WENO

National Labor Relations Board - Board Decisions

May 27, 1970

182 N.L.R.B. 866 (N.L.R.B. 1970)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Broadcasting , Corporation d/b/a WENO and Nash-
ville Local , American Federation of Television' and
Radio Artists , AFL-CIO.' Cases 26-CA-3395 and
26-RC-3444 -
May 27, 1970,
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 2,, 1969, Trial Examiner Sidney J. Bar-
ban issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist- therefrom and take
certain affirmative action, as set forth in ,the attached
Trial Examiner's Decision. He also found that the
Respondent.had not engaged in other unfair labor prac-
tices alleged in the complaint, and recommended that
such allegations be dismissed. In addition, the Trial
Examiner found that the Respondent's unlawful conduct
had interfered with the Board election held on June
4, 1969, and recommended that the election be set
aside. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief,
and the General Counsel filed cross-exceptions to the
Trial Examiner's Decision and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby,adopts the findings, conclusions, and
recommendations of the Trial Examiner, as modified
below.
We agree with the Trial Examiner that the Respondent
violated Section 8(a)(1) of the Act and interfered with
the June 4, 1969, election by threatening its employees;
and violated Section 8(a)(1) by discharging announcers
Ralph Paul Gernhardt and John Davis on June 6, 1969,
because they were engaging in concerted activity protect-
ed by Section 7 of the Act, and by refusing to reinstate
them and announcer Ben Arnold on June 16, 1969,
after they unconditionally offered to 'return to work.
Contrary to the Trial Examiner, we find that announcer
Tom Naff, Jr., was discharged on June 6, 1969, because
he participated with Davis and Gernhardt in protected
concerted activity, and that his discharge also violated
Section 8(a)(1) of the Act. In making this finding, we
rely, inter alia, on the fact that Naff was not told
that the reason for his discharge was his conduct toward
Williams. The record reveals that Naff was the spokes-
man of the group of employees which included Gernhardt
and Davis who met with General Manager Jenkins, on
June 4 and asked for a wage increase; he participated,
with them, in the strike of June 5 and 6; and the
Respondent sent him a telegram identical with the ones
sent to Davis and Gernhardt on June 6, discharging
them for the purported reason that they had failed
to report to work and to furnish a doctor's statement.
We do, however, agree with the Trial Examiner that
Naff's conduct towards employee Ervin Williams was
such as to justify the Respondent's refusal to reinstate
him. The record shows that several days before the
election, Williams had indicated to the union adherents
that he would vote for the Union. However,'- when
the election resulted in the defeat of the Union by
a 5-5 tie, it became apparent to the union' supporters
that Williams had not, in fact, voted for the Union.
About an hour after the election, while Williams and
another employee were working in the production room,
Naff opened the door and shouted to Williams', "Do
you have a bag for your 30 pieces of silver?" Beginning
that evening Williams received a number of telephone
calls at the station, some made by Naff, requesting
that he play on the air an alleged musical number entitled
"Thirty Pieces of Silver." Then, Williams credibly tes-
tified, Naff called and ,"asked if I was healthy. . . .
I said, `yes'. He said, "Are you sure." Williams testified
that the calls upset him and his family a great deal,
and in fact he had his telephone number changed and
made reservations to fly his family out of town.
We find, in agreement with the Trial Examiner, that
Naff harassed Williams and threatened physical harm
to him and his family. It is also clear that the reason
for Naff's conduct was his conviction that Williams
had voted against the Union in the Board election.
In determining whether an unlawfully discharged
employee should be denied the customary remedy of
reinstatement, the Board weighs the misconduct of the
employee against the unfair labor practices committed
by the Employer and all other relevant factors in the
case.'
Naff's misconduct cannot be attributed to tensions
which exist between strikers and nonstrikers in certain
situations.2 Nor can it be described as an unpremeditated
emotional reaction to the provocation of flagrant unfair
labor ' practices.3 On the contrary, Naff's remarks and
telephone calls were made over a period of some days
with the deliberate intent to harass and frighten Williams
because Williams voted'against the Union and the Union
,lost the election. We cannot, therefore,, ascribe Naff's
misconduct directly to the unfair labor practices commit-
ted by the Respondent. Moreover, we think the impor-
tance of protecting voters in Board elections from harass-
ment and threats because of the way they -voted out-
weighs any indirect relationship between the Respond-
ent's unfair labor practices and Naff's conduct in this
case. Nor is this type,of conduct one of the "realities"
' N L R B v H N Thayer Company, 213 F 2d 748 (C A 1),
enf 99 NLRB 1122
s Cf Stewart Hog Ring Company , Inc ,131 NLRB 310
Cf N L R B v M & B Head ware Co-, 349 F 2d 170 (C A 4)
But see Stein - Way Clothing Company, Inc , 131 NLRB 132
182 NLRB No. 124
WENO
of life in the broadcasting studio where these employees
work.4 In all the circumstances, therefore, we find, in
agreement with the Trial Examiner, that it would not
effectuate the policies of the Act to order reinstatement
or backpay for Naff.S
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Central Broadcasting Corporation d/
b/a WENO, Nashville, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
[Direction of Second Election6 omitted from publica-
tion.]
MEMBER BROWN , dissenting in part:
I cannot agree with my colleagues insofar as they
find that Tom Naff, Jr., engaged in conduct which ren-
dered him unfit for reinstatement. As found by the
Trial ' Examiner based on the testimony of Williams,
the allegedly threatened employee and his wife, Naff
made some telephone calls and personal comments to
Williams at the radio station referring to "30 pieces
of silver" and one telephone call to the station in which
he inquired whether Williams and his family were heal-
thy, and when Williams said "yes," Naff asked "Are
you sure"?' There were other incidents which are not
shown to have been connected with or attributable to
Naff in any way, and they seem unjustifiably to have
been considered as part of the total picture of Naff's
conduct. These include additional telephone calls to
Williams at the station from unidentified persons con-
cerning "30 pieces of silver" and several occasions
when Williams or his wife saw or passed another employ-
ee, Ben Singer, while the latter was driving his own
car, although Singer gave no sign of recognition or
greeting.
' Cf. Trumbull Asphalt Company of Delaware, 139 NLRB 1221,
enforcement denied in this respect 327 F 2d 841 (C A 8)
5 See N L R B v Fansteel Metallurgical Corporation, 306 U S 240,
261 ,
^ In order to assure that all eligible voters may have the opportunity
to be informed of the issues in the exercise of their statutory right
to vote, all parties to the election should have access to a list of
voters and their addresses which may be used to communicate, with
them Excelsior Underwear Inc., 156 NLRB 1236, N L R.B v Wyman-
Gordon Company, 394 U S 759 Accordingly, it is hereby directed
that an election eligibility list, containing the names and addresses
of all the eligible voters must be filed by the Employer with the
Regional Director for Region 26 within 7 days after the date of issuance
of the Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election.
No extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances Failure to comply with
this requirement shall be grounds for setting aside the election whenever
proper objections are filed
' Williams also testified that quite a while after the election Naff,
who had been out of the city, telephoned and invited Williams over
for a barbeque, saying in effect, that bygones will be bygones, we
are still friends, and let's forget the whole thing, even though Williams
considered Naff's tone as being sarcastic
867
It is apparent that all of the above was innocuous
even if annoying. Williams himself began his testimony
by saying: "I did not receive, in my opinion any threats,
say from any employees. I did receive harassment."
And on cross-examination he said that ". . . as long
as I am receiving harassing and threatening calls on the
phone, I can only assume that they have also considered
the possibility of violence, and that frightened me
.. ."(emphasis supplied), but that the only one who
made what he regarded as a threatening call was Naff
when he asked about the health of Williams and his
family.
Thus, it is apparent from the record that Williams,
from his own obviously very vivid imagination, because
of a single telephone inquiry about the state of health
of the Williams family, conjured what was said to be
extreme fear sufficient to lead him to make reservations
(but he did not say they were used) to send his wife
and children away from the city and to change his
telephone number at home (although none of the calls
were made'to his home). Even assuming that Williams
felt the fear to which he testified, it seems to me
beyond the realm of reason to conclude that it was
justified by Naff's single statement and that Naff thereby
lost right to the protection of the Act. This is a serious
penalty which should not be imposed lightly. Naff's
conduct, although improper and not to be condoned,
was not of such flagrant nature as to warrant loss
of his statutory rights.8 I would therefore order him
reinstated.
" Naff's ambiguous statement , even though occurring after an election
and not in the context of a strike , is hardly to be compared with
the direct threats and other types of conduct held insufficient to require
denial of reinstatement in the cases cited by the majority See also
Blue Jeans Corporation, et al , 170 NLRB No 149, Hot Spnngs Alumi-
num Processors, 162 NLRB 1293, 1304
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN , Trial Examiner: These matters
were heard before me at Nashville, Tennessee, on Sep-
tember 16 and 17, 1969, upon allegations in the complaint
in Case 26-CA-3395 issued on July 29, 1969 (based
upon charges filed on June 23 and July 29, 1969), and
upon an order of the Regional Director for Region
26 consolidating hearing upon the complaint with hearing
upon issues raised by objections of the Charging Party
(herein called the Union) to the election conducted in
Case 26-RC-3444.
The complaint in this matter alleges that the above-
named Respondent has engaged in unfair labor practices
in violation of Section 8(a)(1) and (3) of the Act. The
answer to the complaint denies the commission of any
unfair labor practice, but admits allegations of the com-
plaint sufficient to support the assertion of jurisdiction
under the current standards of the Board, and to support
a finding that the Union is a labor organization within
the meaning of the Act.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, from observation
of the witnesses, and after due consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE FACTS
A. Alleged Violations of Section 8(a)(1)
About April 1, 1969, according to the Regional
Director's Supplemental Decision and Order in the repre-
sentation case, the Union filed its petition for certification
as representative of certain of Respondent's employees.
Thereafter, pursuant to a decision and direction of the
Regional Director, an election was scheduled to be held
on Wednesday, June 4, 1969, among Respondent's
announcers and assistant engineer employed at its com-
mercial radio station at Madison, Tennessee, near Nash-
ville.
During this period prior to the election, it is alleged
that Fritz Niggeler, operations manager of the station
and supervisor of the announcers, threatened employees
that they would be discharged or replaced if they selected
the Union as their representative, and created an impres-
sion of surveillance by telling employees that he knew
as a fact that the Union would lose the representation
election.
Niggeler, during this period, lived in the same domicile
as Ralph Paul Gernhardt, one of the announcers, who
testified that Niggeler made a number of remarks to
him about the Union during a 3-week period before
the election. At the outset, Gernhardt states, Niggeler
let him know that "he was definitely against us and
that we had no way of winning ." When Niggeler
expressed himself as upset because he had not been
consulted before the men had formed "the Union
group," Gernhardt told Niggeler that they had not
advised him in order not to compromise his position
with management of Respondent.
According to Gernhardt, Niggeler's comments became
more pointed as the election approached. About 3 weeks
before the election, while Gernhardt was at work, the
latter states, Niggeler came in and asked Gernhardt
where he "was going to work next week." At another
time, within 2 weeks of the election, when Gernhardt
met Niggeler in the hall at the station, the latter said
that "I will be glad when this entire mess is over,"
that "we are going to have a whole new set of bodies
here," that "I already have my instructions if the union
goes our way," or Gernhardt asserts, "words to that
effect, that everybody is out ." Gernhardt stated that
he did not reply to these remarks, but tried to cut
Niggeler off from making such comments. Also that
the relationship between the two deteriorated during
this period.
John Davis, another announcer, testified to similar
remarks by Niggeler before the election. Within 2 to
3 weeks before the vote, Davis states that when Niggeler
came into the control room where Davis and another
announcer, Tom Naff, Jr., were on duty, "He would
pick up a newspaper, turn to the want ad section and
say words to this effect, `You guys had better be dwelling
on this part of the newspaper, if you are reading it.' "
Davis stated that on another occasion, about 1 week
before the election, when he "was outside the control
room looking at [a posted notice] concerning the election
.. . [Niggeler] walked up behind me and he said words
to the effect that I wouldn't worry too much about
it, if I were you, Davis, you won't be a problem.
Your replacement has been found." Davis also testified
that within the week before the election, in the presence
of announcer Naff, Niggeler came by while Davis was
cutting a comercial for a local employer listing the
advantages of working for that employer and urging
unemployed workers to seek employment there, and
said "you had better listen to your own commercial
and had better take your own advice." Also about
a week before the election, according to Davis, Niggeler
came into the production room at the station and asked
announcer Naff, in the presence of Davis, to cut some
promotional material to promote the "new guys." When
Naff asked what new guys he was referring to, Niggeler
replied, "Your replacements." Just before Davis was
to vote, Davis stated, Niggeler said that Davis would
"soon be out of here. "I
Niggeler testified that he was opposed to the Union,
which he did not think was in his own best interest,
and that he made remarks to the men about the Union
prior to the election, but states that these were made
in a bantering or joking manner , and in response to
remarks made to him to the effect that he was a "compa-
ny man" and would not be permitted to work on the
air after the Union won unless he joined the Union.
Niggeler stated that it was in response 'to such a
comment that on one occasion he asked Davis and
Naff (who used the name of Sonney LaDet on the
air) "what were they going to do when the election
was over." Niggeler admitted that about a week prior
to the election, he told Davis that his replacement had
already been found, although Niggeler stated that this
was said in jest. Niggeler also recalled making a comment
to Naff about cutting promotional material for replace-
ments which he said was made in the same "general
vein," and stated that it was possible that he had made
comments with respect to a commercial, such as that
Davis referred to, also in a joking manner . However,
Niggeler did not recall making remarks about want ads
in the newspapers.
With respect to Gernhardt's testimony, Niggeler
agreed that he told the former that he would be glad
"when this mess was over," but did not recall that
he told Gernhardt that what was needed was "a new
set of bodies after the election." He denied that he
had asked where Gernhardt was going to work next
' During the period before the election, Respondent had, in fact,
hired a new announcer who had taken over part of the duties previously
performed by Davis Respondent explained that this was actually a
replacement for other personnel lost by the station, and General Counsel
does not contend that the new hire was in violation of the Act
WENO -
week. Niggeler denied generally coercing or threatening
to fire employees if they did not vote against the Union.
Niggeler had been quite friendly with Gernhardt and
Naff, but not with Davis or the other men under his
supervision.
B. Alleged Termination of Employees Engaged in Work
Stoppage
1. Events leading to work stoppage
The election upon the Union's petition for certification
as representative of Respondent's announcers and assist-
ant engineer was held on the afternoon of June 4,
1960. Among approximately Fl eligible voters, 10 voted,
5 voting for the Union and 5 against.
After the election four of the eligible voters (Gern-
hardt, Naff, Davis, and Arnold) together with Byers,
a supervisory employee, left the radio station in a group.
Before leaving Naff told Britton, another announcer,
"you are going to get mighty lonesome around here,"
adding thereto an obscene epithet. This was reported
to Edwin M. Jenkins, Respondent' s general manager.
Jenkins then spoke with Eddings, another announcer
who, Jenkins stated, he knew had also voted for the
Union, and asked, "where is everbody?" When Eddings
replied that they had gone, Jenkins asked why Eddings
had not gone with them, to which the latter said that
he had remained because he needed his job.
Naff, Gernhardt, Arnold, Davis, and Byers met with
an organizer for the Union after leaving the station
and discussed the situation raised by the Union's loss
of the election. Among the matters of which they talked
was the fact that one announcer, Ervin Williams, who
had signed a card and had assured them the night
before that he•would vote for the Union, had obviously
voted against it. They further decided, according to
Gernhardt's testimony, that since they had been led
to believe that they would be replaced, a meeting should
be requested of Respondent to find out if they still
had jobs, and to attempt to bargain as a group with
Respondent concerning their working conditions. Naff
called Jenkins, representing himself as the spokesman
for the employees who had voted for the Union, and
asked for a meeting with management. Jenkins agreed
to meet with the employees that afternoon and notified
the Respondents attorney and the owner of the station,
Cal Young, of the meeting. He also suggested to Eddings,
who was at work, that he should attend.
At the meeting Naff, acting as the employees' spokes-
man, asked if the announcers who had voted for the
Union still had their jobs and they were assured that
they did. The employees also requested that they be
given a 50 percent raise in wages , which was immediately
and vigorously rejected. Respondent told the men that
it would not deal with them concerning their working
conditions or grievances as a group, but would meet
with them as' individuals. It appears that the discussions
generated some heat, since Young, the station's owner,
was led to suggest that they meet again as a group
in a week, to give everyone a chance to cool off.
869
Gernhardt testified that Jenkins told the men that the
station had had a standby crew ready for the past
week, though he did not want "to replace a Ralph
Paul [Gernhardt's air name] and a Sonny LaDet, which
is Tom Naff's air name, with a Fritz Niggeler and
a Jack Bursack." Davis also testified that Jenkins
referred to a standby crew. Jenkins denied that he
spoke of a standby crew, but stated that he told the
men that Respondent was prepared to go on the air
the next day. It is not considered necessary to resolve
this conflict in testimony.
During the course of the meeting, the men told
Respondent, in effect, that they did not trust Respondent
and were concerned that Respondent could terminate
them individually or together during the cooling off
period set by Young. According to Gernhardt, Young
replied that they would not be fired during that week.
Jenkins asked if each of those present was coming
in to work on the next workday, and each of the
men said that he would come in.
After this meeting, the -men (possibly excluding
Eddings) met and concluded that they had accomplished
nothing. They decided that they would attempt to accom-
plish their purposes by concertedly staying away from
work.
Davis, who has a first class license, was scheduled
to open the station early on June 5, a first class license
being necessary to put the station on the air that early
in the day, according to Jenkins. Shortly before that
time, Davis' mother called Jenkins advising that he
was sick. While Jenkins was on his way to the station,
Naff's wife called Jenkins' home, but left no message.'
Gernhardt, as discussed below, advised Niggeler, on
the morning of June 5, when the latter came home,
that he (Gernhardt) would not be in to work that day
or possibly the next day, in order to take care of
personal business. Byers, who was a supervisory employ-
ee ineligible to vote in the election, called in sick.
None of these men worked on June 5 or 6 as scheduled.
The station was put on the air (somewhat late on June
5) and continued broadcasting with the remaining
employees by means of rearranged schedules and other
temporary expedients.
On the morning of June 5, according to Gernhardt's
testimony, Niggeler came into his room in an inebriated
condition and woke him up, gloating over the fact that
the Union had lost the election. Niggeler told Gernhardt,
the latter states, that "I told you that you could not
win the election, and I personally helped make sure
that you did not win the election," and further, that
prior to the election he had been instructed by the
management of Respondent to start taking advantage
2 According to Jenkins, Respondent had a very lax policy with respect
to employees taking time off from work Apparently notification to
Niggeler of an intent to take off from work has been considered sufficient
In the case of Davis and Naff, Jenkins stated that if one could not
come in he would call the other If both could not come in, they
were to call either Niggeler or Jenkins Jenkins was aware that Niggeler
was inebriated that night (June 4-5) and unavailable , and, in fact,
did not try to get him to assist in getting the station on the air on
the morning of June 5.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of rules of the Federal Communications Commission
which might be interpreted to forbid employees of the
radio station from having "any other outside music
industry involvement," and, if the Union won the elec-
tion to place a mandatory prohibition on such outside
involvement of Respondent's employees Both Gern-
hardt and announcer Ervin Williams had such outside
employment Gernhardt testified that Niggeler told him
that he had used this as a "wedge" or a means to
"sway" Williams to vote against the Union 3
Niggeler testified, in substance, that Gernhardt's testi-
mony as to what they said about Williams was not
correct Niggeler testified that he called Naff that morning
on the telephone (which was in Gernhardt's room) and
because he had heard that Naff had threatened Williams,
told Naff that he (Niggeler) "had put the heat on Wil-
liams, and to do something to me," rather than threaten
Williams because of his vote Neither Niggeler nor Jen-
kins was asked about, nor did they deny, the assertion
that Respondent had discussed, during the period before
the election, restricting the employees' outside employ-
ment if the Union won the election
Gernhardt told Niggeler that two employees had called
in sick and that Gernhardt had business which would
keep him from working on June 5 and possibly the
next day At the same time , however, Gernhardt asked
Niggeler to arrange a meeting for Gernhardt with Young
and Jenkins at 9 the next morning On the morning
of June 6, Niggeler received a telephone call from Davis'
mother and from Naff saying he wouldn't be in to
work Gernhardt did not hear from Niggeler with respect
to the meeting which he had requested
To the extent that the testimony of Gernhardt, or
Davis, and that of Niggeler is in conflict, I believe,
from observation of the witnesses and study of their
testimony, that the account given by the employees
is more reliable and it is credited over that of Niggeler
received anonymous telephone calls from females
"enquiring on my health and telling me to be careful
on the way home, and things of this nature " Naff
was stated to be on the west coast at the time of
the hearing and did not testify
Williams and his wife also testified that on June
5, on three or four occasions while they were in their
car together, or while Williams' wife was driving without
him, Ben Arnold, a part-time employee of Respondent
whose regular job was with RCA, was seen in his
distinctive car, driving in the vicinity of their car, near
the place of Williams' outside employment and near
their apartment Since they had not noticed Arnold
in those areas previously, and, in Williams' words, since
Williams "didn't figure [Arnold] was going to congratu-
late me on my vote," Williams and his wife became
apprehensive that Arnold meant them some harm In
each case, however, Arnold drove by without any motion
or indication of recognition Williams reported to Jenkins
that Arnold was following him At the hearing, Arnold
denied that he had followed Williams
Following the report by Williams, Jenkins states that
he attempted to contact Arnold, who Jenkins described
as a friend of the family, and when he was unsuccessful,
finally obtained from Arnold's associate at RCA in Nash-
ville the name and telephone number of the RCA official
in Atlanta, Georgia About 11 on Thursday evening,
June 5, Jenkins called this official in Atlanta and advised
him of Arnold's actions Jenkins was told that RCA
had not known that Arnold had a second job, and
this was possibly a reason that Arnold's work had
allegedly deteriorated The official thanked Jenkins for
calling Arnold was discharged from his rather highly
paid job at RCA within a day or two thereafter "
3 The termination of employees who ceased work
2 Alleged harrassment of employees
As previously noted, immediately after the election
on June 4, Naff made an obscene comment to employee
Britton Also, about an hour after the election, while
Williams and another employee were working in the
production room, Naff opened the door and shouted
to Williams, "Do you have a bag for your 30 pieces
of silver" Beginning that evening and for about a
week or two thereafter, Williams received a number
of telephone calls at the station requesting that he play
on the air an alleged musical piece entitled "Thirty
Pieces of Silver " Naff made some of these calls, others
came from unidentified females
On one occasion, as Williams testified, Naff called,
and "asked if I was healthy I said, `Yes ' He
said, `Are you sure "' On other occasions, Williams
9 Jenkins testified that he had lunch with Williams about 10 days
before the election during which Williams told Jenkins he would vote
against the Union Jenkins who stated that he was aware prior to
the election how the employees were likely to vote stated that this
was the only conversation he had with an employee with respect to
voting in the election
General Manager Jenkins testified that after calling
the homes of the employees who did not come to
work, and checking all the hospitals, the only one of
the employees he could find was Naff Jenkins located
Naff at home on the second day of the work stoppage
When he asked how Naff felt, the latter said he didn't
know When Jenkins asked Naff if he thought he "was
going to be able to come to work tomorrow," Naff
replied that he didn't know how he was going to feel
Jenkins then told Naff, "Well, why don't you bring
a doctor's certificate, and advise the others to, when
they come back " Naff said that he would Jenkins
stated that Respondent had never before required a
doctor's certificate of an employee who claimed to be
' Arnold testified that as a local matter RCA had given him permission
to work part time for Respondent Arnold regularly worked for Respond
ent on Sunday morning sometimes on Saturdays and on Friday nights
when there were ball games to announce Jenkins explanation for
calling RCA in Atlanta was that because of Williams reports he
felt the need to safeguard Respondents employees and he had been
unable to contact Arnold personally General Counsel has not alleged
or argued that Jenkins conduct in this respect independently violated
the Act
WENO
sick, but that he considered these to be unusual circum
stances
At approximately 6 p in , that same day, on June
6, 1969, Jenkins sent Gernhardt, Davis, Naff, and Byers
the following telegram
BECAUSE OF YOUR FAILURE TO REPORT TO WORK
YESTERDAY AND TODAY AND BECAUSE OF YOUR
FAILURE TO FURNISH WENO WITH A DOCTOR'S
STATEMENT CONFIRMING YOUR PHYSICAL INABILITY
TO WORK YOU HAVE BEEN PERMANENTLY
REPLACED
Jenkins stated that he did not send this telegram
to Arnold because he was not scheduled to come in
to work until Sunday, and "if he showed up, he had
his job "
Notwithstanding Jenkins' assertion that he considered
that the men had quit when they failed to come in
to work after stating that they would, it is clear that
the telegram was intended as a discharge of the employ-
ees who had stayed away from work Jenkins' testimony
and the record as a whole show that it was intended
to effect a final and complete termination of employment
of the men who had ceased work 5 Respondent's claim
that the men had been replaced, as presently admitted,
was something less than candid Despite some minor
variations in Jenkins' testimony, it is clear that the
employees who had ceased work were not permanently
replaced with new employees until about a month after
the telegram was sent At the hearing, Jenkins asserted
that he sent a telegram because of alleged harrassment
of employees, because some of the nonstrikers "intimat-
ed" that they did not want to work with those who
struck, and because the men had walked out and couldn't
be found
Though the men who ceased work took their personal
belongings with them when they left after the meeting
with management on Wednesday, June 4, they left their
licenses at the station Jenkins, although he stated that
he would ordinarily hold licenses for employees who
voluntarily quit until they were needed, mailed the strik-
ers' licenses to them at the end of the week
On either Friday, June 6 (according to Arnold), or
Monday, June 9 (according to Jenkins), Arnold called
Jenkins and advised him that as a result of Jenkins'
call to RCA in Atlanta, Arnold had been discharged
from his job with that firm Jenkins thereupon offered
Arnold a full time job with the Respondent Arnold
stated that he would "go along" with the other men
who were out, that he had been with them all along
and would continue with them
By letter dated June 13, 1969, from counsel on behalf
of Davis, Gernhardt, Arnold, Naff, and Byers, Respond-
ent was advised, "The said employees hereby offer
to return immediately to work at WENO in full-time
employment and in accordance with such schedule of
The Trial Examirer has noted that when Jenkins was asked by
General Counsel whether he had ever sent such telegrams to other
employees who had previously quit Jenkins instinctively replied You
mean firing them9 well indicating Jenkins understanding of the purpose
of the message
871
working hours as may be determined by the management
of WENO "
Young, the owner of Respondent, by letter dated
June 16, 1969, acknowledged this letter, and replied,
"Your clients voluntarily quit their jobs on June 5,
1969 "
II ANALYSIS AND CONCLUSIONS
Niggeler's statements to Gernhardt, Naff, and Davis
prior to the election were clearly more than casual
bantering, as Niggeler asserted in his testimony, and
were manifestly taken by all the men as serious threats
against their tenure of employment because they had
favored the Union Respondent argues that only three
men were involved and that the threats did not sway
Gernhardt, Naff, and Davis in their allegiance to the
Union However, it is the tendency of such conduct
to coerce, rather than whether it is successful, that
violates the Act Niggeler employed these tactics in
an obvious campaign to defeat the Union Among the
small group involved, they certainly became widely
known and permeated the atmosphere in which the
election was held They further certainly formed the
background for the "heat" which Niggeler admittedly
put on Williams to get him to change his vote It is
therefore found that Respondent, by threatening its
employees with discharge or replacement because of
their union activities and adherence violated Section
8(a)(1) of the Act However, it is found that General
Counsel did not prove that Niggeler had created an
impression of surveillance by telling employees that
he knew for a fact that the Union would lose the
representation election as alleged in the complaint, and
it will be recommended that this allegation be dismissed
Jenkins, in his testimony, admits that he knew that
the employees who ceased work were acting concertedly,
as a group, but asserts that he was unaware of the
reason that these men were "sticking together," and
considered that they had quit their employment The
record as a whole, however, is convincing that at the
time Respondent recognized that the employees' action
was not intended to be a termination of employment
In addition to Jenkins' admission that he recognized
that the walkout was concerted group action, his conduct
at the time appears inconsistent with a real belief that
the men had quit Not only did he make insistent efforts
to contact the men at their homes and at all of the
hospitals, but when he eventully contacted Naff, on
the second day of the stoppage, Jenkins gave no indica-
tion that he considered that the men had broken their
employment, but was insisting that they bring in doctor's
statements to justify their absences Finally, that eve-
ning , Jenkins discharged all of the employees (except
Arnold) allegedly because, among other things, they
had not presented such doctor's statements in explana-
tion of their failure to come in to work This hardly
comports with Respondent's contention that the men
had quit 2 days before It is found that the men who
concertedly ceased work beginning the morning of June
5, did not thereby quit their employment, but (with
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exception of Arnold) were discharged by Respondent
on the evening of June 6, because of their concerted
refusal to work, and that all of these men (including
Arnold) were refused reinstatement on June 16, upon
their unconditional offer to return to work, and, in
each case, prior to their permanent replacement by
other employees.
It is well settled that though an employer may replace
employees who engage in a concerted work stoppage
for economic objectives in connection with their employ-
ment, they may not be discharged for engaging,in such
protected activity, nor may they be refused reinstatement
upon an unconditional offer to return unless they have
been permanently replaced prior to such action by the
employer. See N.L.R.B. v. Washington Aluminum Co.,
370 U.S. 9; N.L.R.B. v. Cowles Publishing Co., 214
F.2d 708 (C.A. 9). Therefore, unless for reasons
advanced by Respondent the employees' work stoppage
here falls outside the area of concerted activity protected
by Section 7 of the Act, Respondent's action in terminat-
ing these employees, and refusing to reinstate them
because they had ceased work would violate the Act.
In its brief, Respondent, in addition to its claim that
the men quit when they walked off the job, asserts
that it had cause for the discharge of Naff, Gernhardt,
and Davis, and that, apparently, Respondent's obligation
to Arnold was satisfied by the offer of a full-time job
on June 9. In addition, Respondent also argues in effect
that the walkout was not a protected concerted activity
because the men ceased work without communicating
their reasons, because the work stoppage disrupted
Respondent's operations, and because this was allegedly
an unannounced "quickie" strike.
However, there can be no question that Respondent
was aware immediately prior to the walkout that the
four men with' whom we are here concerned were dissat-
isfied with their wages, and sought to have Respondent
deal with them concertedly for a wage increase, as
well as the fact that the men were concerned about
the tenure of their employment and distrustful of
Respondent's assurances that they would not be fired.
These were clearly matters of employment which would
justify concerted action of employees within the meaning
of Section 7 of the Act.
In N.L.R.B. v. Marydale Products Company, Inc.,
311 F.2d 890 (C.A. 5), where it was also contended
that a work stoppage without a prior demand on the
employer was not protected by, the Act, the -court said
(311 F.2d at 892):
In N.L.R.B. v. Washington Aluminum Co., 1962,
370 U.S. 9, 14 . . . the Supreme Court stated,
in language appropriate to this case, that "We
cannot agree that employees necessarily lose their
right to engage in concerted activities under §7
merely because they do not present a specific
demand upon their employer to remedy a condition
they find objectionable." There, it was held
sufficient that, prior to the walkout, there had been
individual, spontaneous protests concerning the
working conditions. In the present case, the evi-
dence shows that, before the work stoppages began,
individual workers had protested the wage situation
and asked for a wage increase . Those protests
and demands were sufficient notice to the respond-
ent.
See also B & P Motor Express Inc. v. N.L.R.B.,
413 F.2d 1021 , (C.A. 7); N. L.R.B. v . Pioneer Plastics
Corp., 379 F. 2d 301 (C.A. 1).
Respondent further argues that the operation of the
radio station was disrupted at its busiest time by the
failure of the employees to come , to work as they said
they would . In this connection , Respondent ' s general
manager , Jenkins, adverted in his testimony to the neces-
sity that the station stay on the air to preserve its
license from the Federal Communications Commission.
A similar assertion was considered in N.L.R.B. v. Globe
Wireless Ltd., 193 F. 2d 748 (C.A. 9), where it was
likewise contended that a concerted work stoppage was
illegal because it was designed to disrupt operations
which the employer was required by the Federal Commu-
nications Act not to interrupt without the permission
of the FCC . In rejecting this argument , the court stated
(193 F.2d at 751): ". . . the Communications Act does
not confer upon licensees thereunder the right to con-
script labor , nor does it expressly or by reasonable
implication undertake to restrict the right of employees
to strike or quit their jobs, either singly or in concert.
On the other side of the picture the right of employees
to strike and to engage in concerted , activities for their
mutual aid and protection is expressly recognized in
the National Labor Relations Act. . . . It seems purely
fanciful to assume , as does Respondent , that the failure
of a licensee to perform the obligations prescribed by
the Communications Act would constitute a breach of
such obligations on the licensee ' s part in instances where
the failure is caused by an economic strike ." See also
N.L.R.B. v. Cowles Publishing Co ., supra, where the
employees' work stoppage under circumstances designed
to put the employing newspaper under the maximum
pressure possible was held protected."
Respondent further argues that the employees' disrup-
tion of Respondent's operations was additionally indefen-
sible because , in effect , they broke "their promise,
word , bond and contract " to come in to work (brief
p. 2) and gave "erroneous excuses" (brief p. 4) for
not coming in. However , whatever might have been
the case if the employees involved had been parties
to a binding contract containing an agreement not to
strike, see N. L.R.B. v. Washington Aluminum Co.,
supra , 17, it is manifest that no such binding agreement
existed here. Moreover, even assuming that the reasons
given Respondent for the employees ' absence from work
were false (in its brief, Respondent asserts only that
Davis gave a false report), no reason is shown why
the employees should be disqualified because of these
reports. As the cases above cited show , the strikers
" In N.L R,B v Blades Manufacturing Corporation , 344 F.2d 998
(C.A 8), relied upon by the Respondent , the court held unprotected
a series of short strikes,' together with threats of others , designed
to compel the employer there to forego a legal test of a decision
and certification by the Board, a situation clearly distinguishable from
the present matter
WENO
were not under an obligation, in the circumstances of
this case, to advise the Respondent that they were
going to strike Nor is there any showing that Respondent
was injured through the reports which it received Davis'
report that he was not coming in served, indeed, to
alert Respondent to the work stoppage In fact, with
a brief delay, Respondent was able to put the station
on the air and keep it operating notwithstanding the
strike Moreover, though one may disapprove of the
lack of candor involved, such erroneous, false, or evasive
comments by strikers as to their reason for staying
out is not uncommon (a well-known expression is "going
fishing"), and has not heretofore, to my knowledge,
been considered grounds for invalidating employees'
rights under the Act See Electromec Design and Develop
ment Company, Inc , 168 NLRB 763, 771-772, enfd
409 F 2d 631 (C A 9) (noting the "Various evasive
reasons" given by the strikers for their absences from
work )
Howcvcx Respondent is on firmer grounds in arguing
that Nat, mould be disqualified for reinstatement by
reason of his campaign of threats, vexation, and vitupera
tion against employees of the Respondent In the context
of Naff's personal campaign against Williams, clearly
designed to exacerbate Williams' anxieties, I find the
threat of physical harm to Williams and his family
inherent in Naff's far from innocent inquiries as to
their health to be unconscionable, and sufficient to justify
Respondent in discharging Naff and refusing to reinstate
him and will so recommend
Respondent's further claim that it was justified in
discharging other strikers on the grounds that other
employees intimated to Jenkins that they would not
work with the strikers is rejected Jenkins' testimony
to this effect was vague and unspecified, based on alleged
harrassment of those who did not strike However,
in its brief, Respondent asserts that only Naff should
be disqualified on this basis Neither Britton nor Wil-
liams, who testified for Respondent, indicated any resent-
ment of Davis or Gernhardt By its offer of employment
to Arnold during the strike, as previously noted,
Respondent affirmed his suitability for further employ-
ment Arnold, by refusing this offer, as he advised
Respondent, continued on strike, and was therefore
entitled to reinstatement upon his unconditional offer
to return prior to the time Respondent replaced him
On the basis of the above, and the record as a
whole, it is found that by discharging Ralph Paul Gern-
hardt and John Davis on June 6, 1969, and by refusing
to reinstate Gernhardt, Davis, and Ben Arnold on June
16, 1969, upon their unconditional offer to return to
work, Respondent interfered with, restrained, and
coerced employees in the exercise of rights under Section
7 of the Act, and thereby violated Section 8(a)(1) of
the Act
Inasmuch as no different remedy or order would
be required, I find it unnecessary to consider whether
Respondent's conduct also violated Section 8(a)(3) of
the Act as alleged in the complaint
873
III CONDUCT AFFECTING RESULTS OF THE ELECTION
It is found and concluded that Respondent's conduct
occurring prior to the election held on June 4, 1969,
and after the filing of the petition in Case 26-RC-3444,
heretofore found in violation of the Act, interfered
with the employees' exercise of a free choice in the
election, and accordingly it will be recommended that
the election of June 4, 1969, be set aside and a new
election conducted at a time to be determined by the
Regional Director
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of
the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 By the acts and conduct herein found violative
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8(a)(1)
of the Act, and in conduct interfering with, restraining,
and coercing employees in the exercise of a free choice
in an election conducted by the Board, which unfair
labor practices and conduct affect commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
It having been found that the Respondent engaged
in unfair labor practices in violation of Section 8(a)(1)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the purposes of the Act
It having been found that Respondent discharged
Ralph Paul Gernhardt and John Davis on June 6, 1969,
and refused to reinstate Ben Arnold to work on June
16, 1969, in violation of the Act, it will be recommended
that the Respondent offer immediate and full reinstate
ment to Ralph Paul Gernhardt and John Davis to their
former or substantially equivalent positions, and that
Respondent offer immediate and full reinstatement to
Ben Arnold to the position previously offered him on
or about June 9, 1969, or a substantially equivalent
position, without prejudice to their seniority and other
rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason
of Respondent's discharge or refusal to reinstate them
by payment to them of a sum of money equal to that
which they would have earned as wages or pay from
the time of the discrimination against them to the date
of offer of reinstatement , and in a manner consistent
with Board policy set forth in F W Woolworth Compa
ny, 90 NLRB 289 Interest on backpay shall be computed
in the manner set forth in Isis Plumbing & Heating
Co , 138 NLRB 716
In order to make effective for the employees of
Respondent the guarantee of rights contained in Section
7 of the Act, it will be recommended that the Respondent
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist from in, any manner infringing upon
the rights guaranteed in that Section.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and,
conclusions of law, and upon the entire record in this
matter, it is recommended that Respondent Central
Broadcasting Corporation, d/b/a WENO, Madison, Ten-
nessee , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employ-
ees in their right to engage in protected work stoppages
or other protected concerted activities by discharging,
refusing to reinstate, or otherwise discriminating against
employees in regard to their hire, or tenure of employ-
ment, or any term or condition of employment.
(b) Threatening or warning employees with reprisals
or harm if they join or assist a labor organization,
or select a representative for collective bargaining.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Ralph Paul Gernhardt, John Davis, and Ben
Arnold immediate and full reinstatement to employment
and make them whole for any loss of earnings or pay
they may have suffered by reason of the discrimination
against them, in accordance with the provisions of the
Section entitled "Remedy" above.
(b) Notify Ralph Paul Gernhardt, John Davis, and
Ben Arnold if presently serving in the Armed Forces
of their right to reinstatement upon application, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and upon request, make available to
the Board or its agent payroll and other records to
facilitate the computation of backpay.
(d) Post at its operations at Madison, Tennessee,
copies of the attached notice marked "Appendix. "7
Copies of said notice to be furnished by the Regional
Director for Region 26, shall, after being duly signed
by the Respondent, be posted by it immediately upon
receipt thereof and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent
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, recommendations, 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
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 be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 26, in
writing, with 20 days from the receipt of this Decision,
what steps it has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint
be dismissed as to any alleged violations not found
herein; and that the election held on June 4, 1969,
in Case 26-RC-3444, be set aside, and said case be
remanded to the Regional Director for Region 26 to
conduct a new election when he deems that the circum-
stances permit the free choice of a bargaining representa-
tive.
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 26, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
You have the right under the Law to-
Organize, form, join, or help unions
Bargain for your working conditions through
a representative freely chosen by a majority
of the announcers and assistant engineer in
an appropriate unit.
Act together for mutual aid or protection
of your working conditions
Refuse to do any or all of these things
WE WILL NOT threaten or warn that you might
be discharged or replaced or that the company
will harm you in any way because you join or
help or vote for Nashville Local, American Federa-
tion of Television and Radio Artists, AFL-CIO,
or any other labor organization of your choice.
WE WILL NOT discharge, refuse to reinstate,
or otherwise interfere with, restrain, or coerce you
because you engage in a strike, walkout, or other
concerted activities protected by the law.
WE WILL NOT in any other way interfere with,
restrain, or coerce you in the exercise of your
rights as set forth above.
WE WILL offer immediate and full reinstatement
to Ralph Paul Gernhardt and John Davis to their
former or substantially equivalent positions, and
WE WILL offer immediate and full reinstatement
to Ben Arnold to a regular fulltime position substan-
tially equivalent to that offered him previously,
and WE WILL make them whole for any loss of
pay or earnings they may have suffered by reason
WENO 875
of their discharge or the Company's refusal to This is an official notice and must not be defaced
reinstate them by anyone
This notice must remain posted for 60 consecutive
CENTRAL BROADCASTING days from the date of posting and must not be altered
CORPORATION D/B/A defaced, or covered by any other material
WENO Any questions concerning this notice or compliance
(Employer) with its provisions, may be directed to the Board's
Office, 746 Federal Office Building, 167 North Main
Dated By Street, Memphis, Tennessee 38103, Telephone
(Representative) (Title) 901-534-3161