Taft Broadcasting

National Labor Relations Board - Board Decisions

Feb 12, 1973

201 N.L.R.B. 801 (N.L.R.B. 1973)

TAFT BROADCASTING
Taft Broadcasting, WDAF-TV, AM-FM and Ameri-
can Federation of Television and Radio Artists,
AFL-CIO, K. C. Local . Case 17-CA-4699
February 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On May 5 , 1972, Administrative Law Judge'
Owsley Vose issued the attached Decision in this
proceeding . Thereafter , the Respondent filed excep-
tions and a supporting brief ,2 the General Counsel
filed cross-exceptions , and the Charging Party filed
an answering brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm only so much of that
Decision as is consistent with this Decision and
Order . We find no error , however , in his rulings on
evidentiary or procedural matters.
1. We agree with the Administrative Law Judge
that the Respondent was not foreclosed from
challenging the continuing majority status of the
Union in December 1970 solely on the basis of the
Respondent 's unremedied 1968 unfair labor practice
in Case 17-CA-3637. The Board found on August
27, 1970, that the Respondent's unilaterally abrogat-
ing the arbitration feature of the "interim agreement"
under which the Respondent continued to recognize
and to deal with the Union when the collective-
bargaining contract expired on September 30, 1965,
constituted an unfair labor practice in violation of
Section 8 (a)(5) and ( 1) of the Act ( 185 NLRB No.
68). The General Counsel and the Charging Party
contend that the majority issue could not be raised in
the context of the above illegal conduct.
In refusing to rely solely on a single unremedied
unfair labor practice as a basis for finding the
Respondent 's conduct violative of the Act, the
Administrative Law Judge noted that the Board's
Order was extremely narrow in scope , merely
requiring the Respondent not to abrogate the
arbitration procedure in the future without first
The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Respondent has requested oral argument . This request is hereby denied
because the record, the exceptions , and the brief adequately present the
issues and positions of the parties.
3 As discussed in detail in the Administrative Law Judge 's Decision, the
Union unsuccessfully attempted to show that the Respondent was
801
bargaining with the Union, and would not be apt to
have detrimental or lasting effects upon employees in
the unit. We find significant, as did the Administra-
tive Law Judge, that no independent violations of
Section 8(a)(1) of the Act or any other violations of
the Act are involved herein, that 28 months had
elapsed between the Respondent's unilateral action
and the withdrawal of recognition, and that many
months of good-faith bargaining took place between
the parties during that period.
2. The Administrative Law Judge found, howev-
er, that while the above unremedied unfair labor
practice standing alone was not a basis for finding
that the Respondent violated the Act when it
questioned the Union's majority status and withdrew
recognition on December 9, 1970, that this conduct
considered in the context of the totality of the factors
relied on by the Respondent weakened the Respon-
dent's contention that it had an objective basis for its
good-faith doubt. He concluded that Respondent
had not sustained its burden of showing sufficient
objection facts to support its alleged good-faith
doubt when it withdrew recognition. He therefore
found that the Respondent violated Section 8(a)(5)
and (1) of the Act. For the reasons set forth below,
we do not agree.
The sequence of events leading to the alleged
refusal to bargain and the withdrawal of recognition
may be summarized as follows: The Union was
certified by the Board in 1948 as exclusive collective-
bargaining representative of certain employees in
radio station WDAF. After three subsequent changes
in ownership, the Respondent purchased what had
then become a television and radio station in April
1964 from Transcontinent Television Station. At the
time of the acquisition there was a collective-bargain-
ing agreement in effect which was due to expire on
September 30, 1965. The Respondent continued to
recognize the Union and assumed the contract as a
successor employer.
After negotiations for a new contract had failed on
September 30, the contract's expiration date, the
labor agreement between the Respondent and the
Union was extended by mutual agreement to
December 1965 as an "interim agreement." Although
negotiations between the parties continued in the
1966-69 period, the contract which expired in
December 1965 was the last collective-bargaining
agreement involving the parties.3
bargaining in bad faith during this period: (1) 17-CA-2800, filed December
2, 1965, dismissed by the Board (163 NLRB 475); (2) 17-CA-2960, filed
June 29, 1966, appeal from the Regional Director's refusal to issue
complaint, denied by the General Counsel; (3) 17-CA-3514, filed March 15,
1968, appeal from refusal to issue complaint, also denied by the General
Counsel; (4) 17-CA-4087, filed September 23, 1969, consolidated with
17-CA-4284, filed May 4, 1970, in which the General Counsel again
(Continued)
201 NLRB No. 113
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between September 15 and 22, Schnabel, the
Union's executive secretary , worked out what he
assumed was a mutually satisfactory bargaining
agreement . He went to the station and attempted to
deliver the corrected copies of the agreement and to
obtain the signature of TV Manager Remington and
Radio Manager Bolton . Remington 's secretary told
Schnabel in effect that Remington would have
nothing to do with him. Schnabel , nevertheless, left
copies of the agreement with Remington 's secretary,
saying that he would remain in the building an hour
and that he hoped that Remington and Bolton would
meet with him and sign the agreement . Schnabel also
left copies of the agreement with Radio Manager
Bolton's secretary . The Respondent did not sign the
agreement and no further bargaining meetings were
held after September 15, 1969.
In October 1970 Union Executive Secretary Schna-
bel's job was abolished for economy reasons and
Raymond A. Jones, a national director for the Union
who had his office in Chicago, took over Schnabel's
role in dealing with the Respondent . Around
November 9, 1970, Jones contacted both Radio
General Manager Bolton and TV Manager Ro
Grignon (who had succeeded Remington in the
spring of 1970) and requested them to set a date for
the resumption of negotiations for a new agreement.
In a letter dated November 13, 1970, he reiterated
that request . Stewart, an attorney for the law firm
representing Respondent , responded to these com-
munications , and informed Jones that Respondent
would have an answer by December 9.
After contact with Jones , Stewart investigated the
bargaining situation . Among the matters which he
found to be significant were : ( 1) various expressions
of employee dissatisfaction with the Union made to
Respondent 's officials ; (2) the relative inactivity of
the Union in recent years ; and (3 ) the almost 100-
percent turnover of employees since the last collec-
tive-bargaining contract.
Based on the above factors , the Respondent
concluded that the Union no longer represented a
majority of the unit employees . To test this conclu-
sion the Respondent decided to conduct a poll of
employee sentiments . On December 2 or 3, 1970,
Bolton contacted a firm of certified public accoun-
tants , and made arrangements with the firm to
conduct a secret poll of the employees in the unit on
December 7 and to utilize the services of a Pinkerton
guard to insure the secrecy of the ballot.
sustained the Regional Director's refusal to issue a complaint
However, a charge filed on August 2, 1968 , alleging, inter aha, that the
Respondent rejected the Union's demand for arbitration , resulted in a
Board decision finding an 8(a)(5) violation (185 NLRB No. 68) and was
enforced by the Eighth Circuit on June 14 , 1971 (144 F2d 1382). This
conduct has been discussed supra
4 No allegations were made , nor does the complaint allege, that the
As discussed in accurate detail in the attached
Decision of the Administrative Law Judge, only
selected management officials were informed of the
plans and they were instructed to keep this informa-
tion completely secret from the employees. The
employees in the unit were merely informed on
December 4, 1970, a payday, that there would be
important meetings on December 7, 1970, in the
conference room, and they were urged to attend. The
meetings were scheduled for both the morning and
the afternoon to accommodate the varying schedules
of the employees. All 28 employees in the unit were
notified of the meeting.
Before the polling the radio program director read
a prepared statement which explained that the
purpose of the election was to determine if the Union
represented a majority of the employees in the unit.
The statement emphasized that the poll was volun-
tary, that employee votes would be secret, and that
there would be "absolutely no reprisals " regardless of
how employees voted. The employees were then
asked to leave the room and they were readmitted
one at a time to vote. The ballot required the
employees to check "Yes" or "No" whether they
wished the Union to continue as their exclusive
bargaining agent. Of the 28 employees contacted 22
showed up in response to notices of the meetings and
all 22 cast ballots. The outcome of the voting was an
11-11 tie among those voting.4
On December 9, 1970, Attorney Stewart wrote
National Director Jones a letter stating that the
Respondent had substantial information , including
the results of a secret ballot election, which estab-
lished that a majority of the employees in the
appropriate unit no longer wished to be represented
for purposes of collective bargaining by the Union.
The Union rejected the Respondent's contentions
and reiterated its request that collective bargaining
be resumed. When the Respondent refused to
continue bargaining, the Union filed the above
8(a)(5) charge, on June 2, 1970, and the General
Counsel issued a complaint on December 10, 1971.
The legal principles relating to withdrawal of
recognition of a bargaining representative are well
settled. Absent special circumstances, a union enjoys
an irrebuttable presumption of majority status for 1
year after certification.5 Thereafter, the presumption
continues , but becomes rebuttable6 upon a sufficient
safeguards required by the Board for holding private polls were violated
See Struksnes Construction Co, Inc , 165 NLRB 1062.
5 Brooks v . N.LR B, 348 U S 96: Celanese Corporation of Amenca, 95
NLRB 664.
6 Viking Lithographers, Inc, 184 NLRB No. 16; United Electric Company,
199 NLRB No. 110, GAF Corporation. 195 NLRB No. 11.
TAFT BROADCASTING
showing to cast serious doubt on the union's
continued majority status.? At that point, the burden
shifts to the General Counsel to prove that, on the
critical date, the union in fact represented a majority
of the employees.8
In discounting the factors relied on by the
Respondent to rebut the presumption that the Union
continued to enjoy majority status, the Administra-
tive Law Judge made the following findings and
conclusions as to the evidence relied on by the
Respondent: (1) Employee expression of dissatisfac-
tion. Since at most only a minority of the employees
working at the time the Respondent made its
decision expressed dissatisfaction with the Union,
such expression hardly constituted an objective basis
for concluding that a majority of the employees in
the unit no longer wished representation. (2) The
inactivity of the Union at the station . The hiatus of
bargaining demands, the lack of overt union activity
around the station, the absence of employees on the
bargaining committee, and the lack of grievance
processing, according to the Administrative Law
Judge, were attributable to the Respondent's conduct
and attitude. Furthermore the Administrative Law
Judge noted that the absence of employees on the
Union's negotiating committee was not recent and
had continued for over 4 years prior to the time of
the Respondent's withdrawal of recognition. (3)
Employee turnover. Although employee turnover was
extremely high, e.g., of the approximately 28 employ-
ees in the unit at the time of the Respondent's
withdrawal of recognition in December 1970, only 5
were in the employ of Respondent in August 1968,
the Administrative Law Judge emphasized that
turnover standing alone did not provide a reasonable
basis for believing that the Union lost its majority
since the original certification. (4) The employee poll
held on December 7, 1970. The Administrative Law
Judge interpreted the 11-11 vote as conclusive
evidence which removed any good-faith doubt that
the Respondent might otherwise have had that the
Union was still a viable organization since the vote
did not show that a majority of the employees were
against union representation.
While it is clear, as pointed out by the Administra-
tive Law Judge, that each of the factors relied on by
the Respondent standing alone may have weaknesses
as a basis for supporting a good-faith doubt of the
Union's majority status, we note that the Respondent
does not rely on any one reason alone, but rather on
all as a whole. In our opinion the Respondent has
produced sufficient evidence when considered in its
entirety to cast serious doubt on the Union's
continued bargaining role and to support Respon-
dent's decision to reassess the Union's majority
status . The factors relied on, particularly the employ-
803
ee poll which showed that sentiment regarding the
Union was evenly divided, weakened the presump-
tion that on the critical date the Union in fact
represented a majority of the employees. Significant-
ly, the Respondent here engaged in no independent
unfair labor practices , and was dealing with a union
which had been certified more than 20 years
previously, and had never negotiated a collective-
bargaining contract with the Respondent. The record
supports the finding that the Respondent had been in
continuous good-faith bargaining with the Union
since 1966 to negotiate a contract . At no time was the
Union's majority affirmatively asserted by the
General Counsel, and in fact from an evaluation of
the entire record such majority status would appear
to be in serious doubt.
In sum, we conclude that, at the time it withdrew
recognition, the Respondent had sufficient objective
grounds for believing that a majority of the employ-
ees no longer desired union representation .9 Since
the General Counsel failed to come forward with
evidence that on the refusal-to-bargain date the
Union in fact did represent a majority of employees
in the unit in question , the allegations in the
complaint are found to be without merit.10 Accord-
ingly, we find that Respondent did not violate
Section 8(a)(5) of the Act, and shall dismiss the
complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
7 See Stoner Rubber Co., 123 NLRB 1440, 1445 . Accord, NLRB v.
John S Swift Company, Inc., 302 F .2d 342 (C.A. 7).
9 Stoner Rubber Co., supra. Chairman Miller wishes to record his
uncertainty as to whether , even if General Counsel proves actual majority
status, this would justify an 8(aX5) finding upon a record showing that
Respondent withdrew recognition at a time when there were objective
circumstances warranting the Respondent 's conclusion that the Union
lacked majority status . Since no proof of majority status was offered by the
General Counsel here , the comments of the majority as to which the
Chairman harbors uncertainty cannot affect the result in this case.
9 See Southern Wipers, Inc., 192 NLRB No. 135.
10 For Chairman Miller 's reservation on the implication of this sentence
of our opinion , see fn. 8, supra.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case was heard at
Kansas City, Missouri , on February 8 and 9, 1972,
pursuant to a charge filed on June 2 , 1971, and a complaint
issued on December 10, 1971. The complaint presents the
question whether the Respondent 's withdrawal of recogni-
tion from the Charging Party (herein called the Union) on
December 9, 1970 , violated Section 8(a)(5) and (1) of the
Act. Subsidiary questions raised by the complaint are (1)
whether the Respondent 's earlier unremedied unfair labor
practice in a case involving the Respondent's unilateral
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abrogation of the arbitration step in the grievance
procedure of an interim agreement between the Respon-
dent and the Union precluded the Respondent from
questioning the Union's majority status when the Union
requested the resumption of bargaining negotiations in
November 1970; and (2) whether the Respondent has
sustained its burden of showing objective facts supporting
its claim that it had good-faith doubts as to the Union's
majority status when it withdrew recognition from the
Union in December 1970.
Upon the entire record in the case,' from my observation
of the witnesses, and having considered the comprehensive
briefs filed by the parties, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in
commercial radio and television broadcasting at locations
in various States, including station WDAF-TV, AM-FM
in Kansas City, Missouri. During 1971 the Respondent
derived a gross income of more than $100,000 from sales of
its services , of which in excess of $50,000 was received from
customers outside of Missouri . Upon these facts I find, as
the Respondent admits, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
American Federation of Television and Radio Artists,
AFL-CIO, K.C. Local , is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's Withdrawal of Recognition
From the Union on December 9, 1970, in Violation
of Section 8(a)(5) and (1) of the Act.
On May 17, 1948, the "American Federation of Radio
Artists, Kansas City Local, AFL" was certified as exclusive
collective-bargaining representative of certain employees at
Radio Station WDAF which was then owned by the
Kansas City Star. After two other subsequent changes in
ownership, the Respondent purchased the television and
radio station in April 1964, from Transcontinent Television
Station. At the time of this acquisition, there was in effect
between the Union and Transcontinent a collective-bar-
gaining agreement which was due to expire on September
30, 1965. The Respondent continued to recognize the
I After the close of the trial the parties submitted a joint motion to
correct the transcript of testimony and to receive in evidence certain
General Counsel's exhibits which were inadvertently omitted from the
record This motion is hereby granted The original copy of the transcript of
testimony has been physically corrected to reflect the requested changes
The motion to correct the transcript has been included as TX Exh I at the
top of the folder of G.C Exhs (originals).
2 Shortly before the stoke began the Union filed a charge against the
Respondent with the Board 's Regional Office alleging among other things, a
refusal to bargain collectively in violation of Sec 8(a)(5) and ( 1) of the Act
(Case 17-CA-2800) On March 20, 1967, the Board dismissed the complaint
in its entirety Thereafter, on April 18, 1968, the Court of Appeals for the
District of Columbia Circuit upheld the Board 's dismissal of the complaint
(395 F 2d 622)
Union as the exclusive collective-bargaining representative
of a unit of its employees covered by this agreement under
its obligation as a successor-employer to Transcontinent.
The agreement contained a union-security clause, but no
dues-checkoff provision.
The labor agreement between the Respondent and the
Union was extended by mutual agreement to December
1965, after negotiations for a new contract had failed on
September 30. When the December negotiations failed to
culminate in an agreement , the Union called a strike
against the Respondent which began on December 12,
1965.2 The labor agreement assumed by the Respondent in
1964 and which expired in December 1965 was the last
labor agreement reached by the parties , although negotia-
tions between the parties continued in the 1966-69 period.
The strike continued until April 18, 1966, at which time
the parties entered into a "strike settlement agreement"
which was, in essence , a rough draft of a complete
collective-bargaining agreement . The Respondent was to
prepare the document in final form and submit it to the
Union for execution . When the Respondent submitted the
finished agreement in June 1966 , the Union refused to
execute it because of asserted discrepancies between the
rough draft and the final document.3
On April 3, 1967, the Respondent notified the Union by
letter that since the Union had not accepted the final draft
submitted to it on June 22, 1966, the Respondent was
rescinding any understandings reached in the negotiations
leading up to the submission of the final document.
However, in the same letter the Respondent informed the
Union that it was the Respondent 's intention to continue
in effect the wages , hours, and other conditions of
employment as proposed in its draft of June 22, 1966, and
that it would continue handling grievances in accordance
with the procedures set forth therein, which included
arbitration as the final step of the grievance procedure. The
Union did not respond to the Respondent 's letter of April
3, 1967, but by its subsequent conduct indicated its
acquiescence in this arrangement . The Board, in a
subsequent decision discussed in footnote 5 below (Case
17-CA-3637), termed this arrangement an "interim agree-
ment."
On August 30, 1967, the Union submitted a contract
proposal to the Respondent. Bargaining meetings followed
but no agreement was reached . On March 13, 1968, the
Union proposed to the Respondent that it continue
payments to the pension and welfare fund of the Union,
but this proposal was rejected by the Respondent.4
The termination of employment of Martin Gray on
3 About this time, on June 29, 1966, the Union filed another charge
against the Respondent , alleging, among other things , a refusal to bargain
collectively based on alleged unilateral changes and insistence upon
nonmandatory bargaining subjects (Case 17-CA-2960). The Regional
Director on December 26, 1%7, refused to issue a complaint and his action
was finally upheld by the General Counsel on April 22, 1968
4 Thereafter , on March 15, 1%8, the Union filed a charge against the
Respondent alleging, among other things , that the Respondent's action in
ceasing to make contributions to the Union 's pension fund, in making
certain other unilateral changes, and in refusing to furnish certain
information violated Sec. 8(ax5) and ( 1) of the Act (Case 17-CA-3514). The
Regional Director 's refusal to issue a complaint was ultimately upheld by
the General Counsel on August 16, 1%8.
TAFT BROADCASTING 805
February 2, 1968, and certain other conduct by the
Respondent led to a demand by the Union of the
Respondent early in July 1968 for arbitration regarding the
matters of Gray's termination and the Respondent's
alleged noncompliance with the annual earnings guarantee
provision of the interim agreement . By letter dated July 22,
1968, the Respondent rejected the Union's demand for
arbitration, asserting that no such contractual obligation
existed.5
The parties continued to have bargaining meetings in
1969. At a meeting on September 15, 1969, the Union
handed the Respondent a letter stating that the Union
accepted the Respondent's proposal as it then stood, with
reservations as to certain items which, in the Union's
opinion, either were unlawful or dealt with nonmandatory
bargaining subjects. On September 18, after having the
Respondents' proposals prepared in contract form for
signature, David Schnabel, the Union's executive secretary,
delivered copies of the agreement to Louis Bolton, general
manager for radio, and Jack Remington , general manager
for television. Thereafter, William Engeman, an attorney
with the law firm representing the Respondent in the
negotiations, advised Schnabel that three items were
incorrect. Although, according to Schnabel's credited and
undenied testimony, he did not agree with Engeman's
position on these items, he changed the agreement "just to
get the thing executed." The record fails to show, however,
that the change in these three items eliminated all of the
Union's reservations concerning the Respondent's contract
proposals. On September 22 Schnabel went to the station
with the corrected copies to obtain the signatures of Bolton
and Remington thereon. Schnabel went to the office of TV
Manager Remington first. Remington's secretary informed
Schnabel as follows, as Schnabel testified without contra-
diction:
She told me Mr. Remington had been instructed not to
talk to me, not to meet with me, not to discuss anything
or to sign anything, and that he would not see me.
Schnabel, nevertheless, left copies of the agreement with
Remington's secretary and departed, saying that he would
remain in the building an hour and that he hoped that
Remington and Bolton would meet with him and sign the
agreement . Schnabel then went to the office of Radio
Manager Bolton and left copies of the agreement with his
secretary. The Respondent did not sign the agreement.6
No further meetings were held after the September 15,
5 Following the rejection of its demand for arbitration, the Union on
August 2, 1968, filed a charge alleging , among other things , a violation of
Sec. 8(a)(5) and (I) of the Act in connection with the Respondent's rejection
of the Union's demand for arbitration (Case I7-CA-3637). This charge
culminated, over 2 years later, in a Board decision finding that the
Respondent had taken unilateral action regarding a matter covered by the
interim agreement , in violation of Sec. 8(a)(5) and (I) of the Act. This
decision was issued on August 27, 1970, just a few months before the events
involved in this case , which took place mainly in November and December
1970. The Respondent did not comply with this decision , but, as was its
right, filed a petition for review of the Board 's Order in the United States
Court of Appeals for the Eighth Circuit on September 1, 1970. This petition
was pending at the time of the events involved in this case . On May 17,
1971, many months after the Respondent's withdrawal of recognition from
the Union on December 9, 1970, the court of appeals issued its opinion
denying the Respondent' s petition and enforcing the Board's Order.
6 On September 23, 1969, the Union filed a charge alleging, among other
things, that the Respondent had refused to sign a previously agreed-upon
1969, meeting. The Union was apparently relying on the
processes of the Board to secure the execution by the
Respondent of the agreement embodying the Respondent's
final proposals subject to the reservations mentioned
above. The Respondent, however, continued to recognize
the Union as the exclusive bargaining representative of the
unit employees and considerable correspondence was
exchanged between the parties. Much of this correspond-
ence related to the Union's regular requests for data
concerning the earnings of the employees which the
Respondent complied with. Other matters covered in the
correspondence dealt with an individual contract with a
certain artist, proposed changes in job assignments, and
the Respondent's profit-sharing plan.7
1. The Union's requests for further bargaining
meetings in November 1970
In October 1970 Union Executive Secretary Schnabel's
job was abolished in an economy move and he was
terminated at that time. Raymond A. Jones, a national
director for the Union who had his office in Chicago,
assumed Schnabel's role in dealing with the Respondent.
Around November 9, 1970, just 3 weeks after the General
Counsel finally denied the Union's appeals in Cases
17-CA-4087 and 17-CA-4284 (Case 17-CA-4087 was the
case in which the Union charged, in part, that the
Respondent had refused to execute a previously agreed-
upon contract), Jones called both Radio General Manager
Bolton and TV General Manager Ro Grignon (Grignon
had succeeded Remington as TV general manager in the
spring of 1970) and requested them to set a date for the
resumption of negotiations for a new agreement. In a letter
dated November 13, 1970, to both general managers, Jones
reiterated his request that the Respondent agree on dates
for the continuation of negotiations.
Frank H. Stewart, another attorney in the law firm
representing the Respondent, answered this letter, first by
telephone to Jones on November 30, 1970, and then by
letter to Jones dated December 1, 1970. In the letter
Stewart stated that he had to familiarize himself with the
details of the case and would respond to Jones' letter of
November 13 by December 9.
collective-bargaining contract , and had made unilateral changes in unit
employees' duties, in violation of Sec. 8(aX5) and (I) of the Act (Case
17-CA-4087). On January 26, 1970 , the Union filed an amended charge in
this case alleging that the Respondent had further violated Sec . 8(aX5) and
(1) of the Act by discriminatorily excluding unit employees from eligibility
in the Respondent's profit-sharing plan. The charges in this case were later
consolidated with the charges filed in Case 17-CA-4284 and the Regional
Director refused to issue a complaint in both cases on May 15, 1970. The
General Counsel sustained the Regional Directors action on October 19,
1970.
r The Respondent 's refusal in a letter received by the Union on April 22,
1970, to comply with the Unions request for information on the operation
of the Respondent's profit-sharing plan led to the filing , on May 4, 1970, of
the charge in Case 17-CA-4284. This is the case which was consolidated
with Case l7-CA-4087. As stated above, the Regional Director refused to
issue a complaint in the consolidated cases and his action was upheld by the
General Counsel on October 19, 1970.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent's reaction; its polling of the
employees on December 7
Stewart, whose office is in Cincinnati, Ohio, conferred
with Bolton and Grignon over the telephone about
December 1. Among the matters discussed, according to
Bolton, was the fact that the Respondent had received no
request for a bargaining meeting for over a year, that
employees had expressed dissatisfaction with the Union,
that there had been very little apparent recent union
activity, and that there had been almost 100 percent
turnover in personnel. Stewart inquired of Bolton and
Grignon what the situation was with respect to shop
stewards at the station. He was informed that after the
termination of two of the shop stewards in 1968 and the
promotion of the third in the early fall of 1970 to a
supervisory position, the Union had not informed the
Respondent as to their successors. Upon Stewart's inquir-
ing as to whether employees had been participating in the
negotiating sessions, he was told that not since the middle
of 1966 had employees taken part in the bargaining
meetings. According to Bolton, these discussions led
Bolton, Grignon, and Stewart to conclude that the Union
no longer represented a majority of the unit employees.
On December 2 or 3, 1970, Bolton contacted Peat,
Marwick, Mitchell & Co., a firm of certified public
accountants, and made arrangements with the firm to
conduct a secret poll of the employees in the unit on
December 7, and to utilize the services of a Pinkerton
guard to insure the secrecy of the ballot. In addition to
Bolton and Grignon, only their immediate subordinates,
Jack Elliott, program director for radio, and Kenneth Coy,
program director for television, were informed of the plans
for the poll and they were instructed to keep this
information completely secret.
On Friday afternoon, December 4, 1970, a pay day,
Program Director Coy personally delivered to each of his
employees who came to the station that day sealed
envelopes containing the following message:
There will be an important meeting Monday, Decem-
ber 7, 1970 in the Conference Room at 10:15 A.M.
Please be there.
Kenneth Coy
P.S. In the event you are unable to make this meeting,
another meeting will be held at 4 PM in the Conference
Room.
Envelopes were left in the employees' mailboxes for those
who did not report to the station that day.
Program Director Elliott left the envelopes containing
identical notices signed by him in the employees' mailbox-
es. Later, he personally inquired of each employee as to
whether he had received the notice . Elliott personally
notified by telephone two part-time employees of the
meeting . These employees had no duties at the station that
day.
Both Elliott and Coy were instructed not to say anything
further when they gave the meeting notices to the
employees. When two employees questioned Coy as to the
purpose of the meeting, he replied that he could not tell
them, that the notice spoke for itself . One of the full-time
announcers , Karl Sonkin, the labor reporter, planned to be
on vacation in Texas on the day of the meeting. When
Sonkin asked Coy whether he should fly back from Texas
to attend the meeting, Coy told him that he (Coy) could
not make that decision , that Sonkin had the notice, and
that was all he could tell him.
As a result of the manner in which the employees were
notified of the meeting, none of the employees were aware,
when they arrived at the meeting , that they were going to
be invited to vote on acceptance or rejection of the Union
as their exclusive bargaining representative. Bolton ex-
plained that it was decided to notify the employees of the
meeting in the manner which the Respondent did because
the Respondent wished to avoid campaigning before the
vote. All 28 employees in the appropriate unit were notified
in one way or another of the meetings that day.
After the employees assembled in the conference room at
10:15 a.m. Radio Program Director Coy, in the presence of
Television Program Director Elliott, read the following
statement through twice:
AFTRA has demanded that we sit down and bargain
with it. AFTRA cannot legally make this demand
unless it represents a majority of our on-the-air
employees (including air-coordinators and floor man-
agers). We doubt that it does represent a majority, but
to resolve this doubt, we ask your expression of true
sentiment about AFTRA, by secret poll.
We seek such an expression from you because the last
AFTRA contract expired in 1965. There has been no
contract since then , and we have no expression of
current majority. We will recognize and bargain with
AFTRA only if it represents more than 50 percent of
you. If we do not deal with AFTRA as your agent, we
will deal with you on an individual basis.
Beneath the question will be a place for a "yes" or "no"
choice.
If you wish to mark the poll, please do so in the
conference room, which has been set aside and secured
for this purpose. Please mark the poll BUT DO NOT
SIGN IT OR IN ANY WAY INDICATE YOUR
IDENTITY. After you have marked the poll , please
fold it and deposit it in the sealed box marked X.
No one can know how you mark the poll. Even if the
stations knew how you did indicate your choice, there
would be absolutely no reprisals of any kind for the
sentiments you register.
Your cooperation is important, but voluntary and
much appreciated. The poll will be conducted from 10
to 12 a.m. and 4 to 6 p.m. on Monday, December 7.
The sealed box will be opened on December 7 at 6 p.m.
Anyone who is interested may attend the opening and
counting of the poll.
To insure complete secrecy, the poll will be guarded by
Pinkerton guards.
Coy asked the employees to leave the room so that they
could be readmitted one at a time for the polling. No
mention was made in the statement of the recent Board
decision holding that the Respondent had violated the
interim agreement by unilaterally abrogating the arbitra-
tion phase of the grievance procedure and that this
question was then pending in the court of appeals. As each
TAFT BROADCASTING 807
employee returned to the conference room he was handed
a ballot by a representative of Peat, Marwick, Mitchell &
Co. and told to go behind the screen and mark and place
the ballot in the ballot box. The ballot read as follows:
Do you wish AFTRA to act as your exclusive
bargaining agent in your dealing in wages, hours and
working conditions with Station WDAF?
No Yes
The same procedure was followed at the 4 p.m. meeting.
The only other representative of the Respondent present
during the meetings beside Coy was Radio Program
Director Elliott. Coy and Elliott left the conference room
on both occasions immediately after Coy read the
statement.
Before the balloting Bolton had furnished Peat, Mar-
wick, Mitchell & Co. with a list of the 28 employees in the
appropriate unit. In preparing the list Bolton, as he
testified, resolved any questions in his mind concerning the
inclusion or exclusion of an employee in the unit in favor
of inclusion. Twenty-two employees showed up at the
conference room in response to notices of the meetings and
all 22 cast ballots. The outcome of the voting was an 11-11
tie among those voting.
3. The Respondent's withdrawal of recognition on
December 9, 1970
On December 9, 1970, Attorney Stewart wrote National
Director Jones a letter bearing the following text:
I am writing you this letter on behalf of the station
managers of WDAF-AM-FM-TV . Substantial infor-
mation now in their possession, including the results of
a secret ballot of WDAF employees in the bargaining
unit represented by your labor organization , establishes
that a majority of employees in the appropriate unit no
longer wish to be represented for purposes of collective
bargaining by AFTRA. Accordingly, under the law we
must respectfully decline to recognize your union for
purposes of collective bargaining as requested in your
letter of November 13.
The Union replied through its attorney , C. David Whipple,
in a letter in which it rejected the Respondent 's contentions
and reiterated the Union's request that collective bargain-
ing be resumed between the parties . Subsequent thereto,'
the parties exchanged correspondence , each holding firmly
to the same position.
B. The Contentions of the Parties; Conclusions
1. The applicable legal principles
The General Counsel relies on the presumption of
majority status flowing from the certification and the
Respondent's long recognition of the Union as the
exclusive bargaining representative of the unit employees
as proof of the Union's majority status at the time of its
request for the resumption of negotiations in November
1970. As stated in Laystrom Manufacturing Co., 151 NLRB
1482, 1483-84:
Absent unusual circumstances, there is an irrebutta-
ble presumption that the majority status of a certified
union continues for 1 year from the date of certifica-
tion. After the first year the certificate still creates a
presumption of majority status, but the presumption is
normally rebuttable by an affirmative showing that the
union no longer commands a majority. Moreover,
where the certificate is a year or more old an employer
may withhold further bargaining without violating the
Act and insist that the union reestablish its statutory
representative status if, but only if, he in good faith has
a reasonable doubt of the union's continuing majority.
A showing of such doubt, however, requires more
than an employer 's mere assertion of it and more than
proof of the employer' s subjective frame of mind. The
assertion must be supported by objective considera-
tions. The applicable test, as defined in the Celanese
case, is whether or not the objective facts furnish a
"reasonable basis" for the asserted, doubt, or, put
another way, whether or not there are "some reasona-
ble grounds" for believing the union has lost its
majority status since its certification. [Citing Celanese
Corporation of America, 95 NLRB 664; other citations
omitted.]8
A second prerequisite to be satisfied by an employer
claiming to have a good-faith doubt as to a certified or
recognized union 's continuing majority status, as the Board
stated in the Celanese case, 95 NLRB at 673, is that:
... the majority issue must not have been raised by
the employer in a context of illegal antiunion activities,
or other conduct by the employer aimed at causing
disaffection from the union or indicating that in raising
the majority issue the employer was merely seeking to
gain some time in which to undermine the union.
The General Counsel and the Union strongly urge that
on the facts of this case the Respondent has not met the
second prerequisite and that the Respondent's claim of
good-faith doubt must be rejected on this ground alone,
without reaching the question of the adequacy of the
Respondent's showing of objective considerations support-
ing its conclusion that the Union no longer represented a
majority of the unit employees.
2. The question whether the Respondent is barred
from challenging the Union's continuing majority
status by its prior unremedied unfair labor practice
The General Counsel and the Union rely on the
Respondent's unilateral abrogation of the arbitration
feature of the interim agreement which the Board found on
August 27, 1970, to constitute an unfair labor practice in
violation of Section 8(a)(5) and (1) of the Act-an unfair
labor practice which remained unremedied at the time of
the Respondent's withdrawal of recognition from the
Union in December. (As stated above, at this time the
Respondent was requesting the Court of Appeals for the
Eighth Circuit to set aside the Board's Decision and Order
in this case, an action which ultimately proved to be
unsuccessful.) The General Counsel and the Union argue
8 While the Court of Appeals for the Seventh Circuit set aside the set forth above , but rather differed with the Board on the application of
Board's Order in the Laystrom case in an opinion dated April 19, 1966 (359 these principles on the facts of the Laystrom case.
F.2d 799), the court did not express disagreement with the legal principles
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent's unilateral action regarding arbitra-
tion of grievances necessarily adversely affected the
Union's representative status and tended to weaken its
prestige and strength as bargaining agent, with erosion of
majority support the probable result. In these circum-
stances, the General Counsel and the Union contend the
Respondent is foreclosed from questioning the Union's
majority status, citing C & C Plywood Corp., 163 NLRB
1022, and Key West Coca-Cola Bottling Co., 150 NLRB
892.
The Respondent, citing the very narrow scope of the
Board's Order in Case 17-CA-3637 and the long interval
between the commission of the unfair labor practices in
Case 17-CA-3637 in August 1968, and the withdrawal of
recognition from the Union in the instant case, in
December 1970, contends that it was not precluded from
raising the issue of the Union's majority when the Union
requested bargaining in November 1970.
In Case 17-CA-3637 the Board found a single violation
of the Act in the Respondent's unilateral abrogation of the
grievance procedure. No independent violations of Section
8(a)(I) of the Act or any other violations of the Act were
found in this case. The Board's Order in Case 17-CA-3637
contains neither an affirmative provision requiring the
Respondent to bargain collectively with the Union nor a
provision requiring the Respondent generally to cease and
desist refusing to bargain collectively with the Union. The
Board's Order merely requires the Respondent to cease
and desist from unilaterally eliminating the procedure for
arbitration under the existing terms and conditions of
employment without first bargaining collectively with the
Union. Affirmatively, the Board's Order in Case
17-CA-3637 directs the posting of a notice stating the
Respondent will not refuse to bargain collectively with the
Union by unilaterally eliminating the arbitration proce-
dure.
Compliance with the Board's Order in Case 17-CA-3637
merely requires the Respondent in the future not to
attempt to abrogate the arbitration procedure without first
bargaining with the Union about the matter. The Board's
Order does not require that the Respondent submit to
arbitration the two specific grievances which were involved
in the Respondent's unilateral action. In this respect the
Board's Order in Case 17-CA-3637 is unlike the order
involved in the earlier C & C Plywood case (148 NLRB 414,
418-419) in that that order required the employer, upon
request, to bargain collectively with the union about the
unilateral action taken and, upon request, to rescind the
unilateral action. An unremedied order of this kind, in my
opinion, would be apt to have a much more lasting effect
upon employees, insofar as inducing defections from the
union is concerned, than the negative type order that is
involved in Case 17-CA-3637.
Another factor to be considered in deciding whether the
Respondent's unremedied 1968 unfair labor practice in
Case 17-CA-3637 should bar it from questioning the
Union's majority status in December 1970 is the fact that
9 In my opinion the antecedent unfair labor practices in the Key West
Coca-Cola case relied on by the General Counsel were of a more senous
character , involving in both cases discharges and other antiunion conduct in
violation of Sec 8(a)(3) and ( 1) of the Act. Also some of these unfair labor
for many months in 1969 the Respondent was engaged in
bargaining collectively and the parties were apparently
fairly close to reaching an agreement in September 1%9,
when the bargaining meetings were discontinued. This
bargaining must be deemed to have been conducted in
accordance with the law in view of the General Counsel's
refusal to issue a complaint on the Union's 8(a)(5) charges
arising out of these negotiations (Cases 17-CA-4087 and
17-CA-4284). No further meetings were held as the Union
was relying on the processes of the Board to vindicate its
positions that agreement had been reached at the Septem-
ber 15, 1%9, meeting, and that the Respondent was
unlawfully refusing to sign the agreement (charges in Case
l7-CA-4087).
In view of the very narrow scope of the Board's Order in
Case 17-CA-3647, the 28 months which have elapsed
between the Respondent's unilateral action and the
withdrawal of recognition, the many months of good-faith
negotiations which must be presumed to have taken place
in the intervening period, it is my opinion that it would be
unreasonable to infer that the Respondent's August 1%8
unfair labor practice continued to have the effect of
substantially weakening the Union's majority standing
among the employees, particularly since 23 out of the 28
employees in the appropriate unit were not hired until
many months after the Respondent's August 1%8 unfair
labor practice (the first of these 23 employees, Larry
Wagner, was not hired by the Respondent until March 17,
1%9). In these circumstances I conclude that the Respon-
dent's unremedied August 1968 unfair labor practice
should not bar the Respondent from questioning the
Union's majority status in December 1970. Cf. Dixie Gas,
Inc., 151 NLRB 1257, 1258-59.9 While I have found that
this unfair labor practice should not preclude the Respon-
dent from raising this question at this time, I do not wish to
imply that the Respondent's conduct in unilaterally
eliminating the arbitration of grievances did not impair in
any manner the Union's ability to attract new members.
On the contrary, the Respondent's insistence, in effect, on
having the last word on the settlement of all grievances, I
find, did lessen the effectiveness of the grievance procedure
from the standpoint of the employees and thereby
handicapped the Union in its efforts to interest new
employees in its organization. This factor will be consid-
ered below in connection with the discussion of whether
the Respondent had an objective basis for a good-faith
doubt of the Union's majority status.
3. The question whether the Respondent has
shown objective facts supporting its claim of a
good-faith doubt as to the Union's continuing
majority status
The Respondent cites various circumstances as raising a
doubt in the minds of certain of its officials as to whether
the Union still represented a majority of the employees in
the appropriate unit. The sole witness to testify concerning
the conclusion of the Respondent that the Union no longer
practices occurred almost simultaneously with the initial request for a
bargaining meeting. For these reasons I regard the Key West Coca-Cola
decision as being clearly distinguishable on the facts
TAFT BROADCASTING 809
represented a majority was Louis Bolton, the Respondent's
general manager for radio , and also a vice president of the
Respondent . Ro Grignon, the Respondent's general
manager for television, who had the same authority at the
station over television operations as Bolton had over radio
operations, was not called as a witness by the Respondent.
Consequently, the circumstances discussed below do not
present a full and completeipicture of the union-represen-
tiation situation at the station at the time of the Union's
request for a bargaining meeting, giving for the most part
the view from the radio management standpoint.
As can well be understood , not one of the circumstances
discussed below is in and of itself conclusive as to whether
the Respondent acted in good faith on the basis of
objective facts in questioning the Union's majority status.
All of the circumstances must be considered in their
totality before a valid conclusion can be reached one way
or another.
a. Employee expressions of dissatisfaction with the
Union
In its brief the Respondent mentions only the indications
of dissatisfaction with the Union which it had received
from 3 out of the 28 employees in the appropriate unit.
Thus it cites the testimony of Bolton that, when he
interviewed Don French in New York in July 1970 about a
job with the station in Kansas City, French asked him if he
had to join the Union when he joined the station. When
Bolton said no, French said "good, because . . . I have no
use for the union." This comment, made before French
had ever worked at the station, plainly cannot be regarded
as an expression of general employee sentiment against the
Union. Bolton also testified that Larry Wagner told him
that he was "dissatisfied with the Union" and "would not
pay them dues because they were doing nothing for him."
Wagner himself was later called to the stand and testified
that he had told Bolton about consulting an attorney about
filing a decertification petition, but had dropped the idea
when he was advised that the Board would not consider
the petition as long as there were charges pending against
the Respondent. Finally, the Respondent relies in its brief
on the testimony of Donald Keough that in late summer of
1970 he asked TV General Manager Grignon if he had to
join the Union. When Grignon said no, Keough comment-
ed that that "suited him." In response to a further question
Keough stated to Grignon that he "was not interested in
paying two percent dues to an organization that [he] had
seen nothing of, and as far as [he] could determine was
doing nothing for [him]." Keough also testified that he told
Bolton or Grignon that a number of unnamed employees
shared his sentiments towards the Union.
Wagner and Keough were the only two employees on the
Respondent's list of employees in the appropriate unit
whom the Respondent called to testify concerning alleged
employee dissatisfaction with the Union. Neither man had
ever been a member of the Union at the station. According
to Keough's testimony, during this period, late summer or
early fall 1970, Wagner was director of public affairs for
radio, Keough was director of public affairs for television,
and both men sat on the editorial board of the station
along with Grignon, Bolton, and Ken Robinson, a
representative of the news department . In view of their
responsibilities as directors of public affairs for radio and
television I doubt that Wagner and Keough were in a
position to voice the sentiments of the rank -and-file
employees as a whole regarding the Union.
In addition to the testimony called to my attention in the
Respondent's brief there is other testimony which is
pertinent on this point . Bolton testified that Jack Elliott,
program director for radio, reported to him in October
1970 that three of his announcers, Mark Foster, Fred
Everett, and Dan Henry, had refused to pay dues any
longer because the Union was not doing anything for
them . Bolton further testified that Elliott told him about
this time that Jim Gammon , Tom Brown , and Dick
Fatherly had also expressed dissatisfaction with the Union.
However, the latter three employees had all left the
Respondent's employ before the Respondent decided to
withdraw recognition from the Union and their sentiments
regarding union affiliation , therefore, could not reasonably
affect this decision.
Thus, at most the Respondent adduced evidence that six
employees expressed dissatisfaction with the Union. The
duties of two of these as directors of public affairs for radio
and television and as members of the editorial board of the
station are such that a serious question arises as to whether
their interests are not more closely allied with management
than with the employees in the unit. But giving effect to the
expressions of dissatisfaction of all six , such expressions
hardly constitute an objective basis for concluding that a
majority of the employees in a unit of 28 employees no
longer wish union representation . Since it takes only a
majority vote to obtain union representation it is the
normal situation in almost any unit for some employees to
be opposed to having union representation . Thus some
expressions of discontent with a union are to be expected
by employers. This is especially true where, as here, the
employees do not have the benefit by a union contract and
there is no union-security provision. In my opinion the
evidence discussed above does not afford a reasonable
basis for concluding that a majority of the employees no
longer wished representation by the Union.
b. The inactivity of the Union at the station after
the last bargaining meeting on September 15, 1969
Radio General Manager Bolton testified that he had
received no further requests for collective bargaining from
the Union since September 15, 1969 , and that he had not
seen Union Executive Secretary Schnabel around the
station since that time, although in prior years Schnabel
frequently visited the announcers or newsmen at the
station . However, in view of the reception accorded
Schnabel on his visit to TV General Manager Remington's
office on September 22, 1969 , when the door was slammed
in his face , figuratively speaking, it is not surprising that
Schnabel did not thereafter visit the station.
The absence of any further requests for bargaining is
without significance , since the Union was taking the
position in a charge filed with the Board 's Regional Office
the very next day after Remington 's refusal to see Schnabel
on September 22 that the parties had reached an agreement
on September 15 (Case 17-CA-4087), and was relying on
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board 's processes to secure the Respondent 's signature
on the agreement . When , on October 19, 1970 , the General
Counsel finally rejected the Union 's position that the
parties had reached agreement , the Union proceeded to
request the resumption of bargaining meetings with relative
promptness.
The Respondent relies on the testimony of Bolton to the
effect that he had observed very little union activity around
the station and that the Union had not in recent months
requested the use of the station bulletin boards , which it
had occasionally done in the past . The Respondent also
cites the testimony of Donald Keough , the director of
public affairs for television , that during his period of
employment , which began in May 1969 , no one was
identified to him as a union steward , he received no
mailings from the Union , he received no notices about
union meetings , he did not see any union notices on station
bulletin boards , and he did not observe any employees
wearing union buttons or insignia.
There may well have been less union activity noticeable
around the station after TV General Manager Remington's
blunt refusal to see Schnabel on September 22, 1969.
Remington 's treatment of Schnabel on this occasion was
not the kind which was apt to promote cordial relations
between the parties . From that point on the Union was
awaiting action by the General Counsel and the Board on
its charges based on the Respondent 's refusal to sign the
agreed-upon contract , and in these circumstances it is
understandable that the union activities at the station
tended to diminish in scope . Keough's testimony about the
absence of communications from the Union is not too
significant in view of his antiunion views, which he had
expressed to the Respondent , and in view of his duties as
director of public affairs for TV, duties which allied him
closely with the Respondent 's management.
The Respondent also stresses the fact that it had not
been informed of the successors to two former union
stewards who had left the Respondent 's employ in 1968. 1
know of no obligation on the part of a union to notify an
employer of the identity of its stewards in the absence of
any business to be taken up by him with the employer. The
Respondent , by unilaterally terminating the arbitration
step of the grievance procedure (Case 17-CA-3637) had
diminished the usefulness to employees of the grievance
procedure in general and, in view of the strained relations
between the Union and the Respondent after the Respon-
dent's final rejection on September 22 of the Union 's offer
of September 15, it is not surprising that little or no resort
to the grievance procedure was had during this period.
Robert Musberger , the third union steward , continued to
serve as steward until late summer 1970, when he was
promoted into a supervisory position , and had frequent
contacts with Schnabel over the telephone.
The Respondent also contends that the failure of rank-
and-file employees to participate in the negotiations along
with union officials after the end of the strike in June 1966
is a further indication of lack of employee support for the
Union . I cannot agree . So many factors enter into the
choice of bargaining committee members for unions and
for employers that no generalized conclusion such as the
Respondent seeks to have me draw seems warranted.
Furthermore , the absence of employees on the union
negotiating committee had continued for over 4 years at
the time of the Respondent 's withdrawal of recognition
from the Union . In these circumstances I fail to perceive
how the failure of employees to participate in the
negotiating meetings since June 1966 throws significant
light on employee support for the Union in December
1970.
c. Employee turnover; the Respondent 's polling of
the employees
The Respondent relies on the high turnover of employees
at the station , as well as the results of the poll conducted
on December 7, 1970, as constituting further objective
facts supporting its claim of a good -faith doubt of majority
status.
The Respondent has experienced relatively high turnover
at the station . As found above , of the 28 employees in the
unit at the time of the Respondent 's withdrawal of
recognition in December 1970, only 5 were in the
Respondent's employ at or about the time of the Board's
decision in Case 17-CA-3637 in August 1%8. The
Respondent asserts that the Board has held that high
turnover is a factor which an employer is entitled to
consider in assessing a union 's majority status . It is true
that the Board has held that high turnover, when
considered together with other factors which in their
totality indicate that the employer is acting in good faith,
may constitute an objective basis for questioning a union's
majority status . However, the Board has also held that
Employee turnover standing alone does not provide
a reasonable basis for believing that the union had lost
its majority since the prior election. The Board has long
held that new employees will be presumed to support a
union in the same ratio as those whom they have
replaced . ... [Laystrom Mfg. Co., 151 NLRB 1482,
1484.]
While it may have been reasonable for the Respondent
to consider the high turnover in deciding to conduct the
poll, once the results of the poll were in hand, the
Respondent , in my opinion , could no longer rely on high
turnover as an objective factor justifying a good-faith
doubt as to the Union 's majority status. The question
remains whether the Respondent may reasonably rely on
the poll , with its inconclusive outcome , as an objective fact
supporting its claim of a good-faith doubt as to the Union's
majority status.
The results of the poll , which the Respondent expressly
stated was to resolve its doubts about the Union's majority
status, showed that 11 out of 28 employees did not wish
representation by the Union . Considering only the desires
of the employees actually voting, the 11-11 tie vote fell
short of constituting the "affirmative showing that the
union no longer commands a majority" which the Board
stated in the Laystrom case normally rebuts the presump-
tion of continuing majority status.
TAFT BROADCASTING
The fact that the Respondent was unable to show a
majority against union representation, despite the frustra-
tions of the previous 15 months and the strained relations
between Radio General Manager Bolton and Union
Executive Secretary Schnabel10 tends to confirm the
reasonableness of the Board's presumption that new
employees will ordinarily support a union in the same ratio
as those whom they have replaced.
The Respondent's suggestion that its poll should be
accorded the same finality as a Board-conducted election
and regarded as establishing the Union's lack of majority
status, in my opinion, is without merit. While the secrecy of
the ballot was maintained, in other respects the poll did not
conform to Board standards.
In the first place, the Respondent conducted a surprise
election without giving the employees an adequate oppor-
tunity to make an informed decision. Board elections are
invariably conducted with some advance notice, 72 hours
at the very least . The reason for this is, as the Board has
stated, "an employee who has had an effective opportunity
to hear the arguments concerning representation is in a
better position to make a more fully informed and
reasonable choice." Excelsior Underwear, Inc., 156 NLRB
1236, 1240; N.L.R.B. v. Wyman-Gordan Co., 394 U.S. 759.
Secondly, the Respondent itself determined the eligibility
of the employees who were to vote in the election,
admittedly including every employee who could possibly
be regarded as coming within the appropriate unit.
Included were the Respondent's directors of public affairs
for both television and radio, acknowledged opponents of
the Union who voted in the election, as well as Hank
Stram, the coach of the Kansas City Chiefs professional
football team, who did not vote. Stram recorded at home
some 1-minute commentaries on his team during the
football season and sent them into the station. Stram never
put in an appearance at the station. Had this been an
election conducted under Board auspices, the question of
the eligibility of these employees and others would have
been resolved by the Board, and possibly some of them
might have been excluded from voting.
Furthermore, the Respondent itself framed the docu-
ment which was in effect the notice of the election; i.e., the
document which was read to them when they appeared in
the conference room in response to the notice of the
important meeting which the employees were in effect
instructed to attend. While there is nothing in this
document which it would not be permissible for the
Respondent to say to the employees in advance of an
election, the document as a whole lacks the neutral tone of
the Board's official notices of election. Moreover, in the
document the Respondent denied that it had had any
contract with the Union since 1965, although the Board
only recently, in its decision in Case 17-CA-3637, had
confirmed that as of August 1968, at least, an "interim
agreement" between the parties had been in effect. The
Respondent made no reference in the document to the
10 The record fails to disclose the nature of Schnabel's relations with TV
General Manager Grignon during this period.
11 The Respondent also argues that its conclusion concerning the
Union's loss of majority was confirmed in a letter sent to the home of one of
the newscasters on February 24, 1971, inviting him to join the Union. In the
letter it is suggested by implication that the Union recognized that it did not
811
Board's decision in this case, or to the pending litigation
involving it, in which the Board's position was ultimately
sustained in the court of appeals. It would seem that
fairness would require a more full and frank disclosure
than the Respondent made in this document.
The mechanics of handing the poll-summoning the
employees to an important meeting, informing them after
they got there that the Respondent doubted the Union's
majority status and therefore desired an expression of their
wishes with respect to representation, and then instructing
the employees to wait outside and come in and vote one at
a time-impaired the voluntary nature of the employees'
participation in the poll. Despite the statement in the
document that their participation was voluntary, the
mechanics of conducting the poll, in my opinion, had the
effect of insuring maximum participation, without the
employees feeling really free not to participate. By
adopting this arrangement and by failing to announce in
advance the purpose of the meeting, the result may have
been that some employees participated who would not
otherwise have done so, being content to abide by the
wishes of those voting, and that others such as the labor
reporter who was on vacation, would have made a special
trip to the station in order to participate. This is not to
suggest that the outcome of the election would necessarily
have been any different but merely to bring out the
differences between the Respondent's poll and a Board-
conducted election, in which participation is wholly
voluntary. For the foregoing reasons, in my opinion, the
Respondent's privately conducted poll cannot be treated as
being the equivalent of a Board-conducted election in
which the Union failed to establish its majority status.
In view of the inconclusive outcome of the poll, and
taking into consideration the manner in which the poll was
conducted, I conclude that it is unreasonable to treat the
Respondent's election as anything more than a partial poll
showing that 11 out of a possible 28 employees did not
favor representation by the Union, and that such a
showing does not constitute an objective ground for
questioning the Union's majority status. I further conclude,
taking all of the circumstances relied on by the Respondent
into consideration-the employee expressions of dissatis-
faction with the Union, the inactivity of the Union at the
station after the last bargaining meeting, and, finally, the
outcome of the Respondent's poll-that these circum-
stances in their totality, when viewed in the light of the
handicaps imposed upon the Union in its recruitment of
new members by the Respondent's unlawful unilateral
elimination of the arbitration grievances, fall short of
constituting an objective basis for a good-faith doubt as to
the Union's majority status. Cf. Kentucky News, Inc., 165
NLRB 777, 778-779.11 It follows, therefore, that the
Respondent's withdrawal of recognition from the Union
on December 9, 1970, violated Section 8(a)(5) and (1) of
the Act.
represent a majority of the employees in the unit at that time . This letter,
which was sent more than 2 months after the Respondent 's withdrawal of
recognition from the Union , could not possibly have influenced the
Respondent 's decision to withdraw recognition , and hence I find it
immaterial to the issues before me.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. All radio and television announcers , newscasters,
sportscasters , floor managers , director-coordinators, and
all other talent or artists employed by Taft Broadcasting,
WDAF-TV, AM-FM at its facilities in Kansas City,
Missouri, excluding the news director , assistant news
director , farm director , production manager, and all other
employees and supervisors , as defined in the Act , consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. At all times on and after November 9, 1970, the
Union has been and now is the duly authorized collective-
bargaining representative of the employees in the above-
stated appropriate bargaining unit.
3. The Respondent , by its action on December 9, 1970,
in withdrawing recognition from the Union as the exclusive
bargaining representative of the employees in the above-
stated appropriate unit, has refused to bargain collectively
with the Union in violation of Section 8(a)(5) of the Act,
and has interfered with , restrained , and coerced its
employees in the exercise of their rights under Section 7 of
the Act, in violation of Section 8(axl) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent unlawfully withdrew
recognition from the Union on December 9, 1970, my
recommended Order will direct that the Respondent cease
and desist from such unlawful conduct and , as affirmative
action necessary to effectuate the policies of the Act, will
require that the Respondent , upon request of the Union,
bargain collectively in good faith with it as the exclusive
representative of the employees in the appropriate unit
stated above , post the usual notices, and furnish the
Regional Director with the customary compliance reports.
The Union , relying on Tiidee Products, Inc., 194
NLRB No. 198 , urges that because of the
Respondent 's asserted "flagrant" violations of the Act my
recommended Order should contain certain extraordinary
remedial provisions, including the mailing of the Board's
notices to the employees, the granting of access to station
bulletin boards , the furnishing of current lists of employ-
ees, and paying to the Board and the Union of the costs of
the litigation . However , in my opinion, this case is not one
involving "brazen" unfair labor practices and a "frivolous"
challenge of the Union 's majority status, as was the Tiidee
case . In these circumstances I do not believe that
extraordinary remedies are called for.
[Recommended Order omitted from publication.]