WNJR Radio Co.

National Labor Relations Board - Board Decisions

Apr 28, 1977

229 N.L.R.B. 340 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Community Group for New Jersey Radio, Inc., Gilbert
Broadcasting Corp. and Venture III Corp., a
Partnership, d/b/a WNJR Radio Company and
Sound Radio, Inc., Fidelity Voices, Inc., and
Community Group for New Jersey Radio Inc., a
Joint Venture d/b/a 1430 Associates and Ameri-
can Federation of Television and Radio Artists,
AFL-CIO. Case 22-CA-6655
April 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On December 15, 1976, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dr), Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge:
This case was heard at Newark, New Jersey, on March 8,
1976 and March 29 and 30, 1976.1 It is based upon a charge
I The hearing was opened by Administrative Law Judge Charles
Schneider on March 8, 1976, and was adjourned by him without taking
evidence on the merits because of a defect in the service of the complaint
and notice of hearing on Respondent WNJR. The hearing on the merits was
conducted before me on March 29 and 30.
2 Hereinafter referred to as Respondent WNJR.
3 Hereinafter referred to as Respondent 1430 Associates.
At the hearing, counsel for Gilbert Broadcasting Company, after
229 NLRB No. 59
and amended charge filed respectively on October 20, 1975
and November 17, 1975, and a complaint dated January
26, 1976, alleging the violations of Section 8(a)(3) and (1) of
the Act by Respondent Community Group for New Jersey
Radio, Inc., Gilbert Broadcasting Corp. and Venture III
Corp., a Partnership, d/b/a WNJR Radio Company and
Sound Radio, Inc.2 and attributing to Respondent Fidelity
Voices, Inc., and Community Group for New Jersey
Radio, Inc., a Joint Venture d/b/a 1430 Associates3
responsibility for remedying the alleged unfair labor
practice as a successor-employer. Respondents' answers
respectively deny the merit of the substantive allegations of
the complaint.
All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce
relevant evidence, and to file briefs.4 Posthearing briefs
were received from counsel for the General Counsel and
counsel for 1430 Associates. 5
Upon the entire record in the case6 and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Respondent WNJR was engaged in the business of
operating a radio station in Union, New Jersey, herein
referred to as radio station WNJR, until October 31, 1975,
under a license granted to it in December 1971 by the
Federal Communications Commission (hereafter FCC) on
an interim basis pending disposition by the FCC as to the
grant of permanent authority. In the 12-month period
preceding October 31, 1975, a representative period,
Respondent WNJR had gross annual revenues in excess of
$100,000 and provided and performed radio broadcasting
services and related services valued in excess of $50,000 for
customers outside the State of New Jersey.
Since October 31, 1975, Respondent 1430 Associates has
operated WNJR in Union, New Jersey, under an interim
license granted to it by the FCC. In the course and conduct
of its operations since that time, it has had gross revenues,
projected on an annual basis, in excess of $100,000; and it
has provided broadcasting services and related services to
and for customers outside the State of New Jersey, valued
in excess of $50,000.
I find that the operations of each of the Respondents, in
connection with the operations of radio station WNJR,
affect commerce within the meaning of Section 2(6) and (7)
of the Act.
entering an appearance, withdrew from the case and stated that the interests
of Gilbert Broadcasting Company would be represented by Mr. Vogelman.
Later in the hearing, Mr. Vogelman withdrew and stated that the interests of
Respondent WNJR would be represented by Mr. Gerrard.
5 A letter received from Mr. Vogelman on May 10, 1976, states that
Respondent WNJR "will stand upon the brief submitted by 1430
Associates."
6 Errors in the transcript have been noted and corrected.
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WNJR RADIO COMPANY
II. THE LABOR ORGANIZATION INVOLVED AND ITS
HISTORY OF BARGAINING FOR THE EMPLOYEES HERE
INVOLVED
American Federation of Television and Radio Artists,
AFL-CIO, hereafter the Union, is a labor organization
within the meaning of the Act.
The Union is and for many years has been the exclusive
representative of station WNJR's announcers - about 9 to
II in number. During all times here relevant it had a
bargaining contract with Respondent WNJR covering the
announcing staff.7
III. THE ALLEGED DISCRIMINATORY DISCHARGE OF
JOHN FRASIER
Introduction-The nature of the issue and the
position of the parties
The violation issue posed in this case involves the motive
of Respondent WNJR in discharging John Frasier, an
announcer at the radio station who also served as the
Union job steward at times here relevant. He had been
employed at the radio station for about 5 years prior to his
discharge on June 9, 1975; and he had served as the Union
job steward during the last 2 years of his employment.
Respondent discharged him for alleged unsatisfactory
performance of his announcing tasks.8 The termination
decision was made by Station Manager Harvey Lynch
and/or Program Director Jeffrey Dixon.
In litigating the issue, General Counsel took the position
that Lynch and/or Dixon, both of whom were hired in
their managerial posts in late 1973, 9 disapproved of Frasier
because of his aggressive and diligent performance of his
union-supportive activities as a union steward, in general,
and his presentation of prounion testimony at a grievance-
arbitration hearing, in particular; that the discharge
decision was the outgrowth of that disapproval; and that it
was triggered by Respondent's receipt of information, just
prior to June 9, 1975, that the Union had won the
arbitration case at which Frasier had testified; and that
Respondent's assigned reasons for the discharge were
pretextual.
Respondent, in defense, claimed that it did not in fact
harbor any resentment against Frasier for any of his union-
supportive activities; that it had no knowledge at the time
it terminated Frasier, of the result of the arbitration
proceeding in which Frasier had testified; and that, in any
event, Frasier was discharged solely for valid cause -
unsatisfactory performance of his announcing tasks over
an extended period of time, brought to a head by Frasier's
poor performance, on the day before he was fired, and his
7 Following the takeover of the station by Respondent 1430 Associates,
the latter also entered into a contract with the Union covering the
announcing staff.
I In this portion of the decision the word "Respondent," when used, shall
refer to Respondent WNJR unless otherwise indicated.
9 Lynch was hired as station manager in October 1973 and Jeffrey Dixon
was designated by him as the program director in December 1973.
io Except for a few instances. I have not undertaken to identify the
evidentiary source of the facts I here narrate. Unless otherwise stated, the
"facts," as I relate them, appear in a composite of uncontested oral and
documentary evidence adduced through both sides' witnesses. Conflicting
infraction, on the same day, of a rule prohibiting the
broadcast of unauthorized material.
For the reasons set out below, I find that General
Counsel did not meet his burden of proving his case.
1. Facts respecting Frasier's union activity and
Respondent's alleged reaction thereto' 0
In his capacity as the union shop steward, Frasier policed
the terms of the bargaining agreement between Respon-
dent and the Union. As the contract did not authorize
Frasier to present or discuss grievances with manage-
ment," Frasier's normal practice was to report the
management actions about which he or other announcer
unit members felt aggrieved to the Union business agent,
Irving Lewis. Frasier felt free, however, to take minor
grievances (involving such matters as management's denial
of a time-off request) directly to management without
going through the Union agent, and when he did so,
management did not object.
During the period of Frasier's service as the union
steward, three of the employee complaints about adverse
actions were actually processed by the Union through the
contractual grievance procedure.
The first of the above three grievances the Union took up
involved a complaint about memoranda issued by Dixon,
at Lynch's direction, to several announcers (one of whom
was Frasier) on November 18, 1974. These memos
variously criticized the on-the-air performance of each of
four affected announcers and warned each that he was
being given a 2-week period to "improve." In reporting on
the employees' complaint, Frasier apparently told Lewis
that the memoranda had been preceded by a series of oral
and written highly critical and strongly worded comments
to announcers about job performance. For, in response,
Lewis sent Lynch a letter on November 26, 1974, stating
that he (Lewis) had been "advised by all of the staff
announcers . . . that they had been subjected to and are
being subjected to constant harassment by you and Jeff
Dixon with respect to their employment at the station."
The letter went on to state that the Union was not raising
"any objection to advice given to the announcers or
reminders given them" but that it was "raising" serious
objection to threats of any kind.'2 In response to this
grievance, management softened the tone of its subsequent
critical comments to announcers, and had some of them
issued as suggestions and offers of help by staff members
other than Dixon and Lynch. There is no evidence,
however, that any management agent mentioned the
grievance to Frasier or indicated in any way to any
announcer that Respondent resented the matter.'3
evidence on critical points at issue is, however, summarized together with
my resolutions of the conflicts.
II The contract specifically provided that the authority to process and
resolve employee grievances was vested in the Union business agent.
The grievance procedure contained two steps. The first step involved a
meeting between the Union and the Company in an attempt to settle the
matter amicably. In the event no amicable settlement was reached at that
stage. either party could then institute arbitration.
12 The letter to Lynch noted that a copy was sent to Program Director
Dixon and to Frasier.
i3 However, Rose Penner, sales manager for Respondent at times here
(Continued)
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The second formally grieved complaint involved the
discharge by Lynch, in June 1974, of three veteran
announcers. Lynch fired them because, in his opinion, they
did not satisfactorily meet the requirements of a "new"
type of programming and on-the-air format he had
instituted shortly after he became the radio station
manager.' 4
In grieving this matter, the Union claimed that Lynch
had violated the provisions of the bargaining contract
regulating permissible discharge action. These provisions
stated, in section 23(f) of the contract, that "otherwise
competent announcers" could not be terminated unless
Respondent had instituted a "substantial change of overall
program structure that was different from that existing at
the date the contract was executed," and the announcers
could not "satisfactorily meet" the new program structure
requirements. The Union took the position that Lynch's
changes in programming and format were not "substantial
changes" within the intended meaning of the contract. The
Company disagreed; and the Union then instituted
arbitration proceedings to resolve the issue of contractual
interpretation involved.
The arbitration panel did not meet to conduct the
hearings until January 30. Either shortly before or shortly
after the hearings were begun, Frasier lodged two new
complaints against management. One involved a complaint
about Program Director Dixon's having taped and aired a
broadcast of a program without an announcer being
present - a matter which appeared to be in violation of the
contract. Union Agent Lewis brought this to Lynch's
attention while the arbitration hearing was going on. The
grievance was settled when Lynch promised that he would
look into the matter and that it would not be repeated. The
other complaint involved the alleged failure by manage-
ment to pay Frasier extra or overtime compensation when
Frasier was serving as a member of a "music committee"
which, it appears, occasionally met after Frasier had
material, attributed certain statements of resentment to Lynch which the
latter denied. She testified, inter alia, that Lynch, in a number of
conversations he held with her in the fall of 1974, stated that he would like
to "get the Union out of WNJR ... because it would make him look good
in the eyes of the Board [of directors]"; and that, on a number of those
occasions, Lynch also indicated that he was "very unhappy" with Frasier,
and that he did not want "that kind of a shop steward because he [Frasier]
was too Union-oriented." Penner, however, did not impress me favorably by
her demeanor. And I detected in her a personal bias against Lynch due to
animosity engendered by Lynch's termination of her employment at the
radio station, which, together with other considerations of demeanor, caused
me to suspect the reliability of her versions of the here relevant
conversations she reportedly held with Lynch. In sum, I do not credit
Penner's testimony and place no reliance on it in determining the issues in
this case.
14 The record establishes that, late in 1973, Lynch instituted certain
changes he believed would help the station attract a larger share of the
primarily black or black-oriented segment of the public to which the station
catered. Inter alia, Lynch required announcer disc jockeys to play more
pretaped music with a "black rock" sound; to use less "talk" in introducing
their material, to play music under almost all of the "talk"; to "cluster"
announcements, and to use an "up-tempo" sound in presenting them, or
news broadcasts; to eliminate or put less emphasis on "personality"
gimmicks it had been announcers' practice to project. (For example, Frasier
in announcing one of his programs would use a "rooster" sound as a
personality gimmick.)
The critical comments given announcers thereafter all concerned failures
to deliver the material in accord with the format dictated by Lynch and/or
the standards he deemed appropriate.
completed his regularly scheduled announcing tasks.15
That complaint was apparently made to management by
Frasier himself, rather than through the Union and was
apparently settled to his satisfaction.16 His complaint,
however, resulted in management's removal of Frasier
from the music committee - action which neither he nor
the Union appears to have protested. For reasons hereafter
appearing, General Counsel, however, now claims that
Frasier's removal from the committee is part of the
circumstantial evidence supporting his case.
Frasier became directly involved in a major union-
sponsored grievance when he testified, on February 3,
1975, as a union witness at the arbitration hearing relating
to the earlier mentioned June discharge action taken in
June. In his testimony, Frasier took the position, contrary
to that of management witnesses, that the changes in
programming and format which Lynch had instituted had
not effected any material changes in preexisting program
structure; and that, in fact the station continued to have
the same type of programming as it had pre-Lynch, and
continued to play the same type of music.' 7 Among those
present when Frasier testified were Lynch, Dixon, and the
then station operations manager, one Charles Green.
There is no evidence that any of the three management
agents present at the arbitration hearing or any other
supervisor even made any comment about the testimony
Frasier gave at the hearing to any rank-and-file employee.
Management agents did, however, discuss the hearing's
course and Frasier's testimony among themselves immedi-
ately after the hearing. And there is plausible testimony by
former Operations Manager Charles Green,?8 which I
credit, that, during that discussion, Dixon said, inter alia,
that "since John Frasier did not know the difference
between what we had been doing as a format and we were
currently doing, then perhaps he should not be employed
at WNJR."
15 The "music committee" appears to have been set up to serve a joint
management-announcer interest in selecting and compiling a list of the
tapes or records suitable for airing by the announcers on their "shows"
giving due regard to the type of audience to which the station appealed and
the kind of "sound" that Lynch was seeking to project when he instituted
changes in format, etc. The announcers made their selections for their
particular programs from the committee list.
The committee was composed of three management agents, Lynch,
Dixon, and Herman Amis then music director, and three announcer disc
jockeys, Harry Williams, Jake Jordan, and John Frasier. Membership on
that committee on the part of rank-and-file announcers appears to have
been a voluntary matter, rather than a job requirement.
There is no evidence that any announcer other than Frasier made any
claim similar to Frasier's for "extra" compensation for committee-related
services.
iB There is no evidence that any formal union grievance resulted from
that complaint.
17 It was the apparent position of the management agents, in part, that
preexisting music selections which had been aired, were largely of a "rhythm
and blues" nature, whereas the music which Lynch wanted the disc jockeys
to emphasize was that having more of a "black rock" sound.
Is Green was not employed at the radio station when he appeared as a
witness. He had served as the operations manager until April 1975. He was
then demoted to a newsman-announcer post and was subsequently
discharged. Although I have some question as to his overall credibility on
the basis of demeanor factors, I am satisfied, on the basis of the record as a
whole, and the "inherent probabilities," that Dixon made a comment on
Frasier's testimony along the lines above quoted, and I have therefore
credited Green's testimony on that point.
342
WNJR RADIO COMPANY
On the day after the arbitration hearing at which Frasier
had testified, Frasier posted a notice on the bulletin board
stating, in part, that the arbitration hearing had been held
but that it would be some time before the results would be
known. The notice also stated that a "new year" of the
contract was beginning and that from then on, "all rules of
the contract would have to be abided to by the letter. All
extra hours such as music meetings, production time, etc.,
will be compensated for by the Company."19 The follow-
ing day - February 5 - Frasier received a memo from
Herman Amis, then the station's music director, advising
him that he was no longer on the music committee. And,
on the same evening, when a change in the announcers'
schedule appeared on the bulletin board it showed that
Frasier had been taken off the 7 p.m. to midnight shift and
placed on the midnight to 6 a.m. shift. That shift, according
to Frasier, was less desirable to him.
The final events which form part of the structure on
which General Counsel's case is built occurred some 3 to 4
months later. They are as follows:
The arbitration panel's written decision in the proceed-
ing in which Frasier had testified was signed on May 27,
1975. It sustained the Union's position partly on the basis
of Frasier's testimony and partly on other facts. Although
there is no evidence as to the exact date on which the panel
sent that decision to the parties, Union Agent Lewis gave
credible testimony indicating that Union counsel had
advised him (Lewis), shortly before June 6, that the Union
had won the case. Lewis further testified that on June 6 (a
Friday) he had a telephone conversation during which
Lewis asked Lynch whether he had heard the results of the
arbitration hearing. Lynch replied that he had not heard
anything and he asked Lewis what the results were. Lewis
told him that since he was not his attorney he did not think
he ought to respond to that, but that Lynch ought to speak
to his own attorney with respect to that matter.
Frasier gave his last "show" as announcer on Sunday,
June 8, 1975. He was fired the following day. Notice of the
termination decision was first phoned to Union Agent
Lewis by Steel Colony, then the assistant program director,
and by Dixon. About 11:30 a.m., Dixon and Colony told
Lewis, in effect, that Frasier was being fired because on the
preceding day he had added a "live tag" to the pro-
grammed "log" material 20 and had thereby violated a
"rule" prohibiting the broadcast of unauthorized material.
Later, about 2 p.m., Dixon telephoned Frasier (who was
then off duty and at home) and advised him of his
termination. Dixon also told Frasier that Frasier's unau-
thorized addition of the "live tag" for J. H. J. Productions
was the reason for his discharge. In the course of the
conversational exchange on the matter, Dixon apparently
conveyed to Frasier the impression that he (Dixon)
believed Frasier was still associated with that business
enterprise. Frasier responded that he had liquidated his
holdings in March 1975, and that he was unaware that he
had violated any station policy by adding the "live tag" as
he did.
19 The notice indicated, on its face, that a copy was given to Lynch and
to Union Agent Lewis.
20 The term "live tag," as used in the trade, connotes an announcer's
airing of material additional to and/or different than that the station "log"
Acting under the contract's grievance procedures, Lewis
set up a meeting with Dixon for Wednesday, June 11, and
brought Frasier with him. At that meeting, Dixon handed
Frasier the letter of termination set out below. And, in
response to Lewis' questions concerning the discharge,
Dixon told Lewis that he was firing Frasier primarily
because he did not like his announcing work; that Frasier's
broadcast of the "live tag" was an additional reason for the
termination; and that a further reason therefor was that an
economic cutback was to be made. The letter given to
Frasier said as follows:
June 9, 1975
Dear John,
I hereby notify you of the termination of your
employment with WNJR Radio Company, effective
June 9, 1975.
The reason for your dismissal is in accordance with
the provisions of subparagraph (f) of paragraph 23 in
schedule I of the Aftra-WNJR contract.
It is regrettable that I have to make this decision,
after exploring for over a year, all the avenues I knew
possible to help make your sound compatible with the
rest of the WNJR air sound. Unfortunately your
commercial production, on-air mechanics and delivery
do not satisfactorily meet the top notch performance
needed at this time. Let me also state that your adding
to the log and announcing a live tag for the JHJ spot on
8/6/75, as well as passing that instruction on to a junior
announcer can only be viewed as either irresponsible or
disrespectful of station rules. This is not only with
WNJR, but every radio station. An announcer cannot
arbitrarily add nor alter commercial copy in the studio
without proper approval. Its been only six months that
I relieved an announcer here for the same violation.
Notwithstanding these shortcomings, I wish you the
best of luck in your future endeavors and please don't
hesitate to call upon me if I can be helpful.
Yours truly,
Jeff Dixon
Program Director
2. The facts relating to Respondent's asserted
reasons for discharging Frasier
Frasier's overall performance as an employee
Throughout the period at WNJR, Frasier's assigned
work was of a type known in the trade as that of a "disc
jockey." While "on the air" he introduced and played
recorded music and taped commercials and made public
service announcements. He also did some "production" of
commercials-i.e., recording the commercials that he was
required to air. At all times here relevant, Lynch was
Frasier's ultimate or overall supervisor, and Dixon was his
immediate supervisor. Both regularly monitored his broad-
explicitly authorizes. The "log" programs each announcer's "show" by
dividing the total time allotted for this "show" into the minutes or seconds
required for ainng each part of the taped announcements and other
programmed material.
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
casts-as well as those of other staff announcers-as part
of their supervisory routine and, where dissatisfied,
expressed their dissatisfaction and their reasons either
orally or in written memos.
It is undisputed that, over the approximately 18-month
period beginning in January 1974, Lynch and Dixon had
talked to Frasier on numerous occasions about unsatisfac-
tory on-the-air performance and that their oral admoni-
tions were supplemented by a number of written memoran-
da addressed to Frasier either by Dixon or by other staff
members at Dixon's direction. The record contains a series
of five memos to Frasier, each of which criticizes Frasier's
on-the-air performance, points out the specific areas in
which his performance fell short, and suggests corrective
steps. These five memos are respectively dated in January
9, November 18, and early December 1974, and May
1975.21 In several of the oral or written admonitions, it
mentioned that Lynch has heard Frasier's "show" over the
weekend and that he was "totally dissatisfied" with
Frasier's presentation.2 2
On Sunday, June 8-the last day that Frasier performed
any announcing work-Frasier's assigned on-the-air tasks
included the playing of a taped commercial advertising a
live musical show produced by JHJ Productions-a firm
now owned by staff announcer Herman Amis and in which
Frasier, as well as Lynch and Dixon, had once had a
partnership interest.23 The copy on the tape had been
written by the station production staff from material
supplied by Amis; and it contained, among other things,
information describing the locations at which tickets could
be purchased. As some of those locations were not open on
Sundays, Amis telephoned Frasier at the studio and asked
him to correct the taped material by adding a statement
that tickets could be purchased only at the box office on
that day-a matter known in the trade as "adding a live
tag" to the programmed material set out in the station
"log." Frasier complied with Amis' request in the course of
his broadcast, and also noted the additional material on the
21 In the November 18. 1974, memo one similar to that given three
other announcers at the time Dixon told Lynch he had a 2-week
probationary period in which to improve. As earlier mentioned, the Union
grieved the threatening tone of those memos. One of the subsequent critical
memos issued to Frasier was written, at Dixon's direction, by Lia Afriat.
production director of the station, in December 1974; another. also at
Dixon's direction, in May 1975, by Steel Colony. a fellow announcer who
had been appointed assistant program director and who was designated as
the Union job steward after Frasier's discharge.
22 Dixon was put on a part-time on-the-air schedule in 1974 for an
undisclosed period of time. During that period, he was assigned other duties
to fill in the balance of his full-time schedule.
Frasier testified that this change in his duties occurred because he asked
Dixon to relieve him of his on-the-air duties, while Dixon testified that the
suggestion came from him and Frasier "agreed" with it. Frasier further
testified that he told Dixon he wanted to get off the air because he "had
something else that he was doing," but that his real reason-one
unexpressed to Dixon-was that he was "tired" of being constantly
"harassed" about his on-the-air performances and wanted "any excuse" to
get relief. Frasier admitted, however, that at or near the time of the above
events, he. Lynch, Dixon, and Amis had joined together as partners in a
business enterprise called JHJ Productions. That enterprise produced live
musical shows.
23 Frasier withdrew from the partnership arrangement in March 1975.
Lynch and Dixon apparently withdrew prior to that time.
24 Afriat had looked over the "log" in the course of her routine functions,
and found the discrepancy (i.e.. the "live tag) noted on it. She therefore
program "log" so that announcers who followed him would
also add it on when broadcasting Amis' commercial.
According to Lynch, he was informed of Frasier's "live
tag" addition on the following morning by Production
Director Lia Afriat.24 But, so he testified, he had already
considered firing Frasier because, on hearing Frasier's
weekend broadcasts, he found that Frasier's presentation
of his material continued to be "lousy" and felt that "we
had gone as far as we could go with this employee." He
called in Dixon to discuss the matter with him, and
according to their mutually corroborative testimony, both
men agreed that Frasier should no longer be retained.
Referring to the "live tag" incident, both men also agreed
that it was not a significant violation of the rules, but
rather, "frosting on the cake" as the incident had just
occurred, it should be stated to Frasier as "a" reason for
terminating him.25 Lynch further testified that, but for the
addition of the "live tag," the decision to terminate Frasier
would not have been implemented until the Friday
marking the end of the next pay period.
In further testimony, Dixon and Lynch both denied that
they bore any hostility to the Union, that they regarded
Frasier's performance of any of his union steward duties to
be objectionable, or that their mutual decision to fire
Frasier was influenced in any way by Frasier's appearance
as a union witness at the arbitration hearing or by the
content of his testimony. Finally, on the important point
concerning whether or not Lynch or any other manage-
ment agent who played a critical role in the events here in
issue was actually aware - at the time that Frasier was
discharged - that Respondent had lost the arbitration
case, Lynch testified that he did not know about the
adverse decision until June 12, when Respondent's counsel
advised him by letter and by phone on that day, that "at
long last, a decision from the arbitrator" had been received,
and that it was unfavorable. 26
telephoned Frasier at his home to inquire about the matter. Frasier
explained the circumstances to her and told her also that he had written the
pertinent information he should have put on a "discrepancy form" on a
plain sheet of paper as there were no discrepancy forms readily available for
him to fill out. Afriat told Frasier to use the forms next time. She then
reported the matter to Lynch.
25 Both maintained in their testimony, however, that, contrary to
Frasier's claim, it was well-known station "policy" - though admittedly of
unwritten character - that announcers were not to be permitted to add
"live tags" to programmed material contained on the "log" without
obtaining advance authorization from management. That claim, I find, is
independently supported by the testimony of Harry Amis who testified as a
witness for General Counsel. Amis admitted that additions of "live tags" are
regulated by FCC rules, and that "all announcers" are "usually familiar"
with the station's requirement that they cannot add "live tags" to
programmed material without permission from station personnel authorized
to give it. Although he also testified that, during the course of his 14 years as
an announcer, he had, on occasion, added live tags to programmed material
on weekends without being disciplined therefor - (there being no
management agent present at the station) he admitted, that he had not done
so since Lynch's designation as station manager; and that he had heard that,
some 6 months before, Lynch had discharged an announcer for adding a
"live tag" to his broadcast - albeit one much longer in length than that
Frasier had added.
26 The letter of Attorney Gerald Dickler, who represented Respondent at
the arbitration hearing, is in evidence as Resp. Exh. 6, and is dated June 12,
1975.
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WNJR RADIO COMPANY
Analysis and Conclusion
The question I am here called upon to decide is whether,
as General Counsel claims, Respondent's asserted reasons
for discharging Frasier - his repeated failure or inability
over an extended period of time to perform his on-the-air
announcer tasks in the manner dictated by Lynch,
followed by his turning in what was described by Lynch as
an unsatisfactory or "lousy" performance on the day
before he was discharged - were pretextual in character;
and that the real reasons were rooted in an unlawful design
- i.e., to "get rid" of Frasier because management found
his overall activities as a Union steward objectionable
and/or regarded his testimony at the arbitration hearing to
be erroneous or unjustified to the extent that it character-
ized as "insubstantial" the program and format changes
Lynch had instituted when he became the station manager.
The burden of establishing that claim and its essentials
rests of course on General Counsel. I am not persuaded
that he has met that burden on the facts that he has proved.
To begin with, General Counsel adduced no credible
evidence that any management agent who played a critical
role in the events here in issue was virulently hostile to
unions in general, and/or to the Union or any of its agents
in particular. Nor is there any suggestion that management
agents engaged in any consistent efforts to undermine the
enforcement of the bargaining contract's provisions or to
deliberately violate its terms. All grievable matters taken
up by the Union under the terms of the bargaining
agreement at times here relevant - but one - were
resolved to the Union's satisfaction at the first stage of the
grievance procedure. The single matter that was made the
subject of arbitration was plainly a dispute grounded in
good-faith belief, on the part of management, on the one
hand, that the contract authorized the action involved, and
on the part of the Union, on the other, that the contract did
not do so. Furthermore, General Counsel produced no
evidence at all that management had interfered with any
employee's exercise of his right to complain to the Union
or to Frasier about management actions, or that it sought
to deter the filing of such complaints. I must therefore
conclude, as a threshold matter, that Respondent harbored
no deep-seated hostility to the principles of collective
bargaining or to its employees' exercise of statutory
protected rights.
Nor do I find that General Counsel's postulate of a
"design" to punish Frasier for his "diligent" policing of the
contract and/or for his testimony at the arbitration hearing
derives support from the events known to Frasier which
occurred after the arbitration hearing - namely, those
depicting that Frasier was removed from the music
committee after asserting a contract right to get overtime
pay at about the same time that he appeared at the
arbitration hearing, and that he was also taken off the shift
he had been assigned to at that time and placed on another
shift he didn't like. The timing of both these events is
explainable on grounds independently of Frasier's con-
tract-policing activity. For, admittedly, Frasier had asked
for overtime pay for serving on the music committee
27 The economic considerations prompting that removal action were
affirmed both by the testimony of Amis -- a witness called by General
Counsel, and by the testimony of Dixon, testifying as Respondent's witness.
shortly before his removal, and his change of shift
concededly occurred as a result of Respondent's concur-
rent rescheduling of the shifts of all announcers in the
course of business routine. Furthermore, Respondent's
purpose in removing Frasier from the music committee was
proven to have an economic base - i.e., to avoid paying
wages for services it did not demand of Frasier as part of
his job, and which Frasier and other members of the
committee were free to reject; 27 and the removal action
was, moreover, taken in response to the indication given by
Frasier himself that he no longer wanted to serve on the
committee unless he got overtime pay.
The sole evidence I regard to be of significance to the
General Counsel's case is to be found in the proven facts
that: (a) management agents made comments after the
arbitration hearing, during a discussion among themselves,
which tend to indicate that they regarded the content of
Frasier's testimony at the arbitration hearing might justify
their looking for some reason to "get rid" of Frasier; (b) the
arbitrators' decision carries, as its signature date, May 27,
1975, and as its result was made known to union
representatives soon after, it is possible that it was also
made known to the Respondent's representatives and
conveyed by them to Lynch or Dixon before Frasier was
terminated. These facts, in short, would seem, as a prima
facie matter, at least, to give rise to an inference that the
decision to discharge Frasier was influenced by, or was
rooted in, resentment of Frasier's protected activity in
testifying at the arbitration hearing to the effect that the
radio station's program format post-Lynch was substantial-
ly the same as it had been pre-Lynch. But, close as the
question may appear to be, I am not persuaded that this
evidence is of sufficient strength to overcome the force of
countervailing evidence adduced by the Respondent which
argues for a conclusion that there was no connection
between Respondent's displeasure with, or disapproval of,
Frasier's testimony at the arbitration hearing and its
decision to discharge Frasier, as it did. For I was persuaded
that Lynch was telling the truth when he testified that he
had no knowledge until June 12 about how the arbitration
panel had decided the dispute the parties had presented to
it; that he had monitored Frasier's weekend broadcasts
and found them "lousy"; and that he had decided to
terminate Frasier because, despite repeated management
efforts over the prior 18 month period to help Frasier to
meet the standards of on-the-air delivery Lynch had
established, Frasier's performance had consistently fallen
short of satisfying those standards, and had fallen short
again on the weekend of June 8. 1 base this critical
credibility finding partly on the basis of the impression
Lynch made upon me as I observed him on the stand-that
he was trying earnestly to tell the truth; and partly on the
fact that much of his significant oral testimony was
inherently plausible and that it was moreover consistent
with and affirmed by documentary evidence that: (a)
information about the arbitration decision was not trans-
mitted to Lynch by the Respondent's counsel until June
12; (b) Frasier had been repeatedly taken to task for
turning in an unsatisfactory on-the-air performance on
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
numerous occasions over the 18 month period preceding
his discharge, but that, on each occasion, he would again
turn in another poor performance; and (c) he was not the
only announcer whose performance had been criticized
and, so far as appears from the record, there is no evidence
that management's evaluation of his abilities or his
performance was based on standards different from those
on which other announcers were evaluated and which they
were expected to meet. I note, also, that the last critical
memo addressed to Frasier about his performance was
dated in May 1975, and that there is no evidence that
Frasier in fact turned in a satisfactory performance on the
weekend of June 8 when measured by the preestablished
standards of quality management had set. And, finally, I
cannot wholly discount the fact that there was a hiatus of
several months between the date on which Frasier testified
at the arbitration hearing and displeased Respondent,
accordingly, and the date of his discharge.
It may well be that Lynch's standards of acceptable
announcer performance were higher than those maintained
or demanded by prior management. But it is not for me to
judge whether or not his standards were too high, or
whether his supervisory criticism was too harsh. The only
27 For obvious reasons, I need not and do not therefore undertake to
resolve the merits of disputed claims as to the "successor" status of
Respondent 1430 Associates and its liability for the conduct engaged in by
Respondent WNJR.
28 In the event no exceptions are filed as provided by Sec. 102.46 of the
issue before me is whether or not his and his subordinate
supervisors' evaluations of Frasier as an employee were
based on discriminatory considerations and whether the
discharge action was prompted by antiunion or otherwise
unlawful motives. I cannot, on this record, hold with
General Counsel on those questions.
In sum, on the entire record of this case, I conclude that
General Counsel has not successfully carried the burden of
proving by a fair preponderance of credible evidence that
Respondent's asserted reasons for discharging Frasier were
pretextual and that the real reasons were in fact rooted in
unlawful considerations. Accordingly, and as the only
alleged violation of the complaint concerns the discharge
of Frasier, I shall recommend that the complaint be
dismissed in its entirety.27
Upon all of the foregoing findings and conclusions, and
the record as a whole, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 28
It is hereby ordered that the complaint herein be
dismissed in its entirety.
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.
346