WCAR, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1235 (N.L.R.B. 1973)

WCAR, INC.
WCAR, Inc. and Detroit Local, American Federation
of Television and Radio Artists , AFL-CIO. Cases
7-CA-9181 and 7-RC-10868
June 6, 1973
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 11, 1972, Administrative Law Judge I
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions, a supporting brief,
and a memorandum in opposition to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, except as modified
below.
1. We agree with the Administrative Law Judge's
finding that Respondent granted benefits to its em-
ployees in violation of Section 8(a)(1) of the Act.
However, in concluding that the overtime payments
made by Respondent were violative of Section 8(a)(1),
we rely on the timing of the payments. The record
establishes that Respondent's president, H. Y. Levin-
son, was long aware of the overtime problem and that
Respondent acted with undue haste in order to make
the payments prior to the scheduled election.
Respondent's actions served to undermine support
for the Union. Significantly, former newsroom em-
ployees who had worked overtime during 1971, but
were no longer in the unit on the demand date, did not
receive overtime payments. However, we do not find
that the employees received more money than they
were entitled to receive.
2. In view of the above finding and all the circum-
stances of this case, we cannot agree with the Admin-
istrative Law Judge that a bargaining order is
warranted as part of the remedy. The overtime pay-
ments were unlawful only because the timing of such
was hurried by the election. Further, these benefits,
unlike a wage increase, are one time benefits that do
1 The tide of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
1235
not have a continuing effect in the bargaining unit so
as to preclude the holding of a fair rerun election.
Also, the announcing of a set policy for severance
pay only constituted the publishing of what had been
the Respondent's usual practice. Certainly, we look
with concern at the Respondent's unlawful actions.
Nonetheless, it is clear that the 8(a)(1) violations here-
in fall within the category described by the Supreme
Court in Gissel2 as "minor or less extensive unfair
labor practices, which, because of their minimal im-
pact on the election machinery, will not sustain a
bargaining order." Accordingly, we conclude that the
holding of a second representation election would be
the most suitable means of determining the employ-
ees' sentiment regarding the Union.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 8 from the Administra-
tive Law Judge's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, WCAR,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
so modified.
1. Delete paragraphs 1(c) and 2(a) of the Order.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the election conducted
on December 9, 1971, in Case 7-RC-10868 be, and it
hereby is, set aside, and that Case 7-RC-10868 be,
and it hereby is, remanded to the Regional Director
for the purposes of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
MEMBER FANNING , dissenting in part:
I would adopt the Administrative Law Judge's deci-
sion without modification.
The majority, with minor modification, finds that
the Respondent granted benefits to its employees in
violation of Section 8(a)(1) of the Act. The majority
also adopts the findings and conclusions of the Ad-
ministrative Law Judge concerning the Union's ma-
jority status. However, they reject the Administrative
Law Judge's conclusions that the Respondent's refus-
al to recognize the Union as the exclusive representa-
2 N L.R.B v. Gissel Packing Inc., 395 U.S. 575, 615 (1969).
203 NLRB No. 181
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of its employees violated Section 8(a)(5) and that
a bargaining order is a necessary remedy if employees'
desires for union representation are to be effectuated.
The record in this case amply demonstrates that
Respondent's employees had two major concerns: a
lack of overtime compensation and a lack of a set
policy for severance pay. By granting benefits in order
to end employee concern in these areas, the Respon-
dent undermined support for the Union.
In regard to the overtime payments, I fail to see the
significance of the majority's distinguishing between
lump sum benefits and continuing benefits. Because
of the scheduled election, the Respondent acted hasti-
ly in order to make the overtime prior to the election.
Payments were made to 5 employees in a unit of 13
employees. Former employees who were also entitled
to overtime compensation did not receive any pay-
ments. The majority and I agree that the
Respondent's payments were violative of Section
8(axl). Unlike the majority, I would conclude that the
lump sum payments had as significant effect on the
bargaining unit as a continuing payment. It is clear
that the lump sum payments satisfied the employee
complaints and undermined the Union's support.
Accordingly, having found that the Respondent's
unlawful actions were substantial and that they would
preclude the holding of a fair rerun election, I dissent
from the majority's failure to find an 8(a)(5) violation
and to impose a bargaining order as part of the reme-
dy.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL 1 ABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT pay retroactive overtime compen-
sation or grant or promise severance pay to any
employees in a context of union organizational
activity for the purpose of removing support for
Detroit Local , American Federation of Televi-
sion and Radio Artist, AFL-CIO, or any other
labor organization.
WE WILL NOT make changes in the wages and
other conditions of employment of our employ-
ees because they have supported a labor organi-
zation as their representative for the purpose of
collective bargaining.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to
form, join , or assist Detroit Local , American
Federation of Television and Radio Artists,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
You are free to become or remain members of De-
troit Local, American Federation of Television and
Radio Artists, AFL-CIO, or any other labor organi-
zation.
WCAR, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Pursuant to a peti-
tion filed by Detroit Local, American Federation of Televi-
sion and Radio Artist, AFL-CIO (herein referred to as the
Union or AFTRA), and a Stipulation for Certification
Upon Consent Election approved by the Regional Director
on November 26, 197 1,1 an election was held on December
9 among the on-the-air personnel including disc jockeys,
announcers, and newsmen, employed by WCAR, Inc. (Re-
spondent). Having lost the election by a vote of 7 to 6, with
two additional ballots challenged, the Union filed objec-
tions to the conduct affecting the results of the election. The
Regional Director sustained one of the challenges, dis-
missed some of the objections, and recommended that the
remaining challenge and objections be heard by a Trial
Examiner. In the absence of exceptions, the Board adopted
the Regional Director's report and recommendations with
the exception of the referral of the ballot challenge, which
was eliminated as no longer able to affect the results of the
election.
On December 21 the Union filed a charge against Re-
spondent alleging as violative of Section 8(a)(1) and (5) of
1 Unless otherwise stated, all dates herein are in 1971.
WCAR,
the Act 2 essentially the same facts as were alleged in the
Union 's objections to the election . The Regional Director
issued a complaint upon this charge on February 15. The
complaint alleges that on November 15 and December I
and 7 Respondent interfered with the rights of its on-the-air
employees by unlawfully granting or promising certain ben-
efits and threatening to withhold wage increases because of
the Union 's organizational drive. It is further alleged that
Respondent has wrongfully refused to recognize and bar-
gain with the Union , which represents a majority of the
on-the -air employees . It is requested that the results of the
election be set aside and Respondent be ordered to bargain
with the Union.
Upon due notice, a hearing was conducted on the consoli-
dated cases in Detroit , Michigan , on March 22 and 23 and
April 3 , 4, and 5 , 1972. At the conclusion of the hearing the
parties waived oral argument and briefs have since been
filed by the General Counsel and Respondent.
Upon the entire record [respondent's unopposed motion
to correct the transcript is granted ], observation of the wit-
nesses, and considerations of the briefs , the Trial Examiner
makes the following:
FINDINGS OF FACT
I PRELIMINARY FINDINGS
A. Respondent , a Michigan corporation with its princi-
pal office and place of business in Detroit, Michigan , is, and
has been at all times material herein , engaged in AM-FM
radio broadcasting . During the calendar year 1971,
Respondent 's gross revenues from AM-FM radio broad-
casting, within an area including Michigan , Ohio, and On-
tario, Canada, exceeded $ 100,000 , including revenues in
excess of $50,000 for service performed directly for custom-
ers located outside the State of Michigan.
Respondent is, and had been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6),and (7) of the Act.
B. The Union is, and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.
11 THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Respondent operates an AM-FM radio station in De-
troit, affiliated with the Mutual Broadcasting Company. At
all times relevant herein , H. Y. Levinson was Respondent's
president . In September 1969, John Webster was hired as
news director . The station's news coverage was put on a
24-hour, 7-day-a-week basis. With Levinson's approval,
Webster made many personnel changes in attempt to
strengthen the station 's news department . Newsroom em-
ployees were required to work long hours. By the spring of
1970 the submission of timesheets by newsroom employees
was discontinued . Until the fall of 1971 the station program-
2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519,29
U S C Sec 151, et seq )
INC. 1237
med largely "middle-of-the road" music, with frequent and
apparently extensive news coverage . In the fall of 1971,
Levinson , on advice and consultation with Ken Draper, a
consultant resident in Los Angeles, decided to change the
format of the station 's programming to "hard rock," with
the time devoted to news broadcasts , both network and
local, considerably reduced . Apparently as an incident to
the conversion there were many personnel changes.
C. J. Jones was brought in on October 25 as program
and commercial sales manager. At that time , Neil McIntyre,
who had been program director or manager since April or
May 1970 , reporting directly to Levinson , was abruptly dis-
charged . On October 31, Webster was discharged At Jones'
request , Webster 's assistant, Gifford Guy Gibson, then
served as acting news director until November 15, when
Irvinn Nathan (also known as L. J . Lancer) took over as
news director and Gibson was terminated . Nathan had been
hired by Levinson sometime around the end of October, but
he continued at his job in Cleveland through November 14
and arrived in Detroit on November 15 to begin working for
Respondent.
On November 5, 6, and 7, disc jockey Larry N. Berke
solicited for the Union among Respondent 's employees. On
November 8, 1971, claiming to represent a majority of
Respondent 's "on-the-air" employees , the Union sent to
Respondent a demand for recognition and bargaining and,
on the same day, filed a representation petition with the
Board 's Regional office.
The Union and Respondent then entered a Stipulation
for Certification Upon Consent Election , which was ap-
proved by the Regional Director on November 26. It called
for an election to be held on December 9 in a unit defined
as "All `on the air personnel ' including disc jockeys, an-
nouncers and newsmen." The stipulation named 13 persons
as eligible to vote and provided that James McKeon and
Nathan could vote subject to challenge. It further provided
that "no other person is eligible to vote in said election" and
the parties ' agreement "shall be final and binding ... .
insofar as the eligibility of the employees is concerned."
Newsmen, who had for some time complained about
their long hours, registered similar complaints to Jones after
he arrived . As of November 16, Nathan , with the assistance
of newscaster Douglas C. Fernlock , devised and posted a
new schedule which , in general, restricted the newsmen to
40 hours a week . On December 5 Respondent , on its own
initiative , paid to five on-the-air employees in the news
department sums ranging from $337.60 to $3,298 .24, on a
total of $10,060 72 gross, in purported "settlement" of obli-
gations from compensation overtime worked by the em-
ployees in 1971.
At the election on December 9, McKeon and Nathan
were challenged by the Board agent because their names did
not appear on the Excelsior list. McKeon had been dis-
charged around November 13, but at the time of the election
there was pending a charge alleging that his termination was
violative of Section 8(a)(3). Nathan 's status as a supervisor
or employee was in dispute . The Union lost the election by
a vote of 7 to 6 among the 13 valid ballots, and on December
16 filed objections to the conduct of the election . It filed an
unfair labor practice charge on December 21, alleging as
violative of Section 8(a)(1) of the Act essentially the same
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct set forth in the objections to the election. The
charge also alleged an unlawful refusal to bargain in contra-
vention of Section 8(aX5).
After investigation, on February 15 the Regional Director
issued a complaint on the charge of December 21. He re-
fused to issue a complaint concerning McKeon's discharge
and this action was later affirmed by the General Counsel.
In his report and recommendations , issued February 21, the
Regional Director sustained the challenge to McKeon's bal-
lot, overruled one and a part of another of the Union's four
objections to the election , and recommended that the chal-
lenge to Nathan's ballot and the remaining objections to the
election be heard by the Trial Examiner who was to hear the
complaint. In the absence of exceptions , the Board adopted
the Regional Director 's report. However, the Board subse-
quently modified its order to eliminate the challenge to
Nathan's ballot because, with the McKeon challenge sus-
tained, Nathan's ballot no longer could affect the results of
the election.
B. Section 8(a)(1)
1. Overtime payments
The complaint alleges that on December 1 Respondent
interfered with its employees' Section 7 rights by paying
"sums of unpaid overtime hours that had been accumulated
during" 1971 by employees in the unit here involved. There
is no dispute that on November 29 Respondent, on its own
initiative, consulted the Wage and Hour Division of the
Department of Labor. Respondent disclosed that five of its
on-the-air employees (Larry N. Berke, Douglas C. Fernlock,
Jr., Janis Gorham, Donald N. Lessnau, and George Noory)
had worked more than 40 hours per week during 1971 but
had received no overtime payment for such excess hours.
Respondent's representatives said that no records had been
maintained of the actual hours worked by these employees
and accordingly, for the purpose of computation, Respon-
dent proposed to use a set figure of 8 hours overtime per
week per employee. Since the employees were all paid
monthly salaries, the "regular" weekly rate was computed
by multiplying the monthly salary by 12 and dividing that
product by 52. Respondent then divided that quotient by 40
to arrive at the "regular" hourly rate. It then multiplied that
figure by 1.5 to reach the "overtime" hourly rate. This hour-
ly overtime rate was then multiplied by 8 and then by the
number of weeks each of the five employees had been with
Respondent in 1971.
Jones and Respondent 's counsel discussed the matter in
person with John Peter Traczewski (frequently called Tra-
cy), a compliance officer of the wage and hour division.
Upon learning that the employees in question were compen-
sated on the basis of monthly salaries, Tracy advised
Respondent 's representatives that their proposed computa-
tions were higher than required. Where an employee is paid
a flat salary regardless of the number of hours he works, his
"regular" hourly for any week is determined by dividing his
weekly salary by the number of hours actually worked that
week . The overtime provisions of the Fair Labor Standards
Act are then satisfied for that week if the employee is paid,
in addition to his usual weekly salary, 50 percent of the
"regular" hourly wage for each hour worked beyond 40.
Triple "AAA" Co. v. Wirtz, 378 F.2d 884 (C.A. 10, 1967),
cert. denied 389 U.S. 959 (1967).
Respondent nonetheless chose to pay the five employees
in accordance with its original computations, maintaining
that that was the "safest" course to follow. Originally Re-
spondent proposed to make the payments in four install-
ments . The next day, however, it announced its decision to
pay the full amounts immediately. According to Respon-
dent, that decision was based on the fact that until it had
paid the full amount due it could not obtain receipts termi-
nating its potential liability to private suits for liquidated
damages , consisting of double the amount due plus reason-
able counsel fees. Levinson, Jones, and Nathan together
paid the five employees and secured receipts on December
1.
The General Counsel bases his contention that the over-
time payments to the five employees were violative of the
Act on (1) the timing, within a week before the scheduled
election; (2) the fact that Respondent paid more than was
required; (3) Respondent's failure to make similar payments
to persons no longer in the bargaining unit; (4) the volun-
tary nature of the payments; and (5) the failure to make
payments for the year 1970. Respondent, on the other hand,
maintains that Webster had been solely responsible for the
overtime violations and top management had been totally
unaware of them until they were discovered by Nathan, who
replaced Webster as news director on November 15; the
violations were then stopped and the "settlements" were
made as a prudent judgment, to avoid costly litigation.
From very early in Webster's tenure, the problem of over-
time in the newsroom was given considerable attention.
Harry Witus, Respondent's accountant, ordered Webster to
limit newsmen's time to 40 hours a week, a restriction which
Webster found intolerable.
Early in 1970, Webster started to alter timeslips filed by
the employees so as to reduce or eliminate the overtime
hours shown. Around February 1970 the submission of
timesheets by newsroom employees was discontinued on
instructions by Webster. Webster testified that he took that
action on advice of Witus. Webster also testified that in a
meeting, with Levinson present, Witus had instructed Web-
ster to put all newsroom employees on salaries so that no
overtime compensation would accrue. Witus, however, de-
nied having given any such instructions. He testified that he
made repeated requests of Webster for timesheets for speci-
fied employees. Presumably Witus would have been this
insistent only if he knew, or had reason to believe, that
overtime was being worked.
Several memoranda from Webster to Levinson, starting
as early as January 1970, reflect a concern about overtime
and an understanding that the expense thereof could be
obviated by placing employees "on salary." For example,
on January 24, 1970, Webster wrote Levinson, in part, as
follows:
Mr. Witus says I must limit newsmen's time to forty
hours. It is possible, of course. But, I promise you, we
will fail.
Our plan is to put every-one on salary . . . so we are
not worried about overtime. I understand that-but
WCAR, INC. 1239
since we are having trouble, getting new people, we
can't just sit on our cans-sounding bad. We have to
work people longer.
For the moment, however, we have to deal in overtime
for the hourly people. Rutledge worked at least 60
hours this week; Gibson as much-and god knows how
much time I put in-so what are we going to do?
Under the same date, Webster wrote another memo to Lev-
inson, which said, in part:
Curnow is presently being paid $735 monthly. . . . I
suggest we put him on a salary of $975. This is a few
dollars more than he might make working 48 hours, but
he is worth it.
A memorandum by Webster to Levinson dated February
19, 1970, sets forth a proposed schedule calling for each of
six employees to work 48 hours, per week. It then proceeds:
I further recommend that some employees be placed
on salary . . . and those who are not destined to stay
with us should be allowed to work 48 hours shifts with
overtime.
Fogel and Curnow should be placed on salary... .
Under the twenty-four hour plan, Barnes and Lessnau
work some additional time-but on an overtime basis.
Over-all, the 24 plan would cost about 150 weekly in
overtime and additional salary.
Salaries for Fogel and Curnow are important for two
reasons . (1) we can work them forty-eight hours and
they can not make us liable for overtime. (2) They are
qualified to remain on our staff.
If we were to work Fogel and Barnes 48 hours, their
pay plus overtime would just about equal the salaries.
They will understand and accept it, however, because
the guarantee is higher.
In March 1970, Webster wrote Levinson recommending
that Respondent hire John McLaren to replace Richard
Barnes. Webster's memorandum said:
For the record, Barnes gets $850 per month for forty
hours . That's $196 weekly. McLaren would make (if
we're lucky) $39 weekly more-and he would not get
overtime.
Webster testified affirmatively that the memoranda were
delivered to Levinson. Since Levinson did not testify,
Webster's testimony in this connection was undisputed and
is credited. Other evidence, including testimony by Jones,
Webster, and Gibson, establishes that Levinson habitually
keeps fully informed of all aspects of the station's opera-
tions, from the most trivial to the most important.
In line with the understanding embodied in Webster's
memoranda to Levinson, newsmen were hired on a "sala-
ried" basis and were given regular schedules of around 48
hours per week. Eugene J. Fogel, who was employed by
Respondent as newscaster from early 1966 through June
1971, was called as a witness by Respondent. He testified
that during the first 6 months of 1971 he worked an average
of 48 to 50 hours per week, but early that year he had
discontinued submitting timesheets because Webster had
required falsification to minimize the amount of overtime
shown. In effect corroborating Webster's testimony that he
hired newsmen on the mutual understanding that they
would be on a 48-hour-a-week schedule, Fogel identified
five newsmen hired "on a forty-eight hour week-John Mc-
Laren, Ken Rutledge, Guy Gibson, Doug Fernlock, and
Jeff Kames." Fernlock was hired in January 1971. He testi-
fied that, as he recalled, his original schedule called for 41
hours a week. That was soon changed to about 46 hours,
and then, in June, it was changed to 48-1/2 hours, the figure
which remained until November 16, when Nathan issued a
new schedule cutting all the newsmen to around 40 hours.
R. Edward Busch, who worked as an announcer and in
the production department, was hired in April 1970. Early
in his employment, his supervisor ordered him to work on
Saturday, without compensation. He testified that he re-
fused to do so and shortly thereafter received a telephone
call from Draper. According to Busch's uncontradicted tes-
timony,' Draper said that was company policy not to pay
overtime.' Busch complained of his long, uncompensated
hours to John Wellman, his first supervisor; then to Mc-
Intyre, who succeeded Wellman as program director; and
then to Jones, after his arrival around the end of October
1971.
Webster's memoranda, as well as other evidence, reflect
a studied and arbitrary definition of "salaried" employees.
With the exception of McKeon,5 all the employees here
involved were paid on the basis of a specified amount per
month. However, before Webster became news director the
employees apparently received overtime compensation.
Webster reserved the terms "salary" and "salaried" for per-
sons who were hired or whose monthly compensation was
increased on an understanding or agreement that they
would work as much as required with no compensation
beyond the specified monthly amount. I credit Webster's
testimony that he adopted his concept of "salaried" employ-
ees on the instructions or advice of Witus. Although Witus
denied having given such advice, and Webster's under-
standing of the legal aspects of the matter was virtually zero,
it appears that an attempt was being made to bring the
newsroom employees within the Belo exception embodied
in Section 7(f) of the Fair Labor Standards Act (20 U.S.C.
Sec. 207 (f); Walling v. A. H. Belo Corporation, 316 U.S. 624
(1942) ). However, so far as the present record discloses,
there were no contracts qualifying for the Belo exception.
Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653 (C.A. 5, 1967).
It is simply impossible to believe that Levinson was un-
aware of the total overtime situation in the news depart-
3 Draper did nct testify.
° Busch 's testimony was: "Mr. Draper called me and said , `You don't seem
to understand that I need some one to work that shift and you must do it.'
He was very angry with me and I said , `Well, sure, I'll be glad to work it,
but I would like to be paid for it or get another day off or something . That's
my day off.' And he said, 'You haven't been there very long and apparently
you don 't understand that there is no overtime.'
"I asked him specifically, 'Well, why isn' t there any overtime?' He said,
'That's dust a policy. They don't pay any overtime"'
5 McKeon was paid at a regular hourly rate of $3. Charles Licari, whose
status is discussed below, was paid at the rate of $2 55 per hour after his
return from service in the Armed Forces in September 1971.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, which was operating on an around -the-clock basis.
His failure to testify is a cogent indication that he had this
knowledge . The only explanation given for his absence was
that he had gone to Florida . But no reason for his trip was
offered and Respondent made no request for a hearing
schedule permitting his attendance . Jones and Nathan man-
ifestly could not testify reliably concerning events before
they arrived.
As heretofore noted, Respondent based its overtime com-
putations by assuming a basic 40-hour week and a uniform
8 hours per week overtime . The difference between
Respondent's method computation and that permissible for
irregular hours is substantial. For example , for the period
January 16 through November 17, 1971, anchorman Fern-
lock received $3,298 .246 gross overtime compensation. If
computed by the permissible half-time formula , Fernlock's
overtime compensation, based on a uniform 48-hour week,
would have been $901.12? Respondent thus paid Femlock
$2,397. 12 more than (3.6 times as much as) the wage hour
division compliance officer advised was due.
Respondent seeks to explain its generosity by its desire to
avert private suits for liquidated damages, consisting of
double the amounts due, plus counsel fees . Respondent
points to the fact that it had not maintained the statutorily
required records and therefore claimants would be given the
benefit of any doubt concerning the amount of overtime
worked . However, there is no evidence suggesting that any
present or former employees were threatening or contem-
plating action. On the contrary, as Femlock testified, the
employees were surprised and pleased by the unexpected
"windfalls." tt
While it is true that Respondent 's failure to maintain
records would increase Respondent 's burden in defending
any actions brought, the Government or the claimants
would still be required to meet the initial burden of pre-
senting "sufficient evidence to show the amount and extent
of that [overtime] work as a matter of just and reasonable
inference ." Wirtz v. McClure, 333 F.2d 45, 47 (C.A. 10,
1964). Unless the plantiffs make such initial showings, the
burden does not shift to the employer defendants . Goldberg
v. Kickapoo Prairie Broadcasting Co., 288 F.2d 788, 783-784
(C.A. 8, 1961).
In the present case, Respondent made no attempt to ap-
proximate the amount of overtime worked by individual
employees . For example, Lessnau was compensated on the
basis of a conjectured 48-hour work although the evidence
indicates that he probably averaged considerably less. For
example, on cross-examination Gibson testified that in the
latter part of 1971 Lessnau "just refused to work any great
amount of hours" and "would hold himself down to his
thirty-eight to forty hours," although he apparently spent
6 This figure was reached by dividing the average weekly salary ($249 92)
by 40 hours (giving a straight-time hourly rate of $6.24) and then multiplying
that figure by 1.5, giving an hourly overtime rate of $9.37 . That figure was
then multiplied by 352, representing 8 hours a week for 44 weeks
r This figure is derived by dividing the average weekly salary of $249.92
by 48 hours (giving a straight-time hourly rate $5.12) multiplying by .5 (half
time), giving an hourly overtime increment of $2 .60, and then multiplying
that figure by 352 , the number of overtime hours involved
s Apparently somewhat more sophisiticated than the rest , Berke appears
to have consulted the Union 's counsel who advised that it was all right for
the employees to accept the payments.
additional, unscheduled time at the station.9 It does not ap-
pear what he did in such unscheduled time. Gibson testified
that Gorham often received compensatory time off if she
worked long hours and Gibson estimated that her hours
"averaged out to around forty-six, forty hours a week."
According to Gibson, Fernlock usually adhered "pretty
near [to] his assigned time , regular assigned hours," al-
though in emergency situations , arising once or twice a
month, he might work additional time. On the other hand,
Gibson believed that Berke worked " a minimum of sixty
hours a week" and Noory about the same amount. Berke
placed about the same estimate on his hours . Fernlock also
testified that the reporters, such as Berke and Noory,
worked considerably more hours than did the announcers
and anchorman.
The case of Busch is also noteworthy. Busch was not paid
for overtime on December 1. After learning of the Decem-
ber 1 payments, he sought similar compensation. There was
considerable discussion between Busch and Jones concern-
ing the amount of overtime involved, with Jones offering
compensation based on Busch's scheduled and reported
hours and Busch insisting on the payment for a considera-
bly larger amount of unscheduled and unreported work.
The dispute had not been resolved as of the time of the
present hearing.
It is reasonable to assume that , if Respondent had been
motivated, as it maintains, solely by a desire to remedy past
injustices, comply with the law, and avert suits for liquidat-
ed damages, it would have taken the time and effort re-
quired to ascertain the facts necessary to achieve those ends.
And it would probably have abided by a wage and hour
division audit, as it had on a prior occasion in 1968. In the
absence of any explanation by Respondent, the haste with
which it made uniformly computed payments to five unit
employees bespeaks a desire to beat the date of the sched-
uled election.
It is also significant that no compensation for past over-
time was paid to persons outside the bargaining unit al-
though the evidence shows that other persons, principally
former employees, were undoubtedly also entitled thereto.
Fogel testified that during the first 6 months of 1971 that he
worked an average of 48 to 50 hours per week but received
no overtime compensation. When he learned of the over-
time payments to the five employees on December 1, he
spoke to Levinson, saying that Fogel, Bill Curnow and "oth-
er men who had been employed there at the same time felt
[they] were also entitled to the overtime." According to
Fogel, Levinson said that "was a very good point and wor-
thy of consideration." However, as of the date of the present
hearing, Fogel had not received any compensation or any
commitment therefor from Levinson . Of the five newsmen
Fogel listed as having been hired by Webster "on a forty-
eight hour week," only Femlock received overtime compen-
sation on December 1. He was also the only one eligible to
vote in the election. While the record is not entirely clear in
all respects , it appears that overtime compensation was un-
9 Lessnau had remained on an "hourly basis" (although paid a monthly
salary) and was compensated for overtime work through the end of 1970.
Respondent 's payroll records show that in the year 1970 Lessnau worked,
and was compensated for, a total of 67.5 overtime hours, or an average of
1.3 hours per week.
WCAR, INC.
doubtedly due for the year 1970 as well as 1971 and to a
number of former employees.10 Respondent has offered no
reason for its failure to tender accumulated overtime com-
pensation to such former employees , who would also be in
a position to sue for liquidated damages.
So far as the record discloses, Busch is the only eligible
voter claiming entitlement to overtime compensation who
was not paid on December 1. He served in a dual capacity,
in both the productions and news departments. In the news
field, he was an on-the-air employee. However, he appears
to have been administratively attached to the production
department, in which his work was largely off-the-air. He
testified that the major portion of his overtime hours were
spent in programming, which is off-the-air work. When
Busch learned of the payments to other employees, he spoke
to Jones, who promised to remedy the oversight. When,
sometime later , after Busch had left Respondent 's employ,
he reminded Jones of his initial request, Jones replied:
"Well, it was two days before the election. What else could
I say?" Subsequent negotiations have been held, but no
agreement has been reached, apparently because Respon-
dent will not include any compensation for Busch's claimed
overtime hours in production, as distinguished from his
scheduled on-the -air and related work. Negotiations were
broken off when Busch received a subpena for the present
hearing and informed Levinson of it.
Respondent contends that the payments were not viola-
tive of the National Labor Relations Act because they were
made to bring the Company into compliance with the Fair
Labor Standards Act. Generally speaking, it is not violative
of Section 8(a)(1) to promise or grant wage increases to
comply with a provision of federal law. Crown Laundry &
Dry Cleaners, Inc., 160 NLRB 746, 755; Winston Rose,
d/b/a Ideal Donut Shop, 148 NLRB 236, 245; 20th Century
Glove Company, Inc., 165 NLRB 781, fn. 1. And there is no
claim in the present case that Respondent violated Section
8(a)(1) by reducing the employees' hours to 40 a week and
announcing its intention to comply with the wage and hour
law in the future.
But so far as the voluntary payments for past overtime are
concerned , the present case is distinguishable from those
cited by Respondent. I have hitherto found that Respon-
dent has long been aware of its noncompliance with the Fair
Labor Standards Act. Its belated attempt to comply came
within a week before a scheduled Board election and then
was executed with extraordinary haste. No reasonable at-
tempt was made to secure true compliance. On the contrary,
members of the bargaining unit were well compensated-
probably overcompensated-while persons outside the unit
were not compensated at all. The evidence as a whole re-
quires the inference that Respondent simply used its long-
standing violation of the Fair Labor Standards Act as an
excuse or pretext for granting generous benefits , in excess
of those required by law, to members of a bargaining unit
in which an election was scheduled. Windfalls in the form
of substantial cash manifestly constitute benefits tending to
10 Included among the former employees is Gibson, whose employment
was terminated on November 15. In the present proceeding Respondent
maintains that Gibson was not a supervisor and was a member of the bar-
gaming unit on November 8. There is no question that he consistently worked
many more than 40 hours per week.
1241
influence the election. This is particularly clear where, as
here, the payments are tied to a chief source of employee
discontent.
On all this evidence, I find that the payments for past
overtime that Respondent made to five members of the
bargaining unit constitute benefits conferred for the pur-
pose of discouraging membership in the Union and under-
mining its support. As such, the payments were violative of
Section 8(a)(1) of the Act. N.L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405 (1962).
2. Severance pay
The complaint alleges that on December 7 Levinson "of-
fered and promised severance pay" to unit employees "to
dissuade the employees from voting for the Union . . . and
in order to undermine and dissipate the Union's majority
status." Respondent maintains that Levinson merely re-
peated and implemented an established and existing com-
pany policy.
On December 7, Levinson convened a luncheon meeting
of the on-the-air personnel in order to present Respondent's
position against unionization. In the course of the meeting,
at the employees' request, Levinson and Jones left the room
to permit the employees to discuss certain matters among
themselves. One matter of concern to the employees was the
fact that Raymond Otis apparently had received no sever-
ance pay upon his discharge as an announcer on October
15. Upon the return of Levinson and Jones, one of the
employees inquired concerning the Company's policy on
severance pay. Apparently somewhat flustered, Levinson
said that it was the Respondent's policy to grant 2 weeks'
severance pay upon an employees' discharge. He said that
the only exception he knew of was Raymond Otis and that
Levinson and Otis were at that time amicably negotiating,
possibly for Otis' return to the station in an off-the-air ca-
pacity. Otis testified that he had lunch with Levinson on
November 23 and received a check for severance pay on
November 27. Otis confirmed that Levinson spoke of Otis'
returning to the station, but Otis apparently declined to take
an off-the-air job. Other evidence, however, establishes that
it was Levinson who had originally decided not to grant Otis
severance pay, despite McIntyre's urging to the contrary.
According to McIntyre, Levinson insisted that he had not
"agreed" to McIntyre's written recommendation that Otis
be given 2 weeks' severance pay. Levinson did not testify
and McIntyre's testimony thus stands undisputed. And the
record is barren of any explanation for the initial refusal to
pay Otis other than Levinson's ad hoc failure to agree to it.
The Otis matter, therefore, is basically inconsistent with the
existence of any uniform policy or practice to give salaried
employees 2 weeks' severance pay upon their termination.
Respondent maintains that its uniform policy has been to
grant 2 weeks' severance pay to salaried employees upon
discharge after having served at least a year. To an extent,
Respondent's evidence tends to establish the existence of
such a practice. The evidence shows 12 newsroom employ-
ees discharged during 1970 and 1971: three had been em-
ployed by Respondent for less than a year and received no
severance pay; three were hourly paid and received no sev-
erance pay; the remaining six received 2 weeks' (of half a
month's) severance pay.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In refutation of Respondent's contention, the General
Counsel adverts to the case of McIntyre, who the record
evidence establishes received the equivalent of 1 week's sev-
erance pay and whose attempts to secure further compensa-
tion from Levinson have to date been fruitless.
Vivian White, Respondent's bookkeeper, was unable to
explain why McIntyre had not been paid for 2 weeks, in
accordance with what she maintained were standing in-
structions. McIntyre testified, without contradiction, that
Levinson had specifically agreed to pay McIntyre for 2
weeks. The existence of such an individual agreement be-
tween Levinson and McIntyre indicates, as does the Otis
matter, that severance pay was determined by Levinson on
a case-to-case basis, rather than according to an established,
self-executing policy. Again, Levinson's failure to testify is
most significant.
In its brief Respondent maintains that the McIntyre mat-
ter is essentially irrelevant because McIntyre was a depart-
ment head. But Respondent mentions news director
Webster's severance pay as one of the instances establishing
the claimed pattern. However, the Webster case itself casts
some doubt on Respondent's claim of a uniform policy.
Webster testified, with corroboration by Jones, that Web-
ster got 2 weeks' severance pay only by refusing to submit
his requested resignation without it.
The most reasonable inference from the evidence , as sum-
marized above, is that Respondent had previously refrained
from adopting or announcing any policy. Rather, Levinson
reserved to himself the right to grant or withhold severance
pay on the basis of case-by-case determinations. That lack
of commitment, graphically brought home in the Otis case,
disturbed the employees. In view of the frequency of dis-
charges, severance pay was a matter of general concern, as
evidenced by the fact that it appears to have the principal
question raised by the employees at the December 7 meet-
ing. Thus, although Respondent apparently had granted
severance pay to most salaried employees upon discharge
after a year's service, Levinson's commitment to do so in all
future cases was a substantial benefit to the employees. So
viewed, it was violative of Section 8(a)(1).
The General Counsel requests that the eventual payment
to Otis also be held violative of the Act. Although that
payment was not specifically alleged in the complaint, it was
fully litigated, without objection. Had Respondent not de-
nied severance pay to Otis on his discharge in October, its
granting it late in November, during the union campaign,
would not be violative of the Act in view of the fact that
severance pay had frequently been granted in the past.
However, in the absence of any explanation, Levinson's
reversal of position concerning Otis' severance pay during
the pendency of the representation petition is found to be
violative of Section 8(a)(1).
3. Payment of hospital expenses
The complaint alleges that on or about December 7 Re-
spondent "reimbursed its unit employees for hospital ex-
penses, which previously [had] not been paid ." 11 The
11 The complaint alleges that in this matter Respondent acted through
Nathan as its agent. So far as the record discloses, however, Nathan was not
evidence in support of this allegation concerns an injury
that employee Busch had sustained in November 1970 in
the course of a promotional football game played by
Respondent's employees. The bulk of his medical expenses
had been paid by Respondent's insurance carrier, but a
hospital bill of $22 for X-rays in December 1970 remained
unpaid.
At the employee meeting on December 7, 1971, Levinson
referred to the Company's medical insurance coverage as
one of the favorable benefits then provided by Respondent.
Busch spoke up in disagreement, referring to the unpaid
balance of his hospital bill. He said that he had frequently
complained about the Company's failure to pay the bal-
ance, but to no avail. Busch testified that later in the day he
was given a check for $22 payable to the hospital.
Busch was apparently in error. Instead of receiving a
check that evening, he probably received a check stub or
other notification that the balance had been paid. This in-
ference is drawn from documentary evidence establishing
that the hospital had communicated with Respondent about
the balance of Busch's bill on October 12 and Respondent
had forwarded the bill to its insurer around November 1.
The insurer issued the check on or before November 8 and
the hospital received payment on November 18. It thus
appears that, although Busch was not kept informed, Re-
spondent had taken steps to have the bill paid before any
union activity began.
There is no evidence warranting an inference that the
payment was in any way influenced by the Union's cam-
paign. Accordingly, I will recommend that this allegation of
the complaint be dismissed.
4. Threats of lost wage increases
The complaint alleges that on November 15 Nathan "ad-
vised [the] employees that they would not receive increases
because of the Union's organizational campaign." The evi-
dence establishes that when Berke asked for a raise, Nathan
replied, in effect, that none could be granted at that time
because of the Union. Similarly, when, during the pendency
of the representation petition, Noory inquired about a raise,
Nathan replied that Respondent's "hands were tied."
Nathan's statements appear to be noncoercive and clear-
ly permissible. Indeed, since there is no evidence of any
established practice or policy concerning periodic raises, it
might well have been violative of the Act if any manage-
ment representative gave any more positive response to the
inquiries.
Fernlock quoted Nathan as having said he had previously
worked under a union and did not think very highly of
unions, and also that the employees were "screwing them-
selves." Neither of these statements appears to constitute a
threat of any kind. Both statements are permissable expres-
sions of opinion.
Accordingly, without resolving the disputed question of
Nathan's supervisory status, I will recommend dismissal of
this allegation of the complaint.
involved. Witus, the accountant, was apparently the only company represen-
tative involved in any way. The discrepancy between pleading and proof,
however, was nonprejudicial to Respondent and is insufficient to warrant
dismissal of the allegation.
WCAR, INC. 1243
C. Section 8(a)(5)
This case falls within the general Bernel Foam pattern.12
The General Counsel maintains that the election, which the
Union lost, should be set aside because of Respondent's
misconduct in connection therewith, as set forth in the
Union's objections, and that Respondent should be ordered
to bargain with the Union on findings that it represented a
majority of the employees in an appropriate unit when a
bargaining demand was made and Respondent's unfair la-
bor practices have been such as to preclude a reliable ex-
pression of employee sentiment through a Board-conducted
election at this time. N.L.R.B. v. Gissel Packing Co., 395
U.S. 575 (1969). In addition to denying that it engaged in
any misconduct interfering with the election or constituting
independent unfair labor practices, Respondent denies that
the Union represented a majority of the employees in an
appropriate bargaining unit at the time of the demand and
maintains that, in any event, present employee sentiment
can be best determined by a Board-conducted election.
The Union's Majority
a. The size of the unit
The complaint alleges that the appropriate bargaining
unit here involved consists of "[a] 11 `on the air personnel'
including disc jockeys, announcers, and newsmen." In its
answer to the complaint, Respondent says: "the Employer
admits that the unit cited . . . was agreed to by the Employ-
er, but denies that said unit is the appropriate unit." The
unit had been so defined in the stipulation approved by the
Regional Director in the representation proceeding. At the
hearing Respondent appeared to preserve its objection to
the unit definition.
It is presumed that in approving the stipulation the Re-
gional Director made an appropriate and sufficient investi-
gation of the agreement reached by the parties. ABC Food
Services, Inc., 176 NLRB 426, 429. The unit definition
agreed to in the representation case is thus binding on Re-
spondent at this time. Guyan Mchinery Company, 155 NLRB
591, 594; Blades Manufacturing Corporation, 174 NLRB 937,
939; Blade-Tribune Publishing Company, 161 NLRB 1512,
1519; United Dairies, Inc., 144 NLRB 153, enfd. 337 F.2d
283 (C.A. 10, 1964).
In any event, Respondent was granted full opportunity to
litigate the issue but adduced no "persuasive ground" for
redefining the bargaining unit. Except for its specific argu-
ment concerning Charles Licari, discussed below, Respon-
dent presents no reason for expanding the unit to include
any off-the-air personnel. The Board has previously held
that on-the-air employees of a radio station constitute an
appropriate unit. Midland Broadcasters, Inc., 176 NLRB
107, 110, and cases there cited.
At the hearing the parties stipulated as to 11 members of
the unit.13 Five additional people are in dispute. The Gener-
12 Bernet Foam Products Co., Inc., 146 NLRB 1277.
13 Larry Berke ; Robert Bernstein (also known as Scott Regan); R. Edward
al Counsel contends that McKeon should be included with-
in the unit, and that Nathan, Paul Major (also known as
Ken Major), Charles Licari, and Gibson should be exclud-
ed. Respondent takes the opposite position as to each of the
five.
(1) Major and Nathan
It is undisputed that Major and Nathan started working
for Respondent on November 13 and 14, respectively, after
the demand date which was November 8. Thus, although
their employment had been agreed upon before November
8, they were were not members of the unit on the relevant
date. Ra-Rich Manufacturing Corporation, 120 NLRB 1444,
1447; Colecraft Manufacturing Company, Inc., 162 NLRB
680, 689, enfd. in part 385 F.2d 998 (C.A. 2, 1967). It would
obviously be unreasonable to make the Union's status on
the demand date turn on authorization by Major and Na-
than, who were not even residing in the area at the time and
who, so far as the record discloses, were totally unknown to
the unit employees.
(2) McKeon
There appears to be no serious dispute that McKeon, a
disc jockey, was a regular "on-the-air" employee. As previ-
ously stated, he was discharged on or about November 13
and was then allowed to vote in the election under challenge
because a charge was then pending alleging his discharge as
violative of Section 8(a)(3). The 8(a)(3) charge was thereaf-
ter dismissed and the challenge to McKeon's ballot was
sustained.
Respondent maintains that McKeon should not be in-
cluded in the unit as of November 8 because his discharge
had been determined before that time, although it was not
announced and effectuated until later. But the law is clear
that an employee is properly considered as an eligible mem-
ber of a bargaining unit while he is actually employed and
working in the unit, even though he may have previously
tendered his resignation or been notified of his discharge
effective in the future. Colecraft Mfg. Co., supra, 162 NLRB
at 689. An employee is eligible to vote in an election at least
until he is notified of his termination. N.L.R.B. v. Pacific
Gamble Robinson Co., 438 F.2d 112 (C.A. 9, 1971); West-
chester Plastics of Ohio, Inc. v. N.L.R.B., 401 F.2d 903, 908
(C.A. 6, 1968). Since McKeon had not been advised of any
decision to terminate his services, he was a membr of the
unit at the time of the Union's bargaining demand.
(3) Licari
Undisputed evidence establishes that Charles Licari was
working for Respondent on November 8, the date of
Union's demand of recognition; on November 15, the eligi-
bility date for voting in the election; and on November 26,
when the Regional Director approved the Stipulation for
Certification Upon Consent Election. The stipulation in the
representation proceeding listed 13 eligible voters (plus two
Busch ; Paul Chnstedes (also known as Paul Christy ); Douglas Fernlock; as Dave Prince); Dan Smith (also known as Dan O'Shea); Richard Walls
Janis Gorham ; Donald Lessnau ; George Noory; David Pringle (also known (also known as Ron O'Brien).
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who could vote under challenge) and then said:
It is further stipulated by said parties that no other
person is eligible to vote in said election.
This agreement shall be final and binding upon the
undersigned parties insofar as the eligibility of the em-
ployees is concerned.
Respondent is bound by that stipulation . Norris Thermador
Corporation, 119 NLRB 1301; Stanley Aviation Corporation,
112 NLRB 461 , 463. See Shoreline Enterprises v. N. L R. B.,
262 F.2d 933, 943 (C.A. 5, 1959):
... In cases involving a pre-election resolution of
eligibility issues between a company and a union it is
especially important to hold the parties to their con-
tract . To permit either to repudiate a pre -election
agreement and redetermine the eligible members of a
bargaining unit, after an election has been held, would
enfeeble the consent election procedure... .
... The Company cannot play fast and loose with
a pre-election agreement and a stipulation eligibility
list.
Licari is not included among the eligible voters listed in
the stipulation . Thus Respondent is estopped to maintain
that he was a member of the bargaining unit during the
election eligibility period , which was stipulated as'Bi-week-
ly ending Monday, November 15, 1971." The evidence es-
tablishes that Licari 's duties were essentially the same on
November 8 and 15, the only possible difference being that
after McKeon's discharge around November 13, Licari was
assigned to run a block programming segment from 5 to 11
a.m. on Sunday mornings . That program was entirely taped,
entailing no "voicing" by Licari. If, as the stipulation in the
representation proceeding establishes, Licari was not an on-
the-air employee on November 15, a fortiori was not on
November 8 , before he was regularly assigned to run any
broadcasts.
The rule against relitigating in a complaint proceeding
issues which were or could have been litigated in a related
representation case would appear to be equally applicable
to cases which are the direct result of certification and those,
like the present where there has been no certification. See
N.LR.B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d
851 (C.A. 1, 1967). Cf. Blade-Tribune Publishing Co., supra,
161 NLRB at 1519. Respondent 's contention that, despite
the stipulation , Licari's status can be determined de novo in
this proceeding is essentially inconsistent with its contention
that the results of the election should not be certified.
Accordingly , I hold that the stipulation in the representa-
tion proceeding requires rejection of Respondent's present
contention that Charles Licari was a member of the bar-
gaining unit when the Union demanded recognition.
In any event, Licari's status was fully litigated in the
present hearing . The evidence also compels a finding that
Licari was not a member of the bargaining unit on Novem-
ber 8.
Licari worked for Respondent as a production assistant
from January to August 1969, when he left to enter the
Armed Forces . He returned in September 1971 and was
again assigned to the production department , where his
duties consisted primarily of such off-the -air functions as
dubbing tapes , preparing FM tapes, and maintaining the
music library.
In addition, on an irregular basis, he spent up to 20 to 25
percent of his time working for the news department. Gib-
son testified that Licari "was kind of a super office boy,"
whose position "was kind of hard to determine." As to
Licari's work for the news department, Gibson testified:
I would assign him a sports story. He would go and
get an interview. He would come back with the story
and put it on the air. On kind of a catch as catch can
basis he worked in the news department on general
assignments . We had him for a certain amount of hours
per week, whenever we needed someone in an emergen-
cy situation. He was with Mr. McIntyre and I obtained
Licari's service that way.
Jones testified that Licari did no voicing in connection
with his production work, but did do some in the course of
his work for the news department. It is clear, however, that
such voicing was infrequent and irregular.
Production Manager McIntyre, Licari's primary supervi-
sor until October 25, testified that he had never heard
Licari's voice on the air and that if Lican, serving as a
reporter, were to bring in a story, the news editor "would
probably edit his voice out of it." McIntyre's overall conclu-
sion was that Licari "wasn 't an air man."
The evidence leaves no doubt that Licari could not be
considered an on-the-air employee. Respondent maintains,
however, that he should be included within the unit because
of his community of interest with on-the-air personnel, as
evidenced by the facts that he worked a great deal of the
time in the newsroom and in on-the-air studios and used the
same lounge that on -the-air personnel used. But there is no
showing that these conditions did not also apply to many
persons outside the unit. McIntyre testified that [e]verybody
could use [the announcers' lounge] if they would like to."
And presumably technicians, such as engineers, work in the
broadcasting studios. Respondent also observes that, as the
record shows, some of the agreed upon on-the-air employ-
ees at times perform some off-the-air work similar to that
done by Licari. However, Respondent's argument ignores
the basic fact that Licari's duties were predominantly off the
air, whereas off-the-air work was purely secondary and inci-
dental for the employees with whom Respondent seeks to
compare Licari . See KPOJ, Inc., 129 NLRB 727, 729; Booth
Broadcasting Company, 134 NLRB 817, 820.
Respondent finally argues that Licari must be afforded
the same status as McKeon because of the similarities in
their situations. The major point of similarity between the
two men is that, unlike the other employees here involved,
they were paid at an hourly rate. It should be noted, howev-
er, that McKeon's rate was $3 per hour as contrasted to
Licari's $2.55. In any event, the method of computing com-
pensation is not determinative of placement in a unit de-
fined by reference to function. At the time here involved
McKeon' was classified by Respondent as an announcer
and he did regularly scheduled on-the-air broadcasts; Licari
was primarily a production assistant and did no regular
broadcasts.
Respondent also suggests that Licari should be included
within the unit as a "sound effects artist" eligible for mem-
bership under the Union's constitution. But there is no evi-
dence either as to the meaning of the quoted phrase or as
to the creation of "sound effects" by Licari. More impor-
WCAR, INC.
tantly, the Union's standard of eligibility for membership
cannot and does not purport to identify "on-the-air person-
nel."
On all the evidence, I find that, in agreement with the
parties' stipulation in the representation proceeding, Licari
was not an "on-the-air" employee and thus was not properly
includable in the bargaining unit on November 8.
(4) Gibson
Gibson was hired in 1969 by Levinson and Webster. Gib-
son worked directly under Webster from the beginning of
his employment until October 31, 1971, when Webster was
discharged. At that time Jones asked Gibson to assume the
functions of acting news director until a replacement for
Webster was hired. Upon learning that he was not to be
given the job of news director on a permanent basis, Gibson
said he would stay on only until the new director arrived.
About a week later Gibson changed his mind and told Jones
he would like to stay on at his old job. Jones said he would
consider the matter and speak to Gibson again. On Novem-
ber 15, when Nathan arrived to replace Webster, Jones
informed Gibson that his resignation was being accepted,
effective immediately. Thus, on November 8, the date of the
Union's demand for recognition, Gibson was acting as news
director on a temporary basis.
The General Counsel apparently contends that Gibson's
status should be judged on the basis of the functions being
performed at that time, rather than on the basis of his for-
mer, regular job. But, as indicated above, it was never con-
templated that Gibson would be given the position of news
director permanently. His service in that position was pure-
ly temporary, pending the employment of a permanent
news director.
The Board has frequently held that a nonsupervisory em-
ployee temporarily substituting for a supervisor remains an
employee for representation purposes. Thermoid Company
(Southern Division), 123 NLRB 57, 58-59:
... We do not believe . . . that Jones a non-supervi-
sory employee, may be denied his right to vote in the
unit to which he properly belongs, solely because he
was temporarily substituting for a supervisor at the
time of the election. We find, rather that his temporary
and sole assignment did not destroy Jones' interest as
a member of the production and maintenance unit, and
that he is therefore eligible to vote... .
See also, e.g., The Great Western Sugar Company, 137 NLRB
551, holding that employees were eligible to vote in an elec-
tion held during a seasonal period in which they were serv-
ing as supervisors. Accordingly, Gibson's employee status
must be judged not by the position he held temporarily on
the demand date but by reference to his regular functions
before Webster's discharge.
The General Counsel also maintains that Gibson should
be excluded from the bargaining unit as a temporary em-
ployee because he had announced his intention to quit. But,
as the General Counsel himself successfully argues in con-
nection with McKeon (supra), an employee is held eligible
to vote in an election even though he has previously an-
nounced his intention to quit and actually does quit right
after voting.14
1245
The real question concerns the nature of Gibson's regular
functions. He claimed the title of "managing editor." He
testified:
I was hired there-my understanding in the presence
of Mr. Levinson, John Webster and Ken Draper that
I was hired as a newsman and to be assistant news
director. Mr. Levinson did not like this title. That's
what he said, He wanted to develop another title. I
never got business cards printed as assistant news di-
rector. But Mr. Levinson used in advertisement in the
Ad-Craft paper in Detroit, the title of managing editor.
He drew up the ad, approved it, and sent it into them.
And from that time on Mr. Levinson introduced me to
people who came through the department . . . as the
managing editor, and second in command to John
Webster and so we used-editor in charge, managing
editor.
Gibson's testimony in this regard was essentially uncontra-
dicted.
There is no dispute that Gibson made the daily assign-
ments of news coverage among the reporters. The evidence,
however, does not clearly disclose the degree of discretion
or independent judgment that was entailed in making as-
signments. At one time Webster issued a memorandum en-
titled "Newsroom Administration," setting forth the duties
of "Editors-in-Charge." The memorandum begins: "EDI-
TORS-IN-CHARGE, designated by the director of news,
serve as supervisors of news operations during the period of
his or her shift." The first specific duty listed is: "Assign-
ment and control of all personnel `in shift' under his duty
hours as supervisor" (emphasis in the original). The second
duty specified is to be "responsible for notifying the Direc-
tor of News of matters, problems or questions requiring
management attention.... " And the editor-in-charge
"must be aware, at all times" of the location of news vehi-
cles, reporters and adminstration. The memorandum con-
cludes:
The EDITOR is responsible for every-thing that hap-
pens during his shift. His authority is questionable
ONLY by the Director of News.
Gibson performed the functions of editor-in-charge
whenever he was present, which was a large part of the time
since he worked very long hours. When he was not present,
the anchorman (the regular on-the-air newscaster) was the
"editor." Other on-the-air reporters, such as Berke and Gor-
ham, occasionally performed these functions when neither
Gibson nor an anchorman was present, as, for example,
sometimes during Saturday or Sunday.
Although Gibson testified that nobody was hired in the
newsroom without his concurrence, the evidence as a whole
establishes that he did not have authority to hire or fire and
did not really have the power effectively to recommend such
action.
Fernlock, an anchorman, testified that employees would
speak to Webster, not Gibson, if they wanted time off or
were going to be absent for illness or any other reason; if
they had complaints or grievances; or if they were request-
14 San Francisco Metal Products Company, d/bla O'Hara Metal Products
Co, 155 NLRB 236, 238, cited by the General Counsel, is distinguishable in
that the employees there involved had been hired on a temporary basis.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing raises . Fernlock summarized Gibson's position as fol-
lows:
Mr. Gibson's duties to me were never clearly de-
fined. He had some elements of supervisory responsi-
bility but definitely these elements did not include
hiring, firing, raises, the type of questions you asked me
a few moments ago. This was definitely not within the
scope of Mr. Gibson's responsibilities... .
... Mr. Gibson more or less supervised the report-
ers' activities as I described. . . . His primary responsi-
bility as I came to view it was supervising the activities
of reporters. On occasion he did exercise some supervi-
sory responsibility over the content of my newscasts
and this was very rare often overruled by Mr. Webster.
Q. When you say he supervised [reporters] activities
tell me specifically what did he do as far as you know?
A. Basically, made the assignments, told them
where they were to go, what stones they were to cover,
what times they were to be there, what times they were
to report back to the station, how they were to handle
the story in writing it and editing their tape, how many
scripts, as we call it in business, they were to produce,
when they were to take their lunch break, if indeed they
were going to take one, this type of thing. He did not
seem to exercise responsibility over the anchormen or
the editors... .
Gibson had no authority to discipline employees. On one
occasion he undertook to discipline a reporter by sending
him home 1 hour early. But Webster thereafter informed
Gibson that he was not authorized to take such action with-
out Webster's prior approval.
The evidence as a whole creates the definite impression
that, because the two men had previously worked together,
Webster thought highly of Gibson and valued his opinion
on many matters. In a memorandum to Levinson dated
September 22, 1970, Webster said: "Gibson is great. He is
truely [sic] a great newsman and administrator. I involve
him in most all decisions . His counsel is very good ." Howev-
er, Webster very sparingly delegated authority. So far as
appears, the only actual authority he delegated to Gibson
was the day-to-day assignment of reporters to specific sto-
ries.
The record shows that both Respondent and the employ-
ees considered Gibson as essentially a supervisor.
Respondent 's opinion is most graphically reflected in its
failure to include him in the overtime compensation pay-
ments made on December 1. In the absence of any explana-
tion for this exclusion, it is reasonable to assume that it
reflected a view that Gibson was employed in an "executive,
administrative or professional capacity." 15 Burke testified
that he did not solicit Gibson's union authorization because
Gibson was part of "management." With the evidence con-
cerning Gibson's duties and functions presenting such a
close question, I find that the scales are tipped in favor of
a finding of supervisory status by the fact that both manage-
ment and employees apparently considered him as supervi-
sory. Cf. Raymond Buick, inc., 173 NLRB 1292, 1298, enfd,
445 F.2d 644 (C.A. 3,1971). Accordingly, he will be excluded
Is 29 U.S.C. Sec. 213 (a)(l).
from the bargaining unit.
Since the parties stipulated as to 11 members in the unit,
the addition of McKeon and the exclusions of Nathan,
Major, Licari, and Gibson give a total of 12 members in the
unit.
b. The authorizations
The "authorizations" on which the General Counsel re-
lies are entitled "Designation and Application for Member-
ship" in AFTRA, national office . So far as here relevant, the
printed document contains three parts : an application for
union membership , a designation of the Union as collective-
bargaining agent , and a dues checkoff authorization. The
wording of the designation is:
I hereby designate [AFTRA] as my exclusive agent
for collective bargaining purposes in any and all mat-
ters dealing with the radio industry, television , records,
electrical transcriptions , any other means for mechani-
cal reproduction , and any other matters or industries
within the jurisdiction of the said Federation... .
(1) Representations
The General Counsel introduced into evidence seven
cards signed on November 5, 6, or 7, 1971.16 These cards
were all duly identified by the signers and/or by Berke, the
solicitor. Signatures are also corroborated by documents
from Respondent's files . There is no question as to their
authenticity. Respondent, however, contests the validity of
these cards as authorizations for union representation on
the ground that they are ambiguous multiple-purpose cards
and at least some of them were obtained through misrepre-
sentation.
The claimed ambiguity apses from paragraph 4 of the
form, which reads: "The above designations and authoriza-
tions are completely independent of my status as an appli-
cant for membership under paragraph `(1)', and of my status
as a member." The "designations and authorizations" there
referred to are the authorizations of representation and dues
checkoff in paragraphs 2 and 3. The meaning of paragraph
4, therefore, is clear: the signer designates the Union as his
representative in the industry regardless of his union mem-
bership status . Since applicants are not required to pay
initiation fees or dues, and thus do not acquire membership,
until they are employed under a union contract, an obvious-
ly important purpose of paragraph 4 is to permit use of the
paragraph 3 authorization in organizational campaigns.
And, as the evidence establishes that all the Union's collec-
tive-bargaining agreements contain union-security clauses.
And the checkoff authorization comes into play when a
contract covering the card signer becomes effective even if
membership is for some reason withheld, as for example,
failure to pay an initiation fee or disciplinary action against
the signer. Thus, rather than creating any ambiguity, the
savings provision in paragraph 4 serves to obviate some
possible problems which the multiple-purpose card might
otherwise create.
This view is closely related to the question of dues, which
16 Berke, Busch , Fernlock, Noory, Walls (O'Brien), Lessnau, and McKeon.
WCAR, INC.
was discussed in the course of the soliciations . The last item
on the back of the application card calls for the signer to
indicate his gross income bracket during the past year , "[f]or
the purpose of ascertaining dues bracket ." In the course of
soliciting, in answer to questions, Berke advised the employ-
ees that they should check the lowest bracket listed since the
matter of dues was not relevant at that time . This advice
reflected the fact that members are not required to pay dues
except when they are working under union collective-bar-
gaining agreements . No dues were to be required of
Respondent 's employees unless and until the Union became
their representative and obtained a contract. At that point
the signers ' gross income under union contracts would first
become relevant . Thus, rather than being in any sense mis-
leading, as Respondent contends, Berke's statements were
essentially corroborative of the immediate purpose of the
cards as authorizing representation. See N.L.R.B. v. Marse!-
lus Vault & Sales, Inc., 431 F.2d 933, 938 (C.A. 2, 1970).
Significantly, the cards unequivocally authorize represen-
tation 17 and say nothing about elections. The employees
here involved are all well educated , literate , and articulate.
While the cards are "multiple-purpose" in covering union
membership and dues checkoff in addition to representa-
tion , so far as here relevant , they may be considered as
"single-purpose cards , stating clearly and unambiguously
on their face that the signer designated the union as his
representative ." N.L.R.B. v. Gisse! Packing Co., supra, 395
U.S. at 606. Indeed, the addition of an application for mem-
bership and a dues-checkoff authorization would reinforce,
rather than undermine , the nature of the card as more than
a desire or willingness to participate in an election. The
Board has held that "signed applications for membership
which expressly designate that organization as the appli-
cants' representative for collective bargaining are sufficient
designations of the Union as such representative ." Scobell
Chemical Co., 121 NLRB 1130, 1131, fn. 3, enfd. 267 F.2d
922 (C.A. 2, 1959).
Respondent specifically contests the cards of Busch,
Fernlock, and Noory as having been obtained by misrepre-
sentation. The evidence does not support these attacks.
Busch was a member of the Union on a dues-suspended
status on November 5.18 On that date he signed another
card , at Berke's request . When asked about Berke's repre-
sentations , Busch testified that "there was little or no discus-
sion, as I was already an AFTRA member. So I did not
specifically talk to [Berke] about the function of the card."
In view of this uncontradicted evidence, it is difficult to see
on what basis it can be argued that Busch's card was ob-
tained by misrepresentation.
Respondent apparently relies on Busch 's testimony that
"[o]bviously , we had to sign it to cause an election"; he "was
not told any other function for the card"; and he under-
stood only that they "needed a majority of the people to sign
the card." Manifestly, even if it were to be assumed that
17Even without an express authorization , an application for union mem-
bership implies authority to bargain . Ace-Alkire Freight Lines, Inc v. N.L. R.
B., 431 F.2d 280, 283 (C.A. 8, 1970).
"Dues suspension is granted , on written request , to any member who
certifies that he does not anticipate making $1 ,000 or more under a union
contract with the next 12 months.
1247
Busch anticipated that an election would be held, as it in
fact was, there is no evidence that he was advised, or even
that he subjectively believed, that the card would not be
used for any other purpose. As said by the Supreme Court
in Gissel, supra, 395 U.S. at 606-607:
... There is nothing inconsistent in handing an em-
ployee a card that says the signer authorizes the union
to represent him and then telling him that the card will
probably be used first to get an election. . . . We can-
not agree with the employers here that employees as a
rule are too unsophisticated to be bound by what they
sign unless expressly told that their act of signing repre-
sents something else. . . . employees can be counted
on to take responsibility for their acts.
Fernlock testified, in effect, that Berke said the card
would used to secure an election. Upon reading the card,
which says nothing about an election, Fernlock asked Berke
if he was using the proper card and Berke replied in the
affirmative. When he signed the card, Fernlock thought that
"at this moment the purpose of the form was to ask for an
election and perhaps it had other uses later on." The nub
of his testimony on this point was that he assumed the card
was to be used immediately to secure an election, but:
I assume that this card has other uses. By looking
at the card, this is quite obvious, but I assume that these
other uses were not to come into play at this time, that
the immediate use would get an election.
Fernlock's understanding was accurate: the card was used
immediately to obtain an election. Its additional use to ob-
tain direct recognition, in accordance with its explicit terms,
is not inconsistent with representation that it would be used
to secure an election.
In its brief, Respondent also attacks Noory's card as hav-
ing been obtained by misrepresentation. Solicitor Berke tes-
tified that he told Noory they were trying to get "at least one
more than half the membership to sign." Berke's testimony
continued:
I explained the procedure as it was explained to me,
that the Union would then go to the National Labor
Relations Board who would certify that a certain num-
ber would be interested and they would contact the
management of the station by certified letter. I told
[Noory] that to the best of my knowledge, these cards
were privileged and that management could not have
access to them. I told them that we had to get the cards
signed if there was to be even an election. I told them
that by signing this-I told them to read it. This indi-
cated they wished to have AFTRA as a bargaining agent.
[Emphasis supplied.]
Again, on this undisputed and credited evidence, there was
no misrepresentation. Noory could not have been left in any
doubt that the card was, as it clearly indicates on its face,
an authorization for union representation.
There is no evidence that any of the seven cards signed
on November 5, 6, and 7, 1971, were obtained through
misrepresentation. Accordingly, all seven will be counted as
valid authorizations for union representation. Thus, on the
demand date, the Union held a majority of 7 in a bargaining
unit heretofore found to number 12.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) Union membership
In view of the foregoing findings that the Union held
valid authorization cards of 7 members of a 12-member
unit, it may be unnecessary to determine whether it held any
others, as the General Counsel maintains . However, rever-
sal of the Trial Examiner's findings as to inclusion and
exclusion of employees from the unit could affect the con-
clusion as to majority. Accordingly, I will proceed to con-
sider the General Counsel's claim to additional
authorizations.
The General Counsel contends that Gorham, Smith
(O'Shea) and Pringle (Prince) should also be counted as
having validly authorized the Union to represent them.19
The basis for this contention is that these three employees
had previously joined the Union and had maintained cur-
rent, active membership through the period here involved.
As to Gorham and Smith, the General Counsel intro-
duced their original applications for membership in the
Union, dated April 23 and February 10, 1970, respectively.
Mary Ann Formaz, the Union's Executive Secretary, testi-
fied that Pringle 's original application for membership
could not be found in the Union's files . However, she credi-
bily testified that nobody has ever been admitted to mem-
bership without having executed such an application. Since
the Union's record, duly authenticated and introduced in
evidence, show that Pringle paid an initiation fee in March
1963 and membership dues thereafter , I find that he had
authorized the Union to represent him. His situation , there-
fore, is considered as similar that of Gorham and O'Shea.
On November 22 and 29, 1971, respectively, Pringle 20 and
Gorham paid their dues for the half year, November 1971
through April 1972. Smith , however, has not paid dues for
that period, the Union's delinquency fine imposed on De-
cember 9, 1971.
The General Counsel maintains that the unrevoked au-
thorizations included in these employees ' membership ap-
plication forms, particularly when accompanied by
maintenance of current dues-paying status, establish at
leastprimafacie current authorization for union representa-
tion. According to the General Counsel, Respondent has
not rebutted the presumption so raised.
Respondent, however, maintains that the employees' ex-
isting union membership does not signify a current desire
for the Union to represent them vis-a -vis Respondent. Since
all the Union's collective-bargaining agreements contain
union-security clauses, these employees may well have
joined the Union under the compulsion of such a clause. As
a matter of fact, the evidence does establish that Gorham
was working for a unionized station when she joined the
Union. Thus, argues Respondent , the act of joining the
Union would not necessarily indicate a personal desire for
union representation.
To explain why Gorham and Pringle might maintain
19 The General Counsel also included Major within this group. However,
I have heretofore excluded Major from the bargaining unit. If he were to be
included , the discussion of the other three-named employees would control
as to Major.
2' Pringle 's active , dues-paying status has been maintained by the payment
of fines for late payment of dues.
dues-paying membership while employed by a nonunion
station, Respondent points to the fact that the Union has
agreements (called Codes of Fair Practices) with some 166
to 120 producers and advertising agencies, with the bulk of
radio work in the Michigan area. These codes contain
union-security provisions . Accordingly, performers making
commercials on a free-lance basis for an advertising agency
in the area would have to be or become members of the
Union. In order to secure dues-suspended status, a union
member is required to state in writing his intention not to
earn $1,000 or more within the following 12-month period
at work under a union contract or code. Thus , maintenance
of active membership could readily indicate that the person
wanted to do free-lance work. The evidence establishes that
Pringle and Smith were performing as free-lance announc-
ers when they joined the Union. Against the background of
the union-security provisions, a card designating the Union
to represent the signer in any and all matters within the
radio, television and related industries, embracing the
Union's entire jurisdiction, would not necessarily or even
probably indicate a desire on the part of the signer to bring
the Union into the nonunion station by which he is current-
ly employed. Cf. Sema Corporation, d/b/a Shanandoah Golf
and Country Club, Inc., 185 NLRB 455.21
Specific evidence in the present record reinforces
Respondent's position . For example, Berke disclosed that
several times he asked Gorham to sign an authorization
card but she refused. Gorham is the only employee whom
Berke solicited in addition to the seven who actually signed
cards. From Berke 's restraint, not usual among solicitors in
union organizational campaigns , it would be reasonable to
infer that Berke knew, or at least thought, that the remain-
ing employees were not in favor of union representation. At
the employee meeting called by Levinson on December 7,
2 days before the election, Pringle delivered an "impas-
sioned" antiunion speech. And one of the Union's objec-
tions to the election concerned Smith (O'Shea), who was
referred to as an "outspoken opponent of the Union."
It may be added that in considering the employees' ex-
pressions of their opinions, I am not engaging in "a probe
of an employee's subjective motivations . . . involving an
endless and unreliable inquiry." Rather, I am looking to
employees' contemporaneous expressions of views, not tes-
timony given "many months after a card drive and in re-
sponse to questions by company counsel." Gissel, supra, 395
U.S. at 608.22
21 The present situation is clearly distinguishable from those in which the
union has been certified , as in ABC Food Service, Inc, supra, 176 NLRB at
429-430 Similarly , in Reuben R Miller, d/bla Sioux City Bottling Works, 156
NLRB 379, and Harris-Woodson Co, Inc, 77 NLRB 819, cited by the Gener-
al Counsel , it was clear that a majority of the employees had duly chosen the
unions to represent them vis-a -vis thus current employees and, in those
circumstances, payment of dues by a majority was held to establish a contin-
uing majority.
Respondent also attempted to show that a member might retain dues-
paying status for the purpose of keeping certain benefits . However , the only
benefit which could be retained in that manner is a $1,000 life insurance
policy provided to members by the Local Union. It is unreasonable to specu-
late that persons would pay $60 per year in dues solely for this purpose The
much greater benefits provided through the national union depend upon
working under union contracts , with contributions made by the employers.
To enjoy such benefits , therefore , requires union representation According-
ly, I give no weight to benefits as a potential motivating factor in assessing
the inferences to be drawn from employees ' maintenance of active union
WCAR, INC.
On the evidence in this case , it would be most unrealistic
to "presume" that Gorham, Pringle, and Smith favored hav-
ing the Union represent them as employees of Respondent
merely because they had joined the Union in the past and
had maintained their membership. Accordingly, I find and
conclude that they cannot be counted among the employees
authorizing the Union to represent them.
The conclusion from the foregoing findings is that on
November 8, when the Union demanded recognition, it
represented a majority of 7 in a unit of 12.
(3) Refusal to bargain
With the Union's majority established, the remaining
question is whether Respondent merely exercised its legal
right to insist that the majority be established by an election
or, on the contrary, unlawfully refused to bargain in viola-
tion of Section 8(a)(5). In favor of the Company is the fact
that with reasonable dispatch it entered into a Stipulation
for Certification upon Consent Election calling for an ex-
peditious resolution of the matter . However , as heretofore
found, in the period immediately preceeding the election
Respondent engaged in unfair labor practices of a nature
designed to "thwart the employees ' organizing initiative."
Skaggs Drug Centers, Inc., 197 NLRB 1240. Under the rules
of Gissel, supra, by such conduct Respondent forfeited its
right to insist upon a Board-conducted election as the
means of determining the Union's majority.
Accordingly, it is found that Respondent unlawfully re-
fused to recognize and bargain with the Union, which repre-
sented the majority of the employees in an appropriate
bargaining unit on the date of the Union's demand. Federal
Stainless Sink, Division of Unarco Industries, Inc., 197 NLRB
489.
III. CONDUCT AFFECTING THE RESULTS OF THE ELECTION
The Union's objections to the conduct of the election
which were referred to me for hearing are substantially
identical to the unfair labor practice allegations heretofore
decided. As the Regional Director stated in his report; "If
the Complaint allegations referred to above are sustained,
the Union's objections will, a fortiori, be sustained." Dal-
Tex Optical Company, Inc., 137 NLRB 1782, 1786; Federal
Stainless Sink Div., supra. Since the unfair labor practices
found occurred after the representation petition was filed,
and before the election was held , I wll recommend that
objections 1 and 3 be sustained and the results of the elec-
tion be set aside.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By spontaneously granting to five employees gener-
ously computed compensation for past overtime work on
membership.
1249
December 1, 1971, a week before a scheduled election, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
4. By announcing a uniform policy concerning severance
pay to discharged employees and promising to follow such
policy, on December 7, 1971, 2 days before a scheduled
election, Respondent engaged in and is engaging in an un-
fair labor practice within the meaning of Section 8(a)(1) of
the Act.
5. By granting severance pay to a former employee while
a representation petition was pending, Respondent engaged
in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
6. All "on-the-air personnel," including disc jockeys, an-
nouncers, and newsmen employed by the Respondent at its
radio station in Detroit, Michigan, but excluding office cler-
ical employees, engineers, guards and supervisors as defined
in the Act constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
7. At the time material herein the Union represented a
majority of the employees in the unit set forth in Conclusion
of Law 6, above.
8. By failing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the em-
ployees in the unit defined above, Respondent has since
December 8, 1971, engaged in, and is engaging in, an unfair
labor practice within the meaning of Section 8(a)(5) and (1)
of the Act.
9. The unfair labor practices engaged in by Respondent,
as set forth above, affect commerce within the meaning of
Section 2(6) and (7) of the Act.
10. It has not been shown that Respondent had engaged
in any unfair labor practices other than those specifically
found above.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices interfering with its employees' rights guaranteed
by Section 7 of the Act, I will recommend issuance of the
customary cease-and-desist and notice-posting order. The
recommended Order will not require that Respondent take
any steps to undo or rescind the benefits which it has been
found to have conferred unlawfully.
I am of the opinion that the nature of Respondent's viola-
tions of Section 8(a)(1) is such as requires the issuance of a
bargaining order under the principles enunciated in Gissel,
supra, 395 U.S. at 614, where the Supreme Court approved
"the Board's use of the bargaining order in less extraordi-
nary cases marked by less pervasive practices which none-
theless still have the tendency to undermine majority
strength and impede the election processes."
For some time before November 1971 the long working
hours required of them had been a source of discontent to
Respondent's on-the-air employees. They had registered
complaints about the hours while Webster was news direc-
tor and then complained to Jones and Nathan upon their
arrival in November. It was around November 15, upon
Nathan's arrival, a week after the Union demanded recogni-
tion and filed its representation petition, that Respondent
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted new schedules generally limiting hours to 40 a week.
Within 2 weeks thereafter Respondent made generous over-
time "settlements" which have been found violative of Sec-
tion 8(axl). Similarly, because of numerous recent
discharges, when the employees made known their concern
about severance pay, Levinson made a commitment for the
future in place of his former discretionary handling of the
matter . In view of these facts , the present case appears to
be governed by Skaggs Drug Centers, Inc., supra, 197 NLRB
1240, in which the Board issued a bargaining order on the
finding, inter alia that a wage increase granted to unit em-
ployees was "extensive in that it sought to eliminate what
appears in the record to be the primary, if not the sole,
reason employees sought union representation." The Board
said further:
It is also apparent that our traditional remedies, which
do not include a requirement that the wage increase be
rescinded, cannot eradicate the impact of
Respondent's action. Such impact would continue to
influence employee choice in a rerun election were one
to be directed, for, whether or not the wage increase
remained in effect, employees are not likely to miss the
inference that 'the source of benefits now conferred is
also the source from which future benefits must flow
and which may dry up if it is not obliged.' N.LR.B. v.
Exchange Parts, 375 U.S. 405. We conclude therefore
that by the grant of a substantial wage increase Re-
spondent has precluded the running of a fair rerun
election and that the authorization cards signed by
employees are a more reliable measure of their desire
for union representation than would be the results of
a rerun election.
The unlawful granting of benefits appears to be generally
recognized as the type of conduct most apt to undermine
support for union . C & G Electric, Inc., 180 NLRB 427;
Tower Records, 182 NLRB 382, 387; American National
Stores, Inc., 195 NLRB 127. See Chairman Miller's dissent-
ing opinion in General Stencils, Inc., 195 NLRB 1109, 1112:
"Initially , our decisions suggest two categories of employee
misconduct which may usefully be regarded as sufficient per
se to justify imposition of an order to bargain: (1) the grant
of significant benefits. . . . "23
Respondent cites Artie Mineral Feed Co. v. N.LR.B., 436
F.2d 940 (C.A. 8, 1971), in which the court declined to
enforce a bargaining order where the 8 (axl) violations oc-
curred before the union obtained majority status, such pre-
cluding any possible inference that they might have
undermined a majority. In the course of its opinion, howev-
er, the court said (at 945);
Where the underlying facts affirmatively show that
the unfair labor practices have in fact undermined a
union majority, typically evidenced by the union losing
an election or the employees seeking to withdraw from
b The court's reversal of the Board 's bargaining order in General Stencils,
438 F.2d 894 (C.A. 2, 1971), is not inconsistent with the issuance of such an
order in the present can. In General Stencils the court found Respondent's
independent 8(axl) violations consisted solely of an unlawful interrogation
and a limited threat to withdraw minor benefits.
24 The Sixth Circuit has itself since suggested some question concerning
the union following the occurrence of the conduct in
question, we grant enforcement [of a bargaining order].
And the Seventh Circuit has "recognized[d] that the 'ten-
dency' of unfair labor practices to affect the election pro-
cess, rather than proof of actual impact, may be sufficient
to sustain a finding of violation of § 8(a)(5)." N.L.R.B. v.
Drives, Inc., 440 F.2d 354, 365 (1971); N.L.R.B. v. Noll
Motors, Inc., 433 F.2d 853, 856 (C.A. 8, 1970).
Respondent finally maintains that because of recent per-
sonnel changes a majority as of November 9, 1971, would
not be a realiable basis for a bargaining order at this time.
In disposing of this contention, it is sufficient to quote the
Board's recent pronouncement in General Stencils, Inc., su-
pra, 195 NLRB 1109:
The Employer's conduct ... is of such gravity as to
render a reliable election unlikely, even if the Employer
were to discontinue his unlawful conduct.,
7 In reaching this conclusion we deem it inappropriate to consider
employee turnover since the original entry of the bargaining order. An
employer whose misconduct has occasioned the proceedings should
not be permitted to escape his duty to bargain because of the delay that
is the "unfortunate but inevitable result of the procedure but inevitable
result of the procedure required in the Act." N.L.R.B. v. L.B. Foster
Co., 418 F.2d 1(C.A. 9).
As said by the Seventh Circuit in N.L.R.B. v. Kostel Corpo-
ration d/b/a Big Ben Shoe Storey 440 F.2d 347, 353:(1971)
... If any party should be penalized for the delay, it
should be the employer, since his misconduct occa-
sioned this proceeding. To hold otherwise would per-
mit an employer to escape his duty to bargain with the
employees' representative by continuing his unlawful
practices or by engaging in protracted litigation... .
In the absence of a decision by the Supreme Court, I am
bound by the Board's decisions and thus am not free to
follow Clark's Gamble Corp. v. N.LR.B., 422 F.2d 845 (C.A.
6, 1970), cert. denied 400 U.S. 868 (1970), and N.LR.B. v.
American Cable Systems, Inc., 427 F.2d 466 (C.A. 5, 1970),
cert. denied 400 U.S. 957 (1970), cited by Respondent, to the
extent that they may by read as making the propriety of a
bargaining order depend on personnel changes subsequent
to the unfair labor practices found.24
On the evidence adduced in the present hearing, I find
that Respondent engaged in unfair labor practices of such
a nature as to render it unlikely that an election held now
would reliably reflect employee sentiment. Under these cir-
cumstances, to withhold a bargaining order now because
the passage of more time might dissipate the effect of
Respondent's misconduct would be antithetical to the ma-
jor purpose of the Act to achieve industrial stability through
remedial measures prescribed after due hearing.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
"the meats of [the Clark 's Gamble ) decision" and has, in any event, appar-
ently limited it to situations "where the Board's own delay had occasioned
the turnover of employees ." G.P.D., Inc. v. NL.R.B., 430 F.2d %3,964 (C.A.
6, 1970). The dissenting opinion in G.P.D. relies on Clark's Gamble and
American Cable, thus suggesting that they no longer represent the law in the
Sixth Circuit.
WCAR, INC. 1251
ORDER25
Respondent , WCAR, Inc., its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Offering or granting to employees compensation for
past overtime work in order to induce them to vote against
the Union.
(b) Granting or promising to grant severance pay or oth-
er benefits in the future in order to induce employees to vote
against the Union.
(c) Refusing to bargain collectively with Detroit Local,
American Federation of Television and Radio Artists,
AFL-CIO, as the exclusive representative of all "on the air
personnel ," including disc jockeys , announcers , and news-
men, employed by Respondent at its radio station in De-
troit, Michigan , but excluding office clerical employees,
engineers , guards and supervisors as defined in the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action , which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Detroit Lo-
cal, American Federation of Television and Radio Artists,
AFL-CIO, as the exclusive representative of all the "on the
air personnel," including disc jockeys, announcers, and
newsmen, employed by Respondent at its radio station in
Detroit, Michigan , but excluding office clerical employees,
engineers , guards and supervisors as defined in the Act.
(b) Post on the premises of its radio station in Detroit,
Michigan, copies of the attached notice marked "Appen-
dix."26 Copies of said notice, on forms provided by the
Regional Director for Region 7, shall, after being duly
signed by its authorized representative, be posted by Re-
spondent immediately upon receipt thereof, and shall be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith.27
IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices not
specifically found herein.
IT IS FURTHER ORDERED that the election conducted on De-
cember 9 , 1971, among the employees in the designated unit
be, and it hereby is, set aside and that the petition in Case
7-RC-10868 be, and it hereby is dismissed.
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
zs In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
27 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 7, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."