Retlaw Broadcasting Co.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 984 (N.L.R.B. 1993)

984
310 NLRB No. 160
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Members Devaney and Oviatt note that while there is Board
precedent which supports denying reinstatement and backpay where
a discharge is lawful but where the respondent may contempora-
neously engage in other unlawful conduct, Redway Carriers, 274
NLRB 1359 fn. 4 (1985); Taracorp Inc., 273 NLRB 221 (1984), this
case is governed by Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941), and its progeny since Haagenson was an applicant for em-
ployment at the time the illegal condition was attached to the reem-
ployment offer.
1 Counsel for the General Counsel filed a motion to strike a por-
tion of Respondent’s brief which motion Respondent opposed. The
motion is denied.
2 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evi-
dence. Testimony was limited to that of Drilling, Faulder, and
Haagenson. No others testified.
Retlaw Broadcasting Co., a subsidiary of Retlaw
Enterprises, Inc., d/b/a KJEO-TV, Channel 47
and American Federation of Television and
Radio Artists, Fresno Local. Case 32–CA–12187
March 31, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 25, 1992, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Retlaw Broadcasting Co.,
a subsidiary of Retlaw Enterprises, Inc., d/b/a KJEO-
TV, Channel 47, Fresno, California, its officers,
agents, successors, and assigns shall take the action set
forth in the Order.
Barbara D. Davison, Esq., for the General Counsel.
Thomas E. Campagne, Esq., of Fresno, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on April 28, 1992, in Fresno, Cali-
fornia, pursuant to a complaint and notice of hearing issued
by the Regional Director for Region 32 of the National
Labor Relations Board (the Board) on December 30, 1991,
based on a charge filed on November 15, 1991, and docketed
as Case 32–CA–12187 by American Federation of Television
and Radio Artists, Fresno Local (the Charging Party or the
Union) against Retlaw Broadcasting Co., a subsidiary of
Retlaw Enterprises, Inc., d/b/a KJEO-TV, Channel 47 (Re-
spondent). The due date for submission of posthearing briefs
was extended to July 21, 1992.
The complaint alleges that Respondent threatened to retali-
ate against an employee because he sought to enforce the
overtime provisions of the collective-bargaining agreement
and offered to rehire an employee only if the employee
agreed to waive his right to file a grievance and/or right to
go to the Union for assistance for any future termination of
his employment. The complaint alleges this conduct as viola-
tive of Section 8(a)(1) of the National Labor Relations Act
(the Act).
The complaint further alleges that Respondent discharged
its employee Gene Haagenson on October 22, 1991, and has
since that date failed and refused to reinstate him to his
former position. The complaint alleges this conduct was un-
dertaken by Respondent because Haagenson joined or as-
sisted the Union or engaged in other protected concerted ac-
tivities for the purpose of collective bargaining or other mu-
tual aid or protection, including seeking to enforce, inter alia,
the requirements of the collective-bargaining agreement in
violation of Section 8(a)(3) and (1) of the Act.
Respondent admits the discharge of Haagenson as alleged
but denies that his discharge was for reasons impermissible
under the Act. Respondent further denies the conduct alleged
to violate Section 8(a)(1) of the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, to examine
and cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record herein, including helpful briefs from
the General Counsel and Respondent,1 and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing2
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California
corporation with an office and place of business in Fresno,
California, where it has been engaged in the operation of a
television broadcasting station. Respondent as part of its
business operations annually enjoys revenues in excess of
$100,000, holds membership in or subscribes to various
interstate news services, including the Associated Press, ad-
vertises various nationally sold products, and transmits pro-
graming originating outside the State of California. Respond-
ent is therefore an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
985RETLAW BROADCASTING CO.
3 All dates refer to 1991 unless otherwise indicated.
4 Miller did not testify. Faulder testified without contradiction that
his overtime budget was several thousand dollars a month.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
KJEO-TV is a television broadcasting station serving the
Fresno, California market. It is an affiliate of the CBS Net-
work and broadcasts programming supplied by that network
as well as its own local news. It is also a user of information
supplied by the CNN news service. Donald Drilling has been
for many years the vice president and general manager of
Respondent. George (Bud) Faulder has been Respondent’s
news director since joining Respondent in January 1991.
News Director Faulder does not have the power to fire em-
ployees. This authority was solely vested in General Manager
Drilling. Terry Miller was at relevant times the assignment
editor. Each of these individuals is a supervisor within the
meaning of Section 2(11) of the Act and an agent of Re-
spondent.
Gene Haagenson came to KJEO-TV from a sister station
in March 1990. During the events relevant herein he worked
a 4-day week as a weekend local news anchor on Saturdays
and Sundays and as a general assignment reporter on Mon-
days and Tuesdays at the direction of Assignment Editor
Terry Miller.
The Union at relevant times has represented Respondent’s
employees who participate in television programs broadcast
over its facilities. The union steward at relevant times was
Jeff Sanford. The parties have had a series of collective-bar-
gaining agreements the most recent of which was signed on
February 6, 1991, and expires by its terms on July 1, 1993.
The contract contains, inter alia, the following language
under article 4.—Artist Status, Paragraph 4.02 Discipline &
Discharge: Basis:
the Company will discipline or discharge an Artist only
for just cause or to reduce the staff. ‘‘Just cause’’ in-
cludes, but is not limited to . . . unsuitability of an On-
Air Artist for the Company’s broadcast requirements
which judgment not be made capriciously. The deter-
mination by the Company that an On-Air Artist is un-
suitable for its broadcast requirements shall not be
challengeable by arbitration by either the affected On-
Air Artist or AFTRA, except, however, as provided in
Paragraph 8.03 (d).
Article 8, paragraph 8.03 (d)—Unsuitability provides for se-
niority linked severance pay and states in part:
If the Company exercises its discretion in this regard,
then the termination shall not be challengeable in any
manner by arbitration or otherwise either by AFTRA or
the affected employee.
The contract further provides ‘‘Problem Adjustment’’ pro-
cedures in article 11 culminating in binding arbitration. The
article sets forth various time limitations for filing and proc-
essing grievances. The contract specifically provides in the
last sentence of the last paragraph of section 11.05—Proce-
dure: Arbitration: ‘‘Any grievant who fails to met the time
limits set forth herein shall automatically waive and abandon
his entire claim.’’
B. Events Respecting the Overtime Issue
1. Events to Sunday, October 20, 1991
Gene Haagenson testified that he normally worked four
10-hour days for Respondent. On those occasions when he
worked more than 10 hours in a day or more than 40 hours
in a week he had previously been paid overtime wages. In
mid-October 19913 Haagenson testified that Terry Miller
issued a ‘‘verbal edict’’ that no one was to work any over-
time.4 Despite this statement—apparently as a consequence
of the unusual scheduling of the news following coverage of
the World Series Baseball games—Haagenson was scheduled
to work two 12-hour days followed by two 8-hour days.
Haagenson believed that he was entitled to overtime pre-
mium wages for his time in excess of his normally scheduled
10-hour days even though his workweek would not nec-
essarily exceed 40 hours. Haagenson expressed this view to
Miller who did not agree telling him, in Haagenson’s recol-
lection, that ‘‘accounting had told him that was the way it
was.’’ In all events Haagenson testified he inquired about the
matter to Respondent’s accounting department on Friday, Oc-
tober 18 talking to Joan Armstrong in that office. Haagenson
testified Armstrong told him she would inquire of General
Manager Drilling about the issue.
Drilling recalled the series of conversations respecting
Haagenson’s overtime as occurring over the period of Friday,
October 11 through Monday, October 14. Thus he testified
that Haagenson had been scheduled to work 12 hours each
day as a result of the Baseball World Series on the weekend
of October 12–13 with a reduction in his scheduled 10-hour
day to 8 hours per day on Monday and Tuesday, October 14
and 15.
Drilling testified that a week or two prior to Haagenson’s
termination Joan Armstrong in the accounting department
came to him with a question about the number of hours per
day that Haagenson could be obligated to work without pay-
ing overtime. She reported to him, in Drilling’s recollection,
that Haagenson had raised the matter with the accounting de-
partment. Drilling further testified that he asked Armstrong
to give him the timecards and greater details respecting
Haagenson’s complaint and that she did so. He then told her
that work in excess of 10 hours per day was to be paid at
overtime rates. He also told his secretary to inform the sta-
tion’s department heads that he wished to speak to them
about the ‘‘correct protocol for daily versus weekly overtime
. . . as stipulated within the collective bargaining agree-
ment.’’
Faulder testified that he spoke to Haagenson on October
14 about the overtime. He initially disagreed with
Haagenson’s position that overtime was to be paid on daily
time in excess of 10 hours. After hearing Haagenson’s argu-
ment including his assertion that both the steward and a Cali-
fornia State Industrial Welfare Commission posting sup-
ported his view, Faulder consulted the contract and the post-
ing. Faulder testified that he concluded Haagenson was cor-
rect and informed him of that fact. Faulder further testified
that he thereafter told Drilling that he had make a mistake,
that Haagenson was correct that he should receive overtime
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The October 20–21, 1991 Oakland hills fire was an extraordinary
calamity involving the loss of many lives, thousands of dwellings,
and related property.
6 ‘‘Video’’ as used here is a reference to the recorded images and
sounds of the events. The modern equivalent of film or ‘‘footage’’
video is now transmitted by means of satellite from sending station
to receiving station(s) for recording, editing and broadcast.
7 The network news departments, including CNN and CBS with
which Respondent is associated, and local stations transmit video via
satellite to authorized receivers including Respondent. Regularly
scheduled transmissions are made and special transmissions are ar-
ranged with their scheduling announced by telex to the authorized
receivers such as Respondent. Such transmissions are referred to as
feeds.
for work in excess of 10 hours per day and that Drilling said,
‘‘Fine.’’
2. Events of Monday, October 21, 1991
Faulder testified that he came to work on Monday, Octo-
ber 21 without being made aware of the meeting between
Faulder and Drilling that morning described infra. He again
approached Joan Armstrong in accounting respecting the
overtime question. She said that she would have to talk to
Drilling about it and to ‘‘come back and see her later.’’ A
few hours later Haagenson returned. Armstrong nervously
told him, in his recollection, that Drilling was going to hold
a meeting to discuss the issue with department heads.
Haagenson told Joan that he would ‘‘check back later’’ and
left. Armstrong did not testify.
Perhaps a hour later, Faulder in the presence of Miller and
other newsroom staff came to Haagenson’s desk. Haagenson
testified as follows respecting the conversation:
[Faulder] asked me rather forcefully why did I take
this overtime thing to accounting? Why didn’t I take it
to him instead. . . . I said, well, I had talked about the
overtime situation with Terry Miller on Friday.
And Bud [Faulder] asked Terry [Miller], is that true,
did he talk to you about the overtime?
And Terry said, yes. And Terry asked him, what’s—
what’s the decision? Does he get overtime?
And Bud said, yes, absolutely, we have to go by the
terms of the contract.
Terry then asked him if I then could stay for 10
hours that day instead of eight hours, as I had been
scheduled.
And Bud said, yes, absolutely.
Haagenson testified that about a half hour or so later
Faulder called him into Faulder’s office and the two had a
conversation alone. Faulder, in Haagenson’s memory, said he
wanted to clarify how Haagenson was going to be paid re-
garding the overtime. Faulder explained that Haagenson
would be paid for his hours in excess of his regular shift on
Saturday and Sunday but that he would work 8 hours on
Monday and Tuesday reducing his working week to 36
hours.
Haagenson recalled he answered by stating that shorter
days were fine with him, but he did not think they were
‘‘proper’’ because as a regular permanent employee he was
entitled to work 40 hours a week. Faulder became angry and
asserted he could cut Haagenson’s hours to 10 per week if
he chose. Haagenson disagreed raising the terms of the con-
tract. Faulder responded that the contract was optional and
that ‘‘you can ignore it if you want to.’’ Haagenson agreed
that Faulder could give him time off and left.
A few minutes later Haagenson spoke to Union Steward
Jeff Sanford reporting that Faulder was claiming that the
contract was optional and that employees were not entitled
to 40 hours a week. Haagenson testified that Sanford re-
sponded that he would go and talk to Faulder and that he
saw Sanford go into Faulder’s office closing the door behind
him and leave sometime thereafter. Sanford did not speak to
Haagenson about the matter but rather ‘‘rolled his eyes and
shrugged.’’ Sanford did not testify.
Sometime that afternoon Haagenson went to General Man-
ager Don Drilling’s office and there had a conversation with
him alone. Haagenson testified he told Drilling that he did
not mean to ‘‘make a big deal about this overtime,’’ that he
was more interested in compensatory time off than overtime
pay. Drilling answered that every hour of overtime was im-
portant to him because ‘‘it is such a big part of our budget.’’
He added in Haagenson’s memory: ‘‘I have no problem pay-
ing people for the time they actually worked.’’ The conversa-
tion ended on that note.
Drilling and Faulder place all overtime events a week ear-
lier as noted supra.
C. Events Relevant to Haagenson’s Work Performance
and Discharge
1. Sunday, October 20, 1991
Haagenson testified that due to network sports program-
ming, the local news was to be delayed on Sunday, October
20, and, rather than Haagenson, the regular Monday through
Friday news personnel were to present that evenings news
program. Accordingly, Haagenson did not wear ‘‘on air ap-
propriate’’ clothing to work that day.
In the early afternoon of that day, Haagenson learned of
a fire in the Oakland, California hills of growing proportion
through the comments of CBS network sports commentators
broadcasting a football game being played in San Francisco,
California.5 Haagenson devoted his attention to this fire in
preparing for the news broadcast to be aired that evening. He
did not, however, deem it necessary to notify unscheduled
news department staff of the developing story.
Haagenson testified that News Director George Faulder
telephoned him at the station at about 4 p.m. that day and
asked him if he was aware that the ‘‘whole [San Francisco]
Bay Area was burning up?’’ Haagenson answered that he
was aware of the fire. Faulder asked Haagenson what he was
‘‘going to do about it.’’ Haagenson responded that he was
doing to make it that evening’s lead news story. Faulder
asked Haagenson where he was going to get the video.6
Haagenson answered from the ‘‘feeds.’’7 The conversation
continued, in Haagenson’s recollection, with Faulder becom-
ing very angry:
And so [Faulder] said, well, since you don’t know,
you know, what the hell you are doing, I want you to
get on the phone right now and call CBS, call CNN,
call KPIX, the station in San Francisco, and find out,
you know, what the fuck is going on.
And I said I didn’t know what he meant.
987RETLAW BROADCASTING CO.
8 It appears that Faulder was desirious of obtaining video as the
local stations were transmitting it ‘‘live’’ to the CBS and CNN net-
works, in effect, in real time. It also appears that Haagenson knew
he had sufficient information to receive rebroadcast, i.e. ‘‘non-live,’’
video from CNN, CBS, and KPIX. It is not clear Haagenson ever
understood Faulder’s request as a means of obtaining raw as op-
posed to rebroadcast video.
9 Indeed Haagenson recalled no subsequent conversations with
Faulder respecting that day’s events save for a brief exchange the
following morning in which each praised the work of a fellow em-
ployee who reported on the fire from the Bay Area.
10 Certain polling research commissioned by Respondent was of-
fered into evidence. It suggests that Haagenson was not the station’s
most popular on-air personality.
And he said, I want to find out about satellite feeds.
And I said, there is a complete list of satellite feeds
being offered by CBS, KPIX and CNN on the teletype.
I have them right here. And that basically was the end
of the conversation.
News Director Faulder’s recollection of this conversation
does not differ significantly. He recalled exhorting
Haagenson to disregard the ‘‘wires’’ and network ‘‘feeds’’
because they would not produce ‘‘much’’ video until later in
the day. Rather he told Haagenson to telephone KPIX, their
affiliated station in the San Francisco Bay Area, and the
CNN Network to obtain the necessary satellite coordinate in-
formation to ‘‘grab’’ their ‘‘raw footage’’ of the fire and re-
lated coverage. He also recalled that Haagenson told him that
such action was unnecessary because he had the coordinates
for the feeds from CNN and CBS.8 Faulder testified that he
found Haagenson’s answers to his questions in the conversa-
tion were ‘‘lackadaisical and nonresponsive’’ and that during
the conversation he grew ‘‘extremely angry.’’
Haagenson prepared a newsbreak with fire video and had
given it to the control room director for insertion in sports
programming when Faulder arrived at the station perhaps 15
minutes thereafter. Terry Miller, the assignment editor came
to the station as did the Monday to Friday news anchor.
They turned their attention to the fire coverage and
Haagenson went back to putting the newscast together. The
news aired as scheduled that evening. Haagenson had no fur-
ther conversations with Faulder that day.9
2. Events of Monday, October 21, 1991
On the following day, October 21, 1991, between 8:30 and
9 a.m., before Haagenson had arrived at the station, Faulder
testified he spoke to General Manager Drilling and asked
him for permission to fire Haagenson for ‘‘incompetence and
insubordination’’ ‘‘on the spot.’’ Faulder recalled he made it
clear to Drilling that Haagenson had made no effort to ag-
gressively cover the fire, ‘‘deliberately ignored’’ Faulder’s
instructions to contact the sister station or the networks, jeop-
ardized the station’s coverage of a major news story and
made the entire staff look terrible.
Drilling, in Faulder’s recollection, did not accept Faulder’s
recommendation. Rather he noted that Haagenson had been
with Respondent, including his time at his previous station,
for some 6 years and that he was likely ‘‘trying to do the
best job that he could.’’ Drilling said that they needed to
‘‘look at this a little differently.’’ Drilling assured Faulder
that ‘‘we’ll take the necessary steps, but we need to do what
we can to make sure that Gene [Haagenson] is taken care
of.’’ At that point, in Faulder’s recollection, Drilling ‘‘came
up with’’ the language which was to become the Memo-
randum to Haagenson quoted in part, infra. The language
was given to Drilling’s secretary so she could prepare the
final memorandum. Faulder further testified that the final
memorandum was not completed in time to present to
Haagenson before he left work on Monday, October 21.
Drilling generally corroborated Faulder’s version of this
conversation. He described Faulder as ‘‘ballistic’’ respecting
the prior day’s events and that he attempted to calm Faulder
down. He further testified that he chose the language on the
termination memorandum so that under the contract
Haagenson would be qualified for severance pay. He further
testified that he provided the options noted because he be-
lieved that in his industry it was easier to obtain new em-
ployment while still employed.
3. Events of Tuesday, October 22, 1991, and following
Haagenson came to work at about 9 a.m. and was sent to
Faulder’s office by Miller. There Faulder and Haagenson had
a conversation. Haagenson testified that Faulder initially said
that the overtime ‘‘thing’’ had nothing to do with his deci-
sion to let Haagenson go. He then handed Haagenson a doc-
ument and told him he needed to read it over and think about
the options presented for 24 hours. Faulder testified that he
met with Haagenson at the beginning of work on Tuesday,
October 22, because Drilling’s secretary had not completed
the final copy of the memorandum until Haagenson had left
the station on Monday.
The document, a memorandum dated October 21, 1991, to
Haagenson from Faulder titled ‘‘Separation from KJEO-
TV,’’ states in part:
After reviewing your failure to use ‘‘common journal-
istic sense’’ this weekend, as it pertained to the imme-
diacy of the Oakland fire catastrophe, it is clear to me
that the demands of our News operation are beyond
your comprehension and capabilities. Along with recent
research we completed,10 which indicates that our audi-
ence finds your on-air performance lacking[,] I have
concluded that you are unsuitable for future KJEO em-
ployment.
The memorandum then provided two alternatives, proposal A
and proposal B. Proposal A provided for 5 weeks’ pay and
other severance payments pursuant to the collective-bar-
gaining agreement. Proposal A meets the contractual require-
ments necessary to invoke its provisions respecting
‘‘unsuitability discharges’’ quoted supra. Proposal B pro-
vided for 4 weeks’ of working severance, i.e., continued em-
ployment in lieu of contractual severance pay. The memo-
randum continued:
Gene, if you chose ‘‘Proposal B,’’ I would recommend
that you first consult with either your shop steward or
AFTRA representative; since our ‘‘Proposal B’’ is not
an option under the current Collective Bargaining
Agreement, but rather, an attempt by the Company to
offer you as much employment as possible, while you
seek out other employment opportunities.
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Haagenson testified he read the memorandum’s reference
to his performance during the Oakland fire. He asked Faulder
what he did wrong respecting the fire since he ‘‘thought ev-
erything went pretty well.’’ Haagenson recalled the conversa-
tion continued:
And he said, you know, well, that’s why I am letting
you go, because you don’t have a clue.
And I said, I mean, I don’t get it, you know.
And he said, we are just not on the same wave
length.
It was that kind of exchange.
The discussion continued with Haagenson suggesting he was
experienced at various jobs within the news department so
that ‘‘there must be something else I can do.’’ He further
protested that it seemed ‘‘severe to fire me because you
didn’t like the way I covered the Oakland fire.’’ Faulder re-
sponded that Haagenson had not even done what he had been
asked to do on that day. Haagenson responded that all he had
been asked to do was make phone calls to other stations and
that ‘‘since I had all that satellite information, there was no
need to call them.’’ Haagenson recalled they ‘‘went around
and around a little bit’’ and then he asked for and received
permission to ‘‘go home and sort things out.’’ Faulder did
not testify to the specifics of this conversation.
On the following day Haagenson testified he came to the
station and initially attempted to speak to Drilling. Finding
him occupied, Haagenson spoke to Faulder again alone in
Faulder’s office. Haagenson asked Faulder to reconsider.
Faulder said, ‘‘He didn’t hold out much hope, but he would
certainly think about it.’’ Faulder did not address this con-
versation in his testimony.
An hour later Haagenson met with Drilling alone in
Drilling’s office. Haagenson pleaded his case asserting his
tenure with Respondent and seeking a less severe form of
discipline. Haagenson recalled Drilling asserted that while he
‘‘didn’t necessarily agree’’ with Faulder, he had given
Faulder ‘‘complete control’’ over the new room and ‘‘that’s
the way it is.’’ Drilling suggested however, in Haagenson’s
testimony, that if Haagenson elected ‘‘Proposal B’’ and
worked at the station for a period, perhaps Faulder would re-
consider the termination, if Haagenson did good work. Drill-
ing confirmed a conversation with Haagenson similar to that
described.
Haagenson testified he went into the station the following
day and spoke to Faulder. He reported to Faulder Drilling’s
remarks and asked if Faulder might reconsider his termi-
nation if he elected proposal B and ‘‘really proved himself’’
during the 4-week period. Haagenson recalled Faulder said
that he would ‘‘think about it.’’ Faulder did not address this
conversation in his testimony.
Haagenson called Faulder by telephone the following day.
Haagenson testified:
I said, have you had a chance to consider giving me
some hope that I might be able to stay on after the end
of four weeks?
And [Faulder] indicated that he had, but it would
have to be on the condition that I would agree to waive
my rights under the union contract to any kind of termi-
nation procedure after that.
He said, I don’t want you coming back for a month,
and then a month later, you are slacking off and I have
to fire you. And then I have to go through all the rig-
marole. You know, you’ve got to agree. And I’m not—
he said, I’m not sure that the union will let you, but
you know, you see if you can do that. And those are
the conditions under which I will consider rehiring you.
That if you—only that you would go through this four-
week period and then after that, I could, you know, ba-
sically terminate you at will.
Haagenson said he would think about it and the conversation
ended. Faulder did not address this conversation in his testi-
mony.
Thereafter Haagenson determined to accept ‘‘Proposal A.’’
He communicated this fact to Faulder by telephone on the
following day. Haagenson testified he told Faulder:
I just told him that I didn’t feel I could go along with
that. But to continue working for a few weeks with no
guarantee of anything and then to—would be foolish. I
would be better off taking the first proposal and getting
severance pay and looking for another job.
Faulder did not address this conversation in his testimony.
On October 28, Haagenson returned to the station, signed
the separation memorandum, collected his ‘‘paperwork,’’ and
spoke to Drilling. Drilling told him, in Haagenson’s memory,
that ‘‘he was sorry about this, didn’t necessarily agree with
it’’ and asked why Haagenson had not chosen proposal B.
Haagenson testified he told Drilling:
I said, well, I just didn’t feel like I could come in—
I mean, I felt like I had been busting my butt the whole
time I worked there. So I didn’t see how what I could
do differently in four weeks to make Bud [Faulder]
change his mind. I thought that his standards for evalu-
ating me were too subjective, and I wouldn’t be able
to please him anyway, so I might as well take the sev-
erance pay and look for another job.
Drilling testified that on October 28 he discovered that
Haagenson was in the accounting department ready to sign
the memorandum and looking for his severance pay. He
spoke to Haagenson about Haagenson’s election to receive
severance pay but specifically denied ever telling Haagenson
that he disagreed with Faulder’s criticism of Haagenson or
Haagenson’s termination.
Haagenson received his severance payments and left the
station. He had not been offered reinstatement as of the time
of the trial. The Union filed the instant charge on November
15. No grievance has ever been filed regarding the events
herein.
D. Respondent’s Motivation Testimony
News Director Faulder testified that during 1991 through
the October events noted above, he formed an impression of
Haagenson as ‘‘a typical small market reporter or individual
who basically has reached the height of where he is going
to go.’’ Faulder described Haagenson as someone who ‘‘un-
less you were prepared to beat him over the head with a
sledgehammer, he was just not willing to listen or learn.’’ He
further testified that he had communicated his views of
989RETLAW BROADCASTING CO.
Haagenson to General Manager Drilling. He added that at
first he spoke to Drilling about simply removing Haagenson
as a weekend news anchor and retaining him as a reporter.
Drilling corroborated Faulder that they had discussed per-
ceived inadequacies in Haagenson’s performance. Later
Faulder concluded Haagenson should simply be let go. By
October both Faulder and Drilling testified Respondent was
screening candidates for a weekend anchor position to re-
place Haagenson.
Faulder testified that Haagenson generally did not use ini-
tiative or ingenuity in obtaining and presenting news video.
Thus rather than contacting other affiliated stations respect-
ing equipment or video which might be utilized by Respond-
ent, Haagenson tended to passively air network programming
unmodified for the local market. Faulder testified that he did
not find such behavior acceptable.
Faulder testified that this conservative or passive tendency
in Haagenson was particularly manifest during the Oakland
fire. Thus Faulder described the actions of another Fresno
television station in broadcasting live or ‘‘raw video’’ re-
ceived from that station’s San Francisco Bay Area affiliated
station as an active response to a major breaking story, and
one which should have been matched or exceeded at KJEO.
Faulder testified that Haagenson’s refusal to place the tele-
phone calls Faulder has asked him to make during the Oak-
land fire events delayed the station’s eventual obtaining and
airing of ‘‘live feeds’’ or ‘‘raw satellite feeds’’ that were
being sent from the San Francisco Bay Area news reporting
to the Networks. A consequence of this delayed coverage
was, in Faulder’s testimony, a news disaster for Respondent
for it revealed the station, in comparison to its competition,
did not have an active, aggressive news department. Faulder
testified in effect that he felt the news coverage of the events
that day by Respondent was unprofessional. He testified that
in the ongoing competition with other local news depart-
ments, Respondent was ‘‘skunked.’’ Finally he suggested
that such a consequence resulting from Haagenson’s pas-
sivity and refusal to take the action Faulder suggested was
‘‘unspeakable in terms of our profession.’’
Faulder further testified that his October 21 recommenda-
tion to Drilling that Haagenson be terminated ‘‘on the spot’’
was based entirely on the events of Sunday, October 20
which confirmed his earlier impressions of Haagenson and
required, in Faulder’s judgment, immediate action. He spe-
cifically denied that the overtime question or Haagenson’s
claims in that regard were in any way a factor in his motiva-
tion.
Drilling testified that his final decision to craft the memo-
randum giving Haagenson the choices noted supra was based
on Faulder’s recommendations of October 21 and his earlier
conversations with Faulder respecting Haagenson’s suitability
for continued employment. He also specifically denied that
the overtime issues and Haagenson’s activities in that regard
were a factor in his decision.
E. Analysis and Conclusions
1. The deferral issue
Respondent argues that the allegations of the complaint
should be deferred to the grievance and arbitration provisions
of the applicable contract. Thus, relying on Drilling’s unchal-
lenged testimony, Respondent asserts it has long had a pro-
ductive relationship with the Union which has been suffi-
ciently mutually satisfactory so that no cases have been taken
to arbitration under the contracts between the parties. Re-
spondent argues further that the contract’s terms are suffi-
cient to support an arbitrator’s decision resolving all issues
in the complaint.
The General Counsel asserts that on December 5, 1991,
the Regional agent investigating the instant charge sent Re-
spondent a letter with the following language:
The charge filed in the above-captioned case has
been assigned to me for investigation. Basically,
AFTRA alleges that the Employer discharged Gene
Haagenson in retaliation for his exercise of rights con-
cerning payment of overtime under the parties’ collec-
tive bargaining agreement. It is my understanding that
no grievance was filed over this matter because the par-
ticular reason advanced by the Employer for Mr.
Haagenson’s discharge is specifically excluded from the
grievance procedures.
The Charging Party has advised me that it is willing
to arbitrate Mr. Haagenson’s discharge if the Employer
will agree to do so and waive any arguments about
timeliness or subject matter. If the Employer is willing
to resolve this matter through the grievance procedure,
I will recommend that the Region defer any further
processing of the charge to the grievance arbitration
procedure.
The General Counsel further contends and Respondent agrees
that it was unwilling at the time of its receipt of the quoted
letter or as of the time of the hearing to waive any defenses
it may possess under the contract including timeliness argu-
ments, arguments respecting release and acceptance of back-
pay and any other defenses it may wish to advance to the
arbitrator.
The General Counsel argues from these facts that the case
is not now susceptible to resolution in arbitration since Re-
spondent possesses procedural arguments which it explicitly
will not abandon and which, if asserted, would prevent the
arbitrator from reaching the issues on their merits. Thus ar-
gues the General Counsel, since the merits of the issues un-
derlying the complaint will not with certainty be ruled on by
an arbitrator, the matter should not be deferred to the con-
tractual dispute resolution process. Respondent argues that it
should not be forced to abandon valid defenses in the arbitral
forum in order to obtain deferral of the case.
The General Counsel’s cited case on brief, Johnson-Bate-
man Co., 295 NLRB 180, 181 fn. 6 (1989), and cases cited
therein is dispositive. Given the procedural means to defeat
a test of the merits, arbitration will not resolve the issues of
the complaint.
Accordingly, I shall decline to defer the case to the griev-
ance and arbitration procedures of the contract.
2. The allegations of the complaint
Paragraph 6(b) of the complaint alleges that Respondent
through Faulder:
(i) On or about October 21, 1991, at its Fresno facil-
ity, threatened to retaliate against an employee because
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 This sequence makes understandable Terry Miller’s question ad-
dressed to Faulder as testified to by Haagenson: ‘‘Terry then asked
him if I then could stay for 10 hours that day instead of eight hours,
as I had been scheduled.’’ Haagenson had been scheduled for 12-
hour days on Saturday, October 12, and Sunday, October 13, but
was out sick on October 14 and 15. Thus Haagenson and Faulder
could not have had conversations in the station on those days.
12 In making these resolutions I credit Drilling that it was he who
initially considered and then approved Haagenson’s overtime request.
This finding explains Faulder’s complaint to Haagenson that he had
taken his overtime complaint to accounting before taking it to
Faulder.
said employee sought to enforce, inter alia, the over-
time provisions set forth in the Agreement;
(ii) On or about October 24, 1991, in a telephone
conversation with an employee, offered to rehire said
employee only if he agreed to waive his right to file
a grievance or to go through the Union for assistance
regarding any future termination of his employment.
This conduct is further alleged to violate Section 8(a)(1) of
the Act.
Complaint paragraphs 7 and 8 allege that Respondent im-
properly discharged Haagenson because he sought to enforce
the contract’s overtime compensation provisions. This con-
duct is further alleged to violate Section 8(a)(3) and (1) of
the Act.
3. The allegations of independent violations of Section
8(a)(1) of the Act
a. Complaint paragraph 6(b)(i)
(1) Credibility resolutions
Resolution of complaint paragraph 6(b)(i) requires credi-
bility determinations respecting the conflicting testimony
concerning timing and specifics of the overtime events and
conversations noted supra. In making the findings appearing
below, I have not concluded that any witness is speaking
falsely about events. Rather I believe that recollections were
not complete or precise and that different conversations were
identified by different parties. Based on the record as a
whole including the documentary evidence submitted and the
probabilities of events given the recollections and demeanor
of the witnesses, I find the follow sequence of events oc-
curred.
In agreement with Haagenson, I find that the conversations
at issue arose out of Haagenson’s assigned hours during the
World Series but did not occur until after October 15. I find
that Haagenson spoke first to Miller after being assigned the
12-hour days. He then spoke to Armstrong on Friday, Octo-
ber 18 and on Monday, October 21. On the same day, Octo-
ber 21, Armstrong spoke to Drilling, Drilling decided the
overtime should be paid, notified Armstrong of this fact and
arranged for a meeting with department heads including
Faulder to discuss the overtime issue. I find that the meeting
was held that day and that Faulder learned of the overtime
issue for the first time at that meeting. Crediting
Haagenson’s recollection of statements made, I find that
Faulder spoke to Haagenson in Miller’s presence11 and had
a second conversation alone with Haagenson shortly there-
after.12
In the second conversation Haagenson testified occurred
on October 21, Faulder took the position that the contract
was ‘‘optional’’ and that he was not obligated to give
Haagenson 40 hours per week. Haagenson recalled that in
the argument Faulder became angry and asserted he could
cut Haagenson’s hours to 10 per week if he chose.
I discredit Faulder’s version of events to the extent that his
testimony suggests that Haagenson simply came to him with
the overtime argument and that after discussion and checking
the contract and the state posting Faulder agreed with
Haagenson without further disagreement. This version of
events is inconsistent with the testimony of Drilling and
Haagenson. Rather I find Faulder’s recollection of his con-
versation with Haagenson is but a fragment of the conversa-
tion, identified by Haagenson as the second the two men had
on October 21.
Faulder does not specifically deny the threat attributed to
him that he could cut Haagenson’s hours to 10 per week.
Nor does Faulder’s testimony suggest that the issue of man-
agement’s rights to assign full-time employees less than 40
hours per week was discussed. It does, however, generally
deny that the conversation was angry, threatening, or more
than business like.
Considering the two versions of events in the context of
the testimony of all the witnesses and the record as a whole,
I credit Haagenson’s testimony respecting this conversation.
Thus I find that Faulder told Haagenson he could cut
Haagenson’s hours to 10 per week if he chose.
(2) Analysis and conclusion
The General Counsel argues this statement is an implied
threat directed against Haagenson’s protected activity of as-
serting contract rights. I agree Faulder’s statement occurred
in the midst of an argument over contract rights and that
Haagenson was arguing that he could not be given less than
40 hours per week employment. On this record and in the
context of the series of conversations that occurred however,
I do not find Faulder’s statement rises to the level of a viola-
tion of the Act.
Haagenson’s own testimony, quoted supra, demonstrates
that Drilling and Faulder had each informed Haagenson that
the contract would be followed and that his overtime claim
was correct and would be paid. Indeed Faulder had con-
firmed this to Haagenson but an hour or so before the con-
versation at issue occurred. Given the overall context of the
remark within the particular conversation and within the
scheme of Haagenson’s overtime advocacy as a whole, I find
that Faulder’s statement was one of assertion and argument
and not a threat cognizable under the Act. Thus, I find that
in this context it would not have been reasonable for
Haagenson to take the remark as a threat to punitively reduce
his hours if he continued to advance his notions of contrac-
tual rights. Faulder was in my view asserting a different view
of contractual rights and which he illustrated in the manner
noted.
Accordingly, I find that the General Counsel has not sus-
tained his burden of proof with respect to complaint para-
graph 6(b)(i) and it shall be dismissed.
991RETLAW BROADCASTING CO.
13 Respondent argues that Faulder’s statements to Haagsenson con-
stitute an offer of settlement. To the extent this characterization
seeks to shelter the statements under Fed.R.Evid. 408 as an offer to
compromise, it must fail for statements which would otherwise vio-
late the Act are not privileged or immune from consideration simply
because they are part of a settlement discussion.
14 Given this factual finding I need not address the legal issue of
whether or not a narrow waiver would be permissible. I note how-
ever that the General Counsel has not alleged that the presentation
of proposal B to Haagenson was a violation of the Act.
15 Respondent argues on brief that Haagenson’s contractual claims
did not rise to the level of protected activity. I disagree. As the Gen-
eral Counsel notes on brief at 22, the Board in Interboro Contrac-
tors, 157 NLRB 1295 (1966), found an employee’s assertion of
rights under a collective-bargaining agreement protected. See also
NLRB v. City Disposal Systems, 465 U.S. 822 (1984).
b. Complaint paragraph 6(b)(ii)
Haagenson’s testimony respecting the telephone conversa-
tion with Faulder is set forth in part supra. While on brief
Respondent argues Haagenson’s version of the call is not
worthy of belief, Faulder did not deny the conversation and
I found Haagenson’s testimony persuasive. I credit it in its
entirety.13
The General Counsel argues the statements of Faulder
were an attempt to ‘‘require an employee to waive, or aban-
don the right to union representation in order to obtain rein-
statement’’ (G.C. Br. 19). Respondent argues rather that
Faulder was not offering to rehire Haagenson only if he
agreed to waive his right to file a grievance or go through
the Union for representation, but rather was attempting to
‘‘cause Mr. Haagenson to realize his on-the-job performance
was unsatisfactory’’ (R. Br. 32).
Relying on Haagenson’s credited testimony quoted in part,
supra, I find in agreement with the General Counsel, that
Faulder was not simply seeking to insure that Haagenson un-
derstood that four weeks of working time under proposal B
was in substitute for severance pay for the discharge. Rather
I find that the fair meaning to be taken from Faulder’s state-
ments was that Haagenson and the Union would be required
to waive both his contract rights to protection against unjust
termination in perpetuity as well as be required to waive his
rights to secure union representation respecting a future ter-
mination. Faulder told Haagenson that he must ‘‘waive [his]
rights under the union contract to any [emphasis added] ter-
mination after that’’ and added that after the four week
working period Faulder would be entitled to ‘‘basically ter-
minate [Haagenson] at will.’’ These remarks as well as the
larger context of the conversation would not be reasonably
be taken by an employee seeking reinstatement to be a sim-
ply reaffirmation of proposal B, but would quite clearly be
taken as an imposition of additional conditions to any rein-
statement. Thus I find the waiver demanded by Faulder was
far broader than Respondent admits.14
It is clear that an employer may not condition an employ-
ee’s reinstatement on a union’s waiver of employees’ Section
7 rights. Teamsters Local 171 v. NLRB, 863 F.2d 946 (D.C.
Cir. 1988), nor may reinstatement be conditioned on an aban-
donment of a grievance, Prince Trucking Co., 283 NLRB
806 (1987), or the waiver of union representation, Karsh’s
Bakery, 273 NLRB 1131 (1984). Faulder’s statements made
to Haagenson as quoted in part, supra, in the October 24
telephone call similarly require a waiver of rights from
Haagenson and the Union which may not properly be de-
manded. The actions of Faulder therefore put Haagenson to
an improper choice which chilled his Section 7 rights.
Given the above I find that Respondent violated Section
8(a)(1) of the Act when it engaged in the conduct alleged in
complaint paragraph 6(b)(ii). Accordingly I sustain this por-
tion of the complaint.
4. The discharge of Haagenson
a. Arguments of the parties
The General Counsel asserts that Respondent decided to
discharge Haagenson on October 21, 1991, because of his as-
sertions of contract rights. Respondent asserts that
Haagenson’s contract or overtime claims were not of signifi-
cance to Respondent and, more importantly, played abso-
lutely no part in the discharge decisions made on October 21.
Rather Respondent asserts Haagenson was terminated by
Drilling on the recommendation of Faulder based entirely on
the two agents’ judgment that Haagenson’s job performance
was inadequate. No party suggests that, if Respondent’s deci-
sion to terminate Haagenson was based on business factors
independent of Haagenson’s protected activities, that the Oc-
tober 21 discharge decision was improper.
b. The causation test
Discharge cases involving questions of employer motiva-
tion of the type presented here are to be analyzed pursuant
to the Board’s teaching in Wright Line, 251 NLRB 1083
(1980). There the Board made it clear that the General Coun-
sel’s prima facie case that the employee’s protected conduct
was a ‘‘motivating factor’’ in the employer’s discharge deci-
sion must first be considered. Should the General Counsel
make such a showing, the burden of proof will shift to the
employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. It
is appropriate to consider the evidence in the manner sug-
gested.
(1) The General Counsel’s prima facie case15
Haagenson’s credited chronology of events places his pri-
mary interactions with Respondent’s agents regarding over-
time as occurring after the events of October 20 and the
Drilling—Faulder conversation in the early morning of Octo-
ber 21. Drilling and Faulder characterize the overtime events
as of little consequence generally and of absolutely no import
to their decision to terminate Haagenson.
I have determined under my analysis of complaint para-
graph 6(b)(i), supra, that Haagenson was correct respecting
the timing of the overtime events. I have also generally cred-
ited Haagenson over Faulder respecting the specifics of the
contract rights conversations between them. Those credibility
resolutions apply equally here. I have found therefore that
Haagenson engaged in the bulk of his protected activities
after the critical events of October 20 and 21. I have also
found however that Faulder, even if not violating the Act as
alleged in complaint paragraph 6(b)(i), became angry in his
discussions with Haagenson on October 21 respecting the
rights Haagenson possessed and the obligations Respondent
bore under the contract.
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These events without more are hardly a strong case that
Respondent discharged Haagenson because of his contract
claims. For purpose of continued analysis I here assume
without deciding that the evidence supports the inference that
Haagenson’s protected conduct was a motivating factor in
Respondent’s discharge decision and that, under Wright Line,
supra, the General Counsel has established a prima facie,
case. It is appropriate therefore to turn to Respondent’s de-
fense.
(2) Respondent’s defense
Respondent’s defense is simply that the asserted protected
activity of Haagenson was not a factor in Faulder’s October
21 decision to recommend and Drilling’s decision to accept
the recommendation to terminate Haagenson. In making this
argument Respondent offered evidence that Haagenson had
long been viewed as less than an ideal employee, that Re-
spondent was looking at replacements for him as a weekend
anchor and that his conduct on October 20 was so unsatisfac-
tory so as to require he be immediately given notice.
The parties skillfully litigated the discharge issue in all of
its aspects. In my view however, the critical elements of the
case are the events of October 20 and the conversation be-
tween Drilling and Faulder on the morning of Monday Octo-
ber 21 including the decisions taken at that meeting. Since
in Respondent’s agents’ testimony the decision to terminate
Haagenson was taken following Faulder’s impassioned com-
plaints about Haagenson’s conduct the day before, the credi-
bility of the testimony relating to those events and the con-
versation is essentially controlling respecting complaint para-
graphs 7 and 8.
Turning first to the events of October 20, the testimony of
Haagenson and Faulder respecting what was said and done
was not at substantial variance. Each describes a conversa-
tion in which Faulder became very angry, challenged
Haagenson’s competence and directed him to contact other
news sources. Their versions of the events as well as their
versions of their later conversation regarding that day make
it clear that Faulder was incensed that Haagenson did not,
first on his own initiative and, second, at Faulder’s instruc-
tion on the day of the fire, contact KPIX, CBS, and CNN
to try to obtain ‘‘raw video’’ for broadcast that day.
The issue to be decided respecting that day’s events is
whether Faulder’s anger and unhappiness with Haagenson’s
performance are credible. The issue is not whether Faulder’s
views were objectively correct, rather the question is whether
Faulder, rightly or wrongly, felt as he testified. This is so be-
cause it is the subjective motivations of Respondent which
are in dispute not the reasonableness of the decisions made.
On this record I find no reason to discredit the testimony
of Faulder respecting his reaction to the events of October
20 and his opinion of Haagenson resulting therefrom. There
is insufficient objective evidence to support a finding that his
testimony was inconsistent with television broadcast news
standards generally or with his views and attitudes otherwise
expressed during his employment with Respondent. I found
his demeanor convincing, particularly when expressing his
indignation respecting Haagenson’s performance. I find
therefore that, rightly or wrongly, Faulder took strong and
continuing exception to Haagenson’s performance on Octo-
ber 20 and determined, based on that conduct, to seek
Haagenson’s immediate discharge the following day.
Turning to the discharge conversation the next morning,
both Faulder and Drilling, but especially Drilling, appeared
to me to be truthful witnesses seeking to describe the con-
versation on the morning of October 21 as they recalled it.
I tend to favor Drilling’s testimony respecting these events
because he appeared to me to have been less passionately in-
volved in the events and thus better able to have recalled
them completely and objectively. Each was a believable wit-
ness with a sound demeanor. Their essentially corroborative
testimony of this meeting is therefore not to be successfully
challenged on demeanor grounds. Nor do I find the decisions
taken by Drilling implausible or fatally out of character with
his general approach to personnel matters as revealed by his
testimony. Simply put, I believed Drilling and Faulder.
Having credited Drilling and Faulder respecting what was
said in their meeting on October 21, and putting the burden
of proof explicitly on Respondent, I further find that the de-
cision taken at that meeting to present Haagenson with the
termination options noted, supra, would have occurred even
in the absence of Haagenson’s protected conduct.
c. Summary and conclusion
I have found that, assuming the General Counsel has es-
tablished a prima facie case sufficient to support the infer-
ence that Haagenson’s assertion of contract rights was a
‘‘motivating factor’’ in Respondent’s October 21 decision to
terminate him within the meaning of Wright Line, supra, Re-
spondent has met its burden of demonstrating that the Octo-
ber 21 discharge decision would have been made even in the
absence of protected conduct.
Accordingly, I find that Respondent’s October 21 decision
to terminate Haagenson was not in violation of Section
8(a)(3) and (1) of the Act. The General Counsel has there-
fore not sustain his complaint paragraphs 7, 8, and 10 and
they shall be dismissed.
REMEDY
Having found the Respondent engaged in certain unfair
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.
An important issue is the appropriate remedy for the viola-
tion found under complaint paragraph 6(b)(ii). I have found
that Respondent through Faulder violated Section 8(a)(1) of
the Act by telling Haagenson – who I have also found was
otherwise properly discharged for cause – that his termi-
nation would be reconsidered if he ‘‘would agree to waive
[his] rights under the union contract to any kind of termi-
nation procedure after [reinstatement].’’
The Board has long held that employees who are required
to abandon union representation, Section 7 rights or contract
terms of employment as a condition of continued employ-
ment and who forgo their employment rather than accept
those unlawful conditions are constructively and unlawfully
discharged employees. Redlands Construction Co., 265
NLRB 586 (1982); Campbell-Harris Electric, 263 NLRB
1143 (1983), enfd. 719 F.2d 292 (8th Cir. 1983); Electric
Machinery Co., 243 NLRB 239 (1979), and cases cited
therein.
Haagenson declined Faulder’s conditional offer of rein-
statement or of continued employment. The Board in Karsh’s
993RETLAW BROADCASTING CO.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Bakery, 273 NLRB 1131, Member Hunter dissenting, dis-
cussed the degree of certainty necessary to find a construc-
tive discharge in these circumstances at 1132:
While it is true that the record does not allow a precise
determination of the employees’ motivation in declining
the Respondent’s offer of employment, the Respondent
created this uncertainty by telling employees it was
going to operate ‘‘non-union.’’ We will therefore re-
solve the ambiguity against the Respondent.
The very fact that Haagenson repeatedly asked Faulder if
he could obtain reconsideration of the termination only to
abandon that effort after being told of Faulder’s waiver con-
ditions, strongly suggests Haagenson would have elected
‘‘Proposal B’’ if Faulder had not improperly conditioned the
offer. Thus an initial examination of the evidence indicates
that, but for Faulder’s conditions, Haagenson would have re-
mained at work for at least 4 more weeks.
Haagenson’s remarks to Drilling and Faulder in electing
discharge memorandum proposal A and in so doing imme-
diately terminating his employment, quoted, supra, suggests
to some extent that his decision was independent of Faulder’s
insistence on his waiving the rights noted, supra.
Haagenson’s testified further however respecting his deci-
sion:
And in talking with Mr. Faulder, I didn’t get the im-
pression that I would be retained.
And that under the circumstances of having to waive
any rights to appeal a termination following that, I
didn’t feel it was worth the risk of tying up another
four weeks and then being dumped anyway.
This additional testimony, while hardly free from ambi-
guity, in my judgment makes it sufficiently certain that
Haagenson would have continued his employment with Re-
spondent had not Faulder wrongfully conditioned his contin-
ued employment by requiring the waivers discussed, supra.
Recognizing the ambiguity, and resolving it in favor of
Haagenson and against Respondent whose wrongdoing cre-
ated the uncertainty, I find that Haagenson was construc-
tively discharged or denied reinstatement as a result of the
conduct found violative of complaint paragraph 6(b)(ii),
supra.
It is also possible that, if Haagenson had elected proposal
B and worked 4 additional weeks, Faulder would have de-
manded his discharge at the end of the period in any event.
Indeed Haagenson explicitly thought this might be the case,
although Drilling held out hope it would not be so. Again
uncertainty must be resolved against the wrongdoer at this
stage of the proceeding. On this record, it may not fairly be
concluded that Haagenson’s employment would have termi-
nated at any given date had Faulder not placed the conditions
on his offer of continued employment.
Given all the above, I find that Haagenson was construc-
tively discharged or denied reinstatement on or about Octo-
ber 28, 1991. I shall therefore recommend that Respondent
be directed to offer Haagenson full and immediate reinstate-
ment to his former position. Further, Respondent shall be di-
rected to make Haagenson whole for any and all loss of
earnings and other rights, benefits and emoluments of em-
ployment he may have suffered by reason of Respondent’s
discrimination against him, with interest. Backpay shall be
computed in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as provided in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987); see also
Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumb-
ing Co., 138 NLRB 716 (1962).
Because I have found that, had Faulder not improperly
conditioned his offer of continued employment to
Haagenson, the discharge would not have taken place, it is
proper to include a standard expungment remedy even
though the initial discharge decision was not for improper
reasons. Respondent shall also be required to withdraw, re-
scind and expunge any and all references to Gene
Haagenson’s discharge from its files and notify him in writ-
ing that this has been done and that the discharge, as op-
posed to the events underlying the discharge, will not be the
basis for any adverse action against him in future. Sterling
Sugars, 261 NLRB 472 (1982).
Respondent shall also be required to preserve and, on re-
quest, make available to the Board or its agents for examina-
tion and copying, all payroll records, social security records,
timecards, personnel records and reports and all other records
necessary to analyze the amount of money due under the
terms of the Order and to thereafter determine that the Order
has been fully complied with.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and on the en-
tire record herein, I make the following conclusions of law.
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
On or about October 24, 1991, offering to rehire an em-
ployee only if he agreed to waive his right to file a grievance
or go through the Union for assistance regarding any future
termination of his employment.
4. The unfair labor practice described above is an unfair
labor practice affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
5. Respondent did not otherwise violate the Act as alleged
in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Retlaw Broadcasting Co., a subsidiary of
Retlaw Enterprises Inc., d/b/a KJEO-TV, Channel 47, Fresno,
California, its officers, owners, agents, successors, and as-
signs shall
1. Cease and desist from
(a) Offering employees reinstatement only if they agree to
waive their right to file a grievance under the contract and
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
waive their right to go through the Union for assistance re-
garding any future termination of employment.
(b) In any like or related manner violating the provisions
of Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to employee Gene
Haagenson to the position he would have held on October
28, 1991, but for Respondent’s wrongful conditioning of his
reemployment offer.
(b) Make whole employee Haagenson for any and all
losses incurred as a result of Respondent’s improperly condi-
tioned reinstatement offer, with interest, as provided in the
remedy section of this decision.
(c) Remove from its files any and all reference to the dis-
charge of employee Gene Haagenson and notify him in writ-
ing that this has been done and that the occurrence of his
discharge, as opposed to the events which underlay the sev-
erance memorandum, will not be used against him in future
personnel actions.
(d) Preserve and, on 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 under the terms of this Order.
(e) Post at its Fresno, California facility copies of the at-
tached notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
Federal Labor Law as provided in the National Labor Rela-
tions Act prevents employers from requiring their employees
as a condition of continued employment to waive their rights
to the protections of the Act, the terms and conditions of an
applicable collective bargaining agreement or the representa-
tion and assistance of the labor organization that is their ex-
clusive representative for collective bargaining.
WE WILL NOT require our employees, if they wish to keep
their jobs, to waive their right to assert existing contractual
protections against termination or to waive their right to go
to the Union for assistance regarding any future termination
of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer immediate reinstatement to employee Gene
Haagenson and WE WILL make him whole for any and all
losses of wages, benefits, seniority and any other emolu-
ments of employment he may have lost, as a result of our
wrongful reinstatement offer, with interest.
WE WILL rescind, remove all references to the discharge
of employee Gene Haagenson and WE WILL notify him in
writing that this has been done and that the fact that he was
discharged will not a basis for any future personnel actions
against him.
RETLAW BROADCASTING CO., A SUBSIDIARY
OF RETLAW ENTERPRISES, INC., D/B/A KJEO-
TV, CHANNEL 47