KUMU Radio AM/FM, 73 (1973)

Docket Number:37-CA-00846
 
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KUMU RADIO AM/FM 73

John Hutton Corp., d/b/a KUMU Radio AM/FM and American Federation of Television and Radio Artists, AFL-CIO. Cases 37-CA-846 and 37-CA-851

August 28, 1973 DECISION AND ORDER

BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 16, 1973, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.

We agree with the Administrative Law Judge that the Respondent discharged Tom Carroll in violation of Section 8(a)(3) of the Act and, while we agree that Respondent's unilateral changes in the work schedule were unlawful, we only find that such conduct violated Section 8(a)(1) of the Act.' However, we do not agree with the Administrative Law Judge that the Respondent unlawfully interrogated Robert A. Hite and that it constructively discharged him in violation of the Act.

  1. The Administrative Law Judge found that the Respondent's president, John Weiser, Jr., coercively interrogated Hite, a regular part-time announcer, on two occasions concerning his union adherence and that of other employees, in violation of Section 8(a)(1). The record discloses two luncheon meetings between Weiser and Hite at which the Union was discussed. One was before the election of April 24, 1972, when Weiser listed the names of employees he thought would vote for or against the Union and expressed the opinion that the Union would not win.

    The other meeting was on May 20, after the election (which the Union won by a 9 to 5 vote), when Weiser voiced his disappointment that the Union had been selected and again made a list of employees and how he thought each voted. Hite was listed as having voted against the Union.2

    1 We are not holding Respondent in violation of Sec. 8(a)(5) as the Administrative Law Judge did, because the General Counsel did not allege an 8(a)(5) violation at the hearing and, since the issuance of the Administrative Law Judge 's Decision, has advised all the parties that he is not seeking an 8(a)(5) finding. See Spruce Up Corporation, 194 NLRB 841 , fn. 1 (1972).

    2 It also appears that, after the election, Hite told Weiser that, being a With respect to the meeting before the election, the Administrative Law Judge concluded that it took place on or about April 20, 1972; but there is no record evidence to support this date. Hite's testimony placed the meeting in March, outside the 10(b) period herein, as does the General Counsel in his brief to the Administrative Law Judge. Indeed, at the hearing, the General Counsel stated that this particular incident was being introduced as background evidence and not for the purpose of proving a violation of Section 8(a)(1). Regarding the postelection meeting in May, it does not appear to us that Weiser actually interrogated Hite on that occasion or otherwise sought to elicit information about union adherents, and the finding of unlawful interrogation must therefore be rejected.

  2. Contrary to the Administrative Law Judge, we find that Hite voluntarily resigned on October 11, 1972, and that he was not constructively discharged in violation of Section 8(a)(3) of the Act. Hite was a part-time announcer who worked weekdays from 6 to 9 p.m. During bargaining negotiations between the Union and the Respondent, the Union, in July, proposed a change in the work schedule which would require all full-time announcers to work weekdays and all part-timers to work only on weekends. This proposal appealed to Respondent, which had been considering such a change prior to the negotiations, for Respondent's experience showed that its part-time employees were absent more often than the full-time employees; that it was easier to obtain replacements for absentees to work on weekend than on weekdays;

    and that restricting part-timers to weekends facilitated the achievement of a more consistent presentation of voices during weekday programming.

    During the first week in October, Colin Sharpe,

    Respondent's program director, prepared a rough draft of a new work schedule which assigned the fulltime announcers to weekday work and the part-timers to Saturdays and Sundays. Sharpe offered Hite, one of the most senior employees, a choice of hours for weekend work. Hite said he would think it over. On October 11, Hite informed Sharpe that he would not work weekends for 'personal' reasons' and he resigned. Sharpe and Weiser expressed regret, but Hite persisted in this refusal to work. On October 25 Hite called to report a change in mind, but a replacement had been hired by then for weekend work and there was no other vacancy.

    member of the Union's negotiating committee, he would be honorbound to management and the Union to make sure that everything would be fair and impartial. Hite considered his relationship with Weiser to be 'very definitely' friendly and testified, concerning an earlier petition filed by the Union in 1971, that he was instrumental in arranging for that petition to be withdrawn and that he told this to Weiser. He also testified that Weiser confided in him matters that were confidential.

    Other testimony describes the given reason as being social obligations.

    213 NLRB No. 11

    Although, as we have found, the Respondent acted prematurely and unilaterally in effecting the change in the work schedule, we do not agree with the Administrative Law Judge that 'Hite was set up so that he would be induced to resign.' The union bargaining committee, on which Hite sat, itself proposed the changeover. Apparently, the inability or unwillingness of Hite to work weekends was not a foregone conclusion.4 The Respondent had long favored the idea for business reasons. In addition, there is a lack of evidence manifesting any animus on the part of the Respondent against Hite. He was not thought by Respondent to be a union adherent. Indeed, following the election, Weiser counted him as one of those who had voted against the Union and Hite assured Weiser of fair treatment at the bargaining table as a member of the negotiating committee. When the new work schedule was prepared, Hite was offered a choice of weekend hours. In all these circumstances, and upon the entire record, we are not satisfied that the Administrative Law Judge's finding of an unlawful 'constructive discharge' is supported by a preponderance of the evidence.

  3. In addition to the recommendations of the Administrative Law Judge for remedying the unfair labor practices committed by Respondent which we have adopted, we deem it appropriate to order Respondent to reinstate, upon request, the work schedule of employees in the bargaining unit as it existed prior to the unilateral changes made in October 1972.

    ORDER

    Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, John Hutton Corp., d/b/a KUMU Radio AM/FM, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall:

  4. Cease and desist from:

    (a) Discouraging membership in, and concerted activities on behalf of, American Federation of Television and Radio Artists, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment.

    (b) Unilaterally instituting changes in work schedules or any other term or condition of employment.

    (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act.

  5. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

    (a) Offer to Thomas H. Carroll immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole, as set forth in the section of the Administrative Law Judge's Decision entitled 'The Remedy,' for any loss of earnings suffered as a result of the discrimination against him.

    (b) Upon request, reinstate the work schedule as it existed prior to the unilateral changes therein made in October 1972.

    (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.

    (d) Post at its station in Honolulu, Hawaii, copies of the attached notice marked 'Appendix.' 5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative, of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.

    (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.

    IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein.

    As already indicated, the record discloses no compelling reason which precluded Hite from weekend work. Indeed, he had worked some weekends for Respondent and, soon after he...

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