KNTV, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1995

319 N.L.R.B. 447 (N.L.R.B. 1995)

447
319 NLRB No. 66
KNTV, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
KNTV, Inc. and American Federation of Television
and Radio Artists, AFL–CIO. Case 32–CA–
12732
October 30, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS
BROWNING, COHEN, AND TRUESDALE
On July 7, 1993, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed exceptions, a supporting brief,
and an answering brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order only to the extent consistent with
this Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act when its president, Park,
told employee Ken Wayne, ‘‘I hope you won’t con-
tinue to be an agitator or instigate others.’’ The judge
found that Park’s statement was unlawfully coercive
because it was made in response to Wayne’s protected
concerted attempts to have the Respondent discuss
wages and other working conditions with an employee
committee.
The Respondent excepts, arguing that it did not vio-
late Section 8(a)(1). It contends, initially, that Park’s
testimony should be credited instead of Wayne’s. Al-
ternatively, the Respondent argues that Wayne’s testi-
mony differs from that recited by the judge. Finally,
the Respondent asserts that, even crediting Wayne,
Park’s statement was neither coercive nor threatening.
We agree with the Respondent that the judge mis-
quoted the record. Wayne testified that Park told him,
‘‘[W]ell I hope you won’t continue to be an agitator
or antagonize the people in the newsroom.’’ Even cor-
recting this testimony, however, we adopt the judge’s
finding that the Respondent violated Section 8(a)(1).
Thus, this statement was made to Wayne by Park, the
Respondent’s highest ranking official. It was made
during a meeting, in Park’s office, that Wayne was re-
quired to attend alone despite his request that the Re-
spondent meet with the employee committee. Further,
Park’s statement was directed at Wayne’s protected at-
tempts to have the Respondent address employee pay
issues. In these circumstances, Park’s comments had a
chilling effect and interfered with Wayne’s exercise of
rights guaranteed by Section 7 of the Act. Maine Apple
Growers, 254 NLRB 501, 502 (1981).
2. The judge found, and we agree, that the General
Counsel failed to establish a prima facie case that
union activities were a motivating factor in the Re-
spondent’s discharge of Wayne. Accordingly, we adopt
the judge’s finding that Wayne’s discharge did not vio-
late Section 8(a)(3).
3. The judge additionally concluded that Wayne’s
termination did not violate Section 8(a)(1). In this re-
gard, the judge found that the evidence failed to estab-
lish that Wayne, a staff reporter, was engaged in pro-
tected concerted activity on August 26, 1992, when he
conditioned working as a substitute anchor on the Re-
spondent’s looking into the question of whether to pay
substitute anchors additional wages. Instead, the judge
concluded that: (1) Wayne and a fellow reporter did
not act in concert or discuss group action when dis-
cussing extra pay for substitute anchoring; (2) Wayne
did not indicate that he was acting on behalf of anyone
but himself when discussing the anchor-pay issue with
the Respondent; and (3) the Respondent never indi-
cated that it thought Wayne was acting concertedly.
The judge further found that the Respondent did not
condone Wayne’s August 26 conduct; instead, it dis-
charged him for the insubordinate act of conditioning
anchoring on favorable action on the anchor-pay issue.
The General Counsel excepts arguing, among other
things, that Wayne was engaged in concerted activity
when he asked the Respondent to look into the anchor-
pay issue raised by employee Robin Fladeboe and that
the Respondent knew of this concert. The General
Counsel additionally contends that Wayne did not con-
dition anchoring the news on the Respondent’s favor-
able action on the pay issue. Even assuming that
Wayne imposed this condition, the General Counsel ar-
gues that this was akin to a one-time refusal to work
mandatory overtime, which is protected. Sawyer of
Napa, 300 NLRB 131 (1990). See generally Mike
Yurosek & Son, 310 NLRB 831 (1993), enfd. 53 F.3d
261 (9th Cir. 1995)
The General Counsel further asserts that the Re-
spondent condoned Wayne’s conduct by not discharg-
ing him until August 28. The General Counsel also
contends that the Respondent seized on the events of
August 26 to discharge Wayne, whom it perceived as
an ‘‘agitator,’’ and that these events were merely used
as a pretext to mask the Respondent’s unlawful mo-
tive.
For the following reasons, we find merit to the Gen-
eral Counsel’s exceptions and conclude that Wayne’s
discharge violated Section 8(a)(1).
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 On his full-time hire, Wayne was required to sign a document
acknowledging that he was an ‘‘at-will employee’’ subject to dis-
charge, with or without cause.
3 All subsequent dates are in 1992 unless noted.
4 McElhatton did not testify and the judge inferred that his testi-
mony would have been adverse to the Respondent.
5 Wayne was the reporter representative on the committee. The
other two committee members represented the photographers, edi-
tors, producers, and writers.
A. Facts
The Respondent operates a television station in San
Jose, California. Beginning in July 1991, Ken Wayne
freelanced as a news reporter for the Respondent. In
November 1991, the Respondent hired Wayne as a
full-time staff reporter.2 Thereafter, in addition to re-
porting, Wayne worked as a backup news anchor ap-
proximately two dozen times, when regular anchors
were not able to work as scheduled. Wayne anchored
when requested to do so by the Respondent, and he
neither sought nor received additional compensation
for this work.
By all accounts, Wayne was a superior reporter. In
the summer of 1992,3 Wayne asked News Director
McElhatton for a raise, offering to do extra work to
justify it. McElhatton responded favorably, and said he
would check with the Respondent’s president, Park.
Subsequently, McElhatton told Wayne that Park would
not consider the raise request until Wayne’s next re-
view period, which was in November 1992.4
1. Events in July—early August
In July, Wayne and other newsroom employees ex-
changed complaints about wages and other working
conditions. Following these discussions, Wayne posted
a handwritten notice on the bulletin board announcing
a meeting of nonmanagement newsroom employees to
discuss their concerns. On July 22, Wayne conducted
an employee meeting in the Respondent’s conference
room; about 18 of the approximately 30 newsroom em-
ployees attended. At the meeting, employees discussed
their work concerns and possible options—including
union representation. The employees decided initially
that they would write to Park.
Wayne and two other employees drafted a letter to
Park stating in essence that it was the consensus of the
employees that they were underpaid when compared to
the Respondent’s profits and the high cost of living in
the area, and asking that the Respondent meet with
employees to discuss ‘‘fair and equitable pay and com-
pensation.’’ After employees approved the letter,
Wayne placed copies in their work mailboxes on July
23, and in the boxes of Park, McElhatton, and Robert
Munoz, the managing editor of the newsroom. Later
the same day, McElhatton told Wayne it was ‘‘an in-
teresting letter,’’ even though the letter did not name
Wayne or any other employee.
On July 24, McElhatton told Wayne that Park want-
ed to meet with him individually. When Wayne said
that he did not want to meet separately, but rather as
part of an employee group, McElhatton responded that
Park did not want to meet with the employees as a
group, but would meet individually with employees.
Following McElhatton’s request, Wayne conducted a
second employee meeting on July 27. At this meeting,
employees designated a three-person committee—
which included Wayne—to represent them in wage
discussions with Park.5 After the July 27 meeting, the
committee wrote to Park, identifying themselves by
name, and asking Park to meet with the committee to
discuss wages and other concerns and to respond to the
July 23 letter.
On July 28, McElhatton notified Wayne that Park
wanted to meet with him about the letter. When
Wayne said that he preferred that Park meet with the
committee, McElhatton stated that Wayne had no
choice; Park wanted to see him individually.
Wayne met with Park and McElhatton. In this meet-
ing, Park explained the Respondent’s wage structure
and compared Wayne’s wages to the area average.
Wayne said that he did not want to meet individually,
but wanted Park to meet with the committee. When
Park elicited Wayne’s feedback, Wayne said he felt
uncomfortable discussing compensation in the absence
of the committee. Park expressed disappointment that
Wayne would not discuss the pay issue, and concluded
the meeting by stating, ‘‘[W]ell I hope you won’t con-
tinue to be an agitator or antagonize the people in the
newsroom.’’
After meeting with Park, Wayne telephoned the
Union and arranged for an employee meeting on Au-
gust 5. Wayne distributed a notice of the meeting to
all employees. Approximately six to eight employees
attended this meeting, which was held off the Re-
spondent’s premises. Following the meeting, Wayne
distributed union literature in employee mailboxes.
2. Events in late August
a. Background
According to Wayne’s uncontradicted testimony,
when he was hired in the summer of 1991 as a free-
lance reporter, there was no job description for the po-
sition of reporter. When he was subsequently hired as
full-time reporter in November 1991, he told
McElhatton that he was interested in becoming a
weekend anchor. McElhatton told him that he would
have the opportunity to anchor. Wayne thereafter con-
tinually expressed to McElhatton his interest in becom-
ing an anchor, volunteering to fill any openings on the
anchor schedule.
Wayne eventually filled in as a substitute (or
‘‘backup’’) anchor when one of the regular anchors
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
449KNTV, INC.
6 Fladeboe previously had been a weekend anchor for the Re-
spondent.
7 Wayne testified that he left without commenting, because he was
exasperated that Munoz persisted in asking whether he was refusing
to anchor, when he was not.
According to Munoz, whom the judge discredited, Wayne repeat-
edly refused to anchor unless he was paid extra.
8 The judge interpreted McElhatton’s statement to mean that the
Respondent could not physically force reporters to substitute, and
not, as argued by the General Counsel, that the assignment was
purely voluntary.
was sick or on vacation, about two dozen times be-
tween October 1991 and his termination in late August
1992. Wayne and McElhatton had not discussed
whether Wayne would receive extra pay for doing
backup anchoring, and Wayne did not receive any such
pay. Also, while Wayne had never been told that he
would not be required to serve as a backup anchor, he
in any event never (prior to August 26) expressed any
reluctance to anchor when he was asked to do so. In-
deed, he testified that whenever he was asked to be a
backup anchor, he ‘‘always jump[ed] at the chance.’’
According to Wayne, on each occasion that he was
asked to substitute as a backup anchor, he had also
been out in the field reporting earlier in the day, ‘‘so
that by the end of the day when all that [reporting]
work is done, then you begin your new [anchoring]
task.’’ Wayne testified further that ‘‘I had always . . .
reported during the day and then anchored the news in
addition to that.’’
In this regard, Wayne’s supervisor, Managing Editor
Munoz, testified that all of the approximately five full-
time reporters have filled in as backup anchors. When
Munoz would approach reporters to be backup anchors
that night, they generally asked Munoz whether they
would be relieved of their reporting duties for the rest
of the day, and Munoz would do so in order to enable
them to substitute that night as backup anchors.
b. Events
On August 25, less than 3 weeks after the union
meeting, reporter Robin Fladeboe initiated a wage dis-
cussion with Wayne. Fladeboe told Wayne that he had
performed a lot of backup anchoring work, and felt he
should receive extra pay for the extra work.6 Fladeboe
said that when he had raised the issue, Managing Edi-
tor Roberto Munoz had not taken it seriously. Wayne
expressed interest, telling Fladeboe that he was curious
how the issue came out because it was a very reason-
able concern.
At the Respondent’s request, Fladeboe co-anchored
on August 25. On August 26, the Respondent needed
two substitute anchors for the evening news. That
morning, after filling one of the spots, Munoz chose
Wayne for the second because his workload that day
was lighter than that of other reporters. Specifically,
Wayne was going to work that day on a ‘‘hold-for-re-
lease’’ (HFR) story, i.e., one which is prepared and
taped for showing at a later date, and thus one for
which the reporter involved is not required to write his
accompanying story immediately on his return to the
station, for a showing that same night. According to
Munoz, because Wayne’s story was HFR, not to be
shown that day, he would have a lighter workload than
the other reporters. The other reporters would not be
returning to the station that day until about 3 or 4
p.m., and they would not have time to get their stories
on the air and also prepare to anchor the news that
evening. While Wayne would also be returning to the
station around 3 p.m., he would have no writing re-
sponsibilities for that evening’s newscast. In Munoz’
opinion, therefore, Wayne was the reporter most avail-
able to fill in as backup anchor that day.
When Munoz asked Wayne if he could anchor that
night, Wayne replied that he could, but that he wanted
to know what happened with the pay issue Fladeboe
had raised the previous day. Munoz said that nothing
had come of it and asked Wayne if he wanted to an-
chor. Wayne responded that he thought Fladeboe’s
issue was a legitimate one that needed to be looked
into. When Munoz asked Wayne if he was going to
anchor that night, Wayne replied, ‘‘Yes, I’ll anchor the
news as soon as we get some kind of reaction to what
happened with Rob’s issue.’’ Munoz answered that he
was not asking Wayne to anchor—he was telling him
to—and asked whether Wayne was refusing to anchor.
Wayne replied, ‘‘[N]o, I’m not refusing to work. I will
gladly anchor the news tonight. But I think this pay
issue needs to be looked into.’’ Wayne and Munoz
went back and forth several times in this vein with
Wayne trying to convince Munoz that he was not re-
fusing to work, and Munoz trying to convince Wayne
that he was. Wayne repeatedly told Munoz that he
would gladly anchor the news ‘‘if they could get this
thing looked into.’’ Ultimately, Munoz instructed
Wayne to prepare for that day’s assignment. As Wayne
made preparations, Munoz stated that McElhatton had
said that if Wayne was refusing to work, he could be
suspended. Wayne shrugged his shoulders and went on
assignment.7 Munoz subsequently arranged for
Fladeboe to anchor that evening.
When Wayne returned from his assignment, mid-
afternoon, McElhatton called him into his office.
Munoz also was present. McElhatton told Wayne that
Park felt the pay issue was legitimate and would be
looked into. McElhatton further stated that the Re-
spondent could not continue to rely on its reporters to
fill in as anchors, as it could not force reporters to an-
chor.8 Wayne responded:
[T]hat sounds great. I’m glad you guys are willing
to look into this. And as a good faith measure I’ll
be glad to anchor the news tonight until you get
this situation resolved, until we get an answer on
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Munoz testified that in this afternoon meeting, McElhatton said
that the pay issue would be discussed further and that Park had an
open door policy. Munoz said that Wayne stated, among other
things, that he was willing to anchor the rest of that week.
10 Wayne additionally orchestrated a meeting between newsroom
employees and the Union to discuss possible representation.
11 As she stated in Liberty Natural Products, 314 NLRB 630 fn.
4 (1994), Member Browning questions the validity of the ultimate
holding in Meyers I & II (Meyers Industries, 268 NLRB 493 (1984),
remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988)). She notes, however, that the conduct
here would be found concerted even under the standard of those
cases. 268 NLRB at 497; 281 NLRB at 882.
12 Although Fladeboe and Wayne did not explicitly agree to work
together on the substitute anchor-pay issue, we agree with the Gen-
eral Counsel that they tacitly agreed that this was a legitimate issue
that should be pursued with management. See generally Salisbury
Hotel, 283 NLRB 685, 687 (1987).
what you guys are going to do about this[,] with-
out any extra pay. I’d be glad to anchor the news
that night and the rest of the remaining week or
however long it took to get the situation re-
solved.9
Wayne did not anchor on August 26. Instead, Fladeboe
anchored, as requested earlier that day.
On August 27, Munoz told Park that Wayne had re-
fused to work three or four times the day before unless
the Respondent paid him extra money. Park then tele-
phoned Stewart Beck, president of Granite Broadcast-
ing, which owned the Respondent’s stock. Park told
Beck that Wayne previously had anchored without ob-
jection, but now was refusing this work, and was at-
tempting to renegotiate his contract. When Beck asked
Park what action he thought appropriate, Park re-
sponded ‘‘discharge.’’ Park drafted a termination no-
tice and faxed it to Beck.
Subsequently, Beck conducted a conference call
with Park, McElhatton, and Munoz. In this discussion,
Beck questioned Munoz about the facts. When Munoz
repeated the account he gave Park, Beck authorized
Park to send the termination letter.
On August 28, McElhatton gave Wayne a termi-
nation letter stating that his refusal to substitute as an-
chor on August 26 without an immediate agreement
for additional compensation was inappropriate and
contrary to the interests of the news department.
Wayne told Park there had been a misunderstanding,
and asked for another chance. Park said he was sorry,
but that there would be no other chance.
About August 30, Wayne telephoned Beck and
asked him to reconsider the discharge. Wayne insisted
that he had not refused to anchor the news but simply
said that he would gladly anchor if the Respondent
looked into the pay issue. Beck interpreted Wayne’s
statement as a confirmation of Munoz’ account, and
told Wayne he believed Park had decided correctly.
B. Analysis
1. Wayne’s conduct was ‘‘Concerted’’
An employee’s activity will be deemed concerted,
when it is engaged in with or on the authority of other
employees, and not solely by and on behalf of the em-
ployee himself. Pacific Electricord Co. v. NLRB, 361
F.2d 310, 310 (9th Cir. 1966), enfg. 153 NLRB 521
(1965). Concerted activity encompasses activity which
begins with only a speaker and listener, if that activity
appears calculated to induce, prepare for, or otherwise
relate to some kind of group action. Root-Carlin, Inc.,
92 NLRB 1313, 1314 (1951); Atlanta Newspapers, 264
NLRB 878, 879 (1982).
We find that Wayne was engaged in concerted activ-
ity on August 26 when he sought the Respondent’s
agreement to look into the anchor-pay issue raised by
Fladeboe, another employee. We conclude that
Wayne’s August 26 conduct was a continuation of his
concerted activities the preceding month in seeking to
improve employee pay, and was a logical outgrowth of
his discussion of the substitute anchor pay issue with
Fladeboe the day before.
Thus, only a few weeks earlier, Wayne had been the
catalyst for employee discussions over pay and com-
pensation by scheduling and leading employee meet-
ings and drafting letters to management conveying
group complaints of inadequate compensation. Wayne
further spearheaded the compensation issue by serving
as a designated employee spokesperson to management
and by repeatedly requesting, without success, that the
Respondent meet with the committee to discuss em-
ployee concerns.10 Not only did the Respondent con-
sistently refuse Wayne’s repeated requests that the Re-
spondent meet with Wayne’s committee to discuss
these concerns, but it unlawfully threatened Wayne
with retaliation if he continued to engage in his con-
certed activities. Against this background, we view
Wayne’s August 26 request that the Respondent con-
sider Fladeboe’s request for additional pay for sub-
stitute anchors as but a continuation of his open and
active engagement in, and leadership of, concerted ac-
tivities involving employee pay issues. See JMC
Transport, 272 NLRB 545, 545 fn. 2 (1984); Dayton
Typographical Service v. NLRB, 778 F.2d 1188, 1191
(6th Cir. 1985), enfg. in relevant part 273 NLRB 1205
(1984).11
We further find that Wayne was acting in concert
with Fladeboe when Wayne pursued the substitute an-
chor-pay issue with Munoz. Thus, Fladeboe raised the
anchoring pay issue with Wayne, an acknowledged
spokesperson on employee pay issues. Wayne ex-
pressed his interest in the issue and asked Fladeboe to
let him know how it turned out.12 Thereafter, when
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
451KNTV, INC.
13 We reject the judge’s finding that before Wayne, no employee
had requested additional pay for anchoring. Fladeboe made precisely
that request on August 25. Even if Munoz did not treat Fladeboe’s
request seriously, there was no room for him to doubt on August
26 that Wayne had embraced Fladeboe’s request and was pursuing
the compensation ‘‘issue.’’
Munoz asked Wayne to anchor the following day,
Wayne openly joined in concert with his coworker,
Fladeboe, by asking Munoz what had happened to
Fladeboe’s anchor-pay issue. We find that Wayne’s in-
quiry to Munoz on the morning of August 26 was a
logical outgrowth of his discussion of the substitute
anchor-pay issue with Fladeboe the day before. When
Munoz responded that nothing had occurred, Wayne
clearly demonstrated to the Respondent that the issue
was one of mutual concern to these two employees,
stating that he would gladly anchor if the Respondent
looked into Fladeboe’s issue.
2. The Respondent knew that Wayne’s August 26
conduct was concerted
We find that the Respondent knew that Wayne was
engaged in concerted activity on August 26. Prior to
August 26, the Respondent consistently treated Wayne
as the employee leader on the issue of increased pay.
For example, when the employees presented the Re-
spondent with the July 23 letter requesting increased
compensation, News Director McElhatton made a point
of telling Wayne that the letter was interesting, even
though the letter named no specific employees. The
following day, the Respondent further identified
Wayne with the employee pay issue when McElhatton
told Wayne that Park wanted to discuss the issue with
him. And, after the July 27 letter naming Wayne as an
employee spokesperson, and Wayne’s repeated re-
quests that Park meet with the employee committee on
the pay issue, Park singled out Wayne’s leadership role
on the wage issue, stating to him, ‘‘[W]ell I hope you
won’t continue to be an agitator or antagonize the peo-
ple in the newsroom.’’
Against this background, we find that the Respond-
ent knew that Wayne was continuing to spearhead the
employees’ concerted activities when pursuing the an-
chor-pay issue with management on August 26. In-
deed, the comments of Wayne and McElhatton make
clear that Wayne was not acting solely on his own be-
half, and that the Respondent knew he was not.13 For
example, when Wayne raised the anchor-pay issue
with Munoz, he expressly referred to it as the subject
‘‘raised by Fladeboe,’’ and volunteered to anchor ‘‘as
soon as we get some kind of reaction to . . .
[Fladeboe’s] issue.’’ (Emphasis added.) Thereafter,
McElhatton told Wayne that Park considered the ‘‘pay
issue’’ to be a legitimate one, and that the Respondent
could not continue to rely on its ‘‘reporters’’ to fill in
for anchors. Wayne’s response to McElhatton, that he
would gladly anchor until ‘‘we get an answer on what
you guys are doing,’’ is further evidence that the Re-
spondent knew that Wayne was acting on behalf of
other employees. (Emphasis added.) Alpha Resins
Corp., 307 NLRB 1219 fn. 3 (1992).
3. Wayne’s August 26 conduct was protected
Next, we find that when requesting that the Re-
spondent look into the anchor-pay issue, Wayne was
engaged in protected activity. See generally J. J. Cook
Construction Co., 203 NLRB 41, 46 (1973). Contrary
to the Respondent’s argument, we do not find that
Wayne refused to anchor the news on August 26 un-
less he received extra pay. Indeed, Wayne never re-
fused to anchor at all. Wayne instead repeatedly agreed
on the morning of August 26 to substitute as an anchor
that evening if the Respondent would agree to look
into the substitute anchor-pay issue. When, later in the
day, McElhatton told Wayne that the Respondent
thought that the substitute anchor-pay issue was a le-
gitimate one that needed to be looked into, Wayne in
turn told McElhatton that he was glad that the Re-
spondent had agreed to look into the issue, and he
once again volunteered to anchor without additional
pay, for the rest of the week, until the Respondent
could get the issue resolved. But the Respondent re-
fused Wayne’s offer. Having done so, the Respondent
cannot now reasonably claim that Wayne refused to
anchor.
In coming to this result, we note again, as shown in
section 3,A,2,b above, that Wayne repeatedly denied
Munoz’ accusations that Wayne was refusing to work
as a substitute anchor. We also note that even after
flatly accusing Wayne several times of refusing to
work, Munoz finally told Wayne only that ‘‘if’’ he
was refusing to work, he could be suspended. Wayne
noncommittally shrugged his shoulders, Munoz cer-
tainly did not suspend him, and Wayne thereupon went
out on his regular assignment. No matter what our dis-
senting colleague attempts to make of this, it is not, in
our view, a refusal to work as a substitute anchor.
Nor does the fact that the Respondent scheduled
Fladeboe to work as the substitute anchor on the day
in question establish that Wayne had refused to do that
work. At most, the assignment of Fladeboe in place of
Wayne arguably tends to show that the Respondent
may have believed—or may have chosen to believe—
that Wayne might renege on his promise to substitute
anchor if the Respondent agreed to look into the pay
issue—even though the Respondent had, by that time,
in fact agreed to look into the pay issue. In any event,
whether the Respondent genuinely perceived that
Wayne might renege on his promise to substitute an-
chor, in return for the Respondent’s agreement to look
into the pay issue, or whether instead such a claim was
merely contrived, the Respondent’s scheduling of
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00005 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 To the extent that the Respondent argues that Park and Beck be-
lieved, based on Munoz’ reports, that Wayne refused to work with-
out immediate, additional compensation, their mistaken belief pro-
vides no defense. Jhirmack Enterprises, 283 NLRB 609, 610 (1987).
Fladeboe to fill in for Wayne under these cir-
cumstances does not—indeed, cannot—constitute proof
of the asserted fact that Wayne was refusing to work
as a substitute anchor.
Even assuming, arguendo, that Wayne’s August 26
conduct could be viewed as a refusal to perform work,
we nonetheless would find such a refusal akin to a sin-
gle concerted refusal to work voluntary or mandatory
overtime, either of which refusals is protected by the
Act. Sawyer of Napa, supra, 300 NLRB at 137.
Wayne’s conduct was not a ‘‘partial strike.’’ Rather,
substitute anchoring, like voluntary or mandatory over-
time, was distinct from Wayne’s regular reporting du-
ties, and was performed during a distinct block of
time—5 to 5:30 p.m., 6 to 6:30 p.m., and 11 to 11:30
p.m.
Additionally, we find it significant that the Respond-
ent never told Wayne on his hire, or during his em-
ployment, that substitute anchoring was a required ele-
ment of his job, or that he could not refuse anchoring
requests. That Wayne had previously agreed to re-
quests to substitute as news anchor is a reflection of
his interests and career goals, not his obligations to the
Respondent.
4. The General Counsel established a prima facie
case which was unrebutted
Based on the foregoing, we find that the General
Counsel established a prima facie case that Wayne was
unlawfully discharged. Thus, the evidence shows that:
(1) Wayne had been in July, and continued to be in
August, engaged in protected concerted activity in at-
tempting to get the Respondent first to look into pay
issues in general and then to look into substitute an-
chor pay in particular; (2) the Respondent knew that
Wayne, in engaging in the above conduct, was at all
times engaged in protected concerted activity; (3)
Wayne was discharged soon after his July activities,
and only 2 days after his August 26 activity; and (4)
the Respondent had very recently, in July, dem-
onstrated unlawful animus against the exercise of pro-
tected concerted activity on the part of its employees
in general, and Wayne in particular, by threatening
Wayne with retaliation for engaging in protected con-
certed activity, in violation of Section 8(a)(1) of the
Act.
We further find that the Respondent failed to show
that it would have discharged Wayne even in the ab-
sence of his protected concerted activities. NLRB v.
Transportation Management Corp., 462 U.S. 393
(1983). The Respondent’s asserted reason for discharg-
ing Wayne—insubordination for refusing to work as an
anchor unless he got paid extra for doing so—was
pretextual. In fact, Wayne never refused to work as an
anchor. And even if the Respondent arguably believed
that Wayne was refusing on the morning of August 26
to work as an anchor that evening, the arguable refusal
was not conditioned on his getting extra pay for an-
choring that night, but rather on the Respondent simply
agreeing to look into the substitute anchor-pay issue.
The facts are that by the afternoon of August 26, still
hours before Wayne would have been due to anchor,
(1) the Respondent had agreed to look into the anchor-
pay issue, and (2) Wayne in turn had agreed to anchor
without additional pay that night and for the rest of the
week, until the issue could be resolved. Thus, the ulti-
mate reason that Wayne did not anchor on August 26
was not, as proffered by the Respondent, because he
refused to, but because the Respondent would not let
him. Because this proffered reason is false, we infer
that the Respondent’s actual motive was an unlawful
one which it sought to conceal. Cell Agricultural Mfg.
Co., 311 NLRB 1228 fn. 3 (1993); Shattuck Denn
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).14 Moreover, as we have found, that would not
be a lawful reason for discharge were it the true rea-
son.
Accordingly, under all of these circumstances, we
find that the Respondent violated Section 8(a)(1) by
discharging Wayne.
Our dissenting colleague asserts (1) that the work of
substitute anchoring was an integral aspect of Wayne’s
employment as a full-time reporter and (2) that his al-
leged refusal to substitute as anchor on August 26
therefore constituted a partial strike, unprotected by the
Act. We disagree.
The dissent relies on Audubon Health Care Center,
268 NLRB 135, 136 (1983), in support of these con-
tentions. This reliance is misplaced. In Audubon, the
Board preliminarily defined a partial strike as one ‘‘in
which employees refuse to work on certain assigned
tasks while accepting pay or while remaining on the
employer’s premises.’’ Applying that standard to the
facts before it, the Board found that certain nurses
aides were lawfully discharged for engaging in a par-
tial strike. Specifically, and contrary to their estab-
lished past practice, the aides suddenly refused in the
middle of their work shift to continue to ‘‘work short’’
by filling in for and performing patient-care duties for
the assigned patients of an unexpectedly absent fellow
nurses aide—while continuing, however, to perform
their own normal patient-care duties for their own as-
signed patients during their normal work shift.
In finding that the aides were engaged in a partial
strike, the Board found under the circumstances that
covering temporarily unstaffed patient care areas was
not extra work for the aides but was instead part of
their regular duties. Thus, the Board found:
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00006 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
453KNTV, INC.
15 We also find our colleagues’ reliance on Vic Koenig Chevrolet,
263 NLRB 646 (1982), and Polytech, Inc., 195 NLRB 695, 696
(1972), to be misplaced. Vic Koenig is a partial strike case, very
similar in principle to Audubon, in which the Board found that a
nonstriking, nonunit employee was lawfully discharged for refusing,
during a strike to perform not only some struck work but also some
of his normal, nonunit work. The Board found that the employee had
taken an extremely restrictive view of his job, eliminating much of
what he was normally paid for, and that in taking this position he
had unwittingly given up the protection of the Act by in effect de-
claring his intention to engage in a partial strike, thereby accepting
his pay for performing only part of his job, while avoiding the dis-
advantages of complete strike action. We find this partial strike situ-
ation in Vic Koenig, like the similar situation in Audubon, to be in-
apposite to the instant circumstances.
In Polytech, the employer violated the Act by suspending employ-
ees for engaging in an isolated concerted refusal to work overtime
on their normal jobs. See Sawyer of Napa, supra, 300 NLRB at 137,
citing, inter alia, Polytech. Assuming that Wayne’s conduct was a
refusal to perform work, it was likewise a protected concerted re-
fusal to work overtime.
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
Continued
Whether this coverage [of sections left open by
the absence of other aides] first developed through
the aides acting of their own volition . . . or
through assignment . . . it is clear that it became
a practice so routine that no formal assignment
was needed: both the aides and their supervisors
assumed that the former would cover the open
section. [268 NLRB at 136; emphasis added.]
No such finding is possible in the instant case. As
seen, substitute anchoring is not ‘‘a practice so routine
that no formal assignment [is] needed.’’ Indeed, sub-
stitute anchoring is not a part of the normal duties of
a reporter for the Respondent, and when the Respond-
ent needs a reporter to be a substitute anchor, a spe-
cific request for such a reporter must be made in each
instance. Thus, quite unlike in Audubon, neither the re-
porters nor the Respondent simply ‘‘assum[e] that the
former [will] cover the open [anchor] slot.’’
Finally, and dispositively, the Board in Audubon
found
the duties and responsibilities involved in cover-
ing the open section were the same as those en-
tailed in the aides’ normal assignments. Only the
amount of the work that they were required to
perform increased . . . . [Id; emphasis added.]
But in the instant case, quite unlike in Audubon, the
duties and responsibilities of substitute anchoring were
fundamentally different in kind from those entailed in
the reporters’ normal assignments. Not only did the
amount of work increase, into the evening, but more
importantly for purposes of our analysis of whether
Wayne was engaged in a partial strike, the kind of
work fundamentally changed, from reporting to an-
choring.
In sum, unlike in Audubon, where the aides per-
formed the additional duties during the same period as,
and in conjunction with, their other assignments, sub-
stitute anchoring involves substantially different work
from reporting, and is normally performed during dif-
ferent period of time. Thus, we find Audubon to be in-
apposite.15
AMENDED REMEDY
Having found that the Respondent engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. We shall
order the Respondent to make Ken Wayne whole for
any loss of earnings and other benefits he suffered as
a result of his unlawful termination. F. W. Woolworth
Co., 90 NLRB 289 (1950). Interest is to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, KNTV, Inc., San Jose, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with retaliation for en-
gaging in protected concerted activities.
(b) Discharging employees because they engaged in
protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Ken Wayne immediate and full reinstate-
ment to his former job or, if that job not longer exists,
to a substantially equivalent position without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make whole Ken Wayne for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against him, with interest, in the manner set
forth in the amended remedy section of this decision.
(c) Remove from its files any reference to the un-
lawful discharge and notify Ken Wayne, in writing,
that this has been done and that the discharge will not
be used against him in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its offices, and at all facilities in San
Jose, California, copies of the attached notice marked
‘‘Appendix.’’16 Copies of the notice in Spanish and
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00007 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 Id. at 1143, citing Packers Hide Assn. v. NLRB, 360 F.2d 59, 62
(8th Cir. 1966).
2 Id. at 1144, citing General Electric Co. (Hotpoint), 292 NLRB
843 (1989); Davis & Burton Contractors, 261 NLRB 728 (1982);
Jones & McKnight, Inc. v. NLRB, 445 F.2d 97, 102 (7th Cir. 1971);
Richardson Paint Co. v. NLRB, 574 F.2d 1195, 1202–1203 (5th Cir.
1978).
English, on forms provided by the Regional Director
for Region 32, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CHAIRMAN GOULD, concurring.
I find that it is unnecessary to determine whether
Wayne’s actions on August 26, 1992, constituted an
unprotected refusal to work because, assuming
arguendo that they were unprotected, the Respondent
condoned his actions and its reliance on these actions
to discharge Wayne was therefore pretextual.
The law is clear that condonation of activity is not
to be readily inferred but rather must be based on
clear, convincing, and positive evidence that the em-
ployer has agreed to forgive the employee’s mis-
conduct and desires to continue the employer-em-
ployee relationship as though no misconduct had oc-
curred. Fibreboard Corp., 283 NLRB 1093, 1098
(1987); Marquette Cement Mfg. Co., 219 NLRB 549,
553 (1975). In United Postal Service, 301 NLRB 1142
(1991), the Board found that it need not reach the
issue of whether an employee’s concerted activity in
refusing to drive his route because of unsafe road con-
ditions was unprotected. Rather, the Board found that
even assuming the employee’s activity was unpro-
tected, the Respondent had condoned his failure to
complete his deliveries. The Board noted that ‘‘[t]he
doctrine [of condonation] prohibits an employer from
misleadingly agreeing to return its employees to work
and then taking disciplinary action for something ap-
parently forgiven.’’1 The Board found there that the
essential elements of condonation were met. The em-
ployee’s supervisor had given him permission to return
to the center early. When he returned to the center and
expressed his reluctance to make further deliveries, his
supervisor told him he could punch out and go home
sick. The Board concluded that the supervisor acqui-
esced in the employee’s failure to complete his work
by giving him permission to return to the center and
leave work early without completing his route. Under
these circumstances, the Board found that the employer
had condoned the employee’s actions, and, once con-
doned, the employer could not use any unlawful or un-
protected aspect of that activity as a basis for dis-
cipline.2
Here, the credited testimony reveals clear, convinc-
ing, and positive evidence that the Respondent forgave
Wayne’s alleged misconduct and acted as if it desired
to continue its employment of him as though no mis-
conduct had occurred. After the exchange on August
26 between Wayne and Munoz concerning whether
Wayne was refusing to work, Munoz told Wayne that
McElhatton said that if Wayne was so refusing, he
could be suspended. Several hours later, when Wayne
returned from his assignment, he was called into
McElhatton’s office, where he met with McElhatton
and Munoz. Rather than being suspended, Wayne was
told by McElhatton that he had talked to Park about
the pay issue, and Park and McElhatton agreed that it
was a legitimate issue that needed to be looked into.
Wayne replied that this sounded great, he was glad
they were willing to look into the issue, and as a good-
faith measure he would be glad to anchor the news
that night or for the rest of the week without extra pay
until the issue was resolved.
Wayne also told McElhatton that he was surprised
that suspension had been discussed. McElhatton replied
that Munoz stated Wayne had been refusing to work.
Wayne told McElhatton that there had been a problem
in dialogue, and McElhatton said, ‘‘[W]ell, whatever,
we’re now going to figure out how we can come to
terms with this.’’ They all then shook hands, and
Wayne stated that he wished they could solve all their
problems this way. Wayne then left McElhatton’s of-
fice and saw Fladeboe in the newsroom. He flashed
Fladeboe a ‘‘thumbs up’’ sign, went over to him, and
said that it looked like they were going to look into
the pay issue. Wayne continued working for the next
2 days. On August 28, however, after he had finished
his assignments for the day, he was called into
McElhatton’s office and given his letter of termination.
The letter stated he was being terminated for refusing
to be a substitute anchor without immediate agreement
for additional compensation. He appealed to Park, but
was told he would not be given a second chance.
In these circumstances, I find that the essential ele-
ments of condonation are present. Wayne indicated he
would work if the pay issue was looked into. Munoz
interpreted this as a refusal to work. Yet, despite this
interpretation, other than telling Wayne that he could
be suspended, the Respondent did not indicate to
Wayne on August 26 that there would be any further
repercussions from his actions. Rather, the Respondent
told Wayne that it agreed with him that the pay issue
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00008 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
455KNTV, INC.
1 When Wayne sought a pay raise in the summer of 1992, he of-
fered to perform additional work in order to justify the increase. Sig-
nificantly, Wayne did not mention anchoring as the additional work.
He understood that anchoring was part of his regular work. Accord-
ingly, the additional work that he suggested was the work of special
news programming. This further supports my finding that anchoring
was a part of Wayne’s job.
2 Contrary to my colleagues, I do not find Audubon distinguish-
able. In Audubon, the Board found that employees engaged in an un-
protected partial strike by refusing to perform duties which, as a re-
sult of either their voluntary acts or the employer’s assignment, had
become part of their jobs. Likewise, here, substitute anchoring had
become part of the reporters’ duties. Thus, the record establishes that
all reporters had performed substitute anchoring work. Wayne, in
particular—who knew when hired that he would be expected to an-
chor—substituted as anchor on a regular basis throughout his em-
ployment. Further, in all instances where reporters performed sub-
stitute anchoring, they did so without receiving additional or separate
compensation. There is no evidence that any reporter had ever re-
fused an anchoring assignment.
My colleagues would also distinguish Audubon on the basis that
the work that employees refused to perform in that case was inter-
spersed throughout the employees’ regular workday. Here, the ma-
jority contends, substitute anchoring was performed during discrete
periods of time. I disagree. As discussed infra in fn. 3, the record
does not establish what hours reporters customarily worked or if, in-
deed, there were customary hours. Moreover, the record does estab-
lish that when reporters were assigned anchoring work they routinely
requested that their regular reporting duties be curtailed. The Re-
spondent granted these requests. Indeed, on August 26, Wayne was
selected to substitute anchor precisely because his lighter reporting
load would permit him to return to the station about 3 p.m. to pre-
pare for anchoring rather than to work on news stories for that eve-
ning’s telecasts.
Finally, my colleagues’ attempt to distinguish Audubon on the
ground that the work employees refused to perform in that case was
the same type as their customary work and not, as here, different
from their reporting duties. I reject this argument. In my view, the
relevant inquiry is not whether refused work is the same as other
assigned duties, but whether the refused work has become, either ex-
plicitly or implicitly, part of the employees’ jobs. I find that sub-
stitute anchoring clearly had become part of Wayne’s job.
was a legitimate one and that it would look into it.
Wayne was not required to anchor the news that night
and was permitted to continue his work for the next
2 days. On August 28, when Wayne was discharged,
his alleged refusal to work no longer existed. The Re-
spondent had met the condition he presented, and, by
so doing, had condoned his action. Accordingly, the
Respondent cannot later rely on that activity as a basis
for discipline.
MEMBER COHEN, dissenting in part.
I agree with the majority that the Respondent vio-
lated Section 8(a)(1) by threatening employee Wayne
with retaliation in order to discourage employees’ pro-
tected concerted activities. I further agree that the Gen-
eral Counsel failed to establish a prima facie case that
Wayne’s discharge violated Section 8(a)(3). Contrary
to my colleagues, however, I agree with the judge that
Wayne’s discharge did not violate Section 8(a)(1). As-
suming arguendo that Wayne was engaged in con-
certed activity on August 26, 1992, or that the Re-
spondent reasonably understood that his actions were
concerted, I find that his refusal to perform anchor
functions, unless certain demands were met, constitutes
an unprotected partial strike for which he lawfully was
discharged.
It is well settled that a partial refusal to work is un-
protected conduct. Highlands Medical Center, 278
NLRB 1097 (1986). ‘‘Both the Board and the courts
have repeatedly condemned employees’ refusal to
work on the terms lawfully prescribed by the employer
while remaining on their jobs.’’ Id. The Board views
such a partial refusal as an attempt by employees to
set their own terms and conditions of employment, in
defiance of their employer’s authority over these mat-
ters. Audubon Health Care Center, 268 NLRB 135,
136 (1983); Vic Koenig Chevrolet, 263 NLRB 646
(1982); Polytech, Inc., 195 NLRB 695, 696 (1972).
Here, substitute anchoring was an integral aspect of
reporters’ employment. In this regard, the record estab-
lishes that the Respondent assigned its reporters
backup anchoring when regular anchors were unavail-
able for this work. Indeed, all five full-time reporters
had been assigned backup anchoring work. Managing
Editor Munoz testified, without contradiction, that
when reporters were assigned anchoring work, they
customarily sought, and the Respondent granted, a re-
duction in their reporting assignment. Consistent with
this practice, the Respondent selected Wayne for an-
choring on August 26 precisely because his regular
workload was lighter than that of the other reporters.
Further, Wayne understood that anchoring was part
of his job. Although Wayne was initially hired as a
freelance reporter in July 1991, he applied the follow-
ing November for both full-time reporter and weekend
anchor positions. When Wayne interviewed with News
Director McElhatton for both positions, Wayne said
that he was experienced in anchoring and was inter-
ested in becoming a weekend anchor. Although Wayne
was hired for the reporter position, he conceded that,
when given this job, he knew that he would be ex-
pected to perform backup anchoring work. Consistent
with this understanding, Wayne substituted as anchor
throughout his employment with the Respondent. In-
deed, Wayne anchored approximately 24 times during
his final 10 or 11 months’ employment with the Re-
spondent.
In sum, the past practice is such that the Respondent
reasonably came to rely on Wayne’s performance of
the anchor function in those instances where a sub-
stitute anchor was required. Accordingly, even though
the anchoring function was not technically a part of
Wayne’s job description, it was nonetheless a de facto
element of his job.1 Audubon Health Care Center,
supra.2
It follows from the above that Wayne was refusing
to perform a part of his job. Under Highlands Medical
Center, supra, that conduct was unprotected.
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00009 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Contrary to my colleagues’ claim, the General Counsel had not
established that anchoring was performed during a discrete period of
time. There is no evidence as to the regular hours worked by report-
ers, nor any claim by Wayne or others that anchoring required them
to work longer hours. Indeed, Munoz’ testimony that Wayne was se-
lected to anchor on August 26 because his reporting duties were
lighter than those of other reporters intimates just the opposite—that
his anchoring would have occurred during his regular workday.
4 Contrary to the concurring opinion, I find no ‘‘clear, convincing,
and positive evidence that the Respondent forgave Wayne’s alleged
misconduct.’’ Rather, the evidence establishes that Wayne refused to
perform part of his job unless the Respondent looked into the pay
issue. The Respondent objected to this condition, telling Wayne that
he could be suspended for his conduct. Nonetheless, Wayne per-
sisted in his demand. Respondent ultimately knuckled under to
Wayne’s demand and agreed to look into the pay issue. The Re-
spondent, however, never excused Wayne’s insubordinate act.
Concededly, the Respondent did not repeat its suspension threat
after Wayne volunteered to anchor on the afternoon of August 26.
This lack of repetition, however, is not tantamount to an affirmative
act of forgiveness. Moreover, over the 2 days following Wayne’s re-
fusal to perform the anchoring work, the Respondent carefully inves-
tigated and reviewed Wayne’s conduct, ultimately concluding that
his insubordinate refusal to anchor warranted discharge. In my view,
nothing in the Respondent’s conduct supports the conclusion that it
condoned Wayne’s misconduct.
My colleagues argue that Wayne’s conduct was
comparable to a refusal to perform overtime duties. I
disagree. If employees perform work during regular
hours, and then perform that work during additional
hours, and if they are paid for each separate period,
they may well be protected if they refuse to perform
during the latter period. See Sawyer of Napa, 300
NLRB 131, 137 (1990). Where, as here, however, em-
ployees are assigned multiple tasks for a given period
of time and they are paid a sum for all such tasks, the
employees have no statutory right to pick and choose
which tasks they will perform.3
In the instant case, Wayne chose not to perform a
part of his job unless a condition was met. It makes
no difference whether that condition was ‘‘looking
into’’ the pay issue or resolving the pay issue in
Wayne’s favor. In either event, Wayne placed a condi-
tion on the performance of his work. Since this refusal
to perform was unprotected, the Respondent was privi-
leged to discharge him therefor.
My colleagues find that Wayne did not refuse to
substitute anchor when he was assigned this work on
August 26. I disagree. Repeatedly in his discussion
with Managing Editor Munoz on the morning of Au-
gust 26, Wayne conditioned anchoring on the Re-
spondent’s acceding to his demand to consider the pay
issue. For example, when Munoz flatly asked Wayne
if he was going to anchor that night, Wayne replied
that he would do so ‘‘as soon as we get some kind of
reaction to what happened with [the pay] issue.’’ Even
after Munoz informed Wayne that he was being told,
not asked, to anchor, and that he could be suspended
for refusing this assignment, Wayne persisted in insist-
ing on this condition. In my view, Wayne’s conduct
clearly constituted a refusal to perform assigned work
unless his conditions were met.
I also reject my colleagues’ conclusion that Wayne
could not have been discharged for refusing to anchor
because, later on August 26, after News Director
McElhatton said the pay issue would be looked into,
Wayne offered to anchor. Thus, on the morning of Au-
gust 26, when Wayne was assigned to anchor, he
clearly refused unless his impermissible condition was
met. Faced with that refusal, which it viewed as insub-
ordination, the Respondent made necessary alternative
arrangements to provide for adequate news coverage,
again selecting Fladeboe to substitute anchor. When
Wayne returned to the station about 3 p.m. on August
26, he learned that Fladeboe had been assigned the an-
choring work, and observed Fladeboe making prepara-
tions for the newscast. Only later, when McElhatton
told Wayne that the Respondent would look into the
pay issue, did Wayne offer to anchor without extra pay
until the issue was resolved. In these circumstances, I
cannot agree with my colleagues that ‘‘the Respondent
cannot now reasonably claim that Wayne refused to
anchor.’’
Accordingly, I would affirm the judge in this re-
gard.4
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with retaliation or
adverse action in order to discourage protected con-
certed activities.
WE WILL NOT discharge or discriminate against any
employee because that employee engaged in protected
concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00010 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
457KNTV, INC.
1 Respondent and Wayne entered into an at-will-employment con-
tract. Under this agreement Respondent reserved the right to termi-
nate Wayne’s employment with or without cause.
WE WILL offer Ken Wayne immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus inter-
est.
WE WILL notify Ken Wayne that we have removed
from our files any reference to his discharge and that
this discharge will not be used against him in any way.
KNTV, INC.
Valerie Hardy-Mahoney, Esq., for the General Counsel.
Steven R. Feldstein, Esq. (Heller, Ehrman, White &
McAuliffe), of Palo Alto, California, for the Respondent.
Andrew Baker, Esq. (Beeson, Ehrman, White & McAuliffe),
of San Francisco, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Oakland, California, on March 22, 1993. On
September 17, 1992, American Federation of Television and
Radio Artists, AFL–CIO (the Union) filed a charge alleging
that KNTV, Inc. (Respondent) committed certain violations
of Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act). On October 30, 1992, the Acting Regional Di-
rector for Region 32 of the National Labor Relations Board
issued a complaint and notice of hearing against Respondent,
alleging that Respondent violated Section 8(a)(3) and (1) of
the Act. Respondent filed a timely answer to the complaint,
denying all wrongdoing.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the oral arguments of the parties, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Virginia corporation with a principal place
of business in San Jose, California, has been engaged in the
operation of a television broadcasting station. During the 12
months prior to issuance of the complaint, Respondent de-
rived revenues in excess of $100,000, advertised national
brand products, held membership in or subscribed to various
interstate news services, and transmitted programming origi-
nating outside the State of California. Accordingly, Respond-
ent admits, and I find, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent admits, and I find, that at all times material
the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Ken Wayne was hired by Respondent as a freelance re-
porter in July 1991. That summer, Wayne applied for a posi-
tion as a weekend news anchor and as a full-time reporter.
In November 1991, Wayne was hired by Terry McElhatton,
Respondent’s news director, as a full-time staff reporter.1
Wayne aspired to be a news anchor and on numerous occa-
sions acted as a backup or fill-in anchor when a regular an-
chor was sick or on vacation. Wayne testified that he worked
as a substitute anchor on at least two dozen occasions and
that on each of these occasions he had volunteered to do so.
Wayne never requested or received extra compensation for
working as a backup or fill-in news anchor.
It is undisputed that Wayne was a superior reporter. Dur-
ing the summer of 1992, Wayne approached McElhatton and
asked for a wage increase. Wayne offered to do extra work
to justify the raise. McElhatton said that Wayne’s proposal
was reasonable and that he would talk to Stew Park, Re-
spondent’s president and general manager. McElhatton re-
ported back to Wayne that Park would not consider a raise
until Wayne’s next review period which was November
1992.
In July, Wayne began talking to other newsroom employ-
ees about their complaints concerning wages and working
conditions. On July 22, Wayne held a meeting in the news
department’s conference to discuss employee complaints. The
meeting was attended by 18 of the approximately 30 news-
room employees. The employees discussed several options
including seeking representation by the Union. The employ-
ees decided to draft a letter to Park before pursuing the union
possibility. Wayne with the assistance of some fellow em-
ployees drafted a letter to Park from the news staff. In es-
sence the letter stated that it was the consensus of the em-
ployees that they were underpaid considering the high cost
of living in the area in which they lived and the recent busi-
ness successes of the Respondent. Wayne placed copies of
the letter in the internal mailboxes for the employees and for
Park, McElhatton, and Roberto Munoz, managing editor of
the newsroom. Later that day, McElhatton told Wayne that
it was ‘‘an interesting letter.’’ The letter had not mentioned
Wayne or any other employee by name. The following day
McElhatton told Wayne that Park wanted to meet with him
individually. Wayne said that he did not want to meet indi-
vidually with Park but rather as part of an employee group.
McElhatton stated that Park did not want to meet with the
employees as a group but would meet with them individ-
ually.
On July 27, Wayne held another meeting of nonmanage-
ment newsroom employees. At this meeting a committee was
formed of Wayne, representing reporters; Chris Penn, rep-
resenting producers and writers; and Paul Morrill, represent-
ing photographers and editors. The committee sent a letter to
Park and McElhatton asking them to meet with the commit-
tee to discuss wages and other concerns. This letter identified
each of the three employees.
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00011 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Munoz, because he works closely with the newsroom reporters,
distances himself from their pay matters. He does not want such
matters to interfere with the news operation. He does not know what
employees are paid and has asked McElhatton to leave him out of
pay matters.
3 McElhatton was recovering from surgery and was not present at
work when the dispute between Munoz and Wayne occurred.
4 Respondent’s standards of conduct state that insubordination is
just cause for immediate dismissal.
5 The General Counsel argues that McElhatton admitted that work-
ing as a substitute anchor was purely voluntary. I do not draw the
same inference. Rather, I take McElhatton’s statement to mean that
Respondent could not physically force a reporter to perform as an
anchor. I read no further admission into his statement.
6 Counsel for the General Counsel sought to call McElhatton as a
rebuttal witness. McElhatton was not present at the hearing and the
General Counsel had not subpoenaed him. I refused to grant the
General Counsel a continuance to serve McElhatton with a subpoena
and closed the record.
On July 28, McElhatton told Wayne that Park wished to
speak with him about the memorandum. Wayne stated that
he preferred to meet with the committee as a group. McEl-
hatton answered that Wayne was required to meet individ-
ually with Park. Park attempted to explain Respondent’s
wage structure. Wayne said that he didn’t want to meet indi-
vidually but wanted Park to meet with the committee. Park
said he wished that Wayne would discuss compensation with
him and Wayne stated that he did not feel comfortable doing
so in the absence of the committee. Park went through his
explanation of Respondent’s pay schedule and then expressed
his disappointment that Wayne had chosen not to discuss the
matter. Park gave Wayne a written statement which set forth
the average and median pay for comparable television mar-
kets and which showed Wayne’s current compensation. The
statement also indicated that Wayne’s next salary review
would be in November. According to Wayne, at the end of
the meeting, Park said ‘‘I hope you won’t continue to be an
agitator or instigate others.’’ Park denies making such a
statement. Park held similar meetings with other employees
to discuss compensation levels and gave each such employee
a statement regarding comparable television markets and his
or her current wage rate.
Shortly thereafter, Wayne arranged for a meeting with a
representative from the Union. Wayne distributed a notice of
the meeting to all employees. On August 5, six to eight
newsroom employees met with three union representatives.
Wayne obtained union literature from the union representa-
tives and returned to the station that evening. Wayne placed
copies of union materials dealing with health benefits, mem-
bership rules, and retirement in the employee mailboxes.
On August 25, Wayne was told by Rob Fladeboe, a re-
porter, that he (Fladeboe) had been working quite a bit as
a backup anchor and that he thought he should get extra pay
for the extra work. Fladeboe mentioned that he had raised
the matter with Munoz but that Munoz had not considered
it to be serious. The next day Munoz asked Wayne to work
as a backup anchor. One of the two regular anchors was on
vacation and the other was sick. Munoz chose Wayne to fill
in because Wayne had the lightest load that day of any of
the reporters.
Wayne testified that he asked Munoz what had happened
with the pay issue raised by Fladeboe the previous day.
Munoz answered that nothing had come of it. Munoz asked
Wayne to anchor that evening after he returned from his re-
porting assignment. Wayne said, ‘‘[Y]es, I’ll anchor as soon
as you look into the pay issue.’’ Munoz then stated, ‘‘I am
telling you to anchor.’’ Wayne said, ‘‘I will gladly anchor
as soon as the pay issue is looked into.’’ Munoz asked if
Wayne was refusing to work and Wayne answered that he
was not refusing to work, rather he said. ‘‘I will gladly an-
chor if you get the pay issue looked into.’’ This conversation
repeated itself until Munoz finally told Wayne to go out and
cover his assigned story. While Wayne was preparing to go
out on his story, Munoz came over to his desk and said that
he had just spoken with McElhatton. Munoz related that
McElhatton had said Wayne could be suspended for refusing
to work. Wayne just shrugged his shoulders.
Munoz testified that when he asked Wayne to anchor
Wayne said it wasn’t fair if Respondent did not pay him
more for the extra work. Munoz answered that he had no
control over that and that Wayne should discuss pay con-
cerns with McElhatton.2 Wayne said, ‘‘[I]t still isn’t fair’’
and said he wouldn’t anchor unless he was paid more.
Munoz again told Wayne to take up the pay matter with
McElhatton but, in the meantime, Wayne was needed to fill
in as anchor. Munoz ordered Wayne to anchor. According to
Munoz, Wayne said, ‘‘I won’t anchor unless you pay me
extra.’’ Munoz asked if Wayne was refusing to anchor and
Wayne replied, ‘‘I am not going to anchor unless you pay
me extra.’’ Munoz then said he would contact McElhatton.3
After discussing the matter with McElhatton, Munoz told
Wayne that Respondent wanted him to anchor and that his
refusal to work could lead to suspension.4 Munoz then went
to Fladeboe and told Fladeboe that he might have to fill in
as anchor when he returned from his assignment. In fact,
Fladeboe worked as anchor that evening.
Wayne returned from his assignment at approximately 3
p.m. McElhatton called Wayne into his office with Munoz.
McElhatton said that Park felt the pay issue was a legitimate
issue and that he would look into it but that Respondent had
to be able to rely on its reporters to fill in as anchors. Ac-
cording to Wayne, McElhatton stated that he could not force
reporters to anchor the news.5 Wayne said, ‘‘I am glad you
are willing to look into it and I’ll anchor tonight without
extra pay.’’ Munoz testified that at this meeting McElhatton
related that Park stated that the pay issue would be discussed
further and that Park had an open door policy. Wayne
claimed he was being picked on. Munoz said Wayne was
chosen because the story he was working on was for future
release and therefore Wayne had more preparation time than
any other reporter. Wayne offered to anchor the rest of that
week. McElhatton, still in Respondent’s employ, did not tes-
tify.6
On the following day, Park asked Munoz what had hap-
pened with Wayne and whether Wayne had refused to work.
Munoz told Park that Wayne had refused to work three or
four times unless Respondent paid him extra. Park called
Stewart Beck, president of Granite Broadcasting which owns
all the stock of Respondent. Park told Beck that Wayne had
refused to go on the air and had attempted to renegotiate his
contract. He told Beck that Wayne had filled in as an anchor
before and had never objected to doing so. Beck asked what
action Park thought was appropriate and Park answered ter-
mination. Park prepared a termination letter and faxed it to
Beck.
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00012 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
459KNTV, INC.
On August 28, Beck spoke via conference call with
McElhatton, Park, and Munoz. During this conversation,
Beck questioned Munoz as to what had happened. Munoz
explained that Wayne had refused three or four times to an-
chor unless he was paid more money. Beck then authorized
Park to send the termination letter.
On August 28, McElhatton gave Wayne his dismissal let-
ter. The letter states that Wayne was discharged for refusing
to be a substitute anchor without immediate agreement for
additional compensation. Wayne went to Park and said that
the matter was a misunderstanding and that he wanted a sec-
ond chance. Park said he was sorry but that there would be
no second chance. McElhatton walked Wayne out of the sta-
tion and told him that he had tried to prevent the discharge
but could not.
A day or two later, Wayne called Beck and asked Beck
to reconsider the discharge. Wayne again insisted that he had
not refused to anchor but had said he would gladly anchor
if Respondent looked into the pay issue. Beck took that as
a confirmation of Munoz’ recitation of the facts and told
Wayne that he believed Park had made the right decision.
B. Conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. On such a showing, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct. The United States Supreme Court ap-
proved and adopted the Board’s Wright Line test in NLRB
v. Transportation Management Corp., 462 U.S. 393, 399–
403 (1983).
On either Munoz’ or Wayne’s version of the facts, Wayne
conditioned working as a substitute anchor on favorable ac-
tion on the pay issue. I credit Wayne’s version that he said,
‘‘I will gladly work anchor if you will look into the pay
issue’’ rather than Munoz’ version that Wayne said, ‘‘I
refuse to work anchor unless you pay me extra.’’ I find
Wayne’s version to be more consistent with the dispute as
to whether Wayne had refused the assignment. I further note
that McElhatton did not testify or deny Wayne’s version of
the facts. The failure of McElhatton to testify leads to an in-
ference that his testimony would be adverse to Respondent’s
case.
I find that the General Counsel has not established a prima
facie case that union activities were a motivating factor in
Respondent’s discharge of Wayne. Whether Wayne said I
will work if you address the pay issue or if he said I won’t
anchor unless you pay me extra, the message to Munoz and
Respondent was the same. Wayne was exploiting Respond-
ent’s emergency need for a fill-in anchor to demand more
pay. Munoz reported the incident to McElhatton and they
both spoke to Wayne. Next, the incident was reported to
Park. Munoz, McElhatton, and Park all emphasized that Re-
spondent needed to be able to rely on its reporters to fill in
as anchors. Park and Beck verified the facts of the alleged
insubordination with Munoz and then made a decision on
those facts. Respondent acted swiftly and decisively. When
Wayne sought reconsideration of the dismissal he confirmed
that he had conditioned anchoring on favorable action on the
pay issue. Wayne’s activities were viewed by Respondent as
insubordination. Under Respondent’s policies insubordination
is just cause for immediate termination. It appears clear that
Wayne was discharged for conditioning working as a sub-
stitute anchor on favorable action on the ‘‘pay issue.’’ The
pivotal issue is whether Wayne was engaged in protected
concerted activity when he conditioned working as a sub-
stitute anchor on favorable action regarding the question of
additional pay.
Section 8(a)(1) is violated if the Respondent knows of its
employees’ concerted activity, if the activity is protected by
the Act, and if the adverse employment action is motivated
by the employees’ protected concerted actions. Kysor Indus-
trial Corp., 309 NLRB 237 (1992); Amelio’s, 301 NLRB 182
(1991). In general, to find an employee’s activity to be ‘‘con-
certed,’’ the Board requires that it be engaged in with or on
the authority of other employees, and not solely by and on
behalf of himself. Meyers Industries, 281 NLRB 882, 885
(1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).
The Board will find individual conduct to be concerted
where the evidence supports a finding that the concerns ex-
pressed by the individual are logical outgrowth of the con-
cerns of the group. Mike Yurosek & Son, 306 NLRB 1037
(1992); Salisbury Hotel, 283 NLRB 685 (1987); Every Wom-
en’s Place, 282 NLRB 413 (1986), enfd. mem. 833 F.2d
1012 (6th Cir. 1987). Here, the evidence does not establish
that Wayne was engaged in concerted activity. Fladeboe
mentioned casually, to Wayne, a desire to be paid extra
working as a substitute anchor. The employees, however, did
not act together nor discuss group action. Wayne never indi-
cated that he was engaged in concerted activity. Respondent
never indicated that it believed Wayne was acting con-
certedly. I find that the evidence leads to a conclusion that
Wayne was acting by himself.
Moreover, Munoz was not involved in pay matters and
had never been faced with an employee placing a condition
on working as a relief anchor. Although Fladeboe had raised
the issue with Munoz, neither took the matter seriously be-
cause Munoz was not involved in matters of wages or com-
pensation. Accordingly, Munoz could treat Wayne’s conduct
as insubordination. Wayne made no mention either to his fel-
low reporters nor to Munoz of any purported intent to act on
behalf of anyone but himself.
Assuming arguendo, that Wayne was engaged in protected
concerted activity, I find insufficient evidence that Respond-
ent had knowledge that Wayne’s action was concerted. No
employee had ever requested extra compensation for fill-in
anchoring. Wayne never indicated that he was acting on be-
half of other employees. I find that the General Counsel has
failed to establish that Wayne was discharged for protected
concerted activity.
I find no merit to the General Counsel’s contention that
Respondent condoned Wayne’s action by waiting 2 days to
terminate his employment. Park reported the incident to Beck
and Beck verified the particulars with Munoz before taking
action. At no time did Munoz or his superiors treat this con-
duct as permissible nor did they indicate to Wayne that his
conduct was excused. I find that the General Counsel has
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00013 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to establish that Respondent condoned Wayne’s con-
duct.
As found earlier, on July 29, after discussing the basis of
his pay rate with Wayne, Park said that he hoped Wayne
would not be an agitator or instigator in the newsroom. In
the context of Wayne’s protected concerted attempt to get
Park to discuss wages and other concerns with an employee
committee, I find the remark to be coercive under Section
8(a)(1) of the Act. Manimark Corp., 301 NLRB 599, 603
(1991); Maine Apple Growers, 254 NLRB 501 (1981).
CONCLUSIONS OF LAW
1. KNTV, Inc. is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. American Federation of Television and Radio Artists,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening employees that they would be retaliated
against for engaging in protected concerted activities, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. Respondent has not violated Section 8(a)(3) and (1) of
the Act by discharging employee Ken Wayne in August
1992.
5. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
VerDate 12-JAN-99 09:52 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00014 Fmt 0610 Sfmt 0610 D:\NLRB\319\31966 apps04 PsN: apps04