NLRB v. WKRG-TV, Inc.

• Citation: 470 F.2d 1302
• Decision Date: 02 January 1973
• Docket Number: No. 71-3168.,71-3168.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WKRG-TV, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

470 F.2d 1302 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WKRG-TV, INC., Respondent.

No. 71-3168.

United States Court of Appeals, Fifth Circuit.

January 2, 1973.

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Marcel Mallet-Prevost, Asst. General Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., Lawrence Levien, Washington, D. C., for petitioner.

Willis C. Darby, Jr., Mobile, Ala., for respondent.

Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge:

In this case we are once again faced with the difficult task of determining the propriety of a bargaining order when a union loses a representation election only after the employer's alleged unfair labor practices dissipate the card majority claimed by the union. Although the Supreme Court clarified many of the problems arising in this particular area of labor law in N.L.R.B. v. Gissel Packing Co., Inc., 1969, 395 U. S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, the great number of cases since Gissel illustrate the many gray areas that were left to be decided. See generally, Platt, The Supreme Court Looks at Bargaining Orders Based on Authorization Cards, 4 Ga.L.Rev. 779 (1970); Christensen and Christensen, Gissel Packing and "Good Faith Doubt": the Gestalt of Required Recognition of Unions Under the NLRA, 37 U.Chi.L.Rev. 411 (1970).

The basic facts here are similar to those in many of Gissel's progeny and as in many of these cases there were a number of close factual questions for the Board to decide. WKRG is a television broadcasting station in Mobile, Alabama. In October, 1969, employee Formby, a newsman at the station wrote to the American Federation of Television and Radio Artists AFTRA for information on how to establish a chapter in Mobile. After Formby himself signed an authorization card on October 26, AFTRA, using a list supplied by Formby, mailed authorization cards to the other members of the unit. After an active campaign spearheaded primarily by Formby, authorization cards were obtained from 21 of the other 33 employees in the unit. Most of the cards were signed between November 10th and 13th with the remainder signed after a union meeting held on November 19th. On November 15th, WKRG President Kenneth Giddens addressed the employees at a meeting initially requested by Formby. In his address, Giddens expressed opposition to the union and made several promises for improved wages and benefits. Some of these promises were implemented prior to the holding of the election. On November 21 the union sent a letter to the company requesting recognition and on the same day filed a petition for a representation election with the N.L.R.B. The company received the union's letter on November 24th and on the same day Giddens issued a memorandum announcing additional implementation of benefits promised in the November 15th speech. The company never responded to the union's demand for recognition.

The Board's regional director determined the appropriate representational unit and directed that an election be held for that unit on February 12, 1970. The election results were 16 for the union, 17 against, and 1 vote was challenged.

Unfair labor practice charges were filed by the union on December 1, 1969, and again after the election on February 24, 1970. The union sought a Board ruling that the company had violated § 8(a) (1) of the NLRA¹ because of the anti-union activities prior to the election, and further, that based on the Gissel decision, the company had violated § 8(a) (5) of the NLRA² by failing to bargain with the union. The Board's complaint issued on June 5, 1970. A hearing was held in July and August of 1970 and the trial examiner's decision was rendered on November 18, 1970. The examiner found that the company had committed 8(a) (1) violations, but because he found that several of the authorization cards had been solicited by supervisors, the examiner rejected the 8(a) (5) charge.

The Board, in an order dated April, 1971, adopted the trial examiner's findings as to the 8(a) (1) violations but found contrary to the trial examiner on the 8(a) (5) issue. Specifically, the Board found that (1) the employer, WKRG-TV, committed § 8(a) (1) violations during the union's organizational campaign; (2) the unit determination made by the regional director was appropriate; (3) the union had received a valid card majority; and (4) a bargaining order was the most appropriate remedy in this case.³ The company brings this appeal challenging the Board on all four of these findings. We will deal with each finding separately.

I. THE § 8(a) (1) VIOLATIONS

Between the time when the organizational campaign got underway and the election, the company committed various acts which were found by the Board to constitute violations of § 8(a) (1). Section 8(a) (1) forbids an employer from interfering with, restraining or coercing employees in the exercise of their section 7 rights. One of the fundamental rights guaranteed in section 7 is the right of self-organization. In order to protect this important right the Board and the courts have consistently taken a dim view of management activity calculated to undermine the union's attempt to achieve an electoral majority. Absent scrutiny by the Board and the courts, management can use its inherently powerful position over employees in many different ways to prevent employees from exercising their guaranteed right to choose freely collective representation. In this case the record indicates that WKRG utilized various methods of subtle coercion that both the trial examiner and the Board found violative of § 8(a) (1). The company denies any use of pressure and contends that the union lost the election solely because a majority of the unit did not desire representation. We will review each of the actions found by the Board to constitute violations of § 8(a) (1).

A. Promise of Benefits. The most formidable violations in terms of undermining the union's organizational drive were the somewhat spontaneous grants of benefits by the company after the organizational drive began around November 10 and before the election was held on February 12. On November 15, Giddens, the company President addressed the employees. In his speech, he said, inter alia:

"I am disturbed about organizing a Union among us. I hope it will not come about. . . . We just do not need to bring in outsiders to protect each other. We have taken care of our people. . . . We have already discussed adjustments in salaries. We are going to have a personnel officer who will make agreements which the Company will honor. We will evaluate jobs and see that our salary structure comes in line with similar positions in comparable markets. We will also institute some kind of insurance plan in addition to Blue Cross that we have now."

The company implemented these promises almost immediately. On November 20th, all employee fringe benefits were equalized; during December the company raised wages of 25 of the 34 employees in the unit; and during the three days immediately preceding the election, the company issued various memoranda to employees reciting the benefits the company had given to its employees and the benefits that would be given in the future. In addition, on November 24th and 25th, Alspaugh, a newly hired personnel consultant, solicited the employees' attitudes about their jobs.

On the face of it, this sort of "campaigning with benefits" fits squarely within the type of conduct proscribed by the Supreme Court's decision in N.L.R. B. v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435. In that case, as in this, in the face of a union organizational drive, the employer announced several new benefits prior to the representation election. A unanimous Court, speaking through Justice Harlan found such activity to be violative of § 8(a) (1). The Court reasoned:

"The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged."

375 U.S. at 409, 84 S.Ct. at 460, 11 L. Ed.2d at 439.

The company responds, however, by saying that the Exchange Parts proscription applies only when the new benefits are granted with the clear intention of undermining the union campaign. In a rather intricate factual argument, the company attempts to paint a picture portraying President Giddens as intending to increase the benefits well in advance of the time the union began organizing and showing that delay was caused only by a breakdown in communications during Giddens' temporary absence from the company. The company insists that when Giddens spoke to the employees on November 15th at Formby's request, he did not know that an organizational drive was underway. The anti-union references in his speech were said to refer to the IBEW, which had previously been involved in representational disputes with various WKRG employees, and were not aimed at the AFTRA organizational drive.

In essence, the company argues that it cannot be faulted for granting benefits to its employees when such benefits were not motivated by an anti-union animus. We are in full agreement with the company. Certainly any rule that would prevent the granting of employee benefits in the absence of an anti-union effect, either intended or foreseeable, would go too far and it is not impossible to envision a factual situation where a grant of benefits during a campaign would be permissible. E. g., N.L.R.B. v. M. H. Brown Co., 2 Cir. 1971, 441 F.2d 839, 842-843; Wilkinson Mfg. Co. v. N. L.R.B., 8 Cir. 1972, 456 F.2d 298, 303. But this is not such a case.

The trial examiner, whose findings on the 8(a) (1) violation were accepted by the Board, held a full factual hearing at which the...