Hearst Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1968

169 N.L.R.B. 699 (N.L.R.B. 1968)

RADIO STATION WISN
Radio Station WISN , Division of Hearst Corporation
and American Federation of Television and Radio
Artists, Milwaukee Local affiliated with American
Federation of Television and Radio Artists,
AFL-CIO. Case 30-CA-612
February 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH, FANNING, AND
BROWN
On November 20, 1967, Trial Examiner Samuel
M. Singer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices as alleged in the
complaint and recommended that such allegations
be dismissed. Thereafter, the Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed a
brief in answer to the exceptions, cross-exceptions
to the Trial Examiner's Decision, and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs of the parties, and the entire record in the
case, and hereby adopts the findings,I conclusions,
and recommendations of the Trial Examiner, with
the modification noted below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Radio Station WISN,
Division of Hearst Corporation, Milwaukee,
Wisconsin, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
Chairman McCulloch would not find coercive News Director
Froelich's inquiry of employees Phillips and Wilson whether "either had
been approached by AFTRA and/or asked to join AFTRA" and
Froelich's statement to employee Mann that he knew the latter was "out
to get us." Accordingly , he dissents from so much of the Section 8(a)(1)
finding as is based on these incidents.
699
2 We deem it unnecessary to pass upon the Trial Examiner' s ruling as to
Mann's unit status at the time he was interrogated by Respondent's
General Manager Schneider and asked to give up his union card , as Mann
was an employee engaged in union activity and Schneiders conduct vio-
lated Section 8(a)(1) of the Act.
TRIAL EXAMINER'S DECISION
SAMUEL SINGER, Trial Examiner: This proceeding was
heard before me in Milwaukee, Wisconsin, on September
21, pursuant to a charge filed on July 3 and complaint is-
sued on August 10, 1967.1 The issues litigated were
whether Respondent violated Section 8(a)(1) of the Act
by engaging in acts of interference, restraint, and coercion
(including interrogation and threats); and whether it vio-
lated Section 8(a)(3) and (1) by discriminatorily discharg-
ing and failing or refusing to reinstate an employee on ac-
count of his union sympathies and in order to discourage
union membership.
All parties were represented by counsel and were af-
forded full opportunity to be heard and adduce relevant
evidence. Respondent did not call any witnesses but
cross-examined witnesses called by the General Counsel.
All parties waived oral argument at the conclusion of the
case. Briefs were received from Respondent and General
Counsel.
Upon the entire record, the briefs, and from my obser-
vation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION
INVOLVED
Respondent, a Delaware corporation, maintains its
radio station and office in Milwaukee, Wisconsin, where
it is engaged in radio broadcasting. During the past year,
a representative period, its gross sales exceeded
$100,000. During the same period, it performed services
valued in excess of $50,000 for customers located outside
Wisconsin. I find that at all material times Respondent
has been an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Charging Party, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background; Revival of Organizational Activity at
the Studio
The Union was certified as bargaining agent for
Respondent's staff radio announcers in March 1950. The
last contract, covering July 1959 to June 1961, was ex-
tended under its automatic renewal clause through June
1962. Thereafter, the parties did not attempt to negotiate
a new contract until 1965, when negotiations failed to
produce agreement.2 On April 6, 1967, the Union again
Unless otherwise noted, all dates herein refer to the year 1967.
A "difference of opinion" existed as to whether the contract was auto-
matically renewed and in effect from year to year in 1963-1965, the
Union contending that it had and Respondent that it had not. In any event,
in April 1965 Respondent served formal written "notice of termination of
all collective-bargaining agreements."
169 NLRB No. 97
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initiated contract negotiations; the parties then met on six
or seven occasions , but were unable to reach agreement.
At the outset of these latest negotiations, a dispute
developed as to whether the bargaining unit covered
Respondent 's newsmen as well as announcers 3 the
Union claiming that newsmen were covered and Re-
spondent that they were not. Acceding to Respondent's
request that the matter be resolved by a Board election,
the Union on July 26 filed a petition for an election
among the newsmen (Case 30-RC-685). The Union won
the ensuing August 28 election by a 4 to 0 vote, and on
September 6 was certified as the newsmen's bargaining
representative.
The proceeding here deals with alleged Company inter-
ference, restraint, and coercion with Union activity
among Respondent 's announcers and newsmen , revived
in the fall of 1966. Around October or November 1966,
employees Sweet and Fontaine told employee Mann, at
that time a Union board member (and now Union vice
president), that they wished to join the Union. Mann sup-
plied them with membership applications but "nothing
. happened" until March 1967 when Sweet, Fontaine,
and a third employee (Welch) requested Mann to arrange
a meeting with Harry Halloway, the Union's executive
secretary and attorney. At a meeting in the last week of
March, attended by six employees (three announcers and
three newsmen), Halloway discussed the advantages and
disadvantages of unionization and answered individual
employee inquiries. Also considered was "what could
possibly happen to [the men] if the company found out
[they] had joined the union." At two later meetings in
April (attended by seven employees), the men discussed
"the possibilities of a union contract" and the kind of con-
tract they wanted. By the end of April or beginning of
May most of the employees had signed the Union cards
distributed to them at the studios.
B. Interference, Restraint , and Coercion
1. The evidence
In the meantime , around April 7, General Manager
Schneider questioned employee Mann in his office about
the "morale " at the studio . According to Mann 's uncon-
tradicted testimony-
Mr. Schneider called me in and asked me first
about the morale of the -some of the employees at
the station at the Radio Center. That it had been
discussed there earlier that the morale was pretty
low, for some unknown factors, and that he wanted
my opinion if they were improving . And I said, to the
best of my knowledge they were.
He then asked me if I wanted to give up my union
card , and I said I hadn't thought about it. And he re-
peated again that he felt that all employees could bar-
gain individually on their own merit, that they did not
need a labor organization to bargain for them. He
said that he felt that a union contract would be, to
some employees , a false sense of security. I agreed
8 Respondent employs approximately five announcers and four
newsmen.
4 Mann also testified , without contradiction, on his preemployment in-
terview with Schneider and Company News Director Froehlich in Janua-
ry 1966 , in which Schneider had asked him whether he was a member of
the Union. When Mann stated he was, Schneider asked "why ," to which'
Mann answered that his last place of employment "was a closed union sta-
with him, to a point, I said it's for my own reasons, I
thought that I wanted a contract only for better
working conditions and higher salary.
Mann further testified that Schneider said he "had
nothing against the union," but that his family "never had
anything to do with a union." When Mann raised the sub-
ject of a wage raise, Schneider indicated that the Com-
pany "couldn't afford it at the time."4
The parties stipulated that during the week of April 10
or 17, while News Director Froehlich was in the
newsroom talking on the telephone, he interrupted his
conversation and called across the room to newsmen
Phillips and Wilson and inquired "if either had been ap-
proached by AFTRA and/or asked to join AFTRA."
Both replied that they had been approached by AFTRA.
Froehlich then "spoke into the telephone and said that he
had two men in the newsroom who had."
On May 3, Respondent (through Schneider) for the
first time posted in its studio a no-solicitation rule. This
rule read:
While I am not concerned whether people belong to
the Eagles, Elks, V.F.W., a union or any other or-
ganization, such organizational solicitation must not
take place during working hours. Of course, em-
ployees off duty or on break time can carry on these
activities with others who are off duty or on break
time. The important thing is that there be no distrac-
tion to those who are on duty.
Employees had previously been permitted to solicit for
charitable causes and for gifts to employees leaving em-
ployment.
Around May 4, News Director Froehlich directed em-
ployee Mann to see him. When Mann came to the studio
in his Company-owned car, Froehlich got in the car and,
said he had "something very important to talk" about, ex-
plaining that "he had information to believe [Mann] was
seeing a member of the opposite sex at the station when
[he] was on duty at night." Mann admitted that a woman
had visited him at the studio, but identified her as his
sister-in-law seeking assistance in a pending divorce suit.
Mann also conceded that he had used "poor judgment,"
promising that it would not happen again. Froehlich "was
happy with ... [Mann's] explanation," but said that if
Mann's explanation "proved" untrue, his conduct "would
be cause for dismissal." Mann "agreed with him." Just
before leaving, however, Froehlich said, "I know you're
out to get us." When Mann remarked "I don't know what
you mean," Froehlich said "I don't think I have to ex-
plain it." Mann said, "The only thing I want done is better
working conditions and more money, higher salary."
On May 11, Mann was called to General Manager
Schneider's office where Company Attorney Mallien "re-
peated" Froehlich's May 4 warning about " seeing a
member of the opposite sex at the station." Mann gave
Mallien "the same explanation that [he] told Mr.
Froehlich, that it was a member of my family, a relative,
a sister-in-law, who wanted [his] help" in a divorce
proceeding and Schneider again expressed satisfaction
with the "explanation." Mallien remarked that "the sta-
lion." Schneider remarked that the Company's station (WISN) was not a
"union station ," and that he "felt that employees could bargain in-
dividually on their own merit." He also asked if Mann "had ever thought
of giving up [his] card." General Counsel relies on the January 1966 in-
cident solely for background purposes , the incident having taken place
outside the statutory 6-month period.
RADIO STATION WISN
tion was in the public eye, public image, and something
about if information would prove to be otherwise that it
would be cause for a dismissal." Mann "agreed with"
Mallien.
The record establishes that in the past Respondent had
voiced no objections to studio visits during all hours (in-
cluding evenings) by friends, relatives, and members of
the public. Two days before the hearing, Respondent
posted a "notice" barring visits by friends and relatives
during other than "normal working office hours," 9 a.m.
to 5 p.m.
2. Conclusions
I find that Respondent interfered with, restrained, and
coerced its employees in the exercise of their self-or-
ganizational rights, in violation of Section 8(a)(1) of the
Act, by and through the following conduct of its super-
visors:
(a) General Manager Schneider's April 7 request of
employee Mann (while discussing employee morale at the
studio during the revived Union campaign), "to give up"
his Union card; and his accompanying statements that the
employees did not need a union to bargain for them, that
they "could bargain individually on their own merit," and
that a Union contract would give them "a false sense of
security." Schneider's remarks constituted a restrainful
appeal to Mann to repudiate and withdraw his existing
Union membership which, if taken by the Union's leading
advocate (Mann), would have had a telling effect upon his
co-unionists. His remarks also constituted an unlawful
appeal for individual and direct bargaining at a time when
the Union was still the statutory representative of
Respondent's announcers (including Mann) and, indeed,
when the Union was about to embark upon negotiations
on a new contract.5 The unmistakable purpose and effect
of Schneider's statements were to undermine the Union
and to impair its effectiveness as bargaining agent. Con-
trary to Respondent's contention (br. p. 8), its general
manager's remarks were not mere expressions "of his
own personal philosophy concerning the advantages or
disadvantages of belonging to a union." To begin with,
Schneider did not characterize his remarks as personal
opinion. Furthermore, even if he did, his words would not
have been "sufficiently magic to dispel in the minds of the
employees the conviction that it was the representative of
their employer to whom they were listening." N.L.R.B.
v. Geigy Co., Inc., 211 F.2d 553, 557 (C.A. 9), enfg. 99
NLRB 822, 827-828. See also N.L.R.B. v. Globe Wire-
less, Ltd., 193 F.2d 748, 751,752 (C.A. 9).
(b) News Director Froehlich's May 4 statement to
Mann (while questioning him concerning his meeting a
woman at the studio during working hours), that
Froehlich knew that Mann was "out to get us." As
Respondent concedes in its brief (p. 16), Mann "was
known to be a union leader and union Board member, was
known to be involved in encouraging the other newsmen
to become members of AFTRA." Within the total con-
5 As previously noted, the Union attempted to initiate negotiations in
early April. Respondent did not dispute its representative status and, in-
deed, met with it to bargain on a new contract
6 While General Counsel suggests that, particularly in the light of past
uninhibited solicitation and studio visiting, Respondent 's May 3 promul-
gation of a no-solicitation rule and its posting (2 days before the hearing),
of a notice restricting studio visits , could be construed as attempts to im-
pede and discourage union activity, he does not contend that either action
was a violation.
701
text of the record, Froehlich's statement that Mann was
out "to get" Respondent assumes the character of an em-
ployer conveying to an employee the message that he
equates union activity with employee disaffection or
disloyalty toward his employer- notwithstanding the fact
that as a matter of law it is no more than a protected statu-
tory right.
(c) News Director Froehlich's April inquiry of
newsmen Phillips and Wilson whether they had been ap-
proached by the Union and/or asked to join it. (As noted,
Froehlich relayed the employees' affirmative response to
the person he spoke with on the telephone.) Contrary to
Respondent 's contention (br. p. 10), the inquiry did not
constitute "isolated and incidental questioning" when
viewed in the context of Respondent's other coercive
conduct, the circumstance that it was directed to two of
the only four newsmen in the unit, the fact that there ap-
pears no explanation or justification for the questioning,
and the further fact that it was unaccompanied by as-
surances against reprisals for union activity.
I find that Respondent did not violate Section 8(a)(1) of
the Act by News Director Froehlich's May questioning
of employee Mann concerning his meeting a woman in
the studio during working hours and his and Company
Attorney Mallien's threat to discharge him if his explana-
tion (that the woman was his sister-in-law merely seeking
assistance in a divorce proceeding), proved untrue. Mann
conceded that he used "poor judgment," that he promised
the incident would not recur, and that he "agreed" that he
would be subject to discharge if his story proved false.
Under the circumstances, it is clear that the threat to
discharge Mann was predicated on employee conduct un-
related to union activity.6
C. The Discharge of Roger Sweet
1. Sweet's employment and Union activities
Sweet worked for Respondent as a staff announcer
from September 1963 until his discharge on June 29,
1967. His duties included selecting, placing, and in-
troducing records on the air; reading live commercials
and weather reports; and announcing station breaks. His
employment until August 1966 had been uneventful.
About 4 to 6 months before nis discharge, General
Manager Schneider twice phoned in from his home that
records Sweet had selected failed to "fit in with [the
studio's] image ... of playing beautiful music." On the
other hand, Sweet also received compliments. Thus, in
the late fall of 1965 or early in 1966 Schneider phoned in
to commend Sweet on his ingenuity in getting the station
engineer to "fade" out the noisy portion of a record. In
the spring of 1965, the then general manager (Butler)
wrote Sweet a memorandum complimenting him on his
"alertness in correcting an obvious mistake" in a com-
mercial.7 In May 1967, Program Director Lambert re-
marked that a fishing show "aired" and directed by Sweet
"sounded just great" and that he (Lambert) "was real
pleased with it."
7 Sweet changed the advertising copy from "Firestone Stores will
replace front wheel beanngs for $1.00" to "Firestone would repack front
wheel bearings for $1.00. " [Emphasis supplied] Sweet made the change
without first consultmg any superior , wrote it up on "a discrepancy sheet"
(a sheet where errors and unusual matters are recorded for transmittal to
the general manager), and advised the next announcer of the corrected
copy. In his memorandum commending Sweet's action, Butler asked
Sweet to "continue [his] good work."
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sweet signed a Union card in the first week of April.
As previously noted, he was one of the employees who
had contacted Mann (a Union board member), about join-
ing the Union in the fall of 1966 and again in March 1967.
He attended all the 1967 Union meetings at which the
men discussed organizational matters and the kind of con-
tract they wanted to propose to Respondent. He and
Mann were the only two of Respondent's nine announ-
cers and newsmen who (along with Union Representative
Halloway), attended a 1967 bargaining session on behalf
of the Union. At the June 5 bargaining meeting, Sweet ar-
gued for a Union proposal that employees working more
than 20 hours a week be classified and paid as full-time
employees, even if hired only as part-timers. When
Respondent (through Schneider) expressed objection,
Sweet "brought up the situation" of announcer Fontaine
who was still classified as a part-timer after working 40
hours a week for 4 months. Schneider answered that the
4 months were Fontaine's "probationary period."
2. Respondent's asserted reasons for the discharge
Respondent relies on the following three major in-
cidents to justify Sweet's June 29 discharge: (a) Sweet
had reported late for work on a Sunday morning in Au-
gust 1966; (b) Sweet had changed a commercial on June
10 without obtaining prior approval from a supervisor;
and (c) Sweet had used "profanity" over the air on June
19.
(a) Sweet's work schedule in August 1966 called for
his being on duty on Sunday mornings a half hour before
the station went on the air at 7 a.m. On a Sunday in that
month, Sweet overslept and reported to work at 7:30 in-
stead of 6:30 a.m., but he gave 6:30 as his starting time on
the timecard. When called to the office to explain,
General Manager Schneider warned him for "falsifying"
his timecard and asked him how many times in the past
year he had been late on Sundays. Sweet said he
"truthfully couldn't answer." Schneider remarked that he
"was beginning to wonder" about Sweet's attitude. Sweet
testified that he never thereafter came late for work or
received complaints regarding his attendance.
(b) On Saturday, June 10, Sweet received a telephone
call from a client, Jack Evans of Colorama Carpets,
requesting him to change an existing commercial to in-
dicate that Colorama's "big sale" was starting on the next
day, Sunday, June 11. Sweet said he would insert' the
requested information, but that he "would have to delete
something" from the original commercial in order to
come up with the 30 seconds of commercial time the
client had purchased. Sweet then changed the Saturday
commercial to read, "Sale starts tomorrow" and the Sun-
day commercial to read, "Sale starts today." He wrote up
a discrepancy sheet showing the change and passed on
the corrected copy to the next announcer. There is no
evidence of any dissatisfaction on the part of client or
Respondent with the manner in which Sweet made the
change in the commercial; on the contrary, Sweet
testified that the client knew of and requested it.s
Furthermore, there was no managerial official in the stu-
dio on Saturday, June 10, from whom Sweet could have
obtained advance approval. Finally, there is no evidence
that Sweet or any other announcer was ever advised of
any rule requiring such approval for a matter of this type.
As previously noted (footnote 7), Sweet had been com-
mended by management for his initiative in changing a
commercial on a prior occasion. And another announcer
(Mann) testified, without contradiction, that he had previ-
ously (in the spring of 1967) changed what appeared to be
an erroneous commercial without obtaining advance per-
mission from superiors.
(c) When Sweet returned from his vacation on June
19, he was assigned to another vacationing employee's
(Chuck Reynold's) shift to cover the 2 to 7 p.m. air
show.9 About 4 p.m., Program Director Lambert asked
him if he was familiar with the stock market and business
news show . Sweet replied he was "somewhat " familiar
with it.10 Lambert said that he would furnish Sweet with
all the material he needed to do the show after Lambert
finished the same show on FM, scheduled around 4:45
p.m. Around 5 p.m. (after Lambert finished his FM
show), Lambert told Sweet, "Here's the material you'll
need for the stock market and business show. All you'll
need is about three minutes of material, because of the
spot commercials in the show." Sweet gave the following
uncontroverted account of his broadcast which began at
6:10 p.m.
I had the format on my left and my material
directly in front of me and I was reading the material
as per the format. And then the format, it said, "in-
sert the commercial prior to the Milwaukee, reading
the Milwaukee stock market report." And I gave the
cue which was listed in the format, which is, "I'll
have the closing quotations on leading Milwaukee
stocks in 60 seconds," which is the cue for the en-
gineer to,play the commercial. And I looked up and
the engineer wasn't there, he came running around
the corner. He had been working on the FM
machine, which was part of his duties.... Then he
glanced at his log ... apparently, something was
wrong and I moved my copy to look at my log and
saw that the show was sustaining, or unsponsored,
and I hit the intercom button to talk to Dick [the
engineer] and I told Dick, "Oh, hell, it isn't spon-
sored," hit my mike button, went back on the air and
said- continued reading the show till the conclusion
of the show.
Shortly after the show, Sweet received a telephone call
from an unidentified individual who told him that "at
least, the announcer could apologize." When he asked
"for what and who," he was told "For swearing on the
air." At this point , Sweet realized that when he had
reached for the intercom to speak to the engineer he failed
to turn off his microphone and that his "Oh, hell" remark
was heard by the audience. He then told the caller that "if
the announcer had been aware that he had sworn on the
air he certainly would have apologized for it" and this
ended the conversation. Five minutes later another
listener called and said, "Did you get much heat yet?"
8 Sweet testified that, in response to a Schneider memorandum advising
that Sales Manager Gierhahn "had not been contacted " on the commer-
cial and that he (Schneider) "wanted to know how I had taken care of the
situation ," Sweet wrote Schneider an answering memorandum explaining
the changes in the commercial. Respondent's counsel stated at the hearing
that these memoranda could not be located in Company files Although
counsel stated that a memorandum by Gierhahn on the incident was in the
files, Respondent failed to produce such memorandum.
9 Sweet had normally worked on the night shift (4.45 p.m.-12.45 a.m.)
before he left for vacation on June 12.
1 0 Sweet had done the show "maybe five times" during his 4 years with
Respondent and each time the show had been sponsored
RADIO STATION WISN 703
When Sweet replied "No," the caller laughed and said,
"Well, don't let it bother you too much.... those things
happen.... I thought it was funnier than hell." Sweet
remained on the air until 7 p.m. without receiving another
call.
When Lambert arrived at the studio on the next day
(June 20), Sweet related what he said "accidentally" on
the air on the previous evening. Sweet told Lambert, "I
was just shook up about it ... that this was the first time
that it had ever happened to me, and ... was so sorry that
it did happen ... that it was just an accident and I really
regretted it." Lambert told him "not to worry about it too
much, not to let it work on [his] mind, because this kind
of matter can happen, can work on your mind." In reply
to his question whether he should write up a discrepancy
sheet on the incident, Lambert said "yes, so that the
downtown office would have an answer in case of any let-
ters regarding this matter."
Sweet heard nothing further about the incident until
June 29, when Lambert told him he "had been in-
structed" to -hand him the following letter signed by
General Manager Schneider:
In recent weeks you have done things, any one of
which could have resulted in your dismissal. I have
somehow kept putting off making a decision. Perhaps
I was subconsciously hoping that you would im-
prove. You have not. Your latest episode on June 19
(forgetting that the mike was "live" when you made
your "Oh, hell . . ." statement) has demonstrated to
me that the moment of truth is at hand. Roger, you
are being discharged.
When employees quit we generally expect them to
give us at least two weeks notice that they are leav-
ing. In, fairness, I suppose we should give similar
consideration to the employees who are discharged.
Therefore, please consider this letter as notice that
you will no longer be employed by WISN after July
15, 1967.
Sweet read the letter and asked Lambert "to explain
just what it was for." According to Sweet's uncon-
tradicted testimony-
Tom (Lambert] said, "Well it all dates back to when
you were called in Herm's [Schneider's] office for
your being late:" And I said, "That was last August
[ 1966]." And he said he didn't remember the actual
date.
And I asked him if I had shirked any of my duties,
or let someone else carry my load, or failed to
prepare a good show when I was on the air, and he
said, "No," he says, "I feel you have been working
quite diligently, especially since you were called into
Herm's', office."
He said, in regards to this matter of saying, "Oh,
hell," on the air, all we can do is look at the ratings
and speculate that the damage that has been done
perhaps would be minor, but this is [not] a common,
everyday usage of English language on radio, and, of
course,, it's not, here at WISN. He told me that I was
free to', discuss this matter with anyone I wanted.
However, he told me that, as a friend, not as a pro-
gram director, don't mention anything about it on the
air. And I told him that was the most uncalled for
statement I had ever heard.
When Sweet asked Lambert if he was being discharged
for "any other reason," Lambert mentioned Sweet's June
10 change of a commercial (supra). When Sweet re-
marked, "So what," Lambert said that "nobody had
authority to change copy without approval of the sales
manager." Indicating he was unaware of any such
requirement, Sweet said he would not have changed it
had he known of it. In the course of the interview, Lam-
bert told Sweet that he "would help [him] try to find
another job," although he did not then know of any
openings.'1
3. Conclusions
This case presents the familiar situation in which the
trier of fact is required to draw inferences from evidence
largely circumstantial, since direct evidence of a purpose
to discriminate is rarely obtainable. As stated in N.L.R.B.
v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8),
"It would indeed be the unusual case in which the link
between the discharge and the union activity could be
supplied exclusively by direct evidence. Intent is subjec-
tive and in many cases the discrimination can be proven
only by the use of circumstantial evidence. Furthermore,
in analyzing the evidence, circumstantial or direct, the
Board is free to draw any reasonable inferences." See
also Hartsell Mills Company v. N.L.R.B., 111 F.2d 291,
293 (C.A. 4); Shattuck Denn Mining Corporation v.
N.L.R.B., 362 F.2d 466,470 (C.A. 9).
Based on the entire record'12 I find that the evidence
amply supports the inference that Sweet's June 29
discharge was, as alleged in the complaint, motivated by
discriminatory considerations and not by the reasons ad-
vanced by Respondent. In reaching this conclusion, I rely
particularly on the following factors:
(a) Respondent's expressed distaste for the revived
1967 Union activity as evidenced by General Manager
Schneider's request to Mann to "give up" his Union card
and repudiate the Union, his attempt to induce bargaining
on an individual personal basis rather than collectively
through the Union, News Manager Froehlich's statement
that he knew Mann was out "to get" Respondent, and
Froehlich's interrogation of employees Phillips and Wil-
son concerning their Union sympathies.
(b) Sweet's identification with the Union cause as
evidenced by his role in attempting to reactivate the
Union (in the fall of 1966 and spring of 1967), and in ad-
vancing the Union's cause at the June 5 bargaining meet-
ing with Respondent.
(c) Respondent's awareness of Sweet's Union sym-
pathies and activities since at least the June 5 bargaining
meeting.
(d) The insubstantiality and inadequacy of the reasons
advanced by Respondent for the discharge -particularly
since no responsible official of Respondent took the wit-
ness stand to swear to and subject himself to cross-ex-
amination upon any of them. It is difficult to believe that
Sweet's tardiness and timecard "falsification" in August
1966, almost a year prior to the discharge, was an im-
" Sweet is presently employed as "program director" for another radio
station
12 As noted at the outset of this Decision, Respondent did not present
any evidence at the conclusion of General Counsel's case Thus, the
evidence adduced as to the alleged discriminatory discharge of Sweet (as
well as concerning the alleged 8(a)(1) violations ), is uncontradicted
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pelling motive behind the decision to discharge , particu-
larly in view of Sweet's subsequent satisfactory at-
tendance. Respondent's further contention that Sweet's
June 10 changing of a commercial without prior approval
of a supervisor entered into the discharge decision, is
nothing but an afterthought, in view of the lack of
evidence as to existence of any rule against such changes,
Respondent's past practice of condoning changes, the
commendation given Sweet for previously making a
similar change on his own initiative, and the affirmative
evidence establishing that the customer requested the
June 10 change and, furthermore, that no managerial offi-
cial was present to give approval to the customer's
requested change; Sweet's action appears nothing more
than a minor, perfunctory adjustment in satisfactory solu-
tion of an unanticipated situation and one with which
management would in all likelihood have complied
without question on customer request. Finally, the most
recent incident relied on by Respondent- Sweet's June
19 "Oh, hell" remark on the air when he discovered that
the stock market and business show was unspon-
sored- appears less than the alleged "monumental error
resulting in the use of profanity on the air" pictured by
Respondent (br. pp. 21-22). The record shows that the
error was wholly inadvertent and accidental, uttered in
the good-faith belief that Sweet was off the air; and that
Respondent itself so regarded it, since Sweet's superior
(Lambert) specifically told Sweet (when the latter
apologized for the incident) "not to worry about it too
much." Furthermore, there is no evidence of any signifi-
cant adverse audience reaction to Sweet's remarks;
neither Lambert nor any other managerial official raised
the matter in the next 9 days-until the discharge.
Moreover, it is to be noted that the program in which the
claimed objectionable word was uttered -a stock market
and business report - was addressed to adults to whom
the expression "hell" hardly appeared as offensive as
Respondent attempts to portray.
Under all the circumstances it would seem that Sweet's
behavior "apparently became intolerable only"
(N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980,983
(C.A. 3)), when the need for a defense appeared. I find
and conclude that Respondent's claimed reasons for the
discharge are pretextuous, designed to conceal its true
motive for the discharge, namely, to rid itself of a Union
adherent in order to discourage revival of Union activity
at the studio.
This is not to say that the record is devoid of evidence
tending to negate discrimination. Thus, as Respondent
stresses, it did retain in its employ other Union em-
ployees, including the Union's most ardent member,
Mann. And, so far as the record shows, it had for a long
time (1950-1962) maintained amicable contractual rela-
tions with the Union. Nor is there evidence of any prior
unfair labor practice proceeding against it. However, giv-
ing full weight to these countervailing factors, I find that
they are outweighed by factors supporting a finding of
discriminatory motivation. Cf. General Electric Com-
pany, 155 NLRB 208, 221-222; Alton Box Board Com-
pany, 155 NLRB 1025, 1039; General Tire & Rubber
Company, 149 NLRB 474, 480-481.13
I conclude that General Counsel met the burden of
establishing that Sweet was discriminatorily discharged
on June 29 because of his Union sympathies, in order to
discourage Union activity, in violation of Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
their Union sympathies , by requesting an employee to
withdraw from the Union , by inducing dealings and bar-
gaining on an individual personal basis rather than collec-
tively through the Union , at the time the Union was the
exclusive bargaining representative , Respondent has in-
terfered with, restrained , and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
2. By discharging Roger Sweet on June 29, 1967, and
thereafter failing or refusing to reinstate him, in order to
discourage Union activities , Respondent has dis-
criminated in regard to hire and tenure of his employ-
ment, in violation of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
The recommended order will contain the conventional
provisions entered in cases involving findings of inter-
ference, restraint, and coercion, and discriminatory
discharges, in violation of Section 8(a)(1) and (3) of the
Act. These will require Respondent to cease and desist
from the unfair labor practices found, and to offer rein-
statement with backpay to the employee discriminated
against. In accordance with usual requirements, reinstate-
ment shall be to the discriminatee's former or substan-
tially equivalent position, without prejudice to his seniori-
ty or other rights or privileges. The discriminatee shall be
made whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment
to him of a sum of money equal to that which he normally
would have earned from his date of discharge (June 29,
1967), to the date of offer of reinstatement, less net
earnings during such period, to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
I shall also recommend, in view of the nature of the un-
fair labor practices Respondent has engaged in, that it
cease and desist from infringing in any manner upon the
rights guaranteed employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that Respondent, Radio Station WISN, Division of
Hearst Corporation,, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
13 Cf N.L.R.B v. Puerto Rico Telephone Company, 357 F.2d 919,920
(C.A 1), where the court noted . "In so concluding [that there is a dis-
criminatory discharge], we do not disregard the evidence of generally am-
icable relationships between union and company , nor the fact that other
union activists were retained by the company .... A violation of the Act
does not need to be wholesale to be a violation. [Cases cited .]" The "fact
that respondent retained some union employees does not exculpate him
from the charge of discrimination as to those discharged ." N.L R.B. v.
W.C. Nabors, 196 F.2d 272, 276 (C.A. 5).
RADIO STATION WISN
(a) Coercively questioning employees concerning
their Union sympathies and activities; requesting em-
ployees to withdraw from union affiliation and activity;
inducing employees to bargain individually rather than
through their bargaining representative; and in any other
manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights under Section 7 of
the Act.
(b) Discouraging membership and activities in Amer-
ican Federation of Television and Radio Artists, Milwau-
' kee Local affiliated with American Federation of Televi-
sion and Radio Artists, AFL-CIO, by discriminating in
regard to the hire and tenure of employment of Respond-
ent's employees or by discriminating in any other
manner in regard to any term or condition of their em-
ployment, in order to discourage membership or activities
therein.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Roger Sweet immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay he
may have suffered as a result of his discharge, in the
manner set forth in "The Remedy" section herein.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or 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 studios in Milwaukee, Wisconsin, copies
of the attached notice marked "Appendix." 14 Copies of
said notice, on forms provided by the Regional Director
for Region 30, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for at least 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that such notices are not al-
tered, defaced, or covered by any other material.
(e) Notify said Regional Director in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply herewith. 15
14 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
705
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT coercively question you concerning
your Union sympathies and activities; nor shall we
request any of you to withdraw from your Union; nor
shall we attempt to induce you to deal with us in-
dividually rather than through your bargaining
representative.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights
under the National Labor Relations Act.
WE WILL NOT discourage membership in, or activi-
ties on behalf of, American Federation of Television
and Radio Artists, Milwaukee Local affiliated with
American Federation of Television and Radio
Artists, AFL-CIO, by discriminating against you
with regard to your hire or tenure of employement or
any term or condition of employment.
WE WILL offer Roger Sweet immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of
the discrimination against him.
All of you are free to become, remain, or refrain from
becoming or remaining , members of American Federa-
tion of Television and Radio Artists, Milwaukee Local af-
filiated with American Federation of Television and
Radio Artists, AFL-CIO, or any other labor Organiza-
tion.
Dated By
RADIO STATION WISN,
DIVISION OF HEARST
CORPORATION
(Employer)
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Second Floor
Commerce Building, 744 North Fourth Street, Milwau-
kee, Wisconsin 53203, Telephone 272-3861.