Money Radio, A California Ltd. Partnership

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 698 (N.L.R.B. 1990)

698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Money Radio, a California Limited Partnership and
Scott Greene. Case 21-CA-26651
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 13, 1989, Administrative Law
Judge Clifford H Anderson issued the attached de-
cision The Respondent filed exceptions and a sup-
porting brief
The National Labor Relations Board has delegat-
ed 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,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Money
Radio, a California Limited Partnership, Anaheim,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order,
except that attached notice is substituted for that of
the administrative law judge
'The Respondent has excepted to some of the judge s credibility find-
ings The Board's established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
We adopt the judge's conclusions on the basis of our review of the
record as a whole and on the judge's credibility findings based on his ob-
servation of the demeanor of the witnesses In discrimmatee Greene's tes-
timony that managing Partner Schwartz stated on the air that he would
"sooner die than let the Union in," the judge noted that Schwartz' testi-
mony was limited to a denial that he had ever made such a statement on
the air and did not Include a denial that he had ever made such a
statement other than on the air" Since the judge's finding was that
Schwartz made the statement on the air, we do not rely on any adverse
Inference the judge may have drawn from Schwartz failure to made a
broader denial
We also find without merit the Respondent s allegations of buts and
prejudice on the part of the judge On our full consideration of the
record and the decision, we perceive no evidence that the judge pre-
judged the case, made prejudicial rulings, or demonstrated bias against
any party in his analysis or dicussions of the evidence
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these 'rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT by radio broadcast or other means
of communication tell our employees the managing
partner would die rather than let the Union in
Money Radio
WE WILL NOT discharge you because of your
union activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
WE WILL offer immediate and full reinstatement
to employee Scott Greene to the position he would
have held, but for our wrongful discharge of him
on January 20, 1989
WE WILL remove from our files any-and all ref-
erences to the discharge of employee Scott Greene
and notify him in wnting that this has been done
and that the fact of his wrongful discharge will not
be used against him in any way
WE WILL make employee Scott Greene whole,
with interest, for any and all losses he may have
suffered as a result of his discharge on January 20,
1989
MONEY RADIO, A CALIFORNIA LIM-
ITED PARTNERSHIP
Margaret Hume and Frank Wagner, Esqs , for the Gener-
al Counsel
Edward "Buz" Schwartz, pro se, of Anaheim, California,
for the Respondent
Anthony Segall, Esq (Retch, Adel! & Crost), of Los Ange-
les, California, for the Union
297 NLRB No 107
MONEY RADIO

699
. DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge I
heard the above-captioned case in trial on July 27, 1989,
in Los Angeles, California The matter arose as follows
On February 21, 1989, Scott Greene, an individual, filed
a charge docketed as Case 21-CA-26651 against Money
Radio, a California Limited Partnership (Respondent)
On March 30, 1989, the Regional Director for Region 21
of the National Labor Relations Board issued an order
consolidating cases, consolidated complaint, and notice
of hearing consolidating Case 21-CA-26651 with two
other charges against Respondent for a common hearing
and decision On September 5, 1989, I issued an order
severing cases, severing the two other cases from the in-
stant proceeding for all purposes
The remaining portions of the complaint allege Re-
spondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act (Act) by discharging Greene on
January 20, 1989, because of his activities on behalf of
the American Federation of Television and Radio Art-
ists, AFL-CIO, Los Angeles Local (the Union) The
complaint also alleges agents of Respondent violated
Section 8(a)(1) of the Act by interrogating employees
concerning their and fellow employees' support for the
Union and by making statements indicating the futility of
employees' selecting the Union as their collective-bar-
gaining agent
Respondent denies all allegations of wrongdoing Fur-
ther, Respondent challenges the propriety of an adminis-
trative law judge employed by the National Labor Rela-
tions Board hearing the instant matter Respondent's re-
cusation merits threshold consideration
Ruling on Motion to Disqualify the Administrative
Law Judge
Respondent, as part of its answer, in the preheanng
conference call and at the hearing challenged the propri-
ety of an administrative law judge employed by the Na-
tional Labor Relations Board hearing the cases against it
The representative of Respondent made it clear that the
challenge was predicated entirely on the employee-em-
ployer relationship between the designated administrative
law judge and the Board and not on any other grounds
Thus, Respondent does not contend that the particular
designation of the administrative law judge, the specific
identity of the judge, or the judge's conduct in the case
was other than consistent with Board practice or an in-
dependent basis for disqualification Rather, Respondent's
challenge goes to an argued inherent lack of objectivity
of an administrative law judge employed by the Board
which also employs the staff of the General Counsel
prosecuting the case Thus, the argument is that there is
an insufficient separation or independence between and
among the Board and its hirelings to ensure either a fair
and impartial hearing and decision in the case or, equally
important, the appearance of a fair and impartial trial and
decision on the merits I accepted the factual contention
of Respondent—that I was in fact an employee of the
National Labor Relations Board which agency also em-
ploys the prosecuting staff, but denied the motion to dis-
qualify as insufficient on its face given the provisions for
the designation of and hearing of cases by administrative
law judges in the Act and in the Board's Rules and Reg-
ulations Section 10(c) of the Act and the Board's Rules
and Regulations Section 102 34 et seq See also Ram-
speck v Trial Examiners Conference, 345 U S 128 (1953),
cf Butz v Economy, 438 U S 478 (1978) I reaffirm my
ruling here based on the same authorities 1
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine and cross-examine witnesses, to argue orally and
to file postheanng briefs
On the entire record herein, including a postheanng
brief from the General Counsel and oral argument from
Respondent, and from my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT2
I JURISDICTION
The complaint alleges and the answer admits that Re-
spondent is a California limited partnership engaged in
the business of radio broadcasting with a facility located,
since on or about January 30, 1989, in Anaheim, Califor-
nia, and previously located in Los Angeles, California
Respondent, annually in the normal course and conduct
of its business operations, receives gross revenue in
excess of $100,000 and sells services valued in excess of
$50,000 directly to enterprises located outside the State
of California Respondent subscribes to national wire
services and advertises national brand products The
complaint further alleges, the answer admits, and I find
that Respondent is, and has been at all times material, an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act
II LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act -
III THE ALLEGED LABOR PRACTICES
A Background
Respondent is a two-person limited partnership operat=
mg a radio station on a 24-hour-day, 7-day-per-week
basis Edward "Buz", Schwartz and Vera Gold are the
managing partners At relevant times until March 1989,
Steve Kindred was Respondent's news director - Scott
Greene started with Respondent in April 1987 as a full-
time air anchor, but left in September 1987 He resumed
his employment with Respondent in January ,1988 work-
' Appeals from rulings on motions to disqualify administrative law
judges under Sec 102 36 of the Board s Rules and Regulations are gov-
erned by the provisions of Sec 102 26 of the Rules
2 As a result of the pleadings and the stipulations of counsel and repre-
sentatives at the trial, there were few disputes of fact regarding collateral
matters Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of the parties including stipulated documents,
or other unchallenged credible evidence
703 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing the two weekend night shifts Friday 8 p m to Satur-
day 4 a m and Saturday 8 p m to Sunday 4 a m His em-
ployment continued until January 1989 although in the
latter period Greene had reduced his employment often
to a single shift per weekend for personal reasons
The Union initiated an organizational campaign among
Respondent's employees in August 1988 which culminat-
ed in the filing of a representation petition docketed as
Case 31-RC-6468 on September 30, 1988 3
Following a hearing, the Regional Director of Region
31 on November 14, 1988, issued a Decision and Direc-
tion of Election Respondent filed a request for review of
that decision with the Board but was unsuccessful in ob-
taining review The election was conducted without the
participation of Respondent on December 16 and 17,
1988, and, on December 29, 1988, the Union was certi-
fied as the exclusive representative of a unit of Respond-
ent's employes which included Greene
B The Supervisory Status of Steve Kindred
The General Counsel alleged that Steve Kindred was
a supervisor and an agent of Respondent Respondent
contends that while Kindred was news director until
March 1989, he was not a supervisor or agent of Re-
spondent In the representation case, as noted in the No-
vember 14, 1988 Regional Director's Decision and Di-
rection of Election, Respondent stipulated to Kindred's
status as a supervisor as defined in Section 2(11) of the
Act
While Kindred did not have the power to hire or fire
employees, it is clear that he could recommend their hire
and fire and that he was authorized to reprimand them
Schwartz testified no one other than himself and his
partner, Gold, had supervisory powers but that Kindred
stood next in the organizational structure at relevant
times Schwartz testified that Kindred had from 18 to 19
employees under his direction who, if he was not a su-
pervisor, were essentially unsupervised Further, as will
be discussed below with respect to Greene, Kindred was
involved in scheduling and in finding replacement em-
ployees to fill vacancies created by illness or other cir-
cumstances
Given all the above, I find that Kindred in fact bore
sufficient authority to be found a supervisor under the
definition of the Act at Section 2(11) Accordingly, I
find he was an agent of Respondent at relevant times
until his departure in March 1989
C Allegations of Independent 8(a)(1) Violations
Scott Greene testified that early on an afternoon in
late November 1988, he listened to Schwartz' radio pro-
gram, Investors' Club of America, in his automobile The
program opened with a discussion of unions during
which, Greene testified, Schwartz noted that a union was
trying to organize Money Radio Greene further attrib-
uted to Schwartz the statement during that broadcast, "I
would sooner die than let the Union in" Schwartz cate-
gorically denied ever making such a statement on the air
3 Respondent's former Los Angeles location was within the venue of
the Board's Region 31
Scott Greene testified that he regularly spoke with
Steve Kindred by telephone in midmorning on Fridays
concerning his work schedule for the following week-
end He testified to such a call with Kindred Just prior to
the December 16 and 17, 1988 election Kindred, in
Greene's recollection, asked how things were going with
the election Greene told Kindred that the employees
had had a meeting and that an election date had been set
Kindred then asked Greene how many employees
Greene thought would "go for" the Union Greene re-
sponded that everyone he knew or had talked to was for
the Union The conversation then ended Kindred did
not testify
D The Allegation of the Illegal Discharge of
Scott Greene
Greene testified without challenge that he attended
two union meetings during the organizational campaign,
that he discussed the desirability of a union with fellow
employees working on his shifts, that he showed other
employees a notice of election prior to the election and
that he generally was supportive of the Union The
record further reflects that other employees were more
active on behalf of the Union initiating the process, solic-
iting employee's support on petitions, etc Schwartz testi-
fied without challenge that he knew or believed that
other employee were either much more active on behalf
of the Union than Greene, were members of the Union,
or both There was no dispute that these other employ-
ees had not been discharged or spoken to by agents of
Respondent because of their union activities as of the
time of the hearing
1 Greene's version of events
Greene testified that he telephoned Schwartz at his
office on Wednesday, January 18, 1989, determined
Schwartz was free, and went to his office There Greene
testified that he told Schwartz that his working circum-
stances had changed and he was interested in full-time
work Schwartz told Greene that he thought they would
be able to work it out and the conversation ended amica-
bly
The following Friday, January, 20, 1989, Greene and
Kindred had their usual midmorning telephone conversa-
tion concerning scheduling Kindred told Greene, in
Greene's recollection, that Greene was not scheduled to
work that weekend Greene asked Kindred why Kin-
dred replied that the schedule was "per" Schwartz
Greene testified he called Schwartz the next morning,
Saturday, January 21, 1989 He testified
I asked [Schwartz] about why I wasn't on the
schedule, and at that point he said—and I remember
this specifically—"I have a problem with your
work ethic in regards to this Union thing" And I
said, "Well, does this mean that I will be on the
schedule—removed from the schedule for Just this
week or however long?"
And he ended the conversation with, "I will call
you"
MONEY RADIO 701
Greene did not speak with Schwartz again He did call
Kindred about 1 month later and asked Kindred if he
had been put back on the schedule Kindred responded
that he had not, "per" Schwartz The conversation
ended Greene had no further contact with Respondent
prior to the hearing
2 Schwartz' version of events
Schwartz testified that he had a telephone conversa-
tion with Greene in early January in which Greene told
him he was losing or had lost his current full-time job
Schwartz asked Greene if he was available for full-time
work and Greene said yes Schwartz told Greene to
come in to see him Schwartz testified that in contempla-
tion of removing Greene from weekend night duty and
placing him on full time, he desired to try another person
in Greene's weekend position and, further, wished to see
if that time period could be filled with one on-air person
rather than the normal two Accordingly, Schwartz testi-
fied, he did not schedule Greene for one weekend "to
see how the program would work out without him in an-
ticipation of using him on a full-time basis"
Schwartz' pretrial affidavit asserts that Greene was not
scheduled on one weekend because of complaints re-
ceived about staff on the shift The affidavit makes no
reference to omitting to schedule Greene as a test of one-
person staffing Schwartz testified that he was not in fact
punishing Greene for misconduct by removing Greene's
name from the schedule Rather, Schwartz testified he
was contemplating putting Greene on full time He testi-
fied that if he had wanted to discipline or fire Greene for
misconduct, he would have simply called Greene into his
office and done so
Schwartz testified that to his best recollection his last
conversation with Greene was that described by
Schwartz above which ended with Schwartz asking
Greene to come in to see him Schwartz stated that
Green was never fired He simply was not again sched-
uled to work after having been removed from the sched-
ule Schwartz testified
When a week went by and when two weeks
went by, and [Greene] wasn't on the schedule, he
never called me up and said, "Are you or are you
not going to put me on the schedule' Never
Number two, I can not say he was not fired be-
cause of Union activities because he was not fired
It was my assumption, as it was with many people
who left at that time, that it was because of the
move 4
Schwartz denied ever having had a conversation with
Greene subsequent to these events or otherwise in which
he told Greene he did not like his work ethics because of
this union or any similar wording Schwartz in effect
denied the final conversation described by Greene ever
took place
4 At this time Respondent was in the process of moving Its offices from
Los Angeles to Anaheim, California
E Analysis and Conclusions
1 The allegations of 8(a)(1) violations
a The November radio broadcast allegation
Greene testified he listened to a radio broadcast in
which Schwartz during a discussion of unions stated that
a union was trying to organize Respondent and that
Schwartz would rather die than let the Union in
Schwartz strongly denied ever making such a statement
over the air Neither witness qualified his testimony on
the issue or demonstrated equivocation or uncertainty of
memory Such a vigorous, pithy statement by a manag-
ing partner, in Respondent's circumstances the primary
management official, during a union organizing campaign
would not be likely to be misrecalled by an employee in-
volved in such a campaign Greene's testimony, howev-
er, is not corroborated by others and it would seem
likely that, if such a statement had been made, other em-
ployees or listeners ,would have heard it and been avail-
able to corroborate Greene
Despite all the above factors and others worthy of
consideration in resolving the differing testimony, the
resolution of this conflict in my view turns primarily on
the demeanor of the witnesses This is so precisely be-
cause of the purported clarity of the recollections testi-
fied to and the high probability that, if such a statement
were heard by Greene, it would have been easily and ac-
curately recalled Having closely considered the matter,
I credit Green's attributions over Schwartz' denials I do
so based on a strong view that Greene's demeanor was
far superior to that of Schwartz
Each witness had the impressive timbre of voice and
the reassuring cadence of speech of a professional broad-
caster Neither appeared evasive in his answers or to
wither under cross-examination Each was, standing
alone, a superior witness Greene, however, was particu-
larly credible in his calm confident direct examination
and in his dispassionate defense of his recollections under
cross-examination His demeanor was extraordinarily
convincing I formed the firm belief listening to his testi-
mony that he in fact recalled the actions and statements
of Schwartz and that he was truthfully testifying con-
cerning, them Schwartz, even given the handicap of
being required to deny statements and actions attributed
to him by Greene, a process difficult to do with other
than bald negatives, simply did not leave nearly so favor-
able an impression
Comparing Schwartz' demeanor to Greene's,
Schwartz exhibited a certain glibness and occasional self-
serving generalization or incompleteness in his answers
which weakened the credibility of his denials as com-
pared to Greene Schwartz' recitation of the broadcast
statements did not include what remarks he did recall
making about unions on the air which could arguably
have been misapprehended by Greene Schwartz' testi-
mony in this area was also limited to a denial that he had
ever made such a statement on the air rather and did not
include a denial that he had ever made such a statement
other than on the air
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, on several occasions the General Counsel
demonstrated through the use of Schwartz' pretrial affi-
davit, that his earlier versions of events did not fully
track his testimony at trial Schwartz sought to explain
the discrepancies by noting the relative illegibility of the
affidavit, by admitting he did not have a complete under-
standing of the import of the affidavit at the time of its
making, and by dealing with the impeachments attempt-
ed by the General Counsel on an item-by-item basis
Schwartz' attempts to rehabilitate himself during this
process were not completely successful, however, and
his credibility was damaged by inconsistencies in his pre-
trial affidavit as compared to his testimony at the hear-
ing
Having found the statements of Schwartz were made
as testified by Greene, an admitted owner and managing
partner of Respondent I further find that the statements
violate Section 8(a)(1) of the Act for the following rea-
sons First, as it in fact occurred, it was reasonable for
Respondent's agent to expect that at least some of Re-
spondent's employees would be listening to the radio sta-
tion and hear Schwartz' statements Accordingly, Re-
spondent bears full responsibility for the remarks when
they were in fact overheard Thus, for purposes of analy-
sis, Schwartz' statement over the radio may be consid-
ered as if it were a statement made directly to Green by
Schwartz in a private conversation
The Board has long noted, with court approval, that
an employer may not with impunity simply and baldly
tell employees in any variety of ways that their efforts to
obtain union representation will be futile Such state-
ments may be reasonably expected to chill employees'
rights to exercise their Section 7 rights to organize and
therefore violate Section 8(a)(1) of the Act Thus, the
Board has found employer statements to employees that
there would never be a union election violated Section
8(a)(1) of the Act Zaruc, Inc , 277 NLRB 1478 (1986)
The statement that the employer would never sign a
contract has also been held to violate Section 8(a)(1) of
the Act Without Reservation, 280 NLRB 1408 (1986) It
may not be doubted that the statement by a partnership
employer's managing partner that he would "sooner die
than let the Union in" is at least the equivalent of the
statements found violative in the cited cases According-
ly, based on all the above and the record as a whole, I
find that Schwartz' statements in his radio broadcast as
testified to by Greene violated Section 8(a)(1) of the Act
as alleged in the complaint
b The preelection interrogation allegation
Greene testified to a telephone conversation with Re-
spondent's news director Steve Kindred in which Kin-
dred asked Greene how things were going with the elec-
tion and how many employees Greene thought would
support the Union Kindred did not appear at the trial
nor was his unavailability mentioned by any party I
have found, supra, that Kindred was a supervisor and
agent of Respondent at the time of the conversation I
credit Greene's essentially unchallenged version of
events
It is an unfair labor practice for an agent of an em-
ployer to interrogate an employee about his or her
voting intentions or the voting intentions of other em-
ployees Max, Mart, 246 NLRB 1151, 1161 (1979), Quin-
tree Distributors, 198 NLRB 390 (1972) Not every in-
quiry by a supervisor of an employee about upcoming
election prospects for a union rises to the level of an im-
proper interrogation however There is room for benign
general inquiry which does not seek specific information
about employee intentions Thus, in Gossen Go, 254
NLRB 339, 351 (1981), a supervisor asked an employee 1
week before an election how the employee thought the
election would come out In Continental Kitchen Corp,
246 NLRB 611 (1979), the question was asked on the
very day of the election "How do you think its going to
go today?" In Borg-Warner Corp, 229 NLRB 1149
(1977), a similar question was asked
In each case the questioning was held not to rise to a
level of a violation of the Act even though in some cases
a pattern of other violations of the Act was present As
in cited cases, the instant questioning did not go beyond
a permissible general conversational gambit and turn into
a prohibited interrogation concerning employee voting
intentions or union support This is especially true where
the questions came from a low-level supervisor during a
regular telephone conversation with an employee who
was presumably at his home and not being pressed in the
locus of management authority Accordingly, I find
Kindred's questioning of Greene did not violate Section
8(a)(1) of the Act I shall therefore dismiss this allegation
of the complaint 5
2 The allegation of an 8(a)(3) violation
The dispute concerning the termination of Greene is
one purely of fact Respondent does not contend that it
would be proper to have discharged Greene because of
his union activities Indeed, Respondent does not suggest
Greene's conduct justified discharge or that he was dis-
charged at all Rather, Respondent describes a series of
events supportive of the proposition that whereas Re-
spondent was contemplating putting Greene on full time,
Greene simply abandoned his regular part-time job with-
out ever being terminated by Respondent
The General Counsel adduced evidence that Greene
was a union supporter, that he was in the certified bar-
gaining unit and that he was taken off the work schedule
effective January 20, 1989, at Schwartz' direction Cen-
tral to the General Counsel's case and strongly denied by
Respondent was Greene's testimony, described in detail
above, that Schwartz on January 21, 1989, in effect di-
rectly told Greene he had been taken off the schedule
because of his work ethic in regards to this union thing
Greene further testified that his later checking with Kin-
dred in February revealed that he was still being held off
the work schedule at Schwartz' Instructions I credit
Greene's unchallenged testimony about his conversation
with Kindred
Respondent effectively demonstrated at the hearing
that Schwartz believed other employees had been more
5 The General Counsel s cited case, Pennsy Supply, 295 NLRB 324
(1989), is distinguishable That case involved specific interrogation of an
employee's 'union sentiments and activity"
MONEY RADIO 703
active in support of the union organizing drive than
Greene whose activities seemed rather low key and that
no other employee had been discharged, reprimanded or
otherwise disciplined Respondent also noted that the
events in question occurred in mid to late January, well
after the mid-December election More importantly, the
disputed events occurred only days after a conversation
between Schwartz and Greene in which Schwartz gave
Greene reason to believe that he would be converted to
full-time employment Why, argues Respondent, if
Greene's preelection union activities were a basis for em-
ployer hostility to Greene, would Schwartz have indicat-
ed to Greene in mid-January that he might well be put
on full time? And having so encouraged Greene, why
would Schwartz, but a few days later, tell Greene he
was not going to be scheduled because of his work ethic
and union activities?
I have considered Respondent's arguments, which are
not ineffective, as well as the burden the General Coun-
sel bears to establish her prima facie case I find that the
disputed conversation of January 21, 1989 as described
by Greene and specifically denied by Schwartz turns this
issue Put another way, if Schwartz made the statement
to Greene that Greene was off the schedule because of
his work ethic and union activities, the General Coun-
sel's prima facie case is established and Respondents' de-
fense collapses, irrespective of how the probabilities and
circumstances collateral to the central event are
weighed If the conversation did not take place and
Greene's version of events is discredited, the General
Counsel's prima facie case fails and Respondent prevails
It is appropriate then to turn to those disputed events
and the testimony concerning them
The conflict in testimony is total, the versions of
events diametrically opposed Greene descnbes in detail
a conversation in which Schwartz admits that he is
taking Greene off the schedule until further notice from
him because of Greene's work ethic and his union activi-
ties Thus, Greene's version of the conversation makes it
clear that Schwartz is in effect firing Greene and that he
is doing so for an impermissible reason Schwartz testi-
fied that this conversation with Greene, as Greene de-
scribed it, never happened Rather, Schwartz testified
that the last contact he had with Greene was one in
which Greene sought full-time employment and
Schwartz told Greene full-time employment was likely
and to come in to see him Greene's memory of the criti-
cal conversation was certain and he repeated the events
without damaging variation under direct and cross-exam-
ination Schwartz, testifying after Greene, affirmed with
certainty that the described conversation did not in fact
take place Schwartz testified that he believed that
Greene had simply silently abandoned Respondent, ap-
parently because it was physically relocating its offices
Neither version of events carries a significantly superi-
or probability of occurrence in my view As Respondent
argues, the General Counsel's scenario of a sudden turn
of events in mid-January whereby Schwartz in but a few
days turns from Greene's apparent friend to foe, all be-
cause of Greene's earlier union activities in early Decem-
ber, seems improbable So, too, Respondent's scenario
having Greene seek full-time employment and then, after
having been told his hope for full-time employment
would likely be granted, having him immediately aban-
don his part-time employment without further contact
with Schwartz does not ring true
Given the lack of determinative extrinsic factors, I re-
solve the testimonial conflict based primarily on demean-
or As noted supra, I fonnd a substantial - and significant
variance between the demeanor of Schwartz and Greene
during their testimony That variation continued' during
the witnesses' testimony about this disputed conversation
Based on demeanor, as described in detail supra, I credit
the testimony of Greene over the contrary testimony of
Schwartz Accordingly, I find that on January 21, 1989,
Schwartz told Greene he was off the schedule because' of
his work ethic and union activities and that he would
remain off the schedule until further notice Since there
is no dispute that Greene was never told he was to be
scheduled again, I find that Schwartz in effect fired
Greene on January 20, 1989—the day Kindred took
Greene off the schedule per Schwartz' instruction I fur-
ther find that Schwartz took the action he did for the
reasons he gave Greene, i e, because of Schwartz' hostil-
ity to Greene's work ethic and union activities Such ac-
tions by an agent of Respondent violate Section 8(a)(3)
and (1) of the Act and I so find
-F Summary, .
Crediting Greene's testimony, I have found that
Kindred's inquiry of Greene concerning his opinion
about how things were going with the Union and his es-
timation of the Union's election prospects did not rise to
the level of an improper interrogation of employee's
union or election sentiments and therefore does not vio-
late the Act Accordingly, I shall dismiss this allegation
of the complaint
Crediting Greene over Schwartz, I have found that
Schwartz' radio broadcast statement' that he would
sooner die than let the Union in to Respondent created
among employees the impression that any exercise of
their Section 7 right to organize would be futile and
therefore violates Section 8(a)(1) of the Act
Crediting Greene over Schwartz, I have found that
Schwartz told Greene on January 21, 1989, he had been
removed from Respondent's work schedule and would
remain off the schedule until further notice because of
his union activities I further find that, in fact, Schwartz
did have Greene removed from the work schedule,
thereby firing him, on January 20, 1989 because of
Greene's actual or suspected 'union activities Respond-
ent's conduct violates Section 8(a)(3) and (1) of the Act
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act I shall recommend that Respondent offer Scott
Greene full and immediate reinstatement to the position
he would have held, but for Respondent's wrongful ter-
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mmation of him on January 20, 1989 6 Further, Respond-
ent shall be directed to make Greene whole for any and
all loss of earnings and other rights, benefits and emolu-
ments of employment he may have suffered by reason of
Respondent's discrimination against him, with interest
Backpay shall be computed in the manner set forth in
F W Woolworth Go, 90 NLRB 289 (1950), with interest
as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987) See also Florida Steel Corp, 231 NLRB 651
(1977), and Isis Plumbing Co, 139 NLRB 716 (1962)
Respondent shall also be required to expunge any and
all references to Greene's discharge from its files and
notify Greene in writing that this has been done and that
his discharge will not be the basis for any adverse action
against him in future Sterling Sugars, 261 NLRB 472
(1982)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Respondent independently violated Section 8a)(1) of
the Act through its managing partner, Edward
Schwartz, by broadcasting the statement that he would
rather die than let the Union in Respondent
4 Respondent violated Section 8(a)(3) and (1) of the
Act by firing Scott Greene on January 20, 1989 because
of his actual or suspected union activities
5 Respondent did not otherwise violate the Act as al-
leged in the complaint
6 The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
Based on these findings of fact and conclusions of law
and on the entire record herein, I issue the following rec-
ommended7
6 The Issue of whether or not reinstatement should be to a full-time job
and backpay calculated on that basis or to his former 2-day-a-week em-
ployment and backpay calculated on that basis was not litigated before
me and I do not rule on the issue This issue may be addressed in the
compliance stage of these proceedings as necessary and appropriate
7 If no exceptions are filed as provided by Section 102 46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Section 102 48 of the Rules, be adopt-
ORDER
Respondent, Money Radio, a California Limited Part-
nership, its owners, agents, successors, and assigns, shall
1 Cease and desist from
(a) Telling employees by radio broadcast or otherwise
that the managing partner and would rather die than let
the Union in Money Radio
(b) Discharging employees because of their union ac-
tivities
(c) In any like or related manner violating the provi-
sions of the National Labor Relations Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer immediate and full reinstatement to employee
Scott Greene to the position he would have held, but for
Respondent's wrongful discharge of him on January 20,
1989
(b) Make whole employee Scott Greene for any and
all losses incurred as a result of Respondent's unlawful
termination of him, with interest, as provided in the
remedy section of this decision
(c) Expunge from its files any and all reference to the
discharge of employee Scott Greene and notify him in
writing that this has been done and that the fact of his
wrongful discharge will not be used against him in future
personnel actions
(d) Post at its Anaheim, California facility copies of
the attached notice marked "Appendix " 6 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintains for 60 consecutive dys in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
ed by the Board and all objections to them shall be deemed waived for
all purposes
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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"