Salinas Valley Broadcasting Corp.

National Labor Relations Board - Board Decisions

Jan 25, 1963

140 N.L.R.B. 852 (N.L.R.B. 1963)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and reaffirm it. I have not premised any finding of a violation on testimony elicited
after a witness ' recollection was refreshed by reference to a statement or affidavit.
I have reviewed my other findings of violations of Section 8(a) (1) of the Act and
I hereby reaffirm them . My findings of a discriminatory discharge of Bennie Hill
were not involved in the May 31 , 1962, hearing since the testimony was not con-
nected with evidence gathered by Miller by the technique of taking statements of
prospective witnesses . The testimony supporting the findings and conclusions of
Hill's discriminatory discharge was that of the testimony of Respondent's witnesses
Julius and Jacob Levitt, Harvey Anglin , and Dan Connally Lyle, corroborated by
the testimony of Hill. Affidavits of the Levitts and Anglin were taken by Respond-
ent's counsel and furnished to the General Counsel . General Counsel did not take
Lyle's statement or interview him prior to his testifying for Respondent . The evi-
dence is that he gave no statement to anyone . Hill's statement was not taken by
Miller but by another attorney on the General Counsel 's staff.
I find and conclude that the evidence taken at the May 31 , 1962, hearing pursuant
to the remand of the Fifth Circuit and the Board , and the other evidence, do not
constitute grounds for changing my ultimate and concluding findings, conclusions of
law, recommended order , and notice in this case.
RECOMMENDATIONS
For the reasons stated in my analysis and concluding findings, it is recommended
that the Board affirm the Decision and Order it issued in this case on March 7, 1960.
Salinas Valley Broadcasting Corporation and/or Central Valley
Communications Corporation , d/b/a KSBW-TV i and Ameri-
can Federation of Television and Radio Artists, San Francisco
Local , AFL-CIO. Case No. 20-CA-2228. January 25, 1963
DECISION AND ORDER
On September 6, 1962, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the 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 Intermediate Report.
The Trial Examiner also found the Respondent had not engaged in
certain other unfair labor practices and recommended that the com-
plaint be dismissed as to such allegations. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief?
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 [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
i The name of the Respondent appeared as Salinas Valley Broadcasting Corporation in
the complaint . However, it appears from Respondent 's answer to the complaint that
Central Valley Communications Corporation is a successor corporation.
2 The Respondent 's request for oral argument is denied , as the record , including the
exceptions and brief, adequately presents the issues and positions of the parties.
140 NLRB No. 77.
KSBW-TV 853
the case, and hereby adopts the Trial Examiner's findings,3 conclusions,
and recommendations, as modified herein'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the modification noted below.'
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the Respondent has violated
Section 8(a) (3) of the Act with respect to Tidey, Chambers, and
Pearlman.
S The Respondent moves to dismiss the complaint on the ground that the General Counsel
failed to prove certain jurisdictional allegations of the complaint . The complaint alleged
that the Respondent paid in excess of $10,000 for interstate news services and in excess
of $25,000 for rental of syndicated films and other broadcast materials shipped to it from
outside the State of California , whereas it was stipulated at the hearing that only $8,346
and $16,246 , respectively , was paid We find the Respondent 's contention without merit.
The Respondent does not dispute that it received gross revenue from the sales of its
services in excess of $500,000, of which in excess of $100,000 was received from customers,
located outside the State of California , who advertised nationally sold products The
variation in the proof with respect to Respondent's inflow is, in the circumstances, im-
material We find that the Respondent is engaged In interstate commerce , and that it
will effectuate the policies of the Act to assert jurisdiction herein Accordingly, the
motion to dismiss the complaint on jurisdictional grounds is hereby denied.
4 No exceptions were filed to the Trial Examiner 's dismissal of the cases of Tidey,
Chambers , and Pearlman. While we are dismissing the complaint ' s allegation as to Tidey,
we do not adopt that portion of the Intermediate Report wherein the Trial Examiner
recommends that such allegation be dismissed "without prejudice to its renewal at a later
date If the circumstances warrant such action."
s Backpay shall include the payment of interest at the rate of 6 percent to be computed
in the manner set forth in lass Plumbing & Heating Co., 138 NLRB 716.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding involves allegations that Salinas Valley Broadcasting Corpora-
tion and/or Central Valley Communications Corporation , d/b/a KSBW-TV, herein
called the Respondent , violated Section 8(a)(1) and ( 3) of the National Labor
Relations Act, as amended , 61 Stat . 136, 73 Stat . 519, herein called the Act, and
is based upon an amended complaint issued by the General Counsel of the National
Labor Relations Board , herein called the Board , on April 24, 1962, and a charge
and a first amended charge filed by American Federation of Television and Radio
Artists, San Francisco Local, AFL-CIO, herein called AFTRA or the Union, on
February 12 and March 16, 1962, respectively . The Respondent in its duly filed
answer denied the commission of the alleged unfair labor practices . A hearing,
with all parties represented and participating , was held on May 15, 16, 21 , 22, and
23, 1962 , at Salinas, California , before Trial Examiner William E. Spencer. On
or before July 12, 1962, the General Counsel and the Respondent filed briefs.
Upon consideration of 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
The Respondent, a California corporation, is engaged in commercial radio and
television broadcasting, with facilities in San Luis Obispo, Hanford, and Salinas,
California. The Salinas facilities , operated under the radio and television call letters
KSBW, are the only ones involved herein . During the past year Respondent re-
ceived gross revenue from sales of its services in excess of $500,000, in excess of
$100,000 of the said receipts coming from customers located outside the State of
California and engaged in advertising national products . During the same period
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent paid the amount of $8,346 for interstate news services and the amount
of $16,246 for rental of syndicated films and other broadcast materials shipped to it
from outside California.
II. THE LABOR ORGANIZATION INVOLVED
AFTRA, the Charging Party herein, is a labor organization within the meaning
of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The case setting
Immediately prior to January 24, 1962, the Respondent employed at its radio
and television station in Salinas, California, the following staff announcers: Clete
Toone, Mark St. John, Richard Logan, Keith Bryden, Richard Donald Chambers,
John Cohan, Gary Ferlisi, Arthur Tidey, Ed Turney, and Richard Pearlman.
Cohan was Respondent's president and general manager ; Logan and Ferlisi super-
visors vested with authority to hire and discharge, Logan in radio, Ferlisi in televi-
sion ; Bryden was Respondent's operation manager in radio. Mike Morisoli, pre-
viously in Respondents employ, was reemployed in early January, and testified he
thought he began announcing between January 20 and 25. While undoubtedly
records were available to show whether he actually began announcing during that
period, no such records were sought or produced. John Barr, variously described
as Cohan's assistant and assistant to Caryl Coleman, formerly Respondent's director
of creative services, was advanced to take Pearlman's place when the latter was
discharged, the discharge to become effective February 2. There is no evidence that
he actually assumed the status of staff announcer prior to January 29, the last day
that Pearlman worked. I find that as of January 24, 1962, there were on active
duty as staff announcers the following nonsupervisory employees: Toone, St. John,
Chambers, Tidey, Turney, and Pearlman. Tidey, Turney, and Pearlman were pri-
marily television announcers; Toone, St. John, and Chambers, radio.
This case involves, principally, the Respondent's discharge of Toone, St. John,
Chambers, and Pearlman; the leave of absence required of Tidey, allegedly a con-
structive discharge; and the discharge of Robert Erickson, a photographer. All of
the aforesaid actions are alleged to have union activities as their moving cause. All
occurred in the period January 22 through February 15, 1962.
The Respondent denied generally knowledge of the identity of its employees par-
ticipating in an organizational movement and all knowledge of union activities out-
side the filing of an election petition, a copy of which reached it on January 26;
claims that there were numerous discharges and reassignments of personnel other
than those named in the complaint, resulting from a reorganization plan discussed
and formulated in December 1961; and, with respect to the individuals named in
the complaint, advanced causes unrelated to union or concerted activities as the
sole motivation in the action taken with respect to each of them.
B. Union activity and Respondent knowledge
In November 1961, there was discussion among some of Respondent's announcers
of the desirability of union representation. On December 27, a meeting attended
by an officer of the National Association of Broadcast Engineers and Technicians,
hereinafter called NABET, and announcers St. John, Toone, Turney, Pearlman,
Tidey, and Harry Davies, was held at Toone's home. The discussion centered on
possible affiliation with NABET; NABET authorization cards were signed.
On December 30, another meeting attended by some of the announcers, Pearlman,
Tidey, and Turney, and Richard Williams, Robert Erickson of the photographic
department, and John Barr, an assistant to Cohan, was held at the home of Caryl
Coleman, Respondent's director of creative services, admittedly of managerial status.
Barr, apparently an assistant to Coleman also, was, according to the latter, in train-
ing for a transfer into managerial status. A general discussion of union affiliation
and choice of unions for representation occurred at this meeting and the employees
sought Coleman's advice. Coleman, an unwilling host at the meeting, appears to
have held himself aloof from the discussion. At the time of his testifying he had
voluntarily severed his connection with the Respondent and appeared to be on
amicable terms with its officers.
Coleman testified on direct examination that following the meeting at his house
he had three separate conversations with Respondent's president and majority share-
holder, Cohan, in which unions were mentioned. The first of these, about a week
after the meeting in his home, occurred in Cohan's office. Cohan said he had infor-
mation that some of his employees intended "trying to institute a union within the
station," and asked Coleman if he had heard anything about it and who might be
KSBW-TV 855
involved. Coleman imparted no information. "I do recall," he testified, "that Mr.
Cohan said he felt that this, he considered this a breach of faith, inasmuch as he
and the company had attempted at all times to do everything possible to make
conditions as good as they could be for the employees." He further testified on
direct examination, "I believe he said that he had heard that there were six involved,
five or six, I have forgotten which." At a later meeting with Cohan, Cohan said "He
still had no idea what or who was involved or exactly what it was, or for that
matter, how it could possibly have any validity," and again asked Coleman what
he knew of the matter. Again, Coleman volunteered no information. A week or
two later, Cohan again spoke to Coleman about the matter, said he still had not
the "faintest idea" who or what was involved, and observed that if the employees
wanted a union, "I will not fight it, but I hope you understand that if such a thing
is considered, they are placing me in the position of demanding a far greater level
of efficiency than I have ever been able to demand from them."
On cross-examination Coleman became confused about the dates of his three con-
versations with Cohan regarding the union activities of employees and on leading
questions admitted that the first of the conversations could have occurred after
Cohan had received a union petition for certification, filed on January 24. Con-
sidering the tenor of the several conversations he had with Cohan, I consider it
highly unlikely that it was only after Cohan had received the union petition that he
discussed the matter of organizational activities with his director of creative services.
Had this been the fact, the second or third conversation, weeks apart, would be
meaningless in the light of developments. In the giving of his testimony Coleman
appeared to be walking a tightwire in attempting to give offense neither to his
former employer nor to the discharged employees with whom he obviously was on
friendly terms. I think the sequence of his conversations with Cohan given in his
direct testimony, in answer to nonleading questions, represented his best and clear-
est recollection of that sequence, and I find that his first conversation with Cohan
in which organizational matters were discussed, occurred about a week after the
December 30 meeting in his home. Contrary to Cohan's testimony, I am convinced
that early in January 1962, Cohan was aware that something was afoot among his
employees with respect to union affiliation, but I further find, in accord with Cole-
man's testimony, that the latter did not reveal to Cohan his own knowledge of this
activity and the personnel engaging in it . It must be remembered, however, that
Barr, variously described as Coleman's assistant and/or Cohan's assistant also
attended the meeting in Coleman's home, and when Coleman asked him to clarify
lust where he, Barr, felt he belonged in an organizational movement, Barr replied,
"Well, for your information, I don't belong in it, I want no part of it. If it comes to
a vote, I will vote against it." Barr, no longer employed by the Respondent, did not
testify and there is no evidence that he reported to Cohan on organizational activities,
but his attendance of the meeting at Coleman's home is nevertheless pertinent to
the issue of company knowledge because in a comparatively small and close-knit
organization such as Respondent's, with most or all of the nonsupervisory staff of
announcers involved, and some members of the photographic department, it is
entirely likely that such activities would become a matter of general and common
knowledge throughout the organization, a likelihood increased when one of the
meetings was held at the home of Respondent's director of creative services and
was attended by one in training for managerial status who "wanted no part of it."
On January 17, 1962, Toone, Turney, Tidey, and Erickson met with representa-
tives of NABET and the American Federation of Television and Radio Artists at a
local motel, and at this meeting it was decided that AFTRA could best represent
Respondent's announcers in collective bargaining. Toone, Turney, and Tidey signed
AFTRA authorization cards at this meeting. St. John and Pearlman signed cards
on the following day. Erickson, of Respondent's photographic department, was
not eligible for inclusion in the AFTRA unit and, accordingly, did not sign an
authorization card
About January 19, Cohan approached Turney while the latter was working and
asked him "about the morale of the employees there." The conversation was con-
tinued in one of the radio offices, pursuant to Cohan's suggestion. There, Turney
told Cohan that he thought the "main problem" was that the men wanted to feel
secure and to look forward to an increase in salary, and were upset, "the announcers
mainly," because they had not received a larger Christmas bonus. The conversation
was continued, again at Cohan's suggestion, in the latter's office, where Cohan asked
Turney, "Well, do you think the boys want a union?" Turney professed to no knowl-
edge in the matter, and Cohan said, "It wouldn't be any good for him"; that if he
had a union the employees would lose out on some of the benefits they were then
receiving and instead of having two men on the job he would "only be able to afford
one."
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 24, AFTRA filed its election petition, purporting to represent five of
Respondent's announcers.
There can be no doubt of course that after Cohan's receipt of AFTRA's election
petition on or about January 26, he was not only aware that his employees were en-
gaged in organizational activities but that these activities involved his announcer staff.
Pearlman's testimony that Supervisor Logan, on or about January 28, asked him who
the "trouble makers were," and on receiving no response, then asked if they were not
Tidey, Turney, Toone, and St. John, merely confirms what the Respondent might well
infer from the filing of the election petition, as would his further testimony that
Cohan asked if those responsible for the "trouble" at the station were Tidey, Toone,
St. John, and Williams. Logan denied statements attributed to him by Pearlman, as
did Cohan, the latter testifying, in effect, that he was too sophisticated in labor rela-
tions to have engaged in the interrogation attributed to him. Logan, who, according
to Pearlman, characterized unions as "those dirty SOB's" and who, earlier, according
to Chambers, referred to union talk as "commie talk," and, according to Toone, told
Toone, when Toone asked about a talent fee, that Toone talked "like a communist or
a union man," was, I am convinced on observing him as a witness, quite capable of
making such comments, despite his own former union affiliations and the union
affiliations of members of his family,' and inasmuch as Pearlman, who following his
discharge notice on January 22, was looking to Logan and Cohan for a job reference,
I do not find it incredible, as does Respondent's counsel, that they would attempt to
"pump" him concerning the instigators and prime movers of the organizational
activities I credit Pearlman. I do not think, however, that Pearlman's testimony con-
tributes much to the matter of company knowledge over that which would be in-
ferred from the filing of the Union's petition, and Cohan's conversations with Cole-
man and Turney.
Finally, with respect to company knowledge, there is a telephone conversation
which Cohan had with John B. Rushmer, president of a local broadcasting station,
after Cohan's receipt of the Union's petition, in which Cohan made reference to union
activities among his personnel and mentioned the names of Chambers, Toone, St.
John, and one Hud Stevens, among others, as being suspected by him of involvement
in-the union movement.
C. The discharges 2
Pearlman was given a 2 weeks' termination notice on January 22, 1962, worked
through January 29, and was paid to February 2. Chambers who attended none of
the organizational meetings and signed no union cards, was discharged by his super-
visor, Logan, on January 26. St. John was discharged by Cohan on February 7;
Toone and Erickson on the same date. Tidey, at the direction of Cohan, took a
leave of absence beginning about February 15 and has not thereafter returned to
Respondent's employ . Turney , who participated in organizational activities and
signed an AFTRA card, voluntarily left Respondent's employ February 9. Some
time previous to this date he had informed Cohan that as soon as his tour of duty
was over at Fort Ord, where he was stationed while in Respondent's employ, he
would be leaving. Williams, of Respondent's -photographic department, who at-
tended the meeting at Coleman's house on December 30, voluntarily left Respondent's
employ on March 9. As of this date all of Respondent's employees who had engaged
in organizational activities had either quit Respondent's employ or had been dis-
charged or put on leave.
We turn now to a survey of the individual discharges.
Sheldon Richard Pearlman: Pearlman, who had lost an arm in an accident, was
employed at Respondent 's television station as an announcer in September 1960.
While he was employed as a staff announcer, his chief performance before the tele-
vision cameras was as Captain Hook in a show for children called "Ahoy Mates."
It appears that the show was created especially for him, Cohan having brought him to
Salinas when the Respondent acquired another station where Pearlman was then em-
ployed and where it was not feasible to continue his employment Concerning his
'Loran's testimony that he formerly was affiliated with a labor organl7atlon and had
a withdrawal card Is not of itself Indicative of pro- or anti -union bias, since his affiliation,
for all that we know, may have been required under a union - shop contract With resnect
to his father's and brother ' s union affiliation , he was careful to stress his own managerial
status which set him apart from them In the matter of eligibility for union membership
Pearlman may have been mistaken as to the date , but not the test, of Loran ' s remarks
2 While agreeing only in part with his evaluation of the evidence and conclusions drawn
therefrom , I wish to acknowledge my Indebtedness to Respondent 's able counsel for his
carefully composed and documented brief which has materially assisted me in assembling
and appraising the rather voluminous evidence taken in this matter
KSBW-TV 857
duties, generally, Pearlman testified: "I did a kiddy show. I was known as Captain
Hook. I introduced films and read commercials . I did some booth announcing.
I wrote promotion copy for the announcers. I pulled copies to be read for the next
day, commercials and promotion copies. I loaded slides that were aired and also
I loaded projector cells." He admitted that he did only about 2 hours a day of ac-
tual announcing, the major portion of which occurred in his role as Captain Hook.
In 1961 Pearlman suffered a paralysis of a nerve on the left side of his face which
prevented the facial muscles from moving in a normal manner . This illness resulted
in considerable absence from his work and a continued need for medical attention.
His children 's show, which had a high audience popularity rating to start with,
dropped from 19-20, a good rating, in November 1960 to 11-13, a poor rating, in
November 1961. A November 7, 1961, memorandum from Cohan to Ferlisi stated:
"In our program department we need a personality to do the children 's program
who can also sell the spots in the program and service the accounts " Further, ac-
cording to Cohan and Ferlisi , Pearlman's inadequacies and limitations were discussed
in the management meeting of December 1961, and Cohan directed Ferlisi to re-
place Pearlman as soon as a suitable replacement could be found . Cohan testified
that in December he told Ferlisi that he would have to get rid of Pearlman and
another employee , Simon , because "we were weak in our television program depart-
ment." Pearlman and Simon were discharged by Ferlisi on the same day.
Ferlisi testified that the discharge was predicated partly on the poor quality of
Pearlman 's kiddie show, "but also the fact that we were not able to utilize Mr.
Pearlman in other areas," and he felt that the expense of paying Pearlman his salary
for doing an hour and a half children 's show was not warranted by the revenue de-
rived from the program . He admitted that Pearlman performed in other areas but
not to the degree that another person might have."
On January 22, Ferlisi gave Pearlman his discharge notice, the discharge to become
effective in 2 weeks . Concerning the interview with Ferlisi , Pearlman testified: "He
was sorry that he was terminating me, but . . . the ratings of the show had dropped
and ... they just couldn't afford to keep me on." Cohan testified that the decline of
popularity ratings of the Captain Hook show was not the "particular" reason for the
discharge . "We couldn 't afford to pay his salary ," he testified , "for his only being
on the air an hour and a half a day, and no other usage of him because he was having
to occupy his time with books, which is the continuity records that the announcers
use, and other things which could be done and are done now by a secretary."
Pearlman testified that he had never been criticized or warned about his work,
and that Cohan on numerous occasions in introducing him to visitors to the studio
would say, "This is one of the most popular shows we have on TV."
Pearlman actually worked through January 29 and was paid to February 2. Ac-
cording to his credited testimony , on the morning of January 28, Supervisor Logan
came to his house, said Cohan had heard some bad things about Pearlman , and that he
was a troublemaker and trying to stab him, Cohan , in the back . He asked Pearlman
who the "trouble makers" were, and then inquired specifically of Tidey, Turney,
Toone, and St. John. Logan said if the reports about Pearlman were not true, he
had better see Cohan and deny them , because Cohan had a lot of influence and could
help him find a job. Further , according to Pearlman , Logan said that if the Union
came in they would not be able to reorganize their television news service as planned,
and referred to unions as "those dirty s.o.b .'s." With respect to the discharge Logan
referred to the drop in popularity ratings of the Captain Hook show and said that they
had had complaints from viewers that Pearlman had been giving their children night-
mares-presumably because of his hook.
Of his interview with Cohan on January 31, when he picked up his final check,
Pearlman testified : "He said that he was sorry that he was having to let me go, but
that business was bad and they just couldn 't afford to keep me on ; and also there
were a lot of trouble makers within the organization and if I knew who they were,
would I please tell him?" Pearlman denied knowledge of the "trouble makers,"
whereupon Cohan questioned him specifically about Tidey, Toone, St. John, and
Williams. Cohan mentioned the favors he had done his employees such as paying
Tidey's salary while he was on sick leave, and also paying Pearlman's expenses when
he was ill, and commented that the station was not making money "and here were
people who were stabbing him in the back."
Pearlman admitted that Cohan offered to help him get another job and that he
accepted the offer, but when Cohan arranged for an interview with another Cali-
fornia station , he informed Cohan that "he couldn 't take the job because his doctor
had ordered him not to "
Ferlisi replaced Pearlman with John Barr, previously identified as an assistant to
Cohan in training for Coleman 's position , who, according to Ferlisi, "the longer he
was employed the more it became obvious to us that he did have certain ability, he
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was an expert with making puppets and had a wonderful imagination and a very
creative individual ." The substitution appears to have been of brief duration, Barr,
according to accounts , going on to "greener fields" and a new employee being brought
in to take his place.
Richard Donald (Don) Chambers: Chambers was employed as a radio announcer
at Respondent 's Salinas station from January 1961 to January 26 , 1962, when he
was discharged . His immediate supervisor was Richard Logan. No evidence was
presented to show that he was not a competent announcer . The evidence , undisputed
on the whole, was that he was habitually in financial difficulties , behind in his pay-
ments to his landlady ( for room rent ), behind in his payments on his car, and that
numerous calls, over a, considerable period of time, were made to the broadcasting sta-
tion with respect to his nonpayment of debts, salary attachments , repossession of a car
on which he had defaulted in his payments , etc. These matters became of concern
to his supervisor , Logan, as early as the fall of 1961, and at that time, according to
Logan , he told Chambers that he would give him a month or so "to get things
straightened out, or that was going to be it ." While Chambers testified on direct
examination that he had received no warning of discharge because of his difficulties
with his creditors , he admitted that on one occasion Logan told him: "This situation
couldn't continue if I wanted to advance in the company , that if I wanted to become
managerial material , I must learn how to manage my own affairs better than I had
been doing in the past." He further admitted that Logan had discussed his financial
difficulties with him a number of times, and had told him that he would have to get
his "situation" straightened out or he could not expect to continue with the Company.
Admittedly, he had not got his "situation" straightened out at the time of his dis-
charge. Calls to the broadcasting station by a local automobile dealer concerning
delinquent payments and the repossession by the dealer of the car in question,
preceded his discharge . On January 26, Logan had Chambers brought to his office
where he told him that he was sorry but he was going to have to let him go; there were
too many creditors calling the station . Chambers testified , "Mr. Logan was quite
nice about it, . . . there was no feeling of animosity ." Chambers neither attended
a union meeting nor signed a union authorization card.
Respondent introduced in evidence two memorandums from Logan to Cohan dated
November 6, 1961 , and January 12, 1962, respectively , both on the subject of
Chambers . In the first he referred to Chambers ' association with a former employee,
Clemens, which had done Chambers "no good"; to reports of Chambers ' checks
"bouncing," and calls from Chambers ' creditors . "I have had a talk with him,"
the memo stated , "and he has promised to get straightened up. I have told him that if
he does not get his personal problems in line so that they quit affecting his work and
stop reflecting on the station . he will be discharged ." The second memo referred to
Chambers ' continued association with Clemens , described as a "convicted bad check
artist ," and a continuance of calls from Chambers ' creditors . "I have had it with this
guy, you can only put up with so much and then you have to draw a line," the
memo states . "I have warned him repeatedly to get himself straightened out and
apparently he has made no effort or is in so deep he can't . This situation is reflecting
on the station very badly and cannot be allowed to go on any longer , I realize you
are very busy but any help you can give me on finding a replacement in a hurry will
be deeply appreciated."
It does not appear that a replacement for Chambers was actually hired prior to his
dismissal.
Mark St . John: St. John was employed at Respondent 's Salinas station as a radio
announcer from May 9, 1960, to February 7, 1962, when Cohan discharged him.
As of the period of his discharge he was news director for radio . His immediate
supervisor was Richard Logan . No issue is made of his competence and efficiency
as an announcer and news director . Cohan , in fact, referred to him as his best, or
one of his best, announcers . The principal reason given for his discharge was his use
of the station 's credit with a local motel for obtaining a room to be used by a friend, a
married man and a prominent citizen , and the latter 's female companion . The room
was registered under the name of St. John, Mark (KSBW ), and a false address was
given. St. John testified that he knew the station had a commercial account with the
motel , and that he stated his affiliation with the station in order to take advantage
of its credit because he did not have sufficient funds to pay the bill. On the follow-
ing Monday, January 22, at his first opportunity to speak to his supervisor , Logan, he
told Logan of the incident and stated his willingness to reimburse the station for
the motel charge . St. John testified that Logan said he did not feel that the station
should or would pay the bill , and St. John replied that that was agreeable with him.
Other than this, Logan expressed no disapproval of what St . John had done and dis-
played no anger. Nothing further was said to St. John about the matter until some
2 weeks later , February 7 , when he was summoned to Cohan 's office. There, in the
KSBW-TV 859
presence of Logan, Cohan told him that he was discharged for "using the station
credit account without authorization," and also that what he had done was "un-
ethical," that the newspapers would love to get hold of "something like this," and
that he, Cohan, "could not afford to take chances."
Logan testified that St. John informed him of the incident as he was leaving the
station, saying, "I will take care of it," and that he, Logan, was in a hurry and shocked.
Logan testified, "It actually didn't hit me as to what it was until much later, because
at that time I was in shock that it happened that he would even tell me, because you
just don't do things like this. I had to get somewhere in a hurry so I couldn't stand
to talk about it. I just said, `Oh.' I left and actually I didn't at the time really con-
nect up the, what this could involve until later, and then I heard rumbles, it was getting
around that other people knew of it and I knew that monthly statement which comes
from the Wonderlodge was going to be arriving and I thought to protect myself I had
better tell John [Cohan], so I did." He testified that he informed Cohan of the
incident "probably right after the first of February or thereabouts, a few days after
the first of February or so," and that Cohan was "pretty mad. I would say I came
within that close [indicating] of losing my own job." Logan further explained
that he did not immediately inform Cohan, thinking that he might thereby protect St.
John, but he realized that a bill would soon be coming from the Wonderlodge and
thought he had better tell Cohan "or he was going to find out from someone else."
Logan testified still further that he was shocked by the incident, both because of the
unauthorized use of the station's credit and the immoral aspects of the incident, that
he was equally shocked by both aspects, but that the latter "dawned" on him more
slowly. In further explanation of his delay in reporting on the incident to Cohan,
he ascribed this to "weakness" and "sentimentality." Answering the question, "You
felt sentimental about the incident?" he testified, "I tried to protect Mark. I shouldn't
have tried to cover him."
Cohan testified with respect to the incident that he decided to discharge St. John
the moment he heard from Logan what St. John had done, and that he told St.
John on the occasion of the latter's discharge, "Well you have placed us in a position
that is intolerable; you have placed us in an embarrassing position that can create a lot
of publicity at a time when we are dealing with an applicant for cable TV franchises
in the area, and that on moral grounds it would be necessary for me to terminate."
St John apparently saw no gravity in what he had done. He viewed the episode as
a "lark." (Presumably, he meant a lark for his friend since it is not contended that
he participated in the illicit interlude further than to act as chauffeur, obtain the room,
and foot the bill.)
St. John was also accused, at the time of his discharge, of having acted without
authorization in substituting for Toone for a half hour or longer on a single occasion.
The gist of his testimony was that such substitutions were not unusual and he knew
of no rule prohibiting them.
St. John attended the meeting with NABET representatives at the home of Clete
Toone in December. He did not attend the January 17 meeting with NABET and
AFTRA representatives, but signed an AFTRA authorization card on the following
day.
Cletus (Clete) Toone: Toone was in Respondent's employ from January 1961
to February 7. 1962, as a staff announcer-engineer. On February 7 he was summoned
to Cohan's office where Cohan, with Logan, Toone's supervisor, and William Hargan,
engineer and director of technical operations, present, told him that for some time
he had been "trying to tighten up this organization"; said he had been informed that,
in violation of FCC regulations, Toone had left the radio transmitter at which he was
stationed for a period of some 35 or 45 minutes, thereby putting Respondent's broad-
casting license in jeopardy. Toone replied that he was absent from his transmitter
only some 18 minutes; that he left it to do a live TV commercial and that his absence
had been approved by his supervisor, Logan, and Ferlisi, production head. Cohan
disputed this and discharged him. Inasmuch as no mention was made during the
discharge interview of other infractions of FCC rules by Toone, or misconduct of
any sort, we assume that the incident referred to by Cohan is crucial in determining
the actual cause of the discharge, although the Respondent at the hearing came
forward with several other instances of infractions of FCC rules by Toone.
Toone holds a first-class ticket or license as a radio engineer from the FCC. Such
licensees are required to abide by the rules of the FCC, and one of these rules
forbids one leaving an AM transmitter at which he is stationed unattended for
more than nominal periods of time. Toone admitted that he did not know, from
memory, all the rules of the FCC governing its licensees; testified that they were
voluminous and that he would expect management to have a more comprehensive
knowledge of them than he. himself, possessed; and that he would follow the in-
structions of management where the rules were involved, and if there were "reper-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussions," the license of the station would be put in jeopardy, not his.3 He testified
in detail on the incident which, according to Respondent's witnesses, precipitated his
discharge. Ferlisi and Logan also testified with respect to the incident.
On January 15, 1962, Turney, who was broadcasting the 11 p.m. TV news, asked
Toone if it would be possible for him to do a live TV commercial. Toone agreed,
provided Turney could get clearance in the matter from supervising personnel. A
day or two later, Turney informed Toone that Ferlisi, Turney's supervisor, had given
his approval and that it remained for Toone to obtain his clearance from Logan.
Toone thereupon called Logan at the latter's home and, according to his testimony,
asked if it was all right for him, Toone, to give a 1-minute commercial "once a week."
Logan agreed. Logan testified that Toone did not indicate in the telephone conver-
sation that he was seeking permission to give the commercial more than the one time,
and that he, Logan, understood that the request covered only the one broadcast.
Toone gave the commercial first on January 17, a week later, he did the commercial
a second time; and in the following week, about January 30, he made his third
broadcast. On this third occasion, while waiting for his cue to go on the air,
Logan approached him in an angry mood, wanted to know what he was doing there,
"Well, they are going to hear about it over on the TV end on this thing," and left
Toone to do the commercial? Toone testified:
I did the commercial, returned to the AM studio, and I was, quite frankly, I
was a little bit angry about the thing, because it seemed rather unjustified, and I
went back into the studio and . said, "I don't know why you came over
there and said anything about it, Dick. You okayed it." And he says, "Well,
I am not mad at you, but I am blaming the TV end of it for this thing." And
nothing more was said at the time. That was the last time I did it.
Ferlisi testified that when Turney indicated to him that "there was a problem that
night in relation to production of the news," and asked him if it would be all right
to use Toone on a certain commercial, he replied that if Logan had no objection, it
was all right with him. "This was in direct violation to the instructions that we
had received from Mr. Cohan," Ferlisi testified, "but I gathered from . Mr.
Turney that this was some sort of hardship situation and I wanted to help alleviate
it if I could." Prompted by the question, "That existed that day?" Ferlisi testified,
"Yes." He further testified that nothing was said to him about the duration of the
situation in question, or as to how many times it would be permissible for Toone
to broadcast the commercial. Turney admitted that he may have said nothing specific
to Ferlisi about the duration of the arrangement with Toone. He, like Toone, under-
stood, however, that the arrangement was to be a continuing one
Logan's version of the incident was that on assurance of Turney that he had
Ferlisi's approval for borrowing Toone to do a TV commercial "that night," and
on further assurances that Toone would not be away from the AM control room where
he was regularly stationed for more than 10 minutes-"no longer than it would
take him to go to the rest room anyway or get a drink of water"-he gave his
consent. He heard no more about the matter until the evening of January 30 when
he visited the AM control room and found it unattended. "It was 10:30 on the dot
when I arrived," he testified. He waited-"I don't know how long"-and then
searched for Toone and found him on the television side of the station "watching
the television screen " s According to him, he did not speak to Toone at that time
but returned to the control room where he called an employee and questioned him
about how long Toone had been in the TV side of the station The employee did
not know Logan testified. "I then went over, I sat down until I was boiling mad,
I went to the television station and started to give him the dickens. I found out he
was doing the commercial. Up to that moment I didn't have the slightest idea why
he had gone." Logan returned to the AM control room and Toone joined him there
"about five, maybe six minutes after 11:00." According to Logan, Toone was absent
from the transmitter "Thirty-five minutes during the time I was there."
S Toone testified: "The FCC regulations would fill many volumes. You can't be expected
to know all of them. You are assuming your management knows a great deal more about
them than you do . My understanding was that . von followed direct orders from
management and if there was any problem regarding FCC regulations, that it would be
management's license in jeopardy and not yours, that since they were in a position, the
management, you could be reasonably sure they knew a great deal more about the FCC
regulations than you did "
4 Morlsoli, who was present, testified Logan said, "Somebody is going to hear about this "
S Turney testified that Toone was occupied with reading the TV commercial he was about
to deliver.
KSBW-TV 861
Toone admitted that on the evening of January 30 he was absent from the AM
control room for some 18 minutes, inasmuch as he had not timed his absence he
could not be more specific. His explanation for having taken more than the
customary some 10 minutes was that he had not seen the copy of the commercial
which he was giving, and allowed himself additional time in order to become familiar
with it. He further testified, with respect to having left his transmitter unattended,
that he had on a number of occasions been required to leave his transmitter for the
purpose of taking monitor point readings at some distance from the station, and
that on such occasions he was absent for as long as one-half hour or 45 minutes. He
further testified that there was no one substituting for him at the AM board when he
left and no one there when he returned, and from this he assumed that the board was
left unattended during his absence. Respondent submitted program and operation
logs showing that Keith Bryden, operations manager, had substituted for Toone
during these absences. I credit Toone in his testimony that Bryden was not on hand
to relieve him at the time he left his station nor there when he returned, and Bryden
admitted that he may have been absent from the transmitter for brief intervals while
he visited the adjoining newsroom, though the log shows him present at all times.
Turney, who was in the newsroom on some or all of these occasions, testified that
he did not observe Bryden present on such occasions when he allegedly was sub-
stituting for Toone at the AM transmitter. Respondent, however, elicited testimony
from William Hargan, its technical director, to the effect that FCC rules were satisfied
if there was "visual attendance" during the absence of the one stationed at the AM
board. According to him "visual attendance" was had when there was an operator
on duty in the FM control room which was adjacent to the AM control room. There
arose a conflict on whether there was such "visual attendance," Hargan testifying there
was, Toone that there was none. Inspection of the premises convinced me that
neither was entirely wrong. Visual attendance of the AM control board can be
had from the adjoining FM room, but only if the person on duty there leaves his
station and moves toward the rear of the room. My observation was not directed
to the newsroom.
Fur'her beiring on absences from the AM control board while on duty is a memo
from Keith Bryden to the staff, dated February 2, 1962, stating, inter alia:
It has been noted that announcers on duty are getting into the habit of leaving
the studio and just wandering around the office area, or killing time away from
their board. I am sure you know that that AM studio contains the transmitter,
as far as F.C.C. is concerned . . . and as such, should not be left unattended
for any length of time! So, from here on out, if you have to go to the rest
room or to get a drink or maybe to pick up the mail, do so. But, be away from
the studio as little time as possible! If I or another qualified person is in the
vicinity, ask them to take over until you return. Under no circumstances leave
the general vicinity of the AM-FM studio for any length of time without having
someone covering for you. If this is not clear, I will be happy to get together
personally with you.
Toone testified that he did not receive a copy of this memorandum; Bryden that
he did
Dealing still further withthe matter of the control room being left unattended, an
earlier memorandum from Hargan ,to Cohan dated January 12, 1962, in which
Hargan reports that engineers who went out to the transmitter monitor points to
make the readings "could not raise anyone in the radio control to report the readings
for entry in the operating log and on several occasions they had to call the TD in
television control and give him readings to make sure that the readings were logged."
The memorandum continued, "This is a bit discouraging for the men taking the
readings. But even more important is the fact that we are in flagrant violation of
FCC rules because obviously the control room has been left unattended. Now I
realize that good licensed operator,announcers are hard to find but this is serious
enough to warrant looking for a replacement right now." Hargan and Cohan both
testified that this memorandum had particular reference to Toone. Cohan wrote
on the memorandum: "Clete Toone-Issued Warning!" and, according to his testi-
mony, returned it to Logan and Hargan with his notation. Neither Hargan nor
Loran at any time spoke to Toone about the matter.
So much for the incident which, if Respondent's defense is credited, precipitated
Toone's discharge A further incident, occurring about February 2, not mentioned
in the discharge interview, is St. John's substitution for Toone at his post of duty for
some 30 minutes while the latter ate or went home, as the case may be. The conten-
tion is that such a substitution was not permissible unless atuhorized by supervisory
personnel and in this case there was no authorization. The further contention is made
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that any such change in the post of duty is required to be noted on the transmitter
log, and on this occasion there is no entry showing St. John's substitution. In other
words, the contention is that on January 30, Toone left his post unattended, thus vio-
lating FCC rules, and on February 2 left it attended but without permission and
failed to log the substitution, thus violating another FCC rule. These are the only
two alleged violations of FCC rules occurring in the period immediately preceding
the discharge, but the Respondent has apparently sifted Toone's entire employment
history and brought forward all the irregularities and infraction of rules it could
muster.
On New Year's Eve, 1961, Toone signed off at midnight, according to the Re-
spondent, 15 minutes earlier than he was supposed to. He testified that Logan had
told him that if the network program was not particularly good, to take it off, which
he understood to mean that he was to exercise his own judgment as to when he
should sign off. He denied that he was "required" to remain on duty to 12:15. The
program and operations log for December 31 shows the signoff time as 12:15. Toone
changed the signoff time to 12 midnight. The log in question is required to be main-
tained and kept available to FCC examiners. Questioned whether he was required
to follow the program of the operating log every day, Toone testified, "Not if the
manager tells you beforehand to use your discretion in such matters." This is con-
sistent with his testimony, previously reported, that in questions involving FCC regu-
lations he would follow the instructions of management. He admitted, however,
that on the following day Logan called him, inquired why he had not stayed on duty
to 12:15, and told him that when a log is ,set up it is necessary to follow it.
A still further charge brought against Toone by Respondent's witnesses was his
failure to change the directional pattern of the station at the time prescribed by FCC
rules, and covering up his negligence by making false entries in the engineering log
When Toone was on duty as a radio-announcer, he was required to change the pattern
at the precise time required by FCC. Hargan testified, and Toone admitted, that on
several occasions he, Toone, failed to change the pattern at the required time, ,and
that he logged the change as having been made properly. Toone testified on the
point:
I think the location will bear me out on this, that at the time I was to change
pattern, it was usually news beat. Now, this is a very busy time. In this time
I am required to record, unwind, play back, do local news, et cetera, et cetera.
It is very complicated and very busy. During this entire time , I have little or no
time to do anything except announce on the board. On occasion, I think three
or four different occasions, I got busy and didn't change the patterns as I was
supposed to. I don't deny this at all.
Q Were you aware of the gravity of a failure to change the pattern?
A. Yes, sir, I was. It was unintentional . It was just something I became
involved in, trying to do my job right, and I just didn't realize at the time, and
then as soon as I realized it, I got up and changed the pattern. . . I think that
all the other announcers will bear me out on this, that they have done the same
thing, failed to change the pattern as required.
With respect to his entries in the engineering log, Toone testified:
You see, the FCC rules and regulations require I make it at a certain time.
I didn't make it that time, but I logged it at that time. Nevertheless, this is
common practice in order to protect the station' s license.
Q. Now, on this matter of not making the change of pattern at the correct
time, was that called to your attention?
A. No, sir.
Q. Were you ever criticized in the matter?
A. Never, sir.
Hargan admitted that Toone's responsibility in the matter ceased when shifts were
changed at or near the end of 1961, and the specific examples of the false entries
alluded to in Respondent's brief occurred in July 1961.
Toone took an active part in organizational activities from the start. A meeting
with union organizers was held in his home on December 27. He attended the
January 17, 1962, meeting and there signed an AFTRA card. From a starting salary
of $350 he was raised to $400 in the fall of 1961. It was his credited testimony that
;Logan was helpful in getting him launched as an announcer, critical of his efforts at
first but later praising him, and, on an occasion in January 1962, referring to him as
one of his best announcers. He testified that he had received the highest audience
approval rating achieved at the Salinas station for a nighttime broadcast.
Robert Erickson: Erickson was employed as a photographer in Respondent's photo-
graphic department in January 1961. His immediate superior was Richard W
KSBW-TV 863
Williams, a photographer seasoned in experience and an expert in the field . Williams
and Erickson were the only persons employed in the photographic department.
Erickson, and Williams as well no doubt, were subject to orders issued by Cohan,
Technical Director Coleman, and Supervisor Ferlisi; Coleman appears to have had
overall direction of the department; but the evidence shows that Erickson actually
worked in the main if not exclusively under Williams' direction and supervision.
Near the end of November 1961, his salary was increased from $340 a month to
$375, and it is his credited testimony that at that time Supervisor Ferlisi promised him
a raise to $400 the following June and said that he was an "asset to the company,"
and that he fitted in well "in the work at the company there." It is admitted that
he excelled as a "photo film process lab man" and Williams testified with respect
to his operation of the Houston Feerless Processor , according to him "the most com-
plex piece of equipment requiring constant maintenance ," that it was "outstanding "
The Respondent 's witnesses did not dispute this.
The burden of Respondent 's complaint with respect to Erickson was that he did
not "develop" along other lines as Cohan had been led to expect he would from pre-
hire correspondence he had with Erickson in which Erickson had cited his efficiency
in operating the Mitchel motion picture camera, according to Cohan "the world's
finest motion picture camera ." Further , according to Cohan , the motion picture
camera most in use in his operations for taking motion pictures , with or without
sound, was the Auricon , and Erickson had to be instructed in the use of this camera,
and actually made only one film with it during his employment with the Respondent
during a period when his superior , Williams, made some 200 or more . Cohan stressed
in his testimony that it was his intention in hiring Erickson to make him interchange-
able with Williams , and Erickson never progressed to the point where this was pos-
sible. As a result , according to Cohan , inasmuch as the operation of the Houston
Feerless Processor , at which he admittedly was expert , required only some 2 hours a
day of his time, much or most of his time was spent in assisting others or in perform-
ing functions of minor importance . The Respondent , in its defense, also laid em-
phasis on a time and motion study Erickson and Williams were required to make
in September 1961 . This study showed that Williams spent a substantial amount of
his time during this period in the operation of the Auricon , Erickson none, and pre-
sumably, that the latter 's time was not profitably occupied . Both Erickson and
Williams testified that the period covered by the time and motion study was a slack
period , not typical.
Williams, who voluntarily severed his employment with the Respondent on
March 8, 1962 , testified that Erickson 's ability as a photographer was "very good":
outstanding in the operation of the Houston Feerless Processor ; that Erickson took
care of a majority of the still photography , all slides for commercial and news and
public service slides that were necessary for the station ; operated all the still cameras;
made negatives in the print shop for printing material for the company; was capable
of performing maintenance on the photographic equipment; and for a considerable
time edited news film under the direction of Coleman and ceased this activity at the
direction of top management . Williams testified that Erickson was capable of op-
erating the Auricon camera, about which there was so much testimony from Re-
spondent's witnesses , and that on an occasion in December 1961, when he did op-
erate it, his work resulted in a "very good spot." Explaining why Erickson so in-
frequently operated the Auricon camera, Williams testified, "It was my basic job to
shoot film," and that he understood of Erickson's jab that "when he was needed to
shoot film, he would shoot film ." Williams, Ferlisi , and Coleman all had the au-
thority to direct Erickson to "shoot film," but the only directions he actually received
in this matter came from Williams. Admittedly , he shot film on every occasion he
was directed to do so. Williams further testified that Cohan never brought it to his
attention that he and Erickson were supposed to be "interchangeable "
From late December 1961 , Coleman Scott , whose regular place of business was
Respondent 's station in San Luis Obispo ( not involved in this proceeding ), was in
charge of local sales at the Salinas station . He testified that in his dealings with
Erickson he found the latter "arrogant" and extremely "uncooperative to talk to,"
and "quite uninterested ." As a part of sales promotion for the station, it was
customary to have "speculative " or commercial film made for ,the prospective client.
This film is prepared at the expense of the station. "Then ," Scott testified , "the two
of you [ the salesman and the prospective client] sit down, you work out whether
or not this is the complete translation of his ideas to film. " It was in connection
with the preparation of such speculative film that Scott found Erickson arrogant,
uncooperative , and quite uninterested . He attributed the loss of two accounts to
the aforesaid lack of cooperation , and testified that he complained to Cohan about
Erickson possibly twice a week . He admitted on cross-examination that he also had
"some controversy " with Williams , and possibly with Coleman , the program director.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further testified , "I never specifically asked for a single thing of anybody but a
department head . . . if it was possible to reach him " Williams-not Erickson-
as he knew , was the department head in ques t ion. Williams , testifying with respect
to the preparation of speculative film for the sales department , exonerated Erickson
of any fault with respect to the accounts which, according to Scott, had been lost
to the station because of Erickson's uncooperative attitude. Erickson admitted that
there were arguments with various salesmen about the time required for the prepara-
tion of specula tive film, and testified that the salesmen in question , not understanding
the techniques involved, were impatient and unreasonable in their demands on the
photographic department.
Erickson testified that he was summoned to Cohan's office on February 7, 1962,
and there Cohan told him they were losing money on their photographic department,
and "that a two man photography lab was economically unfeasible." He questioned
Cohan if there was anything wrong with his work, and Cohan replied there was
nothing wrong with it, he had a lot of ability, he would help Erickson find another
job, and he did not think Erickson would have much trouble locating another job,
considering his ability. Cohan testified that Erickson's version of the discharge
interview was "substantially correct" but "not exactly." He testified he told Erickson
of the financial loss, told him his performance "as far as it goes" was fine but did not
go far enough , and that they could not continue to operate the department at such
a loss and must have someone who would use "all of the equipment ." He testified
that at the time he discharged Erickson he had been "led to believe that Mr. Williams
was going to leave the company, too." On why, how, or by whom he had been
led so to believe he did not elaborate.
Williams testified that on the date of Erickson 's discharge Cohan told him "he
didn't believe Bob Erickson had the station , or Mr . Cohan , at heart . . . that his
attitude was no good ," and that Cohan asked him if he thought Erickson could
handle the Auricon "as good as he, Williams." He replied that Erickson could
"handle the Auricon and all associated gear, and had done so on occasion," to
which Cohan replied , "That is not what I asked you. Can he handle the Auricon
as good as you ?" Williams replied , "No." Williams further testified that Cohan
at no time during Erickson 's employment complained concerning the latter to him,
Williams. It is clear that during his entire period of employment no one ever
complained to Erickson except , possibly, Scott.
Erickson was replaced , after an interval of a week or so , by one Robert Brookings.
Williams refused Respondent 's leading questions to the effect that he was asked to
review Brookings ' application in January . "I can state definitely he [Cohan] did
not show it to me in January." On the basis of Cohan 's representation on Brookings'
qualifications , Williams commented favorably, but this was on the date of the
Erickson discharge or afterward . Williams testified that Brookings did not know how
to operate the Auricon camera; that he, Williams, had to show him "how to lead
the camera and how to operate the associated sound gear ." This testimony is not
disputed.
Respondent's witnesses testified that Brookings had proved to be more versatile
than Erickson and a much more satisfactory employee . Cohan admitted that the
photographic department is still a two-man operation and that the Respondent is
"still wrestling with the department ." As Respondent 's counsel so wryly observed
in his brief , "Apparently , the problems of the Photographic Department are still not
solved." Admittedly , the department was operating at a loss at the time of Erickson's
discharge . To what extent such a department is customarily self-sustaining , I have no
knowledge.
Arthur E Tidey: Tidey has been employed by the Respondent since August 1955,
first as a radio announcer , and later as a television announcer and news director. On
February 15, Cohan , his immediate supervisor , suggested or directed that he take
a leave of absence. The General Counsel would have Cohan's action viewed as a
constructive discharge. The Respondent's position is that Tidey is still on leave of
absence and will be returned .to a position with the Respondent upon application. No
issue is made of his competence as an announcer and news director.
Tidey became ill in 1960 and from December 20, 1960 , to July 3. 1961, was
on leave, being hospitalized a portion of this time . During this period he drew the
equivalent of his full salary. He testified , "I received disability payments, and Mr
Cohan, about four months of the period , made me an additional amount which
brought it up to what my normal salary would be" His illness was diagnosed
as tuberculosis of the kidney , and he made frequent trips to San Francisco "to see
medical specialists to determine whether or not I needed an operation." Cohan
was fully informed on his condition.
KSBW-TV 865
On February 13, 1962, Tidey addressed the following memorandum to Cohan:
I haven't had a chance to talk to you since last Friday . . . when I saw
the specialist in San Francisco. I must return this Friday to see another man
who is familiar with this thing. It appears that I need the kidney removed and
it will probably be done soon. The man I saw last week thinks that time is
running out . . . . Either I have the operation .... I'll know more after this
next meeting.
Cohan testified that on February 15 Tidey told him that he would be going to
San Francisco the next day to see about "when I am going to have this kidney out,"
whereupon he, Cohan, made his suggestion, or issued his direction, that Tidey take
a leave of absence until the matter of the operation was cleared up. Tidey agreed to
the leave of absence, and made a formal written request for it. Cohan was frank
in his testimony in admitting that had Tidey not agreed to the leave of absence he,
Cohan, would have insisted on it.
About March 1 Tidey had his operation and was hospitalized for some 13 days.
After that he asked Cohan for his job back and Cohan told him he could come to
work the following Monday provided he could get clearance from his doctor.
By letter dated April 21, 1962, Tidey advised Cohan:
My doctor ... told me this morning that he wants me to stay home for at
least another month. As a result I regret that I cannot return to KSBW-TV
on April 23, as planned.
Tidey admitted that as of the date of testifying he still had not been given clear-
ance by his doctor for returning to work.
After Tidey went on leave of absence he was replaced as news director and one of
his programs assigned to other personnel. Cohan admitted that these replacements
were meant to be permanent and when asked from what job or position, specifically,
Tidey was on leave of absence, declined to specify other than to say that when he was
given medical clearance and applied for reinstatement he would be given a job.
Tidey was one of the leaders in the organizational movement. He participated in
most of the discussions, attended most of the meetings, and signed an AFTRA
authorization card.
D. The management meeting of December 1961
There was a meeting of top managerial personnel in December in which the
adverse economic situation of the station was discussed and various personnel diffi-
culties canvassed. According to Cohan, at this meeting the failure of Pearlman as a
general announcer was discussed and an understanding reached for his discharge as
soon as a replacement could be found. Further according to Cohan, the quality of
Toone's work came up for discussion. He testified, "We played tapes of Mr. Toone
and some of the fellows commented that it was not good voice quality, commented
that the operation was not sharp, and generally [Toone] wasn't the best rated an-
nouncer we had on any of the stations." 6 With respect to Erickson, Cohan testified
that the nature and quality of his work was discussed and reference was made to the
time study of September which showed that Erickson was doing many inconsequential
tasks and "had not come up to efficiency in the Auricon camera." According to
him he instructed Ferlisi to discuss the matter with Erickson. Further according to
Cohan, "Every person in the entire organization, including myself, were under review
. We discussed the personnel, we discussed the performance, we discussed the
station's economic health. We discussed the failure of certain departments to func-
tion. We discussed the way, what we had to do to bring our station operation back
up to par, because it was definitely not up to par and it was obvious to all of the
management of the company. We discussed employment failure, personnel failure.
We discussed procedures , communications, sales potential and production potential."
Cohan testified that some 18 personnel changes occurred before and after the
conference, and those "affected ranged from personnel at the top all the way
down . . " He withheld names, dates, and details, however, in order not to submit
the matter of the 18 personnel changes to intensive cross-examination.
0 Apparently this was to contradict Toone's testimony that he had the highest audience
rating ever achieved on the Salinas station for a nighttime broadcast I assume the
rating sheets were still in existence , as they were in the case of Pearlman, but they were
not produced.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Concluding findings
This is another one of those discharge cases where judgment rests on determining
what is pretext and what is cause, no easy task when the pretext-if it be that-with
respect to some of the individuals under consideration has at least an aura of plausi-
bility. Bearing in mind that an employer is not estopped by union activity among
his employees from taking such disciplinary action, including discharge, as he nor-
mally would take absent union considerations, and bearing in mind at the same time
that if the discharge action is motivated to any appreciable degree by union activity,
or suspected union activity, it is unlawful, we look first to the matter of company
knowledge. Obviously, if the Respondent neither had knowledge of the union
activities of its employees, nor conjectures and suspicions with respect thereto, it
cannot reasonably be said to have been prompted by antiunion considerations in
effectuating the discharges under consideration.
Cohan, Ferlisi, and Logan, the chief supervisory personnel involved, made sweep-
ing disclaimers of such knowledge, Ferlisi going so far as to testify he did not even
know, prior to the hearing, that a representation petition had been filed. Such
denials were a little too sweeping for credence. Between the culmination of organi-
zational activities on January 17 and February 15, 1962, the Respondent discharged
every one of its employees who had been active in organizing and had attended
organizational meetings, except Turney and Williams, both of whom Cohan knew,
or had been informed, were leaving his organization voluntarily, and Tidey, whom
Cohan required to take a leave of absence.? Those discharged, resigning, or forced
on leave of absence comprised the entire nonsupervisory announcer staff, with the
possible exception of Morisoli, who was hired sometime in January, and Barr, who
was Cohan's assistant and who was assigned to take Pearlman's place upon the
tatter's discharge.8 If the union activities of the employees involved played no part
in the discharge decisions, or any of them, we are confronted with the most amazing
confluence of coincidental circumstances to be recorded in the annals of this Agency.
Assuming that things had not been going well with the station financially, and
assuming further that there was discussion of the shortcomings of various employees
at the management meeting in December 1961, there is no basis in the evidence for
attributing the unhealthy economic situation to the announcers and certainly no
basis for a finding that it was then decided to liquidate the nonsupervisory announcer
staff. The depletion of the nonsupervisory staff within a period of a few weeks
following the January 17 union meeting, with no evidence that suitable replacements
had been found and no contention being made that the firings were required because
of a retrenchment policy, the discharges occurring without prior reprimand or warn-
ing except in the case of Chambers, and without advance notice except in the case
of Pearlman-the two discharges predating Respondent's receipt of the AFTRA
petition-gives every appearance of precipitate action for which there exists in the
evidence no compelling explanation except the Respondent's aversion to union rep-
resentation of its employees.9 Cohan's testimony that some 18 personnel changes,
including discharges, other than the discharges in question, were made, has little
value in determining the actual cause of the discharges inasmuch as he exercised
his judgment to withhold the names and the circumstances attending the 18 changes
rather than to submit the matter to cross-examination.
Cohan, in denying inquiries concerning the identity of the "trouble makers"
attributed to him by Pearlman, testified in effect that he was too sophisticated in
labor relations to enrage in such conduct. I do not question that he was too
knowledgeable in such matters to engage in the open and conspicuous antiunion
7 Davies, about whom we have little information, attended one of the early organiza-
tional meetings, but was not listed in Cohan's testimony as being on his announcer staff
as of January 24, 1962 It is assumed that he had been discharged or had quit Although
Barr attended the discussion meeting at Coleman's house , he wanted no part of union
representation.
8 Morisoli testified that he was hired in early January and thought he began announc-
ing between January 20 and 25, but his testimony was too indecisive to say that he actu-
ally had announcer status as of January 24. That he had been employed by the Respond-
ent on a former occasion has no bearing on the issues herein Barr had no status as an
announcer until he was advanced to take Pearlman 's place and Pearlman worked through
January 29.
9 An example of the haste in executing the discharges is given in Cohan's testimony
which, if credited, would have him agreeing with Logan that Toone's absence from the
AM transmitter for some 30 to 40 minutes justified Toone's discharge, at the same time
advising Logan, "but you have to have his replacement before you can dismiss him "
The discharge followed without a replacement having been obtained.
KSBW-TV 867
conduct sometimes encountered in discharge cases, but to ask us to believe that, in
an organization as closely knit as his and with almost his entire nonsupervisory staff
of announcers involved, he knew nothing of organizational activities among his
employees until he received the AFTRA petition for certification, is to give us
credit for less sophistication in such matters than we normally would acquire in
the course of our experience. It may well be, as he testified, that prior to the
receipt of the petition on January 26, he did not know that his employees were
organizing, i.e., he was not actually present when these activities occurred and
did not know the identity of employees engaging in such activities, i.e., none of
his employees told him that they had signed union cards or attended union meetings
and, in fact, they attempted to keep their activities under cover. But that he was
aware that union activity was occurring, or suspected as much, is established in
his interrogation of his technical director, Coleman, in early January, shortly after
the employees discussed their interest in organizing at the Coleman home, a
meeting which was attended, unintentionally no doubt, by Coleman, and also,
intentionally, by Barr, an assistant to Coleman or Cohan or both and in training
to take Coleman's place, and also by his interrogation of Turney which occurred
about January 17, prior to the time any of the discharges complained of herein
took place. Should there still remain some doubt as to the status of his knowledge,
despite these interrogations and conversations, there can be none at all in the
period following January 26, when he received the AFTRA petition. In its peti-
tion AFTRA claimed to represent five of the nonsupervisory staff announcers, and
it would not take Cohan long to reach a surmise or guess that those give were
represented in the group composed of St. John, Turney, Toone, Tidey, Pearlman,
and Chambers. He would not likely have suspected Morisoli, whom he had just
hired, or Barr, his own assistant. On these facts alone, lacking proof of antiunion
bias, would rest a strong inference that the discharges of Toone, St. John, and
Erickson, and the leave forced on Tidey, were related to the filing of the AFTRA
petition, but proof of Cohan's antiunion bias is already established in such expres-
sions as "breach of faith" (his conversations with Coleman), "trouble makers,"
and "stab in the back" (his conversation with Pearlman) and disapproval as noted
in his conversation with Turney. Logan, a part of management, clothed with
authority to hire and fire and implicated in the discharge of Chambers, Toone,
and St. Mark, was not so mild or subtle in his expressions of antiunion bias, equat-
ing unions with "commies," and in his interrogation of Pearlman referring to
"those trouble makers," and "sonsabitches." Management, of course, was entitled
to its views so long as their expression did not take coercive form when addressed
to employees. Nevertheless, as stated in a recent court decision, while such an
expression of views does not "compel the conclusion that a particular discharge
was prompted by an anti-union animus . it may supply shape and substance
to otherwise equivocal circumstances." N.L R.B. v. Davidson Rubber Co., 305
F. 2d 166 (C A. 1).10 Stated in similar terms in another recent decision, ". . . the
presence or absence of an anti-union attitude by the company necessarily throws
great light upon the motivation for a discharge where the company has ample
grounds for discharge, but where it is contended by the Board that the discharged
employee was released not for the good cause existing, but to discourage and inter-
fere with the rights in Section 8(a)(1)." N.L.R.B. v. W. M. Chambers Truck
Line, Inc., 306 F. 2d 549 (C.A. 5).
On February 7, when Cohan personally discharged Toone, St. John, and Erickson,
when he unquestionably had knowledge of union activities among his employees and
a reasonable surmise or guess as to the identity of some if not all of them, with
the resignations of Turney and Williams and the enforced leave of Tidey to follow,
the Respondent was in the process of removing the last vestiges of union support
from its staff, and, despite the good cause shown in the case of St. John and the
less impressive reasons assigned for the discharge of Toone and Erickson, I believe
on the evidence afforded me that the discharge of these three employees cannot
reasonably be dissociated from their union activities.
With respect to Toone, an elaborate defense was raised designed apparently to
show that he was a habitually careless and irresponsible announcer-engineer, flouting
the rules of the FCC which he was obliged to follow, and thereby constantly
30 The statement of views referred to by the court was made by the company's personnel
manager concerning company policy: "The Company feels that management, as repre-
sented at the present time, can administer to the needs of its members, of its employees.
without the need for an outside party. This, I think, is the general attitude " I think it
must be agreed that Cohan's views were more weighted with animus than the statement
relied upon by the court.
681-492-63-vol. 140-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jeopardizing Respondent's operating license. No contention was made that the
station's programing was interrupted or affected or that there were any adverse
consequences actually suffered on account of Toone's alleged violation of rules.
True, Toone's testimony on his knowledge of FCC rules left something to be desired,
but his frank admission that he did not know all the rules applicable to an FCC
licensee, rules which would fill volumes, and that he would follow the directions
of management on the assumption that it was more fully versed in these rules than he
inasmuch as it was its operating license that was in question, did not seem entirely
unreasonable considering that an employee normally is subjected to the orders and
directions of his supervisors. His admissions that on several occasions, he did not
know how many, because of the pressure of other work he did not change the
directional pattern of the station at the time required, but conformed the log to FCC
requirements, was frank, as was his admission that this was an important matter
and that he was in error. But these infringements of rules dated back to July 1961
and, by Engineer Hargan's admission, could not have been charged to Toone after a
change of shifts in December. We must assume that Respondent had knowledge of
these errors of omission and commission at the time they occurred, but no one ever
reprimanded Toone because of them, never complained to him with respect to them,
and this gives credence of Toone's testimony that announcers frequently and generally
were subject to such errors and "doctored" the log to conform to FCC regulations
in order to protect Respondent's license.
Leaving his AM station unattended, one of the major accusations leveled at Toone,
also would appear from the testimony of Respondent's witnesses to be an offense of
long standing. Respondent relies on Hargan's memorandum to Cohan dated Jan-
uary 12, 1962, in which he speaks of the gravity of a violation of the FCC rule
requiring constant attendance of the AM transmitter, and suggests that while good
licensed operator-announcers are hard to find, the situation was serious enough to war-
rant looking for a replacement "right now." Hargan testified that in writing this he
had Toone in mind, and that he and Cohan discussed the matter of Toone's negligence
in January. Inasmuch as the January 12 memorandum was a communication be-
tween top managerial personnel, one can only wonder why Hargan did not name
Toone as the offender if he was in fact the sole offender.ii Even stranger is the
notation which Cohan testified he wrote on the memorandum, Clete Toone-Issue
warning, when the evidence reveals that neither Hargan (who did not consider that
Toone was under his supervision), nor Logan, Toone's immediate superior, nor
Cohan himself, nor anybody else, up to the day of his discharge, warned Toone or
even mentioned the matter to him.
A later memorandum by Keith Bryden, dated February 2, states that it "has been
noted that announcers on duty are getting into the habit of leaving the studio and
just wandering around the office area, or killing time away from their board." etc.
Again, no mention of Toone, and Bryden uses the plural-"announcers." The in-
cident shortly prior to Toone's discharge, when he had St John substitute for him for
a period of 30 minutes or more, viewed in the light of Bryden's memorandum which
read, in part, "So, from here on out, if you have to go to the rest room or to get a
drink or maybe to pick up the mail, do so. But, he away from the studio as little
time as possiblet If I or another qualified person is in the vicinity, ask them to take
over until you return," does not appear to constitute a violation of approved practice
inasmuch as the memorandum makes no mention of a necessity for supervisory ap-
proval before an announcer leaving his station could provide for a substitute, or that
such substitution was an absolute requirement in all cases where an announcer was to
be absent from his station but briefly. Apparently, FCC regulations require that such
substitutions be logged and the log was produced and did not show that St. John had
made the substitution. The operating log, subject to FCC inspection, is no doubt
important, but there is compelling evidence that considerable liberties were taken
with its entries and that this was not confined to Toone.
Bryden testified that he substituted for Toone during the latter's directed absence
for periods ranging up to 40 minutes, and that he may have left the transmitter dur-
ing some of the periods to visit the newsrooms, though the log shows no such
absences and no substitutions. To cover this apparent discrepancy, Respondent
produced Harean who testified that FCC regulations were complied with if during
the announcer's absence there was "visual" attendance of the AM transmitter. Was
this "substitution" and, if so, was there no requirement that it be noted in the log?
Anparently, we are asked to believe that in all of Bryden's absences from the trans-
mitter there was visual attendance, and in Toone's none. The matter is all -a bit
11 Compare Logan's memorandums to Cohan re Chambers.
KSBW-TV 869
too neatly arranged for perfecting Respondent's indictment of Toone to invite com-
plete credence.
In the incident occurring on New Year's Eve Toone appears to have been at
fault-i.e., if the log is to be taken as gospel, for it shows him to have been on
duty 15 minutes past midnight whereas he signed off at midnight. Whether or not
this was due to a misunderstanding with Logan, it did not result in severe censure
or threat of discharge.
The incident which Respondent would have us believe provoked and constituted
the gravamen of the discharge action, may or may not have risen from a misunder-
standing between Logan and Toone, depending on how one views the evidence.
There is no question that Logan and Ferlisi agreed that Toone might leave his AM
transmitter unattended for a matter of some 10 minutes while he crossed to the
television side of the station for giving a TV commercial. It is noted that both
Turney and Toone were careful to get clearance from their respective supervisors
before Toone made the first broadcast. the fact that neither sought permission on
the second and third occasion of the broadcast, shows clearly, in view of their care in
obtaining clearance in the first instance, that they understood clearance had already
been had. Certainly, after Toone had made the second broadcast and neither
Ferlisi nor Logan objected, they would have no cause to believe that permission
had been limited to the single first occasion. We are asked to assume, I suppose,
that neither Ferlisi nor Logan had any knowledge of the second broadcast. On the
entire evidence I am doubtful that there was an actual misunderstanding about Toone
repeating on the TV spot, and am convinced that his only culpable action was leaving
his AM transmitter unattended for about 18 minutes as he testified, or about 35
minutes or longer as Logan testified.
On this point I have been unable to determine on the entire evidence just what
was normally permissible under the Respondent's construction of FCC rules. Some
10 minutes apparently was permissible since Logan admittedly gave his consent for
that; it was also permissible for much longer periods if there was "visual" attendance.
That announcers generally were accustomed to leaving their stations unattended for
periods of unspecified time is apparent from Bryden's February 2 memorandum.
I do not of course presume to say, or imply, that there were no serious infractions
of FCC rules by Toone and others. I only find that Respondent does not appear to
have regarded Toone's infractions, or alleged infractions, serious enough for
reprimand or warning until after it learned of, or surmised, his umon affiliation, and
then, without prior warning or reprimand, it fired him. The significant and decisive
factor in Toone's discharge, I am convinced, was that between the time Toone
received Logan's permission to do the TV spot and January 30, the third time he did
the broadcast, the Respondent had received the AFTRA petition and knew, or as-
sumed, that it was faced with potential union representation of its announcer staff if
it did not act decisively in the matter. The organizational meeting at Toone's house
on December 27 and his attendance of the January 27 meeting, show him to have
been active in the organizational movement, and mention of him as one of the
probable "trouble makers" in Logan's and Cohan's interrogation of Pearlman, shows
him to have been an object of their suspicions. Logan's action on the occasion of
Toone's third TV broadcast, in noting his absence from the AM control board,
observing him in the TV booth, inquiring of a third person as to how long Toone
had been on the TV side of the station, careful timing of his absence, and eventual
angry confrontation, gives every appearance of a deliberate buildup of the case
against Toone, an employee whom not so long before he was praising because of his
progress as an announcer and whom he was calling one of his best.
The firing of St. John has more of that aura of plausibility, previously remarked.
The facts are not in dispute. He made unauthorized use of the company's credit
with a local motel for the accommodation of a friend and the friend's friend, the
latter a female who happened not to be the friend's wife. Any findings on the
incident may and probably will be construed by some as condoning or condemning
the moral aspects of his conduct though they will be nothing of the sort. It is highly
unlikely that Cohan would attempt to regulate the sexual morality of his employees,
or take this into account in his appraisal of their worth as employees, unless, of
course, there was some element of public scandal present which would tend to
stigmatise the station.
Logan testified that on being told of the incident by St. John he was too shocked
immediately to react, and was equally shocked by the unauthorized use of the sta-
tion's credit and the immoral aspects of the matter-though the latter "dawned"
on him more slowly. This testimony was on a par with his further testimony that
he delayed informing Cohan of the matter for more than a week out of "weakness"
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "sentimentality." 12 He did not impress me as a person overburdened with the
latter. He showed little sentimentality in raising his "misunderstanding" with Toone
to the proportions of conduct meriting discharge, and when Chambers failed to "put
his house in order," he acted with firm dispatch in effectuating the discharge. If in
his sentimental regard for St. John he held back the story out of fear of Cohan's
reaction, it seems he might have counseled St. John to go ahead and pay the motel
bill in order that no statement addressed to the station would reach Cohan. I think
neither shock nor weakness accounts for his delay in reporting to Cohan on St.
John's transgressions, but, rather, that in the first instance he saw nothing in the
matter that required reporting. Surely if he had, in the week that elapsed before he
informed Cohan of the matter, he would have voiced his concern to St. John for
whom, according to his testimony, he had such high sentimental regard, but he never
did, nor mentioned the matter after his initial response which was to the effect
that the station should not be required to pay the bill. There was in fact no question
of the station paying the bill. St. John had assumed full responsibility for that.
Turning to Cohan's attitude in the matter as expressed in his testimony, it was not
the "morality" issue, as such, which disturbed him. It was the potentiality of a
public scandal involving the reputation of the station. The prominence of St. John's
friend was emphasized. Presumably if the friend had been a local nobody, the po-
tential danger to the station's reputation would not have been as great and St. John's
offense would have been scaled down accordingly. So much for the "morals" issue.
How great was the potential danger? St. John registered in his own name, giving
his station affiliation, but nevertheless identifying himself personally as the one
making the registration. For no accountable reason he gave a fictitious address
(obviously, having disclosed his connection with the broadcasting station he could
be reached without difficulty or delay, regardless of what residence address he re-
corded). At his first opportunity he reported to Logan on what he had done, made
a full disclosure, and assumed full liability. In the unlikely event the newspapers
became informed in the matter-the potentiality which Cohan testified he considered
so grave-they would have been informed of St. John's assumption of all responsibility
and the station itself would have been fully exonerated. Of course, there is always
the possibility of a "smear" campaign, but Salinas is not New York and there are
no tabloids which pander to sensationalism published in its vicinity. Having seen
and read the local newspaper's reporting of the hearing in this matter, reporting which
was scrupulously fair and completely objective, I think there was no danger from
this quarter and I do not believe that Cohan feared there might be. As to the like-
lihood of the station's license being endangered because of the open but irresponsible
conduct of one of its employees-that was the remotest of remote potentialities.
Despite his open and prompt assumption of responsibility, St. John's unauthorized
use of the station's credit, and the purpose for which it was used, made him vul-
nerable to censure. The question is whether, except for the intervention of the
election petition and Cohan's reasonable and, I think, certain inference that St. John
was involved, would Cohan had regarded the matter of such gravity as to require
the discharge of an otherwise blameless employee, admittedly the best or one of
the best of the announcers ? Except for the intervening petition and Cohan's bias
in the matter, would St. John have been denied his second chance? I think not
With Chambers and Pearlman already discharged, and Toone's discharge effectuated
or decided upon, Respondent's announcer staff, except for supervisory personnel,
was already reduced by a third to a half, and there is no evidence that the Respondent
was prepared for replacements through the hiring of new personnel. Under such
circumstances, considering the delay in the effectuation of the St. John discharge,
Logan's confused and rambling explanation of the delay, the intervening election peti-
tion, the context of other discharges occurring at or about the same time, discharges
apparently aimed at liquidating the ranks of union adherents, considering also St.
John's admitted overall value as an announcer, I am convinced that his harsh and
peremptory discharge resulted in substantial part from his involvement, or suspected
involvement, in organizational activities. I must add in passing, however, that if
the Respondent was in need of pretexts for clearing its station of union adherents,
St. John was most accommodating.
Erickson, one of the three employees to be discharged on February 7, being a
photographer, was not eligible for inclusion in the unit petitioned for, and accord-
ingly did not sign a union card. He had, however, been active from the first in
organizational matters, and attended the January 17 meeting with union representa-
tives at the local motel. The evidence marshalled against him in his performance
of his duties in the photographic unit was weak and unconvincing. Here, as in the
121 am reminded that Brutus, on the eve of the Ides of March, was declaring his senti-
mental regard for the man Julius
KSBW-TV 871
case of Toone, Respondent reached back into September 1961 for a time and mo-
tion study made then to bolster its contention that Erickson was not sufficiently ver-
satile for his time to be occupied with matters important enough to justify his reten-
tion. Again, as in the case of Toone, nothing was said to Erickson to this effect then
or at any time prior to the day of his discharge. Much was made by Respondent's
witnesses of his failure to make extensive use of the Auricon sound and motion pic-
ture camera; his failure to qualify for interchangeability with his superior, Williams;
and his general failure to "develop." However, Williams, who was most closely asso-
ciated with him, testified unequivocally and impressively that Erickson became pro-
ficient in the use of the Auricon camera and that the only reason he did not make
more film with it was that Williams considered that to be his own special province,
his own basic job. Cohan, in canvassing Erickson's discharge with Williams-not
consulting him about it-was adept at bypassing Williams' vouching for Erickson's
proficiency with the Auricon, by posing the question, "Can he handle the Auricon as
good as you?" Williams, with his many years of experience, was obviously more
proficient than any newcomer was likely to be, and Cohan knew that. It was Wil-
liams' credited testimony that Brookings, hired to replace Erickson, could not operate
the Auricon until he, Williams, taught him the elementary techniques of its operation.
Here, as in the case of Toone, we have testimony of conversations between man-
agerial personnel, in this case Cohan and Ferlisi, on Erickson's shortcomings and
the need to replace him with someone who would prove more versatile, but no evi-
dence whatever that supervisory personnel at any time prior to his discharge spoke to
Erickson of his alleged inadequacies or criticised or warned him. In late November,
when all of the alleged shortcomings now brought forward to justify the discharge
must have been evident had they actually existed, Erickson's salary was advanced
from $340 to $375 and Ferlisi, praising him as an "asset to the company" and com-
menting that he fitted in well in Respondent's operations , promised him a raise to
$400 the following June.
Sales Manager Scott's testimony that Erickson was "arrogant," "uncooperative,"
and "quite uninterested," and his attempt to hold Erickson personally responsible
for the loss of two accounts, was a rather transparent effort to bolster the case against
Erickson, as was his testimony that he complained to Cohan about twice a week
about Erickson's noncoeperativeness. Scott knew that Williams, not Erickson, was
in immediate charge of the photographic department, and that Program Director
Coleman also was instrumental in the preparation of copy and speculative film, and
that Erickson worked under the direction of and was answerable to these two. Obvi-
ously, if he had complaints to make he would make them to or concerning those in
charge and not to and concerning a subordinate. As he admitted, "I never spe-
cifically asked for a single thing of anybody but a department head . if it was
possible to reach him." Williams' testimony thoroughly and authoritatively ex-
plored the two accounts whose loss Scott would have attributed to Erickson, and
completely exonerated Erickson of any fault in the matter.
Erickson's discharge, occurring in close time proximity to Toone s and St. John's,
was, I am convinced, integral in Cohan's design to rid the station of those he knew
or suspected were in favor of union representation. His comments to Williams that
he did not think that Erickson had the station, or himself, Cohan, "at heart," and
that Erickson's "attitude was no good," have no specific points of reference in the
evidence, except Erickson's involvement in union activities. Our experience teaches
us that antiunion employers frequently employ such terms as "low morale," "poor
attitude," and "disloyal," as descriptive of those engaging in union activities, and
that Cohan suspected that the photographic department was "infected," is shown by
his interrogation of Pearlman in which he mentioned Williams as one of the suspected
"trouble makers " With Williams he had no problem. According to his testimony,
at the time he discharged Erickson he had been informed that Williams was resigning.
Tidey was one of the leaders in the organizational movement, and a logical target
if, as I believe was the fact, Respondent set about systematically to rid its station of
known or suspected union adherents. He went on leave of absence on February 15
at Cohan's suggestion or direction. It is a reasonable inference from Cohan's testi-
mony-he was frank in the matter-that had Tidey not acceded to Cohan's sug-
gestion, he would have been discharged. Nevertheless, a leave of absence is not
a discharge nor tantamount to a discharge, and the evidence in the matter adduced
thus far supports Respondent's position that at all times since February 15, the
last day he worked, Tidey, though removed from the payroll, has been continued
in the status of an employee on leave of absence I accordingly find that the evidence
does not at this juncture support a conclusion that Tidey was discharged.
An enforced leave of absence, needless to say, may be discriminatory but here there
are circumstances favoring Respondent's position which at least balance with the
proof of discriminatory intent. Tidey, who because of illness had been on leave of
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence for a substantial part of 1961, on February 13 informed Cohan that there
was a probability that he would have to undergo surgery and that "time is running
out." On February 15, Tidey informed Cohan that he would go to San Francisco
on the following day to consult with medical authorities on the removal of his
diseased kidney. Thereupon, Cohan made his suggestion, or issued his instruction,
that Tidey take a leave of absence until the matter of the operation was cleared up.
Pursuant to this suggestion or instruction, Tidey made a formal request for a leave
of absence and it was granted. He had his operation, was hospitalized for a period
and then asked Cohan for his job back. Cohan informed him that he could return
to work on the following Monday provided he could get clearance from his doctor.
The request was a reasonable one. On April 21, Tidey informed Cohan that he
could not as yet obtain medical clearance. There the matter stands.
True, Respondent has permanently replaced Tidey as its news director and on one
of his regular commercial broadcasts, and I found Cohan's testimony evasive, or
at least equivocal, on the subject of Tidey's reinstatement if and when he obtained
medical clearance and applied for his job back. However, reinstatement in the usual
discriminatory discharge case does not necessarily mean reinstatement to precisely
the same position held by the dischargee up to the time of his unlawful discharge,
though it normally must be its "equivalent." In short, my view is that the circum-
stances attending Tidey's leave of absence are too inconclusive at this stage to support
a finding of discrimination, and I shall recommend that the complaint's allegation
of an unlawful discharge in his case be dismissed, without prejudice to its renewal
at a later date if the circumstances warrant such action.
Pearlman, the first of the staff announcers to be notified of his discharge, engaged
in organizational discussions in the studio, attended the meetings at Coleman's and
Toone's respective houses, and on January 18 signed an AFTRA card offered to him
by Tidey and returned by him to Tidey. On January 22, his supervisor, Ferlisi,
manager of TV operations, advised him of the termination of his employment,
telling him that the ratings on his Captain Hook kiddie show had dropped and the
station could no longer afford to keep him on its payroll. He worked through
January 29 and was paid to February 2. According to his credited testimony, on
the morning of January 28 Logan came to his home, said that he had heard that
Pearlman was a troublemaker and trying to stab him, Logan, in the back, and that
if this was not true he had better tell Cohan as the latter had a lot of influence and
could help him find a job. In a subsequent conversation, Cohan also referred to
the troublemakers, but did in fact assist Pearlman in getting another job. These
statements and interrogations by Cohan and Logan do not, however, necessarily
indicate a discriminatory motive in the discharge notice which preceded them; to
the contrary , they indicate that Respondent 's suspicions and surmises as to Pearlman's
union activities arose, or at least ripened, after January 26 when AFTRA's petition
came to Cohan's notice. The filing of the petition would explain Logan's angry
mood and antiunion remarks when he visited Pearlman on January 28, but the
discharge action had already been taken prior to that time, and prior to the filing
of the petition by Ferlisi. I think had Pearlman's discharge actually been predicated
on his union activities, Cohan, and perhaps Logan also, would have been much
more cautious in their statements and interrogations about the "trouble makers."
No such statements or interrogations occurred in .the context of the other discharges.
Also, in contrast with the cases thus far discussed, the evidence that Respondent,
as early as the fall of 1961 was dissatisfied with Pearlman's performance and was
seeking to replace him on the kiddie show, is persuasive. I do not take too seriously
Logan's criticism that he had received complaints from listeners that Pearlman had
been giving their children nightmares because of his hook. From my limited knowl-
edge of audience response to television shows I would think that the steep decline
in the popularity of Pearlman's Captain Hook show probably was due less to its
frightening aspects than to the fact that it was not frightening enough to compete
with the real chiller-dillers, the Westerns, and assorted Gothic horrors of the
Dracula-Frankenstein school, and I am reminded that Long John Silver, who has
titillated the young of many generations and all ages, was himself no daisy. I
would not like to think that we had softened to the Point where the sieht of a hook
where a hand ordinarily would be, would induce nightmares But be that as it may,
the sharp decline of the Captain Hook show in audience popularity was a statistical
fact, and Pearlman's physical handicaps were such as to render convincing the
testimony of Respondent 's witnesses that his usefulness as a television announcer
KSBW-TV 873
was limited. Also, the fact that his limitations were due in large measure to physical
handicaps over which he had no control, may well afford an explanation of why
he was not taken to task for his lack of versatility as an announcer and issued such
warnings as are customarily issued prior to a discharge notice. No such distinctions
existed in the case of Erickson.
Some considerable doubt is raised by Ferlisi's testimony that despite Cohan's
urgings he had not replaced Pearlman earlier because no suitable substitute had
been found, when it is observed that at the time of Pearlman's firing the person
actually designated to substitute for him had been in the Respondent's employ all
along; had not been trained to substitute or "guest star" on the Pearlman show
while the latter was still on the staff; and was actually in training, according to
Coleman's credited testimony, to take a managerial position then occupied by
Coleman when the latter resigned from the staff. Naming him to take Pearlman's
place has every appearance of a makeshift arrangement, hastily arrived at. This,
together with the timing of the discharge in conjunction with the culmination of union
activities at the meeting on January 17, has raised doubts not easily dissipated
though, on the basis of the entire evidence, I am finding that the General Counsel
has not discharged his burden of proof with respect to Pearlman, and will recommend
dismissal of the allegation that he was discriminatorily discharged.
With respect to Chambers I would also extend to the Respondent the benefit of
my doubts, although his discharge just about coincided with Cohan's receipt of the
AFTRA petition. Chambers' difficulty admittedly was of a long standing, but it was
of a nature that it would become cumulatively embarrassing to the station, if, as
appears to be established in the evidence, calls continued to come to the station
complaining about his nonpayment of debts and other financial obligations. Also,
I am convinced that some weeks before his discharge, his superior, Logan, warned
him that if he did not put his financial house in order and the station continued
to be harassed, his discharge would result. Admittedly, there were new provocations
in the form of telephone inquiries and complaints immediately, or shortly, preceding
his discharge, and Logan's action in discharging him appears to have been reasoned
and as amicable as the circumstances would permit-in contrast with his later
conduct with respect to Toone. The exchange occurring between Chambers and
Logan on the occasion of the former's discharge, were neither acrimonious nor
indicative on the part of Chambers that he even suspected that his discharge was
for union activities. The fact is that he appears not to have been involved in any way
in organizational activities. True, in his telephone conversation with Rushmer,
Cohan mentioned Chambers along with others as a "suspect," and a discharge
predicated on a suspicion of union activities is as unlawful as if the activities actually
existed, but this conversation occurred after Chambers had been discharged and it
would be too great a strain to make it relate back to action taken by Logan on a
previous occasion. I shall recommend dismissal of the complaint with respect to
Chambers.
I find that the Respondent discharged Toone, St John. and Erickson because of
their known or suspected union affiliation and activities, thereby discouraging mem-
bership in a labor organization in violation of Section 8(a)(3) and, derivatively,
8(a) (1) of the Act. Logan 's and Cohan's interrogation of Pearlman concerning the
"trouble-makers," and Logan's implied threat that if Pearlman did not clear himself
with Cohan of implication in organizational activities, the latter would not assist
him in getting other employment, occurring in the context of the several discharges,
constituted interference, coercion, and restraint within the meaning of Section 8(a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section TTT, above, occurring in con-
nection with the operations of the Respondent described in section T, above, have a
close intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Havine found that the Respondent discharged Cletus Toone, Mark St. John, and
Robert Erickson because of their union activities, I shall recommend that the Re-
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent offer each of them immediate and full reinstatement to his former or
substantially equivalent position (The Chase National Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to all
rights and privileges to which each is entitled, and that the Respondent make whole
each of them for any loss he may have suffered as a result of the discrimination
against him, by payment to him of a sum of money equal to that which he normally
would have earned from the date of the discharge, February 7, 1962, to the date of
a proper offer of reinstatement, less his net earnings during the said period. The
payments provided for are to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
The General Counsel has proposed as an additional remedy for the unlawful
discharges, an order requiring the Respondent to recognize and bargain with AFTRA
as the representative of its staff announcers, both radio and television, considered as a
single appropriate unit. It is clear that as of the date AFTRA filed its representation
petition it represented a majority of employees in the said unit. The filing of a rep-
resentation petition is not, however, a request or a demand for recognition and
bargaining. Although more than 2 weeks elapsed between the filing of the petition
and a majority of the discharges complained of herein, AFTRA at no time requested
recognition of the Respondent, or took any steps to adjust its differences with the
Respondent over the latter's discharge of certain employees it represented, or did
anything whatever in a representative capacity, except to file its petition and, later,
to file the charges which initiated the proceedings herein. There are discharge cases
in which an order to bargain is required in order to effectuate the policies of the Act,
but I am not persuaded that this is one of those cases.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. AFTRA is, and has been at all times material to the issues in this proceeding, a
labor organization within the meaning of Section 2(5) of the Act.
2. The Respondent is, and has been at all times material to the issues in this
proceeding, an employer within the meaning of Section 2(2) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
3. By discriminating against employees with respect to hire, tenure, terms, and
conditions of their employment, thereby discouraging membership in AFTRA, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
4. By the above conduct, and by the interrogation and implied threat of Super-
visor Richard Logan and the interrogation of President John Cohan, the Respondent
has interfered with, restrained, and coerced employees in the rights guaranteed in
Section 7 of the Act, and has thereby engaged in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Salinas Valley Broadcasting Corporation and/or Central Valley Communications
Corporation, d/b/a KSBW-TV, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in American Federation of Television and Radio
Artists, San Francisco Local, AFL-CIO, or in any other labor organization of its
employees, by discharging any of its employees because of their concerted or union
activities, or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(b) Interrogating in an unlawful manner its employees concerning their union
or concerted activities and the identity of those engaging in union or concerted ac-
tivities, or threatening them with reprisals because of their participation in such
activities.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
2 Take the following affirmative action which is necessary to effectuate the
policies of the Act-
KSBW-TV 875
(a) Offer Cletus Toone, Mark St. John, and Robert Erickson immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to all rights and privileges to which they are entitled, and make them whole in the
manner set forth above in the section entitled "The Remedy."
(b) Preserve, until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board is effectuated, 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 relative to a determination of the amount of backpay due, and to the
reinstatement and related rights provided under the terms of any such order.
(c) Post at its place or business at Salinas, California, copies of the attached
notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by the Respondent's
representative, be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply herewith.14
It is further recommended that, unless within said 20 days the Respondent shall
have notified the said Regional Director that it will comply with the foregoing
Recommended Order, the National Labor Relations Board issue its order requiring
the Respondent to take the action aforesaid.
18 In the event this Recommended Order be adopted by the Board , the words "A Deci-
sion and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
"In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the receipt of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
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 American Federation of Television
and Radio Artists, San Francisco Local, AFL-CIO, or any other labor organiza-
tion, by discharging any of our employees because of their concerted or union
activities, or in any other manner discriminate in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interrogate our employees in an unlawful manner concerning
their union or concerted activities and the identity of those engaging in union or
concerted activities, or threaten them with reprisals because of their union
or concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
WE WILL offer immediate and full reinstatement to Cletus Toone, Mark St.
John, and Robert Erickson and make them whole for any loss they may have
suffered as a result of the discrimination against them.
All of our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization. We will not discriminate in regard
-876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 any labor
-organization.
SALINAS VALLEY BROADCASTING CORPORATION
AND/OR CENTRAL VALLEY COMMUNICATIONS
CORPORATION, D/B/A KSBW-TV,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named emloyees presently serving in the
Armed Forces of the United States of the right to full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street , San Francisco 2, California , Telephone No. Yukon 6-3500, Extension
3191 , if they have any question concerning this notice or compliance with its
provisions.
Amalgamated Meatcutters and Butcher Workmen of North
America, Local #576 and Kansas City Chip Steak Co., Inc.
Case No. 17-CB-347. January 25, 1963
DECISION AND ORDER
Upon a charge filed on July 19, 1962, by Kansas City Chip Steak
Co., Inc., herein called the Company, the General Counsel, by the Re-
gional Director for the Seventeenth Region, issued a complaint dated
August 30, 1962, against Amalgamated Meatcutters and Butcher
Workmen of North America, Local #576, herein called the Respond-
ent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tions 8(b) (3) and 2(6) and (7) of the Act. Copies of the charge, the
complaint, and the notice of hearing before a Trial Examiner were
duly served upon the Respondent.
With respect to the unfair labor practices, the complaint alleged
that by striking against the Company without notifying the Kansas
State labor commissioner concerning the labor dispute between Re-
spondent and the Company, as required by Section 8(d) (3) of the
Act, the Respondent violated Section 8 (b) (3) of the Act. Thereafter,
on September 4, 1962, the Respondent filed an answer denying the ma-
terial allegations of the complaint.
On October 16, all parties to this proceeding entered into a stipula-
tion of facts, and requested that the proceeding be transferred directly
to the Board for findings of fact, conclusions of law, and a decision
and order. The request states that the parties have waived their rights
to a hearing before a Trial Examiner and to the issuance of an Inter-
mediate Report and Recommended Order. The parties also agreed
that their stipulation and certain specified documents shall constitute
the entire record in the case.
140 NLRB No. 80.