KOFY TV-20

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 771 (N.L.R.B. 2000)

KOFY TV-20 771
Pacific FM, Inc. d/b/a KOFY, Operator of KOFY
TV-20 and Helen Emile Perry, Frank Pappas
III, and Brian Shimetz. Cases 20–CA–27232, 20–
CA–27355, and 20–CA–27411
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On November 18, 1997, Administrative Law Judge
Michael D. Stevenson issued the attached decision. The
Respondent and the General Counsel filed exceptions,
briefs, and answering briefs, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
1. The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) by discharging Helen
Perry on April 29, 1996.4 In finding that the Respondent
knew of Perry’s support for the Union, the judge relied in
part on statements she made to Program Man-
ager/Director Michelle Ball, Public Service Announce-
ment Director Carole Fertick, and Business Manager
Michelle Mattea. The Respondent correctly contends
that none of these individuals were alleged in the com-
plaint to be supervisors and that their status was not liti-
gated at the hearing. The Respondent therefore argues
that their knowledge cannot properly be attributed to the
Respondent. We do not rely on this aspect of the judge’s
decision.5 In adopting the judge’s finding that the Respon-
dent was aware of Perry’s union sentiments, we rely in-
stead on the following.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(3) by discharging Frank Pappas.
3 We shall conform the judge’s recommended Order to his unfair la-
bor practice findings by providing that the Respondent shall cease and
desist from discharging or constructively discharging employees be-
cause of their union or other protected concerted activities.
The judge has used the broad “in any other manner” cease-and-desist
language in his recommended Order. We have considered the case in
light of the standard set forth in Hickmont Foods, 242 NLRB 1357
(1979), and have concluded that the narrow “in any like or related
manner” language is appropriate.
4 All subsequent dates are in 1996.
5 The Respondent has also excepted to the judge’s finding that Karen
Provenza was a statutory supervisor. On the basis of that finding, the
judge attributed to the Respondent Provenza’s knowledge of Perry’s
union activities. We find it unnecessary to resolve the issue of Perry’s
supervisory status. As discussed infra, there is other evidence in the
record supporting the judge’s finding that the Respondent was aware of
Perry’s prounion sentiments.
In late January, the Respondent’s president, James
Gabbert, called Perry into his office and interrogated her
about her union sympathies, in response to which Perry
told Gabbert that she was tending toward supporting the
Union. On February 9, at a preelection captive-audience
speech by Gabbert, Perry was one of only a few employ-
ees that spoke up in response to Gabbert’s solicitation of
grievances. Perry complained that she was working too
many holidays and was entitled to greater pay for this
effort. She was vehement on the issue of working on
holidays, to the point of stepping up to Gabbert’s display
board and using it to illustrate her point. It is clear that
Perry’s complaint did not escape Gabbert’s attention, for
he admittedly responded by declaring that he could have
fired her for an incident occurring years earlier. As the
judge found, Perry’s advocacy and willingness to con-
front Gabbert in front of other employees would likely
identify her as one of the employees dissatisfied with the
status quo and cause Gabbert to perceive her as a union
supporter. Accordingly, based on this evidence, we find
that the Respondent knew of (or at least suspected)
Perry’s prounion sympathies at the time it discharged
her.6
Contrary to our dissenting colleague, we also agree
with the judge that the Respondent has not established a
meritorious defense to the complaint allegation that
Perry’s discharge violated Section 8(a)(3) and (1) of the
Act. The dissent does not dispute that the General Coun-
sel demonstrated that the Respondent’s strong antiunion
animus was a motivating factor in the decision to dis-
charge Perry. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.

We recognize that the General Counsel has excepted to the judge’s
failure to find that Brian Shimetz was constructively discharged and
that the General Counsel relies on certain testimony by Provenza as an
admission that the Respondent reassigned Shimetz to the prime time
shift to force him to quit. However, even though the judge considered
Provenza’s testimony to be an admission against the Respondent’s
interest, he still found (and we agree) that the General Counsel failed to
establish that Shimetz was constructively discharged. Therefore, even
if we were to find, in accordance with the General Counsel’s position,
that Provenza was a supervisor, we would still adopt the judge’s rec-
ommendation to dismiss the complaint with respect to Shimetz.
6 See, e.g., Respond First Aid, 299 NLRB 167, 169 fn. 13 (1990),
enfd. mem. 940 F.2d 661 (6th Cir. 1991) (“The Board and the courts
have long held that when the General Counsel proves an employer
suspects discriminatees of union activities, the knowledge requirement
is satisfied.”).
332 NLRB No. 67
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
989 (1982). Rather, our dissenting colleague contends
that the Respondent successfully met its Wright Line
burden of establishing that it would have discharged
Perry even absent her union activities. We do not agree.
The dissent focuses on the judge’s finding that the in-
cident for which Perry was allegedly discharged “was
made more serious” because it occurred during a
“sweeps” period. Our colleague states that this finding
“should be the end of the analysis” and that the judge
ignored his own finding to substitute his own business
judgment for that of the Respondent. We believe our
colleague invests the judge’s finding with more meaning
than the judge intended.
The judge’s finding was simply a general statement
about the industry in which the Respondent operates. It
is, no doubt, a serious matter when the audio portion of a
television program is interrupted, and, no doubt, even
more serious when it occurs during a “sweeps” period.
This truism is all that the judge was acknowledging
when he accepted the Respondent’s contention about the
seriousness of the incident for which Perry was allegedly
discharged. To put this in a legal framework, the judge
accepted that the Respondent has shown a business rea-
son for the discharge. But that is not the end of the
analysis. As the judge stated, quoting J. P. Stevens &
Co. v. NLRB, 638 F.2d 676, 681 (4th Cir. 1981), “the
mere presence of legitimate business reasons for disci-
plining or discharging an employee does not automati-
cally preclude the finding of discrimination.”
In making his finding that the Respondent’s actual mo-
tive for discharging Perry was discriminatory, the judge
detailed the evidence of Respondent’s history of disci-
pline. The record, in fact, disclosed numerous serious
operator errors, including improperly threading a tape
which broke while being played on the air; rewinding a
tape while the show was on the air, thereby ruining the
illusion that the show was live; forgetting to activate the
radio transmitter, resulting in a loss of audio; recording a
program on a tape already containing a prerecorded pro-
gram; violating Federal Communication Commission
regulations regarding the number of allowable commer-
cials during children’s programming, which prompted a
special station meeting; playing the wrong commercials;
leaving the master control booth unattended, resulting in
a minute or two of black air; forgetting to activate the
station’s Spanish translation signal; in the words of
president Gabbert, “totally fuck[ing]” up a shift on two
occasions; and permitting several minutes of dead air-
time. None of the operators responsible for the above
incidents were terminated.7
In arguing that the Respondent showed it did not treat
Perry disparately, the dissent points to the Respondent’s
treatment of employees Rob Barry and Jeremy Flint.
Even assuming that the Respondent’s treatment of Perry
was similar to the treatment of Barry and Flint,8 we
would still find that the Respondent failed to show it
would have discharged Perry absent her union activities.
For, given the General Counsel’s significant evidence of
disparate treatment, it is not sufficient that the Respon-
dent can show some examples of similar treatment.
Rather, the Respondent must prove that the General
Counsel’s instances of disparate treatment “were so few
as to be an anomalous or insignificant departure from a
general consistent past practice.” Avondale Industries,
329 NLRB 1064, 1067 (1999).
The Respondent has not done so. In addition to the
General Counsel’s significant evidence of disparate
treatment, we find the Respondent admitted its willing-
ness to tolerate serious misconduct. Thus, in response to
questioning from the Respondent’s attorney, Gabbert
stated that he told employees “to get fired or terminated
at this television station you essentially have to kill
somebody.”
Taking into account the General Counsel’s evidence
and Gabbert’s admission, we find that, at best, the Re-
spondent has shown that it “may, or may not, have [dis-
charged Perry absent her union activities], i.e., the record
of disciplinary action is mixed.” See id. at 1064, 1067
Therefore, we conclude that the Respondent has failed to
meet its Wright Line burden, and we affirm the judge’s
finding that the Respondent’s discharge of Perry violated
Section 8(a)(3) and (1) of the Act.
2. Contrary to our dissenting colleague, we also agree
with the judge’s finding that the Respondent violated
Section 8(a)(1) by announcing a new employee break
policy.9
At a February 9, 1996 mandatory meeting with em-
ployees, the Respondent unlawfully solicited grievances

7 O’Dell Williams, the operator who permitted the dead airtime, was
eventually discharged after he locked himself out of the station and
broke a window to get back in.
8 With respect to Barry, the judge found the treatment dissimilar be-
cause Barry was not, in fact, discharged. Rather, he was allowed to
resign. We, too, find that difference significant. In addition, we give
somewhat less weight to the 1986 or 1987 Barry incident, in light of the
many intervening incidents for which employees were not discharged.
With respect to Flint, the incident for which he was discharged oc-
curred after Perry’s discharge. Further, the record shows that Flint was
a trainee.
9 Although the judge found this violation, he omitted any reference
to it in his conclusions and law and recommended Order. We shall
modify the conclusions of law and recommended Order accordingly.
KOFY TV-20 773
and impliedly promised to remedy them. Breaktimes for
Master Control Operators (MCOs) was one of the griev-
ances discussed. MCO Frank Pappas, who raised the
break grievance, said that breaks were being required at
the beginning and end of the shifts rather than in the
middle. Pappas testified that he had raised this issue on
two occasions before the start of the organizing cam-
paign. Management told him on those occasions,
“[T]hat’s tough,” and that the matter was nonnegotiable.
When Pappas raised the break issue in the campaign
meeting, however, Gabbert agreed to remedy the matter.
On February 13, the day of the election, the Respondent
did so by posting a memo stating that the Respondent
“wish[ed] to conform with the law” and announcing a
new policy of scheduling breaks approximately halfway
through each 4-hour work period.
Absent a showing of a legitimate business reason for
the timing of a grant of benefits during an organizing
campaign, the Board will infer improper motive and in-
terference with employee rights. Yale New Haven
Hospital, 309 NLRB 363, 366–367 (1992). Our
dissenting colleague would find that the Respondent
simply sought to comply with state law as expeditiously
as possible after learning from an employee that it was
not in compliance.
First and most significantly, even assuming arguendo
that the Respondent was attempting to comply with state
law, it has offered absolutely no explanation for why it
had to announce the change in break policy on the very
day of the election. As the judge correctly pointed out,
the Respondent granted the benefit “in time for employ-
ees to take note before they voted.” There can be no
other explanation. In any event, it is true that Pappas as-
serted that the Respondent reasonably believed that it
was not in compliance with state law. The Respondent,
however, repeatedly denied Pappas’ contention until the
election campaign when Gabbert stated to Perry, “If
there’s something wrong, fix it.”
The Respondent introduced no evidence that its
preelection break policy did not comply with state law.
Indeed, as stated above, the Respondent repeatedly de-
nied Pappas’ claim that the preelection break policy vio-
lated state law. Further, as to the actual practice, the Re-
spondent’s witnesses testified that the MCOs had always
been allowed to schedule breaks during their shifts at
times of their own choosing. We find nothing in their
testimony that could raise a question about noncompli-
ance with state law. Finally, the Respondent’s position
statement admitted that several months after the election,
the Respondent reverted to the preelection break policy,
thereby casting further doubt on its assertion that the
election-day change was motivated by a good-faith effort
to comply with state law.
At most, the evidence shows that employee Pappas be-
lieved the Respondent’s preelection break policy did not
comply with state law. This is a far cry from the evi-
dence necessary to establish that the Respondent rea-
sonably believed that its preelection break policy did not
comply with State law.
Accordingly, for all these reasons, we find that the Re-
spondent failed to establish a legitimate business reason
for the timing of the change in the break policy, and we
adopt the judge’s finding that the Respondent violated
Section 8(a)(1).
AMENDED CONCLUSION OF LAW
Substitute the following for paragraph 4(a).
“(a) Prior to the election, soliciting grievances with the
express or implied promise of remedying them, and in
fact remedying grievances by announcing a new em-
ployee break policy.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pacific
FM, Inc. d/b/a KOFY, Operator of KOFY TV-20, San
Francisco, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
“(a) Prior to an election, soliciting grievances from
employees with the express or implied promise of reme-
dying them, or in fact remedying grievances by announc-
ing a new employee break policy,”
2. Substitute the following for paragraphs 1(h) and (i).
“(h) Discharging or constructively discharging em-
ployees on account of their union activities or other pro-
tected concerted activities.
“(i) 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.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by unlawfully discharging em-
ployee Helen Perry and by announcing a new break pol-
icy for master control operators (MCOs). The Respon-
dent has excepted to the judge’s findings. Contrary to
my colleagues, I find merit in the Respondent’s excep-
tions.
The factual background from which the alleged viola-
tion arises is as follows. The Respondent operates, inter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
alia, KOFY, TV-20, a television station in San Francisco,
California. James Gabbert is the Respondent’s principal
stockholder and president. John Perry (no relation to
Helen Perry) is the Respondent’s technical operations
manager for KOFY. KOFY has about 80 to 90 employ-
ees, approximately 20 of whom are in the engineer-
ing/production unit at issue here. Included in the unit are
master control operators (MCOs), whose responsibilities
include monitoring the programs and commercials
scheduled to air on their shifts.
The MCOs work at the KOFY station in San Fran-
cisco. However, the Respondent maintains its television
transmitter equipment on Mount Sutro, a few miles from
the KOFY station. The Respondent has two transmitters
on Mount Sutro. If there is a problem with the transmit-
ters that results in the loss of picture or sound, the MCOs
must “Multiplex,” i.e., use a system of remote controls to
correct the problem on a temporary basis until an em-
ployee, usually Chief Engineer Steve Coulam, can go to
Mount Sutro to work on the transmitters.
In January 1996,1 the Union submitted a petition to the
Board requesting that an election be held in a unit con-
sisting of the Respondent’s engineering/production de-
partment employees. On February 9, 4 days before the
election, the Respondent President Gabbert held a man-
datory meeting for unit employees. At the conclusion of
his remarks, Gabbert asked for comments or questions.
In response, many employees, Helen Perry among
them, raised grievances. Perry complained that she was
working too many holidays and was therefore entitled to
higher pay. She also expressed unhappiness that John
Perry had not granted her time off to deal with flood
damage at her home and had publicized a medical prob-
lem of her son. Gabbert responded by mentioning that
Helen Perry could have been fired several years before
for a rules infraction.2 MCO Pappas complained that
MCOs were being required to take their breaks at the
beginning and end of their shifts rather than in midshift.
To all the grievances raised by Helen Perry, Pappas, and
other employees at the meeting, Gabbert said that he
would either look into them or take care of them.
1. Discharge of Perry
The Respondent discharged Helen Perry on April 29. I
assume arguendo that the General Counsel has estab-
lished a prima facie 8(a)(3) case as to this discharge.
However, I conclude that Respondent established a meri-

1 All dates are in 1996, unless otherwise stated.
2 As discussed below, this was a reference to an instance when, in
violation of the Respondent’s security policy, Helen Perry admitted her
fiancé into the station to use the restroom.
torious defense. The facts concerning that defense are
set forth below.
The Respondent hired Helen Perry as an MCO in May
1992, assigned her to the prime time MCO spot in 1993
or 1994, and designated her as the alternate chief MCO
in November 1994. Notwithstanding these assignments,
the judge found that Perry’s tenure with the Respondent
was “checkered to say the least.” In this regard, shortly
after Perry was hired, during a test of her knowledge of
MCO duties, she was unable to respond correctly to
questions regarding the operation of the “hot line” phone
in the master control booth and the meaning of “multi-
plex” (i.e., the system used to remedy an audio failure
during a broadcast). Perry “made other mistakes and
committed other infractions” as time went on. As al-
ready noted, in November 1992, the Respondent repri-
manded Perry for violating its security policy by allow-
ing a nonemployee into the building to use the restroom
on two occasions. In February 1993, Perry aired an in-
troduction for the wrong television program. John Perry
reprimanded Helen Perry for this mistake and warned her
that this and other errors could not continue. On May
26, 1994, Perry allowed a blank screen to air for 7 min-
utes. The judge found that the latter error was of major
concern for the Respondent, because it would cause
viewers to turn to other channels, resulting in reduced
viewership and a consequent adverse impact on advertis-
ers’ willingness to place ads on KOFY-TV. Accord-
ingly, John Perry issued Helen Perry a stern written rep-
rimand for this incident and recommended that she be
dismissed. The recommendation was overruled.
Finally, during Helen Perry’s MCO shift on April 26,
1996, at approximately 12:30 a.m., the audio portion of
the program in progress, an “infomercial” for Father’s
Day tools, failed and was replaced by a hissing noise for
approximately 7 minutes. The Respondent did not blame
Helen Perry for the initial audio failure, but did fault her
for not taking certain standard steps to remedy the prob-
lem immediately. That is, Perry failed to follow estab-
lished procedure by neglecting to page Chief Engineer
Coulam when she could not reach him by phone, and by
not “multiplexing” so that the audio could be restored.
The Respondent terminated her following this incident.
In its April 29 termination letter, the Respondent ad-
vised Perry that the April 26 incident was a serious one
that she could have averted by following established pro-
cedures. The letter also referred to Helen Perry’s May
1994 infraction and advised her that her failure to follow
correct procedures cost the station viewers and also “cost
the station in lost paid-programming on the very first
night of the ratings sweep.” Helen Perry did not dispute
KOFY TV-20 775
these statements, and acknowledged that she had made a
mistake.
In evaluating the seriousness of Helen Perry’s mistake,
the judge accepted the Respondent’s contention that the
seriousness of the April 26 incident was exacerbated by
its occurrence during the “sweeps” period when audience
viewing is measured. Although the judge found it
unlikely that the infomercial then being shown was
measured for audience viewing, he found that Perry
made a serious mistake and that the Respondent suffered
financial losses as a result. Further, the judge found that
Helen Perry had made mistakes in the past, and had al-
most been discharged for her mistake in 1994.
The judge concluded that the decision whether Helen
Perry should have been terminated for her mistake was
“as a general rule, a business judgment which only Re-
spondent is capable and qualified to make.” In my view,
the judge should have then followed his own admonition.
Instead, he proceeded to depart from it. More particu-
larly, the judge went on to set forth his own view that
Perry’s mistakes constituted “a relatively nonserious of-
fense.” It is clear that the judge thus simply substituted
his own business judgment for that of the Respondent.
He should not have done so.3 The judge then com-
pounded his error by finding, without support in the re-
cord, that the Respondent “distorted and magnified”
Helen Perry’s deficiencies.
My colleagues say that I have “invest[ed] the judge’s
finding with more meaning than the judge intended.”
They opine that the judge was simply making “a general
statement about the industry in which Respondent oper-
ates.” In my view, this reinterpretation of what the judge
said does not aid the judge or my colleagues. Just as the
judge has no role in making disciplinary decisions for the

3 See NLRB v. McGahey, 233 F.2d 406, 413 (5th Cir. 1956), where
the court stated:
But as we have often said: management is for management. Nei-
ther Board nor Court can second-guess it or give it gentle guid-
ance by over-the-shoulder supervision. Management can dis-
charge for good cause, or bad cause, or no cause at all. It has, as
the master of its own business affairs, complete freedom with but
one specific, definite qualification: it may not discharge when the
real motivating purpose is to do that which Section 8(a)(3) for-
bids.
See also Reno Hilton, 282 NLRB 819, 837 fn. 41 (1987), where the
Board stated:
The Board has properly cautioned that when deciding a case re-
quiring examination into an employer’s motives in a given trans-
action, we should take pains not merely to substitute our own
business judgment—nor our abstract sense of fairness—for that
which the employer may apply day to day. Rather, we must
judge the employer’s actions by reference to the “standard[s]
which [the employer] has set for itself,” as those standards may
be evident from past practice or other circumstantial indications.
FPC Advertising, 231 NLRB 1135, 1136 (1977).
Respondent, so it is that “the industry” has no role in
making those decisions. Those decisions are for Re-
spondent to make.
The judge concluded that the Respondent’s asserted
reasons for discharging Perry must have been “pretex-
tual,” and that the real reason for discharging her must
have been her protected concerted activities. Because
this conclusion was based on a flawed analysis, it should
not be affirmed.
In further support of his finding of pretext, the judge
found that (1) the timing of Perry’s discharge was sus-
pect because it closely followed her protected concerted
activities; (2) the Respondent had not discharged others
who had committed similar offenses; and (3) the Re-
spondent could not rely on Perry’s past serious infrac-
tions in discharging her because it had condoned those
past infractions by appointing her alternate chief MCO in
November 1994. In my view, the judge’s analysis is
flawed and does not support a finding that the Respon-
dent’s reasons for discharging Perry were pretextual.
As to timing, the Respondent terminated Helen Perry
only after her serious mistakes of April 26. This was
over 2 months after the Union lost the election and after
Perry had voiced her grievances at the February 9 em-
ployee meeting. I cannot agree, therefore, that Perry’s
April 26 discharge “followed closely” her protected con-
certed activities. Rather, it “followed closely” her per-
formance errors of April 26.
Further, the judge’s analysis implies that Perry, was
one of the most active union supporters, and was singled
out for termination, as part of a plan to get rid of the most
active union supporters. The record, however, does not
support such a conclusion. Perry was far from the most
forceful and public of union supporters. Her union ac-
tivities were limited to engaging in personal discussions
about the Union with fellow employees. In contrast,
union activist Brian Shimetz solicited authorization cards
and posted union literature through the Respondent’s
facility. However, he continued at all relevant times to
be viewed by the Respondent as a valued employee. The
difference between Shimetz and Perry is that Shimetz did
not have a history of poor work performance, as did
Perry and others discharged by the Respondent for simi-
lar reasons. The only “plan” evident from the record is
one against continuing to employ individuals who are
unable to meet the Respondent’s reasonable performance
standards. Thus, I cannot agree that the Respondent tar-
geted Perry for discharge as part of an effort to get rid of
the most active union supporters.
As to the Respondent’s alleged disparate treatment of
Helen Perry, there is evidence that the Respondent per-
mitted an employee, Rob Barry, to resign in lieu of being
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776
discharged for permitting a blank airtime during an inci-
dent in 1986 or 1987. The record also establishes that
the Respondent discharged employee Jeremy Flint for
the same reason. Thus, contrary to the judge’s finding,
the Respondent has effectively discharged employees for
performance errors similar to Perry’s. Therefore, I find
that the Respondent’s discharge of Helen Perry does not
establish disparate treatment.
My colleagues set forth a laundry list of other errors by
other employees, which errors did not lead to discharge.
However, none of them is similar to Perry’s error (in
terms of what happened and the critical time at which it
happened). Further, as noted above, Perry was a repeat
offender.
The majority also notes that Respondent’s president,
Gabbert, testified that “to get fired or terminated at this
stations, you essentially have to kill somebody.” That
this testimony was hyperbole is shown by the fact that
Respondent has discharged employees (or permitted
them to resign in lieu of discharge), without their having
killed anyone.
Finally, as to the issue of condonation, the judge, cit-
ing Virginia Mfg. Co., 310 NLRB 1261 (1993), enfd.
mem. 27 F.3d 565 (4th Cir. 1994), found that the Re-
spondent condoned Helen Perry’s past infractions by
appointing her alternate chief MCO. The judge erred.
As explained in Virginia Mfg. Co., 310 NLRB at 1272:
Condonation of unprotected activity will not be readily
inferred, but must be based on clear, convincing, and
positive evidence that the employer has agreed to for-
give such misconduct and desires to continue the em-
ployer-employee relationship as though no misconduct
had occurred. The Board does not look for any magic
words suggesting the forgiveness, but it examines
whether all the circumstances establish clearly and
convincingly that the employer has agreed to “wipe the
slate clean” respecting any employee misconduct.
I cannot agree with the judge that the Respondent’s mere
appointment of Perry as the alternate chief MCO, standing
alone, supplies “clear, convincing, and positive evidence”
that the Respondent forgave Perry’s past infractions and
evidenced an intent to ignore Perry’s past mistakes in evalu-
ating any future mistakes. Accordingly, I find that the Re-
spondent could evaluate, as it did, Perry’s April 26 mistakes
in light of her past infractions.
Thus, assuming, without deciding, that the General
Counsel has met its Wright Line burden of establishing a
prima facie case that Perry was discharged because of her
union activities, I would find that the Respondent has
successfully rebutted that prima facie case by showing
that its reasons for discharging Perry were not pretextual.
Rather, they were legitimate reasons arising from the
exercise of business judgment which only the Respon-
dent was capable and qualified to make. Thus, it was for
the Respondent, not the judge, to decide the seriousness
of Perry’s mistakes. That the Respondent has consis-
tently viewed offenses such as Perry’s April 26 mistake
as serious and warranting discharge is supported by the
fact that the Respondent has terminated other employees
for similar infractions in the past. Further, in deciding
whether to discharge Perry, the Respondent could, and
did, take into account Perry’s past infractions. Thus, I
would find that the Respondent’s reasons for discharging
Perry were not pretextual and that therefore the Respon-
dent has successfully met its Wright Line burden of re-
butting the General Counsel’s prima facie case. Accord-
ingly, I would reverse the judge and dismiss this allega-
tion.
2. Announcement of new break policy
On December 15, 1995, MCO Pappas complained to
Technical Operations Manager John Perry and Produc-
tion Manager Jeff Giles regarding the Respondent’s prac-
tice of requiring MCOs to take their breaks at the begin-
ning and end of their shifts rather than in midshift. The
Respondent did not then change the practice.
Shortly before the Respondent’s February 9 preelec-
tion meeting with employees, Pappas posted at the Re-
spondent’s facility a copy of a California wage order
covering, among other subjects, rest period requirements
for employees in the broadcast industry. Record evi-
dence suggests that this posting was the first time that
Pappas registered his complaint about the Respondent’s
break practice in terms of California law. Pappas testi-
fied that he posted the wage order because he wanted to
make certain that KOFY complied with its terms. In
particular, Pappas wanted KOFY to comply with the rest
period, or break, requirements set out in the wage order
which required employers to authorize and permit their
employees to take rest periods, insofar as practical, in the
middle of each work period. Subsequently, as noted
above, during the February 9 meeting, in response to
Station Owner Gabbert’s solicitation of employee griev-
ances, Pappas complained about the Respondent’s break
practice. After that meeting, Pappas met with Gabbert
and John Perry regarding compliance with the California
wage order’s break requirement.
On February 13, election day, the Respondent issued a
memorandum announcing a new MCO schedule. The
announcement stated, inter alia, “[t]his new schedule also
includes rest-periods (breaks) shown, approximately
halfway through each 4-hour work period.” The judge
found that the Respondent remedied Pappas’ grievance
“in time for employees to take note before they voted.”
Thus, the judge concluded that the Respondent violated
KOFY TV-20 777
Section 8(a)(1). I disagree, and I would reverse the
judge’s finding.
Pappas testified without contradiction that shortly be-
fore the February 9 meeting he posted a California wage
order for the broadcast industry at the Respondent’s
facility. He questioned the Respondent’s break policy
during an employee meeting and thereafter met with of-
ficials to discuss the Respondent’s noncompliance with
the wage order. Since Pappas’ alleged grievance was no
more than a request that the Respondent comply with the
law, I cannot find that the Respondent’s remedying of
that grievance—i.e., its prompt action to comply with the
law, upon learning of its noncompliance—somehow con-
stitutes a grant of benefit in violation of Section 8(a)(1).
In my view, where an employer is not in compliance
with the law and an employee brings this noncompliance
to the employer’s attention, it is incumbent upon the em-
ployer to come into compliance with the law as expedi-
tiously as possible. That is all that the Respondent did
here. Further, even if the employer learns of its noncom-
pliance during a union campaign, the presence of the
union should not convert compliance with the law into an
unlawful grant of benefit. To hold otherwise would per-
mit an employer to use the union campaign as an excuse
for continued noncompliance and would be contrary to
the Board’s “general rule” that an employer should act as
if the union were not in the picture.4
Contrary to my colleagues, I find that Pappas’s posting
of a California wage order prior to the February 9 meet-
ing provided the Respondent with a legitimate business
reason for changing its break policy. Clearly, the Re-
spondent, faced for the first time with a copy of the state
wage order, believed that it was not in compliance with
the law and undertook, consistent with its legal duty, to
“fix it.” Contrary to my colleague’s contention, in
Pappas’ break policy discussions with Respondent prior
to February 9, there is no evidence that the discussion
took place in the context of state legal requirements for
break scheduling. Faced with the posted California wage
order, the Respondent believed that it had a duty to com-
ply.
My colleagues say that Respondent, in order to prevail
as to this allegation, had to show that it was not in com-
pliance with the law before it made the change. I dis-
agree. It is enough for Respondent to show a legitimate

4 As the Board explained in Great A&P Tea Co., 166 NLRB 27, 29
fn. 1 (1967):
As a general rule, an employer, in deciding whether to grant
benefits while a representation election is pending, should decide
that question as he would if a union were not in the picture. On
the other hand, if an employer’s course of action is prompted by
the Union’s presence, then the employer violates the Act whether
he confers benefits or withholds them because of the Union.
concern that it was not in compliance, and that a change
would therefore be prudent. Finally, I would not imply
bad faith, on the Respondent’s part, from the fact that
several months later Respondent changed its break policy
again. The reasons for the change are not explained in
the record. The burden is on the General Counsel to es-
tablish a violation of the Act.
Since the Respondent, in effect, followed the Board’s
Rule here by taking immediate steps to come into com-
pliance with the law, I cannot agree with my colleagues
that the Respondent’s good-faith efforts to obey the law
constitute a violation of Section 8(a)(1). Accordingly, I
would dismiss this allegation.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT prior to an election solicit grievances
with the express or implied promise of remedying them,
and we will not in fact remedy grievances by announcing
a new employee break policy.
WE WILL NOT blame the union organizing campaign
for delayed pay raises.
WE WILL NOT coercively interrogate you about your
union activities or other protected concerted activities.
WE WILL NOT disclose to employees prior to the
election our plan for the future to implement a 401(k)
plan.
WE WILL NOT misstate labor law to indicate futility
of supporting the Union.
WE WILL NOT threaten to move production to an-
other area, to subcontract work performed by unit em-
ployees, and to lay off 12 employees if you select the
Union.
WE WILL NOT tell you it would be futile to support
the Union because we would never sign a contract.
WE WILL NOT discharge or constructively discharge
you on account of your union activities or other 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.
WE WILL, within 14 days from the date of the Board’s
Order, offer Helen Perry and Frank Pappas full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Helen Perry and Frank Pappas whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Helen Perry and Frank Pappas, and
within 3 days thereafter notify the employees in writing
that this has been done and that the discharges will not be
used against them in any way.
PACIFIC FM, INC. D/B/A KOFY OP-
ERATOR OF KOFY, TV-20

William Baudler, Esq., for the General Counsel.
Joseph A. Schwachter and John C. Corcoran, Esqs. (Littler,
Mendelson, Fastiff, Tichy, & Mathiason), of San Francisco,
California, for the Respondent.
Helen Emilie Perry, Esq., of San Francisco, California, for the
Charging Parties.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at San Francisco, California, on
March 17, 18, 20, 21, 26, 27, and 28, 1997,1 pursuant to a sec-
ond amended consolidated complaint issued by the Regional
Director for the National Labor Relations Board for Region 20
on January 9, and on February 25, 1997 (amendment to second
amended consolidated complaint), and which is based upon
charges filed by Helen Emilie Perry (Case 20–CA–27232), by
Frank Pappas III (20–CA–27355), and by Brian Shimetz (Case
20–CA–27411) (the Charging Parties or Helen Perry, Pappas,
or Shimetz, respectively) on May 1 (Case 20–CA–27232), on
July 16 (Case 20–CA–27355), and on August 26 (Case 20–
CA–27411). The complaint alleges that Pacific FM, Inc. d/b/a
KOFY, Operator of KOFY TV-20 (called Respondent) has
engaged in certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
ISSUES
1. Whether Respondent violated Section 8(a)(1) of the Act
by committing one or more of the following acts:
(a) By soliciting employee complaints and grievance,
thereby impliedly promising its employees increased benefits
and improved terms and conditions of employment if employ-
ees refrained from union organizing activity.
(b) By canceling production of the Jim Gabbert Show sched-
uled for election day in order to encourage votes against the
Union in the election.
(c) By informing its employees that pay raises were not pos-
sible because they had engaged in a union organizing drive.
(d) By interrogating its employees regarding their support for
the Union.

1 All dates herein refer to 1996 unless otherwise indicated.
(e) By informing its employees that it was implementing a
new 401(k) plan to encourage employees to vote against the
Union.
(f) By telling employees that Respondent would bargain with
the Union for a year, after which employees would have to vote
again on whether they desired to keep the Union.
(g) By telling employees that if they selected the Union as
their exclusive collective-bargaining representative, Respon-
dent would no longer be able to provide employees with beer in
connection with the taping of the Jim Gabbert Show.
(h) By informing employees that it was implementing a new
employee break policy to encourage employees to vote against
the Union.
(i) By informing employees that it intended to move produc-
tion to Marin County, California and could subcontract work
performed by the production employees resulting in the layoffs
of 12 employees, if employees selected the Union as their col-
lective-bargaining representative.
(j) By informing employees that it would be futile for them
to select a union as their collective-bargaining representative
because Jim Gabbert would never sign a collective-bargaining
agreement.
2. Whether Respondent discharged Helen Perry and con-
structively discharged Pappas and Shimetz, because these three
employees assisted the Union and engaged in concerted activi-
ties and/or to discourage employees from engaging in these
activities.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the General
Counsel and Respondent.
On the entire record of the case, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits that it is a California corporation which
operates a television station and radio stations with an office
and place of business located in San Francisco, California.
Respondent further admits that during the past calendar year,
ending December 31, in the course and conduct of its business,
that its gross revenues exceeded $100,000 and belongs to, sub-
scribed to, or utilized interstate news services and advertised
national brand products. Accordingly, it admits, and I find, that
it is an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that National Association of
Broadcast Employees and Technicians Union, Local 51, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
KOFY TV-20 779
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Overview
In early 1996, the Union submitted a petition to the Board
requesting an election for a unit described as:

All full–time and regular part–time employees employed by
the Employer in the Engineering/Production Department; ex-
cluding all other employees, guards and supervisors as de-
fined in the Act. [GC Exh. 7.]

A Stipulated Election Agreement followed setting the election
for February 13 on the Employer’s premises (GC Exh. 5). A
document in the record identified the parties’ election observ-
ers: for the Employer, Michele Mattea, “bookkeeper” (In her
testimony as Respondent’s witness, Mattea described her title
as “Business Manager.” In a list of Respondent employees,
Mattea is described as “Accounting Manager” (R. Exh. 36));
for the Union, Frank Pappas, the General Counsel’s witness and
alleged discriminatee (GC Exh. 4). The tally of ballots reflects
the election results: 9 votes for the Union and 10 votes against
the Union with one ballot challenged (insufficient to affect the
results (GC Exh. 3)).
The Union filed no objections and did not participate in the
hearing. Contrary to Respondent’s argument made during the
hearing (Tr. 1359–1360), I cannot and will not speculate as to
the Union’s absence from the case. Accordingly, I draw no
inference which may support Respondent’s theory.
After the election, three of Respondent’s employees left their
employment: Helen Perry was terminated and Frank Pappas
and Brian Shimetz resigned. To varying degrees, all three were
union organizers and/or union supporters in the organizing
campaign which preceded the election. The complaint alleges
that all three separations violated the Act, the latter two by
constructive discharge. Respondent, on the other hand, con-
tends that Helen Perry was terminated for ample cause, and the
other two voluntarily resigned for reasons unrelated to the Un-
ion, the election, or any other protected concerted activity.
After his resignation, Pappas filed a lawsuit against Respon-
dent in the Superior Court of San Francisco County. containing
many of the same allegations found in the instant case, Pappas’
state court lawsuit allowed Respondent discovery rights which
would not normally have been available to a Respondent in a
Board unfair labor practice case. In fact, about 2 weeks before
the present case began, Respondent deposed Pappas whose
testimony is contained in five volumes. As of this writing, I
have not been informed of any result in Pappas’ lawsuit and I
drawn no inference from its existence.
2. Background on Employer
Respondent’s corporate empire includes not only KOFY,
TV-20 which is the subject of this case, but in addition three
Bay Area radio stations as well (one through lease). Its head-
quarters is located in a two-story building in an industrial area
of San Francisco. There the technical, production and adminis-
trative functions associated with the television station are con-
ducted. A few miles away from the station, on Mount Sutro,
Respondent maintains its television transmitter equipment. The
primary transmitter, called the Townsend, has three compo-
nents: one to transmit sound and two to transmit pictures. A
backup transmitter, called the Ampex is also maintained at the
same location. Because Respondent broadcasts TV-20, 24
hours per day, 7 days per week, the two transmitters are neces-
sary so that any weather, electrical, or other contingency will
not interrupt operation of TV-20. Other local TV stations also
maintain their transmitters on Mount Sutro, so the location is
kept secure and not open to the public.
As it would be impractical for Respondent’s employees to
visit Mount Sutro when a problem occurs, the station maintains
two remote controls available to employees. The primary re-
mote control, called a Moseley and the secondary remote con-
trol called a TFT are used in the event of loss of picture and/or
sound. As Helen Perry was terminated over her performance of
duty in dealing with a 7-minute loss of sound and her attempt to
remedy the problem, I will return to this subject below. For
now, it suffices to say, that in some cases, it is necessary for a
Respondent employee to go to Mount Sutro, either to install
new equipment, to perform routine maintenance, or to remedy a
problem which cannot be resolved through use of the remote
controls kept at the station. When an employee does visit
Mount Sutro, it is usually Steve Coulam, Respondent’s chief
engineer and a Respondent witness at hearing.
Respondent’s president and 85-percent stockholder is James
Gabbert. Gabbert is also a well-known Bay Area television
personality, appearing on a weekly TV-20 Sunday night show
called, “Late Nite with James Gabbert” and on other less fre-
quent shows. Gabbert is the focus of the allegations in the
complaint and testified extensively as Respondent’s witness,
primarily to deny all or most of the charges against him. Re-
grettably, I will be unable to credit key portions of his testi-
mony. Respondent’s general manager and minority owner is
Mike Lincoln, who did not testify and played no significant role
in the facts of this case. The day-to-day operation of TV-20 is
managed by John Perry—no relation to Helen Perry—a Re-
spondent employee since 1972 and currently technical opera-
tions manager. Like Gabbert, John Perry played a major role in
the facts of this case and testified extensively as Respondent’s
witness.
A document was received into evidence listing the various
departments at Respondent besides the unit involved in the
election. For example, there is programming, traffic (deals
with scheduling of commercials), promotions, accounting, and
engineering (R. Exh. 36). About 20 employees are in the engi-
neering/production unit and 60 to 70 employees work else-
where. Approximately 25 other employees work at each of the
three radio stations owned or controlled by Respondent.
KOFY, TV-20 began and to a certain extent remains an in-
dependent station, competing against other independent stations
in the Bay Area and local stations owned and controlled by the
major television networks such as KPIX (CBS), KRON (NBC),
and KGO (ABC). In recent years, many of the erstwhile inde-
pendents have affiliated with new smaller networks, at least
during the “prime time” evening viewing period (6–10 p.m.)
when the TV stations are most profitable. Thus about 2 years
ago, TV-20 affiliated with Warner Brothers; KTVU, Channel 2,
TV-20’s major competitor, has affiliated with the FOX net-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780
work; KBHK, Channel 44 is affiliated with United Paramount
Network. KICU, Channel 36, remains a true independent. The
competition is both for viewers and for advertisers. The more
of the formers, particularly when measured during the twice per
year so called “sweeps” period leads to more of the latter, and
this in turn leads to greater profits since in general, advertisers
will pay more to advertise their product or service during heav-
ily watched programs.
I conclude this segment with a description of Respondent’s
corporate culture which is both interesting and relevant to the
pending issues. It can be fairly characterized as California “laid
back,” casual and informal. The spirit is set by Gabbert himself
who typically arrives at work around noon, usually accompa-
nied by his dog. Most often dressed in a polo shirt and jeans,
Gabbert saves business dress for special occasions when he
interacts with the public or potential clients of the station.
Many of the witnesses in the case who were current employees
of Respondent affected nontraditional hairstyles, manner of
dress and, if male, often unusual ear adornment.
The casual and somewhat unstructured atmosphere extended
to employee discipline. Not only was there no progressive
disciplinary policy, but such discipline for infractions which did
exist was irregular and without apparent consequence. Witness
this exchange in a telephone conversation with Gabbert which
Pappas recorded after giving notice to Gabbert at the beginning.

GABBERT: Do you know something Frank to get
fired, I got, a television station. I think you have to kill
someone.
PAPPAS: Ha, ha, ha.
GABBERT: You know I really do think about it.
When was anybody last fired in the Production Engineer-
ing Department.
PAPPAS: Hum.
GABBERT: In over fifteen years, how many have
been.
PAPPAS: None come to the top of my head, that’s for
sure.

Gabbert went on to discuss a part-time employee who had
made several mistakes during a recent weekend night of broad-
casting TV-20’s programs—just like the same employee had
done the prior weekend (GC Exhs. 8(a), 7). The point was that
the errant employee had not been fired, nor apparently other-
wise disciplined. (The date of the Pappas/Gabbert phone con-
versation was January 21, a Sunday, approximately 3 months
before Helen Perry was terminated.) Gabbert repeated this
central point (i.e., to get fired at this television station, you
essentially have to kill somebody) to a preelection gathering of
unit employees. Gabbert testified that he made the statement to
employees because it was true (Tr. 1177). I find that the pri-
mary reason Gabbert made the statement was to blunt the Un-
ion’s organizing campaign by stressing that employee job secu-
rity was not an issue in the campaign (Tr. 504, 721–722). Later
in his testimony, Gabbert attempted to soften the effect of his
testimony by claiming that he said, “You almost have to kill
someone (Tr. 1226).” In any event, when challenged on direct
examination to justify his termination of Helen Perry in light of
his oft-repeated principle of casual discipline, Gabbert had this
exchange with his attorney:

Q. Did Ms. Perry kill someone?
A. It was worse than killing someone.
Q. Why is that?
A. Going off the air. We have spent over a million
dollars to keep this television station on the air 24 hours a
day, seven days a week, all the time. It’s so important.

There followed from Gabbert a 2-1/2 transcript page stream, of
consciousness representing Gabbert’s attempt to justify Helen
Perry’s termination (Tr. 1226–1228). Later on cross, the same
subject came up again, and Gabbert continued in his talkative
style (Tr. 1302–1303).
I reject all of Gabbert’s testimony on this point, not only be-
cause it is preposterous and analytically suspect (thus in his
zeal, Gabbert appeared to have confused Helen Perry’s 7 min-
utes without audio with being off the air entirely). 2 but also
because of other witnesses and evidence which rebut Gabbert’s
testimony. Thus the General Counsel presented a witness
named Rowell (Ron) Santos, a former 6-year employee at Re-
spondent who voluntarily resigned in May. It would unduly
lengthen this decision to recite all of what this witness did
wrong in performing the same duties as Helen Perry, but
briefly, Santos aired the wrong program twice and several
wrong commercials and due to his error, lost a picture for 1–2
minutes on more than one occasion. In addition, Santos was
tardy, between 1–5 minutes about 90 percent of the time. For
this parade of infractions, Santos was threatened with termina-
tion, but never terminated nor apparently otherwise disciplined.
Instead he was told to try harder next time.
Perry herself lost a picture for almost 7 minutes in a 1994 in-
cident which involved a second employee (R. Exhs. 18, 19). In
a segment below, I will revisit this earlier incident and the April
incident which lead to Helen Perry’s termination. Another
employee named O’Dell Williams negligently allowed about 2
minutes of dead air time and while he eventually was termi-
nated for a different reason, he was not terminated for his dead
air time. A former employee named Marks, who testified for
the General Counsel, was repeatedly counseled for tardiness by
his supervisor, Coulam. Marks resented this and did not im-
prove his punctuality because, according to Marks, Coulam was
himself tardy most of the time.
Respondent’s informal atmosphere was also proven by the
use and disuse of the timeclock system and the preelection
system of taking breaks, on an ad hoc basis. Both of these sub-
jects will be discussed below as they are part of the alleged
unfair labor practices.

2 Thus John Perry recited a tale of a former employee named Rob
Barry who in 1986 or 1987 was responsible for 10 to 20 minutes of no
picture and no programming. Without providing surrounding details,
such as Barry’s prior work history, or what time of the day or night the
incident occurred, Perry testified that Barry was told he would be fired
over the incident. Yet even for such a malefactor as this, Barry was
allowed to resign in lieu of being fired.
KOFY TV-20 781
3. Background on employees including alleged discriminatees
For purposes of this case, the engineering/production de-
partment unit of employees referred to above may be divided
into two categories, master control operators (MCO) and pro-
duction. MCOs essentially are responsible for monitoring the
programs and commercials scheduled to run on their shift.
Seated in a master control booth with a TV monitor and a vast
array of technical equipment (R. Exh. 25), the MCO first has to
program the various commercials scheduled for that shift. Prior
to June 1994, that task required a large amount of effort as
various commercials were contained in containers which
needed to be retrieved and inserted into a play–back machine.
In mid 1994, a library management system (LMS) replaced the
old system. With the LMS, the MCO merely has to program
commercials through use of a keyboard since the commercials
are already in the system. A significant savings of time and
energy resulted from installation of the LMS. The MCO also
maintains certain daily logs, and takes periodic readings of
power levels. Any discrepancy can be remedied by use of the
remote controls to adjust the power for audio or video. The
MCO is expected to be conversant with both the Moseley and
TFT remote controls (R. Exhs. 27, 28) not just to perform rou-
tine operations, but in the event of a power failure affecting
video or audio transmission.
Once the programming for a given shift was set, after the
LMS was fully functioning, the MCO had relatively little to do
and the work was thought by some MCOs to be boring. Ac-
cordingly, instead of watching 8 hours of television on TV-20,
some MCOs during all or part of their shift, began to read
magazines, newspapers, or even novels. Both John Perry and
Gabbert were aware of this practice and tolerated it. Occasion-
ally, MCOs were advised to read technical journals which were
somewhat related to the job, but most who read during their job
read nontechnical publications of general interest. In fact, a
pile of recent magazines such as People was permitted in the
master control booth. Part of this case deals with Respondent’s
postelection efforts to discourage this practice, by assigning
additional work to the MCOs and the General Counsel’s allega-
tion that such effort constitutes unlawful retaliation.
Other unit employees work in production although most of
this group is qualified to do MCO work and, in fact, there is
some transfer back and forth both on a temporary basis, to re-
lieve an MCO for a rest or lunchbreak, or to make a permanent
change. In general, production work is thought to be more
challenging and creative and therefore more desirable. It in-
volves work on the only regularly scheduled live program
called “Late Night With James Gabbert,” usually taped on
Tuesday evenings and broadcast on Sunday nights. The format
of this show involves a movie shown in segments, and inter-
spersed with a live band and guests in a bar set at the station.
Production work here involves lighting, some editing, floor
managing which involves interacting with guests, associate
producing which involves recruiting guests and scheduling the
band and performing related work. Other production jobs in-
volve the making of promotion videos under Karen Provenza,
who is alleged to be a statutory supervisor. She supervises two
employees, who are long-term temporaries loaned to her from
other departments. From time to time, Respondent will do live
broadcasts away from the station, such as a parade, or a county
fair and these efforts require production employees to meet
special challenges.
a. Helen Perry
Helen Perry was hired by John Perry as an MCO in May
1992 and was terminated by Perry on or about April 29. Helen
Perry’s tenure with Respondent is checkered to say the least.
Shortly after she was hired, Perry was tested as to her knowl-
edge of the MCO duties and skills (R. Exh. 14). In a note to
Helen Perry about the test results, John Perry wrote, “Helen, I
think its GREAT you passed so well! But I need to know you
do understand Questions 20 and 42 as they are important (R.
Exh. 15). Perry had missed these two questions which relate to
the “Hot Line” phone in the Master Control Booth and the
meaning of “Multiplex” (i.e., to remedy the lack of audio dur-
ing a broadcast, the MCO uses the remote control to apply the
audio signal temporarily to one of the two visual tubes until a
permanent solution is found). Because these two missed an-
swers in 1993 would relate to Perry’s performance in April
1996, they are deemed relevant to the case.
Helen Perry made other mistakes and committed other in-
fractions while employed by Respondent. For example, in
November 1992, Helen Perry was reprimanded in writing for,
on two occasions before and after her shift, allowing a nonem-
ployee into the building during nonbusiness hours in violation
of Respondent’s security policy. Perry’s explanation that she
allowed her fiancee in only to use the bathroom appears to be
refuted by the length of the person’s visit and by the fact that it
happened twice on the same shift (R. Exh. 30). Then in Febru-
ary 1993 she ran an oral introduction on TV-20 for the program
“Untouchables” when she should have run an introduction for
the program “Perry Mason” (R. Exh. 17). For this mistake, she
was reprimanded by John Perry (R. Exh. 31) and told that this
and other errors could not continue. On May 26, 1994, Helen
Perry expected to be relieved for a lunchbreak by another then
employee named Robin Baskin. While the facts are not alto-
gether clear, it appears that Helen Perry left the master control
booth, but for some unknown reason, Baskin who had been
standing nearby did not take over. Due to the lack of anyone
performing MCO duties, a blank screen ran for 7 minutes (R.
Exh. 18).3 Helen Perry was found to be most responsible for
the incident and given a stern written reprimand by John Perry
whose apparent recommendation for dismissal was overruled
by Gabbert and Lincoln (R. Exhs. 19, 32).4

3 I credit Respondent’s evidence that having a blank screen run and
to a lesser extent no audio, is a major concern of Respondent’s man-
agement and in the industry in general. When this happens, viewers
will tend to go elsewhere and their departure will directly affect adver-
tisers’ willingness to spend their dollars with a given television station.
4 Helen Perry credibly testified that she never saw R. Exh. 32 before
she had been terminated. Instead, on April 30, when she came in to
pick up her final check, she checked her personnel file and found it
there. This is consistent with Respondent’s disciplinary policy which is
informal and irregular and not calculated to punish an errant employee,
a concept seemingly foreign to Respondent. Moreover, John Perry
conceded that with respect to a memo alerting employees to the
“sweeps” month (R. Exh. 33), that he sometimes procrastinates. Ac-
cordingly, I can’t be certain when John Perry wrote R. Exh. 32.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782
Finally, I note that while employed by Respondent, Helen
Perry also worked parttime as an MCO for KRON–TV. While
so employed for KRON, Helen Perry made some sort of an on–
air mistake which John Perry became aware of and jokingly
related to other employees at KOFY, Channel 20.
Notwithstanding all of this, Helen Perry was placed in the
prime time MCO spot about 2–3 years before she was termi-
nated and never moved from it. This shift, from 5 p.m. to 1
a.m. is critical to Respondent’s profits. In fact, when Gabbert
added additional duties to the MCOs after the election, he spe-
cifically exempted the prime-time MCO (R. Exh. 4) because he
felt their attention should not be diverted from this daily impor-
tant time period. In May 1994, Helen Perry received a sched-
uled merit pay raise. Then in November 1994, John Perry is-
sued a memo to employees announcing that Dave Figura, who
did not testify, was designated chief MCO and Helen Perry was
designated alternate chief MCO (GC Exh. 29). Prior to this
announcement, Figura had been the alternate MCO and he
moved up when the incumbent left. The duties of the chief
MCO include ensuring that various logs and records are kept up
to date and meeting with FCC officials when they make either
scheduled or unscheduled inspection visits. In Figura’s ab-
sence, Helen Perry was expected to perform these duties.
All of this brings us to the events for which Helen Perry was
fired. About 12:30 a.m. on April 26, for reasons that even
Chief Engineer Coulam with the benefit of expertise, hindsight,
and investigation did not know, the audio portion of the pro-
gram in progress went off. In its place, a hissing sound ema-
nated from the speaker in the master control booth and from
however many television sets were turned to the program. The
interrupted program happened to be a so-called “infomercial”
for father’s day tools and the absence of sound lasted about 7
minutes.
Respondent does not claim that Helen Perry was responsible
for the initial failure, but it faults her for not effectively taking
certain standard steps to remedy the problem immediately. In a
letter to Helen Perry, dated April 29, John Perry succinctly
states what is Respondent’s basic position in the case:

Ms. Helen Perry
1333 N. Camino Alto #248
Vallejo, CA 94589

Dear Helen:

As you are aware, we apparently lost a temperature
sensor in the Aural transmitter around 12:36 am last Fri-
day morning, while you were the operator in charge. Al-
though we have invested in all of the necessary transmitter
equipment to provide a way to multiplex audio onto the
video transmitter tubes, you apparently forgot or failed to
use it. You know that the multiplex feature has been an
option for the operator since the day the main transmitter
was installed several years ago. Nonetheless, the owner of
the station, Jim Gabbert, had to telephone you to advise
you to use Multiplex to restore on-air audio.
You not only forgot about multiplex, you failed to fol-
low standard procedure by calling, then paging Steve Cou-
lam to have him help you. When Mr. Gabbert called you,
after seeing the lack of audio on the air, he had to guide
you through the operation and audio was restored immedi-
ately. Had you followed the procedures that were in place
in the event of the failure of the Aural tube, this seven-
minute gap would not have happened. As it was, your
failure to follow these procedures cost us viewers, and cost
the station in lost paid-programming on the very first night
of the ratings sweep. This follows an incident you were
warned about nearly two years ago when you and another
operator misunderstood which one of you was taking
lunch––resulting in both of you leaving Master Control
unattended, which again resulted in seven minutes of dead
air.
The situation that occurred last Friday morning was se-
rious and, most importantly, was avoidable had you fol-
lowed the appropriate procedures. Because you failed to
do so, your employment is hereby terminated, effective
immediately.
Enclosed please find your final paycheck, which in-
cludes your unused vacation pay.

Very truly yours,

/s/ John Perry

John Perry
Technical Operations Manager

[GC Exh. 26.]

In a second memo to all employees, also dated April 29, John
Perry informs that Helen Perry is no longer with the company
and should be treated like any other nonemployee (GC Exh.
12).
As a general guide to what Helen Perry should have done
under the circumstances, I turn first to the KOFY master con-
trol operator’s guide, sec. 4 (Perry Exh. 1). Some of the rec-
ommended steps have been superseded by the Moseley remote
control which had only recently been installed before April 25.
A chart on how to operate the Moseley was supposed to be in
the Master Control booth (R. Exh. 10). A memo to all MCOs
from Steve Coulam was also supposed to be posted in the same
place and reads as follows:

DO NOT REMOVE THIS!

READ

To: All Operators (cc: John Perry)
From: Steve Coulam
Subj: Transmitter Control

April 10, 1996

We are now using the new Moseley remote control for trans-
mitter readings and control functions: The procedure is as fol-
lows:

To read VISUAL power, push 1 then CHAN. The dis-
play will then indicate output power for Channel #1 in %.
To read AURAL power, push 5 then CHAN. The dis-
play will then indicate output power for Channel #4 in %.
Channel 1 is TOTAL VISUAL OUTPUT POWER;
RAISE will turn the transmitter ON, and LOWER will
turn the transmitter OFF.
KOFY TV-20 783
Channel 2 is also TOTAL VISUAL OUTPUT
POWER, but RAISE on channel #2 INCREASE visual
power output, LOWER will lower it. You use this to ad-
just visual power up & down to keep it legal.
Channel 3 is VISUAL #1 POWER
Channel 4 is VISUAL #2 POWER
Channel 5 is AURAL OUTPUT POWER; RAISE will
adjust AURAL power UP and LOWER will adjust it
DOWNWARDS. This is used to keep aural power legal.
As you can see, if the reading on channel #1 drops to
25% or so, you can then look to actually see which visual
is down by looking at channels #3 & 4.
When you use a RAISE or a LOWER function, you
must FIRST press “TAKE CONTROL.” Once you do
this, you’ll have 20 seconds to execute your command. If
more than 20 seconds passes, you’ll have to push “TAKE
CONTROL” again. It is not necessary to push this simply
to read the channels.
If you find yourself with NO readings per chance, try
pressing 1 then SITE. This will ensure that the unit is
“looking” at the Sutro system. The unit will always tell
you what SITE is selected in the display.

[R. Exh. 28.]

In a discrepancy report (DR) filed immediately after the inci-
dent, Helen Perry wrote in part, [that the remotes weren’t work-
ing] but “I didn’t know that you had to push the ‘take control’
button.” (R. Exh. 34.)
What Helen Perry did do was try to call Coulam without
success, but she did not attempt to page him. Now in a panic,
Helen Perry called for help from production people in the
building, and Paul Pilette and Pat Huginin responded. The
former testified as a Respondent witness. No longer employed
by Respondent after 13 years ending in August, Pilette im-
pressed me as a credible witness. Pilette credibly testified that
neither he nor Huginin nor Perry could find Coulam’s memo
(R. Exh. 28) on the night in question, though he recalled seeing
it before that night. Pilette further supported Perry’s version
that the Moseley Control didn’t work at first, thus the strong
incentive to find Coulam’s memo. While searching for it,
Helen Perry called John Perry waking him up. Before he could
respond to the problem, Gabbert called in on another line as he
had been watching his television at home at the time. He asked
Helen Perry if she had “multiplexed” yet, but before she could
respond to say that the Moseley was not working properly,
Pilette said, press the “take control” button, which Perry did
and the audio was then restored. Pilette further testified that he
was in the booth for several minutes before multiplexing (Tr.
1425) “because the unit [Moseley] was new. And we weren’t
that familiar with it” (Tr. 1432).
John Perry who had been left hanging when Gabbert called,
then hung up and called Coulam, waking him up and told him
of the problem. Not knowing that by then, the problem had
been resolved, Coulam got dressed and drove to the Mount
Sutro transmitter where he undid the temporary multiplex solu-
tion and found the audio tubes working without a problem.
After the incident in question, Coulam wrote a memo to all
MCOs which reads as follows:

To: All Operators, cc: John Perry
From: Steven Coulam
Subject: Multiplexing in the event of an Aural FAILURE

April 26, 1996

Dear Operators:

In the event of an aural transmitter failure, such as the
one experienced last night, remember that you can always
MULTIPLEX, that is, Channel 29 and LOWER.
However, due to technical circumstances, we are find-
ing it necessary to dump the transmitter BEFORE you
multiplex.
Therefore, the process to multiplex is as follows:

Select Channel #1, Take Control, and LOWER.
Select Channel #29, LOWER
Wait for exactly 15 seconds.
Select Channel #1, Take Control, and RAISE.

You are now multiplexed. Now, because the aureal
has failed, it might be a good idea to get hold of me as
soon as possible, as well as contacting John. If it is the
middle of the night, and you cannot raise me by phone, be
sure to page repeatedly as well as calling and leaving a
message on my answering machine.

/s/ Steve Coulam

[GC Exh. 25.]

This after-the-fact memo is some evidence to support Perry’s
version of events.
After the incident, Helen Perry came to work the next day, a
Friday, and spoke briefly about the incident to John Perry, ad-
mitting that she had forgotten to page Coulam and to multiplex.
John Perry in turn also spoke to Pilette about the incident and
discussed it with Gabbert recommending that Helen Perry be
terminated. Gabbert concurred. On the following Monday,
April 30, John Perry called Helen Perry at home to tell her not
to come in that evening as she was being terminated for the
events of April 26. Helen Perry came in anyway to pick up her
final check from Michelle Mattea and acknowledged to Mattea
that she had made a mistake. However, Helen Perry also
adopted a philosophical attitude, telling Mattea that this bad
experience might open new opportunities in another area of the
country.
Respondent presented evidence to show that this incident
was made more serious because the time in question was part of
the “sweeps” period when audience viewing of television sta-
tions is measured, program by program. I accept this conten-
tion, but find it unlikely that a program like the Father’s Day
infomercial was measured for audience viewing.
Notwithstanding the relative new Moseley remote control,
the lack of formal training on how to use the Moseley and other
equipment, which was part of Respondent’s informal culture, I
find that Helen Perry did make a serious mistake as she herself
acknowledged. Moreover, although there were certain mitigat-
ing circumstance, it was up to the MCO, assigned to the prime
time shift to inform herself on how to operate the equipment in
the event of an emergency loss of power. I further assume,
without finding, that Respondent suffered certain financial
consequence as a result of Helen Perry’s mistake. Whether
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784
Perry should have been terminated for her error is, as a general
rule, a business judgment which only Respondent is capable
and qualified to make. This finding does not end the inquiry on
Helen Perry, but only begins it as I take up the parties’ argu-
ments in the analysis and conclusions section of this decision.
b. Brian Shimetz
This alleged discriminatee and the General Counsel witness
began working for Respondent in June 1993 and resigned in
June, after being told by John Perry that he had been selected to
replace Helen Perry as the prime time MCO from Monday
through Friday. During the time Shimetz had worked at Re-
spondent, he had worked both as an MCO and in production
and much preferred the latter, finding the former work ex-
tremely boring. Except for his final 2 weeks of work where he
worked as Helen Perry’s replacement after having given notice
to John Perry, Shimetz had worked in the recent past splitting
his workweek 2 days MCO and 3 days production.
Once Helen Perry was terminated, John Perry first assigned
Pat Huginin to replace her for the next 2 weeks. As already
noted, Huginin had been working the same time period under
Provenza in Promotions, had MCO experience, and could make
the temporary transfer without difficulty. Perry testified that he
could not use Huginin permanently on the prime time shift,
because “he’s better suited to promo production” (Tr. 988–
989). So John Perry also gave Shimetz 2 weeks’ written notice
that he was to be transferred into Helen Perry’s timeslot:

April 29, 1996

Memo to: Brian Shimetz

From: John Perry

Subject: Shift change

Brian, starting May 14th—you will be assigned the prime–
time MCO shift, Monday thru Fridays, 5 pm to 1 am.

This will finally give you the weekends off you have been
asking for!

I realize the 14th is a Tuesday—but you will be off on Sunday
and Monday from the previous work week—that means your
first week will be only Tuesday thru Friday.

John Perry
Technical Operations Manager

[GC Exh. 28.]

Shimetz had two objections to his new assignment: First, he
didn’t wish to do MCO work exclusively since he found it bor-
ing; second, he didn’t want to work on the prime-time shift as
he would never have time to see his girlfriend during the week.
Shimetz had lodged these same two objections in September
1994, when John Perry had offered Shimetz an opportunity to
work the prime-time MCO shift. That time John Perry had
accepted these reasons and assigned the shift to Helen Perry
instead. Although Shimetz had been working on the split
MCO/production shift during days, he was required to work on
Sundays, which he didn’t like either as he desired his entire
weekend to be free. Shimetz was reluctant to perform any
MCO work and asked John Perry in 1994 to assign him full-
time production as soon as possible.
In May, Shimetz’ pleas to remain where he was were not
successful. As an alternative, he asked John Perry if he could
return to a split shift performing 3 days of production and 2
days MCO. Perry was noncommittal but told Shimetz that he
would look into the possibility. In fact, Perry did discuss the
matter with Provenza, but by the time Shimetz resigned, no
decision had been reached. In fact, Shimetz gave John Perry 2
weeks notice on May 14, that in light of Shimetz’ inability to
get answers to certain questions, he intended to resign. The
pending questions: whether Shimetz could work a split shift;
whether the assignment was to be permanent or temporary, and,
to Gabbert, if Shimetz was the best man for the prime-time job,
whether Shimetz could have a raise (no amount specified).
On May 20, John Perry wrote to Paul Pilette informing him
that Shimetz was resigning effective May 31 and that Frank
Pappas would be moving into the shift starting June 3. Perry
also wrote, “in the event of ANY change with Frank (expected
or unexpected), I may need to move you to the evening (5 p.m.
to 1 a.m.) shift for a period of time. This would be while train-
ing and readying a replacement MCO for Helen Perry (GC Exh.
2).
On May 31, after Shimetz finished his shift, John Perry es-
corted him off the premises, but told him he would be willing to
provide a reference to a future employer. Perry credibly testi-
fied that he liked Shimetz and was sorry to see him go as he did
good work. In fact, Shimetz came back as a free-lance cam-
eraman for a single day’s work broadcasting a parade.
Before concluding this segment of the case, I note a few
miscellaneous facts:

(1) Prior to May 1, Shimetz’s shift had changed nu-
merous times and he occasionally was required to work
shifts covering both Saturday and Sunday;
(2) When Shimetz performed work as an MCO, work
he hated, he was perhaps the most avid reader of novels
and magazines, a practice, as I noted above, that was toler-
ated at least up to the election;
(3) There is controversy as to whether John Perry as-
signed Shimetz to the prime-time shift on his own or
whether Perry was merely doing what Gabbert had told
him. Both Frank Pappas and Shimetz testified that in a
conversation between Shimetz and Perry in Pappas’ pres-
ence, wherein Shimetz protested the new assignment and
asked whether it was temporary or permanent, Perry said,
he didn’t know as the decision to move Shimetz had been
Jim’s [Gabbert]. Perry then added that if Shimetz didn’t
like it, Jim would be happy to accept his resignation. This
version of events is, in a sense, supported by Provenza
who met with Shimetz in a bar after work, subsequent to
notice of Shimetz’s reassignment. Provenza asked, do you
know why Jim put you in that shift. Shimetz answered,
“Yes to get me to quit.” And she said, “right” [Tr. 548].5

When Shimetz talked to Gabbert, Gabbert denied that he had
made any such decision and said he told Perry only to get the

5 In the analysis and conclusions segment of this decision, I will find
Provenza to be a statutory supervisor, thereby weighing her statement
against Respondent as an admission.
KOFY TV-20 785
best person for the job. At this point, Shimetz asked for a raise,
which Gabbert said he’d look into. According to Shimetz, he
returned to Perry to tell him that Gabbert had said that Perry
made the decision, to which Perry allegedly told Shimetz that
Gabbert was lying. In their testimony at hearing, both Perry
and Gabbert denied that Gabbert had made the decision to as-
sign Shimetz to replace Helen Perry. In light of the evidence, I
credit the General Counsel’s witnesses to find that John Perry
made the statement attributed to him. (However, I do not be-
lieve for a minute that Perry told Shimetz that Gabbert was
lying.) While that does not necessarily make it so, the conflict
between Respondent’s managers as to how Shimetz came to be
reassigned to Helen Perry’s shift and Perry’s testimony that it
would be “very unusual . . . for him to receive instructions from
Gabbert to assign a particular employee to a particular shift (Tr.
1010) raise inferences in the testimony that I will weigh against
Respondent.
c. Frank Pappas
Pappas worked for Respondent between March 1992 and
May 30 when he resigned. Primarily employed as an MCO,
Pappas also performed some work in production such as floor
managing, editing, associate producing, and audio and camera
work. Like Helen Perry, Pappas’ work history with Respon-
dent reflects occasional work-related problems. For example,
in July 1995, Pappas had been working on the weekly, “Late
Night with James Gabbert” show, when he was advised that
Gabbert was not happy with his work as floor manager and
cameraman. Accordingly, Pappas was removed from these
jobs, but was allowed to continue working on the show as asso-
ciate producer with primary duties of scheduling and coordinat-
ing the guests. Sometime after the election, Pappas was also
removed from his job as associate producer. Pappas’ wages
were not affected.
On December 18, 1995, Pappas met with John Perry and
head of Production Jeff Giles for the purpose of generally dis-
cussing Pappas’ job performance. At the conclusion of the
meeting, Perry prepared a memo to the file which reads as fol-
lows:

December 18, 1995

Subject: Frank Pappas III

On Friday, December 15, 1995—a meeting with Frank
Pappas and Jeff Giles was held in my office to discuss
Frank’s job performance here at KOFY.
The meeting was prompted by Frank Pappas’ failure to
broadcast an EBS emergency announcement as he had not
checked to see if the EBS station (KCBS) was correctly
feeding the Master Control switcher. (The AM radio tuner
had been accidentally tuned to KGO radio instead of
KCBS.)
Frank had to go up to the KOFY-AM control room to
obtain the correct information and then he initiated an EBS
Activation—long after the announcement should have
been put on air.
This was the second time Frank Pappas has been in-
volved in incorrect EBS procedures–and both instances
were discussed fully with him. One of the PRIME duties
of a Master Control Operator is to run EBS Activation’s
when they occur. FCC rules require the operator to follow
a strict procedure in the event of EBS Tests and/or Activa-
tion.
Frank Pappas had been removed from studio produc-
tion earlier this year (at the end of July 1995) due to his
not checking all of the required parameters needed to
video-tape the All Nights’ show. His usefulness to the
production department was reduced greatly at that point
since he cannot participate in studio/production work, es-
pecially where the station owner is directly involved. The
owner of the station expressed his dissatisfaction with
Frank’s job performance at that time.
I feel that Frank is also headed towards a similar situa-
tion as a Master Control Operator—especially when he
didn’t check all parameters required to air an EBS! My
lack of confidence in his ability to pay attention to details
consumed much of the discussion in the meeting held in
my office.
I further suggested that Frank’s value and usefulness
as an employee would be seriously undermined should I
be required to remove him from any MCO position. I
suggested that he might review his professional goals here
at KOFY, because I believe he may well lack the inter-
est/enthusiasm necessary to do the job required of him.
Frank also was late to work Friday, and he was re-
minded that his work day is currently 8:45 am thru 5:15
pm . . . however a computer check (copy attached) of his
attendance shows that his being late today is a rare occur-
rence.
In summary, Frank was reminded that he has nearly
exhausted his “usefulness” to the company with the prob-
lems he has caused these last few months. He agreed that
his performance was not up to his best—and that he un-
derstands further instances may well be “the straw that
breaks the camel’s back.”
I feel both Jeff Giles and myself made our positions
very clear to Frank Pappas about performance on-the-job,
and that the time for allowing mistakes to continue are
now at an end.

/s/ John C. Perry /s/ Jeff Giles

John Perry Jeff Giles
Technical Operations Manager Production Manager

[R. Exh. 6.]

This document was prepared and placed in Pappas’ personnel
file without notice to Pappas. He became aware of it several
months later when he reviewed his personnel file.
On February 21, for unknown reasons, while working as an
MCO, Pappas experienced a loss of audio for 20–30 seconds on
a program in progress. Apparently, the problem corrected itself
and Pappas merely prepared a routine discrepancy report (R.
Exh. 11) which led to no further consequences.
On March 20, Giles placed a memo in Pappas’ file to the ef-
fect that Pappas had been dilatory in performing a certain task
assigned to him by Giles (R. Exh. 7). Once again, the memo
was placed in Pappas’ file by Giles without notice to Pappas.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786
This time Pappas became aware of the document in early May
and he prepared a written rebuttal to Giles, listing certain al-
leged extenuating circumstances and accusing Giles of “grossly
exagerating” Pappas’ dereliction (R. Exh. 8).
Beginning in November 1995, Pappas had begun to work
part time at KTVU, Channel 2, without notice to anyone in
Respondent’s management. Pappas earned $19 per hour there
as compared to $12 per hour at Respondent. Working up to 20
hours per week at Channel 2, Pappas had been warned from the
beginning by his superiors at Channel 2 not to quit his full-time
job at TV-20, as there was no guarantee that Channel 2 had
more hours available for Pappas. While at Channel 2, Pappas
was trained in various technical equipment such as dubbing and
microwave, and doing camera work, and Pappas candidly testi-
fied that his long-term goal was to leave TV-20 and be hired by
Channel 2 on a full–time permanent basis.
On or about January 15, notice of the Union’s petition was
mailed to Respondent (GC Exh. 7). Then on Friday, Janu-
ary 19, after his day shift ended, Pappas was called into a meet-
ing in John Perry’s office with Giles also present. Perry testi-
fied at hearing that prior to this meeting, he had heard a rumor
from a source he could not recall that Pappas had been working
at Channel 2. Accordingly, he asked Pappas if Pappas was
working at Channel 2. Pappas, the most prominent in-house
union organizer, was guarded in his reply. Pappas stated that
he wasn’t sure if it made a difference and he wasn’t sure if he
was required to answer the question. At this point, John Perry
left the office and returned minutes later with Gabbert. Perry
then repeated his inquiry and Pappas repeated his prior answer.
Gabbert then took over, saying that he could fire Pappas on the
spot. Gabbert then launched into a discussion of alleged Cali-
fornia law permitting employers to prohibit their employees
from working part time at competitors. Pappas noted that he
was uncertain what his rights were and Gabbert recommended
that he seek legal advice over the weekend, say from NABET’s
counsel,6 and return to work on Monday prepared to answer
Perry’s question.
As matters turned out, Pappas was unable to secure legal ad-
vice over the weekend, so on Sunday he called first John Perry
and next Gabbert to request an extension of time. As already
noted, Pappas told each that he was recording the conversation
(GC Exh. 8). A transcript of the two conversations was pre-
pared and entered into the record (GC Exh. 8(a)). In his re-
corded conversation, Gabbert launched a several minute solilo-
quy, finally agreeing to Pappas’ request for a “comp” day off
for Monday.
On Monday, Pappas called Channel 2 and asked for a week
off, which request was granted. Then Pappas accompanied by
another employee named Marty Marks, talked to Gabbert and
told him either he was not then working at Channel 2, or was

6 Gabbert denied in his testimony that his referral of Pappas to union
counsel showed knowledge of Pappas’ union activities. Instead, ac-
cording to Gabbert, he merely assumed that all unit employees had
signed union authorization cards. I reject this explanation. Respondent
witnesses Michael Hollingshead and Robert Trigg took a public posi-
tion against the Union and, in light of the election results, there may
have been others. Accordingly, Gabbert must have known that not all
unit employees signed cards.
not working at Channel 2 “at this time,” but asked permission
to work there. As Pappas had not received an answer from
Gabbert by Friday, he resumed working at Channel 2 as before,
on evenings and weekends. Then at a mandatory preelection
meeting on February 9, while Gabbert was talking about sub-
jects relating to the election, Pappas interrupted him to say
publicly that he was back working at Channel 2. Gabbert did
not respond although he claimed to be stunned by the news.
And Pappas heard no more about the subject of his second job
until April 30.
On April 30, Gabbert issued a written policy on outside em-
ployment which according to Gabbert and Perry did no more
than put into writing what had been the existing unwritten pol-
icy for several years. This new policy reads as follows:

MEMORANDUM

TO: All Employees

FROM: Jim Gabbert

DATE: April 30, 1996

RE: OUTSIDE EMPLOYMENT

_________________________________________________

While employed here, all employees are expected to
devote their energies to their jobs with KOFY. For this
reason, certain types of outside employment are strictly
prohibited:
1. Employment that conflicts with an employee’s
work schedule, duties or responsibilities.
2. Employment that creates a conflict of interest or is
incompatible with an employee’s employment with
KOFY.
3. Employment that impairs or has a detrimental effect
on an employee’s work performance.
4. Employment with a company that directly or indi-
rectly competes with the business or the interests of
KOFY.
Employees who wish to engage in outside employment
that may create a real or apparent conflict of interest in any
of the above categories must submit a written request to
Jim Gabbert or Michael Lincoln explaining the details of
the outside employment and requesting authorization for
such employment. Employees who currently have outside
jobs that may fall within any of the above categories must
advise Messrs. Gabbert or Lincoln of such in writing by
May 15, 1996, to obtain authorization to continue such
outside employment. If authorization to work for another
employer is denied, and the employee continues to work
there, or if the employee having outside employment
which may conflict with this policy does not seek written
authorization from Messrs. Gabbert or Lincoln, he or she
may be subject to immediate dismissal. Any questions
concerning this policy should be directed to Messrs. Gab-
bert or Lincoln.

[GC Exh. 13.]

I do not credit the Respondent’s evidence that prior to this
written policy, there had been a consistently publicized and
KOFY TV-20 787
applied unwritten policy regarding outside employment. For
example, Pappas credibly testified that in mid-1992, John Perry
told Pappas that the station doesn’t care if employees work at
other stations. Between September 1991 to September 1992,
Helen Perry worked as an MCO for Station KRCB7 with
Perry’s knowledge and without objection. Then between Sep-
tember and October 1993, Helen Perry was also permitted to
work at KRON as an MCO with John Perry’s knowledge and
permission. Helen Perry voluntarily choose to end her job at
KRON, because working two jobs was too arduous. The Gen-
eral Counsel witness Mark Metzler worked at KTVU, Channel
2, for about a month in August, before resigning from TV-20.
Shimetz worked part time at KTSF, Channel 26, an Asian sta-
tion, after being hired by TV-20 and again John Perry was
aware, but did not object. Another General Counsel witness,
Fred Beytin, a former Respondent employee, was hired by John
Perry in August 1994, with the mutual understanding that
Beytin would continue to work at KGO where Beytin had been
working before Perry hired him. Beytin explained to Perry that
he desired to be available when needed as a daily hire at KGO
and Perry responded that there was no problem so long as there
was no interference with work schedule or work itself. As
matters turned out, Beytin worked very few days for KGO be-
fore resigning from TV-20 in June.
To be sure, a Respondent witness named Robert Trigg was
aware of Respondent’s unwritten policy on outside employment
which required management permission. Trigg is a current
Respondent employee, and has been so employed for 13 years
and is an opponent of the Union. Similarly, Respondent wit-
ness Michael Hollingshead, also a current 15-year Respondent
employee, was told by John Perry, shortly after his hire, of the
unwritten policy and that requests for permission are handled
on a case by case basis. In fact, Hollingshead who became the
leader of the antiunion faction before the election, was permit-
ted by Perry to work at KTSF, Channel 26 for a period of time.
I conclude that if Respondent had an unwritten policy re-
garding outside employment, it was disclosed to employees on
an irregular basis and was rarely enforced, if at all, until the
Union’s petition was filed. This conclusion is based not only
on the discussion above, but is also based on a conversation
between Pappas and Provenza at work within a few days of
General Councel Exhibet 13. Provenza commented to Pappas
that Gabbert’s memo of April 30 (GC Exh. 13) might just as
well as have his name on it.
On May 15, Pappas sent a memo to Gabbert filing a claim
for $618 in backpay based on breaks missed as a result of com-
pany policy and based on a compulsory meeting of Decem-
ber 15, 1995, which resulted in the written reprimand to Pappas
published above (GC Exh. 15).8 On the same date, Pappas sent
a second memo to Gabbert which reads as follows:

7 This station was a public broadcast station which was not in direct
competition with TV-20. However, no one ever told Helen Perry that
was the basis for allowing her to work there.
8 On May 22, Gabbert wrote back to Pappas enclosing a check for
$16.48 and explaining the rationale for that amount. In part, the ac-
companying memo reads, “Prior to February 9, 1996, we simply al-
lowed the employees to take their breaks when they desired. After
February 9, 1996, we assigned employees specific times for them to

15 May 1996

To: Jim Gabbert

Fr: Frank Pappas III

Re: Outside Employment

As you have known for several months, I am also in
the employ of KTVU-TV Channel 2 in Oakland. My
work there is strictly technical in nature. Since my current
position here at KOFY is also strictly technical (I am no
longer charged with any producer responsibilities) no
genuine conflict of interest exists. Furthermore, based
upon its superior size, revenues, and ratings, it would seem
KTVU should be the one concerned about conflict of in-
terest, not KOFY.
As per your memo dated 30 April 1996, I am hereby
requesting authorization to continue my outside employ-
ment at KTVU. I am also requesting that your response be
written and include the reasons for your decision, positive
or negative.

Cordially,

/s/ Frank Pappas III

Frank Pappas III

[GC Exh. 16.]

The following day, Rachel Evangelista, Respondent’s direc-
tor of human resources, and Respondent’s witness wrote back
to Pappas, asking for details about Pappas’ outside employment
and also writing “Jim denies previously knowing that you are
or have been working there [KTVU]” (GC Exh. 17). At hear-
ing, Gabbert admitted that the quoted portion above was not
true, but explained further that he had simply “forgotten” that 3
months before, at the February 9 preelection meeting, Pappas
had informed him that he was working at Channel 2.
In any event, on May 16, Pappas wrote back to Evangelista
as follows:

16 May 1996

To: Jim Gabbert c/o Rachel Evangelista

Fr: Frank Pappas

I feel obligated to begin by stating that your denial of
current or previous knowledge regarding my employment
at KTVU is problematic. Mr. Gabbert, you were well
aware of my employment at KTVU as early as mid-
January. I informed you again of my employment at
KTVU during a mandatory meeting held on 9 February
1996. This meeting was called by you in response to the
“union vote” scheduled for 13 February 1996 and was at-
tended by the entire production staff. The main point here
is that you have been aware of my employment at KTVU
for several months; I have no difficulty substantiating my
position.
In response to your request for more information re-
garding my duties at KTVU, they are as follows:

take their breaks.” (GC Exh. 19.) More about the issue of employee
breaks will follow below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
Job Title: Studio Technician/Engineer
Department: Engineering
Supervisor: Ed Cosci
Phone: (510) 834–1212
Duties:
Setting-up & recording ENG—Truck feeds for news
Setting-up & recording SNG down-link feeds for
news/programming
Setting–up satellite down-links for Giants baseball
telecasts
Dubbing commercial/promo spots to beta for air in
Betacart system
T/C (keeping Betacart loaded with correct commercial/
promo spots for air)
Studio Camera for News
Monitor Auto-Loggers and Transmitter readings
Quality checking & timing shows prior to air

I would appreciate your response (positive or negative)
to be written and to include the reasons for your decision.
Please note that my providing you with the information
above DOES NOT constitute authorization for you to con-
tact KTVU for the purposes of verification via phone,
mail, or other means of communication. Should verifica-
tion be an area of concern for you, I am quite confident a
means to that end can be devised to the satisfaction of all
parties concerned.
Thank you in advance for your prompt attention to this
matter.

/s/ Frank Pappas III

[GC Exh. 18.]

On May 22, Gabbert wrote back to Pappas as follows:

May 22, 1996

To: Frank Pappas III

Fm: Jim Gabbert

re: Outside employment at KTVU

Thank you for providing your memos of May 15 and
16, 1996, in response to my request for information con-
cerning your outside employment.
To be clear, although I have asked you in the past, you
have never advised me what work you are doing at KTVU.
Now that you have done so in your memo of May 16,
1996, I regret to inform you that it appears that that em-
ployment is not compatible with your employment here.
The reasons for this decision are as follows:
First, as you know, aside from KBHK, KTVU is our
largest competitor in the Bay Area. In your capacity as a
master control operator at KOFY and generally, as an em-
ployee that works here, you have access to a wide variety
of sensitive information that we want to keep form KTVU.
For instance, at master control, you have access to our
commercial logs and thus know what commercials we are
running, how many, and when. Your memo indicates that
you would have access to this similarly sensitive informa-
tion at KTVU. At KOFY, you also have access to what
commercials are being produced and for what sponsors.
You would also have access generally, by being a KOFY
employee who is allowed free access to our building, to
know our sales promotions and sales planning, along with
our billing information. All of this is proprietary informa-
tion that we would not want to share with KTVU, even in-
advertently. Your employment at KTVU, therefore, is in-
compatible with your employment with KOFY.
In these circumstances, I cannot allow you to continue
your employment at KTVU while continuing to be em-
ployed here at KOFY. Hence, this is a request that you
cease working at KTVU by the close of business on
June 7, 1996. If you do not confirm with me in writing by
that time that you have terminated your employment at
KTVU. I will have no choice but to terminate your em-
ployment here with KOFY. I hope that will not be neces-
sary. I would like to work this out with you if possible,
but not in any way which would jeopardize KOFY’s inter-
est.
Please feel free to contact me if you wish to dispute
anything said in this memo or should you wish to further
discuss this matter.

[GC Exh. 20]

On May 23, Gabbert sent a memo to all employees which
reads as follows:

TO: All KOFY–TV Employees

FROM: Jim Gabbert

DATE: May 23, 1996

RE: OUTSIDE EMPLOYMENT AT OTHER TELEVI-
SION STATIONS

_________________________________________________

The purpose of this memo is to provide an example of
the type of outside employment that I would consider to be
incompatible with your employment here at KOFY. Due
to the proprietary information that our employees have ac-
cess to as a result of their employment at KOFY, you will
not be allowed to work at any competing general market
television station at any time in the future. If you are cur-
rently working at such a television station, and have not al-
ready informed me of such, please do so upon receipt of
this memo. If I do not or have not heard from you in this
regard, I will assume that you do not have such outside
employment. Your failure to immediately inform me that
you have such outside employment, and/or your refusal to
cease such employment, will result in your employment at
KOFY being immediately terminated.
Please feel free to contact me if you have any ques-
tions.

[GC Exh. 22.]

On May 24, Pappas wrote to Gabbert as follows:

24 May 1996

To: Mr. Jim Gabbert

Fr: Frank Pappas III

Re: Outside Employment

KOFY TV-20 789
Dear Mr. Gabbert,
In response to your recent denial of my request to con-
tinue my outside employment at KTVU while in your em-
ploy; please be advised that I have absolutely no intention
of terminating employment here at KOFY or at KTVU by
7 June 1996 or any other arbitrary date; thus I will be con-
tinuing my work at both stations for the foreseeable future.
Thank you for your time.

Sincerely,

/s/ Frank Pappas III

Frank Pappas III

[GC Exh. 21.]

According to Pappas, the conflict with Gabbert represented
by the series of memos placed a lot of stress on him and made
him nervous about possibly losing his job. On May 28, Pappas
met with Gabbert briefly to inquire about the May 24 memo
and to ask where the controversy stood. To this, Gabbert an-
swered that Respondent fully intended to fire Pappas, but only
after a couple more memos to make matters look good. Gab-
bert added that he knew Pappas was trying to position himself
so he could sue if he got fired. (Gabbert denied making these
statements, but I credit Pappas because this seems in accord
with Gabbert’s general strategy in dealing with the union issue,
both before the election and after. This strategy will be re-
flected in further discussions of the pre and postelection meet-
ings and the various 8(a)(1) allegations, all in the analysis and
conclusion sections of this decision.)
On May 29, Pappas called in sick to TV-20 and testified at
the hearing that he had a fairly serious case of diarrhea. Pappas
had been scheduled to work not only at TV-20, but beginning at
7:30 p.m., at KTVU, Channel 2. When Gabbert learned that
Pappas had called in sick, he asked Evangelista to call Channel
2 and ask for Pappas. Someone said that he wasn’t in, but was
expected at 4:30 p.m.. When she called Channel 2 a second
time, about 4:30 p.m., someone said Pappas was expected later.
In fact, Pappas did work part of his shift at Channel 2 that day,
testifying at hearing that he felt better later in the day.
The following day, Gabbert spoke briefly to Pappas around
noon, saying in a “slightly sarcastic tone,” “I hope you’re feel-
ing better.” Then Gabbert stated that he was upset because
Pappas had called in sick at TV-Channel 20 but had gone to
work at Channel 2. Pappas angrily said that he had diarrhea, to
which Gabbert responded, “Sure!” Pappas accused Gabbert of
spying on him and of calling him a liar. Gabbert denied both
charges, but said that he’d like to see Pappas [attendance] re-
cords at Channel 2 and that he’d subpoena them if necessary.
Then Gabbert went back to his office on the second floor of the
building.
A short time later, Pappas appeared at Gabbert’s office in a
rage, denying that Gabbert had any legal authority to subpoena
his records from Channel 2. Gabbert blithely responded, that
he might just call his friend at Channel 2, Kevin O’Brien, the
station general manager, and get the records from him. This
final remark pushed Pappas over the edge and he rushed into a
nearby office to type out his resignation. The wording of this
ill-advised document is helpful to gauge Pappas’ state of mind.
That is, the wording assists on the issue of whether Pappas
made a voluntary, uncoerced, and unprovoked decision to leave
Respondent’s employment. Here is what Pappas typed:

30 May 1996

To: Jim Gabbert

Fr: Frank Pappas III
Mr. Gabbert, congratulations—you have finally suc-
ceeded in creating an environment so hostile to me that I
can no longer tolerate being in your employ. I have been
able to tolerate your past and present attempts to oust my-
self and the other vocal union supporters simply because
my principles would not allow me to give up my rights
without a fight. But even I have limits, I WILL NOT
TOLERATE BEING CALLED A LIAR!
After I called in sick yesterday, you proceeded to call
KTVU throughout the day in an attempt to establish that I
was calling in sick at KOFY so that I could work at
KTVU. To top it off—you never even tried to contact
me at my home! Had you done so you would have dis-
covered that I was in fact at home all day battling a case of
diarrhea!!! Yes, I did end up going to work at KTVU that
evening–but not until 7:30 p.m.—2-1/2 hours past my
scheduled shift here at KOFY!
The final reprehensible acts was your behavior today.
Your threat to “Subpoena KTVU’s payroll records and
check them against my Sick-days here” is laughable in
terms of legal procedures—however it is quite serious in
that it accuses me of lying. When I challenged your abil-
ity to subpoena records just because you feel like it–you
stooped even lower and suggested that KTVU would just
give them to you because you all “stick together.” This
statement is very interesting considering your contention
that being employed at another station is a direct threat to
KOFY and it certainly brings up numerous legal questions.
The bottom line is that you have accused my of lying.
I think you know that whatever conflict or disagreement
we have been involved with—from my union activity to
my refusal to quit KTVU or KOFY—I have always been
honest with you and very forthcoming—my positions have
never been ambiguous. How dare you accuse me of lying.
Therefore, for the sake of my own personal well-being,
I am forced to inform you of my resignation from KOFY-
TV 20 effective immediately.

/s/ Frank Pappas III

[GC Exh. 23.]

Pappas then took the letter and personally handed it to Gabbert.
B. Analysis and Conclusions
1. Provenza’s supervisory status
In Respondent’s Exhibit 36, Karen Provenza is listed as
“Promotions Director,” with no staff indicated. This is some-
what misleading since she has two staff, Jeff Fisher and Pat
Huginin, detailed to her by John Perry 4 and 2 years ago re-
spectively. Before taking over her current job in January 1991,
Provenza had been Respondent’s news director, supervising 30
employees. When that department was abolished, Gabbert
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
offered her the current job with a slight reduction in pay and a
corresponding reduction in workweek hours.
All agree that Provenza lacks authority to hire, fire, or disci-
pline. However, she assigns work to Fisher and Huginin and
directs them in their work. Provenza believes in the team ap-
proach in working with her subordinates, but if “push comes to
shove,” she has the final say. The idea for an approach to a
given promotion usually originates with Provenza.
As the party seeking to prove that Provenza is a supervisor,
the General Counsel has the burden of proof. Northwest Flor-
ida Legal Services, 320 NLRB 92 fn. 1 (1995). Section 2(11)
of the Act defines a “supervisor” as:

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or
effectively to recommend such action if in connection with
the foregoing the exercise of such authority is not merely of a
routine or clerical nature, but requires the use of independent
judgment.

The first portion of Section 2(11) is read in the disjunctive. The
possession of any of the powers enumerated there, however,
confers supervisory status only if its exercise “involves[s] the
use of true independent judgment in the employer’s interest”
Beverly Enterprises v. NLRB, 661 F.2d 1095, 1098 (6th Cir.
1981).
I find that for all times material to this case, Provenza was a
statutory supervisor because she responsibly directs the work of
her subordinates; Fisher and Huginin. To be responsible is to
be answerable for the discharge of a duty or obligation. The
focus of inquiry is whether the alleged supervisor is held fully
accountable and responsible for the performance and work
product of the employee he or she directs. NLRB v. KDFW,
Inc., 790 F.2d 1273, 1278 (5th Cir. 1986). In KDFW, Inc., the
court affirmed the finding of the Board’s Regional Director that
directors, producers, associate producers, and assignment edi-
tors at a television station were not proven to be statutory su-
pervisors. The facts of the instant case, however, are more like
those found in WTAR Radio TV Corp., 168 NLRB 976, 978
(1967), where the television directors excluded from the unit as
supervisors were in charge of video taping sessions for com-
mercials, promotion spots, and public service announcements.
The director is responsible for the program content, including
air quality. Like Provenza, the director also assigns work to
members of his crew based on his evaluation of the capabilities
of individuals. See also KDTN-TV, 267 NLRB 326 (1983).
In the instant case, Provenza testified that about half of the
work of her unit is routine where her two subordinates need
little or no direction, but the ratio changes throughout the year
(Tr. 1454). Whether the work is routine or not—and Provenza
is the one to decide what is routine—Provenza remains respon-
sible for the end product, the promotions and other material.
Thus she remains constantly responsible for the work of the
two persons assigned to her as the quality of their performance
would clearly affect Provenza’s tenure. Accordingly, I find that
Provenza had the authority by using independent judgment to
responsibly direct the work of Fisher and Huginin in the inter-
est of the Employer. She is therefore a statutory supervisor.9
See NLRB v. Health Care & Retirement Corp., 511 NLRB 571,
573–574 (1994).
Because Provenza is a supervisor, I will impute to Respon-
dent the remarks she made to Shimetz and to Pappas. Further,
in agreement with the General Counsel (Br. 22), I find that it is
undisputed that prior to her termination, Helen Perry told
Provenza, Program Director Michelle Mattea, and Public Ser-
vice Announcement Director Carol Fertick of her support for
the Union. As to Provenza, Helen Perry told her that her sup-
port for the Union wasn’t a money issue but rather a matter of
getting equal treatment (Tr. 341). Provenza’s knowledge of
Helen Perry’s union activities will also be imputed to Respon-
dent.10
2. Alleged 8(a)(1) violations
a. Overview
As the reader may have gathered by now, Gabbert while an
engaging and affable person as one might expect for an on-air
television personality, is also loquacious. This trait is most
apparent in this segment of the case. In conducting his cam-
paign against the Union, Gabbert conduct both a preelection
(February 9) and postelection (on or about February 20) meet-
ing with unit employees. In addition, he conducted several
individual meetings with employees, again before and after the
election, sometimes “one on one” in his office or in and around
employee work areas, and sometimes with one or more other
representatives of management present. As I will find below,
in his zeal to defeat the Union and to erect a barrier against the
Union or any Union returning, Gabbert crossed over the line
repeatedly and violated the Act.
In reviewing the 8(a)(1) allegations of the complaint involv-
ing supervisor’s statements, I will, where applicable, use the
Board test to determine whether, under all the circumstances,
the supervisor’s remarks reasonably tend to restrain, coerce, or
interfere with the employee’s rights guaranteed under the Act.
This test does not depend on motive or whether the coercion is
successful. GM Electrics, 323 NLRB 125 (1997). Moreover,
in determining whether statements are coercive threats, the
Board considers the effect of the remarks from the point of
view of those whose livelihood may depend upon them in order
to pick up implications intended by employers that might be
more easily dismissed by a more disinterested ear. Indiana
Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1299 (6th Cir. 1988).
Not all the allegations involve threats; some involve the offer
of benefits and solicitations of benefits. These too will be ap-
propriately reviewed.

9 There is also evidence that Provenza had the authority to agree to
or deny Shimetz’s proposal for a split workweek involving 2–3 days of
production. This authority over employee work schedules and job
assignments is further evidence of her supervisory status. That Pro-
venza did not exercise her authority before Shimetz resigned is of little
import, since it is the existence of authority, not the exercise of that
authority, which determines whether an individual is a supervisor.
Famous Amos Chocolate Chip Cookie Corp., 236 NLRB 1093 (1978);
Babcock & Wilcox Construction Co., 288 NLRB 620, 621 fn. 3 (1988).
10 Activities, statements, and knowledge of a supervisor are properly
attributable to the employer. Pinkerton’s, Inc., 295 NLRB 538 (1989).
KOFY TV-20 791
b. Alleged unlawful solicitation of employee complaints
and grievances
As already noted, Respondent held a mandatory meeting of
unit employees on February 9. Some the General Counsel wit-
nesses recalled that John Perry was there, either continuously or
in and out, and that Giles and other supervisors were also there.
I am satisfied that Respondent witnesses are correct—that only
Gabbert and Lincoln were present and that Gabbert did almost
all of the talking.
Gabbert told the employees that Respondent had been in fi-
nancial straits in recent years and that he was embarrassed that
the wage freeze which he had ordered in 1993 had never been
lifted, although he thought it had been. Gabbert also referred to
a 401(k) plan then being formulated. Unfortunately he added,
due to the approaching election only nonunion employees could
take immediate advantage of these benefits. Unit employees
would have to wait. Gabbert also referred to the current fiscal
condition of TV-20 as compared to other stations, using a dry-
erase board to make his points. Gabbert included some per-
sonal history including how he happened to get started in the
business, a letter he wrote to his parents in the 1950s asking for
a loan to buy his first radio station and even a current pay stub
to show he wasn’t making much money either.
Then Gabbert discussed the approaching election, noting that
the employees were all family and that he knew job tenure was
not an issue since no one had been fired for years. If the Union
won, Gabbert said, he would only be required to negotiate in
good faith (using his fingers to indicate quotation marks over
good faith). Gabbert also recited that he was under no obliga-
tion to sign a contract and only had to negotiate for a year.
Gabbert conceded that Shimetz and perhaps others challenged
his use of quotation marks as raising a question about his in-
tended good faith.
At the conclusion of Gabbert’s remarks, there is some con-
troversy about what happened next. Gabbert testified he never
solicited grievance and never asked if there were any questions;
he merely stopped talking (Tr. 1175). This account is contra-
dicted by Respondent’s witness Hollingshead, who testified
that Gabbert asked for comments, before various employees
either asked questions or aired grievance (Tr. 1374). Pappas
and Helen Perry testified that Gabbert did more than stop talk-
ing, he asked if there were any questions. Shimetz testified that
Gabbert specifically asked to hear employees’ problems. Fred
Beytin testified that Gabbert opened the meeting for any ques-
tions.
I find that Gabbert asked employees for comments or ques-
tions. In response, many employees did raise grievances.
Helen Perry, for example, complained that she was working too
many holidays and was entitled to greater pay for this effort.
She also was unhappy that John Perry had not permitted her
time off to deal with flood damage at her home and that he had
publicized to other employees a medical problem which Helen
Perry’s son experienced. Gabbert responded to Helen Perry by
noting that she could have been fired for letting her fiance into
the station to use the bathroom several years before. Pappas
raised an issue regarding breaks which he said were being re-
quired at the beginning and end of the MCO shift rather than in
the middle of the a.m. and p.m. shifts. Even for proemployer
employees, it didn’t take a weather vane to tell what direction
the wind was blowing. Hollingshead asked if the lunchroom
could be improved and if lockers could be installed.
To all of these grievances, Gabbert either said he’d look into
it or take care of it, or as to Helen Perry’s hurt feelings, he
apologized for John Perry’s mistakes. I find that in the context
of Gabbert’s reference to the employee “family,” his reference
to COLA and 401(k) benefits to come after the election and his
statement that he knew tenure was not an issue, the violation
has been established.11
When an employer institutes a new practice12 of soliciting
employee grievances during a union organizational campaign,
there is a compelling inference that he is implicitly promising
to correct the inequities, and likewise promising that the com-
bined program of inquiry and correction will make union repre-
sentation unnecessary. Noah’s New York Bagels, 324 NLRB
266 (1997). See also Torbitt & Castleman, Inc. v. NLRB, 123
F.3d 899, 905 (6th Cir. 1997). I find that Respondent’s entire
course of conduct indicates that it has violated Section 8(a)(1)
of the Act as alleged. Mast Advertising, 286 NLRB 955 fn. 2
(1987).
c. Cancellation of “Late Night with James Gabbert” show
as alleged retaliation for union campaign
A day before the Tuesday taping of the “Late Night with
James Gabbert” show, Gabbert posted a cancellation notice.
That Tuesday was February 13, the day of the election. Before
agreeing to use the studio for the election, the parties consid-
ered other places in and around Respondent’s premises but
eventually rejected them for one reason or another. The studio
was where the “Late Night with James Gabbert” show was to
be taped. In addition, the p.m. vote was to occur between 4:30
and 5:15 p.m., the time when the show was normally taped.
I have considered the General Counsel’s argument regarding
this allegation (Br. 5–9), particularly in light of other evidence
in this case, and find the General Counsel has failed to establish
a prima facie case. I assume without finding that the show was
a benefit for employees, the loss of which for union-related
reasons would violate Section 8(a)(1). In this regard, it is un-
certain whether any employee suffered a financial loss, al-
though they did lose a single week’s opportunity to perform
additional work, additional work which some or most employ-
ees generally enjoyed. However, since this show was canceled
immediately before employees voted, the effect could have
been felt either way so far as Respondent’s fortunes are con-
cerned. The General Counsel argues that the decision to cancel
was made the night before Gabbert knew exactly where the
election was to be held. However, Gabbert knew that the elec-
tion might be held in the studio and with employees assigned to
the show having to vote, the conflict is more real than imag-
ined. Moreover, Gabbert knew that scheduled guests including
a band had to be notified as soon as possible, and even with a

11 I also note the many preelection one-on-one meetings between
Gabbert and various employees in which the same grievances were
solicited with an implied promise to remedy.
12 I find that Respondent did not have any preexisting policy on
practice of soliciting grievances from its employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
day’s notice, some guests didn’t get the word and showed up
anyway.
The only colorable claim possible in this segment is to fault
Respondent for failing to reschedule the show as had been done
in the past. In this regard, I credit Respondent’s evidence
showing that it would have been too difficult to reschedule the
same or a different (desirable) band and guests in time to fully
prepare the tape for a Sunday showing. The rescheduling had
been possible in the past because there had been more notice
than was available here and there is a further question in the
present case regarding Gabbert’s availability. In conclusion, I
note that the show’s cancellation was never mentioned in the
pre or postelection meetings, and there was never any question
about future cancellations after that on election day. Because
the inferences the General Counsel asks me to draw are too
remote and tenuous, I will recommend that this allegation be
dismissed.
d. Alleged blame for delayed pay raises
on union organizing drive
As found above, Gabbert’s discussion of the tardy COLA
raises accomplished two goals. First, it attributed to the Union
blame for even longer deferral sometime after the election.
Then Gabbert promised that after the election, even unit em-
ployees would be made whole. What need for the Union under
these circumstances. Respondent contends that Gabbert was
doing only what the law allows. In its brief at pages 75–76,
Respondent notes certain conflicts between the General Coun-
sel’s witnesses on the subject of Gabbert’s statements. How-
ever, Gabbert’s statement that he had been unaware for about 3
years that employees had not been receiving COLAs is suspect
in light of his “hands on” management style. In any event,
even if true, he would not have learned of the allegedly
inadvertent continued pay freeze, but for the union campaign
and Gabbert’s impression that low pay was a major issue
(witness the difference in pay between TV-20 and KTVU,
Channel 2 employees). The general rule is that in organizing
situations, an employer must grant benefits “as it would if a
union were not in the picture.” Illiana Transit Warehouse
Corp., 323 NLRB 111 (1997). An exception to the rule allows
an employer to postpone a wage or benefit adjustment so long
as it makes clear to employees that the adjustment would occur
whether or not they select a union, and that the sole purpose of
the adjustment’s postponement is to avoid the appearance of
influencing the election’s outcome. However, an employer
must avoid attributing to the union the “onus for the postpone-
ment of adjustment in wages and benefits.” Atlantic Forest
Products, 282 NLRB 855, 858 (1987), citing Varco, Inc., 169
NLRB 1153 (1968).
In the instant case, if the continuation of the wage freeze was
truly inadvertent, then Respondent should have made the em-
ployees whole as soon as the inadvertence was discovered.
Instead, Respondent delayed the already long overdue COLA’s
and attributed the delay to the Union’s organizing campaign
and the pending election. This violates Section 8(a)(1) of the
Act and I so find. Seda Speciality Packaging Corp., 324 NLRB
350 (1997); Baker Brush Co., 233 NLRB 561, 562 (1997).
Atlantic Forest Products, supra, 282 NLRB at 858.
e. Alleged unlawful employee interrogations
The General Counsel challenges two one-on-one meetings:
first in late January, Gabbert asked Helen Perry to come to his
office early in the morning. Among the subjects Gabbert raised
were the by now familiar themes, KOFY lacks financial re-
serves, a 401(k) plan is in process, but it can’t be offered to
Perry as she signed a union card, and he can’t give her a pay
raise for the same reason. Then Gabbert asked if Perry had any
problems and she related some of the same problems mentioned
in the February 9 meeting. The meeting ended by Gabbert
asking her if he could count on her vote.
Marks also described a meeting with Gabbert at the latter’s
request about 2 weeks before the election. In addition to the
same subjects discussed with Helen Perry, Gabbert also talked
about an alleged open door policy whereby employees could
come to him about any problems they had. Gabbert also re-
ferred to a prior organizing campaign with newscasters, where
he had refused to bargain in good faith. Gabbert also asked
Marks how he felt regarding the Union.
In his testimony, Gabbert admitted meeting with Helen Perry
to talk about the poor financial condition of the company and to
show her his current pay stub. He denied asking for her vote.
Gabbert could not recall any private conversation with Marks.
I credit Helen Perry and Marks to the extent their testimony
regarding conversations with Gabbert track each other. More
specifically, I credit both and find Gabbert asked Perry, if he
could count on her vote and he asked Marks how he felt regard-
ing the Union.
Although Helen Perry tended to be an open union supporter,
Marks was not. The fact that a high official like Gabbert in his
office, or even in an employer’s hallway attempted to probe
employees’ union sentiment and even asked for a commitment
from Perry is coercive and violates Section 8(a)(1) of the Act.
Pleasant Manor Living Center, 324 NLRB 368 (1997); Reno
Hilton, 319 NLRB 1154, 1179, 1184 (1995); Sunnyvale Medi-
cal Center, 277 NLRB 1217 (1985).
f. Alleged disclosure to employees of plan to implement
401(k) plan in order to influence election
To put this issue in perspective, I begin with the testimony of
Respondent’s witness, Evangelista. She credibly testified that
on orders from her supervisors, she began to work on a 401(k)
plan in July 1995, long before the union organizing drive be-
gan. Among other tasks performed by Evangelista, she solic-
ited proposals from various providers who wished to obtain
Respondent’s 401(k) business (R. Exhs. 37, 38). She also held
meetings with various provider representatives to obtain more
information. On February 9, Gabbert told gathered employees
at the mandatory meeting that the company had been working
on a 401(k) plan for some time (Tr. 1143). Respondent witness
Hollingshead testified that Gabbert clearly stated on Febru-
ary 9, that employees outside the unit would not receive 401(k)
benefits before the election (Tr. 1387). However, Gabbert also
assured unit employees that sometime after the election, they
would be receiving a 401(k) benefit.
In Weather Shield of Connecticut, 300 NLRB 93, 96 (1990),
the Board reversed the judge’s finding that a violation of the
Act had occurred in the election eve announcement of pension
KOFY TV-20 793
benefits for its employees. Relying on Scotts IGA Foodliner,
223 NLRB 394 fn. 1 (1976), enfd. mem. 549 F.2d 850 (7th Cir.
1977), the Board explained that the announcement during a
union campaign of the availability of certain existing insurance
benefits did not violate Section 8(a)(1). By contrast, the 401(k)
plan at issue here was not an existing benefit as of February 9
because Evangelista was still negotiating with various provid-
ers. In fact, Evangelista did not finally select the provider used
and conclude negotiations until April. Accordingly, I find that
Weather Shield of Connecticut, supra, may be distinguished
from the present case.
I find that Respondent’s timing in announcing the 401(k)
plan prior to the election was calculated to influence employees
in choosing a bargaining representative. Predicasts, Inc., 270
NLRB 1117, 1120 (1984). See also St. Francis Federation of
Nurses v. NLRB, 729 F.2d 844, 850 (D.C. Cir. 1984). At the
same time, Gabbert placed the onus for the delay in coverage
for unit employees on the Union. Accordingly, I find that Re-
spondent violated Section 8(a)(1) of the Act for both reasons.
g. Gabbert’s alleged misstatement of labor law
I find that on February 9, Gabbert told the assembled em-
ployees that if the Union won, he would be required to negoti-
ate with the Union, absent an agreement, for a year at the end of
which the parties would start all over again with another elec-
tion (Tr. 1172–1173). I agree with the General Counsel that
Gabbert misstated applicable law as there is no automatic re-
quirement that bargaining cease after 1 year’s time. Gabbert’s
use of his hands to gesture quotation marks before and after,
“good faith,” lends further credence to the implied message,
that “good faith” may have an opposite meaning in this context.
Accordingly, the totality of the message conveyed was that it
would be futile for employees to select a union. See Orbit
Lightspeed Courier Systems, 323 NLRB 380 (1997); Wall Cal-
mony Corp., 173 NLRB 40 (1968). Cf. Great Dane Trailers,
293 NLRB 384 (1989).
Based on the above, I find that Respondent violated Section
8(a)(1) of the Act.
h. Gabbert’s alleged threat to discontinue providing employees
with beer in connection with the taping of the “Late Night with
James Gabbert”show if the Union won the election
According to Pappas, sometime before the election, he was
working in production of the “Late Night with James Gabbert”
show. Prior to the taping, he was drinking a beer, when Gab-
bert allegedly came up to him and said if the Union wins, you
won’t be able to do that anymore. Gabbert denied the remark
in question and explained that for sometime prior to the elec-
tion, it had been his custom to provide employees working on
the “Late Night with Jim Gabbert” show with beer after the
taping was complete, but never before.
I don’t believe Pappas on this point and credit Gabbert. At
the time of the alleged threat, Pappas had already been removed
from more responsible duties in connection with the “Late
Night with James Gabbert” show for poor work. He had, how-
ever, been permitted to continue working in a lesser job. The
show featured Gabbert himself in a prominent role and if Pap-
pas had been drinking a beer before taping, he might have had
had one or more before the one seen by Gabbert. The drinking
could have impaired his performance already clouded by per-
ceptions of poor work and directly impacted Gabbert. Under
these circumstances, I don’t believe that Gabbert would have
uttered the threat in issue, and then allowed Pappas to continue
drinking the beer, perhaps to be seen by other employees who
may have been thirsty too and desired the same privilege.
For the reasons stated above, I will recommend that this alle-
gation be dismissed on credibility grounds.
i. Alleged announcement of a new break policy for MCOs
I have found above that Respondent unlawfully solicited
grievances at the February 9 meeting. I also found above that
one of the grievances solicited was from Pappas and concerned
the unusual break policy then in effect for MCOs. On Febru-
ary 13, election day, Respondent responded to Pappas’ con-
cerns with a memo which reads as follows:

February 13, 1996

Memo to: Production/MCO staff

Subject: A new MCO schedule

This new schedule also includes rest-periods (breaks)
shown, approximately halfway through each 4-hour work
period. A 15-minute break is scheduled twice on each
shift with the name of the person who will relieve the
MCO for that 15-minute break. The break need not be ex-
actly halfway through each 4-hour work period, but should
be as close as practicable. I suggest the break be given af-
ter the start of the new show. As you already know—
when circumstances prevail where there is no break or
lunch given, the MCO is paid OT for the time. Therefore
taking a break is not an “option” for the active MCO, and I
wish to conform with the law. (As it is, 10 minutes is re-
quired; KOFY provides 15 minutes.) Please, only under
special circumstances should any Op forgo taking a break.
This keeps the OT to a minimum.
As always—please let me know if you have a problem
with this or want to discuss it.

John Perry
Technical Operations Manager

[R. Exh. 3.]

On May 22, Gabbert send another memo to Pappas—one in
a torrent of back and forth memos referred to above—in which
Gabbert wrote in part,

Prior to February 9, we simply allowed the employees to take
their breaks when they desired. After February 9, we as-
signed employees specific times for them to take their break.
In these circumstances, we do not believe you are owed any
monies based on your claim that you were denied or pre-
vented time to take your breaks. [GC Exh. 19.]

Sandwiched between these two documents was a meeting in the
lunchroom between Pappas and Gabbert and John Perry. While
there was disagreement on whether Pappas’ grievance regard-
ing breaks was factually correct, Gabbert did tell John Perry
prior to the election, “If there’s something wrong, fix it” (Tr.
1192).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
In reviewing this allegation, I need not decide whether
Pappas’ grievance was valid, though I do find it was honestly
and sincerely tendered in response to Respondent’s unlawful
solicitation of grievances. See New Life Bakery, 301 NLRB
421, 427 (1991). In this case, there was not only an implied
promise that the grievance would be remedied, but it was in
fact remedied, in time for employees to take note before they
voted. I find that Respondent violated Section 8(a)(1) of the
Act as alleged.
j. Alleged unlawful threats to move production to Marin
County, to subcontract work performed by production employ-
ees, and to lay off 12 employees, if the employees
had selected the Union
In reviewing this allegation, I find no credible evidence that
any of the threats were made prior to the election. On the other
hand, I do find credible evidence, from Pappas and form Gab-
bert’s own testimony, that he did make the statements at the
postelection meeting on or about February 20 and at other
times. More specifically, Gabbert told the assembled employ-
ees on February 20, that he had looked at contingencies if the
Union had won “that we had looked at moving the production
offsite, that he had considered shutting down the Production
Department and laying off 5–6 employees.” (Tr. 1197.) Gab-
bert was somewhat more direct in talking to Beytin, shortly
after the election, referring to a list of 12 employees to be laid
off if the Union had won. In fact, I find that Gabbert did refer
to the list of 12 employees to be laid off, at the February 20
meeting. I also find that John Perry used the exact same lan-
guage in talking to Shimetz in the former’s office, about a week
after the election. I must conclude that the plan to move the
production department and layoff 12 employees were not idle
threats.
In a familiar carrot and stick strategy, Gabbert coupled the
above remarks made at the February 20 meeting with assur-
ances of no retaliation and a desire to move forward. However,
Gabbert’s implied message to the employees with the chal-
lenged statements was that if the employees should ever try to
organize another union or if the Union might file objections
which could lead to a second election, employees should con-
sider themselves forewarned with contingent threats.
I find that Respondent violated the Act by making the threats
at issue. Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1318
(7th Cir. 1989). While perhaps not retaliation, the statements in
question are motivated by an intent to deter any further em-
ployee activity aimed at changing working conditions. See
Dayton Hudson Department Store Co., 324 NLRB 33 (1987)
(concern with renewal of a union’s campaign).
Respondent’s argument as to this segment is puzzling in-
deed. First contending that the threats were made after the
election, an argument I agree with, it then asserts as a defense a
standard for truthful preelection predictions (Br. 88–89). In any
event, Respondent’s argument is as meritless as it is contradic-
tory. The fact is, under the facts and circumstances found
herein, the threats made by Gabbert after the election violate
Section 8(a)(1) of the Act and I so find.
k. Gabbert’s alleged statement that he would never
sign a union contract
One final challenge is brought to a statement of Gabbert’s
made at the February 20 meeting. Both Pappas and Beytin
testified that in the course of his remarks, Gabbert stated that he
wanted to correct something that he had said on February 9:
Gabbert wouldn’t sign a contract with the Union even with a
gun pointed at his head. Hollingshead had been the source of
the rumor regarding what it would take to get Gabbert to sign a
contract (Gabbert would sign only with gun to head). Al-
though, Gabbert did admit someone had asked him if it was
true that he wouldn’t sign a contract even if a gun was held to
his head, he allegedly just laughed off the question and never
answered it. I credit the General Counsel’s witnesses on this
point and find Respondent violated Section 8(a)(1) of the Act
by implying to employees, it would have been futile to vote the
Union in since a contract would never have resulted. Tube-Lok
Products, 209 NLRB 666, 669 (1974); Hedaya Bros., Inc., 277
NLRB 942, 957 (1985). Again, I find no defense that the
statement was made after the election was over.
3. Alleged unlawful termination and unlawful
constructive discharges
a. Applicable law
The General Counsel has the initial burden of establishing a
prima facie case sufficient to support an inference that union or
other activity which is protected by the Act was a motivating
factor in Respondent’s action alleged to constitute discrimina-
tion in violation of Section 8(a)(3). Once this is established, the
burden shifts to Respondent to demonstrate that the alleged
discriminatory conduct would have taken place even in the
absence of the protected activity. If Respondent goes forward
with such evidence, the General Counsel “is further required to
rebut the employer’s asserted defense by demonstrating that the
[alleged discrimination] would not have taken place in the ab-
sence of the employee[‘s] protected activities.” Wright Line,
251 NLRB 1983 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). See also
Fluor Daniels, Inc., 304 NLRB 970 (1991), and Manno Elec-
tric, 321 NLRB 278, 280 fn. 12 (1996). The test applies re-
gardless of whether the case involves pretextual reasons or dual
motivation. Frank Black Mechanical Services, 271 NLRB
1302 fn. 2 (1984). “[A] finding of pretext necessarily means
that the reasons advanced by the employer either did not exist
or were not in fact relied upon, thereby leaving intact the infer-
ence of wrongful motive established by the General Counsel.”
Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
A prima facie case is made out where the General Counsel
establishes union activity, employer knowledge, animus and
adverse action taken against those involved or suspected of
involvement which has the effect of encouraging or discourag-
ing union activity. Farmer Bros. Co., 303 NLRB 638, 649
(1991). Inferences of animus and discriminatory motivation
may be warranted under all the circumstances of a case; even
without direct evidence. Evidence of suspicious timing, false
KOFY TV-20 795
reasons given in defense, and the failure to adequately investi-
gate alleged misconduct all support such inferences. Adco
Electric, 307 NLRB 1113, 1128 (1992), enfd. 6 F.3d 1110 (5th
Cir. 1993); Electronic Data Systems Corp., 305 NLRB 219
(1991).
In this case, I find that the General Counsel has established a
strong prima facie case of discrimination against Helen Perry,
Shimetz, and Pappas because of their union or other protected
activities.
b. Factual basis for prima facie case
The evidence does not show that the three alleged discrimi-
natees participated in union or other protected concerted activi-
ties to the same degree. However, the evidence shows that all
did so participate. Perhaps Pappas was the most active union
supporter. For example, he polled other employees to gauge
their support for the Union and distributed union brochures to
employees, he acted as a conduit between the Union and em-
ployees with respect to union meetings and other union-related
information, and he wore a union pin on his jacket back and
forth to work. In addition, Pappas signed a union authorization
card and circulated cards to others to sign. Finally, he acted as
the Union election observer on February 13.
By comparison to Pappas, the protected activities of Helen
Perry were of a lower profile and less extensive. Essentially
her union activities consisted of telling other employees some-
times in a loud and public fashion, that she supported the Un-
ion. Helen Perry also conveyed these same prounion views to a
number of Respondent’s supervisors like Provenza, like Mi-
chelle Ball, program manager/director, like Carol Fertick, pub-
lic service announcement director and like Michelle Mattea,
business manager (only Mattea denied having had such a con-
versation).
Shimetz fell somewhere between Pappas and Helen Perry.
Thus, Shimetz was part of the original group that initially met
with NABET representatives. He placed union stickers in and
around Respondent’s premises and circulated union authoriza-
tion cards to about four employees.
Respondent’s officials, Gabbert and John Perry, denied they
were aware of the union activities of the three alleged discrimi-
natee (other than Pappas’ public role as an election observer)
and further denied that any adverse personnel decisions affect-
ing the three were motivated by their union activities.
Contrary to Respondent’s contentions, I find that Respondent
was aware that the three alleged discriminatees were strong
union supporters. Helen Perry told supervisors what her views
were and their knowledge is imputed to Respondent. Gabbert
told Pappas before the election to seek advice from union coun-
sel as to whether he could work part-time at KTVU, Channel 2.
Gabbert’s explanation that he merely assumed all unit employ-
ees had signed union cards is not credited. His statement to
Pappas subtlety conveyed to Pappas and to me that Gabbert
was aware of Pappas’ union activities. Moreover, in the re-
corded telephone calls made 2 days later, Perry is quoted as
saying that “I think its terrible we’re on opposite sides of a line
(GC Exh. 8, 1), a reference to Pappas’ support for the Union.
Furthermore, I note that at the February 9 meeting and at the
various one-on-one meetings held between Gabbert and the
three alleged discriminatees, grievances were solicited and
promises were made either explicitly or impliedly to correct the
problems. Thus, Pappas was concerned about break policy,
Helen Perry with holiday pay and Shimetz with work sched-
ules.13 The solicitation of grievances while illegal for the rea-
sons already stated, also served the purpose of identifying those
dissatisfied with the status quo. This process seemed to further
identify union supporters and confirm the identities of those
suspected of sympathy for the Union, because rarely do those
who are satisfied with the terms and conditions of employment
support the changes which a union would bring.
Based on the entire record, I find that Respondent was aware
of the union activities or other protected concerted activities of
the three alleged discriminatees. See Matthews Industries, 312
NLRB 75, 76 (1993). As to animus of Respondent toward the
Union and its supporters, I find overwhelming evidence to sup-
port animus. In part, this evidence consists of statements from
Gabbert himself, from Respondent’s own witness (consider,
Hollingshead circulated the rumor about Gabbert’s unwilling-
ness to sign a union contract “Because [he] knew of Jim’s ex-
treme anti–union attitude” (Tr. 1388) and from my findings of
numerous 8(a)(1) violations. NLRB v. Berger Transfer & Stor-
age Co., 678 F.2d 679, 692 (7th Cir. 1982). These violations
remain, and lend their aroma to the context in which the con-
tested issues of discharge and constructive discharge are to be
considered. Rock-Tenn Co. v. NLRB, 69 F.3d 803, 808 (7th
Cir. 1995).
c. Helen Perry discharge
I have recited in detail above the loss of 7 minutes of audio
time. I have also found that Helen Perry was at fault for not
restoring audio sooner than was done. If an employee provides
an employer with sufficient cause for [discipline] by engaging
in conduct for which he or she would have been disciplined in
any event, and the employer disciplines him for that reason, the
circumstance that the employer welcomed the opportunity to
discipline does not make it discriminatory and therefore unlaw-
ful. Klate Holt Co., 161 NLRB 1606, 1612 (1966).
However, “the mere presence of legitimate business reasons
for disciplining or discharging an employee does not automati-
cally preclude the finding of discrimination.” J. P. Stevens &
Co. v. NLRB, 638 F.2d 676, 681 (4th Cir. 1981). For, “the piv-
otal factor is motive” (citation omitted), NLRB v. Lipman Bros.,
Inc., 355 F.2d 15, 20 (1st Cir. 1966), and the ultimate “determi-
nation which the Board must make is one of fact—what was the
actual motive of the discharge?” Santa Fe Drilling Co. v.
NLRB, 416 F.2d 725, 729 (9th Cir. 1969). In conducting analy-
sis to reach that determination, I recognize that “The employer
alone is responsible for its conduct and it alone bears the bur-
den of explaining the motivation for its actions.” Inland Steel
Co., 257 NLRB 65, 65 (1981).

13 I find that at least as to Pappas and Helen Perry, the complaints
brought to the attention of management, were not personal gripes.
Instead, these two employees were engaged in concerted activities as
they were acting formally or informally on behalf of the employee
group. Oakes Machine Corp., 288 NLRB 456 (1988); Whitaker Corp.,
289 NLRB 933 (1988).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
In considering all the record evidence, I find that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Helen Perry. To support this conclusion, I note the following:
(1) The timing of her discharge is suspect since it follows
closely her protected concerted activities and is consistent with
retaliation by Gabbert. Electronic Data Systems Corp., 305
NLRB 219, 220 (1991).
(2) I find that Respondent distorted and magnified Helen
Perry’s deficiencies. Postal Service, 256 NLRB 736, 738
(1981). As noted above, it is unlikely that the interrupted info-
mercial at 12:30 a.m. would have had any appreciable effect on
Respondent’s sweeps ratings or had any significant effect in
any other way.
As a result of the exaggerated nature of Perry’s offense, I
find that Respondent’s stated reason for her discharge was
merely pretextual. See McLane/Western, Inc. v. NLRB, 827
F.2d 1423, 1425 (10th Cir. 1987) (prounion grocery employee
discharged for eating a broken cracker from an unsalvable case
in alleged violation of employer’s antipilfering rule). When a
Respondent’s stated motive for its actions is found to be false,
the circumstances “warrant an inference that the true motive is
an unlawful one that Respondent desires to conceal.” Fluor
Daniel, Inc., supra, 304 NLRB 970.
(3) Respondent’s lack of clear, consistent uniform standards
on applying discipline is evidence of discrimination and may be
considered a pretext to mask discriminatory motives. Monfort
of Colorado, 298 NLRB 73, 82 (1990).
(4) Illegal motive has been held supported by “variance from
the employer’s normal employment routine.” McGaw–Edison
Co. v. NLRB, 419 F.2d 67, 75 (8th Cir. 1969). Here the vari-
ance is proven by a termination for a relatively nonserious of-
fense when Respondent’s policy in the past has been toleration
and condonation of misconduct for other employees not in-
volved with the Union.
Moreover, Respondent has failed to show that it has treated
employees in the past in a similar misconduct to the alleged
discriminatee and this lack of proof has been held to be an im-
portant deficit in the employer’s duty to meet its Wright Line
burden and rebut the General Counsel’s prima facie case. 10
Ellicott Square Corp., 320 NLRB 762, 775 (1996), enfd. 104
F.2d 354 (2d Cir. 1996).
(5) Finally, I place no credence in Helen Perry’s past record
of disciplinary offenses. This misconduct was condoned14
where Helen Perry was appointed as alternate chief MCO, a
position likely to lead to chief MCO. In addition Perry was
entrusted with the prime-time shift. All of this reinforces my
view, in accord with Gabbert’s, an employee practically had to
kill someone–before he would be fired.
d. Brian Shimetz’ constructive discharge
To be sure, the two constructive discharges are closer cases
than the discharge of Helen Perry. The case of Shimetz seems
particularly weak since the reasons given for his objection to
his transfer into Helen Perry’s shift seen trivial—why couldn’t
he see his girlfriend on weekends—or legally insignificant–he
didn’t like his job as an MCO because the work was boring.

14 Virginia Mfg. Coleman, 310 NLRB 1261 (1993).
Millions of others view their jobs in the same light, but they
persevere for a host of different reasons.
The leading Board case on constructive discharge is Crystal
Princeton Refining, 222 NLRB 1068 (1976), where the Board
stated (id. at 1069) what must be proven to establish a viola-
tion:

[There are two elements which must be proven to establish a
“constructive discharge.” First, the burdens imposed upon the
employee must cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force
him to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activities.

In reviewing the Shimetz case, I again consider the same
background of the 8(a)(1) violations found above and I blend in
Provenza’s remark at a bar that Gabbert assigned Shimetz to
the prime time shift to get him to quit. I assign less than con-
trolling weight to this remark as there was no showing as to
how Provenza arrived at his conclusion. I also consider the
deviation from standard procedure in having Gabbert rather
than John Perry assign Shimetz to the new shift. When all is
considered, however, I find that the General Counsel has come
up short and I will recommend that this allegation be dismissed.
In support of this conclusion, I note the following:
(1) The change to the weekday prime-time shift did not cre-
ate intolerable working conditions. Here Shimetz would have
received the same pay and benefits as before. The question of
whether he could have performed one or more days of produc-
tion work with Provenza’s permission had not yet been decided
by the time Shimetz resigned. That Provenza was sympathetic
to Shimetz’ plight was shown by her remark giving her view to
why Gabbert assigned Shimetz to that shift. Moreover, it had
never been determined that Shimetz assignment was permanent
to begin with, since John Perry, like Provenza, had helped
Shimetz in the past. In fact, the assignment in question had
helped Shimetz since he had complained to Perry in the past
that he didn’t want to work weekends. Unlike before where he
had worked at least one weekend day, now he didn’t work
weekends at all.
(2) The arguable expansion of the constructive discharge
doctrine contained in American Licorice Co., 299 NLRB 145,
148 (1990), is unavailing. I assume for the sake of argument
that the Board expanded the constructive discharge doctrine in
American Licorice where the Board stated, “We do not believe,
however, that the Crystal Princeton test can be read so nar-
rowly as to apply only when an employer has changed an em-
ployee’s working conditions.” In NLRB v. Grand Canyon Min-
ing Co., 155 F.3d 1039 (4th Cir. 1997), the employee was
transferred from the day shift to the night shift thus making
transportation to his job unavailable. In affirming the Board’s
finding of a constructive discharge, the court noted the Ameri-
can Licorice Co. case where the employee was denied a trans-
fer from the day shift to the night shift thus making child care
unavailable. Lack of transportation to a job or inability to make
child care arrangement differ from a convenient opportunity to
see one’s girl friend by two and one-half country miles. See
also NLRB v. CWI of Maryland, Inc., 127 F.3d 319 (4th Cir.
1997). Compare: Pioneer Recycling Corp., 323 NLRB 652 fn.
KOFY TV-20 797
2 (1997); Cox Fire Protection, Inc., 308 NLRB 793, 802–803
fn. 2 (1992); and Le Saint Jean Des Pres’ Restaurant, 279
NLRB 109, 122 (1986).
(3) Shimetz could not reasonably anticipate that he would be
permanently locked into a shift and work assignment that he
disliked. As the General Counsel concedes (Br. 60), Shimetz’
reassignment in the past had sometimes been of relatively short
duration and quite simply he had not given adequate time for
his requests for periodic production work and a different shift
to be considered.15 Accordingly, I find no intolerable working
conditions. Cf. Aero Industries, 314 NLRB 741, 742–743
(1994).
(4) Since Shimetz would not have had a to perform quality
check work as a prime time MCO and since Gabbert had recon-
sidered any prohibition against reading while on MCO duty in
response to Shimetz’ postelection protest, Shimetz would have
been able to continue reading whatever material he choose.
This is additional evidence that the MCO duties were not so
onerous as to force him to resign. Furthermore, as noted above,
he could have seen his girlfriend on the entire weekend now
free for however Shimetz choose to spend it.16
(5) Shimetz’ request of Gabbert for a raise in pay after he
learned of his new job assignment dilutes the force of the Gen-
eral Counsel’s argument. Although Shimetz testified that he
didn’t know if he would have stayed if Gabbert had given him a
pay raise—no amount was ever stated—I find that there is an
implied statement to the boss that a pay raise would make a
new job assignment more palatable and therefore it is reason-
able to assume Shimetz would have been less inclined to resign.
(6) I also find that in light of my analysis above, it is unnec-
essary to perform the Wright Line analysis to the second ele-
ment of Crystal Princeton. See Davis Electric Wallingford
Corp., 318 NLRB 375, 376 (1995). The employer must have
acted with the intent to discourage union membership or activ-
ity. See NLRB v. Bestway Trucking, Inc., 22 F.3d 177, 181 (7th
Cir. 1994), and this question simply need not be answered.
In an attempt to shore up a weak case, the General Counsel
also claims that Respondent’s new timeclock policy and the
assignment of quality checking were evidence of discrimination
which somehow affects Shimetz’ case. At page 64 of his brief,
the General Counsel disavows any contention that the two
changes in terms and conditions of employment were so oner-
ous in themselves as to cause Shimetz to quit. However, the
General Counsel claims that because they were discriminatorily
motivated, they exacerbated an already hostile antiunion at-
mosphere.

15 In Yearous v. Niabrara County Memorial Hospital, 128 F.3d 1351
(10th Cir. 1997), an action was brought by a group of registered nurses,
alleging constructive discharge in violation of 42 U.S.C.§ 1983. Find-
ing no constructive discharge, the court relied in part on Tidwell v.
Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir. 1996), for the propo-
sition, “An employee who quits without giving his employer a reason-
able chance to work out a problem has not been constructively dis-
charged.”
16 I assume without finding that Shimetz’ girlfriend’s schedule was
such that she was not available when Shimetz would have been off
work during the prime time weekday shift.
Respondent had a timeclock system prior to the union orga-
nizing campaign. For two reasons, it fell into disuse. First, it
frequently broke down and second, the installation of a new
security door system which registered employees as they came
and went using special ID cards rendered the timeclock system
unnecessary. Even during the period of disuse, however, part-
time employees had always filled out timecards and so did
MCOs for overtime hours. Eventually as Pappas and others
complained about breaks, Gabbert noted that employees who
never exited the security door for lunch were not being punched
in and out. So on April 15, Respondent issued a memo inform-
ing employees of a new timeclock system and how to use it
(GC Exh. 11). I credit Gabbert’s testimony that he waited until
April 15 because he wanted some time to elapse after the elec-
tion to make it less likely that any charge of retaliation would
be found valid. I find that Respondent had every right to keep
track effectively of its employees’ hours, that employees were
not prejudiced, and that this policy played no part in Shimetz’
resignation (or Pappas’ either). See Bureau of National Affairs,
235 NLRB 8, 10 (1978).
As to the quality checking, I have found above that Respon-
dent tolerated the practice of MCO reading and when Shimetz
objected at the February 20 meeting, to any change in the pol-
icy, Gabbert reconsidered making any changes. On March 13,
Respondent issued to employees a memo which reads as fol-
lows:

March 13, 1996

Memo to: ALL MCOs

Subject: Quality Checking/Program Timing

Effective immediately, Master Control Operators will
join in the timing and quality checking of programming
for KOFY. There is more than enough time available dur-
ing the MCO shift for this purpose!
At this starting point, shows will be added to the Over-
night and Daytime air shifts and the Prime Time shift will
be kept clear of any timing.
Just to set the system up—Paul Mular will provide 2
shows for each of the two MCO shifts. Since you are all
aware of how a timing sheet should be, you can check
these shows for quality, as well as develop a timing sheet
for them.
Paul will work the details out, such as where the shows
will be stored (they WILL be brought to the hallway out-
side of Master Control) and so forth. In addition, he will
work out a procedure for you to use when rejecting a
show!
Any comments?

John Perry

cc: Paul Mular

[R. Exh. 4.]

Gabbert testified that he had learned of this practice from an-
other station manager while attending a meeting out of state.
This additional work took about 30 minutes per 8-hour shift
and was thought by Gabbert useful in keeping the MCOs con-
centrated on their jobs. Moreover, it used up a certain amount
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
of time freed up for the MCOs’ shift after Respondent switched
to the LMS technology.
Other than the timing element, I find no other evidence of
discrimination in Respondent’s implementation of this system.
Moreover, since Shimetz worked mostly in production, except
for the final 2 weeks that he worked as prime time MCO before
his resignation, he was only slightly affected by this policy. As
a prime time MCO, he was not affected at all, since prime time
MCOs were exempt, so they could better concentrate on their
jobs.
I find absolutely no credible evidence whatsoever that either
the new timeclock or the quality check policy was part of the
reason Shimetz resigned. Accordingly, I assign no weight to
these factors.
e. Frank Pappas’ constructive discharge
As I have recited above, Pappas resigned over a controversy
involving his part-time job at KTVU, Channel 2. After consid-
ering all the facts and circumstances of this case (including
Pappas’ work history), I find that Pappas was constructively
discharged in violation of Section 8(a)(3) and (1) of the Act. In
support of this conclusion, I note the following:
(1) Respondent’s alleged rule barring outside employment
either did not exist or wasn’t enforced prior to the union orga-
nizing campaign. Horton Automatics, 289 NLRB 405, 409
(1988).17 The timing of John Perry’s meeting with Pappas on
January 19 to ask about the rumor he allegedly had just heard, a
day or so after receipt of the Union’s petition cannot be ig-
nored. NLRB v. Jamestown Sterling Corp., 211 F.2d 725, 726
(2d Cir. 1954).
(2) Respondent’s alleged rule lacks a rational basis and is not
followed in the industry. The number of other employees who,
with Respondent’s knowledge were permitted to work at out-
side employment without interference, establishes that the sec-
ondary employer, usually other television stations did not ob-
serve the alleged rule. This is particularly striking in the case
of Pappas where Channel 2’s management was not concerned
about the possible loss of competitive advantage through pur-
loining of sensitive information. Respondent’s attempt to dis-
tinguish other outside employment situations for its employees
is not persuasive. The claim that certain stations are not com-
petitors or that certain jobs are not as vulnerable to the loss of
so-called sensitive information is meritless. Respondent’s al-
leged fear that Pappas might disclose prematurely that Respon-
dent is courting a new client or preparing a certain commercial,
or that Pappas could disclose rates charged Respondent’s cli-
ents are all speculative and without any reasonable foundation.
Compare NLRB v. Knuth Bros., Inc., 537 F.2d 950, 955–956
(7th Cir. 1976). Put another way, a new system for discipline
(or enforcement of same) violates the Act if implemented in
retaliation for union activity. Performance Friction Corp. v.
NLRB, 117 F.3d 763. (4th Cir. 1997).

17 If the policy in question did exist, the evidence in this case estab-
lishes a regular pattern of overlooking certain violations of alleged
company policy regarding outside employment, and therefore Respon-
dent may not later rely on such violations to satisfy its Wright Line
burden. Carry Cos. of Illinois, 30 F.3d 922 (7th Cir. 1994).
(3) Pappas’ behavior does not constitute a defense for Re-
spondent. Much of what Pappas did can reasonably be ques-
tioned. For example, his statement to Gabbert that he was no
longer working at Channel 2 when he was only taking a week
off. However, the falsity of a communication does not neces-
sarily deprive it of its protected character. Mitchell Manuals,
Inc., 280 NLRB 230, 232 (1986). Thus, Pappas could reasona-
bly have feared under the circumstances that Respondent was
out to terminate him in response to his union activities.
Pappas’ letter of May 24 (published above) (GC Exh. 21)
can also be questioned for tact and judgment. Nevertheless,
neither that letter nor any of Pappas’ communications or behav-
iors were sufficiently opprobrious, defamatory or malicious to
remove Pappas from protection of the Act. Mitchell Manuals,
Inc., supra, 280 NLRB at 232. Even if insubordinate, Pappas’
behavior did not lose protection of the Act. Earle Industries,
315 NLRB 310, 313–314 (1994). To the extent that Pappas
may have approached the line delineating unacceptable con-
duct, such conduct was provoked by Respondent’s attempt to
have him quit one or the other of his two jobs. See Caterpillar,
Inc., 322 NLRB 674, 677 (1996).
I also am not troubled by Pappas’ reaction to Evangelista’s
attempt to call him at Channel 2 after he had called in sick to
Respondent. First, I credit Pappas’ testimony that he had been
sick, but had recovered in time to attend his second job on the
day in question. Accordingly, Gabbert’s threat to subpoena the
records or obtain them from his friend at Channel 2 was un-
called for and part of Gabbert’s provocation.
In sum, I find that Respondent’s attempt to force Pappas to
choose between his two jobs on account of his union activities
was so difficult and unpleasant as to force Pappas to resign.18
CONCLUSIONS OF LAW19
1. The Respondent, Pacific Fm, Inc. d/b/a KOFY, Operator
of KOFY, TV-20, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, National Association of Broadcast Employees
and Technicians–CWA, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. For all times material to this case, Provenza has been
proven to be a statutory supervisor.
4. Respondent violated Section 8(a)(1) of the Act by
(a) Prior to the election, soliciting grievances with the ex-
press or implied promise of remedy.
(b) Blaming the union organizing campaign for delayed pay
raises.
18 In Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426, 432–
433 (6th Cir. 1997), the court found that an employer’s nondiscrimina-
tory policy of not hiring applicants who simultaneously work for an-
other employer does not violate the Act. See also Willmar Electric
Service, 303 NRLB 245, 246 fn. 2 (1991), enfd. 968 F.2d 1327 (D.C.
Cir. 1992), and Sunland Construction Co., 309 NLRB 1224, 1232–
1233 (1992) (Member Raudabaugh concurring). These authorities do
not apply to the instant case since Respondent’s policy not only was
pretextual but was also enforced in a discriminatory manner.
19 Regrettably the final chapter of this decision is yet to be written.
In early October, local media reported that James Gabbert sold KOFY,
TV-20 effective July 1, 1998. Even if this report is true, it should not
affect the remedy in this case.
KOFY TV-20 799
(c) Coercively interrogating employees about union activities
or other protected concerted activities.
(d) Disclosing to employees prior to the election, Respon-
dent’s plan for the future to implement a 401(k) retirement
plan.
(e) Misstating labor law to indicate futility of supporting the
Union.
(f) Threatening to move production to another area, to sub-
contract work performed by unit employees and to lay off 12
employees if employees had selected the Union.
(g) Telling employees it would be futile to support the Union
as Respondent would never sign a union contract.
5. Respondent violated Section 8(a)(1) and (3) of the Act by
terminating Helen Perry and by constructively discharging
Frank Pappas.
6. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
7. Other than expressly found herein, Respondent has com-
mitted no other unfair labor practices.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent’s discriminatorily termi-
nated employee Helen Perry and constructively discharged
Frank Pappas, I shall recommend that within 14 days from the
date of this Order, Respondent be ordered to offer them imme-
diate and full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
leges and make them whole for any loss of earnings and other
benefits they may have suffered by reason of the discrimination
against them. Backpay shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest, computed as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Pacific FM, Inc. d/b/a KOFY, Operator of
KOFY, TV-20, San Francisco, California, its officers, agents,
successors, and assigns, shall
1.Cease and desist from
(a) Prior to an election, soliciting grievances from employees
with the express or implied promise to remedy.
(b) Blaming the union organizing campaign for delayed pay
raises.
(c) Coercively interrogating employees about their union or
other protected concerted activities.

20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(d) Disclosing to employees prior to the election Respon-
dent’s plan for the future to implement a 401(k) plan.
(e) Misstating labor law to indicate futility of support in the
Union.
(f) Threatening to move production to another area; to sub–
contract work performed by unit employees and to lay off 12
employees if the Union had won the election.
(g) Telling employees it would be futile to support the Union
as Respondent would never sign a union contract.
(h) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Helen
Perry and Frank Pappas full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or to any other
rights or privileges previously enjoyed.
(b) Make Helen Perry and Frank Pappas whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Helen Perry
and the unlawful constructive discharge of Frank Pappas,
within 3 days thereafter notify the employees in writing that
this has been done and that the warnings and discharges will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in San Francisco, California, copies of the attached notice
marked “Appendix.”21 Copies of the notice, on forms provided
by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the tendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since February 13, 1996.
21 If this Order is enforced by a Judgment of the United States Court
of Appeals, the words in the notice reading “Posted by order of the
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the act not specifically found.