Fort Smith Broadcasting Company v. NLRB

• Decision Date: 04 March 1965
• Docket Number: No. 17669.,17669.
• Citation: 341 F.2d 874
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: FORT SMITH BROADCASTING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

341 F.2d 874 (1965)

FORT SMITH BROADCASTING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17669.

United States Court of Appeals Eighth Circuit.

March 4, 1965.

Allen P. Roberts, of Bethell & Pearce, Fort Smith, Ark., made argument and filed brief, for petitioner.

Peter Giesey, Atty., N. L. R. B., Washington, D. C., made argument for respondent and filed brief with Arnold Ordman, Gen. Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Elliott Moore, Attorney, N. L. R. B., Washington, D. C.

Before VOGEL, VAN OOSTERHOUT and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

The Fort Smith Broadcasting Company has petitioned this Court to set aside an order of the National Labor Relations Board which upheld the decision of its Trial Examiner who found that the Company had engaged in conduct violative of §§ 8(a) (1), 8(a) (3) and 8(a) (5) of the National Labor Relations Act, as amended, 29 U.S.C.A. §§ 141-168. The Board, in turn, has petitioned for enforcement of its order. 146 NLRB No. 99.

The Company challenges the substantiality of the evidence supporting the Examiner's findings, making it incumbent upon us to review the record as a whole in determining the reasonableness and fairness of the adopting decision by the Board. 29 U.S.C.A. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Fruin-Colnon Const. Co., 330 F.2d 885 (8th Cir. 1964); NLRB v. South Rambler Co., 324 F.2d 447 (8th Cir. 1963).

The evidence, largely undisputed, disclosed the following sequence of events. On May 8, 1963, after five employees at the Company's Radio Station KFSA in Fort Smith, Arkansas signed cards authorizing the International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1304 to represent them, Union representative Blair telephoned Station Manager Crews. Blair informed Crews that his union had signed up a majority of five of the station's six control-announcers and one engineer, the only employees which his Union was interested in representing, that he would show proof of their majority representation by a check of the union cards against the payroll, and that on the basis of such a showing, the parties should begin negotiations for a contract. Crews questioned the claimed majority representation, pointing out that one of their engineers who was in the hospital could not have signed a card and that he did not believe announcer Jim Pitcock had signed either. Blair replied that Jim Pitcock had signed, as well as three other announcers and one engineer whom he also named. Crews indicated that he would look into the matter and for Blair to call back later.

Later that afternoon, Blair called John Whitt, a supervisor for the chain of radio and television stations of which KFSA was a part. Blair repeated his claim of majority representation and demanded recognition. Whitt replied that he would give Blair an answer the next day after consulting with Crews.

On the next day, May 9, Whitt, by letter, formally declined recognition of the Union and requested that a Board conducted election be held. After receipt of Whitt's letter of May 9, Blair replied by mail on May 11 enclosing a copy of a petition for a representation election which he had filed with the Board, but still insisting he could provide proof informally of the Union's majority status by a show of cards and requesting that negotiations towards a contract begin thereafter. Subsequently, on May 16, the Company and the Union entered into a stipulation for a consent election in a bargaining unit as originally requested by the Union, but due to the filing of the instant unfair labor practice charges, the representation petition was withdrawn and the election canceled.

Upon learning of the Union's organizational efforts on May 8, Crews immediately called Jim Pitcock, his news director and senior control announcer. Crews and Jim Pitcock were friends of long standing, as Crews had taken a personal interest in Jim Pitcock's education and career. Crews asked Jim Pitcock rhetorically, "I thought you were a loyal employee?" After Jim Pitcock assured Crews that he was, Crews then asked, "Where do you think you will use a union card?", knowing for some time of Jim Pitcock's intention to quit his job with KFSA to accept an announcing position with a Little Rock radio station.

That same afternoon following work, Jim Pitcock decided to visit Crews at his home to discuss the matter of his union activity. When Jim Pitcock arrived, Crews twice refused to discuss union matters with him. Only after Jim Pitcock insisted he did not want anything to interfere with their friendship, did Crews finally invite him into the house. In their ensuing conversation, according to Jim Pitcock, Crews expressed surprise on learning certain other employees had joined the Union. Crews was attributed with saying that had he been at the station that afternoon, "he would have knocked a couple of heads together" and that in the future, "the first time someone goofed up that would be it." Before leaving, Jim Pitcock left the impression that he would not become a member of the Union because he was leaving the employ of the station and wanted to remain friends with crews.

Approximately two weeks later on May 21, Jim Pitcock's younger brother, Jerry, also an announcer at KFSA and one of the five employees who signed union cards, was suspended by Crews after an altercation with fellow employee Bob Curtis. According to Curtis' accredited description of the incident, he was working at the station when Jerry Pitcock, who was off duty, playfully pushed him from behind and proceeded to make a derogatory remark about his clothing in the presence of several other employees. Jerry Pitcock continued to badger Curtis despite the latter's repeated warnings to quit playing and to leave him alone. When those warnings had no effect, Curtis grabbed Jerry Pitcock, slapped him once with his hand and pushed him away, with the admonition that he was not playing but would use his fist the next time.

Curtis reported the incident that afternoon to Crews. Crews obtained verifying accounts of Curtis' version of the altercation from two office girls who were present before mailing Jerry Pitcock a notice on May 22 of his suspension pending a full investigation.

Previous to this latest incident, Jerry Pitcock had been a source of constant difficulty to his employer. In early March, he had caused the station financial loss as a result of an erroneous announcement over the air. Crews had decided then to terminate his employment, but reconsidered only after his brother, Jim Pitcock, pleaded that he be given another chance. Instead of firing Jerry Pitcock, Crews reduced his working hours to part-time, week-end duty.

Crews' more thorough inquiry confirmed the fact that all the witnesses, including Jim Pitcock, agreed that Jerry Pitcock was the protagonist of the incident. In addition, Jerry Pitcock had committed more serious misconduct before and after the suspension. His behavior towards the clerical employees had been impertinent, and on one occasion he had been disrespectful to a client. Despite reprimand, he had slept while on duty causing programming failure over the air; repeatedly permitted unauthorized persons to visit the station against rules; conducted unauthorized contests over the air which were a source of annoyance to the telephone company and the community; and participated with another employee in rifling office files in search of company correspondence concerning the Union election. For these and other reasons, Crews notified Jerry Pitcock on June 4 by letter that his suspension had been converted to permanent discharge.

§ 8(a) (3)

The Board found, in the words of the Examiner, that Crews took "precipitate action" in suspending Jerry Pitcock and not Curtis, in order to exemplify his announced harder attitude towards all the employees in dealing with their shortcomings due to the advent of the Union. The Board concluded that the Company unlawfully discriminated against Jerry Pitcock in violation of § 8(a) (3) because he and other employees had exercised their right to join the Union as guaranteed under § 7 of the Act. However, a majority of the three member panel of the Board approved the Examiner's recommendation not to offer reinstatement or back pay to the discriminatee because his admitted guilt of other serious misconduct which came to the attention of the Company for the first time after his suspension rendered the usual remedy inappropriate.

The Board concedes that if ever an employee deserved summary discharge, Jerry Pitcock was he. However, the Board rejected as incredible the Company's asserted motive of an accumulation of offenses as the reason for suspension of this employee because of the condoning and forgiving attitude displayed by Manager Crews towards Jerry Pitcock's past derelictions.

Positive evidence indicated just the contrary. At the time of his suspension for harassing another employee during work, Jerry Pitcock was in effect on probation, having come within a hairsbreadth of discharge for causing the station financial loss as a result of an erroneous announcement. He had been consistently reprimanded for his other known misconduct and for this error, he was sternly disciplined by demotion to the status of a part-time employee. Furthermore, some of the misconduct prior to the suspension for which Jerry Pitcock was ultimately discharged did not come to the attention of Crews until after the altercation, making prior condonation an impossibility.

In discounting cause as the motive for suspension, the Board attaches much significance to the facts that Crews did not interview Jerry Pitcock, the other participant, nor immediately obtain an account of the incident from his brother, Jim Pitcock, and suspended only ...