United Broadcasting Co.

National Labor Relations Board - Board Decisions

Dec 10, 1980

253 N.L.R.B. 697 (N.L.R.B. 1980)

INC.,
arrd
-CA-
PENELLO
r
3(b)
10(c)
' cer-
luln
Iloard's
~cu~lu t ions
,111
.Yrundard Pmducrs Inc.. (1950), F.Zd,
162
I~asir
hat derermined
organiz~ng: elect-
cd, oNer
In
rmployees 17
VISII
y m d e n t Gen-
cral sumcient
he
Respondent'$
W r r ~ h t lnc.. I50
rec.t,rd
Iwen operation.
tlr m~imus
tlecc\sary
icneral Phillips,
Ihake's
ZANKEL,
8(a)(l)
my
$50,000
2(6)
2(5)
I
253
UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, ET A L
United Broadcasting Company of New Hampshire,
Inc. d/b/a WMUR-TV Local 1228, Inter-
national Brotherhood of Electrical Workers,
AFL-CIO. Case 1 16656
December 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS A ND
On July 17, 1980, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
he Charging Party filed exceptions and supporting
briefs and Respondent filed a brief in support of
the Administrative Law Judge's Decision.
Pursuant to the provisions of Section of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel and the Charging Party have excepted to
credibility findings made by the Administrative Law Judge. I t is the
established policy not to overrule an administrative law judge's
with respect to credibility unless the clear preponderance o f
the relevant evidence convinces us that the resolutions are incorrect.
Dry Wall 91 N L R B 544 enfd. I88
(3d Cir. 1951). We have carefully examined the record and find no
for reversing his findings.
I n view o f our adoption o f these credibility resolutions, we find it un-
necessary to rely on the Administrative Law Judge's alternative findings
he would have found no violation even i f he had either
that: ( I ) Controller Hroblak asked employee Drake why the employees
were o r (2) Hroblak told Drake that, i f the Union were
Respondent would only one package. the rejection o f which
would result in a strike.
I n addition. we find no evidence the record that Hroblak questioned
(including Drake) about the Union during his September
to the station.
Further, we adopt the Administrative Law Judge's conclusion that Re-
did not violate the Act i n discharging Drake because the
Counsel failed to make a prima facie showing to support
Inference that Drake's protected conduct was a motivating factor in
decision to discharge him. See Wright Line. A Division of
Line. 251 N L R B No. (1980). The only evidence in the
regarding Drake's protected activity is that he had at one time
employed at a unionized There is no showing o f hostility
toward the Union by Respondent. Accordingly, we find i t un-
to rely on the Administrative Law Judge's determination that
t Manager who made the decision and carried out
discharge, did not know about Drake's membership in the Union.
DECISION
STATEMENT OF T H E CASE
NORMAN Administrative Law Judge: This
case was heard before me on April 28 and 29, 1980, in
Boston, Massachusetts.
Upon a charge filed on October 9, 1979,' by Local
1228, International Brotherhood of Electrical Workers,
AFL-CIO (herein called the Union), the Regional Direc-
tor for Region 1 of the National Labor Relations Board
(herein called the Board) issued a complaint and notice
of hearing on December 5, against United Broadcasting
Company of New Hampshire, Inc. d/b/a WMUR-TV
(herein called Respondent).
T h e complaint, as amended at the hearing, alleges that
Respondent engaged in violations of Section and
(3) of the National Labor Relations Act, as amended
(herein called the Act). Specifically, it is alleged that Re-
spondent interfered with, restrained, and coerced its em-
ployees by unlawfully interrogating them and threaten-
ing that selection of the Union would be futile. Also, the
complaint alleges that Respondent unlawfully discrimi-
nated against its employees by discharging Lawrence
Drake on October 5.
Respondent filed a timely answer to the complaint.
The answer admitted certain matters but denied the sub-
stantive allegations and that Respondent committed any
unfair labor practices.
All parties appeared at the hearing. Each was repre-
sented by counsel and was afforded full opportunity to
be heard, to introduce and to present material evidence,
to examine and cross-examine witnesses, to present oral
argument, and to file briefs. I have carefully considered
the contents of the briefs filed on behalf of the General
Counsel, the Union, and Respondent.
Upon consideration of the entire record and the briefs,
and observation of the witnesses and their demeanor,
I make the following:
I.JURISDICTION
Respondent, a Delaware corporation, maintained its
principal office and place of business in Manchester,
New Hampshire, at all material times. At that location,
Respondent, at all material times, has been engaged in
operating a television station and related facilities. Re-
spondent's annual gross revenue derived from that busi-
ness exceeds $100,000. Additionally, Respondent annual-
ly receives material valued in excess of at its
Manchester facility directly from points outside the State
of New Hampshire.
Respondent admits, the record reflects, and I find, that
it is engaged in commerce within the meaning of Section
and (7) of the Act.
The parties agree, the record reflects, and I find, that
the Union is a labor organization within the meaning of
Section of the Act.
A l l dates hereinafter are 1979, unless otherwise indicated
NLRB No. 102
11.
I-RC-
1 -RC- 15
Hrob-
consum-
mated).3
inter
h ~ s disposit~on
objection on the to Excelr~or
:' v~wted I t
diwharge. this vkit
Inc.,
Inc, &
Inc.;
Re-
s~ondent's
Moulton
"aware
re-
698 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union began an organizational campaign among
Respondent's employees in July. On August 2, Stanley
R. Brown, the Union's business manager, filed a petition
for representation election with the Board (Case
16498). On August 15, Brown filed two more election
petitions (Cases 165 and 165 16).
On September 28, the Regional Director issued his de-
cision on the petitions. Elections were directed in two
appropriate units. The elections were conducted on Oc-
tober 26. The employees in each voting unit rejected
union representation. On October 31, the Union filed Ob-
jections. On December 7, the Regional Director issued a
Supplemental Decision. He directed second elections be-
cause Respondent failed to submit the required Excelsior
lists.
The relevant managerial personnel of Respondent, af-
filiated with the American Broadcasting Company net-
work, are Samuel Phillips, general manager; Thomas
Bonner, news director; and Gerald J. Hroblak, Control-
ler. Phillips and Bonner are stationed in New Hampshire.
Hroblak operates from Respondent's headquarters in
Maryland.
Apparently, at the time the representation petitions
were filed, Respondent was negotiating for the sale of
the Manchester station. According to Hroblak, who was
uncontradicted on this point, Respondent's labor counsel
advised that "any personnel changes in the way of a dis-
charge" from the time Respondent became aware the pe-
titions had been filed were subject to prior discussion
with officials in Respondent's Maryland headquarters.
Hroblak immediately instructed Phillips to comply with
counsel's advice. Hroblak claimed he conveyed those
instructions to Phillips to "avoid any unfair labor prac-
tice charges."
Thereafter, Respondent made no speeches to assem-
blages of employees and distributed no campaign litera-
ture. Hroblak visited the Manchester facility on Septem-
ber 17. In addition to other purposes of that visit,
lak intended to discuss the effect of the station's sale on
the employees, answer any questions they might have re-
garding the Union, and advise them Respondent was op-
posed to unionization. (At that time, the sale negotiations
were concluded, but the sale had not yet been
Drake began his employment with Respondent on
September 20. His employment continued until October
5, the date of the alleged discriminatory discharge.
B. Credibility
Credibility of the respective witnesses for the opposing
litigants is critical to determination of the instant issues.
Resolution of credibility determines whether the General
The Objections also alleged, olio. interference with the election
by interrogation and by Drake's discharge. In view of of
the based failure provide lists the Regional
Director did not rule on the other grounds.
Hroblak the station again in October. appears this visit oc-
curred after Drake's I find second not relevant
herein.
Counsel's or Respondent's version of the facts should be
adopted. Moreover, credibility is the key factor in decid-
ing Respondent's motivation for Drake's discharge.
The ultimate choice in making findings of fact is based
on my observation of witness demeanor, unrefuted testi-
mony, the weight of the respected evidence, established
or admitted facts, inherent probabilities, and reasonable
inferences which may be drawn from the record as a
whole. Northridge Knitting Mills, 223 NLRB 230
(1976); Warren L. Rose Castings, d/b/a V W Cast-
ings, 231 NLRB 912, 913 (1977); Gold Standard Enter-
prises, Gold Standard Liquor Store at Ridge Avenue;
Chalet Wine and Cheese Shops, Ltd. at Fullerton Avenue;
Chalet Wine and Cheese Shops. Ltd. at Highland Park.,
234 NLRB 618 (1978). . .
In the credibility contest between the witnesses pre-
sented by the General Counsel and those on behalf of
Respondent, a fair assessment of the testimony presented
by each persuades me that the versions presented by
witnesses are the most reliable. I find the fol-
lowing specific, but not exhaustive, elements persuasive
indicators of the respective reliability of the witnesses.
Hroblak and Phillips testified as adverse witnesses in
the General counsel's case and again during Respond-
ent's case-in-chief. Respondent also presented Bonner as
a defense witness. Drake and Brown testified on behalf
of the General Counsel. In general, I find Respondent's
witnesses were more forthright, candid, comprehensive,
and direct than the General Counsel's witnesses who tes-
tified on the same subject matter.
Brown gave abbreviated testimony. It consumes only
three transcript pages. Clearly, Brown was presented to
prove Drake's union activity. Brown's direct testimony
left an impression that only Drake was active on behalf
of the Union.
However, during cross-examination, Brown admitted
that other employees had been active. Thus, Brown
stated technician was the employee who initial-
ly contacted the Union for organizational purposes. Fur-
ther, Brown conceded, that the basis of his testimony
that Drake was active was Drake's own self-serving
report to that effect.
I concede Brown did not fabricate his direct testimo-
ny. However, I do find it misleading. Thus, counsel for
the General Counsel asked him whether he (Brown) was
if any of (Respondent's) employees were active
members" of the Union. (Emphasis supplied.) Brown re-
sponded in the aftirmative, and named Drake. The Gen-
eral Counsel did not make explicit inquiry as to the
union activity of Drake or any other employee. It is this
context which gives rise to the misleading impression re-
garding Drake's activity.
It is undenied that Drake engaged in no ostensible
union activity. He did not solicit signatures on authoriza-
tion cards, distribute literature, or display any insignia by
which he could have been connected with the Union. At
the most, the record shows Drake merely engaged in
casual union discussion with other employees. In this
context, I conclude the whole of Brown's testimony
INC.,
flects
dis~rimination.~
17
Orevious
this
non-
'
activily.
issue.
Facts
Anchormen
UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, ET AL. 699
an effort to exaggerate a critical element of the
General Counsel's prima facie case of
Drake's testimony contains critical deficiencies. Drake
presented testimony to prove Respondent had knowledge
of his union membership. Thus, Drake testified that
Hroblak had a conversation with him during Hroblak's
September visit to the station. Drake testified he told
Hroblak he (Drake) was "already a member" of the
Union. Thus, Drake sought to create a testimonial im-
pression that Respondent became aware Drake was a
current union member. Hroblak's version was different.
He testified that Drake told him he (Drake) previously
only worked at a unionized station. Hroblak explicitly
denied that Drake told him he was a current union
member. First, I find Hroblak's account more direct and
explicit than Drake's. Additionally, I consider Hroblak's
testimony in this regard more plausible than Drake's.
The conversation occurred only 2 weeks after Drake's
initial employment with Respondent. Hroblak told Drake
of Respondent's opposition to unionization immediately
before the purported revelation by Drake of his union
membership. In this context, I find it unlikely that an em-
ployee with Drake's brief tenure would want his new
employer to know of his present union affiliation. It is
more reasonable to believe such an employee would hide
that fact. Accordingly, 1 adopt Hroblak's version of this
incident.
Drake was evasive during cross-examination. I detect-
ed an effort by him to narrate events in a light most fa-
vorable to him. For example, Drake distorted the context
of his September 17 conversation with Hroblak. Drake
emphasized the extent of time consumed in union-related
conversation. However, Drake's pretrial affidavit shows
that the bulk of the conversation concerned Respond-
ent's business activities. I found Drake orally evasive on
this point.
In contrast, Hroblak and Phillips gave more complete
and direct testimony. Their narrations were candid, even
with respect to matters which conceivably were damag-
ing to Respondent's cause. For example, Hroblak ac-
knowledged that he spoke with employees on September
17 about the Union and told them of Respondent's oppo-
sition.
Drake's testimony was confusing. This was particular-
ly true when examined by Respondent's counsel. As
noted, Drake testified he pointedly informed Hroblak of
his union membership. During cross-examination, Re-
spondent's counsel asked a series of questions, apparently
designed to establish the extent of that membership.
First, Drake denied he had been a union member at five
employers. This denial included the place at
which Drake was employed immediately prior to being
hired by Respondent. At that juncture, it appeared
Drake contradicted his direct testimony in which he
claimed to have informed Hroblak of his union member-
ship. Respondent's counsel continued interrogating along
line. Drake finally answered that he had maintained
union membership during previous employment at
union employers. Patently, this series of questions and
answers was confusing. Additionally, I consider it an ex-
ample of what I conclude is the relatively imprecise
character of Drake's testimony compared to that given
by Hroblak and Phillips. Further, this testimony is an-
other example of Drake's tendency to enhance the com-
plaint allegations. In general, I found Drake to present
his direct testimony in a well rehearsed manner. His tes-
timony regarding matters for which he may not have
been prepared is less sure and lacks spontaneity. In con-
trast, Hroblak and Phillips generally were more precise
and they were unshaken during cross-examination. Based
on the foregoing, the recitation of facts, immediately
below, is a composite of credited testimony, admitted
facts, unrefuted oral testimony, supporting documents,
and other undisputed evidence. For brevity's sake, only
those facts considered material are set forth. Not every
bit of evidence is discussed. Nonetheless, I have consid-
ered all of it, together with all arguments of counsel.
Omitted matter is considered irrelevant or superfluous.
C. The
In early August, Drake applied for employment with
Respondent. Phillips interviewed him. Drake presented
his resume. Drake's prior experience was in radio news.
That experience included reporting news on the air.
Drake made an on-the-air sample tape. Also, Bonner in-
terviewed Drake. Bonner credibly testified that he told
Drake Respondent was looking for an energetic individu-
al who "could jump in, gather news stories, and work
pretty much independently."
After Drake's tape was reviewed and the interviews
were complete, Drake was offered a job. The job classi-
fication offered is disputed. I find it necessary to resolve
that matter. Such resolution is a relevant consideration in
deciding the validity of Respondent's defense. The Gen-
eral Counsel contends Drake was hired as a news an-
chorman. Respondent asserts Drake was hired as a street
reporter with the potential of advancement of the 11
p.m. anchorman position.
I conclude that Drake was not hired to immediately
perform the duties of anchorman. Contrary to the Gener-
al Counsel's position, even Drake testified that when he
was hired he was told "He'd be working with the cur-
rent anchorman to learn the equipment procedures."
(Emphasis supplied.) Phillips and Bonner described that
Drake's job orientation involved learning the functions
of a street reporter. It is uncontradicted that approxi-
mately 50 percent of Respondent's programing involves
on-the-air appearances of street reporters. Drake and
Phillips concurred in testimony which indicated that he
was instructed to follow Bartlett, the current anchorman,
and street reporters. The job of street reporter is to be
on the street gathering news and researching news sto-
ries for use in telecasts. Anchormen are responsible for
gathering and organizing the news items and delivering
it on the air to the public. also serve as pro-
ducers.
I acknowledge the General Counsel contends Drake's alleged dis- It is illogical to conclude Drake was hired as an an-
criminatory discharge is founded on Drake's union membership, rather
Notwithstanding this formulation. I find chorman. Concededly, he had no prior television experi-than current union
Brown's testimony relevant to the credibility ence. Thus, it is reasonable to assume that Respondent .
LABOR
Drake
equipment
sources
(3:30 11:30
story.5
stories
6:30 11
I5
o f f i ~ e . ~
-
stories
of
suficient 10
vtew
infm,
."
ahswer
was
700 DECISIONS OF NATIONAL RELATIONS BOARD
would have required Drake to satisfactorily complete his
training before ascending to the anchorman job. Upon
the foregoing, I find Drake was hired as a street reporter
and it was contemplated by him and Respondent that sat-
isfactory progress would ultimately result in an anchor-
man assignment at some undetermined future date. The
General Counsel and the Union concede training was an
integral part of Drake's initial employment. Even Drake
acknowledged he was told that he would undergo train-
ing. Accordingly, I find Drake was expected first to
work as a street reporter.
Drake accepted the position. reported to work
on September 10. His first workweek was consumed in
receiving instructions from Bonner regarding
operation. Bonner also discussed Drake's duties with
him. Drake was told to accompany other personnel as
news stories were filmed. Bonner told Drake that after
his first week on the job, he would gather news stories in
the evening. Bonner suggested for material.
Bonner testified that street reporters working Drake's
shift to approximately p.m.) were expected to
generate at least one, and possibly two, stories per day.
(The number of stories expected, beyond one, depended
on the geographical proximity of one to another). There
is no evidence that Bonner told Drake of this require-
ment during his first week of employment.
In his second week, Drake generated two news and
one sports Bonner testified, without contradiction
he believed Drake's "progress was slow." Ronner based
his belief on the fact that only two news had been
generated by Drake during that week. Bonner explained
that when no stories are obtained between and
p.m., the late newscast consists of reruns from the 6 p.m.
telecast. According to Bonner, Respondent seeks to
avoid the rerun situation.
Midway during Drake's second week, Bonner told
Phillips of Drake's progress. Phillips instructed Bonner
to speak to Drake about it. Later, Bonner asked Drake if
he had a story for that evening. Drake answered he had
no story. Bonner told him to try to find one. Bonner
added "we would really like to have one story an eve-
ning out of him (Drake) before the 11 o'clock news."
Drake responded he would see what he could do.
Drake's second workweek began September 17. As
noted, on that date Hroblak visited the station. Respond-
ent's operations manager, Gross, came with Hroblak.
Hroblak spoke with approximately employees. Drake
said Hroblak spoke with him in Phillips' office. Hroblak
acknowledged that he talked with Drake, but denied the
discussion occurred in Phillips'
During direct examination Bonner testified these stories were gener-
ated in Drake's third week. On cross-examination, Bonner placed these
in the second week. My findings are consistent with the cross-ex-
amination. It is apparent Bonner corrected his earlier testimony. The
cross-examination contains a more explicit enumeration Drake's pro-
duction. If considered a self-contradiction, it is not discredit
Bonner. He otherwise was a forthright and credible witness. In any
event. an error in which week the cited stories were generated is not sig-
nificant. Whether those stories were in the second or third week of
Drake's employment does not alter the total production statistics which
Repondent claims was below par.
The locus of this discussion need not be resolved, in of my find-
ing, that Hroblak engaged in no proscribed conduct.
Drake testified that Hroblak asked him whether he
knew the Union was organizing. According to Drake,
Hroblak asked "if I was aware that a union was being
organized," and "if I had any idea as to why the employ-
ees were organizing." Drake said he answered that he
knew of the campaign but had no idea of the reasons for
it because he had not worked there long enough to learn
them.
Further, Drake testified that Hroblak told him "if the
Union was voted in . . . the Company would offer one
package and if the employees refused that package they
could go out on strike . . . Drake testified he re-
sponded he was aware of what a union could or could
not d o because he "was already a member" of the Union
from previous employment.
Hroblak's version of his September 17 discussion with
Drake was different. He testified that he was at the sta-
tion to discuss business matters, report to employees re-
garding the status of the station's sale, and to "answer
any questions that were brought up by the employees
concerning the Union, and, obviously, when appropriate
to convey to them that management was opposed to or-
ganization . . . ." Hrbolak testified that he asked each
employee if he or she had any questions about the
Union. Hroblak recalled Drake mentioned he was a new
employee, did not have any question about the sale, and
that he did not "know much about what was going on
with the Union."
Hroblak further testified he simply informed the em-
ployees that management was opposed to unionization.
He testified he presented no arguments against unioniza-
tion in response to questions from employees. He candid-
ly could not recall whether or not he volunteered nega-
tive arguments.
Hroblak testified that his conversation with Drake
began by Hroblak telling Drake he was there to discuss
any concerns Drake had regarding the sale of the station.
Hroblak testified he also told Drake he would
any questions Drake might have. According to Hroblak,
it was then that Drake made the remarks indicated above
regarding his brief employment with Respondent and
union membership. Hroblak unequivocally denied he
questioned Drake o r any other employee regarding per-
sonal union affiliations.
In an apparent effort to dispel any unlawful implica-
tion resulting from Drake's testimony, Hroblak was
asked to describe a conversation he had that date with
another employee, who is unidentified. Thus, Hroblak
testified that he told the unidentified employee he
there to answer questions about the sale and to let him
know that management opposed unionization. They dis-
cussed the sale. Then, according to Hroblak, the employ-
ee opined that election of the Union as bargaining agent
would result in Improvement in wages and equipment
and scheduling problems. Hroblak testified he expressed
doubt that the Union could effect the equipment and
scheduling problems because those were rights of man-
agement. Hroblak testified that the employee said he be-
lieved the Union could compel Respondent to make
changes in these areas. Hroblak testified that he remind-
ed the employee that negotiations would result from a
1
Walton Manu facturing & Loganville
attiibuted
ern-
narrition
8(a)(I) violation^.^
~ t o r i e s . ~
I 1
show,1°
night."
11
days
uncontradicted,12
."
* ~hc. infm,
no1 cons~ilute
"er Tn. 5 .
l o AF earlier
1 Thi\ one-story/each-day
\randard.
' I Z 2 meet-
c~)unsel.
UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, INC., ET AL. 70

union win in the election; the Union could not force Re-
spondent to do anything; and the Union's own leverage
is to strike.'
I fully adopt Hroblak's account of what was said by
him, Drake, and the unidentified employee, on Septem-
ber 17. Part of Drake's version is uncontradicted. Spe-
cifically, Hroblak was not explicitly asked to address
Drake's testimony to the effect Respondent would offer
only one package in negotiations, nor whether he (Hrob-
lak) spoke to Drake about a strike. I have already dis-
cussed some reasons why I credit Hroblak instead of
Drake, wherever their testimony conflicts. Based on such
credibility resolution it is permissible to find facts con-
trary to those presented by an uncontradicted witness.
N.L.R. B. v. Company
Pants Co., 369 U.S. 404 (1962).
Close examination of Drake's account is illuminating.
First, he corroborated Hroblak's testimony of how the
conversations were initiated with employees. Thus,
Drake acknowledged Hroblak introduced the union sub-
ject matter by asking whether Drake knew of the
Union's campaign. It was then, according to Drake, that
Hroblak asked if he knew why the employees were orga-
nizing. I concede such a question logically might follow.
However, in all the circumstances herein, I conclude
Hroblak did not ask this second question as to
him. Rather, I consider Drake's testimony in this regard
another effort by Drake to shape his testimony to con-
form to the pleadings. The Union's campaign had been in
progress for nearly 2 months by September 17. Hroblak
spoke with Drake 6 weeks after the first petition had
been filed. Throughout the entire period, Respondent
issued no campaign literature and held no mass employee
meetings. Thus, the record reflects minimal and moder-
ate efforts by Respondent to induce employees to reject
unionization. 1 shall find below that there is no merit to
the amended allegation that Respondent threatened
ployees with futility of selecting the Union as bargaining
agent. No other evidence was presented to hint that Re-
spondent engaged in any sort of opinion poll among the
employees regarding the Union. In an atmosphere other-
wise uncoercive. I simply find it implausible that Hrob-
lak asked the alleged unlawful question of Drake.
Similarly, I discount Drake's testimony that Hroblak
said Respondent would offer "one package" and the em-
ployees could go on strike if they refused it. Drake's nar-
ration was not spontaneous. He presented this testimony
in response to a leading question by counsel for the Gen-
eral Counsel. The question was propounded after Drake
had ended his about what-was said concerning
the Union by him and Hroblak. Indeed, Drake had al-
ready left the union subject matter and proceeded to de-
scribe a discussion between the two regarding equipment
problems. The leading question was asked after Drake
ostensibly completed his narration of the September 17
discussion. These circumstances make Drake's testimony
suspect.
N o part of Hroblak's conversation with the unidentified employee is
alleged as a violation of the Act.
On all discussion regarding relative credibility con-
tained hereinabove, I find Hroblak did not make the
statements alleged as independent
September 24 began Drake's third week of employ-
ment. He generated no film However, Drake
did perform walk-ons each day that week on the 6 and
I I p.m. newscasts. Walk-ons involved Drake's personal
appearance to report an item generally derived from the
wire news services. On occasion, the reporters' source
for walk-ons was telephone interviews, radio news re-
ports, and in-person interviews. Reporters are required to
rewrite such items for presentation in Respondent's tele-
casts.
At one point during Drake's third week, Drake spoke
with Bonner. Drake asked when he would become the
p.m. anchorman. Bonner responded that before Drake
could produce the there was a need for him to
gather film stories in the evening. Bonner offered to help
Drake in this endeavor. However, he told Drake that he
(Drake) had to generate at least one story per
Drake persisted. He said he wanted to produce the
p.m. newscasts. Drake said he was not interested in street
reporting duties and complained that Respondent's
equipment used for street reporting was old and in poor
condition. Bonner indicated other of Respondent's em-
ployees shared that feeling. However, Bonner told Drake
the equipment was functional.
sometime after the Drake-Bonner conversation, Phil-
lips asked Bonner for a report on Drake's progress gath-
ering news items. Bonner said he expected at least one
story each night, but Drake was getting only two or
three a week. Bonner reported he gave Drake construc-
tive suggestions for gathering news. Bonner also report-
ed Drake complained of his embarrassment when he had
to use Respondent's equipment.
Drake's final week of employment began October 1. In
that week, he generated three stories in 4 days. Howev-
er, Drake did not generate a story each day. No stories
were generated by him on Monday, October 2 and
Thursday, October 4. Stories were generated by him on
Tuesday and Wednesday of that week. One of those ,
Contained two stories and the other, one story.
On October 2, Drake, on his own initiative, spoke with
Phillips in the latter's office. Phillips, whose version of
the conversation is testified that Drake
said "he would not do the job that I (Phillips) hired him
to do; that he wanted to produce the news and direct the
news; and he thought he could d o a better job than the
people that I already had . . . Phillips responded he
could not understand Drake's remarks. He reminded
Drake he had been hired as a street reporter. Finally,
Phillips observed that the employees who produced and
directed the news had been with the station for many
years.
In analysis section, I shall find the statements, even if made,
do violations of the Act.
supra.
observed, production is a function of an anchorman.
requirement will hereinafter be called the
Drake was not asked any questions concerning the October
ing by
DEClSlONS
one-story/each-day
complained
potentiaI
1.
Inlerrogalion
HrobIak
Inc. ,
unlon
Knilting mills, Corp.,
1022
Anrhony Health
11 (1978),
8(a)(l).
Heallh Cenler,
Slalemenl offutili(v
8(a)(l)
arguendo,
tIroblak
agreements.13
Hrob-
lak's imvlies -
Loray
(1970),
Loray
E l
Impacl Casling
I:' unident~fied not dlminish 268' 271 The 'Ontext in which Hrob'ak's of was
question was asked demonstrates effect was not coer- tiampshire location. ~ h u s , reahonable to b e l i e ~ r
Thus, I he the names
702
207
OF NATIONAL LABOR RELATIONS BOARD
Later that day Phillips and Bonner discussed Drake.
They reviewed Drake's production. They discussed
Drake's embarrasment over equipment condition. They
observed Drake's apparent reluctance to function as a
street reporter. Phillips testified that he decided to termi-
nate Drake because of Drake's failure to meet Respond-
ent's production standard. Admitted-
ly, Phillips had not personally reviewed Drake's work.
On October 3, Phillips traveled to Respondent's Mary-
land headquarters, as previously scheduled, for business
purposes. In addition to conferring over other business
matters, Phillips discussed Drake with Hroblak. This dis-
cussion occurred pursuant to Hroblak's instructions to
take no termination action during the pendency of the
representation proceedings without such prior consulta-
tion. Phillips told Hroblak he wanted to terminate
Drake. They discussed Drake's work performance. Phil-
lips said Drake was not performing to expectations.
Hroblak and Phillips discussed the potential impact of a
termination on the election. They noted there might be
some impact and an unfair labor practice charge might
be filed. Hroblak told Phillips that if he had a reason to
discharge Drake that action was left to Phillips' discre-
tion.
On October 5, Phillips discharged Drake. Phillips gave
Drake no reason. Phillips testified it was his practice to
refrain from giving employees reasons for their termina-
tion.
There is evidence that during the terminal interview
Drake his discharge was due to what he had
said to Hroblak on September 17. Phillips testified he
denied this and, instead, said the discharge was based on
what Phillips reported to Respondent's Maryland head-
quarters. I consider Drake's self-serving accusation of
little probative value. First, I have already indicated I do
not credit his description of Hroblak's alleged unlawful
interrogation on September 17. Second, I observed
Drake to possess a keen intellect. Clearly, he is capable
of perceiving the value of making such an accu-
sation.
Interference, restraint, and coercion
(a)
Based on my finding that did not ask Drake
to give him the reasons why the employees were orga-
nizing, I find insufficient evidence in the record to sup-
port a finding that Respondent committed the alleged
unlawful interrogation.
However, if it were found that Hroblak actually asked
Drake if he had any idea why the employees were orga-
nizing, I would, nonetheless, find that question is not
proscribed by the Act.
Whether interrogation of employees violates the Act,
depends on a determination that it reasonably tends to
have an unlawful effect. Hanes Hosiery, 219 NLRB
338 (1975); Die Corporalion, 199 NLRB
its
vice. find the question was preliminary to dis-
cussing general work problems. Indeed, Drake himself
testified that the question he ascribed to Hroblak immedi-
ately evoked a discourse of the pros and cons of union-
ism. Patently, the question elicits such a discussion. The
question does not require Respondent to betray his
affiliations and sympathies, nor those of any other em-
ployee. The question, if posed by Hroblak, is not unlike
asking employees what they expect to gain from a union.
The latter interrogation is uncoercive where unattended
by threats of reprisal or promises of reward. Whittaker
Inc., Division of Whittaker
NLRB 1019, (1973). No such threats or promises
have been proved in the instant case. Thus, I find the
context of the discussion vitiates the requisite coercive
impact. Cf. The L . Jordan Center. 235
NLRB 13 where an inquiry into why employ-
ees needed a union was found to violate Section
In Jordan that question was accompanied,
shortly thereafter, with management instructions that em-
ployees restrain their union activities.
Upon the foregoing, I find Respondent did not unlaw-
fully interrogate employees, as alleged.
(b)
I have concluded that, supra, Hroblak did not tell
Drake that if the Union were elected, Respondent would
offer one package and that, if rejected, there would be a
strike. Thus, based on credibility resolution alone, I find
no merit to the allegation that Section of the Act
was violated by Respondent threatening employees with
the futility of selecting the Union as bargaining agent.
Assuming, Hroblak made the remark as-
cribed to him by Drake, I would find it is not unlawful.
It is not contended that engaged in systematic
unlawful interrogation. Hroblak's description of his con-
versation regarding the Union with the unidentified em-
ployee is revealing. In relevant part, Hroblak told that
employee that negotiation would ensue if the Union won
the election. He accurately explained why Respondent
could not be compelled to make I inter-
pret Hroblak's statement to the unidentified employee re-
garding bargaining to indicate Respondent's recognition
of its statutory bargaining obligations.
The General Counsel and the Union urge that
remark, if made, futility of selecting the
Union and conveys an impression that Respondent
would not bargain. I disagree. In The Corporalion,
184 NLRB 557 cited by the Union, the Employer
was explicit in saying he would never sign a union con-
tract. Thus, I find the case inapposite.
There are, of course, situations where proscribed con-
duct was found by implication. However, the unlawful
implication evolves from circumstances which present a
regressive bargaining motif. For example, see Rancho
Marker, 235 NLRB 468, 471-472 (1978). In the entire in-
stant circumstances, I view Hroblak's words. if uttered,
to signify a posture of hard bargaining. After Drake said
I conclude the fact the employee is does
the trustworthiness Hroblak's narration. He not regularly em-
ployed at the N e w it is
did not know o f the various employees situated there
INC.,
Cruz
(1979),
8(a)(l)
situs
&
13 (1
8(a)(l) uiola-
one-story/each-day
Conic
141
8(a)(l)
8(a)(l)
8(a)(3)
N.L.R.B., F.2d
8(a)(3)
Inc.,
8(a)(l)
I
submit
bou~ids
UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE. ET AL. 703
he knew what a union could or could not do, Hroblak
apparently dropped the subject. Hroblak did not seek to
pursue the sinister theme ascribed to him. Moreover, the
conversation with the unidentified employee tends to
belie a proscribed effect.
Another case, Dominican Santa Hospital, 242
NLRB 1107 cited by the Union, is distinguish-
able. There, the employer issued a memorandum to em-
ployees which, in relevant part, stated that negotiations
start from scratch. That comment was considered evi-
dence of a regressive bargaining stance. It was sufficient
to support the conclusion that, by implication, the em-
ployees had been warned that selection of a bargaining
agent would be futile. The present context differs. I find
nothing in the comment attributed to Hroblak, which
suggests such a regressive posture. Indeed, the credited
testimony reflects the opposite. Specifically, Hroblak ac-
knowledged Respondent's bargaining duties to the un-
identified employee.
One additional point should be noted concerning both
the above allegations of independent violation.
Drake claimed Hroblak spoke with him in Phillips'
office. Hroblak denied this. However, Hroblak did not
specifically identify the locus of the discussion. Assuming
Hroblak spoke with Drake in a locus of managerial au-
thority, that fact is not dispositive of the issue of coer-
civeness. Certainly, the of managerial-employee dis-
cussions is a factor to be considered. That element alone,
nonetheless, does not necessarily support a conclusion
that the conversation was coercive. Fairbanks Medical
Surgical Clinic, Inc., 2 NLRB 741 974). In Fairbanks,
a managerial official interrogated an employee in the
manager's office. That interrogation was unaccompanied
by threats of reprisal. The Board found the site of the
conversation was not, in itself, sufficient basis for finding
the interrogation unlawful. It is not asserted in the in-
stant case that Hroblak made additional threats. Accord-
ingly, I find that if Hroblak spoke with Drake in Phillips'
office that fact is of little probative value in all the in-
stant circumstances.
Upon all the foregoing, 1 find Respondent did not
commit either of the alleged independent
tions.
2. Drake's discharge
T h e General Counsel and the Union contend Drake
was discharged because he was a union member. Re-
spondent asserts Drake was discharged because he failed
to meet the standard. T h e General
Counsel and the Union claim Respondent's defense is
pretextual.
T h e General Counsel must prove certain elements to
establish a prima facie case of discrimination. Those ele-
ments are (1) that the affected employee had engaged in
activity protected by the Act; (2) the employer had
knowledge of that activity; (3) that the adverse personnel
action imposed on the employee was motivated by union
animus; and (4) that the discipline had the effect of en-
couraging o r discouraging membership in a labor organi-
zation. The General Counsel has the burden of proving
his case by a preponderance of the evidence. Man-
ufacturing Company, Division of Hampshire Woolen Com-
pany, NLRB 201, 209 (1963).
violations support findings of unlawful motiva-
tion. I have found herein that Respondent did not engage
in the alleged activity. Nevertheless, such viola-
tions are not necessary to an finding. "Actual
motive, a state of mind, being the question, it is seldom
that direct evidence will be available that is not also self-
serving. In such case . . . the trier of fact may infer
motive from the total circumstances proved . . . . If he
finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive. More
than that. he can infer that the motive is one that the em-
ployer desires to conceal-an unlawful motive-at least
where . . . the surrounding facts tend to reinforce that
inference." Shattuck Denn Mining Corporation (Iron King
Branch) v. 362 466, 470 (9th Cir. 1966).
The Shattuck Denn principle was quoted with approval
by the Board in Best Products Company, Inc., 236 NLRB
1024, 1025 (1978).
The allegation requires me to determine, from
the totality of evidence, whether the asserted reason for
Drake's discharge actually motivated it. Signal Delivery
Service 226 NLRB 843 (1976).

In addition to claiming the alleged
activity is
direct evidence of unlawful motivation, the General
Counsel and the Union urge Respondent's failure to fur-
nish the Excelsior lists evinces such motivation. I reject
this contention. In support, the General Counsel cites
Best Products, supra. In that case, the Board found that
an administrative law judge had erroneously refused the
General Counsel's proffer of findings in a prior represen-
tation proceeding as evidence of union animus. con-
clude that case factually distinguishable from the case at
bar in a critical respect. In Best Products, the administra-
tive law judge rejected findings which emanated from an
evidentiary hearing. Herein, the Regional Director's sup-
plemental decision evolved from an administrative inves-
tigation of the Union's objections. N o hearing on objec-
tions was held. In these circumstances, it is speculative to
assume the failure to the Excelsior lists was
prompted by unlawful considerations. A variety of rea-
sons may exist for that omission. They may be unreason-
able o r even invalid, but not unlawful. T h e simple fact is
Respondent herein has not been afforded an opportunity
to litigate the subject. That issue has not been placed for-
mally before me. In the circumstances, I conclude it ex-
ceeds the of justice and fairness to accord proba-
tive value to the failure to comply with the Board's Ex-
celsior requirement.
I now turn to the pretext theory. A fair assessment of
all the record evidence persuades me Respondent's de-
fense has merit. Evaluation of the integrity of the defense
entails a definition of terms. Specifically, analysis must
clarify the meaning of Respondent's requirement that
Drake was expected to generate at least one story each
day. Seemingly, Drake sometimes met Respondent's
standard. Arguably, the standard was met during the
week Drake performed walk-ons every day. If walk-ons
are contemplated within the definition of "generating a
one-story/each-day
l 4
one-story/each-day
story.15
&
Co.. Inc.. Paramount Co., Inc.,
(
( I )
' * I\ uncontrad~cled jnh entail\ some \trert rr-
' " t h ~ r d hecau\r
dr, qual~fy "generation."
Nuys
8(c)
to
helow
1187
Co.. Inc.,
Res~ondent ~roffered
guage inartful
Bonner,
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
story," then Drake fulfilled the standard and a founda-
tion exists for finding its assertion a pretext.
I conclude walk-ons are not an ingredient which satis-
fies Respondent's requirement. Re-
spondent's assertion of the existence of the one-story/
each-day standard is not seriously contested. Also.
though the General Counsel and the Union claim Drake
had been hired as an anchorman, their positions concede
Drake needed to be trained. That training necessitated
work as a street reporter.
Analysis of the standard is instruc-
tive. Such analysis shows that certain qualities must be
demonstrated by the employees who are judged by those
standards. Thus, to generate a story, an employee must
show initiative, inventiveness, originality, and creativity.
These qualities clearly are essential to the successful
gathering of and reporting the news.
The record, as a whole, shows the product of street
reporters is the result of application of some of the enu-
merated factors. An anchorman must use all the de-
scribed elements. Also, anchormen must show ability to
direct and produce a telecast of news.
On the other hand, the performance of walk-ons does
not entail application or demonstration of such stringent
requirements and versatility. Gathering of source materi-
als is considerably easier for walk-ons. They are derived
from ready-made material. From the foregoing, I con-
clude walk-ons are not the equivalent of generating a
story.
Viewed in this light, I find the record shows Drake
did not meet Respondent's performance standard. The
defense is susceptible to empirical measure. Thus, out of
15 workdays when the standard was expected (beginning
with Drake's second workweek and ending on date of
discharge), he generated only six stories. T w o of the sto-
ries were generated on one day; and one of them was a
sports, not news, Accordingly, I find these sta-
tistics provided Respondent with good cause for Re-
spondent to consider Drake's work substandard.
Whether that good cause was the operative factor in
Drake's discharge is the next question. The Act "does
not require that an employer acted wisely, o r even rea-
sonably; only whether reasonable or unreasonable, that it
not act discriminatorily." Paramount Metal Finishing
and Plating 225 NLRB
464, 465 1976).
The General Counsel and the Union make inroads on
Respondent's contention that Drake's termination was
not motivated by unlawful considerations. Their argu-
ments are only superficially appealing. Thus, the follow-
ing factors militate against Respondent's position:
The record contains evidence of Respondent's
animus. Thus, it is admitted, one of the purposes for
Hroblak's September 17 visit was to inform employees
that Respondent was opposed to unionization, Hroblak
forthrightly described that he pursued that aim. He nar-
rated his conversations with the unidentified employee,
and with Drake.
I t that the anchorman
porter's work.
I have excluded the walk-ons during Drake's week I
have found they not for the definition of
However, expressions of animus, standing alone, d o
not appropriately comprise the predicate for an unlawful
inference. Proof of motive cannot be presumed merely
by establishing the existence of union animus on the part
of an employer. Van Publishing Company, 167
NLRB 415 (1967). Indeed, Section of the Act estab-
lishes an employer's right to freely express his views as
unions. An employer is perfectly at liberty to oppose
unionization. This right is not without limit. Where
animus is coupled with other indicia of hostility, the cir-
cumstances thus created d o form a basis for a finding
that employee discipline is unlawfully motivated.
In view of Drake's numerical production, and the evi-
dence of Respondent's knowledge, which I shall find
to be failing, I cannot rely on the evidence in this
record showing bare animus to establish the requisite un-
lawful motivation.
(2) There is evidence suggesting Respondent shifted its
reasons for Drake's discipline. Such shifting of reasons is
indicative of discriminatory intent. Tyler Pipe and Found-
ry Company, 132 NLRB (1961); Greyhound Taxi
234 NLRB 864 (1978).
It was at the instant hearing that, apparently for the
first time. Drake's failure to meet , ,
the production standard as the sole ground for discharge.
Nowhere in Phillips' memorandum (G.C. Exh. 5) pre-
pared, as he claimed, on the day before Drake's dis-
charge. does this reason appear. This omission presents a
suspicious circumstance. This is evidence that the assert-
ed defense is pretextual.
I find this circumstance of little probative value. When
testifying, Phillips identified the second paragraph of his
memorandum as containing the basis for discharge. That
paragraph, in full, states "he (Drake) was informed that
his duties were to learn the routines, the people and the
use of the equipment we were working with." Clearly,
the quoted language does not state Respondent's defense
in explicit terms. Nonetheless, I conclude the quoted lan-
reasonably contains an allusion, albeit in
language, to the asserted failure of Drake satisfactorily to
progress during his training period. Accordingly, I
accord little probative value to that evidence which sug-
gests shifting reasons.
(3) Drake's immediate supervisor did not recommend
his termination. The record shows Bonner simply made
periodic reports on Drake's progress. Admittedly, he did
not recommend to Phillips that Drake be discharged.
Phillips assumed all responsibility for the decision to ter-
minate Drake. Admittedly, Phillips made no detailed per-
sonal investigation of Drake's work performance. Phillips
claimed he relied on Bonner's report and also his own
confrontations with Drake. Drake criticized the equip-
ment. He was rather presumptuous in his claim to
become anchorman. In its totality, I conclude the record
shows Phillips had sufficient basis to consider terminat-
ing Drake. In the context of Hroblak's earlier instruc-
tions to take no termination action without consultation
during the union campaign, I find it reasonable that Phil-
lips discussed the matter with Hroblak. In the context of
having received negative reports from I am un-
willing to place significance on the absence of a specific
evidence
sec. III,B, 1
story/each
1
Durvoses
The numbered
sus~icious How&-
Carrom
Inc,
17),
Hroblak.15
Nuys
1 .
2(2), (6),
2(2)
l q c )
l 5
l 6 Sec.
Regulations
Sec.
705 UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, INC., ET AL.
discharge recommendation from Bonner. At best, I con-
clude that omission merely creates a suspicious circum-
stance.
(4) Respondent's asserted reason for discharge was
presented after the fact. This is some the de-
fense is pretextual. Stanford Seed Co., 245 NLRB 1064,
ALJD, (1979). Thus, Phillips admitted he
gave no reason for the discharge during Drake's terminal
interview. Phillips testified, without contradiction, there
had not been numerous terminations in the past. He cre-
dibly explained it was his policy to avoid presenting dis-
charges with the reasons for their termination to avoid
rancor. Though Administrative Law Judge James L.
Rose observed some reasons for discharge were after the
fact, there was other evidence in Stanford Seed support-
ing a finding of pretextual motivation. In that case, the
discharged employee was provided patently false reasons
for the discipline imposed. Those reasons were contro-
verted by Stanford's past practice. In the instant case,
there is no evidence of such inconsistency. Accordingly,
I find the failure to give Drake a reason for his dis-
charge, in the instant circumstances, of little probative
value.
(5) Finally, the General Counsel and the Union argue
the failure to warn Drake he was subject to discipline
warrants a pretext finding. I agree the record contains no
evidence of such a specific warning. However, during
Bonner's discussions with Drake in Drake's second and
third weeks of work, Bonner told Drake of the one
day requirement. In this context, I am unwill-
ing to draw an adverse inference against Respondent be-
cause it failed to explicitly warn Drake he was subject to
potential discipline. Drake was in a training period. It is
reasonable to assume a trainee would understand the
consequences of a failure to perform in accordance with
his employer's expectations. In any event, consider
Bonner's unrefuted testimony that he advised Drake of
Respondent's standard some evidence that the foundation
of Respondent's defense existed early in, if not through-
out, Drake's employment and has not been fabricated for
of this litigation.

five
paragraphs immediately above, at
best. create a series of circumstances.
er, even substantial suspicions regarding Respondent's as-
serted defense d o not suffice as proof of discriminatory
motivation. Division, Affiliated Hospital Products,
245 NLRB 703, fn. 1 (1979). Rather than relying on
these suspicious circumstances, I am more persuaded by
the failure of the record to show that Respondent had
direct knowledge of Drake's union membership.
As noted, Hroblak admitted Drake told him (on Sep-
tember that he had been a union member at a former
employer. The state of this record does not permit me to
find that information was the nexus of unlawful motiva-
tion. There is no evidence Phillips knew of Drake's
union membership. The credible evidence shows it was
Phillips who made the discharge decision. Thereafter, he
consulted with Hroblak pursuant to previous instruc-
tions. Phillips recommended the discharge action to
Hroblak left the discharge to Phillips' discre-
tion. There is absolutely no evidence that Hroblak told
Phillips that he (Hroblak) knew of Drake's union mem-
bership. I cannot infer Phillips' knowledge merely from
suspicious circumstances. Accordingly, I find the record
does not contain sufficient evidence to prove the essen-
tial prima facie element of employer knowledge.
Upon all the foregoing, I conclude the record fails to
establish by a preponderance of evidence that Drake's
discharge was pretextual and motivated by union animus.
Van Publishing Company, supra at 416. Having
found Drake did not meet Respondent's performance
standards, I conclude he was discharged for good cause.
Upon the basis of the foregoing findings of fact and
the entire record in this proceeding, I make the follow-
ing:
United Broadcasting Company of New Hampshire,
Inc. d/b/a WMUR-TV is an employer engaged in com-
merce within the meaning of Section and (7) of
the Act.
2. Local 1228, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the
meaning of Section of the Act.
3. Respondent has not committed any of the unfair
labor practices alleged in the complaint.
4. Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section of the Act, I hereby issue the following
recommended:
The complaint herein is dismissed in its entirety.
The Union asserts it was Hroblak who "ordered" Phillips to dis-
charge Drake. I find the facts show the contrary.
In the event no exceptions are filed as provided by 102.46 o f
the Rules and of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in 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.