Kslm--Am And Ksd--Fm

National Labor Relations Board - Board Decisions

Jul 31, 1985

275 N.L.R.B. 1342 (N.L.R.B. 1985)

1342 KSLM-AM' & KSD-FM
Holiday Radio ; - Inc., d/b/a KSLM-AM and, KSD-
FM and American Federation Of- Radio and
Television Artists , AFL-CIO. Cases 36-CA-
4028, 36-CA-4056, and 36-CA-4126
31 July -1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS,
On 19 October 1984 Administrative Law Judge
Gordon J. Myatt issued the attached supplemental
decision. The Respondent and the General Counsel
filed exceptions and supporting briefs, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rul-
ings,' findings, and conclusions as modified and to
substitute the attached Order for that of the judge.,
This 'is a compliance proceeding to determine, the
amounts. of backpay and the reinstatement obliga-
tions owed to six discriminatees. For the reasons
set forth herein, we make the following modifica-,
tions to the judge's backpay award and reinstate-
ment order.2 - =
1. The Respondent operates radio stations
KSLM-AM and KSKD-FM in Salem, Oregon.
Brian Schreiber and Carl Grossenbacher were em-
ployed as full-time on-the-air announcers on
KSLM-AM until their unlawful discharges in No-
vember 1981. In May 1982 the Responent automat-
ed KSLM-AM to a degree sharply reducing the
use of on-the-air announcers.3 As a result the Re-
spondent's remaining on-the-air announcers were
assigned to positions as operators-on-duty, an
entry-level position in the broadcasting industry, at
a substantial reduction in wages. Notwithstanding
the change to automation, however, the Respond-
ent did not terminate the on-the-air announcers.
The judge found that all backpay and reinstate-
ment obligations toward Schreiber and Grossen-
bacher terminated as of May 1982, the date of au-
We find no merit to the Respondent's contention that the judge erred
by refusing to admit evidence that the Respondent and the Union alleg-
edly reached a bargaining impasse on 30 January 1984 Under the cir-
cumstances of this case, we agree with the judge that such evidence is
not material to issues pertaining to the reinstatement and backpay obliga-
tions owing to the discriminatees in this proceeding
2 No exceptions were filed to Administrative Law Judge Jerrold H
Shapiro's original decision finding that the Respondent engaged in unfair
labor practices Accordingly, the Board's Order in the original proceed-
ing was not reported
9 It is undisputed the automation was motivated by legitimate business
considerations
tomation. We disagree. In order to terminate the
claimants' backpay and reinstatement rights in their
entirety as of-a certain date, the Respondent must
demonstrate that,, even in the-absence of the unfair
labor practices, it would have terminated the claim-
ants for. legitimate business reasons. By terminating
all backpay and reinstatement for Schreiber and
Grossenbacher as of May • 1982, the judge found in
effect that, unlike the remaining on-the-air an-
nouncers who were reclassified and not terminated,
Schreiber and Grossenbacher instead would have
been terminated. We find no evidentiary basis in
the record to support such a likelihood. According-
ly,, in order to place Schreiber and Grossenbacher
in the position they would have occupied absent
the unfair labor practices, we find it appropriate to
require' the Respondent to offer them reemploy-
ment to the position of operator-on-duty.4 Further,
we find it appropriate to calculate backpay • based
on the wage scale of the operator-on-duty position
as of 4 May 1982 when the Respondent reclassified
and transferred the on-the-air announcers.5,
2. Prior to their unlawful discharges, Daniel Van
Meter .6 - was employed as sports director • and
Landra Snow was employed as a -newscaster-re-
porter. The judge found that backpay and rein-
statement for these individuals terminated as of
September 1983 when the' Respondent commenced
use of a satellite hookup to receive network events.
The judge. rejected- the Respondent's contention
that Van Meter and Snow would have been termi-
nated earlier in July 1983 upon the hire of new
General Manager Greg Fabos. We find merit in the
Respondent's contention.
General Manager Fabos testified without contra-
'diction that upon his hire in July 1983 he conduct-
ed a review of the Respondent's broadcasting oper-
ation. Based on his assessment of the. Respondent's
news and sports coverage, Fabos concluded that
maintenance of the status quo was appropriate and
that the scope of news and sports coverage existing
at the time of Van Meter's and Snow's employment
was no longer required.' Fabos testified in this
4 Although Schreiber has accepted interim employment paying higher
wages, we will not presume that he has abandoned his entitlement to re-
instatement in the absence of an unconditional offer by the Respondent
5 The record is insufficient to establish the weekly hours of work and
wage rate Schreiber and Grossenbacher likely would have earned had
they been reclassified Accordingly, we shall remand this proceeding to
the judge for a further determination of the amount of backpay owing
and to take such appropriate action consistent with our opinion
The judge erroneously set forth Grossenbacher's net backpay for the
fourth quarter of 1981 as $1080 The correct amount is $1280, as set forth
in the second amended backpay specification
a The judge erroneously stated that Van Meter was unlawfully dis-
charged on 15 January 1981 The correct date is 15 January 1982
r Van Meter and Snow were never replaced following their dis-
charges
275 NLRB No. 184
KSLM-AM & KSD-FM
regard that his assessment of listener interest indi-
cated that national and regional sports were the
predominant focus of listener attention and that ex-
pansive- coverage of local sports was unnecessary.8
Fabos also testified that he concluded that news
coverage was fully. adequate as of July 1983.
Contrary to the judge, we find that the hiring of
Fabos.as_ general,, manager, and Fabos' credible as-
sessment: of the Respondent's operation in July
1983 establish that the Respondent would have ter-
minated the employment of Van Meter and Snow
in July 1983 for -nondiscriminatory reasons.9 To
find otherwise under.the circumstances of this case
is to reject Fabos' uncontradicted and credible as-
sessment of his editorial judgment concerning the
scope of the Respondent's coverage of news and
sports. We decline; to' "second guess" Fabos' credi-
ble testimony regarding such a decision. 1 ° Accord-
ingly, we shall terminate backpay and reinstate-
ment as of July 1983 for Van Meter and Snow."
3. For the reasons set forth by the judge, we
agree that the Respondent has failed to establish
that the production duties performed by claimants
Tim Conner and Marlene Hamilton were eliminat-
ed or substantially., reduced subsequent to their un-
lawful discharges. We do not however agree with
the judge's findings regarding the backpay of these
claimants in the following respects.
During the backpay period, Conner secured in-
terim employment with radio station KGAL in
Albany, Oregon. Thereafter, Conner moved his
residence from Salein to Portland, Oregon. As a
result, Conner determined that the round-trip com-
mute from Portland to Albany (approximately 150
8 As sports director, Van Meter covered, inter alia, local high school
football'and conducted an evening call-in program
8 Member Dennis, dissenting, agrees with the'judge, for the reasons he
stated,'that General Manager Fabos' testimony is not sufficient to estab-
lish that, even in the absence of the unfair labor practices, the Respond-
ent would have eliminated the two positions in question in July 1983
10 We find unpersuasive the judge's findings that Van Meter's dis-
charge precluded him from developing listener interest in local sports
Thus no probative evidence was presented Indicating that Van Meter rea-
sonably could have altered listener interest had he remained employed
Further, in view of Fabos' testimony that present staffing levels for'news
coverage was sufficient, in July 1983, it is immaterial whether or not
lower level management representatives may have contemplated the
hiring of additional news personnel prior to-July 1983 Accordingly, the
testimony of applicant; Gwen Godrey that she was interviewed for a
news position prior to Fabos' hire does not establish that the Respondent
would have hired a newscaster-reporter in lieu of Snow .-
1 I As Van, Meter's position would have been eliminated during an un-
specified date-in July 1983 the gross backpay period shall terminate on
the last day of July. 1983 The second amended backpay specification re-
veals that Van Meter had interim employment during the third quarter of
1983 but does not indicate the extent to which these interim earnings
were earned in July 1982, if at all As it is inappropriate to offset interim
earnings during a period when gross backpay has been terminated or
tolled, we shall remand. this issue to the judge for further appropriate
action regarding Van Meter's backpay
Snow's interim earnings during the third quarter of 1983 fully offset
-total gross backpay Accordingly, we adopt the judge's backpay calcula-
tion regarding Snow I
1343
miles) was too great to continue full-time employ-
ment with KGAL. Accordingly, Conner voluntari-
ly reduced his days of work from 6 to 3 during the
third quarter of 1983 and resigned his employment
with KGAL during that same quarter. The judge
found that the strenuous commute from Portland
to Albany justified Conner's decision to limit his
-work hours and to resign. We disagree. 12
It is undisputed that Conner's departure from in-
terim employer KGAL was caused not by any
matter incidental to his interim employment but in-
stead by Conner's personal decision to move to
Portland. Although a claimant is of course entitled
to determine his place of residency, the conse-'
quences of a claimant's willful decision to reduce
and ultimately terminate suitable interim employ-
ment for personal convenience unrelated to secur-
ing other equivalent interim employment or to the
nature of the departed interim employment should
reasonably be borne by the claimant and not by the
Respondent. See Electrical Workers Local 401
(Stone & Webster Engineering),-266 NLRB 870, 878
(1983).13 Accordingly, we find that Conner willful-
ly reduced his interim earnings and that his pro-
jected earnings at KGAL constitute a continuing
offset against gross backpay.14
The judge also found that claimant Hamilton jus-
tifiably resigned interim employment with John
12 Member Dennis, dissenting, would affirm the judge Conner's dect-
sion to resign interim employment does not, in and of itself, constitute a
willful loss of earnings The question is whether Conner acted unreason-
ably and without justification See, e g. Ozark Hardwood Co, 119 NLRB
1130, 1139, and fn 10 (1957) The record shows only that Conner "had
to move to Portland," and the Respondent never inquired further as to
precisely why Conner had to move Because the Respondent has the
burden of proof on this question (Fort Lock Corp, 233 NLRB 78, 80
(1977)), and because circumstances may have existed that justified the
move, Member Dennis would hold the Respondent accountable for its
own failure to inquire fully into the matter,
13 Contrary to our dissenting colleague, it-is not the Respondent's evi-
dentiary burden to explain and clarify Conner's personal reasons for
moving to Portland Conner's testimony establishes that he voluntarily
quit his interim employment because of his personal desire to move his
residence to Portland Where, as here, no evidence whatsoever is present-
ed that the voluntary resignation is attributable to anything other than
obscure personal desires unique to the claimant, it is inappropriate to -
place on the Respondent the burden of affirmatively establishing a nega-
tive, i e , that the nature of the interim employment was not a reason for
the resignation or that the personal reasons of the claimant were not jus'ti-
fted
14 Medhne/Industries, 261 NLRB 1329, 1332 (1982) See also Knicker-
bocker Plastic Co, 132 NLRB 1209, 1214 (1961) Chairman Dotson would
toll gross backpay' during periods of unemployment following an unjusti-
fied voluntary resignation or discharge for cause See Brady'v Thurston-
Motor Lines,•753 F 2d 1269 (4th Cir 1985)
We modify Conner's backpay as follows Conner earned $3276 when
employed on a full-time basis with KGAL during the second quarter of
1983 We shall apply this amount to all subsequent quarters as a continu-
ing offset to 'the extent it exceeds Conner's subsequent actual interim
earnings For the third quarter of 1983 Conner's interim earnings are"
offset by an additional $1208 thereby reducing his net backpay for that
quarter to a total of $1284 During the fourth quarter of 1983 Conner had
interim earnings of $1731 The additional'offset is $1545 thereby reducing
his net backpay for that quarter to a total of $924 '
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Kosydar Advertising, Inc. (Kosydar) and therefore
did not incur a willful loss of earnings. The record
establishes that Hamilton was hired by Kosydar as
an advertising copywriter. Hamilton thereafter re-
signed from this position because of "political and
philosophical problems" over the nature of certain
political copywriting she was assigned. Hamilton
testified that she was required to work for a client
of a "extremely conservative" political persuasion
and that the resulting dissatisfaction with her work
caused by these "political problems" led to her res-
ignation.
At the hearing the General Counsel sought to in-
troduce additional testimony from Hamilton re-
garding the nature of her interim employment-with
Kosydar preceding her resignation. The judge re-
fused to admit this testimony into evidence. The
General Counsel then made an offer of proof that
Hamilton would have testified that she resigned be-
cause her interim employer required her to engage
in various political activities on her own time. Con-
trary to the judge, we find that Hamilton's testimo-
ny offered by the General Counsel and rejected by
the judge is relevant to the issue of whether Hamil-
ton failed to mitigate her loss of earnings and
should have been admitted into evidence. Accord-
ingly, we find it appropriate to remand consider-
ation of the issue of Hamilton's backpay entitle-
ment to the judge to take evidence in support of
the rejected offer of proof and to make appropriate
findings of fact and conclusions of law. Evidence
presented at the reopened hearing regarding Hamil-
ton's backpay entitlement shall be limited to those
matters set forth in the General Counsel's offer of
proof along with any appropiate rebuttal.15
with this Order, plus interest, by making a valid
offer of reinstatement to this employee.
Tim Conner- -$12,677.95
Landra Snow $13,343.09
IT IS FURTHER ORDERED that the Respondent
shall make a valid offer of reinstatement to employ-
ees Brian Schreiber, Marlene Hamilton,- and 'Carl
Grossenbacher consistent with the Board's opinion
in this proceeding.
IT IS FURTHER ORDERED that the record in this
proceeding be reopened and that a further hearing
be held before the administrative law judge for the
purpose of taking evidence in determining the
amount of backpay owing to -employees'emplo ' Brian
Schreiber, Carl Grossenbacher, Marlene Hamilton,
and Daniel Van Meter consistent with the Board's
opinion in this proceeding. '
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 19
for the purpose of arranging such further hearing,
and that the Regional Director is authorized to
issue notice thereof.
IT AS FURTHER ORDERED that, on conclusion of
such further hearing, the judge "shall prepare and
serve on the parties a second supplemental deci-
sion, containing findings of fact; conclusions of
law, and recommendations, and that following
service of such decision on the parties the provi-
sions of Section 102.46 of the National Labor Rela-
tions Board Rules and Regulations shall be applica-
ble.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ORDER
The Respondent, Holiday Radio, Inc., d/b/a
KSLM-AM and KSKD-FM, Salem, Oregon, its
officers, agents, successors, and assigns, shall make
whole the following named employees by payment
to them of the sum of money set forth opposite
their names, plus interest computed in the manner
prescribed in Florida Steel Corp., 231 NLRB 651
(1977),16 less withholdings required by Federal or
state law. In addition, the Respondent shall pay to
employee Tim Conner any additional backpay, plus
interest; accruing after the third quarter of 1983
until such time as the Respondent fully complies
15 In view of our finding that consideration of Hamilton 's backpay en-
titlement shall be remanded to the judge , we find it unnecessary at this
time to consider the question of whether the philosophical nature of
Hamilton 's interim employment could have justified her resignation
The judge inadvertently designated $3600 as net backpay for Hamilton
during the fourth quarter of 1983, $3600 was the amount of Hamilton's
interim earnings at Kosydar that quarter and not her net backpay
16 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)
GORDON J. MYATT, Administrative Law Judge. On
February 23, 1983, Administrative Law Judge Jerrold H.
Shapiro issued his decision in the - above- captioned
matter (JD-(SF)-32-83) finding that Respondent Holi-
day Radio, Inc d/b/a KSLM-AM and KSKD-FM vio-
lated Section 8(a)(1)(3) and (5) of the National Labor Re-
lations Act. No exceptions to the judge's decision were
filed and on April 12, 1983, the National Labor Relations
Board issued an Order adopting the judge's findings and
conclusions and ordering the Respondent to take the
action set forth in the judge's recommended Order.' -
Judge Shapiro found, inter alia, that. Respondent un-
lawfully discharged employees Brian Schreiber and Carl
Grossenbacher on November 19, 1981, employees Daniel
Van Meter and Marlene Hamilton on January 15, 1982,
employee Landra Snow on March 31, 1982, unlawfully
reassigned employee Tim Conner from its production de-
partment to an undesirable position on January 15, 1981,
and finally, unlawfully discharged employee Tim Conner
on March 5, 1982, and again on April 23, 1982. To
1 The Board's Order was not reported
KSLM-AM & KSD-FM
remedy these violations, the judge's recommended
Order,, now the Board's Order by adoption, requires Re-
spondent to reinstate the above employees to their
former or substantially equivalent positions and make
them whole for any loss of earnings they may have suf-
fered as a, result of Respondent's unlawful conduct by
payment to each a sum equal to what he or she would
have earned from the date of his or her discharges (with
the_ exception of, Conner) to the date Respondent offers
them'. reinstatement,- less interim earnings during that
period In the case of Conner, the period is to begin from
the date of his .unlawful reassignment to the date Re-
spondent offers him or her reinstatement, less interim
earnings during the appropriate period
In fashioning the reinstatement and backpay remedy,
Judge Shapiro acknowledged that he found Respondent
automated KSLM-AM in May 1982, and that the auto-
mation of the AM station was not discriminatorily moti-
vated.2 While the impact of the automation on Respond-
ent's backpay and reinstatement obligations was not liti-
gated in the proceedings before him Judge Shapiro
noted that Respondent would have an opportunity at the
compliance stage "to demonstrate what effect, if any, the
automation of KSLM-AM would have on the employ-
ment of the discriminatees herein, with a view toward
mitigating its backpay and reinstatement obligation
." (ALJD at 66.)
Following the Board's Order, Respondent and the
General Counsel entered into a stipulation which provid-
ed, among other things, that Respondent did not object
to the Board's Order of April 12, 1983. Further, the stip-
ulation provided that the parties-were unable to agree on
the amount of backpay due or the reinstatement issues in-
volving the discriminatees and agreed that the Regional
Director for Region 19 would issue a backpay specifica-
tion and notice of hearing to resolve these differences.
Finally, the stipulation provided that in the event judicial
proceedings became necessary to enforce the Board's
backpay determination, the only issue before the court
would be the validity of that determination.
The Regional Director issued a backpay specification
and notice of- hearing. on September 28, 1983, to which
Respondent filed an answer and a first amended answer.
Hearing was held in this matter on February 2 and 3,
1984. The parties were represented by counsel and af-
forded an opportunity to examine and cross-examine wit-
nesses and to present material and relevant evidence on
the issues involved. At the commencement of the hear-
ing, the General Counsel amended the backpay specifica-
tion to correct certain inadvertent errors and omissions
and to include two additional quarters in the computa-
tion of the amounts alleged to be due the discriminatees.
In addition, the parties entered into a stipulation regard-
ing certain facts to -be - considered in determining the
backpay and reinstatement issues. (See G.C. Exh. 4.)
Based on the entire record in this proceeding, the
briefs submitted on behalf of the parties, and on my ob-
servation of the demeanor of the witnesses while,testify-
ing, I make the following
2 The finding in the underlying case reveals that KSKD-FM was fully
automated from its inception with no live personalities as announcers
FINDINGS AND CONCLUSIONS
I BACKGROUND
A. The Impact of Automation on the KSLM Job
Classification and Functions
1345
As noted , it was found in the underlying unfair labor
practice case that Respondent automated KSLM-AM in
May 1982 Further , it was also found that the decision to
automate was not discriminatorily motivated and was
prompted by legitimate business considerations In so
finding, Judge Shapiro noted "that the automation of
KSLM adversely [a]ffected the employment of all of the
KSLM unit employees " in that "[t]hey all suffered a sub-
stantial reduction in their earnings ." In opposing the
claim set forth in the backpay specification the Respond-
ent does not contest the formula advanced by the Gener-
al Counsel to compute the gross backpay of the claim-
ants. Rather , it is apparent from its answer and amended
answer , the evidence adduced at the hearing, and the ar-
guments contained in its brief that Respondent is con-
tending that the automation of KSLM either eliminated
or drastically changed the character of the jobs at the
radio station to lesser paying positions . Further , that the
hours now needed to perform the duties have been so
drastically reduced that the positions now available are
not the same or substantially equivalent 'to the jobs previ-
ously held by the discriminatees . Thus, the overriding
issue here is the impact that automation and the intro-
duction of other technologically advanced equipment
had on the KSLM unit positions.3
B. The Operation of the Automated Equipment and
the Introduction of Other Changes and Revisions in
Respondent 's Operating System
The undisputed evidence discloses that by May 4,
1982, the automated equipment , principally known as the
Shaefer 930E, was installed and operational at KSLM.
Essentially , this equipment consists of four reel -to-reel
tapes and several carousels which accept tape cartridges.,
There is a computer unit in the Shaefer in which the
taped material (reels or cartridges) is programed in its re-
quired sequence and then automatically broadcast at the
3 Regarding the introduction of other state-of-the-art equipment, the
General Counsel contends in her brief that Respondent is urging for the
first time an affirmative defense which was not set forth in its answer or
amended answer to the backpay specification According to the General
Counsel, the automation of KSLM is limited to the installation of the
equipment (Shaefer 930E) which allows the station to prerecord on reel-
to-reel tapes or tape cartridges, sequence the programs in the equipment's
computer, and then broadcast them on the air at the desired time I do
not, however, accept this narrow interpretation of the expression "auto-
mation " It is evident from Respondent's answer and amended answer, as
well as the evidence adduced at the hearing and the arguments contained
in its brief, that Respondent is-contending that automation is a total proc-
ess of which the Shaefer 930E is but a part In addition, that the installa-
tion of the Shaefer equipment permitted the introduction of other state-
of-the-art equipment which could be programed into the Shaefer 930E
and allow the Respondent to broadcast without the use of live personal-
ities I find, therefore, that the introduction of other equipment, either as
a result of the installation of the Shaefer 930E or to enable the Respond-
ent to maximize the total effectiveness of the automated process, is specif-
ically encompassed within Respondent's answer and amended answer to
the backpay specification
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required time or interval In addition , the computer
prints out a continuous log showing what has been aired
and at what time 4 This was to satisfy the Federal Com-
munication Commission (FCC) requirements as well as
for billing purposes.
Liz Roper , Respondent 's business manager , testified
that ,"[a]t the time of automation in 1982 ," she, worked
on a revision of the "Martin System ."5 Roper stated that
the Martin System was a cumbersome and "idiot proof"
process which took 11 orders (presumably for one com-
mercial) and generated 44 invoices . -According to Roper,
as a, result of the automation and FCC deregulation, she
devised a system whereby she could - get an entire com-
mercial schedule on one invoice form . Other than the
general statement this change was effected at the time of
the automation process, however , Roper gave no specific
date as to when the revised paperwork system became
operational at the station.
Roper also testified that Respondent purchased a word
processor to be used by the production department in
writing copy for commercials and public service an-
nouncements . Roper stated that prior to the introduction
of the word processor, those individuals writing copy
had to type a draft, duplicate it, and when the draft was
edited or corrected retype the copy in final form for du-
plication again for the production of the commercial or
public service announcement . With the use of the word
processor, Roper testified that Respondent's copywriters
produced a draft on diskettes and editorial revisions were
easily made before printing out the final acceptable ver-
sion . Thus, according to Roper , Respondent was able to
produce the same number of commercials in much less
time As in the case of her testimony concerning the re-
vision of the Martin System , Roper did not indicate
when the word processor became operational at KSLM.
Finally, Respondent 's general manager , Greg Faboss
testified that in September 1983, Respondent ' secured
equipment whereby it could have a direct hookup with
major network programs and sporting events via satel-
lite. Prior to this arrangement , Respondent 's network
broadcasts were transmitted by telephone lines . The sat-
ellite connection not only enhances the fidelity of the
transmissions , but also permits the Respondent to either
broadcast the network programs directly or tape and,
then program them into the Schaefer computer for
broadcasting automatically at a later time
C. Respondent's Current Programing Format
Currently , Respondent , follows a programing format in
which 'the major portion of its .broadcasting is prepro-
gramed material - sequenced in-and operated-through the
automated equipment . Prior to automation and the other
" Prior to the automation of the station , the live announcers 'had to
make the log entries by hand concerning the material being aired :-'
6 The Martin System was the paperwork process used by Respondent
in producing commercials and 'public service announcements and billing
customers for the commercials Although Roper - failed to provide any
specifics as to how each department was affected, she asserted the paper-
work system to produce a commercial had an impact on administration,
traffic , production , and sales
6 At the time of the underlying unfair labor practice case , Respond-
ent's general manager .was Edd Routt Fabos was hired to replace' Routt
as general manager in July 1983 -
technological changes, KSLM followed a format where-
by there were live announcers before open , microphones
for 8-hour shifts during the entire broadcast period. The
postautomation format reveals far less scheduling of live
on-the-air announcing . The unrefuted testimony of Fabos
discloses the typical broadcast schedule currently fol-
lowed and graphically illustrates the change ' in format -re-
sulting from the automation and the introduction of the
state-of-the-art equipment . -
From 6 until 9 a.m. (described as.the morning "drive
time"), Tim Crosby , the program director , is on the air
"live." Part of his duties during this period include
giving two or three 2-minute segments of scores of-sport-
ing events received on the AP wire: T. -L. Fuller, the
news director , also broadcasts the news "live " during the
morning drive time. At 9 a . m. the station is automated
until noon and plays only tapes. From 9' until 10 a.m.,
Crosby makes voice tracks on tape; i.e., records his voice
for subsequent broadcasting by means of the automated
equipment . At noon , there is a half' hour of news ;broad-
casting. Of this time 15 minutes are devoted to local
news broadcast "live" by Fuller and '15 minutes -are CBS
network news programed via the satellite through the
automated equipment . From 12 . 30 iintil 3 p.m. the station
is fully automated again playing only tapes . The period
from 3 until 6 p . m. is a mix of live announcing by a con-
tract person known as Doc Nelson and preprogramed
music. Nelson broadcasts a specialty 'program' for which
he is paid $5 an hour and he periodically stops the tape
to make announcements on an open mike . A station op-
erator is also on duty to monitor the automated equip-
ment while Nelson broadcasts. From 6' until 6:15 p.m.
the equipment automatically broadcasts network news
received via the satellite After 6 : 15 'p.m. the station op-
erates fully automated Preprogramed 'tapes are played
or, if special network programing is to be aired, the
equipment automatically broadcasts these 'events at the
scheduled time. On Friday evenings , unless preempted
by network or sporting events, Jim Zinn from the sales
department does a live show called the "Cruisin'
Show "' In addition , the station carries special sporting
events such as the Portland Trailblazers , Oregon State
University sports (mostly basketball), CBS network foot-
ball, the World Series baseball games, and also the Seat-
tle Seahawks games When , these special events are
broadcast by Respondent , they are programed" through
the automated equipment and no live' announcing is re-
quired.
II. ANALYSIS OF THE INDIVIDUAL BACKPAY AND
REINSTATEMENT CLAIMS'
A. General Legal Principles Which Apply to the:
Backpay and Reinstatement Issues-
Before determining the individual claims here it is
helpful to review the basic legal criteria established over
the years by the Board and the courts regarding backpay
and 'reinstatement claims. It is 'settled law that a backpay
' The unrefuted testimony of Fabos discloses that the Cruism' Show is
developed around Zinn's on-air-'personality, . and the show would be
dropped from Respondent's broadcast format if Zinn did not announce it
KSLM-AM & KSD,-FM
and reinstatement order vindicates the public policy,of
the statute by "making employees whole for losses suf -
fered on 'account.of an unfair labor, practice." Nathanson
v. NLRB, 344 U.S. 25, 27 (1952) -Accord: NLRB v.
Rutter-Rex Mfg Co., 396 U.S. 258,.263.(1969).-It is also_
settled law that "the findings of an unfair labor practice
. is presumptive proof that some backpay is owed by
the [Respondent]." NLRB v. Mastro.Plastics Corp, .354,
F.2d 170, 178 (2d Cir..1965), cert.,-.denied 384 U.S. 972
(1965). See also NLRB v. Reynolds, 399 F.2d 668, 669
(6th Cir. 1968). The burden on the General Counsel is to
prove the gross amount of the backpay due each. claim-
ant, NLRB v. Laredo Packing Co., ' 730 F.2d 405 (5th Cir.
1984), and this burden is limited to establishing "what
would not have been.taken from [the employee] if the
[Respondent] had not contravened the Act." Virginia
Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943)
Once ,the General Counsel has established the gross
amount of backpay, due each claimant , the burden is on,
the Respondent to establish facts which would negative
the existence of liability to a given employee or which
would mitigate that liability. NLRB v. Miami Coca Cola-
Bottling Co., 360 F.2d 569, '575 (5th Cir. 1966); NLRB. v.,
Mastro Plastics Corp., supra. It is not sufficient for Re-
spondent to show theoretical or statistical probabilities,
Triangle Sheet Metal Works, 267. NLRB 650 (1983), nor-
can this burden be satisfied by self-serving or conclusion-
ary statements, W.C. Nabors, 134 NLRB 1078, 1088 .
(1961), enfd. as modified on other grounds 323 F.2d 686
(5th Cir. 1963), cert denied 376 U.S. 911 (1964). Thus, it
is incumbent' on Respondent to establish by specific ob-
jective evidence "just what employment in the compen-
satory sense [is no longer] available." NLRB v. Izzi, 395
F.2d 241, 243 (1st Cir. 1968).8 Finally, it is well estab-
lished that any doubt or uncertainty in the evidence must
be resolved in favor of the innocent employee claimant
and not the Respondent Wrongdoer. NLRB v.
NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir' 1976);
NLRB v. Miami Coca Cola Bottling Co., supra at 572-'
573.
B: The Individual Claimants
Taking into consideration the general principles that
apply to Respondent's backpay and reinstatement obliga-
tion, I arrive at' the following findings and conclusions,
regarding -the individual claimants:-
1. Brian Schreiber
Schreiber, a full-time announcer , working an 8-hour
shift at KSLM, was an on-air personality working before -
a live microphone prior to his unlawful discharge on No-
vember 19, 1981., The evidence , is clear , both from the
findings in an unfair labor practice case and the testimo-
ny presented here, that when the automation equipment.
became operational on May 4, 1982, there was a sharp
8 Since it was found in .the underlying case that the automation of.
KSLM was for legitimate business purposes and, further, since it has been
found here that the technological and system changes were "a part'of or
resulted from the automation process, Respondent 's burden does not in -
clude establishing that these actions were not taken for the purpose of
avoiding its backpay and reinstatement obligation' -
1347
reduction in the use of on-air personalities in the station's
broadcast format. As noted, during the "morning drive-
time" (6 to 9, a.m.) Crosby, the-program director, and
Fuller, the. news director, are on the air "live." The next
segment of live announcing occurs at 12:15 p.m, when
Fuller broadcasts the local news. In the afternoon the
Doc Nelson specialty show is broadcast on-air from 3 to
6 p.m. After 6 p.m there is no live announcing except on
Fridays when Zinn goes on the air "live" to announce
the Cruism' Show for 3 hours . However, this show is
subject to preemption,_by network sports should such
events occur during this time frame on Fridays, and the
show is developed around Zinn's on-air personality. • i
Thus, it is apparent that Respondent 's live announcing
slots are, at a maximum, 6 hours in a broadcast day on
Mondays through Thursdays and-9 hours on Fridays, in
the event the Cruisin'. Show is not preempted by net-,
work events. Since the Cruisin' Show would be dropped
if Zinn did not announce it, I find that this segment of
live announcing is not to be included in the available on-
the-air opportunities at KSLM.9 Assuming, without de-
ciding, that the' Nelson specialty show could be per-
formed by one-of Respondent's own announcers, it be-
comes evident that the live announcing slots now avail-
able, beginning at 6 a . m. and ending at 6 p.m (hours not
previously worked by Schreiber),- are at most 6 hours per
day This is a reduction of at least 25 percent in the an-
nouncing time performed by Schreiber, in an 8-hour
shift,. - prior to his unlawful discharge • in November
1981 10-
TheGeneral Counsel contends, however, that the po-
sition of operator-on-duty, to which all of Respondent's
remaining live announcers were assigned at the time of
the- automation, is equivalent to'the duties performed
previously by the live announcers. Therefore, according
to the General Counsel, the duties of this position and
the hours required to perform them must be considered
in determining the available substantially equivalent em-
ployment. I do not agree with this contention.
First, it is evident'from the unfair labor practice" case
and the testimony here that when KSLM's live announc-
ers 'were reclassified as operators-on-duty after the auto-
mation equipment became operational, their pay was re-
duced from a salary 'starting at $800 per month to an
hourly wage rate, of $3.50. It is readily apparent that the
reduction in wages is directly related to the fact that a
9 Similarly, I do* not include the 4-day, 24-hour live broadcasting pro-
motional event Respondent proposes to engage in as part of'its 50th year
anniversary celebration Crosby and Nelson are scheduled to do the live
announcing for this event It is apparent that the anniversary celebration
is a one-time event that is not a part of Respondent's normal broadcast .
format
10 In arriving at this percentage of reduction , I do not rely upon the
summaries introduced by Respondent as its Exhs 5, 6, and 7 As the
General Counsel correctly points out , they are incomplete as they fail to
note all of the duties performed by Respondent 's station personnel and
the hours allocated, to performing these duties Nor do they disclose the
allocation of hours for all of the employees whose duties changed after
the advent of the automation equipment Nevertheless , it is apparent from
the testimony regarding Respondent's current broadcast format and the
evidence in. the unfair labor practice case that the live announcing seg-
ments were drastically reduced after, the automation equipment became
operational
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lower level of skill is required in the performance of the
operator's duties. In the unfair labor=practice case, Gen-
eral Manager Routt testified that the function of live an-
nouncers "was to create a 'one-on-one' atmosphere,
where they were talking to an audience doing weather
forecasts, introducing records, dropping in-little pieces of
information-about what was going on in the community,
[and] maybe humorous little bits." In contrast,' the opera-
tors monitor the automated equipment to make certain it
is operating' correctly and rarely, if ever; use a live
microphone. Because the bulk of the programs are prere-
corded and. programed' in the. computer for playing -at
'the appropriate broadcast time,- this amounts to little.
more than observing the control panels to make certain
that the equipment is functioning properly In the event
of a malfunction, the operator pushes the-necessary but-
tons to correct the defect. . '
. Secondly, the testimony also establishes that since
these duties. do not take' up all. of the operators' working
time, they are required to perform other; duties at the Re-
spondent's stations, For example, the all-night operator
monitors the equipment. for both the AM and FM sta-
tions as well as record: music on tape or tape, cartridges
for programing through the-automation- equipment at a
later time. One, operator, Hatley, does, the weather for
KSKD-FM, occasionally voices -commercials on, tape,
and does "traffic" 11 for the FM station while, on duty as
an operator. Schoneke, another operator, does "traffic"
for KSLM• while on duty. According to the testimony of
Schoneke, her operator duties only take up 15 percent of
her working time and the balance is devoted, to the. traf-
fic work.,, Others are called on to -,"voice track" i 2 , pro-
grams, commercials, or public service announcements- on
tape.or to record music while on duty. The, testimony
discloses that a person is able to record 4 hours of voice
tracks in approximately 30 minutes. After the .tapes are
recorded, they are programed into the automation equip-
ment for broadcasting at a subsequent, time -
From the above, I find that the duties of the operators,
including the voice tracking, are "substantially different
and entail far 'less, skill: than- those, required of a live an-
nouncer before an open microphone. While there is no
question that live announcers can, perform the monitor-
ing of the,autom_ated.equipment, it is equally evident that
the' duties. of an operator involve, less,skill and is consid-
ered an entry-level position in the broadcast .industry. It
is for this reason that the operator's-position is, a -lesser
paying job.
'Although voice -tracking produces the same final result
as live, announcing,. i.e., a voice -being transmitted over
the airways. through the .station's equipment, I find that
this function-is also below the skill,level of alive an-
nouncer Voice tracking does not. require the, person to
- 11 "Traffic" duties consist essentially of getting information' from the
clients concerning when the client, wishes, its commercial to be aired -,and
the frequency that this is to be done The traffic person then prepares a
log *showing what programs and commercials 'are to be broadcast each
day and at what particular time •
12 As noted, Crosby spends approximately,l hour a day making voice
tracks Further, the testimony indicates another employee voice tracks
programs that 'run 4 to 5 hours' per' day These voice tracks are' used
when the Respondent has no network'coverage of any` kind to broadcast
be before an open microphone projectmg•a personality in
order-to generate a following among the-listening public.,
Rather, it entails the -reading of copy -to be recorded 'on
tape'and interspersed between preprogramed material for
subsequent broadcasting. Indeed, the fact that it takes ap-
proximately 30 minutes to voice track-a 4-hour program
indicates the lack of personality projection that is so es-
sential to that of a live announcer Thus, in the job pro-
gression the operator's position 'is' at the 'bottomvoice
tracking is a step above, and live announcing is at the
apex. - •
For the reasons set forth above, I find the operation 'of
the automation equipment at KSLM resulted in the con-
version of the on-the-air announcers' duties to that of op-
erator-on-duty and, further, that on-air announcing op-
portunities at Respondent's station were reduced by at'
least 25 percent. I also find that the duties of, the opera-
tors, even when they involve voice tracking, are not the
same 'as' or substantially equivalent to 'the duties per-
-formed by the: on-the-air announcers since'-the former re-
quire a lesse'r degree of skill and are'compensated at a
lower rate of pay Board policy construes "substantially
equivalent" as "requiring that the jobs utilize similar
skills, receive similar pay, have similar working condi-
tions and the like." Polynesian Cultural Center v. NLRB,
582 F.2d 467, 476 (9th Cir. 1978). See also Oneita Knit-
ting Mills J. NLRB, 375 F.2d 385, 387-388 (4th 'Cir.
1967); Alcan 'Cable West, 214 NLRB ' 236 (1974); New'
Fairview Hall Convalescent Home, 206 NLRB 688 (1973);'
Ramona's Mexican Food Products, 203 NLRB 663 (1973).
Accordingly, I conclude that after May 4, 1982, there
were, no positions available which were the same as or
substantially equivalent to the: live announcer position
from which Schreiber had,been unlawfully discharged.
Since it has been established that the automation process
which eliminated the live announcers' positions and sub-
stantially reduced the on-the-air opportunities 'was insti-
tuted for,legitimate business 'reasons, unrelated to the
conduct surrounding the unlawful discharges and not to
avoid Respondent's backpay and reinstatement obliga-
tion, I find the backpay and reinstatement obligation to
this claimant terminated as of that date -
Respondent raises two other contentions, in mitigation
of its' backpay obligation. One applies to Schreiber in
particular and the other to all of the claimants generally.
First, Respondent contends that Schreiber has secured
interim employment in•California at.a higher rate of pay
than he received while employed by Respondent. This
argument is presumably. premised on the ground that
Schreiber's current employment,'in another State paying
better wages, is evidence'of an intent not to accept rein-'
statement and .thereby terminates; Respondent's backpay
and reinstatement obligation to him I do not have to
decide this question, however, since Schreiber did not
accept this interim" employment: until the third quarter of
1982-well after the date I have found Respondent's ob-
ligation to him ceased.
The second argument advanced by Respondent is that
its. obligation to all claimants should be reduced by any
amounts- of unemployment compensation they have re-
ceived during the interim period. Suffice it to say that
- KSLM-AM & KSD-FM 1349
this is contrary to existing law' 3 and involves a matter
of, policy which only the Board, itself, can change.
Therefore, I reject this contention of Respondent out of
hand; not only as it applies to the particular claimant
Schreiber but as to all of the claimants herein. '
In view of the above analysis, I find the amount of.
backpay due Schreiber to be as follows:14
Fourth Quarter 1981 $ 920.00
First Quarter 1982 2,566.90 _
Second Quarter 1982 0
$3486.90
2. Carl Grossenbacher
Grossenbacher was also anon-the-air announcer em-
ployed full time by Respondent and found to,be unlaw-
fully discharged on:the same date that Schreiber was dis-
charged (November 19, 1981).. On. the basis of my find-
ings regarding the termination of the Respondent's back-
pay and reinstatement obligation to Schreiber, I find, for
the same reasons, that Respondent's obligation to Gros-
senbacher terminated on May 4, 1982.
Accordingly, I find the backpay due Grossenbacher,to
be:- -
Fourth Quarter 1981 _ $1,080.00
First Quarter,1982' 566.67
Third Quarter 1982 0
$1,846.67
-
3 Daniel Van Meter
Van Meter was the sports