NLRB v. WGOK, INC.
| Decision Date | 11 October 1967 |
| Docket Number | No. 23292.,23292. |
| Citation | 384 F.2d 500 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WGOK, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marcel Mallet-Prevost, Asst. Gen. Counsel, Alan D. Eisenberg, Atty., N.L. R.B. Washington, D. C., for petitioner.
Willis C. Darby, Jr., Mobile, Ala., for respondent.
Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.
The National Labor Relations Board seeks enforcement of its order based upon a finding that Respondent, WGOK, Inc., discharged two employees in violation of Section 8(a) (3) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 158 (a) (3) & (1), and that Respondent refused to bargain with the exclusive bargaining representative of its radio engineers in violation of Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5) & (1).
WGOK, Inc., operates a radio station in Mobile, Alabama. Ownership of the corporation is vested in three individuals, Jules Paglin, Stanley Ray and the station manager, Robert Grimes. Paglin and Ray also have a majority interest in five other separately incorporated radio stations located in three southern states. The only other stockholder in each of these stations is the particular local station manager.
The stations, known collectively as the "OK Group," maintain a central office in New Orleans, the expenses of which are shared by the individual stations. The books of account of all six stations are maintained in New Orleans, and billing for the stations' services is made from the central office. Each station pays its own ordinary expenses, but unusual expenses, such as the purchase of a new transmitter, are handled in consultation with Paglin and Ray. Sales for all the stations in the group are made by a national representative chosen by Paglin and Ray.
On May 13, 1963, Local 1264 of the International Brotherhood of Electrical Workers filed a petition with the Board requesting certification as the bargaining representative of WGOK's engineers, and the Board scheduled a representation hearing for June 6. An order directing elections was entered by the Regional Director, and the Board granted review of the Regional Director's decision limited to the appropriateness of the bargaining unit.
Meanwhile, as a result of being fired immediately after the representation hearing concluded on June 7, two part-time employees of WGOK, Carl Bouler and William Langley, filed section 8(a) (3) charges with the Board claiming that they were discharged because of union activity. A hearing in the discharge case began on September 30. Subsequently, on December 13, the Regional Director issued a complaint charging WGOK with an unfair refusal to bargain. The two cases were consolidated and after further hearings the Trial Examiner found that WGOK had violated the Act as charged. The Board affirmed this decision in all respects material to this enforcement petition.
We are met at the outset with WGOK's contention that the Board acted beyond its self-imposed jurisdictional limitations. It has long been recognized that while the statutory jurisdiction of the Board extends to all activities "affecting commerce," 29 U.S.C.A. § 160(a), it may in its discretion decline to exercise such jurisdiction where the policies of the Act would not properly be effectuated. See Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965); Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957); NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951).
In 1958 the Board lowered its jurisdictional standard for the communications industry from $200,000 gross receipts per year to $100,000 in an effort to "extend the Board's jurisdiction over communications systems to the maximum possible extent at this time and * * * to reasonably ensure that the Board will assert jurisdiction over all labor disputes involving such enterprises which tend to exert a pronounced impact on commerce." Raritan Valley Broadcasting Co., 122 N.L.R.B. 90, 92 (1958). The Board's announced intention was to extend the rights and protections of the Act to as many individuals, labor organizations and employers as its limited budget and personnel permitted. Id. at 91. In promulgating the new standard there was no intention to preclude the application of the Act to employers having less than $100,000 gross receipts per year where for other reasons the Board felt that a particular employer had a sufficient impact on commerce to warrant the exercise of its powers. See NLRB v. W. B. Jones Lumber Co., 245 F.2d 388 (9th Cir. 1957).
WGOK concedes that the Board had statutory jurisdiction to proceed; its argument is that since WGOK's gross income was only $89,000 in the year preceding the filing of these charges the Board was prevented by its own jurisdictional standards from proceeding against it. The argument has no merit. The extent to which the Board chooses to exercise its statutory jurisdiction is a matter of administrative policy within the Board's discretion, and in the absence of extraordinary circumstances whether jurisdiction should be exercised is for the Board, not the courts, to determine. NLRB v. Carroll-Naslund Disposal, Inc., 359 F.2d 779 (9th Cir. 1966); NLRB v. Stoller, 207 F.2d 305 (9th Cir., 1953), cert. denied, 347 U.S. 919, 74 S.Ct. 517, 98 L.Ed. 1074 (1954); see Optical Workers' Local 24859 v. NLRB, 229 F.2d 170 (5th Cir.), cert. denied, 351 U.S. 963, 76 S.Ct. 1027, 100 L.Ed. 1484 (1956); NLRB v. Townsend, 185 F.2d 378 (9th Cir. 1950). We are satisfied that no such extraordinary circumstances exist here.
We find that the Board erred in its determination of the appropriate bargaining unit and therefore deny enforcement of its order requiring WGOK to bargain. WGOK employs two full-time engineers. However, one engineer was considered to be in a supervisory category, so only one full-time employee, George Nations, was included in the unit. In addition to its full-time engineers, WGOK employed two part-time engineers, Bouler and Langley, during the summer months, when its broadcast period was expanded. The duties of the part-time engineers consisted of work on Saturdays and Sundays and filling in when the full-time engineers were on vacation. Although Bouler and Langley received the same rate of pay for the same work as the full-time employees, they received none of their...
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