Metromedia, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1970

182 N.L.R.B. 202 (N.L.R.B. 1970)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metromedia , Inc. (KLAC ) and National Association of
Broadcast Employees & Technicians , AFL-CIO-CLC.
Case 31-CA-1256
April29, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING,
BROWN, AND JENKINS
On April 22, 1969, Trial Examiner Benjamin K. Black-
burn issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain unfair
labor practices and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them. There-
after the Respondent filed exceptions and a supporting
brief.. The General Counsel filed cross-exceptions and
a supporting brief, to which Respondent filed an answer-
ing brief.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
The Trial Examiner found, and we agree, that
Respondent was motivated to discharge 10 "producers"'
on November 15, 1968, by their designation of the
Union as their collective-bargaining representative and
by Respondent's consequent desire to avoid bargaining
with the Union, thereby violating Section 8(a)(3) and
(1) of the Act.
As set forth in the Trial Examiner's Decision, the
Petitioner won a representation election in a unit of
"producers" employed by the Respondent. The election,
held on August 30, 1968, was won by the Union 9-1,
and the Union was certified on September 10. The
Trial Examiner found, and we agree, that Respondent's
decision to eliminate the producers was made, at the
earliest, on October 4, and not communicated to subordi-
nate management personnel until October 7. The Union
and the producers were first informed of the decision
in this respect at the first contract negotiating session
on October 8.
Respondent's position, accepted by the Trial Examin-
er, seems to be that the advent of the Union would
redound to Respondent's economic disadvantage in two
' Respondent operates a two-way radio format on a 24-hour basis
A person designated as a communicaster broadcasts over the air and
invites and solicits listeners to telephone the radio station and discuss
various and sundry subjects with the communicaster A producer would
screen the telephone calls and in addition act as a factotum for the
communicaster The term bears no relation to the job of a "producer"
of shows as that term is more commonly used in the entertainment
industry.
respects, first, that "when the union organized, it made
the economic factor even more important," and second,
that "a great deal of time and effort would be spent
in negotiations with them" These reasons, in the absence
of any specific, express, or independent animus or hostili-
ty toward the Union, are regarded by the Trial Examiner
as foreclosing the existence of unlawful discrimination.
They establish, in his view, a valid defense of economic
motivation for Respondent's decision to eliminate the
producers. We disagree.
Such purported justification cannot justify conduct
that is in fact related to the Union's presence in the
plant. The employees here were discharged because
the Union had organized them, and the unlawfulness
of that discharge under the Act is in no way minimized
or affected by the fact that Respondent may have
believed, even accurately, that the Union's becoming
the employees' exclusive bargaining representative
would cost him money, or cost him the time and effort
spent in bargaining. Indeed, if these kinds of business
reasons could justify discrimination, the proscriptions
and protections of the Act would be rendered largly
nugatory.2
We also disagree with the Trial Examiner's conclusion
that the Respondent did not "violate the mechanics
and spirit of collective bargaining." As indicated above,
the employees had voted 9 to I for union representation
on August 30. On October 4, prior to the first scheduled
bargaining session of October 8, Respondent determined
to discharge its entire unit of producers. At all times
Respondent has refused to bargain about any term or
condition of their employment, except the sole question
of their termination, which was effectuated on November
15. The unlawful termination of these employees is
hardly a defense to a charge of an unlawful refusal
to bargain. Nor does the fact that Respondent bargained
about the issue of termination relieve it from the broader
obligation to bargain about all terms and conditions
of employment. Hopefully, Respondent in the future
will fulfill its lawful obligations, but such a hope is
not a substitute for an express order that it do so
now. `
Accordingly, we find that the Respondent's failure
to engage in good-faith bargaining with the Union with
respect to the producers' terms and conditions of employ-
ment, including any economic justification for the elimi-
nation of their jobs, violated Section 8(a)(5) and (1)
of the Act. We shall modify the Trial Examiner's Conclu-
sions- of Law to delete No. 7 thereof; substitute the
following as No. 6 and renumber the Trial Examiner's
No. 6 as No. 7: -
"6. By failing and refusing to bargain with the above-
named labor organization as to the continued tenure
and employment conditions for employees in the recently
certified unit, Respondent violated Section 8(a)(5) and
(1) of the Act."
Y N L R B v Jones & Laughlin Steel Corp , 301 U S 1, 33-34,
N L R B v Erie Resister Corp , 373 U S 221; N L R.B v. Great
Dane Trailers, Inc 388 U S 26
182 NLRB No. 37
METROMEDIA , INC. (KLAC) 203
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended , the National Labor Relationg
Board adopts as its Order the Recommended Order
of the Trial Examiner , and hereby orders that Respond-
ent, Metromedia, Inc. (KLAC), Los Angeles, California,
its officers , agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's Recommend-
ed Order, as herein modified:
1. Reletter paragraph I as l(a) and add the following
as 1(b) and 1(c): '
"(b) Cease and desist from refusing to bargain collec-
tively with the above-named labor organization as the
exclusive representative of all employees in the
appropriate unit with regard to rates of pay, wages,
hours of employment, and other conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed- agreement.
"(c) Cease and desist from in any other manner inter-
fering with, restraining , or coercing its employees in
the exercise of the right to self-organization , to form,
join, or assist any labor organization , to bargain collec-
tively through representatives of their own choosing,
and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities."
2. Delete paragraph 2(a) of the Trial Examiner's Rec-
ommended Order and insert the following:
"(a) Offer to the employees named below immediate
and full reinstatement of their former jobs or , if those
jobs no longer exist , to substantially equivalent positions,
Without prejudice to any seniority or other rights_ and
privileges previously enjoyed and make each whole for
any loss of pay suffered as a result of Respondent's
discrimination ' against them in the manner set forth
above under The Remedy."
3. Add the following as paragraph 2(c) and reletter
the remaining paragraphs accordingly:
"(c) Upon request, bargain collectively with the
above -named labor organization as exclusive representa-
tive of the employees in the appropriate unit with regard
to rates of pay, wages, hours of employment , and other
conditions of employment and, if an understanding is
reached , embody such understanding in a signed agree-
ment . The appropriate unit is:
All producers employed by Metromedia, Inc.,
at KLAC , excluding office clerical employees, the
executive producer , assistant program director, pro-
gram director , guards and supervisors as defined
in the Act, and all other employees.
4. Substitute "Judgment " for "Decree" wherever it
occurs in footnote 14 of the Trial Examiner's Recom-
mended Order.
5. Substitute the attached notice for the one recom-
mended by the Trial Examiner.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you because you desig-
nate a union as your representative to bargain collec-
tively with us about your rates, of pay, wages,
hours, or other terms and conditions of your
employment.
WE WILL NOT refuse to bargain collectively with
National Association of Broadcast Employees &
Technicians , AFL-CIO-CLC, as the exclusive rep-
resentative of all the employees in the appropriate
unit described below.
WE WILL offer to reinstate the following employ-
ees to their former positions as producers or, if
those positions no longer exist , to substantially
equivalent positions , without any change in the
seniority or other privileges they enjoyed before
we discharged them and WE WILL pay them any
money they lost as a result of our discrimination
against them with interest at 6 percent:
Carmen Durand Madeline Gartzman Rosen
James Ernsberger Nancy Skiba
Robert La Pides Arleen Starr
Edith Lund Sondra Weinberg
Jack McClure Paul Werth
WE WILL notify any of these employees who
are presently serving in the Armed Forces of the
United States , of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended , after discharge from
the Armed Forces.
WE WILL , upon request , bargain collectively with
the above -named Union , as the exclusive represent-
ative of all the employees in the unit described
below with respect to rates of pay, wages, hours
of employment , and other conditions of employment
and, if an understanding is reached , embody such
understanding in a signed agreement. The
appropriate unit is:
All producers employed by Metromedia, Inc.,
at KLAC, excluding office clerical employees,
the executive producer, assistant program
director , program director , guards and supervi-
sors as defined in the Act, and all other employ-
ee s.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the exer-
cise of their right to self -organization , to form,
join, or assist any labor organization , to bargain
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid and protection, or to refrain from any and
all such activities
All our employees are free to become, remain, or
refrain from becoming members of the above named
Union or any other labor organization
METROMEDIA INC
(KLAC)
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 10th Floor, Bartlett Building , 215 West Seventh
Street, Los Angeles, California 90014, Telephone
213-688-5800
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K BLACKBURN, Trial Examiner This case
arose on November 18, 1968 ,' when National Association
of Broadcast Employees & Technicians, AFL-CIO,
CLC, referred to herein as the Union or the Charging
Party, filed an unfair labor practice charge against
Metromedia, Inc (KLAC), referred to herein as
Respondent or KLAC On the basis of that charge,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 31 (Los
Angeles, California), issued a complaint against Respond-
ent on January 10, 1969, in which he alleged that
Respondent had violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended By
its answer, duly filed on January 22, 1969, Respondent
admitted, inter alia, the following facts alleged in the
complaint
(a) Producers constitute a unit appropriate for the
purposes of collective bargaining at KLAC
(b) The Union was certified as the collective-bargain-
ing representative of the producers on September 10
following an election held on August 30 in Metromedia,
Inc (KLAC), Case 31-RC-867, in which a majority
of them selected the Union as their representative
(c) The Union has been the collective bargaining rep-
resentative of the producers at all times since September
10
' All dates are 1968 unless otherwise specified
(d) The Union, by letter, requested Respondent to
bargain on or about September 12
(e) Respondent's answer to the Union's letter of Sep-
tember 12 was notification to the Union on October
8 that it had decided to terminate the employment of
all producers
(f) Respondent discharged all producers on November
15 and has since failed and refused to reinstate and/
or recall them
Respondent's answer denied only that it discharged
the producers "because said employees were members
of and supported the Union or because a majority of
them had designated the Union as their collective-bar-
gaining representative or because Respondent was moti-
vated by the desire to avoid recognition of or bargaining
with the Union' and that unfair labor practices resulted
Consequently, the only issue litigated before me was
Respondent's motive for eliminating producers from its
operations
At the hearing, duly held in Los Angeles on February
25 and 26, 1969, all parties appeared and were given
full opportunity to participate, to adduce relevant evi-
dence, to examine and cross-examine witnesses, to argue
orally, and to file briefs
Upon the entire record, including briefs filed by
Respondent and the General Counsel, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Metromedia, Inc , operates radio and television sta
tions throughout the United States In Los Angeles
it operates an AM radio station with call letters KLAC,
the only one of its stations involved in this proceeding
Metromedia, Inc , annually grosses more than $100,000
from its operations outside the State of California
KLAC's gross volume of business annually exceeds
$200,000, a substantial part of which is derived from
the sale of air time for the advertisement of national
brand products and for the sale of items produced
outside California On the basis of these admitted facts,
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
[I THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Charging Party is a labor orgapization within
the meaning of Section 2(5) of the Act
III FACTS
KLAC is the pioneer among American radio stations
in 24-hour-a-day two-way talk radio It converted to
that format in February 1966 However, prior to that
time, part of its daily programing was devoted to two-
way radio Two-way radio is a type of programming
in which a personality known as a communicaster
METROMEDIA , INC. (KLAC)
engages in telephone conversations' with persons who
call or are called by the station with the voices of
both communicaster and caller being heard on the air.
The primary duty of a producer is to answer the
telephone for his communicaster when the communicast-
er is on the air, screening out undesirable callers and
passing desirable ones along to the communicaster. It
is a relatively low-paying job2 and bears no relation
to the job of a "producer" of shows as that term
is more commonly used in the entertainment, industry.
The title originated in the early days of two-way radio
when a communicaster referred to his "producer" while
on the air and, thereafter, like Topsy just grew.
Through the years the duties of producers also Just
grew. At the time Respondent, abolished the job classi-
fication on November 15, the, producers, in addition
to screening incoming calls, were performing the follow-
ing duties for their communicasters: researching ques-
tions posed to communicasters by callers; placing news-
maker calls; monitoring the program for adherence to
the Federal Communications Commission's fairness doc-
trine 'and taking proper steps to rectify any possible
deviations; booking and greeting guests whom communi-
casters sometimes have on their shows; opening and
coping with the communicasters' mail; and cueing, pac-
ing, and timing the shows.3 A newsmaker' call is a
telephone call made by the station to a person in,the
news with the conversation broadcast in the same manner
as a call made by a nonnewsmaker to the station.
An example would be a call to a member of the California
legislature for comment on a pending bill. All of the
duties performed-by producers prior to their termination
are still being performed by other m'e'mbersof KLAC's
staff with the exception of the primary duty of screening
incoming calls for communicasters while they aretion
the air"New,smaker calls, for, example., Fare' now made,
either by the communicaster himself ror, more commonly;"
by'newsmen.
Prior to the inception 'of the Union's campaign to
organize Respondent's producers at KLAC, management
had become dissatisfied with the contribution of the
producers to its air sound. Jack G. Thayer, general
manager of KLAC, was concerned that a format which
had been exciting in the beginning was becoming lethargic
and blamed the change on the role of the producers.
He reasoned that the spontaneity of the shows had.
declined because the communicasters already knew,'
when they took a call on the air, who was on the
other end of the line and what he wanted to talk about.
He also reasoned that the communicasters were relying
too heavily on their producers for research and back-
ground information to`the detriment of their own ability
to talk intelligently. and entertainingly about affairs of
the day. He also noted, when he reviewed KLAC's
1968 budget in February, that producers were costing
the station approximately $50,000 a year and speculated
Y Approximately $2 an hour Commumcasters earn from $20,000 to
$150,000 a, year
9 David Crane, KLAC's program director, described producers as
"these people who had become [the communicasters] personal private
secretaries " The phrase struck me as particularly apt
205
whether that amount could be saved by eliminating
them while , at the same time , upgrading the station's
product , the sound, which it broadcasts .4 Consequently,
he discussed the role of producers in two -way radio
with various persons in or associated with the broadcast-
ing industry . He also discussed with his program director,
Willi's Duff,,whether it was , possible to have,two-way
programing without `producers , something KLAC had
never tried before . Duff thought it was not possible.
He took the position that , rather than being eliminated,
the job of the producers should be upgraded. David
Crane , KLAC' s news director , was promoted to program
director on March 15 , replacing Duff. Thayer discussed
the possibility of eliminating producers with Crane.
Crane was more receptive than Duff to the idea but
asked for time to study the problem.
The petition which ultimately led to the certification
of the Charging Party as bargaining representative of
the producers was 'filed on July 5 and received by
Thayer within a day or two. He checked with his home
office in New York . He was told by Robert E . 'Pantell,
Metromedia ' s• director of personnel, administration, that
he could not discriminate 'against the producers' in any
way, including discharging them, nor could he interrogate
them , threaten ' them , or promise them benefits pending
the election . 'Pantell advised Thayer what steps he could
legally take to attempt, to persuade the producers to
vote against the Union . Consequently , Thayer sent two
letters to the producers , one dated August 2 and the
other August 13, and held one meeting ' with them a
day or two before the election . The theme of the letters
and speech is that Thayer had found opportunities in
the radio business greater for him when he put union
activitie 's' behm`dfiiin''in,'order to follow an individual
course and' "that 'thie produce 'rsrwould be unwise to ' select
a union , whtch normally ,represents nonbroadcasting tech-
nsl in"ilie in'̀d try since to do so might inhibit
their future chances for broadcasting careers.
In July installation of new , telephone equipment at
KLAC was` completed .' This equipment expanded the
service available , but did not change the essential setup
under which ` communicaster and producer worked at
indentical but separate telephone call director sets.
' The Union won the election ,, held on Friday , August
30, by a vote of 9 to 1 .6 Louise, -d'Usseau voted in
the election.'',On Friday, Septemb 1er'6;,Mrs: d'Usseau
asked Thayer whether she could take the "place 'of _a
communicaster who was going to be absent 'that week-
end. Mrs. d'Usseau had broadcast as a substitute commu-
nicaster on similar occasions in the past : Thayer told
her that she could not because she was now represented
by the Union, communicasters - and other employees
KLAC's revenues were down $15,000 in February from January,
down $600,000 in the first 10 months of 1968 from the first 10" months'
of 1967 ' . .
The record is unclear on exactly when this work began and ended
Apparently it began in June, prior to the, filing of the petition,, and
ended in July, after the filing
B The election was held pursuant to a stipulation for certification'
upon consent election entered into by Respondent and the Charging
Party on August 5
Mrs d'Usseau quit prior to November 15
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who appear on the air for KLAC are represented by
the American Federation of Television and Radio Artists,
AFL-CIO,' and he did not want to cause a possible
jurisdictional dispute in any negotiations with the Union.
On September 10, Nancy Skiba was hired as a producer.
The 'possibility of eliminating producers continued
under active study following the election. Crane had
a communicaster present his show at least once without
the help of a producer. After studying a tape of the
show, Crane told Thayer he thought eliminating produc-
ers was a feasible idea. Thayer continued to discuss
the subject with various radio experts who visited
KLAC, Among them was the general manager of station
WEEI in Boston, a two-way talk station which does
not use producers, with whom he had first talked in
February. As a result, Thayer visited WEEI on October
2 and 3 in order to study its operations. He went
from Boston to New York on October 4, where he
conferred with his superiors about eliminating producers
at KLAC. He returned to Los Angeles on Friday, Octo-
ber 4. On Monday, October 7, he told his colleagues
of his decision to terminate the employment of all produc-
ers.9
The Union and the producers first learned of Thayer's
decision on the morning of October 8 at the first sched-
uled bargaining session between Respondent and the
Union. Pantell, spokesman for Respondent, opened the
meeting by announcing that Respondent had decided
to eliminate the job classification of producer. He said
that Respondent recognized its obligation to bargain
with the Union about producers and that, if time should
prove the decision wrong and find producers once more
numbered among KLAC's employees, Respondent
would recognize and bargain with the Union as their
representative at that time. He also conceded Respond-
ent's obligation to bargain with the Union about the-
termination of the producers' employment. Consequent-
ly, all bargaining which took place at that session as
well as at meetings held on October 31, November
I and 15 was limited to that subject.
On November 15 Respondent discharged all of the
10 producers then on its staff. They are Carmen Durand,
James Ernsberger, Robert La Pides, Edith Lund, Jack
8 KLAC's engineers are represented by the International Brotherhood
of Electrical Workers, AFL-CIO
9 The only material point as to which there is any real dispute
in this record is the date on which Thayer finally made up his mind
to discharge the producers I do not credit belated assertion that he
decided in February when he first talked to the manager of WEEI
He first testified that he reached his decision on October 7, then
changed to October 4 during his conference in New York with his
superiors This discrepancy is immaterial since both dates are well
after the election Thayer only stated that he had decided early in
1968, before any knowledge of the organizing campaign or the producers'
interest in the Union, when the possible significance of the point dawned
on him as he was testifying The record as a whole, especially the
testimony of David Crane about his conversations with Thayer after
the filing of the petition, Thayer's own testimony about the reason
for his trip to Boston, and the fact that Nancy Skiba was hired after
the election, makes it clear Thayer had come to no final decision
about whether he could get along without producers before he left
for Boston Therefore, I find that Respondent's decision to eliminate
the producers was made, at the earliest, on October 4
McClure, Madeline Gartzman Rosen, Nancy Skiba,
Arleen Starr, Sondra Weinberg, and Paul Werth.
IV. CONCLUSIONS
Respondent eliminated its producers (1) to improve
its air sound and (2) to save money. With respect to
the second reason, it admits that it was aware that
additional costs could flow from their organization. Thus,
Pantell at one point testified: `
The producers' union organization was certainly
an ingredient in our consideration of the producers
situation.
Crane testified:
They [discussions with other persons in manage-
ment about eliminating producers] were more fre-
quent [from mid-August through September 1] and
they were primarily with Mr. Thayer. And the
reason that they were more frequent was because
we were also aware that the producers were talking
in the halls and so on about $225 a week that
'they wanted to get because that's what somebody
was getting in San Francisco.
and Thayer testified:
Q.,I asked you-I think your answer was that
one of the reasons that you decided to eliminate
the producers was because of-
A. Because of economics, 50 thousand dollars,
that was their current status [i.e., in February].
Secondly, was the programming. Next, I found
out that the union was coming in. ^ Mr.,-'Pantell
said it was going to cost more money, so the
economic factor became even stronger.
Q. Your decision to terminate the producers was
final-in February? Tell us how the union 's increased
economic burden affected that decision.
A. No, not in February, I said, sir-
Q. You said-
A. I said my first consideration was, No. 1,
economics, based on $50,000; No. 2, on program-
ming spontaneity. That decision was there to begin
with.
Then when the union organized, it made the
economic factor even more important.
Another facet of the economic half of Respondent's
motive was the bother of negotiating with the Union,
as Thayer testified on cross-examination:
Q. Well, why didn't you do it [eliminate produc-
ers] in March?
A. I hadn't thought that much about it in March.
Q. Tell me-you say the union was a factor-
tell me how it was a factor again , please.
A. My concern was that a great deal of time
and effort would be spent in negotiations with them.
Therefore, since Thayer did not finally decide to elimi-
nate the producers until after they voted for the Union,
regardless of how much thought he may have given
to the possibility before, it is obvious that the economics
METROMEDIA , INC. (KLAC)
of unionization were a moving cause of the discharges. 10
Even though Respondent also had a second reason,
improvement of its product , if the economic motive
resulting from the producers ' selection of the Union
is discriminatory within the meaning of the Act, the
discharges violate Section 8(a)(3) and (1). N.L.R.B. v.
Electric Steam Radiator Corp., 321 F. 2d 733 (C.A.
6).
Respondent defends its decision to eliminate its prod-
ucers because they had voted for the Union on two
grounds First, it argues that this is a Darlington'[ case,
and, since the General Counsel has admittedly not
attempted to prove a motive of chilling unionism else-
where in Respondent's business, no violation has been
established. It equates the total elimination from its
operation of the one task which producers alone per-
formed, namely, the screening of calls for communicast-
ers while they are on the air, with the closing of part
of an employer's business found legal by the Supreme
Court, and states, in its brief:
Admittedly, the termination of the producers here
did not constitute a partial closing of the Respond-
ent's business in the sense that one plant was
completely shut down and its doors bolted forever.
Similarly, the Respondent's air product had not
been changed substantially, as for example, from
two-way radio to music. However, Respondent sub-
mits that the Darlington case does not require that
the partial closing be evidenced by the bolted door
or a complete change in the product. For example,
let's assume that an employer who manufacturers
[sic] automobiles decides to eliminate the use of
a chrome feature strip as trim on the automobile.
This chrome feature strip is manufactured by 10
employees in one plant located 20 miles from the
assembly plant. If the employer closes down that
one plant, clearly the Darlington case would apply.
Assuming that the chrome strip is made in a separate
building located on the same premises as the assem-
bly plant, it would appear that a permanent closing
of that building would also fall within the purview
of the Darlington case. The Respondent submits
that even if the 10 man department was located
within the assembly plant itself the Darlington rule
should apply. In each case the employer has partial-
ly terminated its business permanently, and the
physical location of the part of the business termi-
nated should have no effect on the legal result.
It should also be noted that in the assumptions
above, the ultimate product, namely, the automo-
bile, has not substantially changed
10 Pantell admitted that, at one of the negotiating sessions, he told
the Union Respondent desired to eliminate the group of producers
even absent any increase in cost The General Counsel cites this fact
in arguing that Respondent ' s economic defense is a pretext I attach
no such significance to the remark All it establishes is that Respondent,
once it had announced its decision to the Union, was determined
not to change it regardless of any arguments advanced by the Union
" Textile Workers Union v Darlington Manufacturing Co , 380 U S
263
207
In the present case, the Respondent permanently
terminated that portion of its business which
involved the screening of telephone calls by the
producers. From Mr. Ernsberger's testimony, it
appears that at least one communicaster, namely,
Joe Pyne, conducted his show from his home while
the producer was located in the broadcast studio.
Thus, it would have been entirely possible to have
all the communicasters broadcast from a building
located some distance from the building housing
the producers. If, under those circumstances, the
Respondent terminated the producers and "bolted
the door" of the building in which they were locat-
ed, the Darlington case would clearly apply. The
Respondent submits that the physical location of
that part of its business which is permanently closed
should not make the Darlington case less applicable.
The Darlington case was intended to cover a perma-
nent partial closing of any part of an employer's
business whether it is a division, plant or department
and regardless of its location. The permanent nature
of the Respondent's closing of that portion of its
business conducted by the producers is evidenced
by the fact that no one is performing the work
exclusively assigned to them and no replacements
have been hired. [Emphasis supplied.]
I disagree. When Respondent eliminated the job classi-
fication and dropped from its operation the one task
which was uniquely the producers', it did not close
a part of its business in any reasonable sense of that
expression. In both Darlington and Motor Repair, Inc.,
168 NLRB 1082, another case cited by Respondent
in, which the Board, applied the Darlington principle
to find a partial closing not a violation of the Act,
an entire plant was shut down. I find nothing in either
decision to justify an extension of Darlington to the
situation presented here. Therefore, since Respondent
did not close a part of its business, Darlington does
not apply and the General Counsel did not have to
prove a chilling-of-unionism motive in order to establish
a violation.
Second, Respondent argues that this case is governed
by N.L.R.B. v. J. M. Lassing, et al., 284 F.2d 781,
783. There, the United States Court of Appeals for
the Sixth Circuit held that an employer did not violate
the Act when it accelerated a decision to eliminate
one of its operations because the employees who per-
formed it had selected a bargaining representative. The
court reversed the Board in Lassing on the basis of
the principle it had previously established in N.L.R.B.
v. Adkins Transfer Co., 226 F.2d 324, and N.L.R.B.
v. R. C. Mahon Co., 269 F. 2d 44, that
a company may suspend its operations or
change its method of doing business, with the result-
ing loss of employment on the part of certain
employees, so long as its change in operations
is not motivated by the illegal intention to avoid
its obligations under the National Labor Relations
Act. A change in operations motivated by financial
or economic reasons is not an unfair labor practice
under the Act.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Again, I disagree. In the first place, the Board has
expressed its respectful disagreement with the Sixth
Circuit's holding in Lassing and similar cases. See Ox-
Wall Products Manufacturing Co., Inc., et al., 135 NLRB
840, fn. 4 at 842; ' Myers Ceramic Products Co., 140
NLRB 232, fn. 8 at 234. More importantly, this case
is clearly distinguished from the Lassing line of cases
by its facts. In Lassing, the employer only accelerated
a firm decision already made and having an outside
date for its implementation when the employees selected
a bargaining representative. Here, Thayer did not finally
make up his mind to eliminate the producers until well
after the election when faced with the imminent necessity
of negotiating with their representative. In Adkins and
in Mahon the employer was motivated solely by its
concern that it could not afford increased costs caused
by unionization. Here, there is no evidence, nor does
Respondent contend, that increased ' costs which
undoubtedly would have resulted from organization of
the producers posed any threat to KLAC's continuing
profitable operation. The thrust of Respondent's econom-
ic argument is, rather, that it was privileged to attempt
to improve its air sound and to save money in the
process no matter what its financial situation. The Lass-
ing principle has been applied in situations where, as
here, the decision to eliminate employees preceded any
demand for increased benefits from their bargaining
representative on the ground that the employer's good-
faith anticipation of such demands is sufficient to estab-
lish that his action is motivated by economic rather
than antiunion considerations. 12 Here;-' however,
Respondent's concern did not center on possible increas-
es in its cost due to organization of its producers.
As the two portions of Thayer's testimony, which''',I-
have set forth verbatim above make clear,- his cohcehn
was first with the approximately, .$50,000 'a year 'the
producers were already costing Respondent:and second
with the time that would be wasted in negotiations
with the Union, money and time which could easily
be saved if the producers were eliminated forthwith.
Therefore, this case does not present "a change in
operations motivated by financial or economic reasons"
in the sense in which that phrase was used by the
court since "motivated by financial or economic rea-
sons" means, in the Lassing cases, motivated solely
by the desire to avoid the increased costs of unionization.
Based on the foregoing, I find that Respondent was
motivated to discharge all 10 of its producers on Novem-
ber 15 by their designation of the Union as their collec-
tive-bargaining representative and by Respondent's con-
sequent desire to avoid bargaining with the'Union, there-
by violating Section 8(a) (3) and (1) of the Act. In
reaching this result I rely especially on the timing of
Respondent's decision to eliminate the producers and
Respondent's admission that its concern at that time
was over the money, they were already costing as much
as over future increased costs. I do not rely on,Respond-
ent's preelection campaign or the Thayer-d'Usseau
" Jays Foods, Inc v N L R B , 292 F 2d 317 (C A 7) But see
Weyerhaeuser Company, 134 NLRB 1371, 1374, and fns 9 and 10
conversation. The two letters which Thayer sent to
the producers and the words he spoke to them just
before the election contain no threats of reprisal or
promises of benefit. They are a clear expression of
Respondent's right under Section 8(c) of the Act to
present to its employees its views on the merits of
unionization. I credit the testimony of Thayer and Crane
that they personally had no objection to the producers'
selecting the Union as their representative ' if they so
desired. As to Mrs. d'Usseau's conversation with Thay-
er, I find that Thayer was motivated only by the jurisdic-
tional problem and not by resentment over the outcome
of the election when he declined to let her go on the
air as he had in the past. 13 The fact that an employer
advanced arguments against unionization, without more,
does not establish antiunion animus. Neither does the
fact that he based a business decision on a valid bargain-
ing consideration. Therefore, I find that Respondent
was not motivated by antiunion animus when it eliminat-
ed producers.
The General Counsel does not contend that Respond-
ent failed or refused to 'bargain with the Union about
termination of the producers, once the decision to elimi-
nate them had been 'announced. His 8(a)(5) theory is
a derivative one. Once an 8(a)(3) violation is found
under the circumstances of this case, he argues, a refusal
to bargain follows because Respondent of necessity
refused to bargain with the Union over the terms and
conditions of the producers' continued employment. I
agree with the General Counsel's factual premise but
notiwith his. legal conclusion..The fact that, Respondent
did bargain about the terms and conditions;of the termina-•
tions establishes that Respondent 'did. riot violate- the
mechanics or spirit of collective bargaining. During these
negotiations, Robert Pantell, Respondent's, spokesman;,
acknowledged 'a, continuing obligation to bargain, about,
terms and conditions of employment if conditions ever
made such bargaining relevant. When Pantell couched
this thought in terms of Respondent being "wrong"
about its decision to get rid of the producers, he was
thinking of the possibility that Respondent might subse-
quently find their role of screening calls for communicast-
ers essential to Respondent's operations. But the out-
come of this litigation may prove Respondent wrong
in a totally different sense. If the eventual result of
this Decision, a Board order or a court decree, is rein-
statement of producers to their former positions, I have
no doubt that Respondent will honor the commitment
made in good faith by Pantell and bargain with the
Union without the necessity of an express order herein.
Therefore, I find that Respondent did not violate Section
8(a)(5) and (1) of the Act when its illegal decision to
eliminate the producers precluded bargaining with the
13 The General Counsel's brief takes contrary views There is no
explanation in the record as to why the preelection letter aand speech
are not alleged in the complaint as independent violations of Sec 8(a)(l)
or the d'Usseau incident as a violation of Sec 8(a)(3) and (1) if they
have the significance the General Counsel attributes to them All are
well within the 10(b) period The charge is sufficiently broad to cover
them
METROMEDIA , INC (KLAC)
Union over the terms and conditions of their employ-
ment
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1 Metromedia, Inc (KLAC) is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act
2 National Association of Broadcast Employees &
Technicians, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act
3 All producers employed by Metromedia, Inc , at
KLAC, excluding office clerical employees, the executive
producer, assistant program director, program director,
guards, supervisors as defined in the Act, and all other
employees, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section
9(b) of the Act
4 At all times since September 10, 1968, the Union
has been and presently is the representative for the
purpose of collective bargaining of the employees in
the unit described above and, by virtue of Section
9(a) of the Act, has been and now is the exclusive
representative of all the employees in said unit for
the purpose of collective bargaining in respect to rates
of pay, wages, hours, or other terms and conditions
of employment
5 By discharging Carmen Durand, James Einsberger,
Robert La Pides, Edith Lund, Jack McClure, Madeline
Gartzman Rosen, Nancy Skiba, Arleen Starr, Sondra
Weinberg, and Paul Werth on November 15, 1968,
Respondent has discriminated with respect to their hire
and tenure of employment, discouraging membership
in the above-named labor organization and thereby has
violated Section 8(a) (3) and (1) of the Act
6 The aforesaid unfair labor practices are unfaii labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
7 Respondent did not violate Section 8(a)(5) and
(1) of the Act by announcing, on October 8, 1968,
its decision to discharge the persons named above and
thereafter failing and refusing to bargain with the above-
named labor organization about the terms and conditions
of their continued employment
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act
Ordinarily, I would recommend that Respondent rein
state the discharged producers to their former or substan-
tially equivalent positions In this case, however, such
an order would permit Respondent to circumvent the
real purpose of the order to restore the status quo
ante insofar as a bargaining unit limited to producers
is concerned by reinstating them to positions other than
producer Consequently, I will recommend that Respond-
209
ent reinstate each of the discharged producers to his
former position without prejudice to any seniority or
other rights and privileges previously enjoyed and make
each whole for any loss of earnings he may have suffered
as a result of his discharge by paying to him a sum
of money equal to that which he normally would have
earned as wages from November 15, 1968, until the
date of Respondent's offer of reinstatement, less his
net earnings during such period, with backpay and inter-
est thereon to be computed in the manner prescribed
in F W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co , 138 NLRB 716 This
is not meant to imply that Respondent must again have
them screen calls for its communicasters Screening
calls occupied less than half of the producers' worktime
prior to November 15 If Respondent feels that elimina
tion of the producers' unique duty of screening calls
has so improved its air sound that it does not want
to go back to the old system, there is enough work
involved in the producers' other duties to keep them
busy as the communicasters' factotums for as many
hours a week as they normally worked prior to November
15
Upon the foregoing findings of fact and conclusions
of law and the entire record , and pursuant to Section
10(c) of the Act, I hereby issue the following
RECOMMENDED ORDER
Metromedia , Inc (KLAC), its officers , agents, succes-
sors, and assigns, shall
I Cease and desist from discriminating against its
employees in order to discourage membership in National
Association of Broadcast Employees & Technicians,
AFL-CIO, CLC, or any other labor organization
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act
(a) Offer to Carmen Durand , James Ernsberger, Rob-
ert La Pides, Edith Lund, Jack McClure , Madeline
Gartzman Rosen , Nancy Skiba, Arleen Starr, Sondra
Weinberg , and Paul Werth immediate and full reinstate-
ment to their former positions as producers without
prejudice to any seniority or other rights and privileges
previously enjoyed and make each whole for any loss
of pay suffered as a result of Respondent ' s discrimination
against him in the manner set forth above under ` The
Remedy "
(b) Notify Carmen Durand , James Ernsberger, Robert
La Pides, Edith Lund, Jack McClure , Madeline Gartz
man Rosen , Nancy Skiba, Arleen Starr, and /or Paul
Werth if presently serving in the Armed Forces of
the United States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records , social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Recommended Order
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at radio station KLAC in Los Angeles, Cali-
fornia, copies of the attached notice marked "Appen-
dix."14 Copies of said notice , on forms provided by
the Regional Director for Region 31, after being duly
signed by Respondent ' s authorized representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicious places, including all places where notices
to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered , defaced , or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 31, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."'
'" In the event that the Recommended Order is adopted by the
Board, the words "This notice is posted by order of the National
Labor Relations Board after a Trial at which all sides had the chance
to give evidence, the National Labor Relations Board found that we,
Metromedia, Inc (KLAC), violated the National Labor Relations Act,
and ordered us to post this notice," shall be substituted for the words
"Pursuant to the Recommended Order of a Trial Examiner of the
National Labor Relations Board and in order to effectuate the policies
of the National Labor Relations Act we hereby notify our employees
that," in the notice In the further event that the Board's Order is
enforced by a decree of the United States Court of Appeals, the
words "This notice is posted by order of the United States Court
of Appeals" shall be substituted for the words ".This notice is posted
by order of the National Labor Relations Board "
IS In the event that this Recommended Order is adopted by the
Board, this provision, shall be modified to read "Notify the Regional
Director for Region 31, in writing, within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "