WGK Radio

National Labor Relations Board - Board Decisions

Feb 9, 1973

201 N.L.R.B. 763 (N.L.R.B. 1973)

WGK RADIO 763
Raymond A. Gartman d/b/a WGK Radio and Local 4,
International Brotherhood of Electrical Workers,
AFL-CIO-CLC. Case 14-CA-6380
February 9, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On March 22, 1972, Administrative Law Judge 1
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, the Respondent, the
General Counsel, and the Union filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order except as
modified below.2
1. The Administrative Law Judge found, and we
agree, that owner Gartman and Plant Manager
Smith committed several unfair labor practices by
threatening discharge, promising benefits, and em-
phasizing the futility of bargaining. The Respondent
argues in his exceptions that the Administrative Law
Judge erroneously inferred the violations of Section
8(a)(1) from indefinite, ambiguous, and vague
statements of opinion which were permissible expres-
sions of free speech.
About the end of June, Smith told employee Selph
that, "if the Union were elected and negotiations
started, Smith could bring supervisory personnel up
from the Memphis station to operate WGK while the
rest of the employees from WGK could walk the
picket line in snow up to their eyeballs." On July 7,
Smith told employee Brummond that, in the event
the Union got in, Gartman would bring his son up
from Memphis and "the three of them would operate
the radio station for the next 5 years" while the
employees walked the picket line.
Respondent contends that these statements
"though perhaps overly colorful," were merely
statements of management's right to continue opera-
tions during an economic strike for however long the
employees cared to strike. In neither case, however,
did Smith condition the picket line activity he
foretold as the lot of employees on their decision or
that of their representative to engage in an economic
strike. On the contrary, Smith pictured the picketing
prospects as the inevitable result of the replacement
of the employees if they voted for the Union
although the beginning of negotiations was also
mentioned. Smith could hardly have painted more
graphic word pictures to demonstrate to employees
the futility of their selection of the Union as their
collective-bargaining representative. We affirm the
Administrative Law Judge' s conclusions that such
statements interfered with, restrained, and coerced
employees in the exercise of rights in violation of
Section 8(a)(1).
On June 29, Smith told Brummond that "some-
thing really big" was going to happen at WGK and
that it would be to Brummond's advantage to vote
against the Union. On July 7, in the same conversa-
tion that Smith told Brummond that the result of a
union victory in the election would be replacement
and 5 years of picketing for WGK employees, Smith
told Brummond that in a few months Smith's
position of station manager would become vacant;
that the new station manager would have to be a
second-class operator; and that Brummond was the
only second-class operator. Smith asked, "who do
you think is going to be the new station manager?"
Respondent contends that these statements were
too vague and indefinite to constitute discriminatory
promises of benefit or threats of reprisal. We do not
agree . Clearly, Smith was dangling the carrot of
possible promotion while threatening with the stick
of loss of job to Brummond in order to induce
Brummond to vote against the Union and to work on
his fellow employees to do the same. The promised
promotion may not have been a hard and fast
commitment, but Brummond could hardly have
missed the necessary implication that his future
promotional prospects depended on keeping the
Union out of WGK. Accordingly, we affirm the
findings of the Administrative Law Judge that such
statements violated Section 8(a)(1).
On June 30, Gartman, referring to a Board letter
containing the notice of election, told Brummond,
"I'm glad, really glad that you did this. I have been
operating this station illegally for three and a half
years. Now I will have to get all people with proper
licenses ." During the second week of July, Smith told
Ellison that all operators would have to possess
second-class licenses if the Union came in and that
, The title of "Trial Examiner " was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Cases 14-RC-6784 and 14-CA-6380 were consolidated for hearing. On
November 14, 1972, a Decision and Direction issued in Case 14-RC-6784
severing the cases for decisional purposes and finding , inter alia, that Carrie
Bachman is an office clerical employee excluded from the bargaining unit
and directing the Regional Director to open and count the ballot cast by
Carl Brummond , and to issue a revised tally of ballots. The revised tally of
ballots showed that of approximately eight eligible voters, four votes were
cast for the Petitioner , three against the Petitioner , and one challenged
ballot was sustained . Accordingly. the Regional Director, on November 28,
1972, issued a Certification of Representative.
201 NLRB No. 106
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"many employees would be hurt if the union got in."
During the same week, Smith, again referring to the
Union getting in, told Selph that he "might as well
have all second-class operators since he would have
to pay Union scale anyway." He also said that Hays
and Ellison would be the first to go.
The Respondent excepts to the findings of the
Administrative Law Judge that the above statements
constituted threats of job loss if the Union came into
the WGK station. He argues that the statements were
no more than shop talk and were in any event based
on the reality that employers who deal with unions
are more careful, and are required by unions to be
more careful, to conduct their operations in a proper
and lawful manner. We find no merit in these
exceptions. It is clear that the statements that the
shop had been operating illegally, but would operate
legally with only second-class operators or operators
with proper licenses if the Union came in , raised the
spectre of loss of jobs for all employees who did not
have such proper licenses. As all employees other
than Brummond fell into that category, Respondent
was in effect threatening them all with discharge. The
further import of the remarks was that the current
illegal basis could be continued to the benefit of the
employees if they did not bring the Union in but
would be changed if they voted for the Union. That
Respondent was talking about discharging the
employees in the event the Union came in was
underscored by Smith's following up his comment to
Selph that he "might as well have all second-class
operators" with the comment that Hays and Ellison
would be the first to go. Although his reasons for
designating them as the first to go may or may not
have been motivated by their expression of support
for the Union, a matter not resolved by the
Administrative Law Judge, the statement does
eliminate any ambiguities there might otherwise be in
the remarks about operating the station legally with
second-class operators; namely, that the employees
who did not have such licenses would be discharged.
We therefore find in agreement with the Administra-
tive Law Judge that these remarks of Smith and
Gartman constituted threats of job loss if the
employees voted for the Union, and as such violated
Section 8(a)(1) of the Act.3
THE REMEDY
Notwithstanding Respondent's serious and exten-
sive unfair labor practices, the employees have
selected the Union as their representative for
purposes of collective bargaining in the election held
in Case 14-RC-6784, and the Union has been duly
certified as such representative. In these circum-
stances, we deem it unnecessary to adopt the
Administrative Law Judge 's recommendation that a
bargaining order issue in this case as a remedy for
Respondent 's 8(a)(l) violations.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 5 and 7 and renumber
the remaining paragraphs accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Raymond A. Gartman d/b/a WGK Radio, his
agents , successors , and assigns , shall take the action
set forth in said recommended Order as herein
modified.
1. Delete paragraph 2(a) of the Administrative
Law Judge 's recommended Order and renumber
subsequent paragraphs accordingly.
2. Substitute the attached notice for the Adminis-
trative Law Judge 's notice.
3 In view of our finding of the 8(aXI) violations by Smith and Gartman
and as we consider the statements allegedly made by Soroka to be basically
similar to the statements of Smith and Gartman , we consider Soroka's
statements to be cumulative and deem it unnecessary to make a finding as
to whether his statements can be attributed to the Respondent
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The law states that employees shall have these rights:
To self-organization
To form, join, or assist labor organiza-
tions
To bargain collectively through represent-
atives of their own choosing
To engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection
To refrain from any or all such activities
except to the extent that such right may be
affected by an agreement requiring member-
ship in a labor organization as a condition of
employment by law.
WE WILL NOT threaten reprisals against our
employees or threaten them with discharge if they
select or vote for Local 4, International Brother-
hood of Electrical Workers , AFL-CIO-CLC, or
any other union , as their bargaining representa-
tive.
WGK RADIO 765
WE WILL NOT promise benefits to our employ-
ees in order to persuade them not to select a
union as their bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist any union, to bargain
collectively through representatives of their own
choosing, and to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from such
activities except to the extent that such rights may
be affected by an agreement requiring union
membership as a condition of employment, as
authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
You are free to become or remain members or to
refrain from becoming or remaining members of the
above-named labor organization or any other labor
organization.
RAYMOND A. GARTMAN
D/B/A WGK RADIO
(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, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone 314-622-
4174.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Trial Examiner: The amended
complaint 1 in Case 14-CA-6380 alleges that Raymond A.
Gartman d/b/a WGK Radio (hereafter referred to as
WGK or Respondent) on or about June 28, 1971, and on
various dates thereafter including June 29 and 30, 1971,
various dates from July 5, 1971, through July 26, 1971, and
I Issued on September 17, 1971, based on a charge filed by Local 4,
International Brotherhood of Electrical Workers, AFL-CIO-CLC (the
Union) on August 9, 1971. The complaint was amended several times at the
hearing to correct dates and names . The record does not show that WGK
was misled or prejudiced in any manner thereby.
2 The eight voters were Clifton Avers, Carrie Bachman , Carl Brummund,
Jim Ellison , Jacqueline Hays, Roberta Liley , Russell Selph, and John
Strickland . The ballots of Bachman and Brummund were challenged.
Bachman was challenged by the Union to exclude her from the unit as an
office clerical employee , Brummund by WGK alleging he was a supervisory
on August 3, 1971, (a) threatened employees with econom-
ic reprisal if they chose union representation or engaged in
union activities; or (b) offered them promises of benefit if
they did not choose union representation or refrained from
union activities ; that by these actions WGK has engaged
and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the National Labor Relations Act, as amended,
29 U.S.C. Section 151, et seq. (the Act).
The amended complaint also alleges the existence of an
appropriate bargaining unit; that on June 16, 1971, a
majority of the employees in the unit designated the Union
their representative for bargaining purposes; that since
then the Union by virtue of Section 9(a) of the Act has
been the exclusive representative of the unit employees;
that WGK since on or about June 28 by engaging in the
alleged illegal acts listed above has undermined the Union
and impeded the Board 's election processes ; that an
appropriate remedy for WGK's alleged illegal conduct is
an order requiring WGK to bargain with the Union. In its
answer, WGK admits certain jurisdictional facts and
denies all other allegations of the complaint.
In Case 14-RC-6784 the Union filed its certification
petition on June 28, 1971.On July 9, 1971, a Stipulation for
Certification Upon Consent Election was executed by
WGK and the Union, and approved by the Regional
Director for Region 14. An election was conducted on
August 3, 1971. The tally of ballots showed eight eligible
voters and eight ballots cast; three were for the Union,
three were against the Union, and two were challenged.2
The Regional Director determined that the challenged
ballots were sufficient in number to affect the results of the
election . On August 9, 1971, the Union filed timely
objections to the election. After the Regional Director
investigated the challenges and objections , he issued his
report on September 17, 1971, (a) recommending that a
hearing be held to resolve the issues as to the two
challenged ballots and to five objections that were not
overruled; 3 and (b) consolidating the RC case with the CA
case for the purposes of hearing, ruling, and decision by a
Trial Examiner. No exceptions were filed to the Regional
Director's recommended order. The Board by order dated
October 8, 1971, adopted the Regional Director's order
and consolidated the cases for hearing.
Pursuant to notice , the hearing in this consolidated case
was held in St. Louis, Missouri, on October 26 and 27, and
November I and 2, 1971.4 All parties appeared and were
represented by counsel. They were given full opportunity
to participate , adduce evidence , examine and cross-exam-
ine witnesses, and present oral argument . All parties have
submitted briefs that have been read and considered .5
employee . The stipulation of WGK and the Union made no provision for
the status of either Brummund or Bachman . See The John R . Crocker
Company, 166 NLRB 852.
3 There were seven objections , two of which were overruled. The
remaining five objections referred to the same WGK conduct as was alleged
in the complaint in the CA proceeding.
4 Unless otherwise specified all dates hereafter are 1971.
S No opposition has been received to the General Counsel 's motion filed
with his brief to correct the transcript. The motion is granted.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from my observation of the
witnesses, I make the following: 6
FINDINGS OF FACT
1. BUSINESS OF WGK
Raymond A. Gartman is and at all times material has
been an individual proprietor doing business under the
trade name WGK Radio. WGK has been engaged in the
business of providing ship-to-shore and ship-to-telephone
communications services to customers operating vessels on
inland waterways of the United States. Its office and place
of business involved in this proceeding is in Granite City,
Illinois.? During the year ending December 31, 1970, a
representative period of WGK's operations, WGK derived
gross revenue in excess of $100,000 in the course and
conduct of its business.
On the record as a whole it is found that WGK is and
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATIONS
The Union consists of approximately 350 members who
participate in the activities of their local by electing
officers, ratifying contracts, paying dues, and voting at
monthly union meetings. The Union is chartered by the
International Brotherhood of Electrical Workers and is
governed by a constitution and bylaws. The Union
organizes employees in the communications field and
bargains collectively on behalf of employees with respect
to hours, wages, and other terms and conditions of
employment. As of November 1, 1971, in the St. Louis area
the Union was signatory to between 15 and 22 collective-
bargaining agreements dealing, among other things, with
hours, wages, and other terms and conditions of employ-
ment.
By reason of the foregoing and on the record as a whole
it is found that the Union is and has been a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES,
THE CHALLENGED BALLOTS, AND THE
OBJECTIONS TO THE ELECTION
A. The Issues
The issues in this proceeding are adequately set forth in
the Statement of the Case above.
B. Background
WGK operated its ship-to-shore operations under a
license from the Federal Communications Commission.
6 Though all the events and evidence in the record are not referred to in
this Decision, nor are all the arguments of the parties , nevertheless each has
been weighed and considered
r WGK also operates out of Mobile, Alabama Gartman also operates
Station WCM, Pittsburgh, Pennsylvania, and Station WJG, Memphis,
Tennessee
The radio equipment used included high frequency (HF)9
and very high frequency (VHF) equipment. HF equipment
was handled by an employee who held a second-class
operator's license issued by the FCC; VHF by an employee
holding a third -class operator's license . A second-class
operator was superior to and received higher pay than a
third-class operator.
HF was primarily used to transmit messages between
boats on inland waterways and the offices of the boat's
company. HF messages were typed out by the HF
operator. Then they were relayed to the Company usually
by teletype, at times by telephone. Copies of all messages
were filed for record and billing purposes.
VHF primarily was used to transmit telephone calls
between the boats and the Company's offices. These calls
were known as phone "patches." Under the procedure a
vessel called WGK on the radio to place its call; the VHF
operator placed the call through one of five telephone lines
in its office and then connected the ship call and the
telephone line so that the ship had direct communication
with the person called. The VHF operator performed no
other function with regard to a phone "patch" once the
connection was made . He stood by until the call was
completed. For office records the VHF operator made a
note of the time , length of call, and charges on a small
yellow slip of paper. VHF was also used for the delivery by
WGK of telephone messages. The VHF operator took the
message down in longhand or by typewriter and then sent
it on either by telephone or teletype. As with the patches,
copies of the messages and system of delivery plus time
and charges were made for record and billing purposes.
WGK kept a running log of all messages transmitted
whether on HF or VHF. It was the duty of the operator to
make a log entry of the time of the message , duration,
charges, and other than a phone "patch" a copy of the
message. Employees were required to sign the log when
they come on duty and again when they go off duty.
The transmitting and receiving operations of WGK
occurred in one room which also included file cabinets, a
desk, and a table for bookkeeping and necessary clerical
work. The room was 18 feet by 16 feet in size and included
toilet facilities . The enclosed area in the room was an
entrance vestibule 6 feet by 4 feet next to which were the
toilet facilities 6 feet by 6 feet. The remainder of the room
was otherwise unenclosed so that employees could move
freely from one piece of equipment to another.
During the times pertinent here, WGK operated on a 24-
hour round-the-clock basis. There were three shifts: from 6
a.m. to 2 p.m.; from 2 p.m. to 10 p.m.; and from 10 p.m. to
6 a.m. WGK employed the following nine people, eight of
whom were licensed operators and whose licenses were
posted on a wall of the WGK offices. The following chart
shows the nine individuals and the license held:
s The Union by the pleadings was required to prove that it was a labor
organization as defined by the Act This proof was undisputed WGK in its
brief does not contest the Union 's status
" HF also includes the operation of a "single -side band " For the
purposes of this proceeding it is not considered necessary to deal with this
aspect of the operation
WGK RADIO 767
Name Title License
Clayton Smith Station
Mgr.
Asst.
2d Class
Carl Brummund 10/ Station 2d Class
Mgr.
Clifton Avers 3d Class
Carrie Bachman 11 3d Class
Jim Ellison
Jacqueline Hays
3d Class
Roberta Liley 3d Class
Russell Selph 3d Class
John Strickland 3d Class
The following chart shows the manner in which the
watches were distributed among the 9 employees of WGK
and the operation each performed or for which he was
primarily responsible.12
6 a.m. to 2 p.m.
HIP VHF
Monday Smith Liley
Tuesday Smith Liley
Wednesday Smith Liley
h ilThursday Smit L ey
Friday Smith Liley
Saturday Selph Ellison
Sunday Selph Ellison
6 p.m. to 10 p.m.
HF VHF
Monday Selph Hays
Tuesday Selph Hays
Wednesday Brummund Hays
Thursday Brummund Hays
Friday Brummund Hays
Saturday Brummund Strickland
Sunday Brummund Strickland
10 p.m . to 6 a.m.
HF & VHF
Monday Avers
Tuesday Avers
Wednesday Selph
Thursday Selph
Friday Avers
Saturday Avers
Sunday Avers
Carrie Bachman usually reported to work at 7 a.m. and
left at 3 p.m. from Monday through Friday. In 1971 prior
to the election , Bachman did not log in or out except when
she reported in place of another regular operator. Her
duties and its relation to other employees are discussed in
section J, 2, below.
There was a daily schedule of calls on the HF
transmitters at WGK . The major schedule started at 5 a.m.
and ended at 9:30 a.m. These calls were numerous,
demanded the participation of all the employees then in
the room, and reached their peak frequency at or about 9
a.m. There were additional HF calls of about 5 to 10
minutes' duration at 11 a.m ., 3 p.m., 3:30 p.m ., 6 p.m., and
7 p.m. There was no specified schedule for VHF calls.
These came at any time during the day.
For statistical purposes the month of July 1971 was used
as a typical month. In the 31 days of July, the range of HF
calls per day was from 68 to 79. The median number of
calls per day was 74 and the average 75. The total number
of VHF calls for the month was 1,992, an average of about
65 per day. The length of the VHF calls varied considera-
bly, from as short as 30 seconds to as long as 45 minutes.
In May 1968, Gartman established a salary based on the
type of license the operator held: $125 a week for a second-
class license , $ 120 for third -class license . 13 Selph was the
only employee receiving $120. All the other holders of
third-class licenses except Bachman were paid on an
hourly basis and received considerably less. Bachman was
paid a salary of $110 a week . Smith as station manager was
paid $175 a week.
It was a well-established rule at WGK that the person
operating the HF equipment was the person in charge of
the shift. Smith verbally laid this rule down prior to 1968.
The rule was known to all the employees and was still in
effect at the time of the hearing.
C. Credibility of Witnesses
The testimony of all witnesses has been considered. In
evaluating the testimony of each witness , demeanor was
relied on. In addition , inconsistencies and conflicting
evidence were considered and set forth herein . The absence
of a statement or resolution of a conflict in specific
testimony , or of an analysis of such testimony , does not
mean that such did not occur . See Bishop and Malco, Inc.,
d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the
extent that a witness is credited only in part, it is done
upon the evidentiary rule that it is not uncommon "to
believe some and not all of a witness ' testimony ." N.L.R.B.
v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A.
2).
Liley, a witness for WGK, testified that in the last week
of July she overheard a conversation between Selph and
Brummund at the station . Selph told Brummond , "Well he
has lied and I lie too . I will do anything to make Mr. Smith
pay. I have got a tongue as sharp as a razor and I can lie or
do anything else that has to be done to make him pay."
Neither Brummund nor Selph who testified later denied
the statement was made. This statement has been taken
10 As indicated in In. 2. his supervisory status is under challenge Employees were assigned primary responsibilities but did other duties as
11 Bachman as shown later performed "clerical" services for WGK and well No employee was restricted to the operation or equipment for which
the major part of the office clerical services Her ballot was also challenged he was licensed
12 in this respect , the operations of WGK were loosely controlled. 13 These figures have been rounded off.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into consideration with regard to evaluating Selph's
testimony . In those instances where Selph has testified to
conversations with Smith, Selph's versions have been
credited. Smith did not testify at all though at the time of
the hearing he was still employed by WGK.14 Also, in
support of Selph was the fact that creditable witnesses
testified that Smith made similar statements to them. In
those instances where events have occurred involving Selph
and other people, the totality of the testimony has been
considered and greater weight has been given to the
testimony of the other person except where events
corroborated Selph . Selph is credited as to his testimony
with regard to Soroka to the extent that his testimony is
supported by the testimony of creditable witnesses who
testified to similar acts by Soroka.
D. Station Manager Smith Tells the Employees To
Bring a Union Into the Station
For several years prior to the hearing the operations of
WGK were under the direct supervision of Clayton
Smith . 15 His title was station manager . Smith was in sole
charge of WGK for Gartman had moved to Memphis
shortly after acquiring WGK. Gartman visited WGK from
time to time thereafter . Smith made his home in a trailer
that was on the company premises . About 2 years before
the hearing Smith with Gartman's approval appointed Carl
Brummund assistant station manager.'6
On June 11 about 7 : 15 p.m. Smith from his home called
Brummund on the job. Smith told Brummund that he and
Carrie Bachman had argued about the possibility of a
union coming in to WGK. Smith continued, "the only
possible way that we could get a pay raise would be to
bring the union in 17 ... and that if we got a pay raise,
then he [Smith ] would also get a pay raise." 18
When Brummund hung up he asked Mrs. Hays if she
would like to be represented by a union . She said , "yes."
The same day Brummund spoke to Selph on the telephone
and received his affirmance . Later that day when Avers
relieved Brummund , Avers told Brummund that he was
interested in the Union too. On June 12 and 13, Ellison
and Strickland both told Brummund they would like to be
represented by a Union . Brummund and Selph continued
speaking about the Union when Selph relieved Brummund.
E. The Union Obtains Signed Cards From Six of
the Eight Unit Employees
On June 14, Brummund and Selph went to the National
Labor Relations Board to discuss their rights . Afterward,
they went to a union in Illinois to ask for assistance. That
union suggested they go to the St . Louis Labor Council.
There they were told that Local 4, IBEW , could help them.
The next day, Brummund and Selph met with Merrill L.
14 WGK's failure to call Smith gives rise to the inference that his
testimony would not have been favorable and would have supported Selph.
Interstate Circuit, Inc. v. United States, 306 U.S. 208 , 225-226 (1939);
Independent Stave Company, Inc. v. N.L.R.B., 352 F.2d 553, 557 (C.A 8,
1965); National Maritime Union of America, AFL-CIO [Security Towing
Company] v N.L.R.B., 353 F.2d 521, 523 (C.A. 2, 1965).
is When Gartman acquired WGK Smith was already there
16 As found later , this appointment did not make Brummund a
supervisor. See sec . J, below.
Davis , business manager of the Union . He explained the
operations of the Union to them and gave them eight
union cards on which to obtain employee signatures. He
told Brummund and Selph to give the cards to the
employees at WGK and to tell "the employees that signed
this card they were giving their authorization for the
Union , Local 4, IBEW, to represent them in negotiations."
The card on its face in bold letters stated:
Authorization for Representation
I authorize the International Brotherhood of Electrical
Workers, to represent me in collective bargaining with
my employer.
The only other thing thereon was the personal data about
the individual signing the card.
Brummund signed a card on June 15, and then gave it to
Selph. The same day Selph signed a card.
Jacqueline Hays was given a card on June 15 by either
Brummund or Selph at the plant. She read it, signed it, and
returned it. Hays testified that whichever person gave the
card to her told her at the time that it did not obligate her
to vote for the Union, it was not a commitment, but it was
to show that the employees had an interest in the Union.
Selph testified that he gave the card to Mrs. Hays; that he
told her the card authorized the Union to represent the
employees as a bargaining unit and that the signed cards
would be mailed back to the Union who in turn would mail
them to the Board; that if an election was held she could
vote any way she wished. Respondent contends that Hays'
card is invalid because her signature was obtained under
the representation that its sole purpose was to obtain an
election. The facts do not support Respondent's conten-
tion. The card is clear on its face and as shown above was
an unequivocal authorization for the Union to represent
the employees who signed it. Mrs. Hays was an articulate
witness and gave the impression that she understood what
she read when she signed the authorization card. Her
testimony shows that she was told that she did not have to
vote for the Union if an election were held but nothing in
her testimony shows that she was told that the sole purpose
of the card was to obtain an election . Assuming that Hays'
testimony reflected the only conversation that occurred
with the person who gave her the card it would still be
insufficient to invalidate her card. Her testimony does not
show that she was misled into disregarding the clear
language of the card.
Ellison attended Parks College nearby. Brummund and
Selph arranged on the telephone to meet Ellison at the
College. The Union had previously been discussed at
WGK among the three of them. On June 16, Brummund
and Selph brought him a card. He read it, signed it, and
returned it. From the conversation that ensued when the
card was signed, Ellison was of the opinion that the card
17 As is shown in sec. H . Smith's attitude to the Union changed with the
wind . For the period from June 11 to about June 21, he was prounion.
Thereafter Smith was strongly antiunion.
18 Ellison testified to a similar conversation with Smith . Smith told
Ellison he "... could not take a stand one way or the other because he was
management , but he would like to see a union get in , also, because he felt
that if everyone else had increased wages. he would receive an increase in
wages also."
WGK RADIO 769
was necessary in order to try "to get a union in the
station." As with Hays, WGK contends that Ellison's card
is invalid for the same reasons . As with Hays, the WGK
contention as to Ellison is error , and for the same reasons.
Avers and Strickland signed cards on June 16 , 1971, and
gave them to Brummond and Selph . Before signing the
card each read it, then signed it, and returned it. WGK
contends that the two cards are invalid because the
signatures were obtained under the representation that
their sole purpose was to obtain an election . As with Hays
and Ellison the facts do not support WGK's contention.
Avers testified that he first read the card , signed it, and
returned it most probably to Selph. (At the hearing, Avers
while on the stand read the card aloud without difficulty.)
Avers testified that he signed the card at his home in the
presence of his mother and father . Selph testified Avers
signed the card at WGK at a time when Selph was coming
to work and Avers was on his way out. For the purposes of
this proceeding the place where the card was signed is
irrelevant , the important fact is the card was voluntarily
signed and returned to Selph on June 16, the date the card
bears . Avers' testimony concerning the conversation that
occurred at the time he signed the card is muddled,19 and
is not considered entirely reliable . Dealing with his
testimony alone ,20 however , the conclusion cannot be
drawn that he did not know what he was signing, nor that
Selph alone or Brummund together represented to him that
the sole purpose of signing the card was to procure an
election at WGK. Avers knew about the organizational
effort because he stated that Brummund and Selph before
they solicited his signature had talked to him about "the
union," "his vote ," "whether he was interested in it," and
"the union card business."
It is concluded from the foregoing and on the record as a
whole that Avers signed the union card with the knowledge
that the purpose of his signature was not solely to bring
about union election in WGK.
Strickland admitted that he read the card before he
signed it, understood it, and returned it to Selph. The card
was signed at Strickland 's home in the presence of his
mother,21 Brummund, and Selph. The meeting took about
15 to 20 minutes . Strickland testified he recalled no more
of the conversation that occurred when he signed except
that he asked Brummund and Selph what it meant if he
signed the card and they told him, "it was for the purpose
19 Some of Avers' testimony follows.
[I ] was kind of wondering about what it was for, you know, and he
stated that it was for, you know, to bring an interest in an election, you
know, for the employees , because it was almost logical that I assumed,
not even with the interpretation of the writing on it , because, you know.
that 's what the whole point of having an election is for, and so I signed
the card to bring the union interest into being a party for the other half,
you know, to bring an election into the station.
A The idea of the cards was that , you know , the election was the
choice
Q Who said what9
A Well, Russ [Selph ] said the election was the choice, I mean, you
know , the election was the choice of either having a union or not, and
the cards was just to bring attention
Q. Can you tell us the substance as nearly as you can recall of
what you asked him on those two or three occasions?
A. I asked him about, you know, the signature, you know, about
the words used , but that didn 't go on about collective bargaining
of getting an election into the station , a union election .. .
it didn't commit you one way or the other how you vote in
the election , it was simply for the purpose of getting an
election there ." Selph admitted that among other things22
he told Strickland that he wasn 't "bound and . . . could
vote any way [he] wanted to in an election . Strickland
testified that he had not previously been involved in any
union activity. Nevertheless , he gave the impression on the
stand despite his age of 18 years that , as a saying goes, he
was "hep" to what was going on . He gave the further
impression that he was a person who would not have been
satisfied with a statement that the purpose of the card was
"of getting an election into the station" in view of his
comprehension of the card when he signed it.23 It is
considered reasonable to conclude that there was more to
the Brummund-Selph-Strickland conversation than that
recalled by Strickland.
As with the other employees who signed cards, the
foregoing and the record as a whole do not support WGK's
contention . It is found that Strickland signed the card
aware of its content and not with the understanding that
the sole purpose of his signature was to have an election
held at WGK.
In making the above findings with regard to Ellison,
Hays, Avers, and Strickland emphasis was placed on the
fact that the wording of the cards was given paramount
importance. The language was clear , unequivocal, and
understood by each when each signed the card. The card
contained a single purpose authorization to designate the
Union as the employee's representative.
To refute the clear language of any unambiguous card
WGK was required to show (which it did not) that
Brummund and Selph told each employee that the sole
purpose of the card was to secure a representation election
or otherwise grossly misrepresented its effect . N.L.R.B. v.
Gissel Packing Company, Inc., 395 U.S. 575, 584; U.A. W.
[Preston Products] v. N.L.R.B., 129 U.S. App. D.C. 196,
202, 392 F.2d 801, 807, cert. denied 392 U.S. 906. Ellison,
Hays, Avers, and Strickland all read and understood the
card. It may have been that each did not perhaps
understand all the legal ramifications that would follow.
But having read it, it must be assumed that each was aware
that at least by his act of signing he is bringing about the
authorization stated therein . McEwen Mfg. Co., 172 NLRB
990, 994 -995 (1968), enfd. sub nom . Amalgamat-
because collective bargaining was a pretty strong word . More like that
the questions I asked them two or three times basically came down to
reassuring me or myself that these cards was not a commitment
Q. What response did you get from Russell Selph on those
requests for reassurance?
A He said that this card was not a commitment to vote, you
know, either way, it was just a card of interest , you know , to get the
union interested
20 Neither his mother nor his father was called as witnesses.
21 Strickland 's mother did not appear as a witness.
22 Selph testified also that he told Strickland that the card gave the
Union the right to represent the employees
21 On cross-examination , Strickland testified.
Q. Did you read that card before you signed it, Mr. Strickland?
A. Yes, I did.
Q Do you remember what it said?
A. Yes.
Q Can you repeat it for me now?
A. Loosely it said I authorize the IBEW to represent me in
collective bargaining with my employer.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed Clothing Workers of America v. N. L. R. B., 136 App. D.C.
226, 419 F.2d 1207 (1969), cert. denied 397 U.S. 988. See
also The Great Atlantic & Pacific Tea Co., Inc., 194 NLRB
No. 132. As the United States Supreme Court said in
N. L. R. B. v. Gissel Packing Co., supra, 606-607:
In resolving the conflict among the circuits . . . we
think it sufficient to point out that employees should be
bound by the clear language of what they sign unless
that language is deliberately and clearly canceled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee 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.
Respondent also contends that all the signed cards are
invalid because (1) the union organizational effort was
initiated by Smith, the station manager; (2) all cards were
solicited under his supervision and direction; and (3) the
employees were never given any explanation of the pros
and cons of joining a union. There is no merit to these
contentions.
As a supervisor, Smith's statements to Brummund and
Ellison that they should bring in a union are attributable to
WGK and could involve WGK in a violation of Section
8(a)(2), and derivatively Section 8(a)(1). But the General
Counsel did not allege Smith's statements as violative of
that Section of the Act. Around June 11, as Smith said it,
he wanted the Union in WGK so that he in turn could get
a raise . His urgings upon Brummund and the others were
neither coercive, threatening, nor intimidating, nor did
they contain a promise of benefit. In that context, Smith's
statements are not violative of Section 8(a)(1) of the Act.
Usually, participation by a supervisor in an organization-
al campaign is suspect and constitutes interference because
it is "reasonably likely to restrain the employee's choice."
N.L.R.B. v. General Industries Electronics Company, 401
F.2d 297, 300 (C.A. 8). It is now well settled that an inquiry
into the employees' subjective motivation serves no valid
purpose. N.L.R.B. v. Gissel, supra at 608.
The record in this case shows that Smith started the
union ball rolling. In N.L.R.B. v. International Typographi-
cal Union, 452 F.2d 9T6 (C.A.10, 1971), the court
concluded ". . . (2) whether the activities of supervisors
are an impermissible interference must be determined on a
case by case basis ...." The record contains no evidence
that in doing so Smith restrained, coerced, or interfered
with the rights of the other employees in the organization
and selection of the Union, or in their union activities.24
Cf. Rollins, Inc. and Orkin Exterminating Co., Inc., 193
NLRB No. 28; National Food Stores, Inc., 169 NLRB 94.
Accordingly, nothing is shown to warrant a conclusion that
the cards are invalid because Smith was the spark that set
24 This finding refers only to Smith 's actions in getting Brummund and
Selph started in their union activity. A different conclusion is drawn and a
violation found with regard to Smith 's later activities . See sec . H, below
25 The fact that Smith issued the letter demoting Brummund (see sec F.
below) indicates that he was aware of the organization campaign
26 The case cited by WGK is inapposite.
27 Gartman testified that Smith had no authority to promote or demote
Gartman did nothing when he learned on June 28 of Brummund's
demotion.
off the union campaign. The record clearly shows that the
solicitation of signatures was the independent activity of
Brummund and Selph. There is no showing that Smith was
in any way involved. The record shows no communication
to or from Smith on the subject. Nor is there any evidence
that Smith in any way directed or controlled Brummund
and Selph in their actions in contacting the other
employees, the Board, the St. Louis Labor Council, the
Union, or in the solicitation of signatures from the other
employees.25 The record evidence does not warrant a
conclusion that the activities of Brummund and Selph in
procuring the signatures of the other employees were under
the supervision or direction of Smith. Accordingly that
contention is also rejected.
WGK offered the novel contention that the signed cards
were invalid because the employees never heard argument
for or against the Union; that the employees were young
and inexperienced, and their action cannot be taken as a
free, intelligent expression of choice. WGK presented no
case,26 and no law that supported its position. Contrary to
their contention and despite youth and inexperience the
four employees comprehended what they were signing or
were assumed to have done so. This contention is also
rejected.
F. Smith Takes Brummond 's Title of Assistant
Station Manager Away
On June 18, 1971, Smith without Gartman's knowledge
or consent27 took Brummund' s title away from him by
giving him a letter stating: "This is to advise you as of now
you are no longer Assistant Station Manager," signed "C.
T. Smith, MGR." When he gave Brummund the letter,
Smith told Brummund "that this was to protect [Brum-
mund] so that [he] could vote in the union election."
Within a few days afterwards, Gartman in Memphis was
informed by Mrs . Bachman of the union organizational
campaign then going on. Among other things he was told
of the letter from Smith to Brummund, its purpose, and the
fact that Brummond was "bird dogging or pushing" the
Union. Gartman came to Granite City about June 27,
1971.28
G. Gartman Contracts To Sell WGK First to
Smith and Soroka, and Then Only to Soroka
On June 30, 1971, Gartman entered into a contract for
the sale of WGK.28 The purchasers were Charles P.
Soroka, Jr.,30 and General Manager Clayton T. Smith. On
July 9, 1971, a second agreement was executed by which
Soroka became the sole purchaser. It also provided that
after title passed Smith was to continue as station manager
28 During the preceding week Gartman spoke to Smith who told
Gartman of the union activity and advised him to come up from Memphis.
It is reasonable to conclude that by this time the events set forth in the next
section were beginning to shape up. As a result, Smith reversed his attitude
toward bringing the Union into the station
29 The record does not show the period of time the negotiations occurred
prior to signing
30 An electrical technician who had done work at WGK and owner of a
company known as C & M Electronics
WGK RADIO
at a salary of $225 per week plus an annual payment of 4
percent of the net profit.31
H. Smith Starts an Antiunion Campaign
There is no question of Smith's supervisory status. Nor is
there any question that his actions set out in this section
are attributable to WGK which is responsible for them.
The record clearly shows that some time prior to June 30,
Smith's antiunion activity commenced.32
About the end of June, Smith and Selph had a
conversation in the operations room of WGK.33 Smith told
Selph that if the Union were elected and negotiations
started, Smith could bring supervisory personnel up from
the Memphis station to operate WGK while the rest of the
"employees from WGK could walk the picket line in snow
up to their eyeballs."34 The clear import of this statement
is that employees who favored the Union and went out on
strike would be out of work for good. Such a threat of loss
of job is a violation of Section 8(a)(1) of the Act. Cf.
Chatham Manufacturing Company, 172 NLRB No. 219,
where a threat that employees who engage in a strike
would "starve to death"; and The Laidlaw Corporation, 171
NLRB 1366, where a threat that striking employees would
"lose forever their right to employment" were found to be
violative of Section 8(a)(1) of the Act.
On June 29, Station Manager Smith had a conversation
with Brummund. It occurred outside behind the station.
Smith told Brummund that "something really big was
going to happen in a couple of months . . . something that
no one would ever thought would have been possible to
happen at WGK ...." and that Brummund "had better
vote against the union" because "it would be to [Brum-
mond's] advantage to vote against the union." Smith's
promise of benefit though indefinite is clearly offered as a
reward for Brummond's negative vote. Under these
circumstances the promise interferes with the rights of
employees in violation of Section 8(a)(l) of the Act.
On June 30 Gartman came into the station. Brummund,
Bachman, and Hays were present. In his hand he had a
letter from the Board containing the notice of the election.
He stopped in front of Brummund and said "I'm glad,
really glad that you did this. I have been operating this
station illegally for three and a half years. Now I will have
to get all second class licensed operators." Gartman
admitted that he thanked Brummund and made the quoted
statement except that he did not say "second class licensed
operators," but did say "the people would have to have a
proper license." This conversation was not alleged by the
General Counsel as a violation in the complaint. However,
31 The contract also gave Smith certain additional benefits not necessary
to list here
32 It is considered unnecessary to deal with the causes of Smith's change
in attitude.
31 It is found that the conversation occurred though the day it occurred
is not certain . Selph testified that it could have occurred 2 or 3 weeks after
the cards were signed , and that he believed the certification petition had
already been posted The petition was executed on June 28 . The first
contract of sale was dated June 30. That plus Smith 's change in attitude
about the union as hereafter shown support the conclusion that the
conversation occurred as above stated
34 Selph testified that on July 12 Smith told him that the employees
"would be picketing in the snow , since he would have to pay union scale
any way, he could get all second-class operators from the Veterans
771
the item was fully litigated at the hearing. On the record as
a whole, it is found that Gartman' s statement was a threat
to employees that some of them would have to go if the
Union came in. Whether he said "second class" or
"proper" is not material. As Gartman ran WGK, the
employees were operating equipment they were not
licensed to handle. The employees and management knew
these actions were improper. It follows that a statement
that the employees would have to have proper licenses was
a threat that those who were working improperly would no
longer be employed.
Accordingly it is found that the foregoing statement,
under the circumstances under which it was made,
constitutes a threat by Gartman in violation of Section
8(a)(1) of the Act.
During the first week of July, Smith and Ellison had a
conversation on the telephone. Ellison was then at Parks
College. Smith advised Ellison of a mandatory meeting of
employees on July 9. Smith further told Ellison that all
operators would be required to have a second-class license
if the Union got in. Smith wound up by saying that "many
of the employees at that station would be hurt if the union
got in." In addition to Ellison, Avers, Bachman , Liley,
Selph, and Strickland had third- class licenses . The implica-
tion of the threat is clear. Vote for the Union and you lose
your job. Vote against it and you retain it. Such a threat is
violative of Section 8(a)(1). It is so found.35
On July 5 or 6, 1971, Smith had another conversation
with Selph in the presence of Roberta Liley and Came
Bachman. Smith told Selph "that if the union came in he
would have to pay union scale anyway, so he might as well
have all second-class operators . . . the first operators to
go would be Jacqueline Hays ... and Jim Ellison .. .
because they had both gotten hateful with him on the
telephone ...." The foregoing threats are similar to the
ones previously made to Ellison. For the same reasons the
statement is considered coercive and it is found to be
violative of Section 8(a)(1).
On July 7, Smith and Brummund had another conversa-
tion in the workroom of WGK. Smith told Brummund that
Ellison had been fired because Ellison had been "smart"
with him over the telephone; that Ellison said he would not
attend a mandatory meeting of the employees because he
(Ellison) had already made up his mind that he was going
to vote for the Union. This conversation is not alleged in
the complaint as a violation but the General Counsel states
that it has been litigated and should be found to be
violative of Section 8(a)(1). The record shows that Ellison
was not fired. As presented the testimony is ambiguous.
Administration ." This statement was not alleged as a violation in the
complaint. In view of the finding of an 8 (aXI) violation herein it is
considered unnecessary to make a finding as to this item.
35 The General Counsel alleges that a second conversation between
Smith and Ellison occurring on July 10 is also violative of Sec . 8(a)(1) of the
Act. This conversation took place in the operations room at WGK. Smith
told Ellison that "something big was going to happen in two months " Smith
showed Ellison a piece of paper stating that Smith was going to get $225 a
week but Ellison was unable to see the rest of it. The foregoing represents
the entire conversation . As stated Smith was bragging about his future
possibilities . This conversation does not restrain , coerce , or interfere with
the rights of employees guaranteed by Sec. 7 of the Act. Accordingly, this
allegation is dismissed.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's statement that Ellison was fired could refer to the
refusal to attend a mandatory meeting . In any event, it is
not considered necessary in view of other 8 (axl) violations
found herein to make a finding on this conversation.
The above conversation continued. Brummund told
Smith that anyway he looked at it he was going to be fired.
Smith told Brummund that in a few months Smith would
be going out to sell company business ; in which case a new
station manager would have to be appointed. He pointed
out to Brummund that the manager would have to be a
second-class operator, that Brummund was the only other
second-class operator and "who do you think is going to be
the new station manager?" Smith wound up by saying that
if the Union got in, Gartman would bring his son up from
Memphis and "the three of them would operate the radio
station for the next 5 years" while the employees walked
the picket line. It is found that the promise to Brummund
that he would become station manager made in the context
of the above conversation was a promise of benefit to
induce Brummund to keep the Union out of WGK. Under
these circumstances , such a promise is violative of Section
8(a)(1) of the Act. The statement that the employees would
walk the picket line for 5 years is a threat that WGK would
not bargain with the employees and that they would be out
of jobs. Such a threat interferes with the rights of
employees to organize and is found to be violative of
Section 8(a)(1) of the Act.
On or about July 12 Smith and Selph had another
conversation at WGK. Smith told Selph that "Gartman
had big plans for WGK, but if the union was voted in, he
would have to abandon those plans." The clear intent of
this statement is "give up the Union you get something
big." Such a threat vague as it is also constitutes a violation
of Section 8(a)(1) of the Act 36
1. Soroka's Antiunion Campaign
On June 30 at or about 10 p.m. Soroka came to WGK.
He was accompanied by a friend. Selph and Brummund
were there and Soroka spoke to them.37 Soroka stated:
... that Mr. Gartman had planned on giving pay
raises within the next two months, but if the union were
voted in, he would go bankrupt and would not be able
to pay that raise. He also said . . . he hoped we weren't
making a mistake in trying to organize the union.
On a Saturday or Sunday before the election but after
July 9, Soroka and Selph had a conversation. Soroka told
Selph "if the union came in, and since Mr. Gartman would
have to pay union scale, he should have all second-class
operators and he could get them from the Veterans'
Administration."
36 WOK plays down Smith's illegal actions by claiming they were
"unwise and foolish", the act of a "maverick Station Manager." WGK
contends the acts were innocuous ; that of those employees who heard Smith
"none . . took him seriously," or thought the acts were of a minor nature
WGK asks that these "innocuous" and "foolish" comments be given no
weight because neither the election nor the employees were influenced by
them WGK's contention is rejected. Smith 's threats and promises were
clear as to content and intent They were violative of the Act and chargeable
to WGK The fact that previously he had urged the employees to bung a
union into the station does not alter their illegality The threats and
promises cannot be passed off as a joke or harmless To do so would be to
make a joke of the Act This cannot be permitted
On July 26,38 in the forenoon Soroka and Brummund
held a conversation at WGK in the presence of Bachman
and Liley.39 The talk started in the operations room, but
was completed outside the station. Part of the conversation
went as follows:
Soroka made the comment that in a couple of
months there were going to be some big changes made.
I answered him back by saying that, yes, I know all
about these big changes. Mr. Soroka invited me to step
outside, that he wanted to talk to me where there was
no one listening. We went outside the station. Mr.
Soroka asked me just what do you know? I told Mr.
Soroka "Charles P. Soroka, Clayton Smith, $60,000, 51
per cent of WGK."
Mr. Soroka turned and he walked away from me,
turned around and looked back at me and said he said,
..no, no, would you believe Soroka 100 percent?" Mr.
Soroka indicated to me that he was very displeased
with the fact that Mr. Smith had blabbed all this
information, and that Mr. Smith, the only thing that he
was going to get out of this would be a one-year
contract at $225 per week with fringe benefits . . . Mr.
Soroka said "No, I don't think that you have to worry
about your job if the union doesn't get in, but if this
union does get in, we are going to get rid of all of you
and we are going to hire men from the Veterans
Administration, men just out of the service with second
class licenses and we'll operate the station with them."
There is no question that some time prior to August 3 the
sale to Soroka became common knowledge at WGK.
Brummund's conversation with Soroka showing Brum-
mund's knowledge is set out above. In July, the sale was
the subject of a conversation between Avers and Selph. In
July, Selph, on his own initiative, took a copy of the first
contract from the office file, read it and made a copy of it.
It is reasonable to conclude that he told the other
employees of its contents.
Conclusions with regard to Soroka
The General Counsel requests findings that Soroka is
Gartman's agent ; that his statements to Brummund and
Selph are attributable to Gartman ; and to the extent they
are coercive they are violative of Section 8(axl). The
General Counsel 's request is denied.
Examination of the contracts of sale show that by their
terms, Soroka was not appointed agent for Gartman, nor
did it make Gartman responsible for Soroka 's actions.40
The record does not support the General Counsel's
statement that "Soroka had the apparent authority of an
owner ." Any responsibility placed upon Gartman for
37 Selph had relieved Brummund . The latter left at or about 10.30 p.m
and was present for only part of the conversation
38 Selph testified to a conversation with Soroka on the weekend before
the election . Soroka said, ".. if the Union came in, and since Mr.
Gartman would have to pay union scale , he should have all second class
operators and he could get them from the Veteran 's Administration " This
conversation is not alleged in the complaint and no finding is made thereon.
If one were made, the result would be the same as for the other Soroka
statements
39 There is no evidence to show those two overheard the conversation
10 Cf Raytheon Company, 179 NLRB 678. 679.
WGK RADIO
Soroka's actions at WGK would have to be established
from the facts contained in the record.
The record does not show that Gartman at any time took
any action to make the employees aware of the contract of
sale of WGK. Nor has it been shown that there was any
obligation on Gartman's part to do so. After the employees
had knowledge of the sale, there is no showing that
Gartman knew they knew. After Soroka's threats to the
employees, the record does not show that Gartman was
aware of what had been said. Reasonably, it might be
inferred that in so small a plant Gartman in the every day
course of business would have acquired that knowledge.
Had Gartman had such knowledge it would have been
incumbent upon him to disavow Soroka and the statements
in order to avoid responsibility for them. The record shows
he took no action of disavowal. However, it has been
shown that Smith was in daily charge at WGK.41 Gartman
was at the station three times only during the critical
period from June 28 to August 3; i.e., from June 28 to June
30, from July 8 or 9 to July 11, and again on August 3. It is
conceivable that he gained knowledge of Soroka's activities
during those visits. At most these circumstances give rise to
a suspicion that Gartman had knowledge. Absent addition-
al facts ,42 such a suspicion is insufficient to warrant
drawing a conclusion that Gartman had knowledge of
Soroka's actions, and by refraining from negating them
made himself responsible for them. Soroka's actions as a
third party to the employer-employee relationship at WGK
do not constitute a violation of the Act by Gartman.
Accordingly, the allegations of the complaint alleging an
8(a)(1) violation based on Soroka's actions will be
dismissed.43
J. The Challenged Ballots
1. Brummund is not a supervisor44
Brummund has been employed by WGK as a ship-to-
shore radio-telephone operator for 4 years. When first
employed he held a third-class operator's license issued by
FCC. His salary to May 1968 was $120 a week. In May
1968, he acquired his second-class license. Then, Gartman
raised his pay to $125. Brummund was paid according to
the schedule of rates previously established by Gartman
41 Except for 2 weeks in July when he was on vacation and Brummund
was in charge.
42 The General Counsel suggests as additional facts (a) the similarity of
the contents of the threats made by Gartman , Smith , and Soroka,
particularly the one that second -class operators would come from the
Veterans Administration ; and (b) Soroka had ample opportunity to discuss
the campaign with Gartman, "or more likely , Station Manager Smith."
Taking those in order they are found to be not significant . As to (a), it is
noted that the record shows that Gartman did not use this language, but
Soroka and Smith did. In view of the fact that the contract provided for the
continued relationship between Soroka and Smith it seems reasonable to
infer that they would use the same language . Such action , however, is not
attributable to Gartman to the extent that it would establish Soroka as
Gartman 's agent. As to (b), the fact that Gartman may have been in contact
with Soroka of itself is insufficient . That Soroka "more likely ," discussed the
Union with Smith does not support a conclusion that thereby Soroka
became Gartman 's agent.
43 As shown in sec. K, below, it is considered unnecessary to determine
the effect of Soroka 's threats on the election.
44 Sec . 2(11) of the Act defines a supervisor:
The term "supervisor" means any individual having authority, in
the interest of the employer, to hire , transfer, suspend, layoff, recall,
773
for second- and third-class operators. In late 1969, Smith
with Gartman's approval gave Brummund a letter appoint-
ing him assistant station manager.45 With the title,
Brummund got no increase in pay.46
The record details some of the events that occurred when
Brummund was appointed assistant. In being incomplete
the record is insufficient to show the actual intent of, or
what powers were vested in Brummund by, the appoint-
ment. Brummund testified that Smith told him that he was
made assistant station manager in order that in Smith's
absence a WGK representative would be there to take
visitors, company officials, and others through the station,
and explain the equipment and the station's operations.
Smith also told Brummund that he did not have the power
to hire and fire.
Smith was not called to testify in this proceeding.
Gartman testified to a conversation with Smith prior to
Brummund's appointment in which they discussed Brum-
mund's duties. Gartman testified that Brummund was "to
represent the company . . . when Mr. Smith was not there
...." Gartman testified in detail as to Smith's duties, but
he was unable to testify as to what Smith told Brummund
his duties were as an assistant, or which of Smith's duties
Brummund actually performed.47 Accordingly, to deter-
mine whether Brummund was a supervisor, it will be
necessary to deal with those experiential facts in the record
showing what Brummund actually did.
WGK in its brief lists a series of items to show that
Brummund exercised supervisory authority and responsi-
bly performed supervisory responsibility. Each item is
analyzed individually hereafter. Because there is consider-
able overlap among the items some of them have been
combined. The totality leads to the conclusion that
Brummund was not a supervisor as defined by the Act.
WGK contended:
(a) Brummund normally ran the station every afternoon
while Smith ran it in the morning: This statement does not
go far enough. The references are to the morning and
afternoon shifts. The rule at WGK stated in section A,
above, was that the person operating the HF equipment
was in charge of the shift and the employees of WGK
knew of that rule.48 As shown in the schedule above, there
were three shifts at WGK, including the morning and
promote , discharge, assign, reward. or discipline other employees, or
responsibly to direct them , or to adjust their grievances , or effectively
to recommend such action , if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
45 Neither the letter nor a copy was offered in evidence.
46 As shown , Smith as station manager was receiving $175 a week.
47 Gartman testified on direct that, to his knowledge , Smith carried out
his instructions about the authority and responsibility assigned to
Brummund . This statement was not gone into in depth . On cross, Gartman
testified he did not know what Smith told Brummund.
48 Hays testified that she was told, "whoever was running the big radio
was in charge of the shift ... ask them questions and get help from them
any time ... " Strickland, Respondent's witness, testified that in a
conversation with Smith:
. he said the HF operator was, you know , listen to them, don't
listen to Carl because he is the HF operator, but listen to the HF
operator whoever it may be.
Q. What did he say about listening to the HF operator?
A. He said something to the effect that the HF operator is more or
less in charge of the station in the absence of Mr. Smith.
s • s s s
(Continued)
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afternoon shifts . Four employees at WGK operated the
HF equipment : Smith , Brummund , Selph , and Avers.49 As
counsel for Respondent brought out , Ellison in a statement
given to the Board prior to the hearing said "I have worked
with both Brummund and Selph and I have assumed that
they were my supervisors ." 50 Hays who worked with
Brummund and Selph stated she was aware of no
difference between the authority exercised by Selph and
that of Brummund.
WGK admitted that Selph was not a supervisor. Selph
ran the shift in the morning and in the afternoon . There is
no question that when Selph was on duty , Selph "ran the
shift" in the same manner that Brummund did, with some
of the other employees present. From the foregoing, it is
not reasonable to conclude that Brummund was a
supervisor because he "ran the station" as stated by
Respondent.
(b) Brummund ran the station for 2 weeks every year
while Smith was on vacation : Brummund filled in for
Smith in July 1970, when Smith was away for 2 weeks. He
did the same thing in July 1971, even though the title of
assistant station manager had been taken away from him.51
It is now well recognized that an occasional exercise of
supervisory authority by an employee does not establish
that individual as a supervisor.52
(c) Brummund trained new employees from time to
time : 53 At WGK, this function was not reserved to
supervisory employees . Experienced employees trained
new employees . Selph helped to train Ellison as did
another employee named Boyer . 54 Liley , a third-class
operator, trained Hays . In 1970, Liley trained Strickland
on the VHF while Smith trained him on the HF.55
Gartman testified that the training of employees could be
done by any experienced employee . Under these circum-
stances, it cannot be concluded that Brummund 's training
of employees established him as a supervisor 56
(d) Employees were told Brummund was the assistant
station manager and that they should take their problems
to him in Smith 's absence : Admittedly , Brummund was
appointed assistant station manager, but as stated in the
opening paragraphs of this section, that appointment was
insufficient to constitute him a Section 2(l1) supervisor.
Q. Then again , please , what did he say about listening to the HF
operator9
A The HF operator will know what to do, because he is in charge
of the station in the absence of Mr Smith
Q Did you ever work under any HF operator other than Mr
Brummund'/
A Yes
A (Interrupting ) And one day Mr Selph.
49 Admittedly Avers is an employee and not a supervisor. Avers was
alone on the 10 p in shift , and there is little evidence as to his activities. The
record shows that on that shift he was in charge of the HF equipment. The
record also shows that on occasions Ellison worked with Avers
50 At the hearing , Ellison changed his statement to say he did not
consider Brummund to be a supervisor, that Brummund "helps me out on
my job if I don't understand something I don't consider him to be my
boss " The significant part of Ellison 's testimony is that he equated
Brummund and Selph in his relationship to them
51 It is immaterial that the record does not detail what Brummund's
duties actually were during these 2-week periods But it is significant and
not contested that Brummund performed the same duties at WGK before
and after he received the June 18 letter depriving him of his title
11 See Stewart & Stevenson Services, Inc, 164 NLRB 741, 742, where the
Brummund testified without dispute that he never took
over in the capacity of station manager . The record further
shows that Smith was regularly at the station , and not
absent on any regular basis . But what is significant is the
fact that were Smith absent , Brummund would not
normally be present. WGK stressed this fact in point (a)
above when it stated that Brummund ran the station in the
afternoon while Smith ran it in the morning . Under these
circumstances , this point carries no weight . The record
does not show that Brummund "took over" for Smith
during his absence ,57 except for the two vacation periods
already referred to.
The record references cited by WGK to support this item
show that Brummund was appointed assistant station
manager ; employees were told that and they were told to
go to him. But the strength of these record references are
considerably watered down because they are part of the
record reference showing that the employees were told that
"whoever was running the big radio was in charge."58 In
particular it includes Strickland 's testimony wherein he
stated that Smith told him, ". . . listen to [the HF
operators ], don't listen to Carl because he is the HF
operator, but listen to the HF operator whoever it may be."
Like the previous points, point (d) does not support a
conclusion that Brummund was a supervisor.
(e) The employees recognized his authority as assistant
station manager : 59 This contention is not supported by the
record . Brummund was known at WGK as assistant
station manager . But the record shows that in his
relationship to other employees he exercised little or no
authority over them , nor did they recognize his authority.
Avers testified that Smith told him he was to take orders
from Brummund but, if Avers had "any question of those
orders," he was to go to Smith . By doing this Smith made
certain that Avers understood that Brummund 's title
carried no authority.
Other events bore out Brummund 's lack of authority. On
one occasion , Brummund told Hays to take messages
down in a certain way. She refused to follow his
instructions . Brummund had to call Smith . Hays agreed to
work as Brummund directed only after Brummund had
told her that Smith had said that it was to be done that
Board said , " It has long been held that the sporadic assumption of
supervisory duties, e.g., during annual vacation periods of a regular
supervisor , is not sufficient to establish supervisory status at other times
[cases cited)."
53 Gartman testified that Brummund "had a part in training a number of
people "
54 Not specified as a supervisor
u Smith then assigned Strickland to Brummund for training As
Strickland testified : " so I still don ' t know everything, so [Smith I says
just do what Carl tells you and listen to Carl. If you have got any questions,
ask him ." Nothing contained in the record indicates that Brummund
exercised any independent supervisory responsibility in this regard As in
other instances it was Smith who exercised the authority to assign Strickland
for training
56 See HowardJohnson Company, 174 NLRB 1217, 1221
57 The record shows that Smith frequently left before the end of his shift
Bachman testified that, during these absences , she logged Smith out as of
the end of the shift and operated the station 's equipment when necessary
There is no evidence that Brummund "took over" during these absences
5R See point (a). above.
59 This item also refers to the fact that Brummund let employees go
home early.
WGK RADIO 775
way. Brummund on his shift permitted employees to go
home early when there was no more work to be done.
Gartman admitted that Brummund had no such authority.
When Smith found out about this practice , he ordered
Brummund to stop ; telling Brummund that he (Smith) was
the only one to make that decision6° Brummund stopped
the practices[ On another occasion , Brummund attempted
to discipline an employee named Rushing . The latter
refused to accept it from Brummund . Brummund referred
the matter to Smith . The latter spoke to Rushing and the
incident closed there . Mention has already been made of
Ellison who assumed that Brummund and Selph were his
supervisors . Ellison is still employed by WGK. As of the
time of the hearing Ellison stated he did not consider
Brummund his supervisor . Hays testified that Brummond
and Selph were her supervisors and she was aware of no
difference in the authority either exercised over her. But
she did state that neither had any authority to assign her to
various jobs. She was told she could ask them questions
and get help from them anytime . Liley, a witness called by
WGK, testified that Gartman hired her and at the time
told her that Brummund "was the assistant station
manager , and that anytime Mr. Smith wasn 't there Mr.
Brummund was in charge and if I had any questions, I was
to ask him ." Gartman never told her anything else
thereafter but on several occasions Smith told her that
Brummund was the assistant manager. Liley testified that
Brummund on occasions let her go home early . However, it
has already been shown that Brummund had no authority
to permit this . Liley's testimony is general and does not
overcome the specific instances that show that Brummund
had an empty title . Strickland , another of WGK's
witnesses, testified to Brummund 's lack of authority when
he stated that Smith told him, "don't listen to Carl because
he is the HF operator , but listen to the HF operator
whoever it may be."
(f) Brummund corrected employees working with him
and insisted they do things his way : 82 This contention is a
variant of (c), above63 WGK in support of this contention
refers to many of the instances already mentioned. It has
already been shown that experienced employees showed
other employees what to do. Of especial significance as to
this contention is Brummund 's experience with Hays. She
did not acknowledge Brummund 's authority and first
sought Smith 's confirmation before she would do the
operation in the manner "insisted" upon by Brummund.
Hays also testified that Smith or Liley told her she was
required to sign the log.64 Bachman testified that after her
training period Brummund gave her instructions "once."
Bachman also testified that Brummund gave employees
instructions because Smith and Brummund often put notes
on the bulletin board requesting the employees to do
something or correcting them about some action done 65
The record shows that this method of communication was
not restricted to Smith and Brummund , Selph also used the
same method to communicate with other employees. As
with the other points raised by WGK, this point is
insufficient to warrant a conclusion that Brummund is a
supervisor.
(g) Brummund recommended new people for hire: The
record shows that at no time did Brummund recommend
anyone for employment . Brummund did testify he recalled
no such instance but he did recommend to "a potential
employee that she go talk to Mr. Smith ." 88 Gartman
testified that Brummund had authority to recommend
individuals for hire , and that on occasions he did so.
Gartman was vague as to any instance. Gartman admitted
that Bachman recommended Liley to him for employment
and he did hire her . The facts contained herein are
insufficient to show that Brummund effectively recom-
mended employees for hire within the purview of the Act.
(h) Brummund ordered supplies and instructed others to
do so : The record shows that Brummund did order
supplies on behalf of WGK67 This fact alone does not
warrant a conclusion that he is a supervisor within the
meaning of Section 2(11) of the Act, particularly in view of
the fact that other employees ordered supplies when told
by Smith to do sobs
(i) Brummund was fond of asserting his authority and
identified himself to the public and other employees as the
assistant station manager . There is no question that prior
to June 18 , 1971, Brummund bore the title assistant station
manager. It is reasonable to conclude that he enjoyed using
the title and identifying himself in that fashion . The record
shows , however, that whatever authority he had that went
with that title was insufficient to constitute him a
supervisor as contemplated by the Act.
Conclusion that Brummund is not a supervisor
It is now well established that Section 2(11) is to be read
in the disjunctive, and the presence of any one of the
enumerated powers is sufficient to render an employee a
"supervisor." See N.L.R.B. v. Fullerton Publishing Company
d/b/a Daily News Tribune, 283 F.2d 545, 548 (C.A. 9,
1960). The above-extended enumeration of Brummund's
actions and powers while bearing the title of assistant
station manager and thereafter69 failed to show that he
possessed or effectively carried out any authority or power
set forth in the Act; and show that Brummund 's exercise of
authority or responsibility was of a routine nature and did
not require the use of independent judgment.7°
For the foregoing reasons, it is found that Brummund is
60 Cf Herron Yarn Mills, Inc, 165 NLRB 553, 555.
61 Selph also let some employees go home early. The record shows no
more than that
62 This item includes the item that Brummund left messages on the
bulletin board correcting and instructing employees.
63 WGK record references relate to statements made by Strickland and
Avers
64 Hays stated she wasn 't sure which one had told her because "Liley
was doing most of the training."
65 Liley testified that she saw messages on the bulletin board from
Brummund addressed to other employees but that she did not know their
contents.
66 This is the record reference made by WGK to support this item.
67 The record reference of WGK does not show he instructed others to
order supplies
66 See Howard Johnson Company, supra, 1221.
69 Other employees, not alleged as supervisors , performed the duties and
exercised responsibilities the same as Brummund did.
70 Witness the number of instances Brummund was restricted in his
authority, overruled, or not permitted to have his orders carried out because
of the intervention of Smith.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not a supervisor within the meaning of Section 2(11) of the
Act.71
Recommendation as to Brummund 's ballot
Having found that Brummund is not a supervisor, it is
found that he is one of the unit employees eligible to vote
in the August 3 election. Accordingly, it is recommended
that the challenge to his ballot be overruled.
2. Bachman is a unit employee
Respondent contends that Bachman is a unit employee.
The Union contends she is a clerical employee covered by
the exclusion from the unit. The General Counsel takes no
position on the subject. It is found for reasons hereinafter
stated that Bachman is a unit employee.
Bachman has been an employee of WGK for approxi-
mately 3 years. Originally she was hired as a VHF operator
but her duties included keeping the daily record of the
tickets and messages transmitted at WGK. When hired
Bachman was the holder of a third-class license which was
hung and still hangs on the wall of WGK where other
licenses are hung.
In February 1970, Gartman brought the books of all his
stations 72 to WGK from Mobile. He assigned to Bachman
the task of keeping all the books for these stations which
included payroll, accounts receivable, accounts payable,
the journals, the ledgers, and bank books. These were
Bachman's main clerical responsibilities, although she
occasionally wrote a letter for Gartman, went to the bank,
and did the billing. In addition to these duties Bachman as
the occasion demanded worked the radio equipment as she
had done before.
There is no question that Bachman performed both
"clerical" and "operational" functions as an employee.
Considerable testimony was taken in an effort to determine
the amount of time Bachman devoted to her clerical duties
and the amount of time she devoted to operational duties.
The record is clear that for a long period of time prior to
the election, less than 50 percent of her time was devoted to
operations; that a greater portion of her working day was
devoted to its "clerical" aspects.
Bachman's work on the radio equipment depended
mainly on the flow of messages through the station. She
was a backup person, ready to work on the equipment
when no one else was available and work had to be done.
The time of greatest need occurred during the morning
schedules. Then, Bachman was the equivalent to an
71 This conclusion is strongly supported by the testimony of Strickland,
WGK's witness He outlined a typical Brummund situation that occurred in
June 1971
Q Let 's say in June of 1971 how often would you have occasion to
ask Mr . Brummund for assistance'?
A Maybe once a day, maybe twice a day
Q How often would Mr Brummund , without your asking for it,
how often would Mr Brummund give you any sort of assistance'
A Once a day, twice a day.
Q What sort of matters would require his assistance'
A Sometimes if I didn' t know where a boat was and I wanted to
get in touch with them , I'd ask him if he knew where it was, or
sometimes if-actually, if I was busy, I mean, he would answer the
phone for me, if you call that giving assistance , and things like that. Or
if I didn't hear the name of a boat when it came in , I'd ask him what it
was
operator because the demand on the station was so great.
She performed all the tasks of a radio operator in taking
and sending messages and establishing "patches." Her
work on the equipment for the remainder of her shift
depended again on how busy the station became, or who
was there to take calls. If one of the operators took a break,
or was temporarily away and more calls came in than those
present could handle , Bachman left her desk to take the
calls. When the full shift was present and more calls came
in than they could handle , Bachman again took the excess.
This was a daily occurrence . Roughly, as Bachman
testified, the totality of her time spent by her on the radio
equipment averaged up to 2 hours per day.73 The
remainder of her time was devoted to clerical work such as
bookkeeping, etc. The question is whether these circum-
stances include or exclude Bachman from the unit.
Conclusion that Bachman is a unit employee
In Berea Publishing Company,74 the Board reestablished
the rule set in The Ocala Star Banner75 that for unit
purposes the Board will not differentiate between part-time
and dual function employees ; and that for unit inclusion
purposes the part-time and dual function employees will be
treated alike . The criterion for inclusion reestablished was
"whether the employee is regularly employed for sufficient
periods of time to demonstrate that he , along with the full-
time employees , has a substantial interest in the unit's
wages, hours , and conditions of employment." Berea
Publishing stated further that a "dual-function employee
devoting less than 51 percent of his time to unit work may
have sufficient interest in the unit 's conditions of employ-
ment to be included in the unit."
In WGOK Inc., 152 NLRB 959, 967, the Board included
within the unit part-time employees whose total part-time
work during the year equaled 25 percent of the full-time
work. The two part-time employees included in the unit
worked the following percentages of annual time:
Employee B 1962 2070
Employee L 1962 57e
Employee B 1963 6 months 1070
Employee L 1963 6 months 1070
The record shows that Bachman performed unit work
approximately 25 percent of the time, in the same room as
the unit employees; had the same supervisor as the unit
employees; was paid on the same basis as unit employees;
Q And that 's the kind of help he gave you?
A Yes.
Q. Did he give you any orders?
A. He asked me. as I stated, from time to time , to call people or
things like that . I always did I don't know if this was an order or not. I
never refused to do it . If I had refused it may have turned out to be an
order, I don't know.
12 As already stated the three stations are WGK, WCM, and WJG.
77 Each morning . Bachman performed only unit work until the peak
period was over at or about 9 to 9.30 a . m Bachman 's estimate is credited
over estimates of other employees who attempted to estimate by observation
of Bachman's activities on different days the time per day she spent on
radio equipment.
74 140 NLRB 516.
rD 97 NLRB 384
WGK RADIO 777
and had the same vacation and fringe benefits as the unit
employees.76 The circumstances set forth herein lead to the
conclusion that prior to the election Bachman was a dual-
function employee with a sufficient and substantial interest
in the unit's wages, hours, and working conditions to be
included in the unit.77 It is so found.78
Recommendation as to Bachman's ballot
Having found that Bachman was eligible to vote in the
August 3 election, it will be recommended that the
challenge to the Bachman ballot be overruled.
K. Conclusions Concerning the Objections to the
Election
office clerical and professional employees , guards and
supervisors as defined by the Act.
There is no real disagreement among the parties that the
unit is appropriate , although much testimony and argu-
ment alleging to deal with the question was put on the
record . It is considered unnecessary to deal with these at
any length . Getting to the core of the matter , the parties
actually were in disagreement over whether Brummund
and Bachman were unit employees or not , and whether
either or both should be included or excluded from the
unit . These questions have been resolved above. There
being no dispute about the unit description , it is found to
be appropriate as above set forth.
As previously noted the objections to the election held
on August 3 concerned WGK's conduct that was alleged in
the complaint as violative of Section 8(a)(1) of the Act.79
There is no question that most of this conduct occurred
between June 28, the date of the filing of the petition in
Case 14-RC-6784, and August 3, the date of the election.
The issues on these allegations have been litigated and
certain of the events have been found to be unfair labor
practices.80 Such conduct interferes with the exercise of a
free and untrammeled choice in an election. Oleson's Foods
No. 4, Inc., 167 NLRB 543, 551; Irving Air Chute Company,
Inc., 149 NLRB 627, 629; Dal-Tex Optical Company, Inc.,
137 NLRB 1782, 1786. The existence of such a situation
warrants the setting aside of the election. Accordingly, it is
recommended that the election be set aside and declared
invalid. It is not recommended that a new election be
conducted on the basis of the remedy hereinafter recom-
mended.
L. The Appropriate Unit
The Stipulation for Certification Upon Consent Election
agreed upon by WGK81 and the Union and approved by
the Regional Director provided for the following appropn-
ate unit:
All full-time and regular part-time employees excluding
76 Cf Pabstine Telephone Company, 154 NLRB 1325, 1329; Tramway,
Inc, 153 NLRB 885, 887.
77 This general criterion established by the Board has been recognized by
the courts . N.L R B v Belcher Towing Company, 284 F 2d 118 , 121 (C.A 5,
1960) Accord Illinois State Journal-Register, Inc v. N L R B, 412 F 2d 37,
41-42 (C A. 7, 1969); N L R B v St John's Associates, Inc., 392 F.2d 182,
184 (C.A 2, 1968)
78 This finding is supported by the fact that ( I) there is no history of
bargaining at WGK. (2) no other labor organization is interested in
representing any of the employees, (3) WGK' s entire staff consisted of the
eight people listed above who in their daily operations comprise a small
integrated unit with a sufficiently close community of interest to warrant the
establishment of the one unit See Federated Publications, Inc, 74 NLRB
1054, 1055 It is further supported by the fact that the petition for
certification filed by the Union on June 28 stated that there were eight
employees in the listed unit The petition did not name the employees but as
shown above Bachman was one of the eight employees then employed at
WGK, a fact that was well known to the Union. This finding also takes into
consideration the facts that ( f) Bachman had different hours than the other
employees on her shift and (2) Bachman did not log in and out regularly as
did the other employees, except on those occasions when she substituted for
an employee who was a full operator. These negative factors do not at all
outweigh the positive factors showing that Bachman had a substantial
interest in the unit's hours, wages, and conditions of employment It is this
mutuality of interest in wages, hours, and working conditions that is the
M. Majority Status of the Union
The General Counsel alleges that on or about June 16, a
majority of the WGK employees in an appropriate unit
selected the Union as their representative for the purpose
of collective bargaining . WGK denies this . A finding has
already been made that the appropriate unit is the one
described in the section L, above.
As stated in the Stipulation for Certification Upon
Consent Election mentioned above the said unit contained
eight employees. The record shows that the eight employ-
ees who voted in the election on August 3 were the same
eight employees that were employed by WGK on June
16 82 As shown in section E, by June 16 , six out of the eight
employees had signed valid single purpose authorization
cards designating the Union their representative "in
collective bargaining with [their ] employer."
From the foregoing it is clear that the Union was, on
June 16, 1971, the designated and selected representative of
a majority of WGK's employees in the appropriate unit
above found, and thereafter was and continues to be the
exclusive representative of the employees in the appropn-
ate unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act . It is so found.
basic principle determining whether a given group of employees constitute
an appropriate unit Continental Baking Company, 99 NLRB 777. 782,
Wheeler-Van Label Company v. N. L R. B., 408 F.2d 613, 617 (C.A. 2, 1969),
cert denied 396 U.S 834.
19 See fn. 3
xo The conduct referred to was stated in Objections I, 2, 3, and 4.
Objection 5 referred to the conduct of Soroka dealt with herein in sec. I,
above Having found that the illegal conduct of WGK so affected the
election as to warrant that it be set aside , it is considered unnecessary to
pass on the conduct of Soroka . If a ruling were necessary , the Trial
Examiner considers that under the peculiar circumstances of this case there
would be ment to objection. There is no question that Soroka 's threats to
the employees at station WGK affected the employees , even though he was
not an agent of WGK . Soroka's conduct within the physical area of WGK
created conditions that prevented the Board election from taking place in
the required "laboratory" atmosphere free of interference , restraint, and
coercion . Such conduct during the critical time warrants setting the election
aside Cf P D Gwaltney, Jr, and Company, Inc, 74 NLRB 371, 380
g, Maxwell & Moore, Inc. v N L R.B., 324 F 2d 857, 858 (C A 5)Mannin
Si Units and unit descriptions were not strange items to Gartman He
testified that prior to his proprietorship of WGK he had been president of
Local 1264, IBEW, in Mobile and had had other extensive union
experience
82 They were Avers . Bachman . Brummund , Ellison , Hays, Liley, Selph,
and Strickland
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that WGK's conduct preceding the
election consisted of extensive unfair labor practices
including repeated threats of discharge and illegal promises
of benefit, it is concluded that they were of such a
substantial nature as clearly to preclude the holding of a
fair and free election,83 and were of such pervasive and
aggravated character as to warrant the finding that an
order directing bargaining is necessary to repair their
unlawful effect 84 This order is warranted even though only
8(a)(1) violations have occurred and there has been no
violation of Section 8(a)(5). Cf. Mallow Plating Works, Inc.,
193 NLRB No. 96, fn. 3. Such a bargaining order ef-
fectuates the policies of the Act.85 It will remedy WGK's
total unlawful conduct which not only interfered with the
election, but has rendered it improbable that a fair and
meaningful second election could be held .86 It will protect
the desires of WGK's employees as expressed by the valid
authorization cards signed by a majority of the employees
in the unit. Accordingly, it is recommended that WGK be
ordered to bargain with the Union upon request 87
In order to make effective for WGK's employees the
guarantee of the rights contained in Section 7 of the Act, it
will be recommended that the Respondent cease and desist
from in any manner infringing upon the rights guaranteed
in that section.
CONCLUSIONS OF LAW
1. Raymond A. Gartman d/b/a WGK Radio is an
employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 4, International Brotherhood of Electrical
83 This conclusion is further supported by the facts that the commission
of serious unfair labor practices in a plant and unit of such small size (eight
employees) make a fair election doubtful , if not impossible Note the
Board 's language in American National Stores, Inc, 195 NLRB No 3
84 This conclusion takes into consideration the fact that WGK entered
into the Stipulation for Certification Upon Consent Election . From this it
might be argued that WGK was willing to bargain in good faith. This
argument falls because the stipulation was entered into shortly after the
strong unfair labor practices had been committed and their effect was in no
way nullified by WGK. This conclusion is supported further by the
commission of additional unfair labor practices after the execution of the
stipulation.
85 Flomatic Corporation, 147 NLRB 1304, 1307. The Second Circuit in
denying the issuance of the order called it "a strong medicine ." N.L R B v
Workers, AFL-CIO-CLC, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act,
4. The unit set forth in section III, L, above, is an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
5. On June 16, 1971, and at all times thereafter, the
Union was and continues to be the exclusive representative
of the employees in the appropriate unit found above for
the purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The facts establish, as alleged in Objections 1, 2, 3,
and 4, that WGK has interfered with the holding of a free
election on August 3, 1971.
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: 88
ORDER
Respondent, Raymond A . Gartman d/b/a WGK Radio,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening its employees with reprisals or discharge
in order to discourage their support of a union.
(b) Promising their employees benefits in order to
persuade them not to select a union as their bargaining
representative.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization , through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain from any
and all such activities , except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as
authorized in Section 8(aX3) of the Act , as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request , bargain collectively with Local 4,
Flomauc Corporation, 347 F.2d 74, 78 . But the Supreme Court decided the
medicine is salutary . N LR B v Gtssel Packing Company, Inc., 395 U.S. 575,
614-6616.
88 See N L R . B. v. Gtssel Packing Company, supra
87 The fact that the Union did not heretofore request WOK to bargain is
immaterial See N. LR B v. Joe Caldarera and Mike Caldarera, d/b/a
Falstaff Distributing Company, 209 F 2d 265, 268 (C.A 8)
88 In the event no exceptions are filed as provided by Sec . 102 46 of the
Rules and Regulations or 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.
WGK RADIO 779
International Brotherhood of Electrical Workers,
AFL-CIO-CLC, as the exclusive representative of all
employees in the unit described above , and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its premises at Granite City, Illinois , copies of
the attached notice marked "Appendix." 89 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by the Respondent's
representative , shall be posted by Respondent immediately
upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith 90
IT IS FURTHER ORDERED that the complaint be dismissed
as to those allegations not found to be unfair labor
practices.
IT IS FURTHER RECOMMENDED that Objections 1, 2, 3, and
4 be sustained.
IT IS ALSO RECOMMENDED that the challenges to the
Bachman and Brummund ballots be overruled.
In view of the finding that employee sentiment already
expressed through authorization cards is better protected
by a bargaining order than a new election , it is further
recommended that the representation election in Case
14-RC-6784 held on August 3, 1971, be set aside and the
petition dismissed.
89 In the event that the Board 's Order is enforced by a Judgment of a 90 In the event that this recommended Order is adopted by the Board
United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read:
Order of the National Labor Relations Board" shall read "Posted Pursuant "Notify the Regional Director for Region 14, in writing, within 20 days
to a Judgment of the United States Court of Appeals Enforcing an Order of from the date of this Order , what steps the Respondent has taken to comply
the National Labor Relations Board ." herewith."