KTRH Braodcasting Co.

National Labor Relations Board - Board Decisions

Jul 13, 1955

113 N.L.R.B. 125 (N.L.R.B. 1955)

KTRH BROADCASTING COMPANY 125
action designed to effectuate the policies of the Act. It having been found that the
Respondent has refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in the appropriate unit, it will be recommended that the
Respondent upon request bargain collectively with the Union.
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following.
CONCLUSIONS OF LAW
1. United Steelworkers of America, CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. The following employees of Youngstown Tent and Awning Company, and/or
Youngstown Tent and Awning Company, a division of Wagner Awning and Manu-
facturing Company, Youngstown, Ohio, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the Act: all hourly
employees excluding all office and plant clerical employees, professional employees,
guards, and supervisors as defined in the Act.
3. On December 2, 1954, United Steelwoikers of America, CIO, was the exclusive
bargaining representative of the employees in the aforesaid appropriate unit in ac-
cordance with the provisions of Section 9 (a) of the Act.
4. By refusing on January 12, 1955, and at all times thereafter, to bargain col-
lectively with the Union as the exclusive representative of all its employees in the
aforesaid unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
KTRH Broadcasting Company and National Association of
roadcast Employees and Technicians , CIO.' Case No. 39-CA-
311. July 13,1955
DECISION AND ORDER
On October 6, 1953, Trial Examiner Lloyd Buchanan issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged and was engaging in unfair labor practices in
violation of Section 8 (a) (1) and (5) of the Act and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
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 aflirmed.2 The Board has considered the Intermedi-
i The naive of the Chaiguig'Union was National Association of Bioadeast Engineers
and Technicians, CIO fending the heating, the naine was changed to read as appears
in the title
2The Respondent contends that it was prejudiced by the Trial Examiner's ruling quash-
ing subpenas for two of the L'oaid's employees We do not agree that this ruling de-
prived the Respondent of a fan heating because (1) the Respondent did not comply with
the iequiiements of Section 10287 of the Board's Rules and Regulations , Series 6, ao
113 NL1[B No. 13.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate Report, the Respondent's exceptions and brief, and the entire rec-
ord in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations with the following modifications
and additions:
1. The Trial Examiner found, and we agree, that Chief Engineer
Mullan's threats of loss of various employee benefits, if the Union
should emerge successful, made to Sevier, Parker, Byrd, and McDaniel
on December 30 and 31, 1952, and Mullan's simultaneous interroga-
tions of the same employees and of employee Parkerson constituted
unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.' We also find, as did the Trial Examiner, that Smith's' friendly
warning to McDaniel that "they are out to get you at all costs" was a
threat interfering with McDaniel's right to engage in union activity
and likewise violative of Section 8 (a) (1).
We also agree with the Trial Examiner that the interrogations of
McDaniel by Herndon and Orr in December 1952, and the interroga-
tion of Parkerson by Orr on January 6, 1953, constitute violations of
Section 8 (a) (1) under the circumstances of this case. In arriving
at this conclusion, we have considered that the interrogators were the
two highest officials of the respondent; that the interrogations oc-
curred at or about the same time that Mullan's threats and interroga-
tions took place and within a day or two before and several days after
the Union's demand for recognition was made ; and finally that one of
the persons questioned, McDaniel, was the known chief adherent of
the union movement in the Respondent's organization.'
2. However, we do not agree with the Trial Examiner that the Re-
spondent's refusal to bargain with the Union or to recognize it as the
bargaining representative of a majority of the Respondent's employees
constituted a refusal to bargain within the meaning of Section 8 (a)
(5) of the Act.
On January 2, 1953, Union Representative Favara, together with
employees Parker and McDaniel, called on General Manager Herndon
and made a claim of majority representation in the appropriate unit.
Herndon said the Union would have to prove the majority. Favara
replied that he would at a Board-directed election. Favara also told
Herndon at this time that Supervisor Mullan had been interfering
with union activities and asked that Herndon restrain him. Herndon
said that Mullan was acting without authorization and that he would
instruct Mullan to stop such interference. Favara then filed a repre-
amended , in order to obtain the testimony of these witnesses , and (2 ) the matters which
the Respondent offered to prove by these Board employees' testimony are not material
to the issue of the Respondent 's liability.
Ridge Tool Company, 102 NLRB 512 , at 513 ; Mackie-Lovejoy Manufacturing Co.,
103 NLRB 172, at 173; Clearfield Cheese Company, Inc., 106 NLRB 417.
' We find Smith to be a supervisor, as did the Tilal Examiner.
*Blue Flash Express, Inc, 109 NLRB 591 ; N. L R B v Syracuse Color Press, Inc,
209 F. 2d 596 (C. A 2), enfg 103 NLRB 377
KTRH BROADCASTING COMPANY 127
sentation petition at the Board's offices. The same afternoon the two
groups met again, with the Respondent's attorney also present, and
after some discussion all parties agreed to await Board procedures for
holding an election. Five days later, on January 7, Favara and an-
other union representative called on Herndon and told him that the
Union had withdrawn its petition because of the Respondent's inter-
ference, threats, and promises and that they were prepared to prove
the Union's majority status by signed authorization cards. Herndon
refused to accept or examine the cards. The following day the Re-
spondent's attorney stated to the Union's representatives that the only
way to prove the majority was by an election and that if the Union
was certified the Respondent would bargain with it. Thereupon, the
Union filed unfair labor practice charges. In these circumstances, the
question confronting the Board is: Did the Respondent on and after
January 7 refuse to accept the authorization cards as proof of majority
and insist upon an election because it had a good-faith doubt of the
Union's majority or did it do so out of a "desire to gain time to take
action to defeat the union's majority. . .."? 6
Ordinarily, when faced with a union's demand for recognition as
bargaining representative of employees in an appropriate unit on the
basis of signed authorization cards, an employer may lawfully reject
the union's demand and insist that it prove its majority in a secret
election conducted under Board auspices.' However, the Board's
election machinery exists for the purpose of ascertaining the desires of
employees as to a bargaining representative. It is not intended to be
a shield behind which an employer may engage in a campaign of un-
fair labor practices to destroy the union's majority. For that reason
when, as stated in the Joy Silk Mills case,' the refusal to recognize the
union is due "to a desire to gain time to take action to defeat the
union's majority, the refusal is no longer justifiable and constitutes a
violation of the duty to bargain set forth in Section 8 (a) (5) of the
Act."
But whether, in any given case, the employer is legitimately or
illegitimately motivated in asking for an election, whether he sin-
cerely or insincerely expresses doubt as to the union's status, depends
in the final analysis upon all the facts and circumstances of that case.
There is no simple yardstick by which a good- or bad-faith determina-
tion can be made. The Board is perforce compelled to weigh all the
evidence in the particular case, including the character and extent of
the unfair labor practices, and the sequence of events, before making
a finding of good- or bad-faith refusal to bargain.9
O Joy Silk, Mills, Inc v N. L. R B, 185 F 2d 732, 741 (C. A, D C).
7A. L Gilbert Company, 110 NLRB 2067.
8 Joy Silk Mills, Inc v. N. L It B, supra
o A. L. Gilbert Company, sup) a
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dissent's position, in substance is that as soon as it became
apparent that the Union's attempt to organize the Respondent's tech-
nical department employees was meeting with success, the Respondent
embarked upon an unlawful campaign to thwart self-organization by
unlawful means. There is no direct evidence of any such campaign.
The above set forth position of the dissent rests entirely upon an
inference drawn from the unfair labor practices themselves. A care-
ful analysis of this evidence does not, in our opinion, justify the
inference.
We have found that the Respondent is responsible for the following
unfair labor practices: (a) On December 30 and 31, 1952, Supervisor
Mullan interrogated several of his subordinates as to union matters
and also threatened them with loss of employee benefits if the Union
should become the employee representative; (b) on December 31,
1953, President Orr and General Manager Herndon asked employee
McDaniel, the leading proponent of the Union, some questions about
the latter organization; (c) on January 1, 1953, Supervisor Smith
said to McDaniel, "Mac, lay off the union there. They will get you
at all cost. They are out to get you"; and (d) on January 5 or 6, 1953,
President Orr asked employee Parkerson, "What is this I hear about
the union, Ed ?" 10
In order to evaluate the above unfair labor practices it is necessary
to understand the supervisory setup of the Respondent. At the top of
the supervisory hierarchy is President Orr. Beneath him is General
Manager Herndon. Subordinate to Herndon are Chief Studio Engi-
neer Mullan, who is in charge of about 8 studio technicians, and Chief
Transmitter Engineer Hiner, who supervises the work of about 4
technicians at the transmitter several miles from the studio. Assistant
Chief Engineer Smith is, as his title indicates, Mullan's assistant.
Mullan and Smith are technicians who supervise other technicians.
Neither is a policymaking official; neither has any responsibility for
the Respondent's labor relations.
Mullan committed serious violations of Section 8 (a) (1) in threat-
ening some of his subordinates with loss of employee benefits and in
"In his recital of events, Member Murdock iefers to the fact that Manager Herndon
refused to continue helping McDaniel sell fences because of his organizational activity
It should be pointed out that the Trial Examiner did not find this to be an unfair labor
practice Nor do we
Member Murdock also refers to the talk made to employees by Herndon on January 1,
1953 These employees were assembled at McDaniel's suggestion and upon his invitation
in older that the men might discuss their guevances with Herndon During the free
and Bank discussion that ensued, one of the employees asked i,hat eflect Mullan's threats
would have upon the existing bonus and pension plan Heindmr replied that under the
law he could not answer that question, but that at the Houston Chronicle, the parent
company, the unionized men did not have such benefits, which was true During this
meeting Ilerndon told the men that the Respondent could not grant them a wage increase.
Under all the circumstances, we do not find Herndon's remark about bonus and pension
benefits coercive, and therefore do not adopt the Tiial Examiner's finding that it was
unlawful
KTRH BROADCASTING COMPANY 129
interrogating them about the Union. But there is absolutely no evi-
dence that he was acting at the instigation or with the knowledge or
authority of responsible officials of the Respondent. In fact, the evi-
dence is to the contrary. Herndon, a credible witness, testified without
contradiction that all supervisors, including Mullan, had been repeat-
edly instructed not to interfere With organizing activities of employees.
When, at the January 2 meeting of union representatives and Herndon,
Union Representative Favara brought up the question of Mullan's
threats, Herndon replied that Mullan had acted without authorization
and that he Would Instruct Mullin to discontinue it, a promise Which
he kept. The fact that Mullen acted without authority and contrary
to instructions cannot, under the doctrine of responcleat superior, re-
lieve the Respondent of responsibility for his conduct, but it does serve
to destroy any inference that Mullan was acting as part of a campaign
to destroy the Union's representation by unlawful means.
The rema suing unfair labor practices are not substantial and scarcely
revelatory of any campaign. As to the unfair labor practices set forth
in (b) above, these occurred in the following circumstances. On
December 31,1953, employee McDaniel, who was a leader in the Union's
organizing activities, initiated a conversation with Herndon, With
whom he was on friendly terms, about the fencing which he was selling.
After Ilerndon said he would not help with the sale of the fencing,
lie asked McDaniel if he was active in behalf of the Union and the
name of the T'nion. McDaniel answered both questions. Herndon
also asked how many men had signed authorization cards. McDaniel
refused to tell him the number, but did say a majority. Herndon then
asked McDaniel if the latter would sit down and discuss some of the
grievances of the men and why they wanted to join a union. McDaniel
assented and the two men discussed employee grievances for several
hours. During this conversation President Orr happened into the
rooin. Upon being apprised of the matter under discussion, Orr asked
how many of the men had joined the Union or had signed authorization
cards. McDaniel refused to tell him. Orr then asked the name of the
Union. McDaniel gave him the name and also said that the Union
had a majority. Orr also wanted to know what was on the authoriza-
tion cards that the men signed and McDaniel told him. Orr then left
and Herndon and McDaniel continued their discussion." At its close,
McDaniel suggested that Herndon meet with the men themselves to
discuss grievances. Herndon agreed.
It is pertinent to note that neither Herndon nor Orr made any
threats to McDaniel, that neither sought to learn the identity of other
11 McDaniel also testified : "I told them [ITeindon and Ore] as long as there wasn't any
drastic measures taken on the company's pact, nothing would be done about it We
hadn't filed a petition yet As a mattes of fact, the representative hadn't gotten down
here yet, and «e would like to discuss it and talk it over, and if something could be done,
that we would be glad to work . with you "
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Union, and that McDaniel was so little coerced by the
interrogation that he continued his discussion about grievances with
Herndon for several hours and at the close of the meeting suggested
to Herndon that the latter meet with all the employees to discuss
grievances, which was done, the invitations being extended by McDan-
iel. Moreover, although McDaniel attended the January 2 union con-
ference with Herndon, at which Union Representative Favara com-
plained about Mullan's conduct, neither Favara nor McDaniel appar-
ently thought there was enough substance to the interrogation by
Herndon and Orr to justify a complaint.
On January 1, 1953, Assistant Chief Studio Engineer Smith said
to McDaniel, "Mac, lay off the union there. They will get you at all
costs. They are out to bet yon." Despite his title, Smith worked
along with the technicians in the department. Whether he was a su-
pervisor is an exceedingly close question. Neither the Union nor the
Respondent were very certain as to his status. In any event, he was
a trusted friend of McDaniel. On December 29, 1952, McDaniel con-
fided to him that the Union had a majority and Smith answered that
he was glad because if the others received a wage increase, he would
also. In this context, it is extremely difficult to decide whether in tell-
ing McDaniel to "lay off the union" he was acting as a representative
of management threatening him with loss of position or as a friend
warning him against management. McDaniel himself testified that
he wasn't sure in which capacity Smith spoke. McDaniel's contempo-
raneous conduct indicates, however, that he did not regard Smith's
conduct as a hostile act. Thus, McDaniel made no mention of Smith's
conduct at the meeting with Herndon the following day, and on Jan-
uary 3, Smith attended a union meeting at McDaniel's invitation and
was asked by the latter to join.
On January 5 or 6, 1953, Orr came into the control room and asked
employee Parkerson the single question : "What is this I hear about
the union, Ed ?" Parkerson replied that it was a mess and that he had
become convinced since the union representative had arrived that the
Union didn't have much to offer and that he could do better bargain-
ing for himself or with other employees without a union.
Unless we were to hold, contrary to precedent, that the commission
of unfair labor practices by an employer automatically precludes the
existence of a good-faith doubt as to a union's majority status,12 we
do not believe that a finding of bad-faith refusal to bargain is justi-
""In so holding , we do not mean to imply that , under other circumstances the existence
of unfair labor practices on the part of an employer would necessarily indicate that he
was acting in bad faith in insisting on an election as proof of the representative status
of a union claiming bargaining rights . Determination of the employer's good or bad
faith depends on the particular facts in each case " The Cuffinan Lumber Company, Inc,
82 NLRB 296 , 299. See Member Murdock's dissenting opinion in the same case at page 302.
Beaver Machine & Tool Co, Inc , 97 NLRB 33 ; Chamberlain Corporation , 75 NLRB
1188; Roanoke Public Warehouse, 72 NLRB 1281.
KTRH BROADCASTING COMPANY 131
fled on the facts in this case. Neither separately nor collectively do
the unfair labor practices found evidence a plan, a campaign, or a
conspiracy to destroy the Union's majority by unlawful means. The
only serious unlawful acts were committed by a minor supervisor
without authority and contrary to instructions. General Manager
Herndon pointed this fact out to the union representative and the
committee of employees who called upon him to request recognition
several days later.
Other unfair labor practices, whether considered together or sepa-
rately, were insubstantial in character. The union representatives at
the January 2 meeting with Herndon, although aware of all of them
except the Parkerson incident which occurred later, apparently did
not think they were substantial enough to warrant a complaint to
Herndon or a refusal to agree to an election. It is also significant
that, between the dates the Union filed and withdrew its representa-
tion petition, the Respondent committed no unfair labor practices ex-
cept for Orr's single query of employee Parkerson, "What is this I
hear about the union, Ed?" 13
Upon consideration of all the evidence, including the Respondent's
conduct both before and after January 7, 1953, we are not convinced
that in insisting upon a Board-conducted election as the means by
which the Union should prove its majority status, the Respondent
was motivated by a "desire to gain time to take action to defeat the
union's majority" rather than by a good-faith doubt of the Union's
majority. Accordingly, we shall dismiss that part of the complaint
which alleges that the Respondent violated Section 8 (a) (5) of the
Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, KTRH Broad-
casting Company, Houston, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating and threatening employees concerning union
affiliation and activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
' The extent of an employer's unfair labor practices after asking for an election is not
determinative , but is certainly a relevant and important factor bearing on his motiva-
tion in refusing to recognize a union without an election . Pyne Mould4ng Corporation,
110 NLRB 1700 ; Marr Knitting, Inc., 90 NLRB 479.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all
of such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its studio and transmitter in Houston, Texas, copies of
the notice attached hereto marked "Appendix A." 14 Copies of said
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by the Respondent's repre-
sentative be posted by the Respondent immediately upon receipt there-
of, and be maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to its em-
ployees 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.
(b) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) clays from the date of this Decision and
Order, what steps have been taken to comply herewith.
MEMBER MURDOCK, concurring in part and dissenting in part:
I agree with the majority that the Respondent through its chief
engineer, Mullan, "committed serious violations of Section 8 (a) (1)
in threatening some of his subordinates with loss of employee bene-
fits and in interrogating them about the Union." I also agree that the
Respondent through its president, Orr, and general manager, Hern-
don, violated Section 8 (a) (1) of the Act by interrogating the techni-
cal department employees concerning their union activities and sym-
pathies under the rule of law set forth by the majority in the Blue
Flash Express decision.ls I further agree that the Respondent's dis-
avowal of such conduct by its authorized agents, published to the
employees only after the Union had filed charges with the Board,
was insufficient to neutralize this conduct. In view of these unan-
imous findings of the Board, I cannot agree with the conclusion of
my colleagues in the majority that the Respondent, despite such sub-
stantial and irrefutable evidence of an intention to thwart the pro-
cesses of the Act, was nevertheless acting on the basis of a good-
faith doubt of the Union's majority when it refused to bargain with
the Union on January 2, 1953. If the facts in this record are in-
sufficient to convince the majority of the Respondent's bad faith in
"In the event that this Order is enforced by a dociee of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Deciee of the United States Court of Appeals, Enfoicing an Orden
15109 NLRB 591.
KTRH BROADCASTING COMPANY 133
requesting an election I do not know what facts could persuade them
otherwise.
A full statement of these facts follows : The Union began its organi-
zational drive among employees of the Respondent's technical depart-
ment in September 1952. There were about 12 employees in this
unit-8 located at the studio and 4 at the transmitter station. By
December 30, 1952, eight employees had filed cards designating the
Union as their bargaining representative. Lester A. Mullan was the
Respondent's chief engineer in immediate charge of the eight employ-
ees at the studio. On December 30 Mullan called two technicians,
Parker and Sevier, individually to his office. Mullan asked Parker if
he favored the Union, how many of the engineers had signed cards,
and whether the cards had already been turned over to the Board.
Mullan then told Parker that if the Union came in the men would not
get the pensions, Christmas bonus, or sick leave which they were ac-
customed to receive. As to Sevier, Mullan asked him whether he had
signed with the Union and told him that he had better take into con-
sideration his bonus and his pension rights and whether these would
still be fortheominQ in the event the station went union. On the
same day Mullan asked Parkerson, another employee, whether he had
signed a union card and why he thought they needed a union. On
the following day Mullan called the most active union adherent,
McDaniel, to his office and questioned him with regard to his union
activities. Upon McDaniel's display of reluctance to answer these
questions, Mullan threatened McDaniel with the loss of bonus and
pension rights, adding, in this instance, a threat that McDaniel would
lose free time off which had been granted him to attend his wife who
was expecting a baby.
These attempts on the part of the Respondent to coerce its employees
into abandoning the Union were not, as the majority concedes, the
total of the Respondent's conduct restraining and interfering with
its employees in the rights guaranteed them by Section 7 of the Act.
Thus, on January 1, Julius L. Smith, Mullan's assistant, told McDaniel
that he had better "lay off" the union activity and "that they will get
you at all cost." Without reversing the Trial Examiner's finding
that Smith was a supervisor, the majority states that his supervisory
status is "an exceedingly close question" and that McDaniel did not
regard this statement as "a hostile act." As Mullan's assistant, with
the title of assistant chief engineer, Smith received from $10 to $33
more per week than the other studio engineers; he relieved Mullan
when the latter was absent; he detailed men to perform maintenance
and other work; he assigned men from one job to another; he gold
them what to do and sometimes how to do it; and he worked regular
hours rather than a rotating shift as did the other studio engineers.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was Smith who telephoned Parker to tell him that Mullan wanted to
see him on December 30, the day Parker was interrogated by Mullan.
It was also Smith who told McDaniel that Mullan wanted to see him
on December 31, the day McDaniel was interrogated. This evidence
and other criteria set forth and fully discussed in the Intermediate
Report led the Trial Examiner to conclude that Smith was "in fact
a supervisor within the meaning of the Act." I am unable to minimize,
as does the majority, the position Smith held as a supervisor and
spokesman for the Respondent. McDaniel was the leading adherent
of the Union and he was told by the person who assisted in the daily
supervision of the studio that the Respondent would "get" him if he
persisted in his union activities. Whether the threat was delivered
in belligerent tones or as a friendly warning, its coercive effect, as the
Trial Examiner found, remained the same. It seems to me that
Mullan's conduct set forth above, Smith's threat, and the conduct of
Orr and Herndon, which I shall now discuss, were all directed to the
accomplishment of one objective, the dissipation of the Union's
majority.
McDaniel, the record shows, was subjected not only to the threats
and interrogation of Mullan and Smith; both Herndon, the studio
manager, and Orr, the president of the Respondent, similarly at-
temped to dissuade him from continuing his organizational activities.
Before the advent of the Union, McDaniel had received some assist-
ance from Herndon in connection with an outside job involving the
sale of fencing. After completing his work on December 31, McDaniel
asked Herndon whether the latter had made any progress on Mc-
Daniel's behalf in securing an order for fencing from another broad-
casting company. Herndon replied that McDaniel should not expect
any help in view of his organizational activities. The Trial Examiner
found that this statement was not a violation of Section 8 (a) (1).
Whether or not the Trial Examiner should be affirmed as to this issue,
certainly Herndon's statement is competent evidence as to Herndon's
and therefore the Respondent's good or bad faith in refusing to
bargain with the Union 2 days later on January 2, 1953. Was the
Respondent, as the majority finds, motivated only by a sincere doubt
as to the Union's bargaining status? Does not Herndon's statement
to McDaniel indicate, at least, that the Respondent was interested in
dissuading McDaniel from continuing his activities on behalf of the
Union? And should this evidence be completely disregarded in de-
termining whether the Respondent was "legitimately or illegitimately
motivated" in demanding an election? I cannot agree that a yard-
stick which minimizes all of the Respondent's unfair labor practices
and shears away all other evidence is the proper method to determine
good or bad faith in cases of this kind.
KTRH BROADCASTING COMPANY 135
The record shows that Herndon immediately after the above inci-
dent interrogated McDaniel for 4 hours behind locked doors, question-
ing hint about his union activities, if he were active in the Union, what
the name of the Union was, and how many men had signed union cards.
During this discussion Orr, the Respondent's president, entered the
room by means of a pass key. Informed that union activities were
under discussion, Orr himself questioned McDaniel as to the number
of union members, the number of technicians who had joined or signed
authorization cards, the name of the Union, and what statements were
contained in the authorization cards. Then, in the presence of
McDaniel, Orr suggested to Herndon that the only way to change the
men's minds as to the necessity for a union was to write the CIO and
tell them that they wanted to get out of the Union. Indeed, the Re-
spondent offered in evidence a letter dated February 13, 1953, signed
by 6 employees, 3 of whom had signed cards for the Union, and which
declared that they did not desire representation by the Union and that
those who had signed cards were revoking the same. Does this evidence
support the majority's finding that the Respondent on January 2,
1953, sincerely expressed doubt as to the Union's majority and was not
at all motivated by a desire to destroy that majority, a majority which
was, in fact, destroyed by the very method suggested to Herndon by
the Respondent's president, Orr, in the presence of McDaniel on
December 31?
On January 1, 1953, Herndon met with the employees of the tech-
nical department in Orr's office. At that meeting, as the Trial Ex-
aminer found, Herndon asked what some of the grievances were, and
suggested the possibility of "sav[ing them] . . . from having to pay
dues," and of keeping the Union out. When mention was made of the
fact that employees had been threatened with the loss of benefits if
the Union came in, Herndon did not take the opportunity to repudiate
on behalf of the Respondent such unlawful conduct. It was not until
January 19, 1953, more than 2 weeks later and fully a week after the
Union had actually filed charges in this very case, that the Respondent
belatedly saw fit to publish a "disavowal" of unlawful conduct by its
supervisors. On this occasion, when Mullan's threats were uppermost
in the minds of the employees, Herndon not only deliberately refrained
from quieting their fears, but added by implication his threats to those
expressed directly by Mullan. While stating that it was against the
law to make threats or promises, he pointed out at the same time that
the union employees of the Houston Chronicle, the newspaper corpora-
tion which wholly owns the Respondent, did not enjoy Christmas
bonus or pension benefits received by the Respondent's technical staff,
benefits that Chief Engineer Mullan had specifically threatened would
379288-56-vol 113-10
136 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
be taken away from the employees if they persisted in their union
adherence. The Trial Examiner found that Herndonn's statement con-
veyed a half-truth and an implied threat that the employees would
sniffer a loss by having a union. Such a statement, the Trial Examiner
held, constituted interference, restraint, and coercion of employees in
the exercise of rights under the Act. The majority, however, finds that
Herndon's implied threat was made during a "free and frank discus-
sion" and that his reference to the loss of benefits by union employees
at the Houston Chronicle was "true." As the Trial Examiner found,
Herndon spoke not the whole truth, but a half-truth. The record
shows that employees at the Houston Chronicle chose higher weekly
compensation in lieu of these other employee benefits. I do not believe
that a statement as misleading as Herndon's to these employees,
already coerced by Mullan's threats, can be elevated to the dignity of
a truth. I would, contrary to the majority, affirm the Trial Examiner's
hiding that this statement of Herndon's was an additional violation of
Section 8 (a) (1) of the Act. In any event, Ierndon's conduct, in my
,opinion, sufficiently disproves the majority's contention that Mullan
was "acting without authority and contrary to instructions."
In assessing the "character and extent of the unfair labor practices,
and the sequence of events ," in this case it is important , it seems to me,
to bear in mind that the Respondent's extensive acts of interrogation
and threats of reprisal occurred mainly between December 30,1952, and
January 1, 1953, at the very peak of the Union's organizational drive;
that fully one-half of the employees in the unit were directly threat-
ened and interrogated, particularly the most active union adherent, and
virtually all of the employees in the unit were indirectly threatened and
interrogated by the Respondent 's highest officials during this short
period; that 3 of the 8 employees who had selected the Union as their
representative subsequently repudiated their designations as a result
of such unlawful conduct. On January 2, 1953, when the Union in-
formed the Respondent of its majority status and requested bargain-
ing, Herndon was told specifically by the Union that Chief Engineer
Mullan had been threatening and coercing its employees. As indicated
above, not until January 19, 1953, more than 2 weeks later and after
the Union had filed charges with the Board, did the Respondent pub-
lish a disavowal notice. In this manner Herndon, who had himself en-
gaged in the coercive conduct set forth above, carried out the "promise
[of January 2] which he kept" to the Union to instruct Mullan to stop
engaging in similar conduct. The fact of the matter is that by the
time the Respondent belatedly published its disavowal notice the
Union had already lost its majority because of the Respondent's un-
fair labor practices . At that point, certainly, a free election was not
possible and it was not possible because of the Respondent 's conduct.
KTRH BROADCASTING COMPANY 137
The majority 's decision that the Respondent was motivated in ask-
ing for an election only by a good-faith doubt of the Union 's majority
status on January 2 rests upon two grounds.
First, while conceding that Chief Engineer Mullan's unfair labor
practices were "serious ," the majority reaches the astonishing con-
clusion that this chief engineer , in direct charge of b of the 12 em-
ployees in the unit , was a "minor supervisor "; that he acted "without
authority and contrary to instructions " ; and that his unfair labor prac-
tices are therefore not relevant in assessing the Respondent 's motiva-
tion in refusing to bargain with the Union . It seems to me too ob-
vious to require argument that the sole individual responsible to the
Respondent for the supervision of the technical employees at the
studio, who comprised two-thirds of the appropriate unit, was so far
as these employees were concerned their immediate boss, whose favor
was to be courted and displeasure feared. The record is perfectly clear
that they did, indeed, fear his threats and that these fears were com-
municated to Herndon . The latter , however, took no effective action
to allay these fears , adding, rather , his own threats to Mullan's to in-
crease the employees ' anxiety about their Christmas bonus and pension
benefits. There is, moreover , uncontraclicted testimony , as the Trial
Examiner found , that when McDaniel told Herndon what Mullan
had said on the morning of December 31, Herndon "wouldn't confirm
it or deny it." If Mullan was, as the majority finds , proceeding con-
trary to instructions , certainly the employees knew nothing about
these instructions until the Respondent had reason to believe the
Union's majority had already been destroyed . What they learned in
conversations with Herndon and Orr should have, it seems to me,
alerted them to the contrary . I do not know what principle of law the
majority relies upon in finding the Respondent responsible for its chief
engineer 's unfair labor practices while at the same time relieved of the
burden of such unfair labor practices when all the evidence in the
record is assessed to determine Respondent 's actual, as distinguished
from its declared , motivation . I do not believe the doctrine of re-
spo'uleat superior is subject to this novel dichotomy . Mullan's con-
duct unquestionably played its part in dissipating the Union's ma-
jority. To find, as the majority does, that such conduct is irrelevant
in determining whether the Respondent only a few days later acted
in good faith is to permit the Respondent to enjoy the fruits of its own
unfair labor practices , perpetrated by its chief engineer.
Second, the majority finds that all other unfair labor practices were
"insubstantial in character ." I have set forth above the nature and
extent of these unfair labor practices , including Smith's friendly
threat that the respondent would "get" McDaniel , the leading union
adherent, "at all cost, " Herndon 's exhaustive interrogation of this
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same employee, Herndon's implied threats to all the employees in the
technical depart ment, Orr's interrogation, and other evidence of Re-
spondent's motive in refusing to bargain with the Union on January
2. The substantiality of these unfair labor practices does not seem to
me to be open to question. Indeed, the majority's very finding that
the Respondent's interrogation of its employees violates Section 8 (a)
(1) of the Act is necessarily an affirmance rather than a rejection of
this conclusion. In the Blue Flash Express decision 18 a majority of
this Board, including the members of the majority in this case, went
to great lengths, over the dissenting opinion of Member Peterson and
myself, to reverse the Standard-Coosa-Thatcher decision 14 and to hold
that they would not find interrogation unlawful, which "when viewed
in the context in which the interrogation occurred, falls short of in-
terference or coercion." Presumably, the majority has found in this
case that I-Ierndon's and Orr's interrogation was actually coercive,
carrying implied threats of reprisal against those employees ques-
tioned. How then can the majority, consistent with the Blue Flash
Express decision, now hold that interrogation of this type is "insub-
stantial" ?
The majority appears to place some reliance on the circumstance
that all of the Respondent's unfair labor practices, with one excep-
tion, occurred before rather than after the Union's request to bargain
on January 2, 1953. This would appear to be a reaffirmance of a legal
theory advanced for the first time in the A. L. Gilbert decision," which
I believed had been discarded by the Board in Wheeling Pipe Line,
Inc., a later decision.19 As member Peterson and I pointed out in our
dissenting opinion in Gilbert, a theory, which minimizes unfair labor
practices that occur before the employer's refusal to bargain on the
ground that other unfair labor practices did not occur after the re-
fusal, is an incorrect interpretation of the Joy Silk Mills rule and
would lead to the dismissal of unfair labor practice charges where the
employer had done as much as possible to destroy the union's major-
ity before it made its request for recognition and bargaining. All of
the evidence in a particular case under Joy Silk Mills, and indeed,
under Harr Knitting Inc.,20 cited by the majority, must be totaled to,
determine whether the whole of it is sufficient to warrant a conclusion
of bad faith.
It seems to me that the evidence I have set forth above preponder--
ates overwhelmingly in favor of the conclusion that the Respondent
did not refuse to bargain with the Union solely because it honestly
16 Supra.
17 85 NLRB 1358
's Supra.
'-Ill NLRB 244.
a Supra
KTRH BROADCASTING COMPANY 139
doubted the Union's majority. Unlike the majority, I am convinced
that the extensive unfair labor practices of this Respondent suffi-
ciently proves that the Respondent on January 2, 1953, was motivated
by a desire to delay or avoid completely its statutory duty to bargain
with the majority representative of its employees.21 I would there-
fore affirm the Trial Examiner's findings that the Respondent has vio-
lated Section 8 (a) (5) and (1) of the Act.
MEMBERS PETERSON and LEEDOM took no part in the consideration
of the above Decision and Order.
21 The majority cites my dissenting opinion in Cuff man Lumber Company, Inc., supra,
in support of their conclusion here I have carefully reviewed the facts in the Cuff man
case and find that those facts are entirely different from those in the instant case
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate or threaten employees concerning
union affiliation or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
NE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist National As-
sociation of Broadcast Engineers and Technicians, CIO (also
known as National Association of Broadcast Employees and Tech-
nicians, CIO), or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
KTRII BROADCASTING COMPANY.
Employer.
Dated------------- --- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint I herein alleges that the Respondent has violated Section 8 (a) (5)
of the National Labor Relations Act, as amended, 61 Stat. 136, by refusing to bar-
gain collectively with the Union, and Section 8 (a) (1) by said alleged refusal and
by interrogating and threatening employees concerning their union affiliation and
activities and keeping such activities under surveillance. The answer denies the al-
legations of unfair labor practices and sets up several defenses A hearing was held
before me at Houston, Texas, from June 11 to 17, 1953, inclusive
Several times at the hearing the Respondent's counsel appeared to charge the
Board with bad faith in this proceeding.2 Although asked to do so, he did not ex-
plain how that prejudiced the Respondent or relieved it of liability for any unfair
labor practices committed. In the absence of even an attempt to show the mate-
riality of the bad faith so charged, I could not evaluate it within the issues before
us The question of materiality aside, that the Board's field examiner on January 9
said a complaint would issue on the basis of the affidavits which the Union had
(and after meetings with the Respondent and its attorneys) and that the invitation
of January 14 by the Respondent's counsel to joint examination of the employees
was rejected do not show bad faith The Union's authorization cards had not been
shown to the Respondent, and the Board's representatives were under no oblieation
to join with the Respondent to seek open disclosure or expression of employees' sym-
pathies In possession of information obtained from both Employer and employees
(the field examiner had access to such information), the Board felt warranted in pro-
ceeding further, according to the field examiner as quoted by Herndon, the Re-
spondent's general manager. It is not strange and certainly no evidence of bad
faith if the Board did not want to identify all of the Union's supporters, or embar-
rass them or jeopardize their position, by participation in an open examination of
all employees, or if the field examiner refused particulars of the Board's case. Fur-
thermore, whatever the Board's reasons, it does not appear that examination of ad-
ditional employees by the Board would affect the allegations included in the com-
plaint that the Respondent refused to bargain and that certain individuals were in-
terfered with; the examination of others by the Board or its representatives could
serve only to swell the allegations as far as a prima facie case is concerned. (I do
not assume that the Respondent had in mind a virtual hearing with examination
and cross-examination at the proposed session ) Nor are the Board's machinery
and methods to be determined in the manner proposed by the Respondent.
I have here assumed, as was testified by Herndon, that the General Counsel had
decided to issue a complaint. The validity of the decision by the General Counsel
or his representatives to issue a complaint on the basis of what appeared to them
to be sufficient evidence (as distinguished from the complaint itself) is not before
me. It would be presumptuous for me to consider, in defense or criticism, the
Board's administrative processes.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT WITH REASONS THEREFOR
I THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Respondent,3 a Texas corporation, with prin-
cipal place of business in Houston, Texas, is engaged in the operation of Radio Sta-
tion KTRH, which has been licensed by the Federal Communications Commission;
that during the 12-month period ending March 1, 1953, the Respondent was wholly
owned by The Houston Chronicle Publishing Company, a Texas corporation, which
publishes, sells, and distributes The Houston Chronicle, a newspaper, that The Hous-
The record indicates that in or about the middle of May 1953 the name of the Union
was changed to National Association of Ri oadcast Employees and Technicians CIO
(Such charge Naas also embodied in the ansmici as it separate defense To support it,
the Respondent subpenaed the hoard's Subiegional Director ind a field eMiminci For
the reasons stated on the record, I granted the General Counsel's motions to revoke such
subpenas
3It appeals from the exhibits i eceived in evidence and I find that the charge was timely
served Fuitlim, the function of the charge is to give notice, and clearly the Respondent
has participated fully in the proceeding (See Harding College, 99 NLRB 957 )
KTRH BROADCASTING COMPANY 141
ton-Chionicle has an average daily circulation of approximately 183,000 of which
approximately 17,000 are shipped to points outside the State of Texas, and a Sun-
day circulation of approximately 201,000 of which approximately 2,000 are shipped
to points outside the State of Texas, that The Houston Chronicle Publishing Com-
pany, in the conduct of its business, purchases raw materials in excess of $500,000
annually that are shipped to its plant in Houston from points outside the State of
Texas, and uses news and feature services such as Associated Press, International
News Service, New York Times, Chicago Tribune, Reuters, The New York Daily
News, The Chicago Daily News, and King Features, which collect their material in
all parts of the country and transmit it to The Houston Chronicle in Houston, Texas,
that The Houston Chronicle Publishing Company receives annually more than
$250,000 in advertising fees from national advertiseis for advertisements which
originate outside the State of Texas; and that Respondent is affiliated with and uti-
lizes and purchases programs from the Columbia Broadcasting System, and sells
national and local advertising. I find that the Respondent is engaged in commerce
within the meaning of the Act. I also find that the Union is a labor organization
within the meaning of the Act
11. THE UNFAIR LABOR PRACTICES
1 was impressed with the evident truthfulness of the several witnesses. Occasional
error appeared to be the result of lapse of memory concerning details. Apparent
exceptions which may here be noted were McDaniel's claimed inability to recall a
straw vote and discussion which he had concerning it, and various references to
Smith's duties; the latter himself appeared nervous at times and reluctant to give
complete answers
A. Supervisors
Although it was at no time admitted, it is clear both from the description of their
duties and from the references made to them by Herndon that Hiner, chief trans-
mitter engineer, and Mullan, chief studio engineer, are supervisors within the meaning
of the Act.
A great deal of evidence was received in connection with the status of Assistant
Chief Engineer Smith, who became assistant chief on March 3, 1953.4 Some of it
was sufficiently contradicted or otherwise not credited 5 or, like statements of the
work done by all of the engineers, does not indicate whether Smith occupied super-
visory status. In this situation the extent of lank and file duties is not determinative;
rather the extent, if any, to which he transcended those duties.
Various witnesses testified that in many respects Smith performed the same func-
tions as the other engineers, as did Mullan. In the event of a breakdown, the men on
duty notified and were supposed to notify Smith or Mullan at home. McDaniel
testified that "when the station took over the Junior Achievement, Mr. Smith was
asked to represent Mr. Mullan at one time as technical advisor to explain the op-
erations of the technical department, engineering department . . . ," other repre-
sentatives of the Respondent being other supervisors.
McDaniel indicated further that Smith relieved Mullan when the latter was un-
available, but he did not show that this occurred frequently or with any regularity.
According to Parker, this occurred about once a month, sometimes more often.
Sevier testified that Mullan hasn't "missed" any time since Maich 1952; he testified
that Mullan took a 2-week vacation in 1952. More specific in this connection is
Smith's testimony that in 1952 Mullan was absent on vacation, at a convention in
Chicago, and for other reasons approximately 30-35 days, during which time Smith
took over Mullan's position. (Smith has never hired or suspended anyone.) Hern-
don testified that Mullan was away for a little over 3 weeks in all during 1952.
Parker testified that Smith directs maintenance, sometimes telling the engineers
how to make repairs, and at other times leaving it to them. During his cross-
examination it was brought out that while instructions concerning dubbing or trans-
scribing programs are generally issued by the program director, Smith tells the men
when this should be done, and if more than one man is available selects the one to
do it, as he decides which of several men are to perform maintenance and other work.
Further, if there is any question about the dubbing, Smith asks the program director
4 Smith testified that although Mullan had told him lie was in line for the job, his first
notice that lie had been appointed came with the posting on the bulletin board of the
menioiandum notice to all employees
5 Such as McDaniel's testimony that Smith promised to recommend a raise for him, and
that his shift was changed by Smith before the latter became assistant chief engineer
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or whoever has the necessary information whether there are special instructions.
In general, according to Parker, Smith assigns men from one job to another; he tells
them what to do and sometimes how to do it.
According to Sevier, in Mullan's absence Smith tells him what his duties are and
has asked him to work overtime. Sevier testified on cross-examination that Smith
assigns him to do work in the maintenance shop and occasionally to do tape work
and checking tubes. Parkerson, called by the Respondent, testified that he carries
out instructions received from Smith, such as taping programs.
Smith testified that, after he discussed the possibilities with Mullan, he made up
the schedule of shifts which was posted. In this connection certainly he effectively
recommended an important condition of employment as he "just worked on the
schedule that [he] thought was workable, and then submitted it to Mr. Mullan for his
approval." He testified that he sometimes relayed Mullan's instructions to the other
men. Smith attended a union meeting on January 3, 1953, at McDaniel's invita-
tion, and later that day the latter asked him if he were going to join. (McDaniel
testified that he also invited Herndon to this meeting; Herndon denied receiving such
an invitation. It appears also that McDaniel issued the invitations to the meeting
of January 1, but did not include Smith.) 6
As with Mullan and unlike the other studio engineers, who work on monthly
rotating shifts, Smith's hours are from 9 to 5 'i except during the vacation period, when
he relieves the men on vacation seriatim. He was given a $10 increase when he
was appointed assistant chief engineer, and he receives $10-33 per week more than
the other studio engineers. Unlike Mullan, he is on an hourly rate. Herndon ex-
plained that he is a "senior senior," a strawboss, and is paid for his greater ex-
perience and ability. Herndon also noted that in addition to certain nonsupervisory
elements, an assistant chief engineer oversees maintenance of equipment and "see[s]
that" flaws are repaired or repairs them himself. The other engineers are paid under
a seniority plan, three of them receiving top rates for maximum seniority under the
Respondent's plan. In addition to seniority, the plan calls for attainment of certain
licenses. (Despite his long service, McDaniel was denied an increase because he
had not obtained the necessary license.) Admittedly, Smith's differential is not
based on seniority. It would appear that the additional factor in his case is the
element of authority, however, that authority is underrated. (There is no evidence
of greater ability, the second factor mentioned by Herndon, except where it is con-
nected with authority, as when he tells men what to do and how to do it, supra.)
Herndon testified that in connection with the Wage and Hour Law his attorney
had classified Smith as a rank and file employee, the Respondent being "desirous
of placing [its assistant engineers] at that time on a salary status," but that they
were therefore retained on an hourly basis. The attorney further advised that their
status under the instant Act was uncertain and that a Trial Examiner "might resolve
their status either for or against [the Respondent], depending on evidence." The
Respondent thought that the assistant chief engineers might be classified as super-
visors because they relieved the chief engineers when the latter were not available,
"they were practically on call all the time," they had "grown into" a title, and they
received a higher rate of pay; "the fact that they performed the mere rank and file
duties might not be conclusive."
It appears that on December 30, 1952, Smith telephoned Parker and told him
that Mullan wanted to see him; what Mullan said to Parker about the Union will
be considered, infra. The next day, Smith told McDaniel that Mullan wanted to
see him but was busy at the moment; a few moments later he told McDaniel that
Mullan was ready. (This also was preliminary to discussion concerning the Union.)
That Mullan told a supervisor to transmit the message to McDaniel is understandable.
If Smith was not a supervisor, there is no explanation for Mullan's so using him.
As noted, infra, Smith testified that he also relayed a statement which Herndon
made to him concerning McDaniel's union activities at another station; on this
occasion, Herndon had not asked him to speak to McDaniel about it. (Herndon
appears to have been at least as friendly as Smith was to McDaniel, and also as
friendly to McDaniel as he was to Smith were this to be evaluated on a personal
basis.) The very employment of Smith as it is admitted that he was here employed
°Favara testified that, while "in [his] own mind" he knew that Smith and Mullan were
supervisors, and he was amazed to see the former at the meeting, he did not exclude him
as "at times companies agree to throw a supervisoi category into the union" ; and Smith
told him at coffee afterward "that lie didn't believe he would be in the unit, but on the
other hand lie knew all the boys and there wouldn't be any objection to it.
7Those were also his normal working hours before rotation went into effect
KTRH BROADCASTING COMPANY 143
suggests such apparent investiture of authority as would lead an employee to regard
him as the representative of the Respondent. It "identified [him] with manage-
ment in such a way as to cause the employees to look to [him] for guidance
regarding the Respondent' s policies ." 8 An indication of Smith's seeming status is
found in his testimony that in March 1952 Parker asked him to change his schedule.
(Smith said that he could not change it and Parker then applied to Mullan.)
About the last week in January 1953, Smith was told by Mullan to clean up the
FM transmitter room. He thereupon threw the men's belongings into a heap on
the floor and posted a notice on the bulletin board directing them to remove what
they wanted to keep, and advising that what remained would be thrown out, he
stated that personal belongings would be restricted to study and reading material
necessary for the work, and he "encouraged" the reading of the instruction manuals
and not extraneous publications. The memorandum did not declare the source of
Smith's authority; no question appears to have been raised in that connection, but
only to the substance of the notice. Its tone was authoritative and peremptory.
(It does not appear whether, when Mullan countermanded this notice, Smith's
authority was questioned or his wisdom in exercising it.) Whether Smith exceeded
his authority in posting a memorandum or that memorandum, the action which he
took suggests the impression which he had concerning the authority granted to him.
While it is unnecessary at this point and in this proceeding (as will appear, infra,
in the consideration of the Section 8 (5) violation) to go beyond a finding that the
Respondent is responsible for any interference by Smith, the issue of his status was
fully litigated, and I find from the credible and reliable evidence that he was in fact
a supervisor within the meaning of the Act.
Less evidence was adduced concerning the status of Poage, the other assistant chief
engineer . I find that the evidence does not indicate that he was a supervisor within
the meaning of the Act although Herndon placed him "in the same category as" Smith.
(As noted, supra, Herndon referred to Smith as a straw boss, not a supervisor.)9
B. Outline of events
In or about the month of September 1952 McDaniel initiated activities looking to
the organization of the engineers. Between December 18 and 30, eight engineers
signed union authorization cards.
Favara, national representative for the Union, arrived in Houston early on January
2, and that morning, with Parker and McDaniel, called on Herndon. Favara made a
claim of majority representation in the engineering department, Herndon answered
that he would have to prove it, and Favara ieplied that he would at a Board election.
He stated that he did not have the cards with him. Favara at this time also declared
that he had heard that Mullan had interfered with union activities, and he asked that
the Respondent see to it that Mullan desist from such interference. To this Herndon
replied that he had no knowledge of such interference, that in any event it was without
the Respondent's authorization, and that he would instruct Mullan to discontinue it.
Mention was made of arrangement for a consent election, but Herndon said that he
would like to have his attorney present, and a meeting was scheduled for that after-
noon. Favara thereupon filed the eight authorization cards at the Board's office in
Houston, together with a petition for election.10
That afternoon Favara and the two engineers met with Herndon and Huggins, his
attorney. The matters mentioned that morning were again discussed. Huggins asked
what the Union's position was with respect to whether the chief and assistant chief
engineers were in the unit discussed (described infra), and Favara replied that they
were to be included if they were not supervisors. It was agreed to await Board
procedures for an election.
On January 7 Favara and Hardesty, assistant regional director for the CIO, called
on Herndon. They informed him that they had withdrawn the representation peti-
tion because the Respondent's interference, threats, and promises prevented a free
election; also that they had picked up the signed cards at the Board office, and were
prepared to show them to Herndon. Herndon refused to accept the cards or to agree
8 Harrison Steel Sheet Co , 94 NLRB 81 See also I? ,C J Underwear Co , Inc, 101
NLRB 299 Cf Stein-Way Clothing Company 103 NLRB 1314
9The record indicates that there is no paiallelism between the status and duties of
Hiner and Poage at the transmitter, and llullan and Smith in the studio Hiner lives in
the transmitter building and is available almost always Peihaps because of his distance
from the studio and top management, he appears to exercise greater authority than
Mullan
11 Case No. 39-RC-548 (not reported in printed volumes of Board Decisions and Orders).
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a payroll cross-check; he refused to see the cards , which were offered to him, but
asked for another meeting , which his attorney could attend . Favara stated that the
Union was thinking of filing unfair labor practice charges, and Herndon, without
agreeing that there had been any interference , again declared that it had not been
authorized by the Respondent.
By arrangement , Favara, Hardesty , and the two engineers met the next day
with Herndon , Huggins, and Vickery, another attorney . Favara stated that he was
prepared to show by the cards or any other method agreeable to the Respondent
that the Union represented a majority of the engineers . Huggins declared that
the only way was by an election , and that the Respondent would bargain if the
Union were certified Favara replied that interference , implemented by the Re-
spondent 's executives , prevented a free election , and that the Union was going to
file unfair labor practice charges because of such interference , since there could
be no election and the Union was being denied recognition . Huggins suggested an
exchange of letters stating the parties' relative positions , and Favara 11 sent a let-
ter 12 in which he stated-
After further consideration of the matter , I have decided that such an exchange
of letters would be meaningless , in view of the fact that you definitely stated
that your position would remain unchanged after such an exchange of letters
and that you only desire such a letter for your records . You further stated
that your refusal to grant recognition by a card-check would not be altered by
said letters and therefore our positions have been made clear.
On January 9 the Respondent filed with the Board a representation petition 13
which recited the Union 's request for recognition as bargaining representative and
the Respondent 's refusal, both on January 8. Thereafter and on March 11 the
Regional Director notified the Respondent that he was dismissing its petition for
the reason that the instant complaint had been issued and as more fully set forth
in that letter . The Respondent then appealed to the Board , and was advised on
March 30 that the Board had decided that the Regional Director was warranted
in dismissing the petition.
C. The alleged independent violations of Section 8 (a) (1)
On December 30, Mullan asked Parker whether he was in favor of the Union,
told him that the engineers would not get a pension , Christmas bonus; or sick leave
if the Union came in, and inquired further how many had signed cards and whether
the cards had been turned in to the Board . Such interrogation and threat con-
stitute interference , restraint , and coercion within the meaning of the Act.
On or about that same day Mullan asked Sevier whether he had signed a union
card , and told him that he had "better take into consideration [his] pension and
[his] bonus , whether or not [he] will get it if this station goes union . . . . Al-
though Sevier denied that the latter statements constituted threat of loss, whether
there was a threat is perhaps a conclusion which the witness is not to draw beyond
the point of the effect on him ; he was not asked whether there was interference
with his organizational activities . He did later testify that in mid-January the men
ii Various points which were labored at the hearing need not be here considered, even
at the risk of appeasing to have overlooked them To cite an example, Favara testified
on cross-examination that lie and Hardesty composed this letter Hardesty in his cross-
examination testified that he did not recall participating in the letter, and that he knew
of it and talked with Favara about it, but did not help write it If discrepancy be found
here, Favara's testmnony concerning the various material items concerning which he testi-
fied has not been challenged by the Respondent
17 The Respondent's counsel at no time indicated chat lie attached significance to Favara's
statement on cross-examination, that the Union had decided not to make a demand to
bargain because the Respondent had clearly said that it would not recognize the Union
(In the face of this testunonv, I do not credit McDamel's statement that Favara said lie
was icady to sit down and negotiate ) NVithout undeitaking to pass upon issues which
have not been raised, I note here only that, if it be found that there was interference and
an unlawful refusal of iecognition, demand to bargain may be unnecessary in the light
of an anticipatory refusal (Favara testified that on January 8 Huggins and Herndon
said that the Respondent would bargain if the Union were certified ) See also infra, at
footnote 30
'3Case No 39-RAT-19 (not reported in printed volumes of Board Decisions and Orders).
KTRH BROADCASTING COMPANY 145
were afraid to take a straw ballot lest they lose the bonus.14 But in any event,
the law is settled that the issue is whether given acts tend to interfere regardless
of the fact of interference in the situation.15 Fuither interference is found in
Mullan's "follow up" inquiry of Sevier on January 3 as to how the Union was
coming along.
The instance last cited, like seveial others to be noted, is a violation of the Act
whether it be considered as part of the larger pattern of interference or as an
unfair labor practice per se. Interrogation and inquiry concerning union activity
are prohibited by the Act 16 Nor, under the express terms of the Act, does it
matter whether questioning constitutes or contains a threat. Whether or not
there be a threat is material under the statute only in connection with the expression
of views, argument, or opinion. Such expression is permitted by the Act although
it may interfere with lawful concerted activities. But the Act does not similarly
authorize inquiries. Questions are not expressions of opinion; on the contrary,
they look to expression and commitments by employees. To listen to an expres-
sion of opinion is one thing; to be called upon to reply quite another. Where
organizational activity is followed by inquiries, there will be a tendency to avoid
such activity and thus be spared the inquiries and the necessity for reply.
The interference was repeated when, also on or about December 30, Mullan asked
Parkerson whether he had signed a union card and why he thought they need a union.
Mullan continued his campaign on December 31, telling Parker and Byrd that if
the Union came in they would not get the pension, Christmas bonus, or sick
leave; and asking McDaniel, after reference to the latter's activities at another
station with which we are not here concerned, whether he knew anything about
union organization at the Respondent's station, whether he had anything to do with
it. and how many had joined, and telling him that if a union got in the pension and
bonus would be lost and all privileges such as McDaniel's in getting off early would
be terminated. as would the opportunities of working on their own sets and pur-
chasing material at wholesale rates.
If Mullan's interference was "on his own" and without the Respondent's sanction,
as Favara testified that Herndon declared, and if the latter cautioned Mullan before
January 2 and "repeatedly" thereafter, the Respondent's liability for such inter-
ference was not lessened. (To the extent that the effect of such instructions is ma-
terial, I note Herndon's testimony that "through the years" supervisors had been in-
structed and, referring to Mullan, "clear back to '49 . .. he was very definitely
instructed." Patently, such instructions were insufficient either per se or because
they did not adequately take into account Mullan's persistence ) One may note
in this connection Herndon's testimony that "Mr. Mullan felt that at least half of
his men in town would not vote for the union, and in his opinion had not signed
cards." The circumstances of this conversation between Herndon and Mullan are
not set forth, but it is a fair presumption that the discussion and Mullan's expressed
opinion were based on his inquiries or, conversely, prompted such inquiries. The
Respondent's connection with the questioning of its employees is clear aside from
the accepted principles of agency Finally, there is the additional relevant and un-
contradicted testimony that, when McDaniel told Herndon what Mullan had said on
the morning of December 31, Herndon "wouldn't confirm it or deny it."
The latter conversation was initiated by McDaniel, who had been promised assist-
ance by Herndon in selling a fence to another station and who now inquired further
about that matter; in reply, Herndon appears to have indicated that he would not
help because of McDaniel's organizational activities. Unlike the denial of benefits
provided by the Respondent, this reflected a personal relationship over which it
had no control, it certainly could not direct Herndon to help McDaniel sell the fence,
nor could it here be ordered to do so. I find no violation in this incident.
The conversation continued with Herndon declaring his understanding that some
of the men had signed with the Union His inquiries concerning how many had
signed and why constituted further interference. I credit Herndon's testimony that
McDaniel suggested that Herndon meet with the men, and that McDaniel issued
14 The effect of the Respondent's interference may also be considered as we note Parker's
and Herndon's testimony that Thornton, who in November had suggested getting in touch
with the Union, declared on January 1 that although he had signed a card he would vote
against the Union
15 Goodall Company, 80 NLRB 814 That an individual's constancy supports bin under
affliction renders that affliction no less illegal ; else we should have the alternatives of
restraint so effective as to limit discovery, or a reaction so bold as to bar a finding of
interference
16 The Jackson Press, Inc, 96 NLRB 897, SJi acuse Coloi Press, Inc, 103 NLRB 377
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the invitations to attend the meeting, which was held on January 1; I do not credit
McDaniel's testimony that Herndon asked him to "get the boys together . . . to
keep them from going to such drastic extremes as a union." McDaniel appeared
here to be exaggerating Herndon's reliance upon him.
Orr, the Respondent's president, came in at this point, was informed of the dis-
cussion, and asked McDaniel how many men had signed cards, in which union, and
what the cards provided. Here was continued interference.17
On the morning of January 1, Herndon met with 10 of the engineers. (One man
was out of town, and the 2 chief and 2 assistant chief engineers likewise did not
attend.) Herndon asked what some of the grievances were, and suggested the possi-
bility of "sav[ing them] . . . from having to pay dues," and of keeping the Union
out. While under different circumstances an employee's invitation might justify
discussion of grievances during an organizational campaign, Herndon's remarks
were part of the Respondent's plan to avoid the bargaining process; his remarks were
not limited to what was covered by the invitation, as he connected possible adjust-
ment of grievances with exclusion of the Union.
When mention was made that men had been threatened with loss of benefits if
the Union came in, and during discussion of their grievances, Herndon declared that
it is against the law to threaten or promise but that the union members at the
Chronicle (referred to supra in the description of the Respondent's business) have
neither bonus nor pension plan. This is true, but Herndon's implication was not.
Given an alternative to such benefits, the employees at the Chronicle "decided to take
them in other forms," additional weekly compensation among others. The question
here was whether the men would suffer loss by having a union: the implication was
that they would. Herndon told the truth, but not the whole truth when, having under-
taken to reply, he was under obligation to do so,18 as well as state to employees that
they can be discharged if they join a union, having in mind but omitting to state the
qualification "for cause." The words used have a clear import, effect, and tendency,
and I find that Herndon's statement constituted interference, restraint, and coercion
in the exercise of rights under the Act.19
The Respondent's counsel argued that a union's promise justifies an employer's
threat or warning of loss. The threat is as coercive as is a union's threat in obtaining
a majority. The difference between a union's promise 20 of benefit and an employer's
warning of loss is apparent on realization that a statement purporting to indicate only
the natural result of give and take in collective bargaining may be coercive when
made by one "who has the power to change prophecies into realities." 21
Before he left the meeting with the employees, Herndon indicated the possibility
of rotating shifts and arranging different vacation schedules, and he asked them to
consider thoroughly before they organized. Any violative promises in these remarks
have not been alleged, and I find no unfair labor practice in this connection.
McDaniel testified that earlier on the morning of January 1 Smith "came running
back" into the control room and said, "Mac, lay off the union there They will get
you at all cost. They are out to get you." Smith, explaining that he did not clearly
17 Aside from the interference found in the conversation between Herndon, Orr, and
McDaniel, the General Counsel claims further violation in the fact that the door to Hern-
don's office was locked at the time and no incoming calls permitted. McDaniel charac-
terized those conditions as "offensive" and "like being behind an iron curtain " This was
not included in the complaint with its allegations of interrogation, threats, and surveil-
lance. Further, it does not appear that McDaniel was in this manner physically or other-
wise iestiained or that the seclusion was imposed against him. It would seem not that
he was kept in, but that others were kept out; a condition which he might have over-
come or certainly tested by going out or at least trying to do so. Such restraint as was
exercised on him by the discussion has been found. I find that the Respondent did not
violate the Act by the seclusion during this meeting
is Cf Lutecak v United States, 344 U S 604, where in a wholly different situation the
Supreme Court affirmed criminal convictions of conspiracy to defraud on the basis of
statements which were true on their face but carried "implications of a state of facts
which were not in fact true."
1° The implication of causal relationship between union membership and loss of benefits
was reflected in Sevier's testimony that Herndon said that the union men at the Chronicle
lack the benefits which the KTRH men enjoy "being as [the latter] are nonunion" ; and
in Parkerson's testimony "that there had been cases in the Chronicle where men weren't
receiving their Christmas bonus as a result of or because they were union."
20 Such promises constitute "unobjectionable preelection propaganda " Shirlington
Supermarket, Inc., et at, 106 NLRB 666
21 N. L It B. v W. C. Nabors Company, 196 F. 2d 272 (C. A. 5)
KTRH BROADCASTING COMPANY 147
recall this discussion, testified that he told McDaniel "maybe he was getting a little
bit too active in the union activities "; and that some men at another station were
"complaining because of him calling over there so often and worrying them about
it,22 and [he] suggested [McDaniel] not call over there." He testified that he was
friendly with McDaniel and that his purpose in saying this to McDaniel was to keep
the latter "on friendly terms with the other boys in the profession around town."
McDaniel himself was uncertain whether Smith was threatening him or, as a friend
relaying a threat. Considering his admittedly uncertain recollection of this incident,
I find that Smith, who did not deny McDaniel's version, said the Respondent was out
to get McDaniel, and that the element of threat was here involved. Even if Smith
was trying to help McDaniel, transmission of a threat made by the Respondent, by
one for whose activity the latter is responsible constitutes an unfair labor practice
by the Respondent.
Two days earlier McDaniel had told Smith that a majority of the men had joined
the Union. Smith asked which union it was and how many men had joined, and
added that he was glad since if the others received an increase, he would also Where,
as here, an employee broaches the subject of union membership as apparently nothing
more than a topic of conversation, it cannot be reasonably urged that a supervisor
must maintain an arms-length attitude and that he violates the Act by an inquiry
limited as this was and followed by an expression of his own satisfaction with the
situation. I find no interference here.
As for Smith's presence and participation at the union meeting early in the morning
of January 3 and the discussion which followed, he attended on McDaniel's invitation,
as noted, supra, and was guilty of no unlawful surveillance.
Parkerson testified that about January 5 or 6 Orr came into the control room and
asked, "What is this I hear about the union, Ed?" Parkerson continued: "Well, I
told Mr Orr that it was really a mess and that as far as I was concerned, I had been
convinced 23 in the last few days, since the union man had been here, that they didn't
have, didn't seem to have much to offer us; and that actually, I felt like I could do
better bargaining for myself, or as a group with the fellows, without a union." I
find that Orr was guilty of unlawful interference.
As its first separate defense the Respondent alleged in its answer that on January
19, it delivered to each employee a disavowal of "any and all coercive or unlawful
statements or actions by any of its supervisory employees or other officers," which
disavowal "was sufficient to clear the atmosphere for a fair election and to purge
Respondent of any responsibility for isolated and casual remarks, if any, of question-
able meaning that may have been uttered by any of its minor supervisory employees."
The purported disavowal was signed by Orr.
Disavowal by one who has previously himself interfered, could hardly exculpate;
rather, the interference may minimize the disavowal. At any rate, the disavowal on
January 19 could not undo the earlier refusal to bargain, found infra, and the events
which culminated in refusal. "Behold, how great a matter a little fire kindleth!"
Thus not only did the disavowal not "clear the atmosphere " with respect to state-
ments made , which were neither isolated nor casual , nor of questionable meaning
(the distinction suggested by "minor" supervisory employees is interesting), but it did
not make amends for the refusal to bargain. As the supervisors were no independent
"volunteers" for whom the Respondent could disclaim responsibility, so is the letter
of January 19 no Yalu River behind which sanctuary is to be found. (Were we to
consider the nature and form of the disavowal, it would be pertinent to note that no
action was shown to have been taken against the supervisors who interfered.)
On January 14 the Respondent's counsel by letter invited Board representatives
to attend a meeting at which he would interrogate employees "within the bounds
of proper inquiry" concerning the charge filed, the employees to be tendered to the
Board for interrogation. (The invitation was not accepted.) Such invitation does
not exculpate the Respondent from violations previously committed and as found
herein. As for inquiries made by the Respondent on January 14, the General Counsel
concedes that the Respondent may properly prepare to meet charges against it; he
has not made any showing that the Respondent on that occasion went beyond lawful
preparation.
D. The alleged violation of Section 8 (a) (5)
1. The appropriate unit
The complaint alleges an appropriate unit consisting of all engineers and/or tech-
nicians, except supervisors, employed at the Respondent's studio and transmitter.
22 Ilcindon had so infoinied Smith
23 Whether as a result of the interference, he did not state.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answer admits that allegation, but alleges that the Respondent had not been
notified and was in honest doubt as to the persons alleged to be included in such unit.
No question was raised at any time concerning the inclusion of all of the Respon-
dent's engineers-technicians 24 Exclusion of supervisors is usual and follows the
Act, it remained only to determine which individuals were in fact supervisors, a
question which does not prevent recognition of the appropriate unit. In connection
with the charge of refusal to bargain, we can also consider whether, although the
unit noted was appropriate, it was so unclear to the Respondent as to raise a good-
faith doubt. Here, not only is the clarity of the description of the unit material, but
we note that the Respondent itself urged its appropriateness in the petition which it
filed on January 9 for an election.25 Nor is there any question of understanding
being attained at some intervening moment* the argument of "uncertainty and
honest doubt" in this connection was, despite such filing, raised at and throughout
the hearing although Herndon testified that he had no doubt that the "eleven rank
and file men" were in the unit and that Hiner and Mullan were not, he did not
know whether the assistant chief engineers were in it. The unit admittedly consists
of 11 to 13 men, depending on whether either or both of the assistant chiefs are
included
Herndon testified that Favara told him on the morning of January 2 "he had signed
cards that would authorize him to represent our technical employees, and did I wish
to recognize the fact." At the second meeting, that afternoon, Favara did not "say
who he claimed to represent." Further according to Herndon, Favara on January 7
said that he represented a majority of the technical employees, but Herndon would
not agree to recognize the Union because he doubted whether or not it represented
a majority. On January 8 the Respondent stated again that it felt that the Union
did not have a majority, and the Respondent refused to check its payroll files against
the Union's cards. All of this indicates that whatever the basis for any alleged
doubt, it was not the unit.
Herndon clearly stated the Respondent's position with respect to the unit:
. . there was just no definition of the unit at all, as to who was in it." Also,
Favara "never said who the men were He never said how many of them he rep-
esented. . He just said a majority of your technical employees." Favara "never
identified the individual men by names [and Herndon doesn't] know until yet who
he claimed signed cards " The question here was not the appropriateness of the
unit, but whether given individuals were included in such unit. The unit in practice
is defined, and for good reason since individuals come and go, by reference to jobs;
whether a given individual performs a certain job is then determined, sometimes by
agreement, sometimes after an election. The Respondent's uncertainty whether
Smith and Poage were in the unit did not lessen the appropriateness of the unit; 26
its interference prevented orderly procedure in the representation case.
Not only did the parties agree on the unit hereinafter described, but there was in
fact no need or likelihood that it "would be [further] determined by the Board
anyhow prior to the election. . The parties were in agreement and had gone
as far as the Board would go prior to election: there was no real issue concerning
an appropriate unit. I find that the following classification of employees at the
Respondent's studio and transmitter constitutes an appropriate unit (as declared
by the Union, Respondent, and General Counsel) for the purposes of collective
bargaining:
All engineers-technicians, exclusive of supervisors as defined in the Act.
2. The majority and the refusal to bargain
The Union, with 8 cards in a unit of 12,27 did in fact represent a majority on
December 30.28 (As Sevier testified, most of the men wanted the Union and knew
that they had to sign cards first to get an election.) A representation decision once
21 it appears to be better form and clearer to the unuutiated to use the term "engileer-
technicinns" rather than "engineers and/or technicians." "Engineer ' and "technician"
are interchangeable teens
The unit is theiem described as "All engineers and/or technicians employed at the
studio and 1 ransmitter " The number of employees therein declared to be in the unit is 11.
ao According to the Respondent's counsel, if "Poage is a rank and file employee, the
union's description of the unit . . is per se erroneous"
ar Eleven to thirteen in the Respondent's contemplation
21 The Respondent s early knowledge of union activities is attested to by its interference
noted sicpra. The General Counsel and the Respondent moved to conform the pleadings
to the pioof as to dates
KTRH BROADCASTING COMPANY 149
made is conclusive of majority or lack of it for a reasonable period, and certainly
until circumstances indicate the contrary without unlawful interference. Although
existence of majority may be material in the absence of a formal decision, an
employer, otherwise not interfering and with a good-faith doubt of majority, may
insist on an election. Here there was no formal decision of majority. During
the period when any claim of majority could be questioned and an election sought,
employees could repudiate a prior stand in favor of or against the Union. In fact,
a Board-conducted election is the means for secret and uncoerced decision regardless
of prior promise or other commitment. But the Respondent by its acts prevented
a fair election and uncoerced decision, and the majority noted is both material and
determinative
The Union requested recognition on January 2 and again on January 7 and 8.
The campaign of interference waged between December 30 and January 1, and on
January 3 and January 5 or 6 indicates that the Respondent's expressed doubt was
not in good faith and therefore constitutes an unlawful refusal to bargain 29 Under
such circumstances the Respondent could not require an election and certification
as a condition precedent to bargaining with the Union.30
Any doubt could have been relieved if without interference the Respondent had
permitted operation of the regular election procedure In this connection I note
the testimony that Orr, when he was informed by McDaniel that the Union repre-
sented a majority, remarked on the advisability of a repudiation letter.
The basis for doubt, as testified to by Herndon, was the statements by 2 employees
that they had changed their mind and would vote against the Union, by 2 others
that they had not signed cards, and by Mullan and Hiner that they were certain or
believed that the men would not support the Union; and also the fact that Favara had
not originally shown the cards and later withdrew his petition.31
If the evidence indicates majority prior to or at the time of the interference, such
majority is presumed to have continued. To hold otherwise would be to reward
the Respondent for its interference,32 and effectively to block organizational activi-
ties and election procedures. I find that since December 30, 1953, the Union has
been the representative for the purposes of collective bargaining of a majority of
the employees in the unit. I further find that the Respondent's demand on January
2 that the Union prove its majority (as well as the later insistence on a Board-con-
ducted election) was not made in good faith, and that the Respondent thereby un-
lawfully refused to bargain.
3. The alleged subsequent repudiation
The Respondent offered in evidence a letter dated February 13, 1953, copy of
which was received by the Board and the Union, which was signed by 6 employees,
3 of whom had signed cards for the Union, and which declared that they did not de-
sire representation by the Union and that those who had signed cards were revoking
the same. Citing Franks Bros. Company v. N. L. R. B,33 I rejected the exhibit
on the ground that a loss of majority which occurs after an unfair labor practice
does not relieve the employer from the necessity to bargain. Any such loss is
ascribable to the Respondent's unfair labor practices. That the loss of majority is
"certified to" by a repudiation letter does not lessen the violation already committed
or relieved from the obligation incurred and in fact imposed as of the moment it
was so incurred.34
Nor does the cards' provision (specifically cited) for revocation or Favara's state-
ment that he would go elsewhere if a majority did not want the Union affect the situ-
ation. Revocation of cards and majority choice must be free from interference.
29Inter-Cstij Adccrtuung Company of Cieensboro, N. C, Inc , 89 NLRB 1103 ; Cummer-
Graham Conipamy , 90 NLRB 722
30 Pollock, Mall Co , 101 NLRB 227 See footnote 12, supra
3MAs noted .supra , these was no bona fide doubt based on uncertainty concerning the
appropriate unit
33 For example, it was brought out by the Respondent that Byrd got "pretty mad about
the union filing unfair jabot practice charges " See West Texas Utilities Company, lee,
85 NLRB 1396 See also footnote 37, infra.
39321 U S 702 See also Cittlin Charlotte Bag Compan y, 95 NLRB 1159 , Poultry
Enterprises , Incorpoi ated , 102 NLRB 211
31Whethei , as Favai a stated , the mtei ference had nnpaiied the Union's original advan-
tage, or as Ilaidesty described or interpreted his statement Favara said that the inter
ference had destroyed the Union ' s majority, is thus of no significance in this connection
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent , however, citing various cases , urges that the repudiation is de-
terminative despite the earlier unfair labor practices . The cases so cited are gen-
erally distinguishable . In N. L . R. B. v. Aldora Mills 35 the union 's majority was
found almost 6 years before the court 's opinion issued . The respondent was there
declared to have "acted in the utmost good faith ." The instant Respondent urges that
its good faith in refusing to bargain is immaterial as contributing to the alleged loss
of majority and repudiation.
The facts in N. L . R. B. v. Cherokee Hosiery Mills 36 are different from those here.
There not only did the employer acquiesce in the designation of the union and bargain
with it on its demand , but the court held that the acts which led to the loss of major-
ity were not attributable to the employer. In the instant case the refusal to bargain,
since as found it was not in good faith , was wrongful when made; and it follows that
under such circumstances "a requirement that union membership be kept intact
[pending a hearing] . would result in permitting employers to profit from their
own wrongful refusal to bargain." 37
A finding that the Respondent interfered with, restrained , and coerced its employees
and unlawfully refused to bargain warrants a finding, and I do so find , that such inter-
ference, restraint , coercion , and refusal were made manifest in and tended to cause
the repudiation letter, and that such letter is attributable to such violations . To hold
otherwise would be to ignore the natural course of events after such violations and
to permit the Respondent to profit from its own wrongful acts.
In N. L. R. B. v. Vulcan Forging Company 38 and Mid-Continent Petroleum Cor-
poration v . N. L. R. B.,39 the issue was the employees ' right to repudiate the union
absent "any unfair labor practice or unfair conduct by the respondent ; and there was
no allegation or evidence of any unfair labor practices prior to the repudiation of the
union by the employees ." The Mid-Continent case notes the distinction clearly be-
tween the facts in those cases and the instant situation , citing Franks Bros. Nor is
N. L. R. B. v. Ray Brooks ,40 the last case cited by counsel in this connection , any more
helpful to the Respondent.
It follows then that what thereafter occurred to inspire repudiation is not material
to the unfair labor practices already established . ( Further, since the repudiation is
not charged against the Respondent as an unfair labor practice, its third defense that
the Board was responsible for such repudiation is irrelevant. The Respondent would
defend itself against a charge which has not been made .) The issue here is not em-
ployees' rights to join unions and to withdraw from them either under the terms of
the Act or by express provision of any valid agreement . Such rights are conceded.
The question is rather whether an employer may interfere with such rights. Where
interference occurs, employees ' choice is no longer free , and subsequent repudiation
is chargeable to the employer . Certainly, statements by employees when the em-
ployer has interfered and threatened are not that free expression which the Act
contemplates.
It is to be noted that no claim has been made of coercion in obtaining the Union's
majority ( One signatory was allegedly told that he had to sign to get a Board elec-
tion. ) It does not appear that the Union obtained its majority by improper means
or that the Respondent , at the time of refusal to bargain , thought it had.41
The situation here may briefly be summarized as follows:
1. The Union on December 30 represented a majority
2. Learning of the organizational activities, the Respondent interfered , thus pre-
cluding resort to an election as a means of determining the majority (Such inter-
ference would have warranted the Board 's refusal to conduct an election; and if
information concerning the interference were received after an election held, an order
setting the election aside . Certification would thus no longer be available.)
3. The interference indicates that the denial of recognition of the Union as majority
representative and the insistence on an election were not based on a bona fide doubt
of majority , but were prompted by a desire to avoid the Respondent's obligations
under the Act. From the findings in the first two items , this third follows not only
as a reasonable conclusion but also as a proper means of safeguarding organizational
activities and the proper administration of the Act.
°197F 2d265 (C A 5).
86 196 F 2d 286 (C A 5).
37 Franks Bros Couipanat v
38 188 F 2d 927 (C A 6).
39204F 2d613 (C A 6).
46 204 F 2d 899 (C A. 9).
N. L R. B., 321 U S. 702. See also sup ? a, at footnote 32.
41 See Apex Toledo Corporation, 101 NLRB 807.
KTRH BROADCASTING COMPANY 151
4. Straw balloting
A straw ballot was started by some of the union supporters on or about January
6 or 7 with the object of getting a unanimous vote for the Union if the majority
favored it . How many or which men voted does not appear , the balloting was ob-
jected to and never completed . In connection with a straw vote considered about
the end of January, it will be noted that Parkerson and Thornton , who wanted to
take a straw vote and to "vote [the Union ] out," 42 were displeased by the filing of
the unfair labor practice charge herein and were afraid that they might lose the
bonus and pension plan . Sevier testified that the men were afraid to proceed with
the later straw ballot lest they lose these benefits. Here we must recall Herndon's
threat of January 1, and the other interference found.
If subsequent loss of majority is attributable to the Respondent , who would then
be found to have unlawfully refused to bargain, it becomes unnecessary to determine
whether in fact or when the majority was lost: a fortiori the refusal would be unlaw-
ful were the majority maintained.
As for any claim of subsequent disaffection due to the Union's withdrawal of the
election petition and the filing of the charge herein, these as seen resulted from the
unfair labor practices found, and we do not concern ourselves with subsequent loss
of majority or the immediate reason therefor . For the reasons stated above , we here
determine whether the Respondent committed unfair labor practices as alleged;
on the one hand the Respondent is not charged with subsequent unfair labor prac-
tices, and on the other hand later events flowing from the violations found cannot
exculpate the Respondent from such violations . 43 (The record indicates the Respon-
dent 's attempts to go into such subsequent matters to show "why did the union lose its
majority if it ever had one.")
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in connec-
tion with the operations described in section 1, above, have a close, intimate , and sub-
stantial relation 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.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in cer-
tain unfair labor practices affecting commerce , I shall recommend that it cease and
desist therefrom and take certain affirmative action in order to effectuate the policies
of the Act.
It has been found that the Respondent refused to bargain collectively with the
Union thereby interfering with, restraining , and coercing its employees . I shall there-
fore recommend that the Respondent cease and desist therefrom and also, upon re-
quest, bargain collectively with the Union with respect to wages, hours , and other
terms and conditions of employment , and embody in a signed agreement any under-
standing reached.
It has been further found that the Respondent, by threats and interrogation , inter-
fered with, restrained , and coerced its employees in violation of Section 8 (a) (1) of
the Act. I shall therefore further recommend that the Respondent cease and desist
therefrom.
Because of the nature and extent of the unfair labor practices found herein , I shall
recommend that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. National Association of Broadcast Engineers and Technicians , CIO (also known
as National Association of Broadcast Employees and Technicians , CIO), is a labor
organization within the meaning of Section 2 ( 5) of the Act.
2. All of the Respondent 's studio and transmitter engineers -technicians , exclusive
of supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 ( b) of the Act.
12 Pai kerson testified that he voted against the Union ; Thornton did not say.
4' This to some extent repeats what has already been said concerning subsequent events.
Although the question was raised iepeatedly and in different ways at the hearing, I have
not treated it as a salute to be ieturned at each meeting
379233-56-vol . 113-11
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. National Association of Broadcast Engineers and Technicians, CIO, was, on
December 30, 1952, and at all times since has been the exclusive representative within
the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for
the purposes of collective bargaining.
4. By refusing to bargain collectively with National Association of Broadcast En-
gineers and Technicians, CIO, as the exclusive representative of the employees
in the appropriate unit, KTRH Broadcasting Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By such refusal to bargain and by interrogating and threatening its employees
concerning union affiliation and activities, thereby interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
org-Warner Corporation and International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, CIO and Local No. 979, of the International Union,
United Automobile Workers of America, AFL, Party to the
Contract. Case No. 13-CA-1685. July 13, 1955
DECISION AND ORDER
On March 22, 1955, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter the Respond-
ent, the Charging Union, hereinafter called the CIO, and the Party
to the Contract, hereinafter called the AFL, each filed exceptions to
the Intermediate Report. The Respondent and the AFL each filed a
brief and the CIO filed a statement in support of the Intermediate
Report, in which it also preserved certain exceptions to rulings of the
Trial Examiner.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and for the reasons set forth below has decided to dismiss
the complaint in its entirety.'
The Trial Examiner found that the Respondent violated Sections
8 (a) (1) and (2) of the Act by including the prospective employees
of its newly established transmission department in building B within
' The Respondent 's request for oral argument is hereby denied as the record and briefs
adequately present the issues and the positions of the parties.
113 NLRB No. 18.