NLRB v. Century Broadcasting Corporation
Decision Date | 30 January 1970 |
Docket Number | No. 19547.,19547. |
Citation | 419 F.2d 771 |
Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTURY BROADCASTING CORPORATION, Respondent. |
Court | U.S. Court of Appeals — Eighth Circuit |
Baruch A. Fellner, Atty., N.L.R.B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Bernard Cushman, Atty., N.L.R.B., Washington, D. C., with him on the brief.
George A. Collias, Chicago, Ill., Gen. Counsel for Century Broadcasting Corp., for respondent.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
This case comes to us on a petition of the National Labor Relations Board to enforce its order against the Century Broadcasting Corporation, the Board having found that the Company violated § 8(a) (1) of the National Labor Relations Act by interrogating and threatening one employee with respect to union activities and also that the Company violated § 8(a) (1) and (3) of the Act by discharging three employees because of their union activities and a fourth (the one allegedly interrogated and threatened) because of his union activities, coupled with his pressing of a claim for pay under the collective bargaining agreement. The Board's order, issued May 20, 1968, is reported in 171 NLRB No. 78. Jurisdiction is established under § 10(e) of the Act, 29 U.S.C. § 160 (e).
The Board and the Company agree on the facts, but the Company asserts that the evidence considered as a whole does not support the Board's findings that a prima facie case was presented by sustaining its burden of proof. No witnesses testified in behalf of the Company. Since both parties also cite in several instances the same authorities for their respective positions, there does not seem to be too much disagreement as to the law, but rather a disagreement as to its interpretation and application to the facts, and, in sum, our disposition requires a canvass of the evidence as a whole as required by Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
Century Broadcasting Company operates radio station KSHE in Crestwood (St. Louis), Missouri, and employs approximately fourteen people. The complaint filed by the International Brotherhood of Electrical Workers, AFL-CIO, Local 4, as amended, alleged that the Company had violated § 8(a) (3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Peter M. Flannery, Nicholas K. Barr and Robert J. Vierling, announcers, on August 8, 9 and 10, 1967, respectively, and Robert G. Taylor, a technician, on August 24, 1967, because of union membership or other concerted activities. The complaint further alleged that the Company had violated § 8(a) (1) of the Act by interrogating and threatening Taylor with respect to union activities. The Trial Examiner found the Company guilty of the violations charged and the Board affirmed his decision and entered his recommended order, the enforcement of which is here sought.
The principal issues are (1) whether the Board was correct in affirming the Trial Examiner's finding that the Company had knowledge of the announcers' union activities and discharged them because of such activities, when the Trial Examiner based his inference of knowledge on the mere fact that the Company did not put on any witnesses to deny these charges, or whether other evidence in the record would compel such a finding; (2) whether there was sufficient evidence to support the Board's finding that the technician, Taylor, was discriminatorily discharged because of his union membership, union activity, and the pressing of a claim for the payment of the union wage scale; and (3) whether the conversations which the general manager of KSHE, Sheldon, had with Taylor included interrogation and threats prohibited under the Act.
The Company and the Union entered into a collective bargaining agreement covering KSHE's technicians and engineers on June 1, 1966, and this agreement covered only one of the discharged employees, Taylor. The idea of the announcers' joining a union was first mentioned by Barr to Flannery the latter part of May, 1967, but no particular union was mentioned at that time. Then Barr talked with Taylor who said that I.B.E.W. had a category for "announcer-operators" and said he thought joining the union would help the announcers with regard to wages, fringe benefits and job security.
In June, 1967, the station was moved to the Crestwood location. This resulted in considerable technical difficulties because of the close proximity of the transmitter, it being in the same building. Thereafter, tapes could not be played but, instead, records had to be used, which resulted in more work for the announcers. At that time Edward Ceries was general manager of the station and also broadcast engineer and Taylor worked with him as another broadcast engineer. Barr, who was the staff announcer with the longest tenure, was also news director. On or about July 17, 1967, while Ceries and Barr were on vacation, the president of the Company, Howard Grafman, relieved Ceries of his duties and made Harvey Sheldon the general manager. Sheldon had been employed by the Company a short time before to do a controversial talk show. Taylor was named at the same time as chief engineer of KSHE and Barr was made program director. When Barr returned from vacation, he found a directive on the wall signed by Sheldon instructing him on the format he was to follow as program director. He was advised by Sheldon that he would work four hours a day as announcer-operator and four hours as program director.
Thereafter, the discussions concerning joining the union became more frequent and more serious, Barr and Flannery consulting the other announcers as to their feelings. Vierling testified that Barr first mentioned it to him the latter part of July, and Barr, Flannery and Vierling all thought it would be a good idea. These announcers testified, however, that the other full-time announcer, Robert Mundy, stated that he thought it would be bad for the Company, that the president, Mr. Grafman, wouldn't like it, and that it would be a threat to his own job. He said that he was a personal friend of Mr. Grafman, that he had a more or less permanent contract with him, that joining the union wouldn't benefit him, and that he didn't think it would be the right thing to do to sign a union card without first talking to Mr. Grafman. Vierling testified that Mundy told him he would "like to" or "have to" talk with Grafman before he would sign a card, but there was no testimony that he said he was actually going to talk with Grafman. Mundy was not called to testify and it is not contended that he did talk with Grafman. Flannery testified that Mundy told him that he wasn't against the union but wasn't going to push for it. Valetta Wood and Diane Bauman, who did secretarial and clerical work for the Company, were also told that the announcers were considering joining the union. They replied that they thought it would be a good idea and promised not to tell Sheldon. Diane Bauman left the employ of KSHE the latter part of July.
On or about July 20, 1967, Merril V. Davis, the union's business manager, was interviewed on Sheldon's radio show and remarked during the course of their conversation in Sheldon's office that the union was going to organize the announcer-operators. Davis testified that Sheldon laughed and said, "Oh, no, not that." This was the extent of their conversation on the subject.
On August 7, 1967, Barr called Davis from Taylor's home and told him the announcers would like to join the union, and Davis said to pick up the authorization cards from him, sign them, and return them. Barr and Taylor picked them up that afternoon and that evening Barr and Vierling signed the cards at Barr's home, dating them the following day, August 8. Barr took a card to the control room where Flannery was working on the 8th and Flannery signed it. No one else was present. It is not contended that Sheldon saw him sign the card, although he was in the production studio at the time. Barr testified that the control room was designed to keep out noises and that you would probably have to have your ear up to the glass to hear outside conversations. That night about 8:45 Sheldon came into the room where Flannery was working and gave him a week's notice. Sheldon told him, however, that he didn't want him to think that his discharge reflected in any way upon his performance at the station.
The cards had not been turned over to the union at that time but were given to Taylor late that evening and he delivered them to the office of I.B.E.W. the next morning. Sheldon was not notified of this by Davis, however, until August 10.1
About 9:30 a. m. on the 9th, Sheldon told Barr that he felt his services were no longer needed at the station — that he was to work until Friday and then he was through. Sheldon gave as his reason that there was too much dissension in the ranks, that everybody disagreed with him. Barr asked him if he was doing his job poorly or if he had made some error or had fallen short and Sheldon said no. Two days before then Barr had resigned his job as program director, advising Sheldon that he felt he couldn't carry on the functions of both announcer and program director and Sheldon had said that it was fine with him. Sheldon told him at that time that effective Monday, August 14, the working hours would be changed to six hours a day, six days a week, and gave no indication that he intended to terminate Barr. When Barr asked for a service letter, or letter of recommendation, on the 11th, Sheldon first promised it but later told Barr he would have to talk with Grafman. Grafman said he would have to wait until the N.L.R.B. hearings were over — that Barr had filed charges and that stopped the letter.
As...
To continue reading
Request your trial-
Barrett v. Weyerhaeuser Co. Severance Pay Plan
...v. Southwestern Savings & Loan Ass'n., 509 F.2d 140 (5th Cir.1975) (alleged religious discrimination).4 E.g., NLRB v. Century Broadcasting Corp., 419 F.2d 771, 780 (8th Cir.1969) (retaliation because of threat to file grievance with union); NLRB v. Armour & Co., 154 F.2d 570, 575-77, 169 AL......
-
Wurtz v. Beecher Metro. Dist.
...672 (1974) (“[A]n employee may be terminated for a ‘good reason, bad reason, or no reason at all’.”), quoting NLRB v. Century Broadcasting Corp., 419 F.2d 771, 778 (C.A.8, 1969). 12.Whitman, 493 Mich. at 311, 831 N.W.2d 223. 13. The protected activities listed in the act consist of reportin......
-
Lojek v. Thomas
...its origin in the labor relations area, e.g., J.P. Stevens & Co. v. N.L.R.B., 461 F.2d 490, 494 (4th Cir.1972); N.L.R.B. v. Century Broadcasting, 419 F.2d 771, (8th Cir.1969); N.L.R.B. v. Tennessee Packers, Inc., Frosty Man. Div., 339 F.2d 203 (6th Cir.1964), but has been extended and held ......
-
Ingham Co. v. Capitol City Lodge Fop
...87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967). 13. Reeths-Puffer, supra at 258-259, 215 N.W.2d 672, quoting Nat'l Labor Relations Bd. v. Century Broadcasting Corp., 419 F.2d 771, 778 (C.A.8, 1969). We recognize that this case involves employee discipline rather than discharge, but the same principl......