to Davis, there was a general discussion without
getting into specifics. There was also a discussion of
Mrs. Selvin's pending relocation of her apartment,
her background as a labor relations consultant, and
some of her past experience. The transcript of the
meeting of September 30 reflects the August 23
meeting lasted only 30 minutes. The meeting
scheduled for September 6 was unilaterally can-
celed by Mrs. Selvin.
The meeting of September I I was obstructed by
many interruptions by reason of Mrs. Selvin's
move. While it purportedly lasted from 3 p.m. until
4 p.m., the stenographic notes encompass only 20
letter size pages. During this meeting, Mrs. Selvin
indicated that the dates of September 17, 18, and
19 were available. The Union requested setting
aside all three of the dates. Mrs. Selvin responded
that she was willing to set aside only one date, hav-
ing to save the other days for other business. In
examination, Selvin asserted that she called Sullivan rather than Davis Sel-
vin explained that she had advised the Union that she expected to remain in
Alaska beyond September 6 Selvin acknowledged that she did have
another meeting scheduled for I p in on September 6, which was not post-
poned by reason of her trip , and which meeting she kept On this conflict, I
credit Davis
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact, the meeting on September 11 was scheduled
only by reason of the persistence of Davis.
The meeting on September 17 commenced at 10
a.m. and closed at or before 1 p.m.30 While the en-
tire day of September 17 was purportedly set aside
for the purpose of negotiations, the meeting ad-
journed by reason of Selvin's lack of preparation,
particularly in the area of not having counter-
proposals ready for submission and discussion. At
the outset, Mrs. Selvin announced that any agree-
ment reached would not be retroactive and there
would be large areas of disagreement.
During the meeting of September 17, it was
agreed that the next meeting would be held on Sep-
tember 26 at 10 a.m. On September 23, Mrs. Selvin
advised Davis she had unilaterally canceled this
meeting. Mrs. Selvin then agreed to schedule
meetings for September 30 and October 4.
On September 30, Mrs. Selvin indicated that she
would not agree to any further meeting until she
had an opportunity to go over the welfare and
retirement fund and prepare a counterproposal.
When Sullivan complained about spending 25
minutes waiting for Mrs. Selvin to put her counter-
proposals in proper order for submission, Mrs. Sel-
vin responded that she was not going to run any
marathon. She also advised she would not agree to
meeting twice a week, explaining there was "no
great hurry right now because there was no possi-
bility that a contract can be arrived at and o.k.'d
before the principals return." She, thereupon, uni-
laterally canceled the meeting scheduled for Oc-
tober 4 and refused to schedule the next meeting. It
was not until November 18 that Mrs. Selvin advised
the Union she was prepared to negotiate.
It is alleged that Respondent attended negotiating
sessions on September 11, 17, and 30, 1968, un-
prepared to discuss the proposals submitted by the
Union.
It is undisputed that the Union submitted its
proposal on August 23, 1968. At the following
meeting on September 11, Mrs. Selvin advised that
she was prepared to discuss the issues but did not
believe they could accomplish anything construc-
tive by reason of the presence of the moving men
with consequent interruptions. Sullivan credibly re-
lated that during the negotiations of September 17
Mrs. Selvin worked directly from the Union's sub-
mission , without notes of her own, reading a par-
ticular proposal and giving her views on what she
would or would not agree to after a long pause, in-
ferentially for reflection. At that meeting, Mrs. Sel-
vin acknowledged she was not familiar with
whether the submission did or did not contain a
"no-strike" clause. The transcript of the meeting of
September 30 indicates the Union's objection to
the loss of more than 20 minutes' time while Mrs.
Selvin put her partial counterproposals together for
submission. At the same meeting, while Mrs. Selvin
acknowledged having received pension and welfare
booklets which the Union had submitted as part of
its proposal, she had difficulty identifying and locat-
ing them. While Mrs. Selvin asserted that she had
read the contents, she requested that Davis explain
their provisions. Subsequently, some 50 pages later
in the transcript, Mrs. Selvin acknowledged that she
had not read the health and welfare booklets.31
Mrs. Selvin's inadequate preparation is also
demonstrated in the matter of wage provisions. This
record establishes that unit employees were being
paid $430 to $700 a month.32 On September 17,
Mrs. Selvin advised that Respondent was proposing
salary ranges with a "maximum" of $100 a week
for FM and $112.50 a week for AM, for a 46-hour
week Mrs. Selvin asserted she was not claiming
"inability to pay," explaining "I have been burned
on that once, and I don't get burned twice... " On
September 30, Mrs. Selvin advised Respondent did
not desire to set maximum rates, but proposed
starting rates of $90 a week for FM and $112 a
week for AM. However, these rates would not be
mandatory if Respondent was starting an ex-
perienced individual. Thereafter, on September 30,
Mrs. Selvin advised the union representatives that
there were some areas of the contract, including
wages, on which she had not prepared counter-
proposals
It is alleged that on various dates in September,
Respondent was unable to proceed with negotia-
tions because its owners were traveling. Davis
credibly related that in his conversation with Selvin
on September 23, she advised the reason she had
canceled the meeting scheduled for September 26
was that she had not had time to formulate counter-
proposals and was not prepared to discuss wage
proposals as she had not had the opportunity to talk
to Tullis and Hearne. The transcript of the negotiat-
ing session of September 30 reflects that Mrs. Sel-
vin advised Union's representatives that she did not
know when Hearne would return from Hawaii, and
that Tullis would not be available until October 20.
That day, Mrs. Selvin also advised Davis that she
had unilaterally canceled a meeting with the union
representatives herein scheduled for October 4.
When Davis objected, Mrs. Selvin explained "I had
already told you that I was not going to hold any-
more meetings until I had this information about
the health and welfare and Mr. Tullis and Mr.
Hearne return." Later during this meeting, Mrs.
Selvin advised: "You know I can't do anything. The
"Transcript of the meeting of January 30, p 167
" Mrs Selvin was unconcerned about the necessity for accuracy while
testifying either by reason of failure to prepare or a calloused indifference
She asserted no retirement was involved in the Union 's requests The
AFTRA booklet is captioned " Your retirement benefits "
On September 30, Mrs Selvin advised the union negotiators "1 have
told the company if they don't do anything else, 1 am desirous of them giv-
ing a substantial and good coverage on welfare and retirement , and they
are in agreement with me that that is one of the things we should do
" The following rates appear undisputed
Conniff - $700, Pezzato - $430, Thoen - $530, Mason - $525, Walters -
$600, McCoy - $575, Frazier - $430, and Wagner - $430
KFXM BROADCASTING COMPANY 1197
principals are gone. I have told you all along I bar-
gain and can make decisions. But I certainly do not
intend to make any decisions involving the payment
of monies except with their final approval."33
It is undisputed that a strike vote was taken on
October 15, and a strike commenced October 25
and continued until April 25, 1969. Sullivan
credibly related this vote followed advice by the
negotiators to the unit employees of the refusal of
Mrs. Selvin to meet for negotiations in San Bernar-
dino, the amount of Respondent's wage offer, and
refusals to entertain or bargain on particular
requested provisions, such as union shop and ar-
bitration.
On November 18, Mrs. Selvin advised the Union
she was prepared to discuss welfare and pension
fund provisions, and proposed a meeting in her of-
fice. The Union responded, proposing a meeting at
the Howard Johnson Motor Lodge in Colton. Mrs.
Selvin advised the proposed location was "not
satisfactory," giving as a reason the necessity of
having an insurance representative present to ex-
plain Respondent's counteroffer. No meeting en-
sued.
Failure To Reinstate Conniff, Hooten , and Smith,
April 25, 1969
It is alleged that Respondent failed and refused to
reinstate strikers indentified as James Conniff,
Claude Hooten (a/k/a Brad Edwards), and Craig
Smith34 (a/k/a Craig Denny) upon their uncondi-
tional application on or about April 26, 1969.
It is undisputed that the Union advised Respon-
dent by telegram on April 24 that it was instructing
its members to return to work and, in the same tele-
gram, it requested reemployment for employees
named therein, including Conniff, Hooten, and
Smith. It is also undisputed that certain employees,
including the three named in this subsection, signed
a statement reading: "We the undersigned hereby
request the reinstatement to our positions with
KFXM-KDUO at the earliest possible moment."
This document was forwarded to Al Anthony by
Dennis Pezzato (a/k/a Dennis West), and was
received by Anthony on April 25, 1969.
It is undisputed that all of the unit employees
discontinued working on the day of the strike, Oc-
tober 25, 1968, although not all of them engaged in
picketing. With the exception of Terrence Frazier,
no effort appears to have been made by any striking
employee to return to work prior to April 1969.
Smith credibly related that he did not receive any
response from Anthony to the above requests for
reinstatement. About 2 weeks after April 25, Smith
talked to Anthony by telephone and inquired why
he had not been offered reinstatement. Smith
credibly related that Anthony responded that there
were no positions available at that time. 35 It is un-
disputed that Smith was partially reinstated in Sep-
tember 1969, approximately 2 weeks prior to his
testimony. However, Smith's worktime was limited
to 22 hours a week.
Claude Hooten credibly related that during the
first or second week in May 1969, in a telephone
conversation with Anthony, he inquired why others
had been offered jobs while Hooten had not
received any communication According to
Hooten, Anthony responded that he did not have to
offer any explanation and that he did not intend to
reinstate Hooten.36 While the evidence contains an
offer of reinstatement by Respondent in August, it
was rejected by Hooten. The details and effect of
this offer and declination are set forth infra.
Conniff credibly related that he did not receive
any response from Respondent to his request for
reinstatement until August.37 The adequacy of
Respondent's offer of reemployment to Conniff in
August in terms of terminating an existing unfair
labor practice is considered infra.
At the outset of the hearing herein Respondent
asserted that it had, in fact, offered reinstatement
to the three named employees, inferentially in late
April 1969. Later, near the close of the case,
Respondent sought to develop through its second
last witness that violence on the picket line was its
motive for an acknowledged failure to recall the
three named employees earlier than August 1969.
Reasons for my rejection of this purported defense
are explicated infra.
Failure To Fully Reinstate Jon B . Thoen April 15
and McCoy , Walters, and Pezzato April 26, 1969
It is alleged that Respondent failed to fully rein-
state the employees named on the dates indicated
by failing to return them to their former work
schedule and pay their former salaries.
Jon B. Thoen (a/k/a Johnny Bruce) credibly re-
lated that he returned to work on approximately
April 15 without clearance from the Union. Im-
mediately prior to the strike, he was a full-time AM
disc jockey at $530 a month. Prior to his return, he
had a meeting with Anthony who requested and ob-
tained an unconditional request for reinstatement.
Approximately a week prior to his return he was
advised by Anthony, at a meeting in Anthony's of-
fice and in the presence of Frazier and Wagner,
that he would be employed at the same salary.
However, on approximately May I he was advised
that, effective May 1, he would be working a 40-
hour week and his salary would be reduced propor-
" While other indicia of bad -faith bargaining are alleged in the com-
plaint , they are at best cumulative, and I find it unnecessary to unduly ex-
tend this decision by setting forth the evidence relative to them
94 Incorrectly indentified as Claude C Smith in the complaint
11 Anthony did not dispute this recitation of Smith
' No denial of this recitation of Hooten appears in the testimony of
Anthony
"The accuracy of this representation does not appear to be challenged
in recitation of Anthony
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionately. According to Thoen, Anthony's explana-
tion was that the retention of employees initially
employed during the strike coupled with the return-
ing strikers caused overstaffing and insufficient
work to maintain a 46-hour-week structure which
had existed prior to and during the strike. This
reduction in hours of work and in pay continued
until approximately August 1, 1969. Thoen was ad-
vised by Anthony that this reduction applied to
everyone that was returning to work.
McCoy similarly contacted Anthony by
telephone, about 3 weeks prior to the conclusion of
the strike, relative to returning to work. Anthony
requested an unconditional application for rein-
statement. Thereafter, Anthony advised McCoy
that he would be working a 40-hour week rather
than a 46-hour week, and that his salary would be
decreased proportionately. He returned to work in
May on the reduced schedule. Prior to the strike,
McCoy was employed from 4 p.m. until midnight,
being on the air all but the first 2 hours, 5 days a
week, Monday through Friday, and from 12 noon
until 6 p.m. on the air on Saturday. His monthly
stipend was $575. When he returned after the
strike, his hours were 7 p.m. to 2 a.m., Monday
through Friday. Anthony's explanation of the
change in hours and reduction in time was that he
had a staff that stood by him during the strike and
he was not going to kick them out, he was going to
protect them Anthony also advised McCoy that he
was going to retain the "strike breakers" and fit the
returning strikers into the schedule the best he
could. McCoy related that his hours were later in-
creased to 45 hours a week as compared to 46
hours a week prior to the strike. These hours were
comprised of 11 a.m. to 7 p.m., Monday through
Friday, and 7 p.m. through midnight on Sunday.
Dennis Pezzato (a/k/a Dennis West) credibly re-
lated that he was among those who signed the
request for reinstatement on April 24, 1969. Prior
to the strike, his shift was midnight to 8 a.m , Mon-
day through Friday. He was on the air the first 6
hours and engaged in what is called production
time the last 2 hours. In addition, he was on the air
from midnight to 6 a.m. on Saturday; his salary was
$430 a month. In early May 1969, he had a
telephone conversation with Anthony, who advised
that his hours would be cut from 46 hours to 40
hours a week, that his salary would be reduced by a
recomputation of the resultant hourly wage, and
that Anthony had not yet determined the precise
schedule of hours. Pezzato responded that he would
give the proposal consideration. Several days
thereafter Pezzato met Anthony in the driveway of
the Holiday Inn, which is adjacent to Respondent's
radio station. At that time, Anthony advised Pez-
zato that he had made an error in computing the
w The record , for reasons which are obscure, contains a telegram of
Respondent directed to Pezzato under date of April 28, offering reemploy-
ment if Pezzato accepted unconditionally by May 9 This telegram was
wage which would result from the reduction in
hours and that the amount being offered was, in
fact, less than the amount Anthony had previously
indicated. At that time, Pezzato indicated that he
could not accept the offer, by reason of the reduc-
tion.
Subsequently, on August 13, Anthony by tele-
gram offered Pezzato reinstatement to the same
scheduled hours, 46-hour week, and monthly salary
as existed prior to going on strike conditioned upon
a response by August 25. Pezzato asserted that in
response he advised Anthony by telephone that he
could not accept.311
Charles Walters credibly related that he was
among those requesting reinstatement in the com-
munication of April 24. Immediately prior to the
strike, his scheduled hours on Monday through
Friday were 9 a.m. to 6 p.m. including 1 hour for
lunch, and Saturday 9 a.m. to 2 p.m.; his salary was
$600 a month. About a week after the request for
reinstatement , he had a telephone conversation
with Anthony during which Anthony indicated that
a request for reinstatement must be made "uncon-
ditionally." A meeting was then scheduled at
Denny's Coffee Shop, at which Sherman Mason
and Jon Thoen were present. Anthony advised that
he had to wait and see who among the employees
was returning before he could decide how many
people he would reinstate. Anthony advised Wal-
ters 2 or 3 days later that because of the number of
people who would be on the staff, he was reducing
the weekly schedules to 40 hours and that Walters'
salary would be broken down to an hourly basis and
he would be paid for 40 hours. Anthony advised
that Walters worktime would be 7 p.m. until 2 a.m.
Walters related that he at that time was employed
at a station identified as KWIZ in Santa Ana. Wal-
ters advised Anthony that he desired to continue
working weekends at KWIZ to aid in making up the
difference in earnings. Anthony indicated a
willingness to give Walters either Saturday or Sun-
day as a day off for this reason . The following day
Anthony advised Walters that he had made a
mistake in computing Walters' hourly rate and that
the actual figure would be lower. Thereupon, Wal-
ters indicated that he would be earning $100 a
month less and Walters indicated to Anthony that
this was not acceptable and that he could not
return on those conditions. Subsequently, on Sep-
tember 30, 1969, Walters was reinstated. Absent
any evidence to the contrary it must be inferred
that upon his return he was employed at least the
same number of hours per week and paid at least
the same salary per month as the conditions in-
dicated prior to the strike.
Anthony acknowledged that all of the broadcast-
ing employees went on strike originally. He also
neither offered nor received during the hearing herein and is improperly in
the record
KFXM BROADCASTING COMPANY
acknowledged that at the time the strikers applied
for reinstatement in April, all of the announcers
then employed had been hired during the strike.
Anthony acknowledged that prior to the strike all
of the full-time announcers worked a 46-hour week
comprised of five 8-hour days with a 6-hour day as
overtime. Anthony would authorize any daily over-
time in excess of 8 hours, which Anthony related
would be in addition to an employee's regularly
scheduled hours. The scheduled hours for each em-
ployee were posted. The weekly schedules
remained in effect until further notice. Anthony
acknowledged that when he hired an employee he
would quote a monthly rate of compensation. How-
ever, Anthony asserted that he would advise the
employee that it was based on a 46-hour week.
Anthony acknowledged he did not quote an hourly
rate. In view of the numerous denials by the em-
ployees that anyone advised them of an hourly rate
prior to the strike, I do not credit this assertion of
Anthony.
Anthony acknowledged that during the strike the
announcers worked a 46-hour week. Anthony
described the 46-hour week as common over the
entire period of time that he has worked at
KFXM-KDUO, a period of 7 years. It is undisputed
that on May 1, 1969, returning strikers were
reduced from a 46-hour week to a 40-hour week.
At the same time, striker replacements including
Aregger, Townsend, and Kling were reduced to 40-
hour schedules but continued to receive pay for a
46-hour week. Other striker replacements remained
on a 46-hour week. The returning strikers who
were reduced from a 46-hour week to a 40-hour
week were reduced in pay by a recomputation of
their salary and the elimination of 6 hours of over-
time. Frazier was the only returning striker who was
scheduled for a 46-hour week.39
Anthony acknowledged the accuracy of the wit-
nesses who recited his offers to them after the
strike of jobs involving reduction in pay and
scheduled hours of employment.40 Anthony
acknowledged he did not reemploy all the strikers.
Among those to whom he did not offer reemploy-
ment at the time of their applications in April were
Conniff, Hooten, Smith, and Mason.
s it is undisputed that compliance with the Fair Labor Standards Act
required computation of pay on the basis of 40 hours per week at straight
time and 6 hours at overtime or a total of 49 hours per week computed on
4-1/3 weeks per month and Respondent 's bookkeeping records were ac-
cordingly so kept
40 1 do not credit Anthony's assertion that these applications for rein-
statement in April came when business is the slowest of any time in the
year Anthony acknowledged they were still broadcasting the same number
of hours per day, and inferentially required the same sized staff Anthony
also acknowledged that he desired to retain some of the employees who
were employed during the strike and at the same time reinstate some of the
people who had been on strike and applied for reinstatement
41 Anthony described Mason as an announcer at the time Mason was ini-
tially employed Anthony acknowledged that shortly thereafter, for a
period of approximately 3 years, Mason had been " News Director" for
both the AM and FM stations
1199
Failure To Reemploy Sherman Mason From April
26 to June 19, 1969 , and Failure To Fully Reinstate
Mason on June 19
Mason credibly related that he was initially em-
ployed by Respondent February 1, 1967, as News
Director. His hours were a split shift of 7 to 10:30
a.m. and 2 to 5:30 p.m., Monday through Friday,
and 9 a.m. to 5:30 p.m. on Saturday. His initial sa-
lary was $500 a month, later increased to $525 a
month. Mason described his duties as being in
charge of the gathering and editing of news, includ-
ing writing stories, not only for his shift but also for
the shift that followed, as well as on occasion
preparing a commercial. Mason continued with the
described duties until he went on strike on October
25, 1968. Prior to the strike, and inferentially prior
to the promotion of Dixon in early August, Dixon
did newsroom work on Sundays, which was
Mason's day off. After the promotion of Dixon and
until the day of the strike, this Sunday work was
done by Terrence Frazier.
Mason was among those for whom the Union
requested reinstatement on April 24, 1969, and was
among those who signed the request for reinstate-
ment received by Anthony on April 25. Not having
heard from Anthony, Mason called him 2 or 3 days
later. At that time, Anthony advised Mason that
Anthony had no opening but suggested that Mason
keep in touch with him. According to Mason,
Anthony's explanation was that he had too many
people and not enough jobs and that he could not
make room for Mason. Mason, while employed at
KAVR, Apple Valley, prior to June 18, was advised
by telegram that he was being offered reinstatement
"unconditionally." Subsequently, Mason reported
on Monday, inferentially June 23, 1969, having
been advised by Anthony that he would be
scheduled on a 40-hour week, with a reduction in
his former rate of pay which covered a 46-hour
week. His full workweek and former rate of pay
was restored in late July or early August 1969.41
Anthony described Mason's duties as New Director as gathering news by
making telephone calls to law enforcement agencies in the city, rewriting
stories from newspapers , also from teletype, inferentially news services
Mason also was to monitor police radios He was also to prepare news sto-
ries to be used by announcers on later shifts Anthony asserted that
Mason 's scheduled hours at the station approximated 43 hours a week and
the rest of his time was used for interviews and activities away from the sta-
tion by way of interviewing the mayor, other public officials, etc Mason
was the only one authorized to do field work away from the station
Anthony asserted that the position of News Director was eliminated
when the strike commenced Asked if the position had been "reinstated,"
Anthony responded "Nebulously, t would have to say yes "
Anthony did not deny the recitation of Mason relative to the circum-
stances surrounding Mason 's request for reinstatement and Respondent's
ensuing action or inaction
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Failure To Fully Reinstate Terrence Frazier April
1969-Alleged Constructive Discharge of Frazier
on June 12, 1969
Frazier was initially employed by Respondent in
April 1968. His hours as an FM announcer were 10
a.m. to 6 p.m., Monday through Friday, and as an
AM newsman, 9 a.m. through 5:30 p.m. on Sunday.
His salary was $430 a month. His work schedule
and pay remained constant until the strike on Oc-
tober 25, 1968.
I have found, supra, that Frazier was advised by
Anthony, prior to reporting for reinstatement on
April 25, 1969, that Frazier's former position had
been permanently filled.42 I have also found, supra,
that, commencing April 25, 1969, Frazier was
placed in the position of News Director but that his
compensation continued at his prestrike salary of
$430 a month.
Frazier credibly related that prior to the strike his
duties as an announcer were the playing of tapes
which included news, commercials, and time and
temperature announcements, periodically as
scheduled. Frazier related that his duties as
newsman after the strike included responsibilities
for gathering, writing, and editing for broadcast lo-
cal, statewide, and national news for both FM and
AM stations. In this position three press passes
were issued to Frazier who, among other duties,
went to the police department and fire department
to check their respective blotters for items of news
value.
Frazier related that on several occasions he
protested to Anthony that he was receiving only
$430 a month. I have found, supra, that Anthony
advised Frazier on the basis of advice given by Mrs.
Selvin that it would be illegal for Anthony to offer
Frazier any amount above what Frazier had been
receiving prior to the strike, prior to the conclusion
of this litigation. Unlike the other returning strikers
Frazier's weekly work schedule remained at 46
hours during the entire period of his employment
after the strike.
On an unspecified day during the employment
period between April 25 and June 11, Frazier was
41 Frazier identified an individual named Kling as the individual whom
Anthony advised Frazier had filled Frazier's former job
While I have also found supra that Frazier was in communication with
Anthony relative to returning for reinstatement in early December 1968, it
is undisputed that none of the strikers returned to work prior to April 1969
" I find it unnecessary to evaluate the assertion of Anthony that Frazier
had advised Anthony all the while he was working at KFXM " that Frazier
wanted to get out of the radio business and into correctional work with the
State, since the latter was Frazier 's primary interest I also find it unneces-
sary to evaluate Anthony's assertion that Frazier advised Anthony that Fra-
zier would double his earnings
Anthony did corroborate the fact that Frazier left Respondent's employ-
ment without notice and that Frazier had indicated he hoped that Anthony
would give him a good recommendation Absent any denial by Frazier, I
credit the assertion of Anthony that Frazier advised that he would be
doubling his income by reason of this change in jobs
Anthony did not dispute the recitation of Frazier as to the duties of Frazi-
er after Frazier' s return in April 1969 Anthony, however, asserted that
admonished by Anthony about making personal
telephone calls during worktime. Frazier entered a
disclaimer. Anthony thereupon played a record
which Frazier described as containing some four
letter words and a conversation between Frazier
and an unidentified female which Frazier related
was embarrassing to him. It would appear from the
recitation of Frazier that the recording of the objec-
tionable conversation actually occurred prior to the
commencement of the strike.
On June 11, without prior notice, Frazier advised
Anthony orally that he was leaving Respondent's
employment immediately to accept his present
position with the State of California. According to
Frazier, he then voluntarily and without request
from Anthony prepared a letter of resignation, as-
serting that his reason for leaving was an opportuni-
ty to increase his earnings. Frazier related herein
that his reason for preparing the letter of resigna-
tion was a desire on his part to obtain a favorable
recommendation from Anthony if one was later
needed
Under these circumstances, I am unable to find
credible the assertion of Frazier that he would have
been "very complacent and happy to stay on" if it
were not for the fear of embarrassment which
might ensue from the playing of the record to other
individuals, "plus the fact that I was not getting
what I felt I deserved" in salary.
Frazier acknowledged that he has been regularly
employed ever since leaving Respondent's employ
by the California State Department of Corrections
as a correctional officer .43
CONCLUDING FINDINGS
Failure and Refusal To Bargain
I have found undisputed that Mrs. Selvin refused
several requests of the Union that the negotiating
sessions be held in San Bernardino, or more accu-
rately Colton '41 where Respondent's radio station is
located, where the parties could obtain information
essential for bargaining sessions, and where mem-
bers of the unit could attend as observers.45
Frazier was not instructed to make any field calls but admitted that he did
not object to Frazier's engaging in this activity
" A distance of approximately 60 miles from Los Angeles
45 Mrs Selvin's reason for her refusal, contained in the transcript of the
September 30 negotiating meeting, was that Respondent was only one of
100 clients, all of whom, inferentially , needed access to Mrs Selvin even
during periods allocated for negotiations
However, Mrs Selvin sought herein to inject her physical limitations as
justification for her adamant refusal This contention must be rejected for a
variety of reasons She does not contend that she ever advanced this reason
for her refusal to the Union She did, in fact, go to Respondent's radio sta-
tion the day the strike commenced, October 25, 1968, a date both before
and after her several refusals to go to San Bernardino for negotiating ses-
sions She also went to San Bernardino for a hearing in an unfair labor prac-
tice case, in which she was neither a witness nor counsel, for a period of
several days, inferentially in September 1969 She also was in San Bernar-
dino for 4 consecutive days for the purpose as acting as co -counsel during
the hearing herein in October 1969
KFXM BROADCASTING COMPANY
Mrs. Selvin 's refusal to meet at a neutral location
such as the office of Federal Mediation and Con-
ciliation Service in Los Angeles is likewsie un-
disputed.'
I have found that Mrs. Selvin 's refusal to meet
anywhere other than at her apartment on
November 18 and 20 , 1968, as reflected in her tele-
gram to Davis , created an impasse.
In an early case , the Board held that the situs of
employment is the preferred place of bargaining. It
is the duty of Respondent to make his representa-
tive available for conferences at reasonable times
and places , and whether Respondent has furnished
reasonable facilities for collective bargaining is a
question of fact in each case . P. Lorillard Company,
16 NLRB 684, 695 , et. seq ., enfd . 117 F.2d 921
(C.A. 6).
The Board has held that where an employer and
the bargaining agency of its employees conduct the
negotiations for a labor agreement actually is a
matter of little or no moment . The important ele-
ment is that the two parties sit down as reasonable
individuals with the intent and desire to arrive at a
mutually agreeable contract . The locale, of course,
should be the most convenient and economical for
all concerned and where records necessary for the
negotiations are readily available . Mid-America
Transportation Company, 141 NLRB 326, 335.
The Board in that case found it was quite obvious
that Respondent was motivated by no such in-
terest . I find likewise herein.
I turn next to the other evidence which in my
view reflects the absence of a desire on the part of
Respondent to engage in good -faith bargaining. The
Union herein was newly certified and seeking its
first contract . Pursuant to its request of August 2,
1968, subsequent meetings for negotiations were
held only on August 23, September 11, 17, and 30.
The August 23 meeting lasted one-half hour and
was confined to a submission of the Union's
proposals. A meeting scheduled September 6 was
unilaterally canceled by Mrs. Selvin.47 A bargaining
'" I have found , supra, no merit in the assertion of Mrs Selvin that she
would have difficulty parking an automobile within a reasonable distance
or transporting essential files
Mrs Selvin acknowledged having attended numerous hearings involving
election proceedings in the Regional Office of the Board in Los Angeles
during the space of time between the commencement of negotiations and
the hearings herein
" It is undisputed that Mrs Selvin returned from a funeral in Alaska in
sufficient time to keep another appointment scheduled for September 6
Mrs Selvin does not contend that the sudden and untimely passing of her
granddaughter caused any modification of this other business appointment,
even though her asserted reason for canceling the negotiating session with
the Union was her uncertainty as to the date of her return
" The transcript of that negotiating session reflects that the time was
spent in discussing future meetings Mrs Selvin confined her observations
relative to the Union 's proposals to the fact that there would be "large
areas of disagreement " which she did not wish to identify until the parties
could devote a period of time to a discussion of them and [conduct] "real
negotiations of them "
I have found it unnecessary to detail the numerous interruptions of this
meeting related by Davis and Sullivan while Mrs Selvin directed the place-
ment of furniture and other articles being moved into her apartment on this
date
1201
session on September 1 1 was limited to 1 hour with
no discussion whatever of the terms of the
proposed contract .48 The meeting of September 17
encompassed approximately 3 hours Mrs. Selvin's
opening observation was that Respondent would
not grant any retroactivity , and that the conditions
agreed upon subsequently would become effective
only when an agreement was signed.
At the meeting of September 17, it was agreed
that the next meeting would be held on September
26. This meeting was canceled unilaterally by Mrs.
Selvin . I have found , supra , that on September 23
Mrs. Selvin advised Davis that she had assigned the
September 26 date to someone else, her explana-
tion being that she had not had time to formulate
counterproposals , also that she had not had time to
discuss money proposals with Tullis and Hearne.49
During the September 23 conversation , Mrs. Selvin
agreed to future meetings being scheduled for Sep-
tember 30 and October 4.
It was not until September 30 that Mrs. Selvin
presented for the first time any counterproposals.
These counterproposals were admittedly in-
complete.50
On September 30, Mrs. Selvin refused to agree to
the scheduling of any future negotiating sessions.51
It is patent that the Act requires that parties
make expeditious and prompt arrangements to
meet and confer. It does not contemplate
protracted delays, unilateral cancellation of
scheduled meetings, or other variations of negative
conduct which have been held by the Board and
courts to impede the bargaining process and other-
wise frustrate negotiations so as to evidence a lack
of regard for this aspect of the bargaining obliga-
tion. Exchange Parts Company, 139 NLRB 710,
713-714, enfd . 339 F. 2d 829 (C.A. 5).
It is beyond doubt that the duty to bargain
requires meeting at reasonable times and reasona-
ble intervals. An asserted inability to bargain
because of other business demands upon time has
been rejected by the Board . Insulating Fabricators,
" However , as I have found , supra, Mrs Selvin had at the September 17
meeting given a wage proposal to the Union 's representatives which she
described as the maximum amounts
' The transcript of the meeting of September 30 reflects that the
Union's representatives protested when Mrs Selvin spent more than one-
half hour attempting to assemble her counterproposals in proper sequence
While the Union had submitted health and welfare and pension fund
proposals after the meeting of September 17, as requested by Mrs Selvin,
the transcript of September 30 reflects that Mrs Selvm had not examined
either of these documents and also was not prepared to discuss them on
that date Her lack of such preparation was her asserted reason for cancel-
ing the meeting of September 26
" She thus unilaterally canceled the meeting scheduled for October 4
Her purported reason was that she desired to he prepared to go into the
welfare matter and this would take several weeks
Mrs Selvin explained that she desired to contact an insurance company
to determine what coverage might be obtained for all of Respondent's em-
ployees, as distinguished from those in the unit , for the proposed 5 percent
of payroll as a possible counterproposal to the Union's request for the
establishment of a health and welfare fund and retirement fund
However, she acknowledged she had not completed reading the Union's
proposed contract and had not completed preparation of her counter-
proposals
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., Southern Division, 144 NLRB 1325, 1328-29,
enfd 338 F.2d 1002 (C.A. 4).
The Supreme Court has held: "It is apparent
from the legislative history of the whole Act that
the policy of Congress is to impose a mutual duty
upon the parties to confer in good faith with a
desire to reach agreement , in the belief that such an
approach from both sides of the table promotes the
overall design of achieving industrial peace.[51]
Discussion conducted under the standard of good
faith may narrow the issues, making the real de-
mands of the parties clear to each other, and per-
haps to themselves, and may encourage an attitude
of settlement through give and take. The main-
stream of cases before the Board and in the courts
reviewing its orders, under the provisions fixing the
duty to bargain collectively, is concerned with in-
suring that the parties approach the bargaining
table with this attitude." N.L.R.B. v. Insurance
Agents' International Union, 361 U.S. 477, 488.
In General Electric53 the Board rejected the con-
tention of Respondent therein that it could not be
found guilty of having violated this statutory bar-
gaining duty where it met and conferred with the
bargaining representative on all required subjects of
bargaining, had not taken unlawful unilateral ac-
tion, and had not demanded the inclusion of any il-
legal clauses or insisted to an impasse on any non-
mandatory bargaining provisions. The Board noted
that an employer does violate Section 8(a)(5)
where it enters into bargaining negotiations with a
desire not to reach an agreement with the Union, or
has taken unilateral action with respect to a term or
condition of employment. The Board then stated
that even though an employer may have refrained
from improper conduct, an employer may still have
failed to discharge its statutory obligation to bar-
gain in good faith. The Board said: "A party who
enters into bargaining negotiations with a `take-it-
or-leave-it' attitude violates its duty to bargain
although it goes through the form of bargaining
does not insist on any illegal or nonmandatory bar-
gaining proposals, and wants to sign an agreement.
For good-faith bargaining means more than `going
through the motions of negotiating.' `... the essen-
tial thing is rather the serious intent to adjust dif-
ferences and to reach an acceptable common
ground.... "' (Citations omitted.)
If an employer can find nothing whatever to
agree to in an ordinary current-day contract sub-
mitted to him, or in some of the Union's related
minor requests, and if the employer makes not a
52 Citing N L R B v Jones & Laughlin Steel Corp , 301 US 1,45
S' General Electric Company, 150 NLRB 192, 193-194
I have found two of the four meetings held, i e , August 23 and Sep-
tember It, totally devoid of meaningful bargaining
5 ' Only a portion of which were ever presented , and those not until the
last meeting , September 30
' Mrs Selvin 's disregard for accuracy is reflected in her assertion that on
September 30 she called Tullis and obtained a wage proposal from him
The transcript of the negotiating meeting of that date reflects that Mrs Set-
vin, at the outset of that meeting, advised that Tullis would not be available
single serious proposal meeting the Union at least
part way, then certainly the Board must be able to
conclude that this is at least some evidence of bad
faith, that is, a desire not to reach an agreement
with the Union. In other words, while the Board
cannot force an employer to make a "concession"
on any specific issue or to adopt any particular
position, the employer is obliged to make some
reasonable effort in some direction to compose his
differences with the Union if Section 8(a)(5) is to
be read as imposing any substantial obligation at
all. N.L.R.B. v. Reed & Prince Manufacturing Com-
pany, 205 F.2d 131, 134-135 (C.A. 1).
Accordingly, for the reasons set forth, I find that
Respondent: (a) failed to invest its negotiator with
the authority essential for the conduct of meaning-
ful negotiations; (b) failed and refused to schedule
negotiating meetings at reasonable intervals;54 (c)
unilaterally canceled scheduled meetings and
refused requests for additional meetings; (d)
procrastinated in the preparation of counter-
proposals;55 (e) asserted inability to conclude
negotiations by reason of the absence of Respon-
dent's owners;56 (f) came to negotiating meetings
unprepared to discuss proposals previously sub-
mitted;S7 and (g) refused, to an impasse, to meet
elsewhere than at her apartment. I further find that
Respondent thus failed and refused from the outset
of negotiations on August 23, 1968, and at all times
thereafter, to engage in good-faith bargaining in
contravention of Section 8(a)(5) and (1) of the
Act.
Unfair Labor Practice Strike
It is alleged that the strike, which I have found
commenced October 25, 1968, and continued until
approximately April 25, 1969, was caused and pro-
longed by the unfair labor practices of Respondent.
I have found that at a meeting on October 15,
1968, the employees in the unit were advised by
Sullivan of Respondent's failure and refusal to enter
into meaningful bargaining, and particularly its
refusal to conduct negotiating sessions in San
Bernardino or Colton. As a result, a unanimous
vote to strike ensued.
Accordingly, I find the concerted work stoppage
or strike was caused and prolonged by the unfair
labor practices of Respondent and that it was an
unfair labor practice strike.
until October 20
zr The transcript of the September 30 negotiating meeting contains an
admission by Mrs Selvin that she had not examined the health and welfare
and retirement plans submitted to her by the Union on approximately Sep-
tember 18
It also contains an assurance by Mrs Selvin that she advised Respondent
to provide "good coverage on welfare and retirement" for the employees
Mrs Selvin's recitation as a witness herein that no retirement plan was
considered is only one of many illustrations of her indifference about accu-
racy, even while under oath
KFXM BROADCASTING COMPANY
Failure To Recall Conniff, Hooten, and Smith on
and after April 25, 1969
I have found undisputed the fact that Respondent
did not recall Conniff, Hooten, or Smith, or make
an offer of recall, until August or September. In
early May, Anthony advised Smith that no positions
were available. About the same time, Anthony ad-
vised Hooten that he did not intend to reinstate
him, without explanation. Conniff received no
response.
In the Mastro Plastics case,58 the Supreme Court
reaffirmed the right of unfair labor practices
strikers, upon proper application, to reinstatement
with backpay, even if replacements for them have
been made, except where respondent can sustain an
affirmative defense.
At the outset of the hearing herein, Respondent's
attention was directed to the fact that it had
responded to this particular allegation with a
general denial, while asserting an affirmative
defense to some of the other portions of the com-
plaint. Respondent acknowledged that it was not
denying that the three named employees made an
unconditional application for reinstatement. In
answer to a question of whether Respondent denied
that it failed to reinstate these individuals, Mrs. Sel-
vin responded "We offered them employment."
Near the end of the hearing, during the testimony
of director of operations Anthony, for the first time
Respondent sought to establish that its failure to
reemploy Conniff, and inferentially Hooten, Smith,
Walters, and Mason, was by reason of violence on
the picket line. This testimony upon objection was
stricken by reason of a failure to plead an affirma-
tive defense.
Rule 8(c), Federal Rules of Civil Procedure, pro-
vides, inter alia, that: "any other matter constituting
an avoidance or affirmative defense" shall be affir-
matively pleaded. Rule 12(b) provides, inter alia:
Every defense, in law or fact, to a claim for relief in
any pleading, "shall be asserted in the responsive
pleading thereto if one is required...."
The Board has held: "As in the case in the
United States district courts under the Federal
Rules of Civil Procedure, we believe that the
sound administration of the Act and expedi-
tious disposition of disputes arising under the
Act requires that the Board view as waived all
defenses which are not raised timely either in
the pleadings or, where appropriate, by motion
during the hearing." Houston Sheet Metal Con-
tractors Association, 147 NLRB 774, 778.59
Accordingly, I find Respondent's failure to rein-
state Conniff, Hooten, and Smith upon their uncon-
ditional application constituted discrimination in
Mastro Plastics Corp v N L R B, 350 U S 270, 278
See also Potlatch Forests, Inc , 87 NLRB 1193, 1197, fn 2
R0I find no merit in General Counsel's contention in his brief that
Respondent's offer was not an adequate offer by reason of the reference to
an hourly rate The offer clearly was for 46 hours of employment per week
1203
regard to hire and tenure of employment and was
thus violative of the provision of Section 8(a)(3)
and (1) of the Act.
However, since subsequent offers of employment
were made by Respondent to the named em-
ployees, the nature and effect of these offers are
next considered.
On August 13, 1969, Respondent sent the follow-
ing telegram to Conniff:
Your exact former position at KFXM 6 to 10
a.m. plus production at 46 hours per week at
$700 per month based on same hourly rate and
overtime as paid prior to your leaving our em-
ploy to go on strike is immediately available
and hereby offered to you. If no reply from you
by August 25, 1969, we assume you are not ac-
cepting.
The telegram was signed by Anthony and was
dispatched to both Conniff's place of employment
at that time and his residence. A copy of the tele-
gram was dispatched by letter by Anthony on Au-
gust 21. Conniff acknowledged he refused to accept
delivery of these communications. He
acknowledged that he knew there were registered
letters at the post office from San Bernardino,
which he refused to pick up. During the hearing
herein Conniff was advised that he was being of-
fered employment on the same terms and condi-
tions as existed during his employment prior to the
strike. Conniff responded that he would not accept
the offer.
Finding Respondent's offer to be bona fide, it is
patent that Conniff's entitlement to backpay ter-
minated upon his failure to accept Respondent's
offer on or before August 25, 1969.60
On August 26, 1969, Anthony sent the following
letter to Hooten:
Your exact former position at KFXM, 2 p.m.
to 6 p.m., plus production time totaling 46
hours per week at $600 per month based on
the same weekly rate and overtime as paid
prior to your leaving our employ to go on
strike is immediately available and hereby of-
fered to you. If no reply by September 8, 1969,
we assume you are not accepting.
On September 6, Hooten responded by telegram
as follows, in pertinent part:
Please be advised that as a member of ASTRA,
[sic] I consider myself on strike against KFXM
for among other things unlawfully refusing to
bargain in good-faith, at this time impending
[sic] the resolution of charges against KFXM
in the NLRB complaint I reject your offer for
returning to work.61
Accordingly, finding Respondent's offer bona
fide, I find that Hooten's backpay period ter-
at the same monthly rate at which Conniff was paid prior to the strike
Si
Hooten acknowledged that prior to the strike his daily schedule, in-
cluding production time, was I 1 a m to 7 p in and his monthly salary was
$600
427-258 O-LT - 74 - 77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minated on the date of his rejection of Respon-
dent 's offer of reemployment , September 6, 1969.
I have found , supra , that Smith was reinstated on
an unspecified date in late September 1969. How-
ever , Smith credibly related that his worktime has
been limited to a schedule of midnight to 9 a.m. on
Sunday morning and midnight to 6:30 a.m. on
Monday and Tuesday, or a total of 22 hours a
week . His prestrike schedule is obscure, as noted
infra. It is undisputed that Smith was paid on an
hourly rate of $2.50.
Failure To Fully Reinstate Thoen and McCoy and
To Reinstate Walters and Pezzato
The record reasonably permits a finding that all
of the employees in the unit except Smith were paid
twice monthly on the basis of the approximate
monthly salary of each. In order to comply with the
Fair Labor Standards Act, it also appears that
Respondent's books reflected payment of 40 hours
straight time and 6 hours of overtime, or 49 hours,
for each week actually worked or portion thereof in
each payroll period.
Anthony acknowledged that strikers who were
reemployed were reduced from a 46-hour week to
a 40-hour week, with a corresponding reduction in
pay to permit Respondent to continue the employ-
ment of replacements hired during the strike. At
the same time, some striker replacements were
reduced from a schedule of 46 to 40 hours but con-
tinued to receive pay for 46 hours while others con-
tinued to work 46 hours.
Numerous Board and court cases have held that
the right of an unfair labor practice striker to rein-
statement to the same or a similar position upon
unconditional application is such that the employer
may be required to discharge replacements where
necessary to provide full reinstatement. 62
I find that on May 1, 1969, Anthony reduced the
scheduled weekly hours of Thoen and McCoy from
46 hours to 40 hours, and this reduction continued
until August 1, 1969, as to both. I further find that
since August 1, 1969, McCoy has been scheduled
for only 45 hours per week.
I have found, supra , that Anthony, in May 1969,
offered to reinstate Pezzato and Walters on
schedules calling for 40 hours of work per week,
which Pezzato and Walters declined by reason of
said reduction in hours . I find these did not con-
stitute valid offers of reinstatement.
Accordingly, I find Respondent 's reduction in
scheduled hours of Thoen and McCoy and its
failure to reinstate Walters and Pezzato upon the
unconditional application of each constituted dis-
crimination in regard to hire and tenure and terms
and conditions of employment and were thus viola-
tive of Section 8 ( a)(3) and (1) of the Act.
Subsequent events require consideration of the
termination of any backpay period which may be
found relative to Pezzato and Walters.
On August 13, Respondent advised Pezzato by
telegram that it was offering him reinstatement in
his precise former position on the basis of a 46-
hour week and the same $430 monthly salary he
received prior to the strike. The language used is
identical to that contained, supra, in the telegram of
the same date to Conniff, except the amount of sa-
lary. Pezzato was also advised that if he did not
respond by August 25, Respondent would assume
that he was not accepting the offer. It was signed by
Anthony. Pezzato related that he declined the offer
in a telephone conversation with Anthony on an
unspecified date. In response to a request for the
reason he found the terms offered "unfavorable" as
he expressed it, Pezzato asserted that the telegram
mentioned an hourly rate. I find no merit in this as-
sertion. I find Pezzato's period of backpay ter-
minated on August 25, 1969, by reason of his
failure to accept the bona fide offer of Respondent.
Walters acknowledged that he returned to
Respondent's employment on September 30, 1969,
at the same schedule of weekly hours and at the
same monthly pay rate at which he was employed
prior to the strike. Accordingly, Walters' backpay
period terminated on September 30, 1969.
Failure To Recall Mason on April 26, 1969, and
Failure To Fully Reinstate Mason on and After
June 19, 1969
I have found, supra, that Mason made an uncon-
ditional application for reinstatement on April 25,
1969, and was thereafter advised by Anthony that
he had too many people including strike replace-
ments and not enough jobs and could not make
room for Mason. I have also found that the work
performed by Mason before the strike as News
Director was assigned to Frazier commencing April
25, 1969.
I have also found that Mason was reinstated on
June 23, 1969, but on a schedule of hours which
was reduced from 46 to 40 hours a week, and this
reduction continued until August 1, 1969.
For the same reasons explicated supra as to other
returning strikers, I find the failure to reinstate
Mason upon his unconditional application on April
25, 1969, and the failure to fully reinstate Mason to
a schedule of 46 hours per week and the same sa-
lary as he had received prior to the strike from June
23 to August 1, 1969, constituted in each instance
discrimination in regard to hire and tenure and
terms and conditions of employment and were thus
violative of Section 8(a)(3) and (1) of the Act.
°Eg,NLRB v Kohler Co , 351 F2d799 ( C A DC ).
KFXM BROADCASTING COMPANY
Failure To Fully Reinstate Terrence Frazier on
April 25, 1969-Alleged Constructive Discharge of
Frazier on June 12, 1969
I have found that upon Frazier's unconditional
application for reinstatement, Anthony advised Fra-
zier that his prestrike job as an FM announcer had
been filled by a strike replacement named Kling.
Anthony thereupon assigned Frazier the same du-
ties as had been performed prior to the strike by
Mason. Frazier's prestrike monthly salary of $430
was not increased.
General Counsel contends that Frazier's duties as
News Director involved more responsibility, and
that therefore he should have received more
money. It is alleged in the complaint that Respon-
dent failed and refused to pay Frazier the normal
rate for the position of News Director. These are
clearly different contentions. The assertion of
Anthony that there was no set rate per month for
the position of newsman or any other job classifica-
tion stands undisputed. Anthony asserted that he
had paid various rates from $325 to $700 a month
for a newsman based on the experience, ability, and
potential and Anthony's estimate of what an in-
dividual might contribute as an employee. Anthony
asserted that Respondent paid less for FM announ-
cers because it was easier work. I find no evidence
which conflicts with the foregoing assertions of
Anthony, which I find credible. Accordingly, I find
the record devoid of the evidence essential to sup-
port a finding that Respondent ever established a
pay rate or pay range for the position of News
Director.
General Counsel contends that Frazier was never
properly reemployed because he was not reassigned
to his former position but was placed in a more
responsible position at his former rate of pay. It is
undisputed that Frazier was reinstated on the
schedule providing 46 hours of work per week at
the same salary as that which he received prior to
the strike. While he sought unsuccessfully to obtain
an increase in pay, there is no evidence that he ob-
jected to the duties assigned to him after the strike
as newsman or News Director. There is no evidence
that these duties were more arduous or onerous.
Quite to the contrary, it would appear that Frazier
was pleased rather than displeased with his new as-
signment.
Accordingly, for the reasons stated, I am unable
to find Frazier was not properly reinstated on April
25, 1969, as alleged in paragraph 21 of the com-
plaint, or that Respondent discriminated against
Frazier in regard to his terms and conditions of em-
ployment by failing to pay him a nonexistent
&' I do not credit the inconsistent statements of Frazier as to the reason
underlying his resignation At one point he related " I would have been very
complacent and happy to stay on" if he had been reinstated to his prestrike
position of FM announcer , inferentially at the salary he was paid At
another point, however, he asserted his reason for leaving was "that I was
not getting what I felt I deserved" in salary
1205
established rate for the position of News Director
as alleged in paragraph 23(a) of the complaint, and
I will recommend dismissal of those allegations.
General Counsel's assertion that Frazier's
resignation constitutes a constructive discharge
would appear to rest entirely on the failure of
Respondent to pay Frazier an amount equivalent to
the amount paid to Mason as News Director.
Frazier's resignation appears to have been
motivated by the opportunity presented to him for
employment with the California State Department
of Corrections. The amount of compensation paid
to Frazier as a correctional officer is obscure. Ac-
cordingly, there appears no evidence which would
permit a comparison between the salary paid Frazi-
er immediately after his separation from Respon-
dent's employment with the amount Mason
received for a 46-hour week.63
Finding no credible evidence which would
establish that Frazier's resignation was a construc-
tive discharge, I will recommend dismissal of the al-
legations of paragraph 23(b) of the complaint.
Unilateral Modification of the Rate of Pay for News
Director
Finding no evidence of an established rate for the
position of News Director, I will recommend a
dismissal of the allegations of paragraphs 15 and
23(a) of the complaint.
Unilateral Modification of Scheduled Workweek-
May 1 to August 1, 1969
It is alleged that on or about May 3, 1969,
Respondent, without bargaining with or notifying
the Union, unilaterally reduced the hours of work
of returning strikers. It is also alleged that this con-
duct was for the purpose of rewarding employees
who did not support the Union and punishing those
who had joined or assisted the Union or engaged in
concerted activities.
I have found that after their reinstatement on
April 25, 1969, and apparently commencing ap-
proximately May 1, Thoen and McCoy were ad-
vised by Anthony that their hours were being
reduced from a schedule of 46 hours per week to
40 hours per week, with a proportionate reduction
in pay. When Mason was reemployed on June 23,
he was similarly advised by Anthony. Respondent
does not dispute evidence that some strike replace-
ments were similarly reduced in hours of work
without a reduction in pay, while other strike
replacements were continued on a weekly schedule
of 46 hours.
I am unable to perceive any purpose in elaborating upon Frazier's ex-
pressions of misgivings and mental gyrations resulting from the playing of
the incriminating tape, and Frazier's inability to decide which side of the
union-management fence he should be on, both of which he acknowledged
were factors in his decision to resign
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have found, supra, that the strike which com-
menced October 25, 1968, was an unfair labor
practice strike.
It is patent that discrimination in the scheduling
of hours of employment or amount of pay for a
specified schedule of hours for the purpose of re-
warding employees whom Respondent knew did
not support the Union since they were strike
replacements and the simultaneous reduction of
scheduled hours of employment or pay of those
whom Respondent knew had supported the Union
by participating in strike action or remaining away
from work is conduct violative of the provision of
Section 8(a)(3) and (1) of the Act. A unilateral
modification of existing hours of employment and
pay without notification to the Union and bargain-
ing with it is conduct violative of Section 8(a)(5)
and (1) of the Act. Nelson B. Allen, 149 NLRB
229.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with the
operations described in section I, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
It will be recommended that Respondent, upon
request , bargain collectively in good faith with Los
Angeles Local, American Federation of Television
and Radio Artists, AFL-CIO, as the exclusive
representative of all employees in the unit herein
found to be appropriate for the purpose of collec-
tive bargaining with respect to rates of pay, wages,
hours of employment , and other terms and condi-
tions of employment.
It has been found that Respondent discrimina-
torily failed and refused to recall James Conniff,
Claude Hooten , Charles R. Walters , Dennis J. Pez-
zato , Craig Smith, and Sherman Mason for varying
e' Smith related he was reemployed by Respondent approximately 3
weeks before the strike, on October 25, 1968
He asserted his schedule was midnight to 9 a .m on Sunday, midnight to
6 30 am on Monday and Tuesday, on KFXM, and on Wednesday,
Thursday , Friday, and Saturday , on KDUO, from 6 a in to noon
It appears undisputed that his schedule since his reinstatement has been
limited to the prestrike KFXM hours
However , the parties stipulated that in the payroll period which ended
periods of time on and after April 25, 1969, upon
the unconditional application of each. However, I
have found that Mason was offered reemployment
and was reemployed on June 23, 1969, on a
reduced schedule of 40 hours per week, which con-
tinued until approximately August 1, 1969, at
which time he was restored to his prestrike
schedule of 46 hours per week. I have found that
Conniff, Pezzato, and Hooten were offered reem-
ployment and the first two named declined the
same on August 25, 1969, while Hooten declined a
similar offer on September 6, 1969. 1 have found
that Walters was offered and accepted reinstate-
ment on September 30, 1969. 1 have found that
Craig Smith was not reinstated until an unspecified
date in September, at which time he was assigned a
schedule limited to 22 hours per week. I have found
that John B. Thoen and Don McCoy, who were
reinstated on approximately April 25, 1969, were
reduced to a schedule of 40 hours per week each
on approximately May 1, 1969, and that this
reduced schedule continued until approximately
August 1, 1969.
Accordingly, for the reasons stated, I will not
recommend reinstatement of those named who
have not been reinstated. I will recommend that
Conniff, Hooten, Pezzato, Walters, and Smith be
made whole for any loss of pay each may have suf-
fered between April 25, 1969, until the respective
date each of the first three declined reinstatement,
as to each of them, and the respective date Respon-
dent's records reflect was the first day of employ-
ment of the last two named. I will similarly recom-
mend that Mason be paid any loss he may have suf-
fered by reason of Respondent's failure to reinstate
him during the period from April 25 to June 23,
1969, or whatever date Respondent's records
reflect was his first date of employment, and in ad-
dition that Respondent pay Mason 6 hours at the
overtime rate for the period from the commence-
ment of his employment until the date Respon-
dent's records reflect he was restored to a 46-hour
weekly schedule, approximately August 1, 1969. I
recommend that Smith be paid for any loss he suf-
fered by Respondent's failure to reinstate him from
April 25 to whatever day in September 1969
Respondent's records reflect was his first day of em-
ployment.&t I find, for the reasons stated in the mar-
gin, that Scott is entitled to payment for the
number of scheduled hours per week he worked
immediately preceding the strike for the period
from April 25, 1969, to the date of his reinstate-
ment, and, in addition, the difference between the
number of said scheduled hours and 22 hours per
October 15, Scott worked 48 hours, and in the payroll period which ended
October 31, 1968, he worked a total of 50 hours according to Respon-
dent's payroll records
Since Scott admittedly went on strike when he would have reported on
Friday, October 25 at 6 a in , this record does not reflect the actual weekly
scheduled hours Scott worked immediately preceding the strike , to which
schedule he was entitled to reinstatement upon his unconditional applica-
tion April 25, 1969, and thereafter
KFXM BROADCASTING COMPANY
week thereafter, if said number exceeds 22 hours
per week,65 for all weeks since his reinstatement. I
also recommend that Thoen and McCoy be com-
pensated for the discriminatory reduction in hours
for whatever weeks Respondent's records reflect
they were paid for 40 hours rather than 46 hours
during the period of approximately May I to Au-
gust 1 , 1969, or the reduction of McCoy to 45
hours thereafter. In each instance of loss of pay
prior to reinstatement, said loss of pay shall be
based on the earnings each employee would nor-
mally have earned during the period of time in-
dicated, less the net earnings of each employee dur-
ing said period. Said backpay shall be computed on
a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289.
Interest on backpay shall be computed in the
manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
It is also recommended that Respondent be or-
dered to make available to the Board, upon
request, payroll and other records to facilitate
checking of the amount of earnings due.
In view of the nature of the unfair labor practices
committed, the commission of similar and other un-
fair labor practices reasonably may be anticipated. I
shall therefore recommend that Respondent be or-
dered to cease and desist from in any manner in-
fringing upon rights guaranteed to its employees by
Section 7 of the Act.
Upon the foregoing findings of fact and upon the
entire record of the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2 ( 2), (6), and
(7) of the Act.
2. Los Angeles Local , American Federation of
Television and Radio Artists , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By engaging in the conduct set forth in the
section entitled " Interference , Restraint, and Coer-
cion," to the extent therein found , the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act.
4. By discriminating with respect to the hire and
tenure of employment and terms and conditions of
employment of James Conniff, Claude Hooten,
Craig Smith , Charles R. Walters, Dennis J. Pezzato,
Sherman Mason , John B. Thoen , and Don McCoy,
thereby discouraging the free exercise of rights
guaranteed by Section 7 of the Act , and by dis-
criminatorily reducing scheduled hours of employ-
ment of returning strikers , Respondent has engaged
1207
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. All announcers, newscasters, and performers
employed by the Respondent at radio stations
KFXM-AM and KDUO-FM, but excluding all
other employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times since July 29, 1968, Los Angeles
Local, American Federation of Television and
Radio Artists, AFL-CIO, has been the exclusive
representative of all the employees in the aforesaid
unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment.
7. By failing and refusing on and after August
23, 1968, to bargain collectively with the aforesaid
labor organization and by unilaterally reducing the
scheduled hours of weekly work from 46 to 40
hours commencing approximately May 1, 1969,
and continuing until approximately August 1, 1969,
without bargaining with or notifying the Union, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
8. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case , I recommend that the Respondent, KFXM
Broadcasting Company , its agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively,
in good faith , with Los Angeles Local , American
Federation of Television and Radio Artists,
AFL-CIO, as the exclusive representative of its em-
ployees in the following appropriate unit:
All announcers , newscasters, and performers
employed by the Respondent at radio stations
KFXM-AM and KDUO-FM, but excluding all
other employees , guards , and supervisors as
defined in the Act.
(b) Discouraging membership in Los Angeles
Local , American Federation of Television and
Radio Artists , AFL-CIO , by discriminating against
strikers in the matter of recall or in the matter of
scheduled hours of work per week or in regard to
hire or tenure or terms or conditions of employ-
ment.
(c) Threatening employees with economic
retaliation if they engage in organizational or pro-
' Said determination to be made in any supplementary proceeding
which may ensue or by agreement of the parties The adequacy or in-
adequacy of Scott 's reinstatement is dependent upon such determination
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tected concerted activities in a manner violative of
Section 8(a)(1) of the Act.
(d) Promulgating, maintaining, or enforcing any
unlawful rule preventing employees from engaging
in union or concerted activities in nonwork areas or
away from Respondent's premises during the em-
ployees' free time.
(e) Creating an impression of surveillance of
union meetings.
(f) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of the right of self-organization, to form labor
organizations, to join or assist the above-named
Union, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in any other concerted ac-
tivity for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Upon request, recognize and bargain collec-
tively, with Los Angeles Local, American Federa-
tion of Television and Radio Artists, AFL-CIO, as
the exclusive representative of all employees in the
aforesaid appropriate unit and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Make whole James Conniff, Claude Hooten,
Craig Smith, Charles R. Walters, Dennis Pezzato,
Sherman Mason, Don McCoy, and Jon B. Thoen
for any loss of pay each may have suffered by
reason of Respondent's discrimination against each,
in accordance with the recommendations set forth
in "The Remedy."
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its plant in San Bernardino, Califor-
nia, copies of the attached notice marked "Appen-
dix."se Copies of said notice, on forms provided by
the Regional Director for Region 3 1, after being
duly signed by Respondent's representative, shall
be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 3 1,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER RECOMMENDED that unless within
20 days from the date of the receipt of this Deci-
sion, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the
foregoing Recommended Order,67 the National
Labor Relations Board issue an order requiring
Respondent to take the aforesaid action.
IT IS FURTHER RECOMMENDED that the allegations
of paragraphs 15, 17(b), (e), (i), and (j), and 21,
insofar as it relates to Terrence Frazier, and para-
graph 23(a) and (b) be, and they are hereby,
dismissed.
"" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 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 Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
"] In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 31, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, recognize and bar-
gain with Los Angeles Local, American
Federation of Television and Radio Artists,
AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described
below with respect to rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and, if an un-
derstanding is reached, we will embody such
understanding in a signed contract. The bar-
gaining unit is:
All announcers, newscasters, and perfor-
mers employed by us at radio station
KFXM-AM and KDUO-FM, but exclud-
ing all other employees, guards, and super-
visors as defined in the Act.
WE WILL NOT discourage membership in Los
Angeles Local, American Federation of Televi-
sion and Radio Artists, AFL-CIO, by dis-
criminating against strikers in a matter of re-
call, or in the matter of scheduled hours of
KFXM BROADCASTING COMPANY
work per week, or in regard to hire and tenure
or terms or conditions of employment.
WE WILL NOT threaten employees with
economic retaliation if they engage in or-
ganizational or protected concerted activities
in a manner violative of Section 8(a)(1) of the
Act.
WE WILL NOT promulgate, maintain, or en-
force any unlawful rule preventing employees
from engaging in union or concerted activities
in nonwork areas or away from our premises
during the employees' free time.
WE WILL NOT create an impression of sur-
veillance of union meetings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activity for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all such activities, except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment, as authorized in
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
1209
WE WILL make whole James Conniff, Claude
Hooten, Craig Smith, Charles R Walters,
Dennis Pezzato, Sherman Mason, Don McCoy,
and Jon B. Thoen for any loss each may have
suffered as a result of our discrimination
against each.
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of the above-named Union or any other labor or-
ganization.
Dated By
KFXM BROADCASTING
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 17th Floor, U.S. Post Office and
Courthouse, 312 North Spring Street, Los Angeles,
California 90012, Telephone 688-5801.