Radio Station KHMO

National Labor Relations Board - Board Decisions

Jan 7, 1953

102 N.L.R.B. 26 (N.L.R.B. 1953)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COURIER POST PUBLISHING COMPANY, D/B/A RADIO STATION KHMO
and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL
UNION No. 1272, A. F. L. Cases Nos. 14-CA-638 and 14-CA-683.
January 7,1953
Decision and Order
On May 21, 1952, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. Thereafter,
the Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in these cases , and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modification.
On May 29, 1951, the Union filed charges in Case No. 14-CA-638,
alleging that the Respondent had violated Section 8 (a) (1), (3), and
(4) of the Act: (a) By engaging in acts of surveillance of Warren
Hewitt, by changing the manner in which Warren Hewitt reported
his work time, by reducing his wages, by ordering Warren Hewitt
to leave the permises of Respondent's radio station except during
periods of scheduled employment and thereby effecting a reduction in
his wage payments, and by discharging Warren Hewitt on or about
May 21, 1951, because of his activity on behalf of the Union and
because he gave testimony in a representation proceeding conducted
by the Board on April 5, 6, and 7, 1951, which involved employees of
1 The General Counsel excepted to the Trial Examiner's ruling which excluded as ex-
hibits the Respondent 's briefs in two earlier representation cases (14-RC-1331 and
14-RC-1491) Involving employees of the Respondent . The General Counsel contended that
statements in these briefs which tended to show inconsistencies in the Respondent 's posi-
tion with respect to the supervisory status of Harvey and Hoenes were relevant in con-
nection with the allegations in the complaint that the Respondent clothed Harvey with
supervisory authority and withdrew such authority from Hoenes for the purpose of de-
stroying the Union's majority status . We find that the Trial Examiner committed no
prejudicial error in excluding these documents as they would not have altered the conclu-
sions reached herein.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Houston, Styles,
and Peterson].
102 NLRB No. 4.
RADIO STATION KHMO 27
the Respondent; (b) by interrogating its employees in connection
with their union activity; and (c) by threatening to install timecards
in the event the employees selected a representative for purposes of
collective bargaining.
On July 12, 1951, the parties entered into a settlement agreement,
pursuant to which the Respondent agreed, inter alia, that it would
"make whole any alleged discriminatee under Charge #14-CA-638
and who is no longer interested in further employment," and, further,
that it would "not discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any employee
because of membership in or activity on behalf" of the Union. On
July 18, 1951, the Regional Director for the Fourteenth Region ap-
proved the withdrawal of the charge. The file in Case No. 14-CA-638
was closed on July 30,1951.
On October 18,1951, the Union filed a charge in Case No. 14-CA-683
in which it alleged that the Respondent had committed certain unfair
labor practices. On November 6, 1951, the Union amended its charge
of October 18. The charge, as amended, alleged that the Respondent
had violated Section 8 (a) (1), (3), and (4) of the Act: (a) By dis-
charging Robert Hewitt, a brother of Warren Hewitt, on October 13,
1951, because of his activity on behalf of the Union and because he
gave testimony in a representation proceeding conducted by the Board
on September 12, 13, and 14, 1951, involving employees of the Re-
spondent; (b) by reducing the compensation of Pat Harvey and James
Hildebrand through reduction of their hours of employment because
of their activity on behalf of the Union; and (c) by clothing Pat
Harvey with supervisory authority over one employee for the purpose
of destroying the Union's majority representation status.
On March 4, 1952, the Regional Director advised the Respondent
that the new charge, as amended, alleging unfair labor practices com-
mitted subsequent to the settlement agreement, were found to possess
sufficient merit to warrant setting aside that agreement, and that
approval of the withdrawal of the original charge would be set aside
and the matter reopened. On March 5, 1952, the General Counsel
issued his complaint in Case No. 14-CA-683, alleging violations of
the Act which had been set forth in the charge filed in Case No.
14-CA-638 as well as in the charge filed in Case No. 14-CA-683, as
amended.
The Trial Examiner held that, although Section 10 (b) of the
Act would not preclude the Board from going behind the settlement
agreement and reactivating the original charge, such a course should
not be followed in this case, apparently because the complaint, as
amended at the hearing, alleged the commission of unfair labor prac-
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tices which occurred more than 6 months prior to the new charges,2
and because "the complaint alleges the commission of, and the evi-
dence at the hearing related to the commission of purported unfair
labor practices of a different type and character from, and not an
[sic] continuation of, those charged previously." The General
Counsel has excepted to this ruling.
It is well established that where, after the execution of a settlement
agreement, unfair labor practices occur which violate that agreement,
the Board will go behind the agreement and litigate the presettlement
as well as the postsettlement violations,3 for the reason that it is a
"salutary policy to protect parties to a settlement agreement against
violations of the agreement."-' Where alleged postsettlement viola-
tions are brought to its attention, the Board is not precluded by Section
10 (b) of the Act from processing the unfair labor practices alleged
in the presettlement charge, notwithstanding such violations occurred
more than 6 months before the filing of the postsettlement charge s
In such cases, the effect of the settlement agreement in bringing to a
halt the Board's investigatory processes is dissipated, and any apparent
unfair labor practices revealed by the investigation of the original
charge, if they occurred within 6 months of the original charge, become
cognizable by the Board and may be included in the complaint.
The record in the instant proceeding discloses that Warren Hewitt
was discriminatorily discharged by the Respondent on May 21, 1951,
approximately 1 month after he assisted counsel for the Union by
giving testimony in a representation proceeding involving employees
of the Respondent. By virtue of the settlement agreement which the
Respondent executed on July 12, 1951, the Respondent agreed "not
to discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of
membership in or activity on behalf" of the Union. However, on
3In this connection , the Trial Examiner observed that the complaint alleged the com-
mission of unfair labor practices as early as approximately 14 months previous to the filing
of the complaint , 10 months prior to the filing of the new charge, and 7 months before
the execution of the settlement agreement.
Y Wallace Corporation , 323 U. S 248 (1944).
4 See Inyo Lumber Company, 98 NLRB 984.
7 Mundet Cork Corporation and Insulation Contractors of Southern Californ4a, Inc.,
96 NLRB 1142.
In support of his conclusion that the allegations of the complaint relating to the pre-
settlement charge should be dismissed as involving unfair labor practices committed more
than 6 months prior to the filing of the postsettlement charge, the Trial Examiner relied
upon Inyo Lumber Company, supra, and Olin Industries, 97 NLRB 130. These cases are
inapposite . In the Inyo decision, the Board held that it would not look behind a settlement
agreement and reactivate the original charges where the Union waited some 9 months after
the acts complained of in filing amended charges and where "nothing appears in the
record to explain or mitigate that delay." In Olin Industries , the issue involved the
reinstatement of a charge which had been withdrawn by a "Withdrawal Request form,"
and did not involve the reactivation of presettlement charges.
RADIO STATION KHMO 29
October 13, Robert Hewitt, a brother of Warren, was discharged
under almost identical circumstances. We are therefore convinced
that the discharge of Robert Hewitt, which the Trial Examiner found
to be discriminatory, constituted a repudiation of the Respondent's
agreement to refrain from discriminating against its employees be-
cause of their activities on behalf of the Union. In our opinion, the
Respondent thereby dissipated the effect of the settlement agreement.
As a result, the allegations in the complaint relating to apparent
unfair labor practices uncovered by investigation of the original
charge were properly before the Trial Examiner, notwithstanding
the fact that some of the acts there charged antedated the filing of the
new charge by more than 6 months, or the fact that some of these
acts differed in character from those alleged in the new charge.
However, evidence with respect to the unfair labor practices alleged
in the original charge was not fully adduced at the hearing; findings
made herein with respect to whether or not these alleged unfair labor
practices occurred would not afford the parties an opportunity to
except thereto ; and findings that the alleged violations occurred, if
made, would not alter the scope of the Order in this Case., We shall
therefore affirm the result reached by the Trial Examiner in dismissing
the allegations in the complaint based upon the original charge, but
not his reasons therefor.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Courier Post Publishing
Company, d/b/a Radio Station KHMO, Hannibal, Missouri, its of-
ficers, agents , successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, Local Union No. 1272, A. F. L., or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any manner in regard to
their hire or tenure of employment or any term or condition of
employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Electrical Workers, Local Union No. 1272, A. F. L., or any other
The record in this case discloses that on July 13, 1951 , a day after the execution of
the settlement agreement , Warren Hewitt acknowledged receipt of a certain sum from
the Respondent in satisfaction of all claima against the Respondent arising out of his
discriminatory discharge , and indicated that he did not desire further employment with
the Respondent . Therefore, we shall not order reinstatement or back pay for him.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities, except to the extent that such
right might be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Robert Hewitt immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole in
the manner set forth in the section of the Intermediate Report en-
titled "The Remedy" for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him.'
(b) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records, and all
other records necessary to analyze the amounts of back pay due under
the terms of this Order.
(c) Post at its office in Hannibal, Missouri, copies of the notice at-
tached hereto and marked "Appendix A." a Copies of said notice,
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon the re-
ceipt thereof, and be maintained by it for a period of at least sixty
(60) consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the complaint, insofar
as they allege that the Respondent: (1) Discriminated against James
C. Hildebrand and Pat Harvey in regard to their terms and condi-
tions of employment by reducing the number of work hours assigned
9 We have been administratively advised that, on or about June 3, 1952, the Respondent,
without waiving its exceptions as to this issue, sent a telegram addressed to Robert
Hewitt at radio station KTFV, Texarkana, Texas, in which he was offered "immediate and
full reinstatement to his former or substantially equivalent position," but which made no
reference to back pay. However, we have not been advised as to whether or not Robert
Hewitt received this telegram. Under the circumstances, therefore, we have ordered, the
Respondent to take appropriate action to remedy its unfair labor practices.
6 In the event this Order is enforced by a decree 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 Decree of the United States Court of Appeals , Enforcing an Order."
RADIO STATION KHMO 31
them; (2) discriminatorily discharged Warren Hewitt and failed
and refused to reinstate him in violation of Section 8 (a) (3) and (1)
of the Act; (3) interrogated its employees concerning their union
activities or threatened or warned them to refrain from becoming
members of the Union; and (4) extended supervisory authority to
Pat Harvey and withdrew supervisory authority from Gene Hoenes
for the purpose of undermining the Union's majority, be, and they
hereby are, dismissed.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This consolidated complaint is based upon two charges and an amendment to
the second charge filed by International Brotherhood of Electrical Workers, Local
No. 1272, A. F. L, herein called the Union, against Courier Post Publishing Com-
pany, d/b/a Radio Station KHMO, herein called the Respondent. The complaint
issued on March 5, 1952, by the General Counsel of the National Labor Relations
Board, herein called the General Counsel and the Board, respectively, by the
Regional Director for the Fourteenth Region (St. Louis, Missouri ), as amended
at the hearing, alleges that Respondent (1) beginning about January 15, 1951,
and on divers dates thereafter, by various acts interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
in violation of Section 8 (a) (1) thereof, and (2) discharged two named em-
ployees and has since failed and refused to reinstate them because they joined or
assisted the Union or engaged in concerted activities with other employees for
the purposes of collective bargaining or other mutual aid or protection, in violation
of Section 8 (a) (1) and (3) of the Act.
Respondent's answer admits the allegations as to the nature of its business
but denies the allegations of unfair labor practices.
Copies of the charges, the complaint, and a notice of the order consolidating
cases and of hearing were duly served upon all parties.
Pursuant to notice, a hearing was held at Hannibal, Missouri, from March 24
to March 26, 1952, before Stephen S. Bean, the undersigned duly designated Trial
Examiner. The General Counsel, the Respondent, and Union were represented
by counsel. All parties participated and were afforded opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. Oral argument was waived but the General Counsel and the Respondent
have filed briefs.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material to the issues in this case, a
corporation duly organized under and existing by virtue of the laws of the State
of Missouri, with a principal office and broadcasting facilities located at Hannibal,
Missouri, where it is engaged in the operation of radio station KHMO under a
license issued by the Federal Communications Commission. Radio station KHMO
operates on an assigned frequency of 1070 kilocycles with a power of 5,000 watts
during daylight hours, and 1,000 watts during the nondaylight hours. The
reception area of radio station KHMO includes portions of the States of Illinois
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Missouri. Respondent in the course and conduct of its business operations
broadcasts daily from its Hannibal, Missouri, station, commercial and other pro-
grams supplied by the Mutual Broadcasting Company as a part of a nationwide
hookup over long distance lines of the American Telephone and Telegraph Com-
pany. Radio station KHMO procures its music from Lang-Worth Feature Pro-
grams, Inc., or RCA Thesaurus Transcription Libraries, utilizes the wire services
of the Associated Press News Service, and pays copyright royalties to Broadcast
Music, Inc. (B. M. I.) and American Society of Composers, Authors, and Pub-
lishers (ASCAP). During the period of 12 months preceding March 5, 1952,
Respondent sold radio advertising valued in excess of $100,000, of which 25 per-
cent was sold to national or regional advertisers located outside the State of
Missouri. Respondent admits and I find that it is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union No. 1272, A. F. L.,
is a labor organization admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
On May 29, 1951, the Union filed original charges that Respondent had violated
Section 8 (a) (1), (3), and (4) of the Act by certain conduct on or about May
15 and 21, 1951, since April 7, 1951, and on other unstated dates. On July 12,
1951, the parties entered into a settlement agreement which provided inter alia-
Contingent upon compliance with the terms and provisions hereof , no further
action shall be taken in the above case. The Union requests the withdrawal
of the charge in this matter, such withdrawal to become effective when the
Regional Director is satisfied that the provisions of this Agreement have been
carried out.
On July 18, 1951, the Regional Director approved the withdrawal of the charge
and on July 30, 1951, the file was closed. On October 18, 1951, the Union filed
new charges alleging unfair labor practices on or about October 1 and October 13,
1951. On November 6, 1951, the Union amended its charge of October 18, 1951, by
the addition of allegations that on or about November 1, 1951, Respondent had
violated Section 8 (a) (1) and (3) of the Act.
On March 4, 1952, the Acting Regional Director advised Respondent that the
charge of the unfair labor practices committed after the settlement agreement
of July 12, 1951, had been considered and found by him to have sufficient merit to
warrant setting aside approval of the agreement and that therefore the approval
of the withdrawal of the charge is set aside and the matter reopened for further
processing . On March 5, 1952, as above stated, the General Counsel issued his
complaint in general based upon the original, and the new charge and its amend-
ment, and also upon unfair labor practices alleged to have been committed at
times not definitely referred to in any of the charges ; to wit, on or about Janu-
ary 15, 1951 (by amendment on March 24, 1952, to the complaint, from April 1,
1951), on or about July 1, 1951, on or about September 1, 1951, and on or about
September 8, 1951.
The complaint did not specifically allege that the settlement agreement had
been violated by Respondent.
It has been a well-established Board policy, sanctioned by the courts, that
where unfair labor practices occur after the execution of a settlement agreement,
RADIO STATION BHMO 33
the Board may go behind the settlement agreement and litigate the presettlement
as well as the postsettlement violations.'
The Board's investigatory processes, having been set in motion by the filing of
the original charges, were halted by the execution of the settlement agreement.
Thereafter, the Union filed new charges which alleged no violation of the Act
before the execution of the settlement agreement. Four and one half months
later, on the day after the Acting Regional Director had set aside the approval
of the withdrawal of the original charges and reopened the matter "for further
processing," the General Counsel filed his complaint alleging as amended, inter
alia, the commission of unfair labor practices as early as approximately 14
months previously, 10 months prior to the filing of the new charge, and 7 months
before the execution of the settlement agreement. In general, the complaint
alleges the commission of, and the evidence at the hearing related to the com-
mission of purported unfair labor practices of a different type and character
from, and not a continuation of, those charged previously. For examples, among
the bases of the original charge were acts of surveillance, changing the manner
of reporting time, ordering an employee to leave premises except during periods
of scheduled employment, threatening the installation of timecards, and the
adoption of other restrictive measures, none of which conduct constituted a basis
for the new or its amended charge or was alleged in the complaint.
Section 10 (b) of the Act would not preclude the Board from reactivating the
original charges when the postsettlement violations were brought to its atten-
tion. However, such a course is not suitable in every case and in my view
should not be followed here.
It is not only a salutary policy to protect parties to a settlement agreement
but it is equally desirable to encourage settlement agreements. A party charged
with violations of the Act would be discouraged from entering into such an agree-
ment if it were to be held, in the absence of unusual circumstances of a character
which does not appear here, that charges may be reactivated regardless of the
action of a Regional Director in once approving a request for their withdrawal.
Under the circumstances here, and cognizant of the policies discussed above,
I find that the original charges should not have been reactivated,' and I shall
recommend that the allegations based thereon,8 as well as those premised upon
events occurring before the date of the settlement agreement, be dismissed.
Accordingly, I shall make no unfair labor practice findings with respect to the
alleged unlawful discharge of Warren Hewitt on May 21, 1951, or the interroga-
tions, threats, and warnings asserted to have occurred on dates prior to July 12,
1951. The remaining allegations of the complaint require consideration and will
be taken up in order.'
Wallace Corporation, 323 U . S. 248 ( 1944).
Ingo Lumber Company, 98 NLRB 984; See Olin Industries, 97 NLRB 130.
' This finding does not imply , however , that no consideration is to be given , by way of
background, to conduct occurring before April 19, 1951 (6 months prior to the date of
service of the charge dated October 18, 1951 ), which may throw light upon the meaning
and nature of conduct within the 6-month period which might otherwise be obscure and
ambiguous when viewed in isolation. Axelson Manufacturing Company, 88 NLRB 761.
' The reduction in number of work hours assigned to James C. Hildebrand and Pat
Harvey is alleged to have taken place "from on or about July 1 , 1951 to date" ( March 5.
1952 ). As there is no evidence that any such reduction was made between July 1 and
July 12, 1951 , my ultimate finding in respect to this feature of the case , limited to events
occurring from on or about July 12, 1951, to date, would not be affected even though I
had not instructed myself that no findings concerning happenings taking place before July
12, 1951 , should be made.
The interrogations of, and threats to, employees are alleged by the amendment to par. VII
of the complaint to have occurred "from on or about January 15, 1951 to date." I am
not unmindful of the fact that similar conduct was set forth as part of the basis for the
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged discriminatory discharge of Robert Hewitt on or about
October 13, 1951
The last week of July 1950, Robert Hewitt was employed as an announcer by
Gene Hoenes the alleged subsequent withdrawal by Respondent from whom of
authority to hire, discharge, and discipline other employees for the purpose of
having him included within the unit claimed by the Union to have been appro-
priate, is alleged. He worked through October 27, 1951. In January 1951,
Wayne W. Cribb, general manager of Respondent's radio station KHMO, called
Hewitt into his office. Cribb asked him if he knew that the Union had filed a
representation petition. Hewitt replied that he did. Cribb stated that he was
against unions in a small industry such as a radio station and that any contracts
announcers might get through a union might tie the announcers' hands. When
he employed announcer James Hildebrand shortly after the middle of February
1951, Cribb asked him if he belonged to a union and told Hildebrand Respondent
was having labor trouble. In the latter part of January 1951, Cribb had asked
Pat Harvey, another announcer, if he knew anything about the Union's attempt
to organize the announcers. At a formal representation hearing held on Sep-
tember 12, 13, and 14, 1951 (Case No. 14-RC-1481, 97 NLRB No. 185), Hewitt
assisted Albert Rendlen, Esq., an attorney who appeared for the Union.
On Saturday afternoon, October 13, 1951 (1 month after the close of the
September representation hearing), Hewitt was notified by Respondent's Com-
mercial Manager Parker H. Cunningham that Cribb wanted to see him. Cun-
ningham is assistant manager to Cribb and is, I find, a supervisor within the
meaning of the Act. In the spring of 1951 Cunningham had told employee
Warren Hewitt (not to be confused with Robert Hewitt) that he was opposed
to the way unions operated. Hewitt disagreed with him. Cunningham en-
deavored to refute Hewitt's arguments in support of unions and told Hewitt
he had been raised to get out of a job if he did not like it. About the same time,
Cunningham had told Hewitt and employees Hildebrand and Kennon that if
the Union came in a time clock would be installed.
In the presence of Cunningham, Cribb, on October 13, told Hewitt that Re-
spondent had suffered recent losses and that he was to be laid off. Hewitt asked
Cribb if the nonannouncing staff was to be reduced and Cribb replied in the
negative. Cribb stated that although Hewitt possessed greater seniority than
announcers Kotkis, Drennan, and Hildebrand and the seniority rule is generally
a good thing to follow, it could not be applied in Hewitt's case ; that Hewitt was
single and the three announcers having less seniority than he were married
men. Hewitt asked Cribb if it were possible to reduce his hours from the 45
to 47 a week he was averaging to 40. Cribb replied that that would not take
up sufficient slack. To Hewitt's inquiry as to whether all the announcers could
not be cut down to 40 hours a week in order to make up any losses, Cribb replied
that such an arrangement would probably accomplish that result. Cribb then
told Hewitt that there would be available a 7 to 10 hour a week part-time job
and asked him if he would accept it. Hewitt requested time to think it over,
but Cribb insisted that Hewitt give him an immediate answer. Thereupon,
original charge filed May 28 , 1951 , and that these allegations thus stand on a different
footing from the remaining allegations of the complaint. However, for the reasons, because
of the circumstances , and in consideration of the policies, hereinbefore discussed, I am of
the opinion that , under all the facts of this case, it is not required in order to effectuate
the policies of the Act that findings with respect to any interrogations or threats that
may have been addressed or uttered to employees before July 12, 1951, be made. Therefore,
I shall limit my consideration of this aspect of the case to events subsequent to July 12,
1951.
RADIO STATION KHMO 35
Hewitt stated he guessed he could not live on earnings based on 7 to 10 hours
of work a week. Cribb then inquired if that meant Hewitt would not accept a
part-time job and, after Hewitt replied that he guessed it did, Cribb stated
Hewitt should consider he was being given 2 weeks' notice which would expire
Saturday, October 27, 1951. On Tuesday morning, October 16, Hewitt told Cribb
he had reconsidered and wanted the part-time job. Cribb replied that he had
made a commitment for that job and that Hewitt could not have it. Hewitt's
employment ended on October 27.
On the credited testimony of Clifford Hemman, he, upon the suggestion of
Hoenes that there was a possibility of part-time employment as announcer
at Respondent's radio station, telephoned Cribb on either Tuesday, October 16,
or Tuesday, October 23, and made an appointment to see him at 5 p. m. either
Thursday, October 18, or Thursday, October 25. At the stated time on one or
the other of these later dates, Hemman met Cribb at Respondent's station and
was hired. He went to work on a part-time job involving about 2 hours time
5 evenings a week on either Monday, October 29, or Monday, November 5, 1951
Hemman resigned about February 22, 1952.
During the 4-week periods in 1951, set forth below, Respondent's revenue
income was in excess of that during equivalent periods in 1950 by the following
approximate amounts :
Period Ending Amount
January 20----- ----------------------------------------------- $3,600
February 17---------------------------------------------------- 4,400
March 17------------------------------------------------------ 5,800
April 14-------------------------------------------------------- 7,000
May 12--------------------------------------------------------- 6,000
June 9--------------------------------------------------------- 6,100
July 7---------------------------------------------------------- 4,600
August 4------------------------------------------------------- 3,900
September 1----------------------------------------------------- 6,300
September 29---------------------------------------------------- 4,600
December 22---------------------------------------------------- 1,500
January 19,1952------------------------------------------------- 900
Respondent's revenue income for the 4-week period ending October 27, 1951,
was $800 less than during the equivalent 1950 period and for the 4-week period
ending November 24, 1951, was $1,000 less than during the equivalent 1950
period. The next two periods ending December 22 and January 19, 1952, showed
gains over equivalent periods a year earlier of $1,500 and $900 respectively.
Respondent did not offer to reinstate Hewitt when its income revenue in-
creased in December 1951 and January 1952, when Hemman resigned, or at any
time since.
It is of no little significance , and I can scarcely believe in the light of the
previously alluded to expressions of opposition to the Union on the part of
Cribb and Cunningham that it is a mere coincidence, that both Warren Hewitt
and Robert Hewitt were discharged by Respondent about a month to 6 weeks
after each took prominent parts in the two representation hearings!
Although it was stated at the hearing that Respondent 's payroll records disclosed the
date Hemman entered Respondent 's employ, the records were not offered in evidence.
Cribb testified that Warren Hewitt assisted counsel for the petitioner throughout the
hearing in 14-RC-1331 . This hearing was held on April 5 , 6, and 7 , 1951 . On May 21,
1951, Cribb wrote Warren Hewitt that on and after May 26, 1951, Respondent would not
have work for him until further notice.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As recently as April 7, 1951, Kotkis was a new employee who had not yet
been assigned any duties in the control room and both he and Hildebrand were
less experienced announcers than Hewitt whose ability was extolled by Cribb
on October 13, 1951. Cribb testified that he prided himself on having a group
of interchangeable announcers and that Respondent could not operate without
a flexible broadcasting staff. Yet he declined to accept Hewitt's suggestion
(although to adopt it would have been an acceptance of standard practice in times
of poor business) that there be an apportioned cut in hours of all announcers,
thereby reducing operating expenses to the point Cribb thought necessary in
order that Hewitt might be retained.
Doubt is cast upon the motives actuating Respondent's resolution to cut costs
only at Hewitt's expense so precipitately upon its discovery that income was
for the first time falling off after a prosperous period when it had enjoyed, up
to the end of September 1951, an income of over $50,000 greater than during
the same period in 1950, and before waiting to see whether the dropping off
in October was likely to become permanent. As the situation developed, Respond-
ent's income started to increase to a point above the level of a year earlier
about a month after Hewitt was laid off.
It scarcely seems consonant with sound personnel policy that an employer
should, at the first sign of a possible recession, and before being able accurately
to forecast the future, risk depriving itself of the services of an employee of
Hewitt's worth. Even more inconsistent with normal principles of good man-
agement is the action of an employer who once has laid off a valuable employee
because of economic difficulties, which, though apprehended to be lasting, prove
to be transitory, in failing to recall him either then or when his part-time
successor resigns.
I find that Cribb's assertion that he did not accept Hewitt's offer and request
of October 16 to continue working, even though on part time, because he had
made a commitment to Hemman, is not the real reason for the refusal. As has
already been found Hemman was not employed by Cribb until either October 18
or 25, i. e., either 2 or 9 days after Cribb refused to allow Hewitt to continue
in Respondent's employ on any basis. Furthermore, even if, arguendo, it were a
fact that Hemman had been employed as early as by October 16 to start work
on Monday, October 29, to fill a vacancy that was expected to then arise,
it is most difficult to believe that upon learning Hewitt had decided to con-
tinue along, Cribb, if he had no ulterior motive, would not have notified
Hemman why the opening had become nonexistent.
When taken in combination, such factors and incidents as Cribb's inquiries
of Hewitt, Harvey, Hildebrand, Allen, and Hoenes about union activities ; his
statement that he was against unions in a small radio station; Hewitt's pos-
session of more seniority than at least three other announcers who were not
discharged ; Cribb's unwillingness to apportion work by shortening the hours
of all the announcers constituting a flexible staff ; the singling out of a
valuable employee such as Hewitt for layoff at a time when economic need for
personnel reduction was not definitely demonstrable ; the failure to recall him
when it became or should have become apparent that economic conditions were
improving or when his successor quit; and, the spurious reason given Hewitt
for not allowing him to continue working, when considered in the light of
Hewitt's having been discharged (as was Warren Hewitt also discharged
shortly after he likewise participated in a similar hearing) soon after he assisted
the Union's attorney in a representation proceeding , all conspire to lead me
to the conclusion that on or about October 13, 1951, and effective October 27,
1951, Respondent discharged Robert Hewitt and thereafter failed and refused
RADIO STATION KIIMO 37
to reinstate him for the reason that he joined or assisted the Union. I there-
fore find that Respondent thereby committed unfair labor practices within
the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and 7 of the Act.'
C. The alleged discriminatory reduction in number of work hours assigned to
James C. Hildebrand and Pat Harvey after July 12, 1951
The General Counsel seems to have gone no further than to have implied
at the hearing that the facts contained in the following stipulation might
support this allegation.
George Allen received ten cents per hour increase on April 29, 1951, and
since April 29, 1951, he has received fifteen cents per hour more than Pat
Harvey. George Allen was employed eight years ago by Radio Station
KHMO, and he has been employed continuously since that time except
for two or three months. Hildebrand received a five cents per hour raise
on June 9, 1951, and since June 9, 1951, he has received fourteen cents
per hour less than Pat Harvey. Hildebrand was employed by Radio Sta-
tion KHMO on February 12, 1951. Gene Hoenes received a ten cents per
hour raise on or about April 28, 1951, and since that time he has received
twenty cents more per hour than Harvey. Gene Hoenes has been em-
ployed by the station eleven years except for two years away at school,
except during the summer months. Alexander Kotkis received nine cents
per hour raise on August 11, 1951, and Kotkis has received since August
11, 1951, nine cents more per hour than Harvey. Kotkis was employed
by Radio Station KHMO on March 26, 1951.
Whatever may be concluded from the fact that Allen, Kotkis, and particularly
Hoenes were paid at higher hourly rates than Harvey, insofar as it relates
to the allegations (which will subsequently be discussed) that Harvey was pro-
moted to, and Hoenes demoted from , the position of supervisor in an attempt
to destroy the Union's majority, I am unable to discern anything in this stipu-
* In arguing the point that Respondent discriminated against Hewitt ( as well as the
point to be considered hereunder , that Respondent violated the Act by extending super-
visory authority to one employee and withdrawing it from . another ), the General Counsel
has drawn upon the briefs by counsel for Respondent In the two representation proceedings.
The General Counsel requested that the Trial Examiner take judicial notice of the Board's
record and decision in 94 NLRB 141 5 ( Case No. 14-RC-1331 ) and of the Board's record
and Decision and Direction of Election in 97 NLRB No. 185 ( Case No. 14-RC-1481). It
has long been the policy of the Board in cases involving the question of a union 's majority
to give controlling weight to findings made in earlier representation cases and not to
reconsider issues disposed of therein , in the absence of evidence which was newly discovered
or unavailable to a party . Goodyear Rubber Sundries, Inc., 92 NLRB 1382.
My conclusions with respect to the discriminatory discharge of Robert Hewitt have
been made entirely independent of anything contained in the orders and decisions and
directions in the two representation proceedings . As will appear later , however, I shall,
in connection with the allegations relating to the purported action of Respondent in
changing the status of Hoenes and Harvey for the purpose of destroying the Union's
majority , consider relevant aspects of the earlier proceedings.
The General Counsel offered in evidence as exhibits , briefs filed by Respondent in each
of the representation cases, primarily , it would seem , for the purpose of showing the
position of Respondent , or changes and inconsistencies in its positions , regarding Hoenes'
and Harvey 's status. At the hearing I reserved ruling with respect to this offer. I
now reject the exhibits which are numbered GC 4 and GC 5 and order their inclusion
in the list of rejected exhibits . The General Counsel has submitted no authorities, and
I have been unable to find any , that furnish precedents for allowing the consideration of
briefs as evidence . I feel it would be an intolerable rule if it were to be held that the
rights of clients could be divested by, or facts found on the basis of , possibly Improvidential
or Ill-considered expressions of their attorneys in other cases between the same parties.
Cf. Cadigan v. Crabtree, 192 Mass. 233, 78 NE 412.
250983-vol. 102-53--4
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lation that establishes the allegation that Respondent reduced the number of
work hours of Harvey or Hildebrand.
The General Counsel offered to prove that on given dates Allen, Hildebrand,
Hoenes, and Harvey were paid at certain hourly rates ; that Allen' s and Hoenes'
hourly rate of pay was more than Harvey's ; that Harvey' s was more than
Hildebrand's ; and that Kotkis' hourly rate was higher than Harvey's. Upon
objection I excluded this proffered evidence which would prove nothing more
than the stipulation just set forth, and the evidence concerning Harvey's pay
contained in General Counsel's Exhibits 6 A through 6 E.
Here again, it did not appear to me that even if it were shown that some
employees received more pay per hour than others, such a showing would con-
stitute any evidence, let alone substantial evidence, that the number of work
hours assigned to any employees was reduced.
Respondent's Exhibit "A" taken from the payroll record shows that during
the first 26 weeks of 1951, Harvey worked more than 48 hours a week on 10
weeks and during the last 26 weeks of 1951, he had 1 week of vacation, took time
off during another week (thus reducing the average number of hours worked
weekly during the last 26 weeks). The exhibit also shows that Hildebrand
constantly worked 48 hours a week each of the 19 weeks he was employed prior
to July 1951 and worked from 48 to over 49 hours a week on 11 weeks during the
period July 7 to September 29. During the remaining 13 weeks of 1951, Hilde-
brand worked from one-fourth of an hour to 5 hours less than 48 hours per week.
In my opinion the information respecting Hildebrand and Harvey contained in
these records when compared with the data, also shown thereon, relating to other
announcers, some of whom worked shorter hours than they, indicates that all
the mentioned employees were given substantially equal treatment in the number
of work hours assigned them. The fact that Kotkis worked longer hours than
any other announcer during 5 or 6 weeks in October and November 1951 Is
plausibly explained by his having been temporarily assigned to a special outside
mission of program development.
In view of the foregoing, I conclude that the General Counsel has not sustained
the burden of proving that Respondent has discriminated against James C.
Hildebrand and Pat Harvey in regard to their terms or conditions of employment
by reducing the number of work hours assigned to them, and, accordingly, I shall
recommend that this allegation of the complaint be dismissed.
D. The alleged extension to Pat Harvey of authority to hire, discharge, and disci-
pline other employees on or about September 1, 1951, for the purpose of having
him excluded from the unit claimed by the Union to have been appropriate and
the alleged withdrawal from Gene Hoenes of authority to hire, discharge, or
discipline other employees on or albout September 8, 1951, for the purpose of
having him included within the unit alleged by the Union to have been
appropriate
On January 15, 1951, the Union filed a petition for representation in Case No.
14-RC-1331 and on June 21, 1951, the Board entered a Decision and Direction
of Election (94 NLRB 1416). In this case Respondent unsuccessfully attempted
to prove that Hoenes was not a supervisor. On July 11, 1951, the Union filed
another petition for representation in Case No. 14-RC-1481 and on January 18,
1952, the Board entered a Decision and Direction of Election (97 NLRB No. 185).
In this case Respondent again unsuccessfully attempted to prove that Hoenes
was not a supervisor , and the Union unsuccessfully attempted to prove that
Harvey was not a supervisor. Accordingly at the time of the Board election on
RADIO STATION KHMO 39
February 15, 1952, neither Hoenes nor Harvey were eligible to vote. The General
Counsel apparently concedes that in view of the Board's findings in the repre-
sentation proceedings, it is not open in the instant case to review such findings
or the evidence on which they were predicated for the purpose of determining
anew whether, in fact , either Hoenes or Harvey were rank-and-file employees or
supervisors. Rather, it is the position of the General Counsel that the motive of
Respondent in unsuccessfully attempting to show that Hoenes was a rank-and-file
employee and its motive in announcing on September 8, 1951, only 4 days before
the start of the second representation hearing that Hoenes' supervisory authority
was withdrawn, was to place an employee hostile to the Union within the voting
unit for the purpose of destroying the Union's majority and hence an interference
with and a restraining and coercion of its employees in the exercise of the rights
guaranteed them in Section 7 of the Act thereby constituting an unfair labor
practice within the meaning of Section 8 (a) (1) of the Act. Likewise, it is
General Counsel's contention that Respondent's motive which resulted in its
successfully showing that Harvey was a supervisor and its motive in extending
supervisory functions to Harvey in late August or early September 1951, was
to remove an employee friendly to the Union from the voting unit, for the purpose
of seeking to destroy the Union's majority, and hence also an interference with
and a restraining of its employees in the exercise of the rights guaranteed them
by the Act.
In 14-RC-1481 (97 NLRB No. 185) the Board on January 18, 1952, found as
follows:
Gene Hoenes: The Petitioner would exclude him as a supervisor. In an
earlier case involving this Employer, the Board held Hoenes, then the
program director, to be a supervisor' Since the hearing in that case, held
on April 5, 1951, Hoenes has received a pay increase , and is now the highest
hourly paid employee at the station. Four days before the hearing in this
case he was informed by the station manager that his duties were changed,
and that he was no longer program director ; it was not shown that any
one was hired to take his place. The record indicates, however, that
Hoenes' duties have remained virtually unchanged. Hoenes testified to
this effect, as well as to instances between the time of the alleged change
in his status and the hearing when he directed the work of other announcers.
On the basis of the entire record, it is apparent that Hoenes still exercises
supervisory authority. We find, accordingly , that he is a supervisor, and
shall exclude him.
1 Radio Station KHMO , 94 NLRB 1416.
In the absence of evidence respecting Hoenes ' status in the instant case which
was newly discovered or unavailable in 14-RC-1481 (97 NLRB No. 185), I find
that Hoenes is a supervisor and that he should be excluded.
In 14-RC-1481 (97 NLRB No. 185) the Board on January 18, 1952, found
as follows :
Pat Harvey: The Employer would exclude him as a supervisor. Harvey's
principal duty is announcing. He also is in charge of the music library,
where 2 female clerks work full time; for this additional work he receives
$10.00 extra per week. He testified that the Employer requested him to
hire replacements for the music library , but that he refused to do so, inform-
ing the station manager that hiring personnel was not one of his duties.
Although Harvey may not as yet have exercised his authority to hire other
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, it is clear that he is empowered to do so. In this circumstance,
and in view of the further fact that he is otherwise in charge of the library,
we find that he is a supervisor, and shall exclude him from the unit.
Such additional evidence (later referred to) as Harvey gave in the instant case
tends to support this finding.
No newly discovered evidence or evidence unavailable ° on September 12, 13,
and 14, 1951, was offered. I therefore find that Harvey, as he virtually
acknowledged in his testimony on April 26, 1951,9 is a supervisor and that he
should be excluded from the unit.
Despite the fact that he was excluded from the unit by the Board' s Decision
and Direction of Election dated January 18, 1952, Harvey presented himself
at the election on February 15, 1952, and his ballot was challenged. It does
not appear that Hoenes attempted to vote. In sum , it is the General Counsel's
contention that Respondent's unsuccessful endeavor to lower the status of
Hoenes and its successful effort to raise the status of Harvey violated the Act
because the attempts were undertaken for the purpose of placing one in the
bargaining unit and removing the other from the unit 10
This theory presupposes a finding that Respondent did in fact know or believe
that Hoenes would vote against the Union and that Harvey would vote for the
Union. It is a fair inference that the Union knew which employees favored it
and which opposed it. The interrogational statement to Cribb by the General
Counsel to the effect that as a practical matter there had not been very much
fraternization between Hoenes, Allen, Kotkis, and Drennan on the one hand,
and Harvey, Hewitt, and Hildebrand on the other, furnishes at least an indication
that the Union knew or believed that the latter three were its supporters, and
the former four its opponents. At both representation proceedings the Union
sought without avail, to exclude one of these four, George Allen, and at the
second hearing unsuccessfully contended that three other employees should be
excluded. In 14-RC-1481 (97 NLRB No. 185), as amended by its order of
January 30, 1952, the Board held :
George Allen : The Petitioner would exclude Allen, a regular announcer,
as a supervisor. The Board rejected this same contention as to Allen in
the earlier proceeding. There is no evidence in the record that he possesses
or exercises any supervisory authority. He testified, in effect, that his duties
have not changed since the hearing in the earlier case. In the absence of
evidence of supervisory authority, we find that Allen is not a supervisor
and we shall include him.
Although it might be suspected that each party tried to "rig up" a unit to
satisfy its own ends, no question is raised in these proceedings as to the Union's
motives in attempting to have excluded employees whom it might be argued it
believed to be hostile.
An inference that Respondent was equally aware with the Union of employees'
predilections is not so readily drawn.
Harvey testified that around the latter part of January 1951 in response to
Cribb's inquiry whether he knew anything about a union organizational attempt
8In neither 14-RC-1331 (94 NLRB 1416), 14-RC-1481 (97 NLRB No. 185), nor in the
instant cases was there offered the evidence of Beatrice Bartram , Mary Turner, Mary
Alice Cribb, or Cribb's secretary , all of whom worked either full or part time in the music
library, where Harvey testified in 14-RC-1331 (94 NLRB 1416) it was his responsibility
to see that the correct types of music were put on the air and to tell people in the library
"under my supervision" what music they should pick.
8 See quoted portion note 8, supra.
10 See Continental Oil Company, 95 NLRB 358, where it was found unnecessary to pass
upon a somewhat similar contention.
RADIO STATION SHMO 41
he "said to Mr. Cribb that I did not know anything about it ... that I myself,
personally would not try to instigate such a move because I wouldn't want to
jeopardize my position with the Company." There was no evidence that Re-
spondent knew Harvey had signed a union representation authorization on
July 8, 1951. Cribb testified that around January 23 or 24 he asked Hoenes if
he knew about the Union's petition in Case No. 14-RC-1331 and that Hoenes said
he did not know anything about it at the time. The record contains no other
direct evidence of knowledge on the part of Respondent of either abstention
from or participation in union activities on the part of Hoenes or Harvey."
Harvey also testified that he received a $10 increase for taking the place
of Harold Hohner as music librarian ; that it was his duty and responsibility
to see to the right selection of music for the various programs; that he had
daily talks with the girls about matters in the library ; that he talked to them
about indexes they were preparing; that the indexes are in better shape than
they were before Hohner resigned ; that he informs himself concerning the
B. M. I. and ASCAP and passes such information on to the girls who work
in the library, and that the latter part of August 1951 he was asked by Cribb
to talk to an applicant for employment in the music library, and told by Cribb
that if the applicant was satisfactory to Harvey, he could start her working at
75 cents an hour.
There is no evidence that since the Board 's decision of January 18, 1952, in
Case No. 14-RC-1481 (97 NLRB No. 185) there has been any withdrawal from
Harvey of his authority to hire other employees or his otherwise being in charge
of the music library.
The record in the instant case does not disclose that since January 18, 1952,
the date of the Board's Decision and Direction of Election, has anyone been
hired to take Hoenes' place or that his duties have not remained virtually un-
changed since that time.
General Counsel's Exhibits 6 A through 6 EE disclose that Harvey is paid
$46.40 regular pay for 40 hours a week, i. e., at the rate of $1.16 per hour. By
stipulation it is agreed that George Allen is paid 15 cents per hour more than
Harvey, i. e., at the rate of $1.31, and Alexander Kotkis is paid 9 cents per hour
more, i. e., at the rate of $1.25.
In his brief, the General Counsel states that Harvey is earning less than Allen
and Kotkis and argues that the suggestion that Harvey, who is earning less
than some of the other announcers , is a supervisor is a novel one. During the
last 26 weeks of 1951 Harvey averaged 48.86 hours a week, Allen averaged 48.35
hours a week, and Kotkis 49.1. (As appears above there was a period of about
6 weeks in the autumn of 1951 when Kotkis was assigned to an outside promo-
tion and programming job upon which he reported working from 5630 to 6132
hours a week.) Taking 48 hours a week as a fair average approximate amount
of hours each of these three men worked during the period in question we find
that (1) Harvey received $70.32 a week (40 hours @ $1.16 an hour is $46.40;
8 hours @ $1.74 an hour is $13.92; $10 a week for library work found by the
Board to have been supervisory) ; (2) Allen received $68.12 a week (40 hours
@ $1.31 an hour is $52.40; 8 hours @ $1.96%/2 an hour is $15.72) ; (3) Kotkis
received $65 a week (40 hours @ $1.25 an hour is $50; 8 hours @ $1.871/2 an
hour is $15).
Thus it appears that the General Counsel 's statement that Harvey is earning
less than the other announcers is in error. The fact is that he earned more
41I consider that the testimony of Respondent 's objection to announcers, including
Harvey, congregating in the control room furnishes no substantial basis for concluding
Respondent was aware of Harvey's membership or any activities he may have engaged in
(and there was no evidence that he did so occupy himself ) , in behalf of the Union.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than any other employee doing announcing with the exception of Hoenes. The
actual average number of hours put in weekly by Hoenes during the period was
52%. Thus his average weekly earnings were $80.41 (40 hours @ $1.36 per
hour is $54.40; 12% hours @ $2.04 per hour is $26.01)." The difference of $10
per week in the pay of Hoenes who has been employed by Respondent for 11
years and Harvey who has been employed less than 3 years does not strike me
as convincing proof either that Hoenes is a supervisor and Harvey is not or
that Respondent's advice to Harvey that he possessed authority to hire and fire
and to Hoenes that he no longer possessed authority to hire and fire, were acts
of bad faith constituting interference, restraint, and coercion of a character
proscribed by the Act.
The fact that Respondent purported to withdraw supervisory authority from
Hoenes in September and added to Harvey's responsibilities shortly before that
date, and the timing of these events so soon before the second representation
proceeding gives rise to a suspicion that such action was ulteriorly motivated.
These factors were in existence on September 12, 13, and 14, 1951, and of course
may be presumed to have been given consideration by the Board in weighing
the evidence received at the hearing held on those dates and in arriving at its
Decision and Direction of Election on January 18, 1952. That decision imports
a finding that Harvey is vested with the genuine attributes of a supervisor.
How far the suspicious timing factor in Respondent's purported reduction of
Hoenes to the ranks led the Board to conclude he nevertheless continued to be a
supervisor, must remain a matter of conjecture. In any event, it would not
seem that the Union should be heard to complain that the very end it sought,
to wit, to have Hoenes excluded from the voting unit, was achieved by the
Board's order. Nor do I suppose that it was the intention of the framers of
the Act to superimpose upon a party found to have failed to have established a
contention it urges before the Board, a special additional finding of the com-
mission of an unfair labor practice predicated on its having offered testimony
which is not credited or its having assumed a position found to be unmeritorious.
In expressing this supposition, I do not mean to imply that in a situation where
a party has fraudulently caused the Board incorrectly to reach a conclusion
favorable to itself, there can be no remedy.
The burden rests upon the General Counsel to prove every material intend-
ment of the allegations. In weighing all the substantial evidence and such
inferences as I feel may reasonably be drawn therefrom, I am not satisfied,
for reasons already adumbrated, that he has proven by a preponderance of the
testimony that Respondent advised Pat Harvey that he possessed the authority
to hire, discharge, and discipline other employees for the purpose of having
been excluded from the unit alleged appropriate by the Union and did thereby
engage in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act; nor am I satisfied that Respondent advised Gene Hoenes that he did not
have authority to hire, discharge, or discipline other employees for the purpose
of having him included within the unit alleged appropriate by the Union, rather
than for reasons of improving plant efficiency as asserted, and did thereby en-
gage in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act. Therefore I am constrained to recommend that these allegations be
dismissed."
"For a 48-hour week Hoenes ' weekly earnings would be $70.72 or only 48 cents more
than Harvey's.
is Bryan Manufacturing Company, 94 NLRB 1331 , 1335 ; See Vail Manufacturing Com-
pany, 61 NLRB 181.
RADIO STATION KIIMO 43
E. The alleged interrogations of employees concerning their union afflliations and
activities, and threats or warnings of employees to refrain from becoming
members of, or remaining members of, the Union
In section III, A, of this report I outlined the reasons leading me to conclude
that no findings with respect to interrogations, threats, and warnings asserted to
have occurred on dates prior to July 12, 1951, should be made.
Since the record in this case does not show that Respondent has engaged in any
conduct of this character since July 1951, I shall recommend that the allegations
of the complaint that Respondent interrogated its employees concerning their
union affiliations and activities and threatened and warned its employees to re-
frain from becoming members of, or remaining members of, the Union be dis-
missed.
Iv. THE EFFECT OF THE LABOR PRACTICES UPON COMMERCE
The activities of Respondent occurring in connection with the operations of
Respondent set forth in section I, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Since it has been found that Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
I have found that Respondent discriminatorily discharged Robert Hewitt on
October 13, 1951, and has since failed and refused to reinstate him to his former
or substantially equivalent position.
I will recommend that Respondent offer Robert Hewitt immediate and full
reinstatement to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges. It will further be recom-
mended that Respondent reimburse him for any loss of pay suffered by reason of
the discrimination against him. Said loss of pay based upon earnings which he
would normally have earned from October 27, 1951, the day Hewitt was laid off, to
the date of Respondent's offer of reinstatement, less net earnings , shall be com-
puted on a quarterly calendar basis in accordance with the formula adopted in
F. W. Woolworth Company, 90 NLRB 289.
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. International Brotherhood of Electrical Workers, Local Union No. 1272,
A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act
and admits to membership employees of the Respondent.
2. By discriminating in regard to the hire and tenure of employment of Robert
Hewitt, thereby discouraging membership in International Brotherhood of Elec-
trical Workers, Local Union No. 1272, A. F. L., Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the Act.
3. By the above unfair labor practices, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has not discriminated against James C. Hildebrand and Pat
Harvey in regard to their terms and conditions of employment by reducing the
number of work hours assigned to them.
6. Respondent has not interrogated its employees concerning their union activ-
ities or threatened or warned its employees to refrain from becoming members of,
or remaining members of the Union.
7. Respondent did not advise Pat Harvey that he possessed the authority to
hire, discharge, and discipline other employees for the purpose of having him ex-
cluded from the unit alleged to be appropriate.
8. Respondent did not advise Gene Hoenes that he no longer possessed author-
ity to hire, discharge, or discipline other employees for the purpose of having been
included within the unit alleged to be appropriate.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations 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:
WE WILL NOT discourage membership in any labor organization of our
employees, by discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for
the purpose of collective 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 organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of the
National Labor Relations Act.
WE wiLL offer Robert Hewitt immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discrimination.
All our employees are free to become, remain , or refrain from becoming or
remaining, members of any labor organization, except to the extent that such
right may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3) of the
National Labor Relations Act. We will not discriminate against any employee
because of membership in or activity on behalf of any such labor organization.
COURIER POST PUBLISHING COMPANY,
D/B/A RADIO STATION KHMO
Employer.
By ----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.