WHLI Radio

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1540 (N.L.R.B. 1976)

1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. M. Broadcasting Corporation d/b/a WHLI Radio
and Helaine Feivelson . Case 29-CA-4196
June 21, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On March 16, 1976, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order I as modified.
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 modified
herein and hereby orders that the Respondent, F. M.
Broadcasting Corporation d/b/a WHLI Radio,
Hempstead, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
modified below.
1. Substitute "other" for "like or related" in para-
graph l(a).
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The General Counsel excepts to the Administrative Law Judge's failure
to recommend a broad order against the Respondent. Since the unlawful
discharges go to the heart of the Act, and as the Respondent has committed
other unfair labor practices in the recent past, thereby manifesting a readi-
ness to violate the Act, we find merit in the General Counsel's exception
and shall modify the Order and notice accordingly
APPENDIX
that we violated the law and we have been ordered to
post this notice. We intend to carry out the order of
the Board and abide by the following:
WE WILL NOT discharge or otherwise punish
employees because they engage in union activi-
ties or concerted activities for their mutual aid
or protection.
WE WILL offer Joanne Magliochetti (Joanne
Dougherty) and Helaine Feivelson immediate
and full reinstatement with backpay.
WE WILL NOT coercively question employees
about their union or concerted activities or
about their sympathies toward union or concert-
ed activities.
WE WILL NOT expressly or impliedly promise
employees benefits in order to dissuade them
from participation in union activities or concert-
ed activities for their mutual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights.
All our employees are free to engage in union ac-
tivities on behalf of any labor organization or to en-
gage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
Our employees are also free to refrain from any and
all such activities, except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the Act,
as amended.
F. M. BROADCASTING CORPORATION d/b/a
WHLI RADIO
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
case was heard at Brooklyn, New York, on September 10
and October 22 and 23, 1975, based on an original charge
filed January 20, 1975, and amended January 29, 1975.1
The complaint, issued May 30, 1975, alleges that Respon-
dent violated Section 8(a)(l) and (3) of the Act. Counsel
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided
i On September 10, 1975, at the outset of the hearing, Respondent moved
for dismissal of the complaint on the ground that further proceedings were
barred by Sec 10(b) of the Act Evidence was taken concerning the issue of
whether the charge was timely filed, and the hearing was adjourned pending
the Administrative Law Judge's consideration of this question After due
consideration , on September 25, 1975, I issued an order denying
Respondent's motion for the reasons set forth therein
224 NLRB No. 204
WHLI RADIO 1541
for General Counsel and the Respondent have filed briefs,
which have been carefully considered 2
Upon the entire record in the case, including my obser-
vation of the witnesses, I make the following
FINDINGS OF FACT
motivated solely by economic considerations, and that
Feivelson, after becoming upset over Magliochetti's re-
lease , voluntarily quit It is further asserted that the duties
of the job from which Magliochetti was discharged estab-
hsh that her status was that of a supervisor within the
meaning of Section 2(11) of the Act, thus removing her
from the Act's protection
I JURISDICTION
Respondent, a New York corporation, is engaged in the
operation of a commercial radio station in Hempstead,
New York During the past year, a representative period,
Respondent in the course and conduct of its business oper-
ations, derived gross revenues therefrom in excess of
$100,000 During the same period Respondent purchased
and caused to be transported in interstate commerce goods
and materials valued in excess of $50,000 directly from
points outside the State of New York Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II LABOR ORGANIZATION
American Federation of Television and Radio Artists,
hereafter called AFTRA, is and has been at all times mate-
rial herein a labor organization within the meaning of Sec-
tion 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
All the violations in this case allegedly occurred on or
about July 29, 1974 3 The General Counsel contends that
Respondent discharged Joanne Maghochetti 4 and con-
structively discharged Helaine Feivelson because of their
union and concerted activities It is also alleged that
Respondent's general manager, Paul Godofsky , interrogat-
ed employees concerning their union activities and their
participation in concerted activities , warned and directed
employees to refrain from becoming members of , assisting,
or supporting AFTRA, and threatened employees that if
they joined or assisted AFTRA they would no longer be
able to discuss or present their problems to management
The Respondent , denying the alleged violations of the
Act, contends that the termination of Maghochetti was
2 In addition to his brief counsel for General Counsel filed an opposition
to a proposed order issued by me on November 5 1975 in which the
Administrative Law Judge notified the parties that his ruling excluding
Resp Exh 5 for identification would be deemed reversed and the exhibit
received in evidence, unless good and sufficient cause was shown prior to
close of business November 20 1975 After due consideration of the argu
ments advanced in General Counsels opposition I reverse his original rul
mg Resp Exh 5 is received in evidence Duquesne Electric and Manufactur
mg Company 212 NLRB 142 (1974) General Counsels further motion to
reopen the hearing in the event Resp Exh 5 were to be received in evi
dence, is denied
3 Hereafter all dates are in 1974 unless otherwise specified
4 Whose married name is Joanne Dougherty
B The Facts
Respondent, which operates a commercial radio station
in Hempstead, New York, has collective-bargaining agree-
ments with the New York Chapter of the American Feder-
ation of Radio and Television Artists, for a unit of an-
nouncers and newsmen, and with the Radio, Television,
Broadcast Engineers Union of the International Brother-
hood of Electrical Workers, covering a unit of engineers
These contracts have been in effect for many years Thus,
as of July, only seven or eight office employees, including
Continuity Director Joanne Magliochetti and Copywriter
Helaine Feivelson, were unrepresented Magliochetti's du-
ties entailed coordinating commercial copy, taping com-
mercials and preparing them for the air, editing, rewriting,
and cutting copy, insuring that the commercial was proper-
ly aired, and keeping FCC and other records Feivelson
wrote live radio commercials and prepared announcements
in connection with community bulletin boards Maglio-
chetti had been employed by WHLI since November 1966,
and Feivelson since September 1970 Their immediate su-
pervisor was Program Director Jerome Karpt, more famil-
iarly known to them by his radio name, Jerry Carr, which
appellation is hereafter used in this Decision 5 On or about
July 24, Magliochetti, Feivelson, Soma Costella, Daphne
Tricoukes, Peggy Hunter, and Michelle Blanchette met in
Respondent's lunchroom and discussed the propriety of
presenting certain grievances to management This assem-
bly was prompted by an incident earlier that week in which
Tricoukes was discharged for about an hour and then re-
hired The meeting ended with Feivelson preparing a writ-
ten list of grievances for presentation to Jerry Carr On
Thursday, July 25, Feivelson invited Carr to lunch with the
group 6 At the luncheon, in the Canterbury Pub, Maglio-
chetti raised the subject, saying that there were a lot of
grievances they wanted to discuss and that they were very
unhappy Feivelson then read her list, and each grievance
was discussed with Carr a point at a time The first and
second items listed requested a raise for the group Carr
commented that some of the complaints were foolish or
silly, said he would not discuss some of them with Paul
Godofsky, but promised to bring others to his attention,
including the requested raise, although he noted that the
Company was losing money At the close of the luncheon
Maghochetti told Carr, "Please do not single any of us out
We want to be approached as a group " Following lunch
5 It is undisputed and found as demonstrated by record evidence of their
duties that Jerry Carr and Paul Godofsky general manager and vice presi
dent in charge of programming are supervisors within the meaning of Sec
2(11) of the Act
6 Only Costella did not attend
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carr was provided with a photostatic copy of Feivelson's
list.7 Late Friday afternoon, July 26, while Carr was doing
a show in the control room, Peggy Hunter, a secretary,
informed Magliochetti that Carr wanted to see them,
whereupon the entire group, except for Hunter, went into
the control room. Carr said that Paul Godofsky had noth-
ing to say to them. Magliochetti asked, "Is that to be con-
sidered a complete refusal of our request?" Carr answered
"Yes." 8
After work that evening Feivelson and Magliochetti met
with Sal Giangrasso, the AFTRA shop steward at WHLI,
and Scott Robins, an announcer. Robins, who was the last
to arrive, reported somewhat excitedly that Godofsky's
son-in-law, Lenny Seeble, had said to him that Magliochet-
ti was going to be fired. After some further discussion of
the matter it was decided that Giangrasso would see what
he could do to get the group "covered" by AFTRA. There-
after, throughout the weekend, Magliochetti kept in tele-
phonic communication with the other members of the
group and with Giangrasso, but nothing definite was ac-
complished.9
On Monday morning, July 29, Magliochetti began work
filling in for Traffic Manager Michelle Blanchette, who
was on vacation, in addition to her other duties. During the
morning Giangrasso approached Magliochetti and Feivel-
son stating that he had spoken to an AFTRA official and
he thought they would probably be "covered" by 1 o'clock
that afternoon.10 Later that day, about lunchtime, Daphne
Tricoukes and Peggy Hunter, Jerry Carr's secretary, were
individually called to Godofsky's office. Godofsky told
Tricoukes, "I understand you have some problems, and
you could come directly, Daphne, it is not like you to be-
long to a union like the announcers and the engineers.
Look what they have to go through." Godofsky continued
saying that the announcers and engineers could not come
in there and discuss their problems, but needed a go-be-
tween. Tricoukes nodded her head and said, "Yes." Godof-
sky then said, "I am surprised at you. How could you let
Helaine and Joanne fight for you? How could you let the
other girls influence you in any which way?" Then Godof-
sky reviewed Tricoukes' salary and her workload. The
meeting ended with him promising to review her salary.
Tricoukes recalls that this conversation took place about
11:45 a.m. Later, about 2 p.m. by phone, Godofsky asked
her to have Peggy Hunter come in to his office. Godofsky
told Hunter that she did not need Magliochetti and Feivel-
7 In evidence as Resp Exh 4
8 The above findings of fact concerning the events of July 25 and 26 are
based on the combined testimony of Magliochetti, Feivelson, Daphne Tn-
coukes, Peggy Hunter, and Jerry Carr To the limited extent that Carr's
testimony about these events is divergent from the mutually corroborative
testimony of the General Counsel's witnesses, I credit the employees I do
not, however, credit Feivelson's testimony, unsupported by Magliochetti
and denied by Carr, that during the latter part of this week Carr said they
were ganging up on him and called Magliochetti a troublemaker
v In the meantime Giangrasso had suggested that Feivelson contact some-
one associated with the Office and Professional Employees International
Union, which he viewed as a more appropriate union for the group
10 As subsequent events rapidly unfolded on July 29, none of the affected
group of employees was ever "covered" or given the opportunity to join
either AFTRA or the OPEIU, although members of the group continued to
make inquiries of Giangrasso between I p in and 4 p m on July 29
son to fight her battles for her, and that after so many years
she should come to him with her problems. He said that
she would do better on a one-to-one basis than joining a
group. He continued that at the time the AFTRA Union
was working without a contract and pointed out the diffi-
culties they were having. Godofsky emphasized that those
people could not come directly to him but that Hunter
could unless she joined a union. Hunter attempted to ex-
plain to Godofsky that the group he was talking about
worked as a group and tried to help each other. Godofsky
answered that she was not helping the girls out and that he
did not understand her answers. Hunter then left
Godofsky's office and returned to work.ll
About 4 in the afternoon Jerry Carr approached Maglio-
chetti, and said he had something urgent to discuss with
her after work. About 5:15 p.m. she went to Carr's office,
where Carr informed her that the board of directors had
met, that there had to be a cutback, and unfortunately, she
was to be laid off. Magliochetti inquired what the differ-
ence was between being laid off and being fired, and Carr
answered that if conditions got better she could be rehired.
He said that she could stay for her 2 weeks' notice if she
wished, but he would advise against it. Magliochetti's sev-
erance pay and vacation pay were prepared and waiting
for her. He said that Magliochetti would receive her profit
sharing through the mail after it had been computed. Then
Magliochetti inquired concerning whether a piece of paper
in Carr's hand, to which he kept referring, was from the
board of directors. Carr answered that it was from Paul
Godofsky, but refused Magliochetti's request to see it. The
conversation concluded with Magliochetti asking what was
going to happen since the office was very busy then. Carr
answered that they would get a clerk to fill in.
Magliochetti returned to her office next door to Carr's to
pack her belongings. She also repeated to Feivelson the
substance of her conversation with Carr. Feivelson then
went immediately to Carr's office where she asked,
"What's supposed to happen now?" Carr answered, "Noth-
ing." Feivelson asked, "Am I supposed to do Joanne's
work as well as my own? You know it is piled high." Carr
answered "Yes." Feivelson continued, "And I am still sup-
posed to relieve the switchboard?" Carr said "Yes." Feivel-
son inquired, "What about the traffic position, Michelle is
not here and Joanne is taking over traffic. What is sup-
posed to happen?" Carr responded, "You will have to
ii Godofsky denied discussing the subjects of the Union or of Maglio-
chetti and Feivelson's activities on behalf of the dissatisfied group of em-
ployees during any conversation with Tricoukes and Hunter He claimed
that he occasionally talked to Hunter when she took dictation from him, but
could not recall the particular incident to which Hunter attributed this con-
versation Godofsky did remember a conversation with Tncoukes, after Tri-
coukes allegedly refused to do bookkeeping work while the bookkeeper was
absent, in which he strongly criticized her conduct and discussed her job
and her "need for cooperation " On cross-examination Godofsky conceded
that this conversation could have occurred at an earlier time Tricoukes, on
cross-examination, testified that there was only one conversation with Go-
dofsky on July 29, but clearly indicated that there was a "first" discussion
earlier about the bookkeeper I credit Tricoukes and Hunter whose memory
and ability to relate details persuade me that they were truthful witnesses In
addition their testimony is consistent with the total course of events which
occurred on July 29 Moreover, I take official notice of F M Broadcasting
Corp, 211 NLRB 560 (1974), in which Godofsky was found not to be a
credible witness
WHLI RADIO 1543
make do We'll get you a clerk " Feivelson rejoined, "What
is a clerk going to do in a specialized department? I can't
train a clerk to write copies, and do all the things-it is
physically impossible to do all that " At this point Carr
became angry and said, "If you don't like it, there's the
door-leave " Feivelson answered, "If I leave, I'll consider
myself fired " Carr said, "I did not say that I said if you do
not like it there's the door, you can leave " Feivelson an-
swered "Fine," and walked back to her office but returned
two additional times to Carr's office during which portions
of the previous conversation were repeated and Feivelson
kept insisting, "How could you be doing this? How can
you sleep at night?" Thereafter Feivelson packed her be-
longings and left 12
Following the terminations of Magliochetti and Feivel-
son, at some time during the middle of the week of July 29,
Jerry Carr phoned Bonnie Lee Harris concerning a prob-
lem about the procedure called "E T's," which involves the
rotation of live tapes for the announcers During this con-
versation Carr explained that he hated to bother her but
that everyone was gone, Michelle was on vacation, he had
a new continuity director coming in that afternoon, and he
had to figure out the E T 's Then Carr went on to say that
they had fired Magliochetti and had gotten rid of Feivel-
son, but the other girls were really stupid, were not going to
get anything, and were all going to suffer 13
C Respondent's Defense, Analysis, and Concluding Findings
Respondent contends that Maghochetti is a supervisor
within the meaning of Section 2(11) of the Act, and there-
fore by reason of her status, is not protected by Section
8(a)(1) and (3) As continuity director, at a salary of $160 a
week, which meant Maglrochettr was the highest paid of-
fice employee, she worked under the direct supervision of
Vice President and Program Director Jerry Carr, who was
in general charge of the staff and the operations of the
radio station, including personnel Carr testified that Ma-
gliochetti was in charge of the continuity department
which is responsible for turning out copy that is to go on
the air, either in the form of live announcements or re-
cordings The continuity department, composed of only
Maglrochettr and Feivelson, a copywriter, prepared and
typed advertising copy Maglrochettr also had a certain
amount of responsibility for preparing the station log, a
minute-by-minute record of the operation of the station
i2 The findings of fact concerning Maghochetti and Fervelson s exit inter
views are based on their credited testimony Carr s testimony does not differ
to any significant extent
13 The findings are based on Harris credited testimony Carr admitted
having a telephone conversation with Harris during the first week of August
about `ET's but could not relate in any detail what was said He emphat
ically denied saying anything to Harris about having gotten rid of Maglio
chetti and Fervelson, but admitted he could have discussed people having
left When confronted with his affidavit given to the Board agent he agreed
to having had another conversation with Harris when they met in a depart
ment store at about this same time in which he did refer to people leaving
Under these circumstances I find Harris precise testimony to be more reli
able than Carr s I reject Respondent s argument that Harris account was
colored by great hostility to Respondent since there is uncontradicted testy
mony that she maintained a friendly relationship with Executive Vice Presi
dent Joseph A Lenn
According to Carr, Maghochettr "laid out" Feivelson's
work for her During the time in which the station was
seeking an employee to perform the copywriter's job ulti-
mately filled by Feivelson, Magliochetti performed prelim-
inary screening and testing of job applicants According to
Carr, Magliochetti then reported the results to Carr and
made a recommendation He testified that he hired Feivel-
son as a direct result of Maghochetti's recommendation 14
When Feivelson wanted a raise she spoke to Maglrochettr
who in turn spoke to Carr about the matter However, Carr
conceded that his own authority was limited in this respect
in that he found it necessary to speak with Godofsky be-
fore granting a raise Sometimes Carr would grant the re-
quest and sometimes he would not With respect to the
apportionment of work, Carr testified that he was not too
concerned about this as long as the work got out, and that
he left work apportionment up to Magliochetti's discretion
Carr also testified on cross-examination that there is no
intermediate supervision between himself and any of the
other office clerical employees His office was located adja-
cent to that of Magliochetti and he agreed that he watched
both Maglrochettr and Feivelson closely On occasion he
gave direct instructions to Feivelson Likewise, Maglio-
chetti occasionally performed odd jobs as did the other
clerical employees, for example filling in on the switch-
board if the person performing that function was absent
Magliochetti testified that as continuity director she was
responsible for the commercials and directed the work of
Feivelson, whom she tested and Carr hired She agreed that
she screened applicants for the position which finally fell to
Feivelson This function consisted of giving the applicants
an application, telling them what the position required, and
giving them a copywriting test, the results of which were
given to Carr who made the final decision Carr was also
responsible for scheduling vacations based upon data col-
lected by Magliochetti from the other employees Maglio-
chetti testified that she had not attended a management
meeting in 4 years On occasion Feivelson did request a
raise Sometimes she would talk directly with Carr, on
other occasions she mentioned her request to Maghochetti
who then transmitted it to Carr According to Maglrochettr
she could not recall any specific occasion on which she
actually made a recommendation that Feivelson be given a
raise She testified that because the office was small and
Carr knew what kind of work Feivelson did, anything said
to Carr on this subject would simply be for the purpose of
informing him that Fervelson wanted a raise Then Carr
would make the decision The record does not reveal the
details or the dates of any specific occasion in which the
question of a raise for Feivelson arose The record does
establish that Feivelson and Maghochetti worked closely
together Both wrote copy on the typewriters at their desks
They assisted one another and read each other's copy Any
requests for time off were transmitted by Maglrochettr to
Carr who then made the decision When occasions arose in
which Magliochetti and other employees were required to
work past the normal working hours, Maghochetti received
the same compensatory time off that the other employees
14 Carr s testimony that he relied on the results of Maglrochettr s report
was elicited by means of a leading question
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received. According to Magliochetti, she did not actually
assign work to Feivelson but rather work was distributed
according to type. Magliochetti handled national accounts;
copywriting and community affairs work were automati-
cally handled by Helaine Feivelson. Finally, Magliochetti
testified without contradiction that she was never told by
any superior that she had any authority whatsoever over
Feivelson. She was simply told that she was responsible for
the department, and in actual practice if something went
wrong with a commercial she would "hear about it." Like-
wise, Magliochetti was never given any authority to hire or
reject job applicants, nor was she given any specific in-
structions concerning what her screening authority was, ex-
cept that she was to conduct a preliminary interview and
testing of each applicant.
Feivelson corroborated Magliochetti's testimony. She
testified that at the time she was hired she took a test,
administered by Magliochetti, which involved writing and
typing both a 30-second and a 60-second commercial.
When she finished the test she turned it in to Magliochetti
whose only comment was for her to wait. After a short
absence Magliochetti returned and said Carr wanted to see
her. Carr conducted the remainder of the interview, dis-
cussed salary with her, and told her she was hired. Feivel-
son agreed that Magliochetti was "responsible" for the
work of the department, but that each had their own work
to do. Feivelson also agreed that the division of work was
accomplished, without any direct instructions from Mag-
liochetti, simply on the basis of her recognizing that any
radio commercials and community bulletin board an-
nouncements were hers to write. After a week's initial
training by Carla Price, Magliochetti's predecessor, Feivel-
son began to perform the work more or less on her own,
with assistance at times from Magliochetti, salesmen, Jerry
Carr, and Mr. Lenn. I find, based upon a combined con-
sideration of the testimony of Carr, Magliochetti, and
Feivelson, that although Magliochetti was, to an extent,
responsible for the commercials produced by both her and
Feivelson, who viewed Magliochetti as a superior, there is
no evidence that Magliochetti was ever given the type or
degree of authority necessary to bring her duties within the
statutory definition of a supervisor in Section 2(11) of the
Act. Instead Magliochetti clearly performed the function
of a working lead person who, in addition to her own du-
ties, acted as a conduit of information to and relayed in-
structions from the actual immediate supervisor, Jerry
Carr. 15
Respondent offered both documentary evidence and tes-
timony by Godofsky and Carr to the effect that for some
months prior to Magliochetti's and Feivelson's termina-
tions, the Respondent had been steadily losing money.
This presentation of Respondent's financial situation was
acknowledged by Magliochetti in her testimony and re-
16
Even assuming that the evidence proved that Magliochetti's status was
in fact that of a supervisor within the meaning of the Act, I would still find
that her discharge violated Sec 8(a)(1) of the Act, for the reasons set forth
below, since the manner in which she was precipitously discharged coupled
with statements made by Respondent's supervision to employees reveals
that a part of Respondent's motive in terminating Magliochetti was to
squelch any further participation in union or concerted activity by the other
employees
marred uncontradicted by any of the evidence presented
by the General Counsel. Without further elaboration, I
credit the testimony of Godofsky and Carr in this respect
and find that at the time Magliochetti and Feivelson were
discharged Respondent was experiencing financial difficul-
ty, and was actively seeking ways to economize in order to
alleviate the situation Against this background Respon-
dent contends that Magliochetti was terminated as an
economy measure. Thus, on July 10 Paul Godofsky sent an
office memorandum to Jerry Carr, the subject of which
was "Retrenchment in Program Department." This memo-
randum noted a drop of $103,000 in gross sales compared
with the year 1973 and further stated, in pertinent part, "In
view of the depressing news in station advertising, we must
proceed to trim our staff and eliminate any and all expen-
ses where this can be accomplished without severely hurt-
ing our service." The memorandum then went on to in-
struct Carr, "You are to examine the number of
announcers, newsmen, script writers, traffic, etc. with a
view to retrenchment." Godofsky testified, however, that
he never gave Carr any specific instructions concerning
what persons were to be laid off. Godofsky agreed that his
next discussion with Carr at which the subject of layoffs
arose occurred on the day Carr came to him with
Feivelson's list of grievances. When Carr reached the sub-
ject of raises, Godofsky replied "Absolutely not, no raise
can be given at this time." It was at this point that Godof-
sky made a statement to the effect that the necessity for
laying people off was getting more urgent. However, ac-
cording to Godofsky, he issued no instructions concerning
specific layoffs, and only learned that Magliochetti had
been laid off on Monday, July 29, around 3 or 4 o'clock in
the afternoon. Godofsky emphasized that the selection of
personnel for layoff in this instance was entirely Carr's de-
cision.
Carr agreed that he was solely responsible for
Magliochetti's selection for layoff, within the broad in-
structions given him by Godofsky. He testified that follow-
ing his receipt of the July 10 memorandum he and Godof-
sky had only a general discussion about the need to save
money and that the staff was one of the things that had to
be seriously considered. However, Carr admitted that he
decided to cut the staff in the continuity department only
toward the end of July, more specifically on the weekend
of July 27 and 28, following the presentation of the list of
grievances on July 25. Thus, the timing of Carr's decision
to terminate Magliochetti together with the remarks made
by Carr and Godofsky to Hunter, Tricoukes, and Harris
strongly point to a discriminatory and unlawful purpose
behind Respondent's selection of Magliochetti as the per-
son to be laid off. There are other factors. As compared
with Feivelson, the only other employee in the department,
Magliochetti was the most experienced and senior employ-
ee. The record shows that she had performed the job of
copywriter prior to progressing to her final position of con-
tinuity director. Nevertheless, the Respondent chose to ter-
minate Magliochetti, whose salary was $160 per week, and
on July 30 employed a replacement, Marilyn Kraus, as
continuity director at a salary of $150 per week.16 Later
16 Feivelson's salary was $131 50 per week
WHLI RADIO 1545
when Kraus left, Magliochetti was not recalled and Kath-
erine Grundstein was hired. I find this course of action
inconsistent when considered in the light of Respondent's
insistence that it had no intention of eliminating Feivelson.
I am persuaded and find that under all these circumstances
the evidence clearly indicates that Carr seized upon
Godofsky's July 10 instructions, which alluded to layoffs,
as a pretext for ridding Respondent of Magliochetti be-
cause of her union and concerted activities, and in order to
make an example of her to the other employees who had
sought redress of their grievances. I further find, as con-
firmed by Carr's later conversation with Bonnie Lee Har-
ris, that Respondent also constructively discharged He-
laine Feivelson by giving her the ultimatum of having to
perform two jobs or leave. 17
I also find that Paul Godofsky's interviews with Daphne
Tricoukes and Peggy Hunter on Monday, July 29, in which
they were questioned about their feelings with respect to
concerted action in the context of frequent references by
Godofsky to the Union, constituted coercive interrogation
in violation of Section 8(a)(1) of the Act. I further find that
Godofsky's promise to review Tricoukes' salary constituted
an unlawful implied promise of benefit to persuade her to
abandon any union and concerted activity, also in viola-
tion of Section 8(a)(1). I do not find that Godofsky unlaw-
fully warned or directed employees to refrain from joining
AFTRA or from engaging in concerted activities since the
evidence concerning these conversations shows that no
warning or direction was given; nor do I find that
Godofsky's remarks about no longer being able to person-
ally present their problems to management rather than
through a union, if the group chose to join a union, fall
outside the protection of Section 8(c).
CONCLUSIONS OF LAW
1. By discharging Joanne Magliochetti and Helaine
Feivelson on July 29 in order to discourage their union and
concerted activities, the Respondent engaged in unfair la-
bor practices within the meaning of Section 8(a)(3) and (1)
of the Act.
2. By interrogating employees concerning their union
and concerted activities and by making implied promises
of benefit to them in order to discourage their further parti-
cipation in such activities, Respondent violated Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order that
Respondent cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of the
Act.
The Respondent having discriminatorily discharged
Joanne Magliochetti (Joanne Dougherty) and Helaine
Feivelson, I find it necessary to order the Respondent to
offer them full reinstatement with backpay computed on a
quarterly basis, plus interest at 6 percent per annum as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962), from date of discharge to date of proper offer of
reinstatement.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER11
The Respondent, F. M. Broadcasting Corp., Hemp-
stead, New York, its officers, agents, successors, and as-
signs, shall.
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating
against them with regard to the hire and tenure of their
employment or any other term or condition of employment
for engaging in union activity or concerted activity for
their mutual aid or protection, or in any like or related
manner interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed in Section 7 of the
Act.
(b) Coercively interrogating employees concerning their
sympathies or activities toward any labor organization or
toward concerted activity for their mutual aid or protec-
tion.
(c) Expressly or impliedly promising employees benefits
in order to dissuade them from engaging in union or con-
certed activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act-
(a) Offer Joanne Magliochetti (Joanne Dougherty) and
Helaine Feivelson immediate and full reinstatement to
their former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings, in the manner set
forth in "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Post at its principal office and place of business at
384 Clinton Street, Hempstead, New York, copies of the
17 This same Respondent has previously been found to have violated Sec
8(a)(1) of the Act by coercively interrogating employees with regard to their
union sympathies, offering job security and wage increases to employees in
order to induce them to abandon union representation by AFTRA and to
join in a decertification movement I find that this decision clearly estab-
lishes a background of union animus See F M Broadcasting Corp, 211
NLRB 560 (1974)
18 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
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached notice marked "Appendix " 19 Copies of the no- consecutive days thereafter, in conspicuous places, includ-
tice, on forms provided by the Regional Director for Re- ing all places where notices to employees are customarily
gion 29, after being signed by Respondent's authorized posted Reasonable steps shall be taken by Respondent to
representative, shall be posted by the Respondent immedi- insure that said notices are not altered, defaced, or covered
ately upon receipt thereof, and be maintained by it for 60 by any other material
(d) Notify the Regional Director for Region 29, in writ-
19 In the event that the Board Order is enforced by a Judgment of a ing, within 20 days from the date of this Order, what steps
United States Court of Appeals, the words in the notice reading Posted by
the Respondent has taken to comply herewithOrder of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of 3 The complaint is dismissed in all respects other than
the National Labor Relations Board those specifically found