NLRB v. Wichita Television Corporation, 6153.

• Decision Date: 01 June 1960
• Docket Number: No. 6153.,6153.
• Citation: 277 F.2d 579
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WICHITA TELEVISION CORPORATION, Incorporated, d/b/a KARD-TV, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

277 F.2d 579 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WICHITA TELEVISION CORPORATION, Incorporated, d/b/a KARD-TV, Respondent.

No. 6153.

United States Court of Appeals Tenth Circuit.

April 5, 1960.

Rehearing Denied June 1, 1960.

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Duane B. Beeson, Atty., N. L. R. B., Washington, D. C. (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., and Standau E. Weinbrecht, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

George J. Bott, Washington, D. C., and Daniel M. Moyer, Wichita, Kan., for respondent.

Before BRATTON, HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The National Labor Relations Board has petitioned for a decree enforcing its order requiring respondent, Wichita Television Corporation, Inc., d/b/a KARD-TV, to offer reinstatement with back pay to employees found to have been either discharged in violation of the National Labor Relations Act, 29 U.S. C.A. § 151 et seq., or denied reemployment to which they were entitled under the Act; to cease and desist from discouraging union membership, interfering with, coercing or restraining its employees in the exercise of their rights under the Act; and to post appropriate notices.

The principal questions arise out of the contention that the record as a whole does not sustain either the finding that respondent was guilty of unfair practices in discharging two employees for union activities and coercing employees through interrogations and threats, or the conclusion that the striking employees who unconditionally requested reinstatement were entitled to be offered remployment even though replacements had been hired.

In May of 1956 Gordon Coker, a television director in the employ of respondent, began distributing union¹ membership cards to his fellow production department employees. Apparently this was the first outward display of union interest among this group. On May 10 a large majority of these employees held a meeting at which they agreed to send respondent a letter containing their names and requesting that the Union be recognized as their chosen bargaining representative. The next day, shortly after receiving this letter, Coker and Frank Neal, another employee, were discharged. Neal was not actually working at the time. He had previously quit his employment but had been rehired and was to report for work at a later date but, on May 11 he was told he would not be allowed to do so.² Within a week both Coker and Neal formally requested reinstatement but their requests were ignored. On May 31 the production department employees met again and, in the presence of two Union representatives, discussed a plan of action. They decided to make one final request for a meeting with management to discuss recognition, grievances and bargaining, and then if that request were rejected, to strike. Pursuing this plan, some twenty employees struck on June 2 after their request for a meeting was ignored. Respondent immediately terminated the employment of the strikers by hiring replacements who were given permanent employment. When the strike ended and the strikers requested unconditional reinstatement on July 16, substantially all of their jobs had been filled and the reinstatement requests were not recognized.

On May 15 the Union filed formal charges protesting the alleged discriminatory discharges of Coker and Neal. On December 26, after it had become evident that none of the strikers was to be reinstated, the Union filed an amended charge protesting the respondent's denials of the several requests for reinstatement of the alleged unfair labor practice strikers.³

The Board found that respondent interfered with its employees' rights by discharging Coker and Neal and by coercing employees through interrogations and threats. The Board did not consider all of the several instances of questioning and threats of which the Trial Examiner made findings in reaching his conclusion as to this second method of interference; rather, the Board expressly found only that there were a sufficient number of such instances to warrant the inference that respondent's union hostility was behind the discharges. But the Board's general adoption of the Examiner's findings supplies an adequate source for that portion of its order requiring respondent to cease interference by means unrelated to discrimination with regard to hire and tenure. It is clear that in finding interference by coercion and threats, the Trial Examiner and the Board relied principally on such of respondent's conduct as was directed at Coker and Neal before they were discharged. That conduct was covered by the charge filed on May 15. But the Trial Examiner and the Board also relied on several instances occurring both before and after May 15, involving employees other than Coker and Neal. Respondent contends that this was error because the two formal charges provided no notice that such instances of conduct would be made the subject of Board inquiry. The short answer to this contention is that respondent's conduct directed at Coker and Neal and included in the May 15 charge warranted the Board in restraining future interference by coercion and threats. Moreover, the Board has considerable latitude in considering conduct not specifically charged which is subsequent and related to practices protested against in the formal charge. National Licorice Co. v. N. L. R. B., 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799; N. L. R. B. v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243.

This brings us to a consideration of the two factual issues respecting, first, the real reason behind the Coker and Neal discharges and, second, the motivating cause or causes of the subsequent strike. Upon consideration of the record as a whole, we find adequate support for the Board's conclusions that Coker and Neal were discharged because of their union adherence or activities and that these discharges were an effective cause of the strike. Renek, the production supervisor, talked to Coker the day before his discharge, asking him if he knew of "this union business going on," and then saying: "If you hear anything, let me know because Mr. Moyer said we have to get rid of them." Later that same day Renek asked Frank Neal: "What do you know about this Union?", and told him "we have got to have names of people who are organizing, behind this." A sales manager telephoned Coker's home on May 10 and, after Coker had denied having any knowledge of the Union, explained to him that "It is a union that is trying to get in here and we have to stop them."

The record is replete with evidence which establishes respondent's determination to be rid of employees actively engaged in union organization. Other evidence shows that respondent believed Coker and Neal to be organizers and discharged them for that reason. Bob Edwards, the Chief Announcer in Charge, correctly surmised, while discussing the union situation with another announcer, that Coker was the "organizer" directly responsible for the union interest which that announcer professed to have. Neal, after being interrogated by Renek as related above, asked Moyer if management thought he was returning to work primarily to help organize the production employees, and Moyer answered: "It kind of looks that way." Within a very short time after the Union letter of May 11 was received, Coker was discharged and Neal was told he was not to report back to work on May 13.

The Board also concluded, reasonably we think, that the discharges were not actually prompted by the legitimate reasons which respondent suggests existed. The respondent's evidence was to the effect that the day before his discharge, Coker "told off" Renek by predicting that once the Union had successfully completed organizing, it would do the hiring and firing of employees and Renek's authority would be reduced to where he would have to be careful how he treated the employees; that management officials met the next morning at which time Renek related what Coker had said to him the previous day, whereupon the officials agreed that Coker would have to be discharged because in the future there could not possibly be adequate cooperation between him and Renek, his supervisor. It is apparent the Board considered that, even assuming Coker had made these statements to Renek, the more reasonable inference, in view of respondent's conduct after learning of the plan to organize the production department, was that Coker was discharged because of his union adherence and activities. Inferences to be drawn from the evidence are for the Board, not the Courts. The jurisdiction of courts of appeals is limited under the Act to a determination of the validity of the final order of the Board, and to the enforcement of that order. 29 U.S.C.A. § 160 (e); N. L. R. B. v. Hamilton, 10 Cir., 220 F.2d 492; cf. N. L. R. B. v. Cheney Cal. Lumber Co., 327 U.S. 385, 66 S.Ct. 553, 90 L.Ed. 739.

To explain its action with respect to Neal, respondent introduced...