Roy H. Park Broadcasting

National Labor Relations Board - Board Decisions

Mar 24, 1981

255 N.L.R.B. 229 (N.L.R.B. 1981)

ROY H. PARK BROADCASTING 229
Roy H. Park Broadcasting of Roanoke, Inc. and
Brotherhood of Railway, Airline & Steamship
Clerks, Freight Handlers, Express and Station
Employees. Case 5-CA- 11520
March 24, 1981
DECISION AND ORDER
On November 6, 1980, Administrative Law
Judge Charles M. Williamson issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, the
General Counsel filed a memorandum in response
to Respondent's exceptions, and the Charging
Party filed a brief in opposition to Respondent's ex-
ceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that Respondent,
Roy H. Park Broadcasting of Roanoke, Inc., Roa-
noke, Virginia, its officers, agents, successors, and
i Respondent has excepted to certain credibility findigns made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found, and we agree, that Respondent
violated Sec. 8(a)(4) and (I1) of the Act by discharging employee Barry
McDaniel. In doing so, he inadvertently failed to make a finding on the
complaint allegation that the discharge also violated Sec. 8(aX3). Howev-
er, in the absence of exceptions we find it unnecessary to make such a
finding inasmuch as the remedy therefor would be identical to that al-
ready provided.
In his discussion of an employees' Weingarten rights, the Administra-
tive Law Judge cites General Electric Company, 240 NLRB No. 66, fn.
12. While that case stands for the proposition for which it is cited, the
citation thereto should read 240 NLRB 479, 481 (1979).
In adopting the Administrative Law Judge's findings, we find it unnec-
essary to rely on Atlantic Steel Company, 245 NLRB 814 (1979), as we
find that case inapposite to the facts herein.
2 Respondent has excepted to par. I(a) of the Administrative Law
Judge's recommended Order, contending that the language there in is
overly broad. The General Counsel concurs in Respondent's contention.
We find merit in this exception, and accordingly modify the recommend-
ed Order to limit the cease-and-desist order to discipline imposed against
employees for refusing to take part without union representation in an in-
terview "where the employees has reasonable grounds to believe that the
matters to be discussed may result in the employee's being the subject of
disciplinary action."
In discussing the appropriate remedy for McDaniel's discriminatory
discharge, the Administrative Law Judge failed to refer to the Board's
discussion of payment of interest contained in Isis Plumbing d Heating
Co., 138 NLRB 716 (1962). We hereby correct his inadvertent error.
255 NLRB No. 36
assigns, shall take the action set forth in the said
recommended Order, as so modified:
I. Substitute the following for paragraph l(a):
"(a) Discharging or otherwise discriminating
against employees for refusing to take part without
union representation in an interview or meeting
where the employee has reasonable grounds to be-
lieve that the matters to be discussed may result in
the employee's being the subject of disciplinary
action, or because they gave testimony under the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT require any employee to take
part in an investigatory interview where the
employee has reasonable grounds to believe
that the matter to be discussed may result in
his or her being the subject of disciplinary
action and where we have ignored, denied, or
refused any request by him or her to have
union representation.
WE WILL NOT discharge or suspend any em-
ployee on the basis of his refusal to participate
in an investigatory-disciplinary interview
where we have ignored or denied the employ-
ee's request to have union representation at
said interview or because he gave testimony
under the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the
National Labor Relations Act, as amended.
WE WILL rescind our directives of June 22,
1979, and October 10, 1979, which deny em-
ployees bulletin board privileges previously
enjoyed by them.
WE WILL offer Barry McDaniel immediate
and full reinstatement to his former position
or, if such position no longer exists, to a sub-
stantially equivalent one, without prejudice to
his seniority and other rights and privileges en-
joyed by him, and WE WILL make him whole
ROY H. PARK BROADCASTING 229
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of pay he may have suffered by
reason of his termination, plus interest.
RoY H. PARK BROADCASTING OF
ROANOKE, INC.
DECISION
STATEMENT OF THE CASE
CHARLES M. WILLIAMSON, Administrative Law Judge:
This case was based on a complaint and notice of hear-
ing issued on November 2, 1979, by the Regional Direc-
tor or Region 5 of the National Labor Relations Board.
The complaint was based on a charge filed on September
24, 1979, by the Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers, Express and Station
Employees, herein called the Charging Party, alleging
violation of Section 8(a)(l), (3), and (4). The hearing
took place at Roanoke, Virginia, on April 7, 1980. The
complaint alleges that Roy H. Park Broadcasting of Roa-
noke, Inc., herein called Respondent, violated Section
8(a)(l), (3), and (4) of the National Labor Relations Act,
as amended, by denying employees their customary use
of Respondent's bulletin boards, threatening employees
with suspension should they continue the use of the bul-
letin boards, refusing employee Barry McDaniel the
presence of a union representative during an interview
where he could reasonably anticipate resulting disciplin-
ary action, and discharging McDaniel on September 19,
1979.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Virginia corporation, is engaged at its
Roanoke, Virginia, location in providing commercial
television broadcasting under call letters WSLS-TV.
During the 12 months prior to the issuance of the com-
plaint, a representative period, Respondent received
gross revenues in excess of $100,000. During the same
period of time, Respondent received revenues in excess
of $50,000 from national advertisers located outside the
State of Virginia. Respondent admits, and I find that Re-
spondent is, and has been at all times material herein, an
employer engaged in and affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find,
that the Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The denial of bulletin board use
Respondent maintains three bulletin boards at its
broadcasting facility. These are located in the lobby, the
control room, and the basement. Prior to June 22, 1979,
employees posted various types of material on these bul-
letin boards. Shop Steward William R. Bass testified
that at various times between December 1978 and June
22, 1979, he posted union material on the bulletin boards.
No evidence was presented to show the existence of any
explicit rules governing the use of the bulletin boards
prior to June 22, 1979. While Respondent's witness,
Teter, testified that it had been Respondent's policy for
"years" that nothing was to be posted without permis-
sion, he was unable to recall "one instance" where such
permission had been secured. Teter admitted that there
had not been any specific memorandum or directive to
employees prior to June 22, 1979, concerning the use of
the bulletin boards. Under these circumstances, I find
that Respondent's practice was one of laissez faire toward
the use by employees of the bulletin board prior to June
22, 1979. On June 22, 1979, Respondent issued a notice
prohibiting employee use of bulletin boards (G.C. Exh.
13). On October 10, 1979, Respondent placed on the bul-
letin boards a second notice (G.C. Exh. 14) identical to
the first with the added sentence "This rule must not be
violated or suspension may result." Collective bargaining
between Respondent and the Charging Party had been
underway about 4 months at the time the June 22 notice
was posted.2
2. The September 18, 1979, interview and the
September 19, 1979, discharge of employee Barry
McDaniel
Barry McDaniel was hired in May 1978 as a building
custodian. In the late fall of that year, he became in-
volved in the Charging Party's organizational campaign.
McDaniel signed an authorization card at that time as
well as soliciting the signatures of others of Respondent's
employees. 3
Respondent's first official criticism of McDaniel's job
performance occurred in early May 1979 when Supervi-
sor Linkous called him into Linkous' office. Linkous told
him that the building was dirty and that other employees
were complaining of this condition. McDaniel remon-
strated that employees had told him the building was as
clean as it had been in years. Linkous replied that he
would like to have those employees tell him that. Subse-
quently, McDaniel caused to be circulated a petition
(G.C. Exh. 12), on which he obtained 17 employees sig-
natures attesting to the statement that "Barry McDaniel
is performing his job properly and has met his duties
I On one occasion prior to June 22, a picture of an aardvark was
posted and remained on the bulletin board for a substantial period.
2 The parties had bargained about bulletin board use, but no agreement
had resulted. Some material posted by employees had concerned the gen-
eral progress of negotiations. The General Counsel's witness, Bass, testi-
fied that prior to June 22 union material posted by him was removed by
management more quickly than other material. I do not place any weight
on this testimony because of its vagueness and an inability to distinguish
such removal from the occasional "policing" of the bulletin board, which
all parties agree occurred prior to June 22, 1979.
3 Although McDaniel was hired as a building custodian he was,
around this time, allowed to perform camera work on an intermittent
basis. McDaniel testified (and I credit him) that in December 1978 Oper-
ations Manager Linkous and Vice President Teter both warned him that
he would not be allowed the desirable camera work if the Union's orga-
nizing campaign was successful. Neither Linkous nor Teter denied these
incidents although both testified. Similar threats were a subject of a set-
tlement agreement in Cases 5-CA-10484 and 5-CA-10565.
ROY H. PARK BROADCASTING 231
fully. This petition was given to Linkous. The latter pre-
sented it to Respondent's vice president, Teter. At a
meeting on May 30, 1979, concerning the petition, Teter
criticized McDaniel's job performance. The meeting
ended when McDaniel walked out of the office after an-
nouncing that he did not have to "sit here and take this
stuff." The following day McDaniel received a memo-
randum from Respondent announcing that insubordina-
tion would not be tolerated.
During the late spring and summer of 1979, McDaniel
was involved as an affiant and discriminatee in Cases 5-
CA-10484, 5-CA-10565, and 5-CA-11037. McDaniel's
name appeared on an attachment to the charge in Case
5-CA-10565, filed on February 28, 1979 (G.C. Exh. 3).
This charge was, pursuant to normal procedures, served
on Respondent. McDaniel's name also appeared in a
make-whole provision of the notice attached to the set-
tlement agreement in Cases 5-CA-10484 and 5-CA-
10565. See G.C. Exh. 5. This notice had, of course, to be
signed and posted by responsible officials of Respond-
ent.4
On September 1979, McDaniel's regular supervisor,
Operations Manager Mel Linkous, told McDaniel that he
was going on vacation. Linkous instructed McDaniel
that while he (Linkous) was absent, McDaniel would re-
ceive his orders from Lee Garrett. On September 17,
Garrett transmitted a written list of job assignments to
McDaniel. Only one of the job assignments was com-
pleted on September 17. On September 18, McDaniel
was given a second list of job assignments (G.C. Exh.
16) which, inter alia, contained the two uncompleted
tasks of the previous day. The list also contained the in-
struction: "Also, be sure that you sign out at front desk
any time you leave the premise [sic]."
7 On September 18,
McDaniel left the premises of Respondent to obtain nec-
essary supplies for his work. Prior to leaving, he ob-
tained Garrett's signature on a purchase order for the
material. Garrett told him at this time to follow the sig-
nout procedure. When McDaniel left, he placed his name
on the signout sheet (G.C. Exh. 17) under the word
"out," but did not write down the time he left. The sheet
shows that other employees normally wrote the time out
4 The General Counsel and Respondent stipulated the authenticity of
the charge in Case 5-CA-11723, filed November 20, 1979, and a dismissal
letter in that charge from the Regional Director or Region 5. These are
G.C. Exhs. 10 and II, respectively. Additionally, the General Counsel
moved, following the hearing, to admit a letter from the Office of Ap-
peals in the General Counsel's office, Washington, D.C., which reversed
the action of Region 5 in dismissing Case 5-CA-11723. The General
Counsel's motion is granted and the letter in question is admitted as G.C.
Exh. 20.
' Garrett was the station's manager of community services.
6 That the job assignments were in writing is not significant in the con-
text of this case. McDaniel had regularly received them in this form.
These assignments are in the record as G.C. Exh. 15.
7 McDaniel insisted under repeated questioning that he had never been
required to sign out. He stated that his practice was not to sign out prior
to receiving G.C. Exh. 16. The testimony of Teter and Linkous makes it
clear that the matter was a voluntary one, at least prior to Garrett's Sep-
tember IS job list. Teter, for instance, testified: "We try to conduct our
affairs on a voluntary basis. We-the people were asked to sign in and
out." Linkous stated: "Other than to ask him to sign in, I don't recall a
conversation that went into great detail about it."
next to their name.8 After purchasing the supplies,
McDaniel returned them to the plant and left the prem-
ises again, this time to eat lunch. He did not sign in or
out prior to leaving for lunch. He returned at 1:45 p.m.
to be greeted by Garrett in the station lobby. Garrett
took him to the signout book and had him make the ap-
propriate entries for the time he left and returned.
9
McDaniel turned in the keys of the company car (he had
inadvertently taken these keys with him when he went
to lunch) at the request of secretary Shirley Carter. Gar-
rett requested that McDaniel then come to his office.
At the interview in the office, only Garrett and
McDaniel were present. Garrett began by questioning
McDaniel as to where he had been. McDaniel replied
that he had been to lunch and the hardware store. Gar-
rett then asked if McDaniel had finished all his work as-
signments. McDaniel said he had not and then requested
that a union representative be present at the interview.
Garrett replied that "it was not a matter for Union repre-
sentation, but it was a matter of work assignments" and
continued questioning McDaniel about items such as
whether he used the company car to go to lunch, why
he had not signed out prior to lunch, and why he had
not turned in the car keys. When McDaniel said he had
forgotten about the keys and that he had been in a hurry
and forgotten to sign out prior to lunch, Garrett said
"You forget a lot, don't you?" McDaniel then renewed
his request for union representation and Garrett again re-
plied that "it wasn't a matter of Union representation,
but a matter for work assignments." At this point
McDaniel testified that he became upset, got out of his
chair, and began to leave Garrett's office. As he did so,
he told Garrett that he "did not have to sit there and
take this." As McDaniel was leaving, Garrett told him
that this could cost him his job. At that point, McDaniel
was already in the hall outside the office. In a loud
voice, McDaniel stated that he did not have to take this
"crap" and that Garrett should "shut up."
10 While Gar-
rett's account of this conversation differs in some par-
ticulars, there is no essential difference between his and
McDaniel's testimony.
After leaving Garrett's office, McDaniel went to
Union Representative Bass and complained about the
"harassment" to which he had been subjected. Bass at-
tempted to locate Garrett that afternoon to discuss the
incident but was unsuccessful.
On September 19, McDaniel was taken to a meeting in
Executive Vice President Teter's office. Present were:
McDaniel, Bass, Teter, and Garrett. As the meeting
I do not credit Garrett's claim that the word "out" was not next to
McDaniel's name when he examined the sheet prior to McDaniel's
return. I can see no reason why McDaniel would have written "out" on
the sheet following his return and then lightly crossed the word through
on the sheet.
9 It was at this time that the word "out" was crossed through on G.C.
Exh. 17 and the entry "11:45" made.
lO The obscenity was overheard by Denny P. Dennison, Jr., a self-em-
ployed contractor, who happened to be in the hall when McDaniel left
Garrett's office. There is no probative evidence that any of Respondent's
employees heard McDaniel. While Respondent argues that McDaniel
must have been overheard because he was loud, I am unable so to find in
the absence of any evidence concerning the location of those employees
presumed to have heard him.
ROY- H. PA K B O D A T N
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
began, McDaniel apologized to Garrett for his behavior
on September 18. Teter commented that it was too late
for that. Teter then told McDaniel that he had been an
embarassment to the station and management by the
filing of complaints with the National Labor Relations
Board, but that those charges had been resolved. " Teter
then proceeded to outline how McDaniel had failed in
completing his job assignments. Teter referred to the pe-
tition of the previous May, stating that only management
could decide who was doing their job. He pointed out
that McDaniel had twice that year embarassed supervi-
sors by insubordinate acts and had failed to follow com-
pany policies.'2 McDaniel renewed his complaint about
being taken off camera work and was told by Teter that
he was hired as a janitor. McDaniel was then given his
final check and left the station.
3. The reasons for McDaniel's discharge
Following the lengthy account given of McDaniel's al-
leged job failings, in answer to Respondent's counsel,
Teter stated the following:
Q. (By Mr. Hutchison) Mr. Teter, who made the
decision to discharge?
A. I did.
Q. I ask you, sir, whether or not had there been
the obscenity uttered on the previous afternoon by
Mr. McDaniel that would he have been discharged
on this occasion?
A. No. If I can make a statement with respect to
that.
Q. Please do.
A. We were substantially dissatisfied with Mr.
McDaniel's work over a period of time. This was
the crowning blow. We don't like to dismiss people.
Based on the above-quoted testimony of Respondent's
executive vice president, I find that the proximate cause
of McDaniel's discharge was the obscenity uttered by
him on September 18 in Garrett's presence and that his
various work-related failings outlined by Teter would
not have led to discharge.
B. Analysis
1. The discharge
As found above, McDaniel's discharge resulted from
the incident which occurred as he was leaving Garrett's
office on September 18. It thus becomes necessary to
analyze the interview with Garrett and its significance
with respect to McDaniel's outburst.
The United States Supreme Court has held that where
an employee is called by the employer into an interview
which the employee reasonably believes might result in
LI This finding is based on the credited testimony of McDaniel and
Bass. Garrett and Teter both denied that Teter had made this statement,
but their testimony vacillated to a great degree. This was particularly
true with reference to the question of whether the NLRB and labor
board charges had been mentioned in the interview. Teter did not re-
member any reference to the NLRB until he was confronted with G.C.
Exh. 19, a memorandum account of McDaniel's discharge.
12 This last appears to be a reference to the previous day's failure to
sign in and out.
discipline or discharge, he or she is entitled to have a
union representative present. N.L.R.B. v. J. Weingarten,
Inc., 420 U.S. 251 (1975). If a valid request for represen-
tation is made, the employer has three options. He may
grant the request, halt the interview, or give the employ-
ee a choice between continuing the interview without
representation or terminating the interview. General
Electric Company, 240 NLRB No. 66, fn. 12.
It is well settled that the employee's request for repre-
sentation must be based on a reasonable belief, in the
light of all circumstances, that discipline may ensue. A
valid request cannot be based on "a mere figment of the
employee's imagination." See Exxon Company U.S.A.,
223 NLRB 203, 206 (1976) (comment of Aministrative
Law Judge Richard L. Denison). McDaniel was not, on
September 18, motivated by "a mere figment" when he
requested that a union representative be present at the in-
terview with Garrett. He was reasonably motivated to
ask for union representation on the basis of the following
objective circumstances known to him at the interview
in Garrett's office:
(1) The failure to sign in and out in the normal fashion
after receiving the written direction do so so.
(2) The meeting with Garrett on his return from
lunch, and Garrett's direction to him to correct the en-
tries in the sign-out book.
(3) The simultaneous order to meet in Garrett's office
and the fact that the interview took place in the office, a
locus of managerial authority.
(4) The fact that McDaniel had not completed his job
assignments, and, more, that these assignments had been
left uncompleted the day before.
(5) The fact that the written instructions of September
18 had stated that the job assignments were to be com-
pleted "without fail" (G.C. Exh. 16).
(6) The fact that McDaniel had been interviewed once
before, in May 1980, concerning his job performance.
This interview was at management's instance and took
place in management's offices.
(7) The "tone" of Garrett's questioning at the begin-
ning of the September 18 interview. When due consider-
ation is given to the manner and subject matter of the
questioning, a reasonable employee might, indeed, be-
lieve himself to be in trouble with management and in
need of whatever assistance a union representative might
be able to provide. 13
Accordingly, I find that on September 18, 1979, Re-
spondent violated Section 8(a)(1) of the Act by denying
McDaniel's request for union representation made at a
time when he could reasonably believe that disciplinary
consequences might ensue from the interview. N.L.R.B.
v. J. Weingarten, Inc., supra. McDaniel was under no ob-
ligation to continue the interview and his refusal to do so
was protected. See AAA Equipment Service Company, 238
NLRB 390 (1978), employee ignored supervisor's warn-
l I do not find the fact that McDaniel escaped in May 1979 relatively
unscathed from a similar interview when he did not request representa-
tion persuasive on the issue of his reasonable fear of disciplinary action
on September 18. There was a different supervisor involved and, as a re-
cidivist on September 18, he might reasonably feel that management
would take action above and beyond what it had done in May 1979 at
the time of the first offense.
_ . _
ROY H. PARK BROADCASTING 233
ing that he would be terminated and walked away from
an interview where union representation was improperly
denied.
There remains for decision the question of whether
McDaniel's outburst to Garrett as he was leaving the in-
terview destroyed the protected status of his refusal to
continue the interview. I do not find that it did. Garrett
and McDaniel were alone; the only other individual who
heard the outburst was a nonemployee of Respondent
and there is no evidence that general discipline in the sta-
tion was harmed by virtue of other employees hearing it;
Garrett had directed an illegal discharge threat to
McDaniel immediately prior to the outburst thus, as I
find, triggering the outburst; and, finally, the language
involved was not directed at Garrett personally but was
descriptive of Garrett's illegal continuation of the inter-
view and illegal discharge threat. Under these circum-
stances, I do not find that McDaniel's outburst rendered
his conduct in terminating the interview unprotected.
Respondent's discharge of McDaniel for his conduct in
leaving the interview is, therefore, violative of Section
8(a)(1) of the Act. Atlantic Steel Company, 245 NLRB
814 (1979); Quality Manufacturing Company, 195 NLRB
197 (1972); Thor Power Tool Company, 148 NLRB 1379,
1380 (1964) (term "horse's ass" used in reference to re-
spondent official as protected grievance meeting was
breaking up). 14
2. The alleged violation of Section 8(a)(4)
I also find that McDaniel's discharge violated Section
8(a)(4) of the Act. The General Counsel bases his con-
tention that Section 8(a)(4) was violated on the basis of
various Board charges in which McDaniel was implicat-
ed or named and the comments by Teter at the begin-
ning of the September 19, 1980, discharge interview.' s
While many employees at the station were implicated in
the charges (e.g., 17 employees including McDaniel are
named in an appendix to the charge in Case 5-CA-10565
and 4 beside McDaniel in the notice to employees, desig-
nated G.C. Exh. 5) and it could be argued that Respond-
ent had no apparent reason for thus singling out McDan-
iel, I have found, supra, that Teter began the discharge
interview by stating that McDaniel had embarrassed the
station with the numerous NLRB charges that had been
filed. Teter then commented that the charges had been
"resolved." In view of the credited testimony of Bass
and McDaniel in this regard, I find that Teter was also
motivated by resentment at the NLRB charges previous-
ly filed in arriving at his decision to discharge McDaniel.
Such motivation violates Section 8(a)(l) and (4) of the
14 In Thor, the Board found that the epithet was used as a pretext to
discharge an employee because of Respondent's growing anger at his
conduct of a grievance meeting. In the instant case, I find that the result
is the same whether analysis indicates that McDaniel's outburst did not
render his conduct in leaving the interview unprotected or that Respond-
ent used the outburst, as I also find, as a pretext to discharge McDaniel
for leaving the interview. Cases such as Kraft Foods. Inc.., 251 NLRB 598
(1980), are not relevant here, as Respondent did not discharge McDaniel
for matters learned of prior to the interview as opposed to those learned
of in the interview.
Ia The charge and related materials in Case 5-CA-11723 can have no
bearing on this matter because that charge was filed after McDaniel's dis-
charge.
Act. N.L.R.B. v. Robert Scrivener d/b/a AA Electric
Company, 405 U.S. 117 (1972); Glenside Hospital, 234
NLRB 62 (1978).
3. The bulletin board
I find that, prior to June 22, 1979, Respondent's policy
with regard to use of its bulletin boards was to allow em-
ployee usage. Indeed, there appears to have been no ex-
press policy. Material was freely posted subject only to
occasional policing to remove the excess. Prior to June
22, 1979, Respondent and the Union were bargaining,
inter alia, on the subject of bulletin board use'6 and
union-related matter had been placed on the bulletin
board by employees. Respondent presented no credible
evidence of a valid business justification for the new rule.
Under these circumstances, I find that Respondent, by its
postings of June 22, and October 10, 1979, violated Sec-
tion 8(a)(1) of the Act in forbidding employee use of bul-
letin boards. Beyerl Chevrolet, Inc., 199 NLRB 120, 127
(1972) (Change in rules regarding bulletin board use
tended to "chill unionism"); Liberty Nursing Homes, Inc.
d/b/a Liberty House Nursing Home, 236 NLRB 456, 461
(1978).
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of
the Act.
Having found that Respondent unlawfully deprived
McDaniel of union representation during an investiga-
tory interview, which he reasonably believed might
result in adverse consequences, and then discharged
McDaniel because of his refusal to continue with the in-
terview, I shall recommend that Respondent be ordered
to offer McDaniel immediate and full reinstatement to
his former position or, if that position is no longer availa-
ble, to a substantially similar position, without prejudice
to his seniority or other rights and privileges, and make
him whole for any loss of pay occasioned as a result of
the discrimination against him, with interest thereon to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). 7
I shall recommend that Respondent be ordered to
cease and desist from denying its employees union repre-
sentation when requested in connection with investiga-
tory interviews where employees have reasonable
grounds to believe that disciplinary consequences may
ensue. Finally, I shall recommend that Respondent re-
scind its June 22 and October 10, 1979, directives depriv-
ing its employees of bulletin board privileges and restore
the status quo ante.
' I do not infer from this fact, as counsel for Respondent argues, that
a previous policy of forbidding employee uise of bulletin boards was in
effect and the union was bargaining with the purpose of negotiating a
change in that policy. In the absence of any evidence relating to the ne-
gotiations, the Union may, as General Counsel argues, have been seeking
confirmation of practices already in existence.
17 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
ROY H. PARK BROADCASTING
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in my judgment the evidence in this case demon-
strates that Respondent has a propensity to violate its
employees' rights under Section 7 of the Act, I shall rec-
ommend a broad cease-and-desist order. Hickmott Foods,
Inc., 242 NLRB 1357 (1979).
CONCLUSIONS OF LAW
i. Respondent Roy H. Park Broadcasting of Roanoke,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Brotherhood of Railway, Airline & Steamship
Clerks, Freight Handlers, Express and Station Employ-
ees is a labor organization within the within the meaning
of Section 2(5) of the Act.
3. By ignoring Barry McDaniel's request to have
union representation in an investigatory interview, which
he reasonably believed might result in disciplinary action
against him, and by discharging him, Respondent violat-
ed Section 8(a)(1) of the Act. Respondent violated Sec-
tion 8(aX4) of the Act by discharging McDaniel because
he gave testimony under the Act.
4. By denying its employees bulletin board privileges
previously accorded them, Respondent violated Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER s
The Respondent, Roy H. Park Broadcasting of Roa-
noke, Inc., Roanoke, Virginia, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or suspending any employee on the
basis of his refusal to continue an investigatory interview
where it has ignored or denied the employee's request to
have union representation at said interview under Sec-
tion 7 of the Act, or because he gave testimony under
the Act.
1s 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.
(b) Ignoring or denying the right of union representa-
tion requested by employees while conducting investiga-
tory interviews when the employees have reasonable
grounds to believe that the matters to be discussed may
result in their being the subject of disciplinary action.
(c) Denying employees bulletin board privileges previ-
ously enjoyed by them.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Barry McDaniel immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings incurred by him as a
result of his suspension and discharge in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Rescind the directives dated June 22 and October
10, 1979, denying employees bulletin board privileges.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to ascertain the backpay due under the
terms of this Order.
(d) Post at Respondent's broadcasting station in Roa-
noke, Virginia, copies of the attached notice marked
"Appendix."' 9 Copies of said notice, on forms provided
by the Regional Director for Region 5, after being duly
signed by Respondent's representative, shall be posted
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. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
g In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."