Radio Station K-101

National Labor Relations Board - Board Decisions

Dec 13, 1974

215 N.L.R.B. 602 (N.L.R.B. 1974)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific FM , Inc., d/b/a Radio Station K-101 and
American Federation of Television and Radio Art-
ists, San Francisco Local Branch of Associated Ac-
tors and Artists of America , AFL-CIO. Cases
20-CA-8724 and 20-CA-8839
December 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 12, 1974, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision. Respondent also filed a motion to
reopen the hearing and the General Counsel filed a
motion in opposition to Respondent's motion.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, the motions,
and briefs,' and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
i Respondent 's motion seeks to reopen the hearing to present what is
alleged to be previously unavailable evidence bearing on the supervisory
status of alleged discriminatee Mark T Provost In support of its motion,
Respondent asserts that the proffered exhibits were unavailable during the
hearing because they were placed in files which were mislabeled and that
it was only subsequent to the hearing that said exhibits were discovered in
the mislabeled files We consider it unnecessary to pass on the relevancy of
the documents submitted because we do not agree with Respondent's con-
tention that it has presented sufficient basis to support its assertion that the
exhibits were previously unavailable in the sense that it would warrant
reopening the hearing to receive such exhibits in accord with Sec
102 48(d)(1) of the Board's Rules and Regulations These exhibits that
Respondent now contends were previously unavailable are the type which
we regard as normal business records As such, they were at all times at its
disposal Except for the allegation that these exhibits were placed in a file
which was mislabeled , the Respondent has not made any other showing to
establish the unavailability of the evidence contained in the exhibits Our
examination of these exhibits clearly shows that they were in existence
during the course of the hearing and the only claim offered to establish their
alleged unavailability is one brought about by Respondent 's own negligence
We are of the opinion that a party should be held responsible for any
consequences flowing from its negligent acts Further we are of the opinion
that the reasons asserted by Respondent to establish the unavailability of the
exhibits do not fall within the category of special circumstances which
would warrant reopening the hearing for the receipt of the exhibits For
these reasons , we shall deny Respondent ' s motion to reopen hearing
2 The Respondent ' s motion requesting oral argument is denied, as the
record, including the exceptions and briefs , adequately presents the issues
and positions of the parties
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondent, Pacific FM, Inc., d/b/a Radio Station
K-101, San Francisco, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This case
was tried at San Francisco, California, on February 20, 21,
25, 26, and 27, 1974. The charge in Case 20-CA-8724 was
filed on November 7, 1973, by American Federation of
Television and Radio Artists, San Francisco Local Branch of
Associated Actors and Artists of America, AFL-CIO, herein
called AFTRA or the Union. The charge in Case
20-CA-8839 was filed on December 19, 1973, by the Union
Complaints, which issued on December 19, 1973, in Case
20-CA-8724 and on January 25, 1974, in Case
20-CA-8839 were consolidated on January 25, 1974, by or-
der of the Regional Director for Region 20 of the Board. The
consolidated complaint alleges that Pacific FM, Inc., d/b/a
Radio Station K-101, herein called Respondent, violated
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended
Issues
The primary issues are:
1. Whether Respondent, through its agents, violated Sec-
tion 8(a)(1) of the Act by threatening employees with loss of
employment for engaging in union activities, by interrogating
an employee with regard to union sympathies, by telling'em-
ployees that it would not agree to any union proposal if the
Union were selected as the employees' representatives, and by
threatening to withhold severance pay from an employee if
that employee filed an unfair labor practice charge with the
Board.
2. (a) Whether Respondent discharged Mark Provost on
October 1, 1973, because Provost engaged in union activities.
(b) Whether Provost was a supervisor within the meaning
of the Act.
3. Whether Respondent discharged employee Harry
Young on December 13, 1973, because he engaged in union
activities.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Well-wntten and
extremely comprehensive briefs were filed on behalf of the
General Counsel and Respondent. They have been carefully
considered.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
215 NLRB No. 116
RADIO STATION K-101 603
FINDINGS OF FACT 2. The meeting of September 18, 1973
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation, is engaged in the
operation of a commercial radio broadcasting station at 700
Montgomery Street, San Francisco, California. During the
year immediately preceding issuance of complaint, Respond-
ent received gross revenues in excess of $100,000, purchased
goods and services valued in excess of $10,000 directly from
suppliers located outside of California, and was a subscriber
to United Press International Wire Service, an interstate news
service. The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended admits, and
I find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations that Respondent Violated Section
8(a)(1) of the Act
1. Background
Respondent operates a radio station. It is composed of
three departments, which are: sales, programming, and news.
The programming department is responsible for the schedul-
ing and presentation of music, and contains about five disc-
jockeys. The news department compiles and presents news
reports. For most of the time relevant here, the news depart-
ment has consisted of two full-time and one part-time on-the-
air newsmen and one reporter who generally has no on-the-
air duties. Mark Provost was one of the on-the-air newsmen.
He also held the title of news director. He was discharged on
October 1, 1973. Harry Young was one of the disc jockeys.
He was discharged on December 13, 1973. The complaint
alleges that these discharges were causally related to the
union activities of Provost and Young.
On September 12, 1973, Provost approached Don Tayer,
the president of the Union, and discussed the possibility of
starting an organizational campaign at the station. Tayer told
Provost about the mechanics of getting the campaign started.
Provost returned to the union office the following Saturday,
September 15, and obtained blank authorization cards from
Tayer. He solicited employees at the station to sign the cards
on September 15 and 16, and returned signed cards to the
Union on Monday, September 17, 1973. A number of em-
ployees including Young, signed the cards. The Union then
filed a petition for an election. A copy of the petition was
received by Respondent the following day, September 18,
1973.
a. Facts
Gabbert received a copy of the election petition on the
morning of September 18, 1973. He immediately checked
some information about unions given him by the National
Association of Broadcasters. At 1:15 p.m. that day, he had
the news and disc jockey personnel meet with him in his
office.' Five witnesses testified as to what occurred at this
meeting . They were Provost, Gabbert, news reporter Jessica
Cafferata, disc jockey Richard Wiseman (also known as Rich
Sherwood), and Program Director Don Kelly (also known as
Larry Snyder).
Provost testified as follows: Gabbert opened the meeting by
telling them that he had received the petition for an election
that had been filed with the Board. He said that he had
spoken to his attorney who had advised him not to make any
promises or threats. Gabbert said that a union in the station
would bankrupt him at that time and that he could not possi-
bly afford to have an organized AFTRA unit at the station.
He reminded them that he was not making any new promise
by telling them they would receive AFTRA scale the day he
was able to obtain an AM station that he had been seeking.
He then spoke about the possible consequences of a successful
union vote, telling them that one of the things he had looked
into was an automation system which interested him greatly;
that there would be a possibility of cutting way back on the
number of "on-the-air" employees if he were to go to automa-
tion; that if he were put in a financial bind because of having
to pay higher salaries by a successful union election he would
go back to a previous operating practice of having disc jock-
eys read news so that he could get rid of the newsroom; and
that such a procedure would wipe out three salaries. He
concluded by saying that things like that were beginning to
take the fun out of broadcasting for him and that he might
turn his license back to the Government or close down the
whole thing. During the speech, he spoke of his financial and
cash flow difficulties. Gabbert also spoke to Provost and said
that Respondent would not have any trouble keeping Kelly
and Provost out of the bargaining unit as supervisors or
management , and that they could keep the station operating
with supervisory personnel if there was a strike.
Gabbert's testimony concerning what he said at the meet-
ing was substantially different. He acknowledged that he
opened the meeting by saying, "Well, we have received this
petition from the National Labor Relations Board and some
of the employees here would like to be represented by a
union." He averred that he made that comment in a light,
passing way just to break the ice, because the last staff meet-
ing was with different employees in 1972. Gabbert testified
that he gave a long explanation to the staff concerning the
problems of an independent radio station and his financial
difficulties, and he reminded them of a prior promise to raise
Gabbert testified that he had previously talked to Program Director Don
Kelly concerning the holding of a meeting to explain company policies to
new employees. However, the timing of the meeting with regard to the
petition , as well as the fact that Gabbert admittedly opened the meeting by
referring to the petition, indicates that the meeting was called at this particu-
lar time because of the filing of the petition. Meetings were not a common
occurrence, the last one having occurred in 1972.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the pay scale when the AM station was acquired. He testified
that he told the staff: that if he were in business to make
money he would have automated the station, but he could
never do that; that if anything happened to force a sudden
increase in costs, such as the blowing up of an antenna, higher
salaries, or an earthquake, they would be in serious trouble
and, as the news department was the least necessary part of
the operation in terms of finances, it could be cut; and that
he could sell the station for $2 million and retire on the
interest, but he wouldn't do that.2 Gabbert testified that he
did not link the employees voting for a union with reduction
in staff, automation, or the closing of the station. He averred
that after mentioning the union petition he was sidetracked
on the financial side of the radio station and never got back
to the Union. Gabbert's testimony in this regard is subject to
considerable doubt. His assertion that he mentioned the
Union only to break the ice is particularly difficult to believe.
He acknowledged that immediately after mentioning the
'tnion petition, he said, "We should talk about this." Later in
his testimony, he acknowledged that he could have said, "We
should talk about this because it could have an effect on either
salaries or job security." In the light of subsequent statements
made by Gabbert which are discussed below, the timing of the
meeting , and the remarks admittedly made by Gabbert, it is
clear that he took the union matter very seriously. I do not
believe Gabbert' s assertion that he mentioned the petition to
break the ice, got sidetracked in financial matters, and never
got back to the Union. His testimony in this regard convinces
me that he is less than a fully candid witness.
Cafferata testified that Gabbert spoke of financial difficul-
ties and said that he might have to cut back in the news
department because of financial problems. She also averred
that he said he would not automate and that she didn't
remember anything being said about closing the station or a
raise. In addition, Cafferata averred that Gabbert did not say
that if the Union came in he would reduce the staff, automate,
or close. Cafferata also testified that she did not recall Gab-
bert saying anything at the meeting about the Union or a
petition. All the other witnesses who testified about this meet-
ing, including Gabbert, recalled that the meeting was opened
with a reference by Gabbert to the Union's petition. Caf-
ferata's testimony in this regard indicates that either she had
a very poor recollection of the meeting or that her candor left
something to be desired. In either case, little reliance can be
placed on her testimony..
Wiseman testified that Gabbert told the staff: that a peti-
tion for an election had been filed to see if the employees
wanted AFTRA; that the station was in financial trouble;
that if there was an increase in costs he would have to let some
employees go and that might be in the news department; and
that he could automate or sell but he didn't want-to do that.
Wiseman also testified that Gabbert may have talked about
past promises of wage increases, but that he did not recall it,
and that he did not recall Gabbert saying anything about it
not being as much fun to operate the station as it used to be.
Wiseman averred that Gabbert did not say that if a labor
organization was selected he would cut the news department,
automate, or sell. However, he did acknowledge that Gabbert
opened the meeting by saying, "I have just received this
petition signed by the station employees that a union vote is
going to be taken," and that he then discussed financial dif-
ficulties and thereafter referred to dire possibilities with re-
gard to employment. In determining whether Gabbert tied in
the union issue with the remainder of his speech, the tes-
timony and affidavit of Don Kelly is instructive.
Kelly is an admitted supervisor. He hires and fires
employees.' He testified: that Gabbert told the staff that he
received information from the Board that there was going to
be a vote; that Gabbert made the remark to break the tension;
that Gabbert laughed it off and went on with the meeting; and
that Gabbert spoke of financial difficulties and past promises
to raise pay scales to that of other San Francisco stations
when the AM station was acquired. Kelly also averred that
Gabbert told them that if overhead went up without an in-
crease in income that there would have to be a reduction in
staff, and that it would be in the news department. He testi-
fied that Gabbert said he could sell or automate, but he
wouldn't. According to the testimony of Kelly, Gabbert did
not say that if the employees voted for the Union that he
would automate, sell, reduce the staff, or cut the news depart-
ment. Kelly averred that Gabbert did talk about the enjoy-
ment going out of broadcasting for him, but that that remark
related to Gabbert's buying out his partners and the problems
with the new station and had no connection with the Union.
Kelly testified that: "The only time [Gabbert] said anything
about the Union was at the beginning as kind of a little joke
to break the tension; but never in the body of the meeting was
there ever any reference to the Union." However, Kelly's
credibility is completely shattered by the inconsistencies in an
affidavit that he gave to the General Counsel. In that affida-
vit, Kelly swore:
Gabbert , as I recall , told the employees, that if a union
was brought into the station and that higher wages were
made effective, because of financial considerations the
staffing of the station may have to be reduced. I do not
recall that Gabbert said if the union was brought into the
station, that he may close the station. I do recall Gabbert
did say, something to the effect. If the union was brought
into the station it would take the enjoyment of his job
because he felt he could deal better with individuals
rather than an outside organization. He also said, "if I
was in the business of making money, I could sell the
station for $2 million and live off the interest." He also
mentioned automation in the context that if he was only
interested in the monetary value he could automate the
station and live off the profits.
Kelly's attempts to reconcile his testimony with the affida-
vit were totally unconvincing. The affidavit not only corrobo-
rates the essence of Provost's testimony but is independent
evidence of what happened at the meeting in that it is an
admission against interest by an agent of Respondent.4
3 The complaints allege , the answer admits, and I find that Kelly and
I Gabbert corroborated Provost's testimony to the effect that, as the Gabbert are supervisors and agents of Respondent within the meaning of the
meeting was breaking up, Gabbert told Kelly and Provost that this matter Act.
did not affect them, as they were supervisors, and if there were a strike at 4 Cf. Hribar Trucking, Inc., 143 NLRB 327 (1963), modified in part 337
the station they had enough supervisory personnel to operate. F.2d 414 (C.A. 7, 1964).
RADIO STATION K-101
In sum , I credit the testimony of Provost regarding the
events of that meeting. That evidence is corroborated in sub-
stantial part by Kelly's admissions in his affidavit. I do not
credit Kelly's testimony that is inconsistent with that affida-
vit. In a like manner, I do not credit Gabbert or Cafferata's
testimony where it is inconsistent with Provost's, and I do not
credit Wiseman's testimony concerning his interpretation of
Gabbert's remarks where that differs from the testimony,of
Provost. I find that, at this meeting, Gabbert told the staff
about the Union's petition, told them of his financial difficul-
ties, told them that he couldn't afford a union, and told them
that the possible consequences of their selection of the Union
would be automation or elimination of the jobs in the news-
room. In addition, I find that Gabbert told them that things
like unionization took the fun out of broadcasting for him and
he might turn in his license to the Government and close
down the operation,
b. Conclusions as to the September 18 meeting
Under Section 8(c) of the Act, an employer is free to con-
vey his opinions concerning unionization to his employees.
Though an employer may state what he reasonably believes
will be the likely economic consequences of unionization that
are outside his control, this freedom does not extend to
threats of economic reprisal to be taken solely on his own
volition. As the United States Supreme Court held in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618
(1969):
[An employer's prediction about the consequences of
unionization] must be carefully phrased on the basis of
objective fact to convey an employer's belief as to de-
monstrably probable consequences beyond his control
.. , in the case of unionization. . . . If there is any
implication that an employer may . . . take action solely
on his own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no
longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation
and coercion . . . .
An employer's bare assertion that a union 's contract de-
mands might compel the elimination of certain jobs can vio-
late Section 8(a)(1) of the Act where there is no showing that
the employer knew what demands the union might make in
connection with the negotiation of a contract . Helfrich Vend-
ing, Inc., 209 NLRB 596 (1974).
In the instant case, Gabbert, in his speech , coupled unioni-
zation with increased costs and a resultant reduction in news-
room jobs . The objective nature of Gabbert's speculation in
this regard is put in question by Gabbert's statement at the
meeting that wages were going to be increased when the
expected acquisition of the AM station materialized. It is
further put in doubt by Gabbert' s statement to Harry Young
in mid-October 1973, described in detail below , in which
Gabbert told Young that he was the only announcer then
employed who would benefit from the Union, because the
others were getting above union scale already . When Gab-
bert's remarks concerning unionization , the financial difficul-
ties of the station , and the possible reduction of jobs in the
newsroom are combined with his statement to the employees
605
that things such as unionization were beginning to take the
fun out of broadcasting for him and he might hand in his
license and close down the station , it is clear that Gabbert was
not making predictions based on probable consequences
beyond his control , but was threatening action on his own
initiative. I therefore find that Respondent , through Gabbert,
violated Section 8(a)(1) of the Act by threatening employees
with loss of employment if they selected the Union to repre-
sent them.
3. Gabbert's alleged remarks to Young concerning the
futility of bargaining-facts and conclusions
In October 1973, Young was a disc jockey for Respondent
on the midnight-to-6 a.m. shift. He was paid $750 a month.
On October 11, 1973, Gabbert approached Young at the
station and told him that he liked the performance of Mike
Webb, the relief man who had filled in for Young while
Young was on vacation, better than he liked Young's per-
formance. Gabbert said that if it wasn't for the fact that the
Union had filed a petition with NLRB Young would not be
working there. Gabbert said that he could not fire Young for
another 2 weeks and referred to a hearing in Provost's case
that was originally scheduled to take place in 2 weeks. Gab-
bert complained about Young's work and suggested a parting
of the ways. Gabbert told Young that Provost did a stupid
thing in bringing the case because they had proved that he
was supervisor. Shortly thereafter, Young went into the con-
trol room and Gabbert followed him. Gabbert said that he
didn't see how the announcers would vote for the Union,
because they were already getting above union scale and that
the only one who would benefit from the Union would be
Young and Hirschfeld (who was no longer at the station).
Gabbert said the Union would "screw you," that he had had
experiences with them, and he found they did not help at all.
Gabbert then told Young that he didn't see how the Union
could get the necessary five out of eight votes, but that if they
did he would say no to any proposal the Union brought him.
Gabbert also said that the employees could go out on strike
but the station would continue to function and that he would
automate if he had to.5
When employees select a union to represent them in a
Board-conducted election, the employer has a duty to bargain
with that union in a good-faith effort to reach an agreement.
Where, as here, an employer tells an employee that even if the
employees select the Union he will say no to any proposal that
the Union brings before him, he is telling the employee, in
effect, that he will not bargain in good faith and that it would
be futile for the employees to select the Union. A decision on
the part of an employer to reject any proposal that a union
5 These findings are based upon the testimony of Young. Gabbert ac-
knowledged speaking to Young on October 11, but he averred that in the
conversation he told Young that he was thinking of shutting down the
midnight-to-6 a.m. shift because so few people listened. He averred that he
also told him that he (Young) did a fairly good job putting music together,
but that as a loose announcer he was not going to make it because he always
read the same thing at the same time . Gabbert averred that he told Young
that Young was not going anywhere and suggested that he look for a job
elsewhere. Gabbert denied that there was any comment about a NLRB
petition or about the Union. As indicated above, I was not impressed with
Gabbert's candor. On the other hand, I believe Young to be a fully credible
witness . I therefore credit Young where his testimony conflicted with Gab-
bert's.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will make is totally inconsistent with any concept of good-
faith bargaining . In substance , Gabbert was telling Young
that he (Gabbert) would violate the Act by refusing to bar-
gain if the employees selected the Union to represent them.
Where an employer impresses the futility of union activity on
employees in such a manner , he interferes with their right
under the Act to engage in such activity and therefore violates
Section 8 (a)(1) of the Act. Cf. Smith Company of California,
Inc., 200 NLRB 772 (1972). I therefore find that Respondent,
through Gabbert , violated Section 8(a)(1) of the Act by tell-
ing Young that if the Union were selected by the employees
Respondent would say no to any proposal that the Union
brought before it.
4. The severance pay issue-facts and conclusions
Young was discharged by Kelly on Thursday, December
13, 1973. On that day Kelly told Young that Gabbert was
scheduled to go to Hawaii for 2 weeks , but to come back the
following day for his paycheck , severance check , license, and
letter of recommendation . Young returned on Friday,
December 14, at which time Kelly gave him his license, pay-
check , and a letter of recommendation , but told him to return
the following Monday for his severance check He did return
on Monday , December 17, and Kelly told him that Gabbert
was in Hawaii for 2 weeks and could not sign checks. Kelly
said that Gabbert wanted him to find out what Young would
do regarding his discharge before giving him his severance
check . Kelly asked whether Young would be bringing a
charge against the station about his discharge . Kelly said that
both Hirschfeld and Provost had received severance checks
and then turned around and brought charges against the
station . In addition , Kelly said that the filing of charges
wouldn 't help Young because he would be screwing himself
Kelly also said that even though there was no black list, as
such , word gets around , and if Young filed charges it would
be hard to get a job in the market . Kelly then said that if
anyone asked him about his conversation he would disavow
any knowledge of it. Kelly told Young that they were not
going to give him the severance check until they found out
what he was going to do concerning filing a charge. Kelly
concluded by saying that Gabbert would rather use his sever-
ance pay for attorney 's fees if Young was going to bring a
charge against the station 6
Young filed a charge with the Board on December 19,
1973, and on January 9, 1974, he received a check from
Respondent for the severance pay.
The credited evidence establishes that on December 17,
1973, Respondent , through Kelly , threatened to withhold
Young 's severance pay if Young filed an unfair labor practice
charge with the Board.'
In order for the Act to be effectively administered, chan-
6 The above findings are based on the testimony of Young Kelly testified
that the reason that he did not give the severance paycheck to Young on
Friday , December 14, was that he had been unable to obtain Gabbert's
signature while Gabbert was preparing to leave for vacation He denied that
he told Young anything about the severance check being held up to see
whether a charge was going to be filed I credit Young and discredit Kelly
7 Respondent 's brief argues that the delay in the payment of severance pay
was caused by Gabbert 's Hawaiian vacation The complaint does not allege
the delay as an unfair labor practice but only alleges the threat to withhold
payment as a violation of the Act As found above , the threat was made
nels of communication from aggrieved persons to the Board
must remain open . Young had a right under the Act to file
a charge with the Board . Kelly interfered with Young's ac-
cess to the Board 's processes by threatening to withhold sev-
erance pay if Young filed a charge. Kelly was a supervisor
and an agent of Respondent I find that Respondent , through
Kelly, violated Section 8 (a)(1) of the Act by threatening to
withhold severance pay from Young if he filed a charge. Cf.
John C. Mandel Security Bureau Inc., 202 NLRB 117 (1973).
5. The interrogation-facts and conclusions
William N . Groody was hired as an "on-the-air" newsman
on September 19, 1973, to fill in for Provost who had gone
to Florida because of his father 's illness. On September 21, in
Gabbert 's office, Gabbert asked Groody whether he would
like Provost 's job. Groody asked whether it would be as news
director , and Gabbert replied that it would not . Gabbert said
they were having some problems with Provost in that direc-
tion and he would just as soon not have a news director at
that time .' Gabbert told Groody that Provost had left with-
out contacting him, and that was the straw that broke the
camel 's back , so Provost would not be working there when
he returned . Gabbert also mentioned the philosophical rift
that had developed between them Gabbert told Groody that
he would have Provost 's job as soon as Provost was fired.
During his conversation , Gabbert asked Groody : "How do
you feel about labor unions?" Groody answered that he was
a member of AFTRA and Gabbard replied, "Oh "9
In Big Three Industries, Inc., 192 NLRB 370, 373 ( 1971),
the Board adopted the Administrative Law Judge's Decision
which held.
In determining whether interrogation concerning union
activities violates Section 8 (a)(1) of the Act, the Board
has held that all the circumstances in which the interro-
gation occurs must be considered . Blue Flash Express,
Inc., 109 NLRB 591 . In that case, the Board dismissed
a complaint where such interrogation was accompanied
by a statement from the company as to a legitimate
reason for the interrogation , where the company repre-
sentative assured the employee against reprisals, and
where the company had not demonstrated union hos-
tility See also N.L . R.B. v. Camco, Inc., 340 F.2d 803
(C.A. 5), where such matters as the place of the interro-
gation and the rank of the official doing the questioning
were also considered . Though in Struksnes Construction
Co., Inc., 165 NLRB 1062 , the Board was concerned
with a polling of employees rather than individual inter-
rogation, some of the language in that case is instructive.
The Board held:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
s As of the date of the trial, no one held the title of "news director "
These findings are based on the testimony of Groody and Gabbert
Gabbert testified that he did not complete the question and that he intended
to ask whether the fact that there was going to be an election would affect
Groody 's desire to work at the station I do not credit Gabbert's assertion
in this regard
It is not clear from the record when , during the course of the conversation,
Gabbert asked about unions
RADIO STATION K-101
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore , tends to impinge on the Section 7 rights. As
we have pointed out, "An employer cannot discrimi-
nate against union adherents without first determin-
ing who they are." Cannon Electric Company, 151
NLRB 1465, 1468 . That such employee fear is not
without foundation is demonstrated by the innumera-
ble cases in which the prelude to discrimination was
the employer 's inquiries as to the union sympathies of
his employees.
The Board went on to hold that in a polling situation a
violation would be found unless the purpose of the poll
was to determine the truth of a union 's claim of majority;
this purpose was communicated to the employees ; assur-
ances against reprisal were given ; the employees were
polled by secret ballot ; and the employer had not en-
gaged in unfair labor practices or otherwise created a
coercive atmosphere.
In Struksnes, the Board revised the Blue Flash criteria to
conform to this new standard.
In the instant case , Gabbert , the owner and highest ranking
official of Respondent , interrogated Groody concerning his
union sympathies . The interrogation took place in Gabbert's
office in the course of an interview which led to a change in
Groody's status from a part-time to a full-time employee. The
interrogation cannot be considered isolated in that it occurred
only 3 days after Gabbert had unlawfully threatened dire
consequences if the employees selected the Union to represent
them . The interrogation was part of a pattern of intimidation
and was followed by Gabbert 's unlawful threat to Young to
the effect that union representation would be futile and by
Kelly's unlawful threat to Young that severance pay would
not be paid if he filed a charge . I find that Gabbert 's interro-
gation of Groody concerning Groody 's union sympathies was
coercive and violative of Section 8(a)(1) of the Act.
B. The Discharge of Mark Provost
1. The reason for the discharge
a. Respondent 's contention with regard to the conflict in
philosophy and the unauthorized leave of absence
Provost was discharged on October 1, 1973. Respondent
takes the position in its brief that Provost "was discharged for
a difference in news philosophy triggered by a self-granted
emergency leave."
Prior to August 1972, the station was receiving low ratings,
and as a result Gabbert decided to play softer music and
change the approach to newscasting . From Gabbert 's point
of view , he wanted to make the newscasts more entertaining
in the sense of personalizing the news , making it pertinent to
the listener , and making the listener feel that the newscaster
was speaking to him on a one-to-one basis. In August 1972,
Gabbert told his news staff that he wanted that approach.
According to the credited testimony of Provost , Gabbert told
them that he wanted more opinions on newscasts in order to
attract attention , and the reporters were to become more
deeply involved in one side or the other of a story and to let
607
that interest show in the newscast . Provost expressed his
disagreement with Gabbert 's philosophy and spoke in favor
of a classic journalistic style with the key being dissemination
of information in such a way as to allow the listener to make
up his own mind . However, in spite of his stated opposition
to the change , Provost became convinced in part that news
was entertainment and should be used as a promotional de-
vice for the station to attract the attention of listeners. He
started moving in that direction . Gabbert acknowledged in
his testimony that Provost made an attempt to implement the
philosophical changes that Gabbert required . According to
Gabbert , Provost tried hard , but the execution never came off
the way Gabbert wanted it . Gabbert spoke to Provost about
their differing philosophical approaches to broadcasting on a
number of occasions . Four or five times from the beginning
of 1973 , Gabbert gave Provost instructions to change particu-
lar aspects of his broadcast . Provost credibly testified that on
some of the occasions he expressed his personal view to Gab-
bert , but that he always followed Gabbert 's directions. The
issue of broadcasting philosophy was raised by Gabbert in a
meeting that occurred between September 3 and 8, 1973, in
which Gabbert blamed the news department with dragging
the station down.
At about 1 p .m. on September 19, 1973 , Provost called
Program Director Kelly and told him that his (Provost's)
father was seriously ill with a heart condition , and that he
might have to go to Florida on short notice if the situation
deteriorated . Kelly replied that he was sorry to hear it, and
he hoped that Provost 's father did not get any worse. They
spoke about getting a replacement to cover Provost. The
following morning Provost saw Kelly at the studio and they
discussed who might be available to cover Provost if neces-
sary . Bill Groody 's name was mentioned. Groody was an
applicant at the time for the part-time news announcer's
position that was to open because of the resignation of Bruce
Jensen . In midafternoon that day , Provost received a call
from his mother , saying that his father was in an intensive
care unit and his presence was needed . He called the station
and spoke to Tom Nelson, who was on duty at the time. He
told Nelson that he had to leave town and to be sure to tell
Kelly. Provost gave Nelson an address and number in Florida
and said that his wife could be contacted at their local address
if he could not be reached . That evening , Provost called Kelly
and told him that his father 's condition had worsened and he
had to go to Florida . Provost said that he had spoken to
Nelson and Nelson was ready to break in Groody , the week-
end man , to cover his shift . Kelly said , "Thanks for letting
me know . I am glad the situation is taken care of."10 Prov-
ost left for Florida on September 20 and returned from
Florida on October 1, 1973, the day he was discharged. On
September 26, while he was in Florida , he called the station
and told Nelson that his father's condition had stabilized and
that he would be back on October 1 . Provost asked Nelson
how things were going in the newsroom , and if there were any
problems created by his absence . Nelson replied that every-
thing was very smooth and quiet and that Provost should take
his time.
10 These findings are based on the testimony of Provost as supplemented
in part by the testimony of Kelly.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The terminal interview
Provost returned from Florida on October 1, and worked
the 5 a.m.-to-1 p.m. shift that day. At 1:15 p.m. he was called
into Gabbert's office. Gabbert handed him an envelope with
2 weeks' pay and told him that he was terminated. Provost
asked for an explanation and Gabbert replied, "As you know
I am in a life and death struggle with the union. I have to line
up my ducks and knock them over. You, because of your title
as News Director, are fireable right now, and actually al-
though there are some other people on the staff that I would
like to get rid of, the National Labor Relations Board's rules
won't allow me to terminate anybody else. But I can fire
you." Gabbert also told Provost that although.they had some
arguments on news philosophy in the past, he (Gabbert) did
not consider those reasons by themselves enough to terminate
him, and that if the union issue had not come up he would
not be terminating Provost at that time. Provost said that it
was a rotten thing to do to him when his father was in the
hospital and he had heavy medical bills, and Gabbert re-
sponded that it was a gray world, and he just couldn't help
it. They discussed Provost's abilities as a newscaster, and
Gabbert said that Provost would be good in an all news
station but that he was not fitting in at that time with what
Gabbert wanted to do. At some point in this conversation,
Gabbert said that he knew who had signed applications for
the Union because he had a contact with the Board. Provost
replied that he did not believe Gabbert could get that infor-
mation from the Board. A few minutes later, Gabbert said
that he thought Provost might have signed one of the cards,
and that Provost might be very favorable to the Union. At the
end of the conversation, Gabbert said that he realized Provost
could go to the NLRB about the discharge, but that Provost
would be better off if he took the firing gracefully. Gabbert
also said that if Provost did go to the Board and file a com-
plaint, he (Gabbert) would make it impossible for Provost to
work as a newsman anywhere else in the Bay Area. Provost
replied that he didn't believe Gabbert's influence extended
that far, and Gabbert said, "perhaps I cannot close the mar-
ket completely for you, but I can make it darn difficult for
you to find any other job."
The above findings are based on the credited testimony of
Provost. Gabbert testified to a very different version of the
conversation . According to Gabbert, he told Provost they
were pushing in opposite directions, that they were not on the
same wave length anymore, and that they didn't understand
each other. He denied that he said anything about Provost's
union activities, about getting ducks in a line, about names of
authorization cards, or about filing a charge with the Board.
As indicated above, I believe that Provost was a more credible
witness than Gabbert, and I credit Provost's testimony con-
cerning the conversation.
Respondent argues strenuously in its brief that Gabbert
should be credited over Provost in this regard. Respondent
points out the circumstances of Groody's hiring to support its
position. As is set forth in detail above, Groody was hired as
a part-time employee on September 19, 1973, and was told by
Gabbert on September 21 that he was to replace Provost as
soon as Provost was fired. During that conversation on Sep-
tember 21, Gabbert interrogated Groody concerning his
union sympathies and Groody told Gabbert that he was a
member of the Union. Even though Gabbert knew of Groo-
dy's union membership, he still replaced Provost with
Groody. Respondent argues in effect that if Gabbert were
motivated by antiunion considerations it would have made no
sense for him to discharge Provost for union activity and hire
a union member , Groody, as a replacement. Based on this
logic, Respondent urges that Provost's version of the terminal
interview should be discredited.
Respondent's attempt to use its own unfair labor practice
(the interrogation) as a shield to defend against other unfair
labor practices is not convincing. Though Gabbert did not
impress me as a candid witness, he did convince me that he
is very astute and quick-minded. Gabbert could not lawfully
refuse to hire an employee because that employee was a union
member. Gabbert may well have reasoned that if he refused
to give the job to Groody after he interrogated Groody con-
cerning union sympathies and ascertained that Groody was
a union member he would be in a very difficult position to
defend himself. Gabbert had, just 3 days before, made dire
threats to his staff concerning unionization and a petition for
an election was pending with the Board. On the other hand,
Gabbert felt reasonably safe in discharging Provost. If Prov-
ost was a supervisor, such a discharge would not be violative
of the Act. Gabbert thought he could establish that Provost
was a supervisor. He said as much to Provost and Kelly at
the conclusion of the September 18 meeting. In like manner,
he told Young on October 11, 1973, that Provost had done
a stupid thing by bringing the NLRB case because they had
proved that Provost was a supervisor.
Provost was the key activist for the Union. That activity
was carried out between September 12, and 17, 1973. On
September 18, Respondent through Gabbert attempted to
undermine the Union by engaging in the violations of Section
8(a)(1) set forth above. Two days later Provost left for Florida
because of his father's medical emergency. On October 1,
when Provost returned Gabbert told Provost that he sus-
pected that Provost was active on behalf of the Union, that
if the union issue had not come up he would not terminate
him at that time, and that because Provost was news director
he could be fired. In light of those findings, Respondent's
defense that Provost was discharged because of a difference
in philosophy and because of an unexcused absence cannot be
given credence. It is also noted that the philosophical differ-
ence had been going on since August 1972. During all that
time , Respondent could live with it. The situation changed
only after the union activity. The unexcused absence defense
also lacks substance. Kelly was an admitted supervisor. Prov-
ost notified him of the need for emergency leave and arrange-
ments were made to cover him. Kelly raised no objection to
the procedure. I find that both the philosophical and absence
defenses were raised as pretexts."
Gabbert testified that in April 1973 he spoke to Jensen with the thought
in mind of having Jensen take Provost's job. He also testified that on Sep-
tember 11, 1973, he had an hour interview with Groody with the thought
of offering him Provost's job. In neither case did Gabbert say anything to
the applicant about Provost's job and apparently Gabbert was describing
only his thought processes. Respondent argues that the fact that Gabbert did
not ordinarily interview prospective employees for part-time jobs indicates
that the hour he spent with Groody was keyed to Provost's full-time slot.
I do not credit Gabbert with regard to his description of his thought pro-
cesses.
RADIO STATION K-101
In sum, I find that Provost was discharged on October 1,
1973, because of his activities on behalf of the Union.
2. Provost's status as a supervisor or employee
a. Background
Provost was hired by Respondent in 1969 as an on-the-air
newscaster. His duties required him to prepare newscasts
from wire service reports, newspapers, and other sources, and
to present the report on the air. On May 1, 1970, Provost was
given the title of news director. During most of the time
thereafter, the news department consisted of two full-time
on-the-air reporters (including Provost), a part-time on-the-
air weekend reporter, and a full-time "street" reporter who
had no on-the-air duties, After he was given the news director
title, Provost continued to assemble and deliver newscasts.
The news director title did not carry with it any wage in-
crease, nor was he givenlan office, a specially designated place
to work, or a budget for the news department. Though Prov-
ost did assume some additional duties, which are discussed in
detail below, Gabbert did not delineate Provost's duties as
news director."
When Provost was discharged on October 1, 1973, he was
earning $1,050 a month." Groody, who replaced Provost
on October 1, 1973, is paid $1,150 a month, even though he
did not assume Provost's title as news director. Thomas Nel-
son, the other full-time, on-the-air news reporter presently
working for Respondent, is paid $1,175 per month ($275 a
week). Kelly, who is admittedly a supervisor and who Re-
spondent contends was a parallel authority to Provost, is paid
$1,625 a month ($375 a week).14 Thus, Provost, who was
the news director and, according to the Respondent, a super-
visor, was paid less than the two employee newscasters who
are currently employed'. In addition, his pay was substantially
less than Program Director Kelly, whose equal, according to
Respondent, Provost was supposed to be.
b. Provost's role in hiring
After Provost became news director, he handled applica-
tions for employment in the news department. When an in-
quiry was received and no opening was available, Provost
12 Gabbert testified that when he appointed Provost news director he told
Provost that it was up to Provost to keep the news department running
smoothly, to expand the department in terms of news coverage, and to
follow the general format and philosophy of the station. He averred that he
told Provost that he (Gabbert) did not like to be bothered with day-to-day
operations such as vacation schedules or sick leave , and that he only wanted
to be consulted on important matters. According to Gabbert, he told Provost
that it was Provost 's news department as long as he kept within the format
and philosophy of the station . Provost, in his testimony, denied the sub-
stance of Gabbert 's assertion in this regard . I credit Provost and do not
credit Gabbert.
13 Provost was hired at $800 a month and received a number of raises to
bring him to $1,050 a month . In the spring of 1972, Provost asked for a
$100-a-month raise . Gabbert agreed and said that he was very happy with
Provost's work and that he wished he could afford to give more than the
$100.
14 Respondent contends :that the amounts paid to on -the-air personnel in
the broadcasting industry are keyed in large measure to the individual's
broadcasting personality and his value to the station . While that may well
be so, the relative pay of employees and supervisors is still one factor to be
considered in evaluating their relationship.
609
routinely answered the inquiry with a letter stating that there
were no jobs at the time but that the inquiry would be kept
on file. When an opening was anticipated, the general prac-
tice was for Provost to read the resumes and interview the
available applicants. In addition, Provost assisted in the cut-
ting of an audition tape on which the applicant made a sample
news broadcast. On occasions, Provost screened out appli-
cants. Of the 50 tapes he assisted in cutting during his tenure
as news director, he submitted about 45 to Gabbert for deci-
sion . He would normally fold the resume on the tape reels and
leave them on Gabbert's desk. Sometimes he selected two or
three of the tapes that he considered best and put them on the
top of the pile. On some occasions, he wrote a memo to
Gabbert stating who he thought was best. At times, he sub-
mitted between 10 and 15 tapes to Gabbert.15
Respondent on occasions used the services of "stringers,"
who were independent reporters who sell stories to various
media. The practice is for the stringers to call the station and
speak to the newsman who is on duty. Each newscaster can
accept or reject the story. The station pays $5 per story.
Provost, as well as the other newsmen, accepted stories from
stringers. As news director, Provost checked the stringer bill-
ings, but this was also something done by Robert Hirschfeld,
a reporter. 16
While Provost was news director, Respondent hired eight
full- or part-time employees in the news department. They
were White, Jorgensen, Hirschfeld, Plumb, Nelson, Caf-
ferata, Jensen , and Groody. The record does not indicate
whether Provost played any part in the hire of Plumb, a
part-time newscaster. As to all the others, there is evidence
of Provost's role.
Provost did not take any part in the interview of two of the
employees, White and Cafferata. White was hired in June
1970 just a month after Provost was made news director, and
was interviewed by William Keffury, who was program direc-
tor at the time. Cafferata had applied for a job in the news
department some time before her hire and was told by Prov-
ost that there were no openings then available. Later, she
applied for a job as a disc jockey to Kelly. Kelly told Provost
that Gabbert was interested in Cafferata as a news reporter
and asked him to check with her prior employer." After
Provost made the inquiry, Kelly asked him what he thought
about her background and Provost answered that everything
was negative and he didn't think she should be hired, Some
time in August 1973, Cafferata spoke to Gabbert and on
August 31, 1973, she was hired as a full-time street reporter.
Thus, as to White, Provost played no part in his hire, and as
to Cafferata, Provost's negative recommendation was ig-
nored.
For some time before Hirschfeld's hire as a news reporter
on October 15, 1970, he had been a stringer who sold stories
to Respondent and other news media. Before Hirschfeld's
hire, Provost, who was Hirschfeld's friend, repeatedly urged
15 These findings are based on the testimony of Provost. Gabbert testified
that Provost screened out tapes and generally gave him three or four with
a strong recommendation for the one he felt best and that he never submit-
ted 15 tapes. I credit Provost.
16 This finding is based on the credited testimony of Provost. I do not
credit Gabbert's assertion that Provost handled the contracting of the string-
ers.
17 Kelly testified that he did not instruct Provost to have a background
check on Cafferata. I credit Provost's testimony to the contrary.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gabbert to hire Hirschfeld. Everyone at the station knew of
Hirschfeld's work. Provost told Gabbert that Respondent
was already paying Hirschfeld a substantial amount for his
work as a stringer and that making him a staff member would
help the station and not be overly costly. At first Gabbert told
Provost that he would like to hire Hirschfeld but that they
didn't have the money Finally, on October 15, 1970, Gab-
bert, who had been in touch with Hirschfeld in connection
with a certain news story, hired Hirschfeld." There were no
other applicants for the position given to Hirschfeld as the job
was newly created for him
Jensen had three separate periods of employment with Re-
spondent and after each he left voluntarily. The third period
began in 1972 when Provost was news director. Provost
called Jensen and asked whether he would be available for
part-time work. Jensen replied that he would be interested
and Provost said that he would see what he could do, even
though Gabbert didn't like people leaving and coming back.
At that time, Gabbert had already rejected other applicants
for a part-time opening that existed. Provost recommended
that Jensen be hired and told Gabbert that Jensen would do
a good job. Gabbert said he would think it over Thereafter,
Gabbert authorized Jensen's hiring 19
Before Nelson was hired in 1972, Provost had forwarded
a tape of another applicant to Gabbert and told Gabbert that
he was impressed with that other applicant Gabbert rejected
the application. Thereafter, Provost interviewed Nelson and
suggested to Gabbert that Nelson be hired.
Provost interviewed Jorgensen for a part-time position in
November 1971. Provost spoke to Gabbert about full-time
employment for Jorgensen, but Gabbert said that he wasn't
interested. Jorgensen was hired as a part-time employee. He
also filled in for White for a time when White was ill.
Groody was hired on September 19, 1973, to fill in for
Provost, who was going to Florida Groody was told by
Gabbert on September 21 that he would replace Provost
when Provost was discharged. In August 1973, Groody
called Provost and asked about a job. About 3 weeks later,
Provost called back and said there was an opening for a
part-time employee if he was interested Groody wanted the
job and an interview with Provost was arranged. Thereafter,
Provost interviewed Groody and submitted a tape to Gab-
bert, together with the tapes of some other applicants. Prov-
ost did not send in a recommendation with the tapes, but he
had told Kelly that Groody was a friend of his and that he
thought Groody would do as good a job as any of the other
applicants.20
Gabbert did not like Groody's tape and a second tape was
18 Gabbert testified that Provost told him that it was his (Provost's)
decision as news director that Hirschfeld be hired and that Gabbert should
trust his judgment Gabbert also averred that he told Provost that it was
Provost's department, and that Provost made the final decision to hire
Hirschfeld I do not credit Gabbert' s assertions and I do credit Provost's
testimony to the contrary
19 Gabbert testified that he left the decision on waiving company policy
against rehiring employees up to Provost and that Provost told him that he
(Provost) had rehired Jensen I do not credit Gabbert and I do credit Pro-
vost's testimony to the contrary
20 I do not credit Kelly's testimony that Provost asked him to listen to
Groody's tape and told him that Groody was the man that he (Provost) was
going to hire
cut. Following the second cutting, Groody was interviewed
by Gabbert on September 11.
c. Provost's role in discharges
Two employees, Hirschfeld and White, were discharged
during Provost's tenure as news director.
Hirschfeld was discharged on August 31, 1973. Gabbert
made the decision to discharge Hirschfeld. He spoke to Prov-
ost about it and Provost argued strenuously that Hirschfeld
was a good reporter and should stay. Nonetheless, Hirschfeld
was fired.
Jack White was discharged on December 3, 1973. He was
notified of his discharge by Provost, who told him that Gab-
bert wanted him fired immediately. Prior to that time, Gab-
bert had given him a reprimand. Before the discharge, Gab-
bert complained about White's performance to Provost and
said that they were going to have to get rid of White. Provost
told Gabbert that he agreed. Gabbert told Mary Alliston, the
bookkeeper, that he was going to fire White and asked her to
make out a final paycheck and 2 weeks' severance pay.21
Thus, it appears that with regard to the two discharges that
occurred while Provost was news director, one discharge
(Hirschfeld) took place over the objection of Provost and the
other (White), which Provost did not disagree with, was occa-
sioned by Gabbert's dissatisfaction with the employee.
d. Provost's other duties
Provost did not direct the work of the employees in the
newsroom. Each morning the newsmen conferred (with the
afternoon newsman calling in) and compared notes concern-
ing what stones were to be covered that day. Provost did not
give the other newsmen assignments or tell them what stories
to cover, although he did give suggestions in the course of the
discussions.22
21 Gabbert testified that in November 1971 Provost told him that White
was a bad newsman and was not a desirable person to have there Gabbert
averred that he left the decision up to Provost and that he said he had no
objection if Provost got rid of White He further testified that the next thing
he heard about the matter was when the bookkeeper asked him to sign a
check for the termination and severance pay for White According to Gab-
bert, he asked the bookkeeper whether White was leaving them, and she
replied in the affirmative Mary Alliston, the bookkeeper, testified that it
was Gabbert who told her that he was going to fire White and asked her to
make out the checks
Aihston no longer works for Respondent She left with ill feeling toward
Respondent over a pay matter In evaluating her testimony, I have consid-
ered the possibility of bias Nonetheless, I credit her version of the conversa-
tion and discredit Gabbert's
22 These findings are based on the credited testimony of Provost, which
was corroborated by a number of other witnesses White testified that they
mutually agreed on what stories were to be covered and made suggestions
to each other Jensen testified that Provost did not give him orders Hirsch-
feld testified that Provost never gave him orders to cover a story, that
newsroom people got together and decided what to do, and that they always
worked out the problems between themselves Jorgensen testified that Prov-
ost never told him to cover a specific story and that he used his journalistic
background to decide what stories to cover Cafferata testified to the con-
trary She averred that between the time that she reported for work on
August 31 and the time Provost left on September 20, 1973, that Provost
told her what stories he wanted her to cover and told her how to rewrite
stories She also testified that from the time Provost left she decided herself
what she would cover and she does not need directions As indicated above,
I do not believe that Cafferata was always an accurate witness Whatever
(Continued)
RADIO STATION K-101 611
In March 1973, President Nixon gave a speech without
much notice to the media. There was some question as to
whether it should be carried on the station, and Nelson, who
was on duty at the time, called Provost concerning the mat-
ter. Provost said that it was his opinion that the speech should
not be carried in the light of Gabbert's prior policies. In the
past, Gabbert had directed certain speeches not to be carried
on the theory that people who wanted to watch them would
be seeing them on television. Provost asked Nelson to talk to
Kelly about it. The speech was not carried, and Gabbert was
upset. The following day Provost said that he would take
responsibility, and he tried to justify his position to Gabbert.
On June 5, 1973, Provost complained to Gabbert that Nel-
son wasn't doing his share of the work. Gabbert interrupted
him and said that it was none of Provost's concern, that
Provost was responsible for his own on-the-air performance,
and that Provost was taking the title too seriously and was
off on a power-trip. Gabbert told Provost that Provost was
responsible only for his own performance and that he should
relax and let the other people do what they were doing.23
Sometime after June 5, 1973, Hirschfeld overheard Gab-
bert telling Nelson that Provost was taking the title of news
director too seriously, and that Gabbert said "Why can't
Mark get it through his head that he is news director in name
only."24
Respondent had a vacation policy of granting employees
2-week vacations for the first 3 years of employment, and
then 3 weeks. When Provost first became news director, any-
one wanting vacations contacted Gabbert or the program
director informally to obtain clearance. In order to avoid
confusion and questions, Provost began to write down vaca-
tion information, both for himself and for the other newsmen
and to submit it to Gabbert. Provost had no authority to
change the amount of vacation time or to deny vacation. He
never told any employee that that employee could not take
a requested vacation and he did not resolve conflicts in vaca-
tion requests.25
Respondent points to certain miscellaneous correspond-
ence undertaken by Provost as an indication of supervisory
authority.26 Most are letters to job applicants stating that
there were no jobs available. In addition, Provost wrote a
number of memos to Respondent regarding vacation re-
quests. There is correspondence from Provost to the book-
keeping department concerning stringer billings. There is a
proposal concerning newsroom design. In addition, there is
an unsigned draft of a memo from Provost relating efforts to
hire minority employees in which the assertion is made that
Provost seriously considered a certain applicant for employ-
ment.
In the light of all the testimony set forth above with regard
to Provost's duties, I specifically discredit Gabbert' s asser-
tions that he considered the program director and the news
director to be on an equal basis in the hierarchy of the station;
that Provost had the responsibility to carry out programming
policy with regard to news; that Provost set vacations within
vacation policies established by Gabbert; that Provost had
authority to approve or disapprove vacations and sick leave;
that Provost assigned a daily calendar; that Provost handled
the contracting of stringers; that Provost did all interviewing
of applicants; and that Provost was responsible for the prod-
uct that came out of the news department.
3. Analysis and conclusions with regard to Provost's
discharge
guidance Provost gave her can be explained in terms of an experienced
worker helping a less experienced one, rather than a supervisor directing an
employee . Nelson testified that after June 5, 1973, Provost did not assign
any work to him and that to the best of his recollection, there was no
situation that developed after that date in which direction was needed.
There is an implication that prior to that date Provost did assign him work.
In the light of the credible testimony of the other witnesses mentioned
above, I do not credit Nelson in this regard.
23 This finding is based on the credited testimony of Provost . Gabbert
testified that Provost approached him and told him that he would resign if
Nelson was not fired . Gabbert averred that when he asked why Provost told
him that Nelson wasn't working enough and wouldn ' t listen to him . Gabbert
testified that he then told Provost that Nelson was following the philosophy
he (Gabbert) wanted and he suggested that Provost not force him into
making a decision . Gabbert acknowledged in his testimony that he told
Provost that Provost was abusing his power as a news director and was
harassing Nelson . Gabbert also averred that he told Provost to get off
Nelson 's back . I do not credit Gabbert's assertions where they conflict with
Provost's.
24 This finding is based on the credited testimony of Hirschfeld. Both
Gabbert and Nelson denied that this conversation took place . I do not credit
them . As indicated above, I do not believe that Gabbert was always a candid
witness . I was also unimpressed with Nelson's credibility . On several occa-
sions, his evidence was in conflict with an affidavit that he gave to the
General Counsel . His attempts to explain the discrepancies were not con-
vincing . In his testimony , he averred that he did not meet Gabbert until after
he was hired, yet, in his affidavit he averred that at some time during the
interview stage he was introduced to Gabbert . In his testimony, he averred
that Provost scheduled vacation time and that on one occasion when he
requested time off Provost told him that another employee already had that
time . In his affidavit , he averred that Provost did not deny vacation time and
that the newsmen would cover for each other when any of them had to take
off. The affidavit states that Provost did not actually grant time off, yet,
further in his testimony he averred that on August 24 , 1973, Provost did
grant him vacation time. r
As found above, Provost was discharged because of his
activities on behalf of the Union. Under the Act, employees
are protected against discharge for such a cause. Supervisors
are not so protected. Provost's status as a supervisor or em-
ployee is therefore critical.
Section 2(11) of the Act defines "supervisor" as follows:
The term "supervisor" means any individual having au-
thority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, re-
ward, or discipline other employees, or responsibly to
25 These findings are based on the credited testimony of Provost. Hirsch-
feld averred that on one occasion, when his father-in-law died, he asked if
he could leave and Provost told him to go ahead. Nelson, in a similar vein
testified that on one occasion, when his father had a stroke, he asked for
some vacation time, and Provost told him to go ahead and that he would
take care of everything. In these circumstances, however, Provost's remarks
can be explained in terms of a coemployee volunteering to cover during an
emergency rather than a formal granting of time off by a supervisor. Nelson
also testified that he requested Thanksgiving off in 1972 and that Provost
told him that Jensen had already applied for that time, and therefore he
could not have it. In the light of an inconsistent statement in an affidavit that
Nelson gave to the General Counsel, I do not credit him. In that affidavit,
Nelson averred that the newsmen covered for each other when they had to
take time off, that Provost did not actually grant time off, and that they
arranged those matters among themselves. Jensen credibly testified that he
asked Provost for time off. He explained that he asked Provost if Provost
would change with him so that he (Jensen) would work Saturday and Prov-
ost would work Sunday.
26 It is noted that Hirschfeld also engaged in certain correspondence for
Respondent.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 of a merely
routine or clerical nature, but requires the use of in-
dependent judgment.
In determining whether a person is a supervisor, the Board
looks to that person's actual duties, rather than to a title or
to theoretical powers. As the Court of Appeals for the Fourth
Circuit said in N.L.R.B. v. Southern Bleachery & Print
Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958):
.. . the employer cannot make a supervisor out of a
rank and file employee simply by giving him the title and
theoretical power to perform one or more of the enumer-
ated supervisory functions. The important thing is the
possession and exercise of actual supervisory duties and
authority and not the formal title. It is a question of fact
in every case as to whether the individual is merely a
superior workman or lead man who exercises the control
of a skilled worker over less capable employees, or is a
supervisor who shares the power of management. .
The same theme was reiterated by the Fifth Circuit in Ross
Porta-Plant, Inc. v. N.L.R.B., 404 F.2d 1180, 1182 (C.A. 5,
1968), where that court held:
In enacting § 2(11) of the Act Congress did not intend
to exclude from its protection any individuals except
those who possess true managerial powers. This section
is designed to apply to supervisors with genuine manage-
ment prerogatives as distinguished from "straw bosses,
leadmen, set-up men, and other minor supervisory em-
ployees." S. Rep. No. 105 on S. 1126, 80th Cong., 1st
Sess., p. 4. The company's designation of these em
ployees as "department heads," "assistant foremen" or
"foremen" is not controlling in the absence of delegation
to them of bona fide managerial powers.
Where a person "effectively recommends" or "responsibly
directs" within the meaning of the Act, he is a supervisor.
However, where that person is no more than a leadman-type
rank-and-file employee whose judgment is valued, sought,
and considered, he is not a supervisor. Montgomery Ward &
Co., Inc., 198 NLRB 52 (1972); Orr Iron, Inc., 207 NLRB
863 (1973); Cast-A-Stone Products Company, 198 NLRB 484
(1972), enfd. 479 F.2d 396 (C.A. 4, 1973).27
As the indicia of supervisory status contained in Section
2(11) of the Act are set forth disjunctively, it must be deter-
mined whether Provost met any of those indicia. N.L.R.B. v.
Budd Mfg. Co., 169 F.2d 571 (C.A. 6, 1948).
Provost spent the great bulk of his time preparing and
presenting news, reports for on-the-air broadcasts. When he
was given the title news director, he was not told what new
responsibilities, if any, he had. He was not given a wage
increase, an office, or a budget for the news department. His
earnings were less than the pay given to the employee who
replaced him, even though that employee did not assume any
"news director" duties. Nelson, an employee whom Provost
allegedly supervised, earns more than Provost did at the time
of his discharge. Provost's earnings were substantially less
than those of the persons whom Respondent admits to be
supervisors.
Provost did have a role in the hire of new employees, but
it was extremely limited. There were eight persons employed
during Provost's tenure as news director. There is no evidence
in the record concerning what role he played, if any, in the
hiring of Plumb. Provost did not even interview two of the
new employees, White and Cafferata. Provost did interview
Groody, who was Provost's replacement, but it was Gabbert
who gave the meaningful reinterview. Gabbert was familiar
with Hirchfeld's work, as Hirschfeld had been a stringer. It
was Gabbert who decided to hire Hirschfeld after a direct
contact with him on a news story. In a similar vein, Gabbert
was familiar with Jensen 's work, as Jensen had worked for
Respondent before Provost was hired. Provost did make
recommendations, but Gabbert gave them weight only when
he was so inclined. Provost recommended strongly against
the hiring of Cafferata, and she was hired. He objected vigor-
ously to the discharge of Hirschfeld and he was fired. Provost
agreed that White should be let go, but it was Gabbert who
formulated the idea of discharging him and made the deci-
sion.
As found above, Provost did not direct the work of the
employees in the newsroom. Although Provost relayed vaca-
tion information to Gabbert, he did not make decisions con-
cerning vacations, nor did he resolve conflicts in vacation
requests.
Provost carried on certain miscellaneous correspondence
for Respondent, but that was of a routine nature and did not
involve the type of independent discretion that would indicate
supervisory status.
On June 5, 1973, when Provost complained to Gabbert that
Nelson wasn't doing his share of the work, Gabbert dispelled
any illusions that Provost might have had concerning the
meaning of the title "news director." Gabbert told Provost
that he was taking the title too seriously and that he was off
on a power-trip. Gabbert also told him that he (Provost) was
responsible only for his own performance and that he should
relax and let the other people do what they were doing.
Thereafter, Gabbert made a similar reference to the very
employees that Provost allegedly supervised. Gabbert asked
Nelson, in the presence of Hirschfeld, why Provost couldn't
get it through his head that he was news director in name
only.
After weighing all of the above factors, I find that Provost
was an employee and not a supervisor within the meaning of
the Act. As an employee, Provost was protected by the Act
when he undertook activities on behalf of the Union, and,
therefore, I find that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging him for those activities.
C. The Discharge of Harry Young
1. The General Counsel's case
27 See also The Rowand Company, Inc., 210 NLRB 95 (1974), where the
Board relied on the fact that a person received the same pay and performed
the same type of work as other laborers in finding him to be an employee
rather than a supervisor.
Young worked for Respondent from August 1966 to
December 13, 1973 . He was originally hired as a part-time
tracking engineer . In 1969, he was given a full-time position
RADIO STATION K-101 613
as a disc jockey on the midnight- to-six a.m. shift. From that
time until his discharge he selected music, played records on
the air, and performed the regular duties of a disc jockey
announcer. When he became a disc jockey in 1969, there was
no sponsor for his shift. In the late spring or early summer
of 1971, Moulthrop Sales began to sponsor Young's program.
That sponsorship continued until July 4, 1973. From that
date, until Young's discharge, on December 13, 1973, the
program was unsponsored.
Young signed a union authorization card on September 16,
1973. During the 3 or 4 years between his becoming a disc
jockey and his signing of a union card, he received a number
of compliments about his work from officials of
Respondent.28 On several occasions Gabbert told Young
that Young programmed the best music on the station. In the
beginning of 1973, Kelly sent Young a memo stating: "You
sound great, keep up the good work." In February 1973, a
Mr. Grubb, who is a representative for sponsor Moulthrop
Sales, shook Young's hand and said that Young was doing a
great job. Young was hired as a disc jockey at $500 a month.
He received three or four raises, the last of which was in
February or March 1972, which brought his pay to $750 a
month.
Gabbert received the petition for an election on September
18, 1973, two days after Young signed an authorization card.
As set forth in detail above, Gabbert responded to the petition
on the same day that he received it by threatening employees
with loss of employment if they selected the Union to repre-
sent them. On October 1, 1973, Gabbert discharged Provost
because of his union activity. On October 11, 1973, Gabbert
attempted again to undermine the Union by telling Young
that he would say "no" to any proposal that the Union
brought him. In that conversation Gabbert told Young, in
substance, that he didn't believe that announcers getting
more than union scale would vote for the Union and that the
only ones that would benefit from the Union would be Young
and Hirschfeld (who had already been discharged). Gabbert's
remark about the voting and the benefit of unionization to
Young establish that Gabbert suspected that Young was sym-
pathetic towards the Union. During this conversation, Gab-
bert told Young that he liked the performance of Mike Webb,
the relief man who had filled in for Young while Young was
on vacation, better than he liked Young's performance, and
that if it weren't for the fact that the Union had filed a
petition Young would not be working there. Gabbert also
told Young that he didn't like Young's on-the-air voice, that
Young's approach wasn't what they were looking for, and
that the best thing for both of them would be a parting of the
ways.
Up to the time of the union activity, Gabbert had expressed
nothing but praise for Young. Within a month after Young
had signed a union authorization card, Gabbert indicated
28 Kelly credibly testified that Young asked him for a change in shift and
that he (Kelly) told Young that he didn't feel Young could handle the day
shift. Kelly also testified that on several occasions when Young asked about
the change in shift, he (Kelly) told Young that if Young was unhappy and
couldn't seethe light at the end of the tunnel he should see about another
job. Young 's testimony was less detailed , but was in substantial accord.
Although Respondent did refuse to honor Young's request for a transfer to
a daytime shift and did suggest that he resign if he weren't happy about it,
it does not follow that Respondent had any complaint concerning the mid-
night-to-six a.m. shift which Young did work.
that he was suspicious that Young was sympathetic toward
the Union and spoke of discharging him. Gabbert's hostility
toward Young continued.
On October 14, 1973, Kelly called Young at home and said
that he knew Gabbert had talked to Young about the possibil-
ity of replacing him with Webb, but that as far as he knew
everything was as usual , and Young should come in and do
his shift.
On November 15, Assistant Operations Manager Kasper
wrote a memo to Young reminding Young that they hadn't
had a sponsor since July 3. Kasper went on to say that be-
cause of the energy crisis they might shorten the broadcast
hours. The memo stated: "Should the decision to eliminate
some broadcast hours be made it would have a direct effect
on your position with K-101."
On November 27, 1973, Gabbert wrote a memo to Young
stating:
In the past two weeks your programming of music has
hardened up quite a bit. The music is contrary to what
you have been instructed to do by Don Kelly. The music
is supposed to flow and be contemporary, but never hard
or driving. Your current programming will only lead to
rapid drops in audience as it is not in keeping with the
format of the station. Remedial action has to be taken by
you immediately. A word of caution: It has to be prop-
erly balanced and not end up too draggy.
On December 13, Kelly discharged Young and unlawfully
told him that Respondent was not going to give him sever-
ance pay until they found out whether he would file a charge.
2. Respondent's defense
Respondent alleges that Young was discharged because: a
new sponsor, Undulator Water Beds, had been found for the
midnight-to-six a.m. shift; Kelly did not believe that Young
could .announce in the impromptu and improvised manner
that was desired; and the ratings on Young's show had been
low.
Respondent introduced survey ratings which indicated
that the ratings for August-September 1973 were among the
lowest of the Bay Area stations. There is no indication that
this rating was different than it had been in the past or that
prior to the date of discharge anyone complained to Young
about his ratings.
On December 10, 1973, Kasper wrote to Kelly saying that
they had a sponsor for the midnight-to-six a.m. shift. In the
memo he said that he had doubts about Young's ability to
pull off the ad-lib bit successfully and that he felt the loss of
the prior sponsor was due to Young's lack of
competence.29
On December 12, 1973, Kelly wrote a note to Young tell-
ing him that the all-night show had been sold to a new adver-
tiser. The memo asked Young to see Kelly and Kasper the
following day. The following day, Kelly told Young that he
29 Gabbert testified that in February 1973, Grubb, a salesman for Moul-
throp Sales, told him that he was dissatisfied with the show because it was
too impersonal. Young credibly testified that about the same time Grubb
was complimenting him on his performance. Assuming that Gabbert's tes-
timony is true and that Grubb did complain to him, it appears that Gabbert
did not take it seriously enough even to talk to Young about it.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Kelly) felt that Young could not do the commercials for the
new sponsor and that he was discharged. In that conversa-
tion, Kelly also mentioned Young's low ratings. Prior to that
time, Young was not aware of them. Kelly said he thought
the prior sponsor left because of Young. Young was replaced
by Steve Fisher who had been a part-time tracking engineer
for the station.
Respondent argues that one of the reasons for Young's
discharge was that Young could not ad lib successfully. How-
ever, he had not been asked to ad lib in the past. The promo-
tional commercials for the new sponsor had been taped by a
different disc jockey and Young had not been given any op-
portunity to try out for them.
3. Conclusions
General Counsel has established by a preponderance of the
credible evidence that: Respondent had expressed satisfaction
with Young's work for 3 or 4 years before the union activity;
that Young engaged in . protected union activity; that Re-
spondent suspected that Young had engaged in that activity;
that Respondent harbored a virulent animosity against the
Union which was manifested by many unlawful acts, includ-
ing a threat to discharge employees and the discharge of
Provost; that after the union activity Respondent began to
express criticism of Young's work; and that the campaign
against Young culminated in his discharge, in the context of
a threat by Respondent to withhold severance pay if Young
filed a charge with the Board.
In view of these findings, Respondent's defense is uncon-
vincing. On October 11, 1973, Gabbert told Young that he
would be fired at that time if it were not for the pendency of
the petition. This conversation occurred well before a new
sponsor had been secured for the midnight-to-six a.m. shift.
I find that Respondent's contention that Young did not meet
the requirements of the new sponsor was merely raised as a
convenient pretext to disguise the real motivation for the
discharge. The same applies to Respondent's contention that
the low ratings and Young's alleged inability to ad lib were
reasons for the discharge. I find that after Respondent began
suspecting Young 's union sympathies, it began setting up
pretexts for getting rid of him. Thus, on November 15,
Kasper attempted to ease Young out by sending him a memo
which indicated that part of his shift might be cut out. In a
similar vein, on November 27, Gabbert wrote to Young com-
plaining about Young's selection of music, while in the past,
Gabbert had nothing but compliments toward Young in that
regard. When a new sponsor was finally secured, Respondent
felt that it could safely get rid of Young, and he was dis-
charged.
In sum , I find that the reasons put forward by Respondent
for the discharge of Young were pretextual and that Young
was discharged because of his activity on behalf of the Union.
I further find that by that discharge Respondent violated
Section 8(a)(3) and (1) of the Act.
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Mark T. Prov-
ost and Harry Young in violation of Section 8(a)(3) and (1)
of the Act, I shall recommend that Respondent be ordered to
offer them reinstatement30 and make them whole for any
loss of pay resulting from their discharge, by payment to each
of them of a sum of money equal to the amount each normally
would have earned as wages from the date of his discharge
to the date on which reinstatement is offered, less net earnings
during that period. Such backpay shall be computed on a
quarterly basis in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and shall include interest at
6 percent as provided in Isis Plumbing & Hearing Co., 138
NLRB 716 (1962).
It is further recommended that Respondent be ordered to
preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Mark T. Provost and Harry Young be-
cause of their activities on behalf of the Union, Respondent
violated Section 8(a)(3) of the Act.
4. By the foregoing conduct, by threatening employees
with loss of employment if they selected the Union to repre-
sent them, by telling an employee that if the Union were
selected by the employees it would say "no" to any proposal
that the Union brought before it, by threatening to withhold
severance pay from an employee if that employee filed a
charge with the Board, and by coercively interrogating an
employee concerning his union sympathies, Respondent has
interfered with, restrained, and coerced employees in the ex-
ercise of their rights guaranteed them by Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
30 The usual Board Order provides that a discriminatee is to be reinstated
to his former job or, if that job no longer exists, to a substantially equivalent
position . At the time of the hearing , the "news director" job no longer
existed. However, but for Respondent's unlawful conduct Provost would
have continued in his job of "news director." I therefore recommend that
Respondent be ordered to offer Provost reinstatement as "news director."
RADIO STATION K-101
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record , and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"
Respondent, Pacific FM, Inc., d/b/a Radio Station
K-101, San Francisco, California, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting the American Federation of Televi-
sion and Radio Artists, San Francisco Local Branch of Asso-
ciated Actors and Artists of America, AFL-CIO, or any
other union.
(b) Threatening employees with loss of employment if they
select that Union to represent them.
(c) Telling employees that if the Union is selected by the
employees, it will say "no" to any proposal that the Union
brings before it.
(d) Threatening to withhold severance pay from employees
if they file charges with the Board.
(e) Coercively interrogating employees concerning their
union sympathies.
(f) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Mark T. Provost and Harry Young immediate
and full reinstatement to their former jobs, without prejudice
to their seniority or other rights and privileges, and make
them whole for their loss of earnings in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its San Francisco broadcasting station copies of
the attached notice marked "Appendix."32 Copies of the no-
tice, on forms provided by the Regional Director for Region
20, after being duly signed by Respondent's authorized repre-
31 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
32 In the event that 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 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."
615
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give evidence,
the National Labor Relations Board has found that we vi-
olated the National Labor Relations Act, and has ordered us
to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things except to the
extent that membership in a union may be required
pursuant to a lawful union-security clause.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these rights.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting American Federa-
tion of Television and Radio Artists, San Francisco Lo-
cal Branch of Associated Actors and Artists of America,
AFL-CIO, or any other union.
WE WILL NOT threaten employees with loss of employ-
ment if they select that Union to represent them.
WE WILL NOT tell employees that if the Union is se-
lected by the employees we will say "no" to any proposal
that the Union brings before us.
WE WILL NOT threaten to withhold severance pay from
employees if they file charges with the Board.
WE WILL NOT coercively interrogate employees con-
cerning their union sympathies.
WE WILL offer full reinstatement to Mark T. Provost
and Harry Young, with backpay plus 6-percent interest.
PACIFIC FM, INC., d/b/a RADIO
STATION K-101