WXGI, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 2000

330 N.L.R.B. 695 (N.L.R.B. 2000)

WXGI, INC. 695
WXGI, Inc. and its successor Gee Communications,
Inc. and United Food and Commercial Workers
International Union, Local 400, AFL–CIO,
CLC. Case 5–CA–27367
February 29, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On August 25, 1999, Administrative Law Judge Tho-
mas R. Wilks issued the attached decision. The Respon-
dents filed exceptions and a supporting brief, the Charg-
ing Party filed cross-exceptions and a supporting brief,
the General Counsel and the Charging Party filed an-
swering briefs, and the Respondents filed reply briefs to
both the General Counsel and the Charging Party.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended Order as
modified and set forth in full below.
The judge found that WXGI General Manager David
Gee discharged the four discriminatees on September 30,
1997, in violation of Section 8(a)(3) and (1). In support
of this conclusion, the judge noted that a written
“counter-proposal” which Gee gave to John Trimble, the
station’s prospective sales manager, 15 days earlier and
prior to any union activity, indicated that Gee intended to
demote three of the four discriminatees—Steve Giles,
Wiley Southworth, and Mark Matthews—and all the
radio station’s other on-air personalities from their full-
time positions on September 30, but to retain them on
on-call or part-time status.2 On this basis, the judge rec-
ommended that Giles, Southworth, and Matthews be
reinstated only to the on-call or part-time status they
would allegedly have held as of September 30.

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, the Respondents contend
in their exceptions that some of the judge’s findings and conclusions
demonstrate bias and prejudice. On careful examination of the judge’s
decision and the entire record, we are satisfied that such contentions are
without merit.
2 In addition to the evidence cited by the judge, we note that Gee and
Trimble—who had previously urged Gee to discharge all the station’s
current on-air personalities—not only discussed, but jointly signed
Gee’s “counter-proposal” on September 15, indicating their agreement
on its terms. This written agreement, though not necessarily final,
further supports the judge’s finding that Gee did not decide to discharge
the discriminatees until he later learned that they had engaged in pro-
tected activity. We also note that Gee undisputedly told Matthews that
he could reapply for employment. Matthews’ written notice of dis-
missal encouraged him to “reflect” over his recent “behavior and re-
marks” and “reapply” after 30 days “if interested.” However, Gee
testified that he told Matthews at the time of his discharge that if he,
Gee, determined that certain allegations of personal misconduct against
Matthews (unrelated to protected activity) were untrue, Matthews could
reapply after 30 days. It would have made no sense to force Matthews
to wait an arbitrary period of 30 days after his discharge, and then
affirmatively “reapply,” if the only condition for his reemployment was
Gee’s own determination that Matthews was innocent of the alleged
misconduct (which might well have taken Gee less than 30 days). The
illogic of Gee’s version of what he told Matthews further supports the
judge’s findings that Matthews was discharged because of his support
for the Union, and that he was told, in essence, that he might be reem-
ployed if he agreed to cease his union activity.
As asserted in the Charging Party’s cross-exceptions,
however, the record does not show that similar demo-
tions projected in Gee’s September 15 document were
actually implemented with respect to the other on-air
personalities on or after September 30 who were also
included in that document. In fact, there are indications
that at least two on-air personalities—Thomas Williams
and David Holt—did not have their work hours reduced.3
Because we cannot determine from the record whether
the discriminatees would have retained employment on a
full-time or less-than-full-time basis if they had not been
unlawfully discharged, we will defer this issue to the
compliance stage, along with the related issue of appro-
priate back pay, and we will modify the judge’s recom-
mended Order to that effect.4
ORDER
The Respondents, WXGI, Inc., Richmond, Virginia,
and its successor Gee Communications, Inc., Richmond,
Virginia their officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Discharging employees and/or telling employees
that they are discharged because of their actual or sus-
pected activities or because of the actual or suspected
activities of other employees on behalf of the United
Food and Commercial Workers International Union, Lo-
cal 400, AFL–CIO, CLC.

In view of other evidence of employer knowledge and antiunion
animus supporting the judge’s findings of 8(a)(3) discrimination,
Member Hurtgen finds it unnecessary to rely on the judge’s inference
that references in the discriminatees’ discharge letters to “dedication,
loyalty, and commitment to a cause” necessarily referred to their union
activities.
3 In this respect, we read the judge’s statement that Gee’s testimony
concerning his “decision” to reduce employment levels “must be cred-
ited and not dismissed as a concocted defense,” as a finding only that
such prospective reduction of employment was indeed under close
consideration in mid-September, as confirmed by Gee’s September 15
document, and was not a fabrication by the Respondents. As noted
above, it is not clear that the September 15 agreement between Gee and
Trimble was in fact implemented on or after September 30, and there
was insufficient evidence for the judge to make a finding on that issue.
Such a finding will affect the appropriate remedy in this proceeding.
4 The judge inadvertently omitted Respondent WXGI from his rec-
ommended Order. We have accordingly also modified the Order to
include WXGI as a respondent.
330 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
(b) Coercively interrogating employees concerning
their own and other employees’ union activities and
about the subject of unfair labor practice proceedings.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Bobby Overman a/k/a Bobby Shannon full reinstatement
to his former position of senior account executive, and
offer to Steve Giles, Wiley Southworth, and Mark M.
Matthews full reinstatement to the positions that they
would have held or been offered on or about October 1,
1997 had it not been for their discharge for union activi-
ties or, if those positions no longer exist, reinstatement to
substantially equivalent positions, without prejudice to
their seniority or other rights or privileges previously
enjoyed.
(b) Within 14 days from the date of this Order, make
Bobby Overman a/k/a Bobby Shannon, Steve Giles,
Wiley Southworth, and Mark M. Matthews whole for
any loss of earnings and other benefits, computed on a
quarterly basis from the date of discharge to the date of
proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful discharges
of Bobby Overman a/k/a Bobby Shannon, Steve Giles,
Wiley Southworth, and Mark M. Matthews, and within 3
days thereafter notify them in writing that this has been
done and that the discharges will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pqy due under the terms of this order.
(e) Within 14 days after service by the Region, post at
their facility in Richmond, Virginia, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
5, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not al-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondents have gone out of business or closed the
facility involved in these proceedings, the Respondents
shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees
employed by the Respondents at any time since Septem-
ber 30, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on forms provided by the Region at-
testing to the steps that the Respondents have taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT discharge employees and/or tell employ-
ees that they are discharged because of their actual or
suspected activities or because of the actual or suspected
activities of other employees on behalf of the United
Food and Commercial Workers International Union, Lo-
cal 400, AFL–CIO, CLC.
WE WILL NOT coercively interrogate our employees
concerning their own and other employees’ union activi-
ties and about the subject of unfair labor practice pro-
ceedings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Bobby Overman a/k/a Bobby Shannon full
reinstatement to his former position of senior account
executive, and offer to Steve Giles, Wiley Southworth,
and Mark M. Matthews full reinstatement to the posi-
tions that they would have held or been offered on or
about October 1, 1997 had it not been for their discharge
for union activities or, if those positions no longer exist,
reinstatement to substantially equivalent positions, with-
out prejudice to their seniority or other rights or privi-
leges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, jointly and severally make Bobby Overman a/k/a
Bobby Shannon, Steve Giles, Wiley Southworth, and
Mark M. Matthews whole for any loss of earnings and
other benefits, computed on a quarterly basis from the
date of discharge to the date of proper offer of reinstate-
ment, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
WXGI, INC. 697
ful discharges of Bobby Overman a/k/a Bobby Shannon,
Steve Giles, Wiley Southworth, and Mark M. Matthews,
and WE WILL notify them in writing within 3 days there-
after that this has been done and that the discharges will
not be used against them in any way.

WXGI, INC., AND ITS SUCCESSOR, GEE
COMMUNICATIONS, INC.

Steven L. Sokolow, Esq., for the General Counsel.
Thomas H. Roberts, Esq. (Thomas H. Roberts & Associates,
P.C.), of Richmond, Virginia, for the Respondent.
Jeffrey D. Lewis, Esq., of Landover, Maryland, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The trial of
this matter was held before me on April 20, 21, 22, and 23,
1998, in Richmond, Virginia. The unfair labor practice charge
was filed on October 21, 1997, by United Food and Commer-
cial Workers International Union, Local 400, AFL–CIO, CLC,
here the Charging Party or the Union, against WXGI, Inc. (the
Respondent WXGI or WXGI). On December 18, 1997, the
Union filed an amended charge against Respondent WXGI and
its alleged successor, Gee Communications, Inc. On December
23, 1997, the Regional Director for Region 5 issued a com-
plaint against the Respondents which alleged as violations of
Section 8(a)(1) and (3) the September 30, 1997 discharge by
Respondent WXGI’s agent and general manager, David Gee, of
its on-the-air radio announcer personalities, Steve Giles, Wiley
Southworth, Mark Matthews, and its sales account executive,
Bobby Overman a/k/a Bobby Shannon, because of their actual
and/or suspected organizing activity on behalf of the Union,
which allegedly commenced about 5 days earlier and was made
manifest by September 29, 1997.
The complaint, as issued, also alleges that Respondent
WXGI, by its president and owner, Jay D. Keatley, violated
Section 8(a)(1) of the Act at Keatley’s home on September 30,
1997, by telling a terminated employee that the employees were
terminated because they were “attempting to form a union.”
The complaint also alleges that the Respondent violated Section
8(a)(1) and (3) of the Act by its agent Gee’s statement to em-
ployees at the remote broadcast from the Virginia State Fair on
September 30, 1997, that they were terminated because they
were “attempting to form a union” and by Gee’s conduct on the
same date of creating the impression among the Respondent’s
employees that their union activities were under surveillance by
Respondent WXGI.
At trial, the complaint was amended on the record to allege
that the Respondent, by its attorney and agent, violated Section
8(a)(1) of the Act on April 17, 1998, by interrogating employ-
ees regarding their union activities and sympathies “without
giving the warnings and assurances required by Johnnie’s Poul-
try, 146 NLRB 77 (1964), enf. denied on other grounds 344
F.2d 617 (8th Cir. 1965).”
The complaint also alleges in paragraph 4, as follows:

4. (a) On or about October 17, 1997, Respondent Gee
purchased the assets of Respondent WXGI and since then
has continued to operate the business of Respondent
WXGI in basically unchanged form and has employed as a
majority of its employees individuals who were previously
employees of Respondent WXGI.
(b) Respondent Gee was put on notice of Respondent
WXGI’s potential liability for its unfair labor practices
through David Gee, who served as General Manager of
Respondent WXGI and is President of Respondent Gee.
(c) Based on the conduct and operations described
above in paragraphs 4(a) and (b) Respondent Gee has con-
tinued the employing entity with notice of Respondent
WXGI’s potential liability to remedy its unfair labor prac-
tices, and is a successor to Respondent WXGI.

The Respondents timely filed a joint answer wherein the
commission of unfair labor practices was denied and also the
allegations of paragraph 4.
At the trial, the parties were given full opportunity to adduce
relevant testimonial and documentary evidence and to argue
orally. They were also afforded opportunity to submit posttrial
briefs. The General Counsel, the Charging Party, and the Re-
spondent filed briefs of 95, 58, and 37 pages, respectively. The
Respondent’s and the Charging Party’s briefs were received at
the Division of Judges on July 8, 1998. The counsel for the
Acting General Counsel’s brief, which was mailed on July 7,
1998, was received there on July 9, 1998. The due date for
filling of briefs had been extended to July 8, 1998.1
Based on the entire record, the briefs, and my observation
and evaluation of the witnesses’ demeanor, I make the follow-
ing findings.
I. THE BUSINESS OF THE RESPONDENTS
At all material times prior to October 17, 1997, Respondent
WXGI, a Virginia corporation with an office and place of busi-
ness in Richmond, Virginia, has been engaged in the business
of operating a radio station that advertises goods sold nationally
and subscribes to national wire services. During 1996, Re-
spondent WXGI, in conducting its business operations de-
scribed above, derived gross revenues in excess of $100,000.
During the same period of time, Respondent WXGI purchased
services valued in excess of $5000 from other enterprises such
as Bell Atlantic and State Farm Insurance, such enterprises
being directly engaged in interstate commerce.
I find that at all material times prior to October 17, 1997, Re-
spondent WXGI has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
At all times since October 17, 1997, Respondent Gee, a Vir-
ginia corporation with an office and place of business in Rich-
mond, Virginia, has been engaged in the business of operating a
radio station that advertises goods sold nationally and sub-

1 On July 14, 1998, the Respondent filed a motion to strike the
Charging Party’s brief as having been untimely filed. That motion is
denied as nonmeritorious, as argued in the response briefs of the Acting
General Counsel and the Charging Party and as is evident by the plain
language in Board Rules Sec. 102.114.
On July 13, 1998, the Acting General Counsel filed a Motion to
Strike Portions of the Respondent’s Brief as unsupported by record
citation. The Respondent filed an opposition motion on July 20, 1998.
Item one of the Acting General Counsel’s motion is denied for lack of
merit. Item two, I find is meritorious. Accordingly, the Respondent’s
reference in its brief to alleged “dishonest oppressive, and unfair” con-
duct by counsel for the Acting General Counsel during the trial and
during private off-the-record discussions between counsel before and
during the trial unwitnessed by the court, at pp. 30–31 of the brief, are
hereby stricken as inappropriate and improper.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
scribes to national wire services. Based on a projection of its
operations since October 17, 1997, at which time Respondent
Gee commenced its operations described above, Respondent
Gee will annually derives gross revenues in excess of $100,000.
During the same period of time, Respondent Gee will purchase
services valued in excess of $5000 from other enterprises such
as Bell Atlantic, such enterprises being directly engaged in
interstate commerce.
I find that at all material times since October 17, 1999, Re-
spondent Gee has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
I find that at all material times, the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
In the fall of 1997, Jay D. Keatley agreed to sell his country
music radio station to David Gee. Subsequently, Keatley alleg-
edly attempted to withdraw from the sales agreement. Gee
sued for enforcement. Under a settlement agreement prior to
final sale, Gee became general manager, thereby demoting
Bobby Overman a/k/a Bobby Shannon from the position of
general manager to that of senior account executive (sales).
Overman was also a sometime on-the-air personality and coun-
try music performer under the name of Bobby Shannon, by
which name he is predominantly referred to in the record and
hereafter in this Decision. The three remaining alleged dis-
criminatees were employed at the time as the station’s prime
time (morning through late afternoon) on-air personalities, i.e.,
announcers and commentators of recorded country music
played by them on the air and selected from a station library
maintained by Shannon. These three employees were admit-
tedly recognized by David Gee as a close-knit, cohesive group
or clique, referred to by both him and one of his sale litigation
attorneys as “the four.” Gee furthermore recognized Shannon
as the leader of the group and in his testimony characterized
Shannon as the “catalyst” of his “problems” with the other
members of the group of four.
During the fall of 1997, the group of four found themselves
positioned, they felt adversely, in a power struggle between
Keatley and Gee for ownership of the station. David Gee in-
tended to make certain changes in station operation and pro-
gramming format. He also planned to rehire a prior manager
who had been fired by Keatley, John Trimble, whom the group
of four despised as a “tyrant and dictator” and who also alleg-
edly wanted to discharge three of the group of four.
As the bitter Keatley-Gee power struggle came to a close,
three of the four admittedly feared that their jobs were in jeop-
ardy and two of them approached a union, they claimed, for the
purposes of employment protection. The Union they ap-
proached was not the American Federation of Television and
Radio Artists, to which some other station employees had be-
longed in days past, but rather the Charging Party which ironi-
cally happened to be the station’s largest account, i.e., 10 per-
cent of all its sales, and also happened to have been the account
solicited and serviced, at its request, by Shannon.
The discharge of the four was virtually coincidental with the
formal transition of ownership of the station, Trimble’s return
to power, and the embryonic beginnings of union organizing
activity, primarily by Giles with some limited support and dis-
cussion with Matthews and Shannon, the latter two of whom
signed representation union cards. Southworth testified that he
did not have the opportunity to sign a card or engage in union
activities. The theory is that he was discharged, like Shannon,
because of their group identification and suspected sympathy
and support for the Union.
Knowledge of Giles’ and Matthews’ union activity is prem-
ised upon an alleged admission verbally uttered to Matthews by
Gee in the discharge interview at the Virginia State Fair’s re-
mote broadcast site, which allegedly had been witnessed by two
of the Union’s representatives who were on duty at the union
display booth which was the broadcast site. Gee denied it.
Knowledge is also premised upon an alleged comment by
Keatley to Shannon after the discharge interview to the effect
that Gee, with whom he was then feuding and estranged from,
had known of their union organizing efforts of which, ironi-
cally, Shannon had little participation. Keatley subsequently
died, and there were no other witnesses to the alleged conversa-
tion. Keatley’s status as agent is thus an issue as well as the
probative value of Shannon’s uncorroborated testimony.
Knowledge is further premised upon inference from Giles’ and
Matthews’ open solicitation and wearing of union-legended
buttons and placing of union stickers on their vehicle bumpers
hours before the discharge, as well as timing.
In addition to Trimble’s demands for the elimination of or
restriction on the employment of three of the four, Gee testified
to a variety of incidents on which he premised the discharges.
The Acting General Counsel referred to more than 20 such
defenses, many of which he argues were given in shifting, con-
tradictory, and inconsistent testimony of Gee and in Respon-
dent’s pretrial position statement which was augmented by Gee
who also testified as an adverse witness and a Respondent wit-
ness.
The main issues then are: Were the four, some of whom
admittedly feared imminent discharge upon the acquisition of
the station ownership by Gee and restoration to power of Trim-
ble, actually discharged in consequence of that power struggle
and a multiplicity of other reasons testified to by Gee, or were
those discharges motivated by some of the fours’ last-minute,
incipient organization for the Union, the station’s largest and
most important client? Subsidiary issues are the agency of
Trimble and the probative value of the alleged admission to
Shannon in Shannon’s testimony; the credibility of Matthews
regarding Gee’s alleged admission to him in front of two union
representatives, and the successorship status of the Respondent
Gee with respect to remedial liability for the unfair labor prac-
tices of Respondent WXGI. The final issue is the alleged
Johnnie’s Poultry motivation.
With respect to credibility, there are problems with witnesses
on either side of the issues that make the decision in this matter
very close. For reasons set forth below, I find that the dis-
charges were unlawful.
B. Facts—Discharges and Related Issues
1. Background
In October 1996, David Gee, the future president of Gee
Communications, Inc., began negotiations to purchase the
WXGI-AM 950 radio station located in Richmond, Virginia,
from its owner, J. D. Keatley. Keatley vacillated over whether
to sell the station until March 1997, when he signed a purchase
agreement with Gee. However, after signing the agreement,
Keatley allegedly tried to rescind the agreement, and a lawsuit
WXGI, INC. 699
was filed by Gee to enforce the agreement. A settlement was
reached between Gee and Keatley on June 17, 1997, pending a
final litigation resolution. As part of that settlement, Gee was
hired by WXGI, Inc. as the general manager until October 17,
1997, when Respondent Gee acquired ownership. It is Gee’s
unrebutted testimony that Keatley personally introduced Gee to
the assembled staff at the station as their general manager and
that they were to cease following Keatley’s directions.
Keatley remained the owner of WXGI and its licensee under
the Federal Communications Commission regulations until
October 17, 1997. As such, he retained the sole authority to
sign the paychecks of the employees. He prepared the payroll
and issued the paychecks from his home, not the radio station.
During the period of Gee’s general management of Respon-
dent WXGI until the finalization of the sale, Gee and Keatley
developed an antagonistic relationship which ultimately, ac-
cording to Gee, led to a court order on September 29, 1997, that
barred Keatley from the station. Thus, even after the June 17
settlement agreement, the struggle persisted. Gee described it
as a “stop and go” situation in which Keatley again vacillated
with respect to consummating the sale. Their relationship be-
came increasingly adversarial and led to a public shouting
match between them in the lobby of the station on September
15, 1997. It was so loud that Giles heard them from within his
office where he joined Southworth in observing the spectacle.
Keatley accused Gee of “crooked behavior” in their dealings
and called him “one slick, bastard.” Gee retorted that he was
only holding Keatley to his word. Keatley called Gee a crook.
Gee induced all four of them to move from the lobby to an
inner office where a loud, emotional argument ensued between
Keatley and Gee which included Keatley’s criticism of Gee’s
station management. Gee testified that he did not speak to
Keatley thereafter until October 16, 1997.
Shannon testified that during the post-September 7 settle-
ment pending litigation, both Keatley and Gee characterized the
pending litigation in conversation with him as a “battle” and
that he, Shannon, heard rumors that Keatley had threatened to
blow up the station and that Gee had succeeded in obtaining a
court order barring Keatley from visiting the station. Shannon
admitted that he had his “ups and downs” with Keatley involv-
ing episodes of Keatley’s criticisms of his work and behavior
and Keatley’s attempted evasion of commissions owed Shan-
non. However, Shannon testified that he hated to see Keatley
“lose his station” to Gee. He characterized Gee’s efforts to
acquire the station from Keatley as an “illegal transaction.”
Yet, Shannon testified that Keatley was “dishonest where I was
concerned.”
Thus, Keatley and Gee’s adversarial relationship was an
open matter to the group of four, if not all the employees.
John Trimble had been previously employed by Respondent
WXGI as a general manager. Giles characterized him as a
“tyrant and dictator.” Giles conveyed that opinion to his co-
workers at the station and later directly to Gee. Southworth
also considered Trimble to be a “total tyrant and dictator.”
Southworth testified that on three unspecified occasions prior to
any announcement of Trimble’s reemployment by WXGI, he
engaged in conversations with Gee wherein Gee questioned
him as to Trimble’s managerial abilities, congeniality, and em-
ployee rapport during his previous tenure at WXGI. When
Southworth replied “in the negative,” Gee seemed perplexed
and asked for an explanation.
Southworth testified:

I told him [Gee] that it hurt me to say this but that John
Trimble had turned into, in my words, a total tyrant and
dictator, you could not—he had no managerial experience
prior to coming to WXGI. I am the one who brought him
and affiliated him with WXGI. It had come back to haunt
me and to serve as a major source of embarrassment for
me because he had been just a total tyrant and dictator. He
had not accomplished goals, nor had he achieved success;
and, in the end, I found three days after the fact that he
was going to fire me on one particular day as soon as I got
off the air. And Mr. Keatley had come in the door while
the conversation was taking place to that effect between
John Trimble and David Holt, had intervened in that con-
versation and [Keatley] had given him [Trimble] his walk-
ing papers, as the saying goes, instead.
. . . Trimble was fired for trying to fire me.2

Southworth also testified that he characterized Trimble to
Gee as a “terror” to work with but that he never told Gee he
would not work for Trimble.
Trimble testified that he was employed as WXGI general
manager from 1994 to 1996. His termination date is not speci-
fied. Giles had been employed by WXGI since 1989. South-
worth testified he was hired on March 4, 1996. Matthews, a
much younger, inexperienced person, was hired on some date
in January 1996. Shannon’s first employment with WXGI
started in 1989 and ended in 1992. He returned in May 1997 as
general manager. It is not clear whether Shannon was hired
immediately upon Trimble’s termination. The extent to which
Matthews was exposed to Trimble’s authority is not clear.
Further, Southworth’s testimony suggests that he was employed
at WXGI before Trimble, but this is inconsistent with Trimble’s
testimony which dates his hiring as 1994, 2 years before
Southworth testified that he was hired. I conclude that the tran-
script contains an inadvertent error.
Trimble testified that immediately prior to his return to
WXGI in October 1997, he had been employed at a radio sta-
tion in Williamsburg, Virginia—WPTG—for 8 months. He
testified that about that time Gee had contacted him about the
possibility of returning to WXGI as an operations manager but
that he declined in deference to his new employers who were
his personal friends. He told Gee that he wanted to see what he
could do at WPTG and then he would talk later to Gee about
working at WXGI. According to Trimble, Gee kept in frequent
telephone communication with him wherein he solicited Trim-
ble’s advice. In cross-examination, Trimble testified that his
WPTG employers and he agreed upon his termination prior to
his subsequent hiring by Gee. He testified that his sales solici-
tation deficiencies there were due to the fact that he could not
sell himself better than he could “sell other people.” Trimble
testified that WPTG agreed to keep him on its payroll up until
he actively started employment at WXGI.
Gee and Trimble met on September 1, 1997, at a fast food
restaurant pursuant to Trimble’s earlier inquiry as to whether
the WXGI job offer was still open and Gee’s affirmative re-
sponse. Pursuant to Gee’s prior request, Trimble presented Gee
with a typewritten nine-page document entitled “John Trim-

2 Trimble did not explicitly contradict Southworth but testified that
Keatley forced him to resign “under duress.” He explained that Keatley
constantly threatened to cut his salary and he, therefore, resigned by
walking out. He denied that he was discharged because of his person-
nel decisions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
ble’s Operating Proposal for WXGI Radio.” It proposed that
all current on-air personalities and control board operators be
given notice of job termination on September 15, 1997, with a
termination date of September 30, 1997, with the exception of
Don Price and Phillip Ricker. It further conditioned that all
new air personalities and board operators will be on the payroll
October 1, 1997. The document referred to a new program
format, the selection of all music by Trimble, the use of music
charts, a new station identification announcement, the manning
of program shifts, Trimble’s compensation, special program-
ming, remote broadcasts, etc. It also provided that Trimble
would have the authority to select all air personalities, board
operators, and sales employees and that he set sales goals and
budgets, etc. The agreement was premised upon Gee’s reten-
tion of his position as the station’s general manager. Trimble’s
position title was to be “sales manager.”
Gee’s testimony reveals that he recoiled emotionally from
Trimble’s discharge demand. Gee testified:

Again Mr. Trimble without question is a good soul but my
feeling of Mr. Trimble is he does have somewhat of a harsh
hard edge on him, . . . I tried to give him my best thoughts
back.

Gee testified that he attempted to “lobby” Trimble for the re-
tention of some employees. He testified that he resisted the
total discharge of 10-year veteran air personality and sales rep-
resentative David Holt. He also testified that he argued for the
retention of Matthews for an overnight shift or full-time week-
end employment.
Trimble and Gee testified that they had discussed all the em-
ployees either on September 1 or in several telephone conversa-
tions that led up to that meeting. Trimble testified that he had
given Gee his opinion that he did not approve of Giles because
of Giles’ alleged lack of sales experience and sales ability.
This is a curious objection in light of Trimble’s own admitted
sales deficiencies. Holt also testified that he himself also
lacked ability and desire for sales solicitations. According to
Trimble, Gee had agreed to terminate Giles. Trimble, however,
testified that he made the same sales experience deficiency
argument with respect to Southworth and insisted that an an-
nouncer must also have radio experience and ability. Gee testi-
fied that Trimble complained that Southworth would not follow
his orders. However, Gee testified that as of September 5,
1997, he decided that Southworth should be retained in some
unspecified part-time position. Trimble testified that each of
the group of four was discussed at the September 1 meeting.
Trimble, however, testified that he had not been exposed to
Shannon’s work performance and had little to say about him in
any event because it was Trimble’s understanding that he was
being hired to supervise the air personalities and would have no
control over Shannon. Gee testified that as of early September,
he intended to retain Shannon. Trimble testified that he insisted
upon the replacement of Giles and Southworth but ultimately
agreed to the placement of Matthews on an overnight satellite
program feed or weekend on-air work.
Gee testified that he decided in early September to accom-
modate Trimble and to bring in a new replacement for Giles
who did not possess full professional skills, i.e., sales skills, in
which both Trimble and Holt were deficient. However, Gee
testified that although he considered Giles to be “passive” in his
work, he was “working hard at it” and would, therefore, be
retained for casual or part-time work.
On September 9, 1997, Gee posted a cryptic announcement
on the bulletin board maintained by Shannon in his station of-
fice. It invited the employees to welcome Trimble to the staff
as sales representative and another sales representative, Carl
Warren. When Giles discovered it, he summoned Shannon and
Southworth into the room where they discussed it. Giles testi-
fied that he then proceeded out to the lobby and stated to the
receptionist, Fran Davis, that he had some errands to run and
that he had to provide transportation for another employee and
would leave the station “for the time being.” He also told her
that he just read something that he did not like and did not
agree with and that he was not “very happy.” He told her that
he would be back but “casually” stated to her, “I have enjoyed
working with you” and “I’ll see you later in a few hours.” In
cross-examination, he admitted telling her, “I do not know how
much longer I will be around, or what have you. I was kidding
with her . . . in a rather humorous manner.” He admitted, how-
ever, that his remarks and demeanor, despite the supposed hu-
mor, caused her to ask, “Well, what’s wrong?” He testified that
he told her that he would not go into it but that, “I’m sure you’ll
hear about it . . . down the road.”
Gee testified that Davis reported to him that Giles and
Southworth had exhibited a strong reaction to the notice, that
Giles apparently had resigned and left the station, and that
Southworth had stated that he would not work for Trimble. She
recommended that Gee should be prepared to have replace-
ments for them the next day. Gee’s pretrial affidavit had Davis
saying nothing about Southworth.3 As a subsequent Respon-
dent witness, Gee modified his testimony to incorporate some
of Giles’ admissions, which Gee listened to at the counsel table,
and, thereafter, he did not incorporate the Southworth statement
although Gee claimed that Southworth reportedly walked out
with Giles. Gee also testified that Davis had reported that
Shannon was the cause of some sort of unspecified dissension
among the staff. Gee described Davis as one of three persons
who reported to him the divisive activities of the group of four.
Gee testified also that Holt and Clellan Jarrell also reported
back to him activities of some of the group of four. Thus, Gee
admitted to having been aware of conduct by any of the group
of four that tended to cause “dissension” and, by implication,
any extraordinary activities by them.
Gee testified that on some unspecified date soon after the
September 9 posting, Southworth told him that he would not
work with Trimble. Southworth denied ever making such a
categorical statement. However, telling an employer that you
would consider working for a prospective manager you call a
tyrant and dictator as a “terror” comes very close to it.
On September 15, Gee presented Trimble with a two-page,
single spaced, typed response to Trimble’s September 1 pro-
posal wherein Gee generally accepted Trimble’s proposed op-
erating plan with the following exception.

Not to terminate present employees but, as under Paragraph 1,
the present personalities will be informed that they are to be
used as “on call” only, per John Trimble’s request. David Holt
and Mark Matthews will be asked to take some regular sched-
ule, but likely some week-end work.

3 At one point, Gee claimed Davis called the reaction “violent.” At
another point, there is no reference by Gee to Davis calling anyone
“violent.”
WXGI, INC. 701
There is no testimony that Gee ever informed Trimble that
he had retracted this proviso.
Gee testified that he decided to discharge Southworth from
employment in any capacity sometime between September 15
and 26 because of Southworth’s expressed hostility to Trimble,
his participation in the group of “four” at the Shooters restau-
rant on September 21, 1997 (to be discussed more fully hereaf-
ter), reported to him by telephone by strangers but never inves-
tigated by him or confronted with the group of four, and reports
from “a few loyal employees” that Southworth was part of
“Shannon’s team” which supported Keatley.
Gee testified that he changed his mind about retaining Giles
in some capacity after hearing the uninvestigated report of re-
ceptionist Davis, who was not called to corroborate his testi-
mony, and after failing to confront either Giles or Southworth
about the incident. Gee testified at one point that he decided to
terminate Giles at the time of his conversation with Davis but
that he would implement it at the end of the next 2-week pay
period, i.e., September 30 when Trimble’s new on-air staff
would commence their duties. This testimony contradicts his
unrescinded proposal to Trimble of September 15, 1997.
Clearly, all conduct by Giles and Southworth on or before Sep-
tember 15 would have been condoned or tolerated to the extent
that Gee proposed and argued for their retention in some em-
ployment capacity despite Trimble’s alleged demands. When
asked for any other reasons for the Giles discharge, Gee named
the Shooters incident of September 21 which, of course, oc-
curred after the date he said he already made the discharge
decision. Gee also referred to the September 15 confrontation
with Keatley at which he found as “mildly objectionable” some
comments of Giles which are so innocuous as to deserve no
comment herein and were in any event concurrent with the
September 15 proposal to Trimble. Without specificity, Gee
described Giles as continuously trying to “drive a wedge” and
aiding and abetting Keatley’s litigation position.
On September 21, 1997, a restaurant-bar named “Shooters”
hosted a reunion of a traditional, “old time,” country music
performers charity event. Although the restaurant was a client
of WXGI, the station was not a sponsor of the event. However,
Giles, Southworth, Matthews, and Shannon were present.
Giles, Shannon, and Southworth served as masters of ceremo-
nies.
Gee testified that he received telephone reports from two
nonemployees of unknown status to the effect that the four had
urged the Shooters customers to write the station and to com-
plain about planned changes in the station’s music format and
to demand the status quo. Gee testified that he confronted
Shannon with these accusations but that Shannon merely
shrugged it off, admitting that he did so but that Gee should not
be concerned.
When testifying regarding Matthews’ discharge, Gee de-
scribed the Shooters incident as a “rebellion.” When asked
whether he confronted Matthews about it, Gee evaded the ques-
tion by answering that at the time he had been having conversa-
tions with Matthews about his continued employment with
Trimble’s supervision. Gee failed to testify that he confronted
Southworth and Giles about the incident.
The testimony of the four alleged discriminatees generally
attempted to characterize their various comments to the Shoot-
ers audience over the public address system as a mere solicita-
tion of both favorable and unfavorable criticism without refer-
ence to a predetermined prospective change in format.4
In cross-examination, however, Shannon testified that he
heard Southworth announce to the public that there would be
changes implemented in the music format by the station. In
fact, after October 1997, Shannon admitted that there was a
“big change” away from the manner in which the station identi-
fies itself, i.e., away from a legendary country music format.
Shannon further admitted that at Shooters, Southworth may
have solicited the audience to write letters to WXGI manage-
ment protesting their support of the status quo. Clearly, such
conduct is not conducive to a carefully timed and crafted ma-
nipulation of musical listening habits of a radio station’s audi-
ence. Arguably, it consisted of concerted activity concerning
their working conditions.
Despite Gee’s characterization of these remarks as a “rebel-
lion,” it did not cause him to cease his discussions with Mat-
thews about continued employment or to withdraw the offer he
testified that he made to Matthews of such employment. In-
deed, with respect to Matthews, he considered his Shooters’
suspected participation to be merely a “disappointment” and
that the light was still “green” for Matthew’s retention until
subsequent events of September 26 and 29. Clearly, his initial
characterization of the incident as a “rebellion” was grossly
exaggerated.
Matthews did not rebut Gee’s testimony with respect to con-
versations between the two of them on or about September 21
wherein Gee solicited Matthews’ attitude toward Trimble’s
prospective supervision of him and Matthews’ retention of
employment in another less-than-regular weekday, full-time
capacity, i.e., the midnight shift. Matthews conceded that Gee
had asked him about Trimble’s prospective assumption of au-
thority over Matthews and, on September 15, discussed planned
changes at the station and that he, Matthews, replied that he
liked Trimble but that he “would not care to work for him.”
Accordingly, Gee’s testimony with respect to a preunion activ-
ity decision to reduce the employment level of Matthews, Giles,
and Southworth and to replace them with new regular announc-
ers as demanded by Trimble must be credited and not dismissed
as a concocted defense.
Matthews testified that the group of “four” socialized and
rode to work together and that they all discussed and expressed
among themselves disapproval of Trimble’s return to the sta-
tion, which by now they admittedly suspected was to be a posi-
tion of managerial authority. Furthermore, at the Shooters
event, Southworth disclosed not only their awareness of
changes to come with but also their antipathy to those changes
by prematurely disclosing the plan to the public to arouse pub-
lic opposition to Trimble’s plan, at least regarding the music
format.
Southworth testified:

. . . it is my suspicion and suspicion only based on no evi-
dence, that Mr. Gee viewed Bobby Shannon, Mark Matthews,
Steve Giles and myself as a clique who were working in col-
lusion to uproot him or his—he envisions some type of con-
spiracy to oppose his ownership to the station . . . . 5

4 Matthews had no recollection whatsoever as to what anyone stated.
5 Southworth also speculated that somehow Gee learned of the union
activity and associated Southworth with those activities and that also
motivated his discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
Southworth’s testimony completely substantiates the accuracy
of Gee’s state of mind regardless of the truth of the suspicion.
Gee’s testimony as to his perception of the “four’s” motivation
thus takes on an enhanced credibility.
2. Union activity
The evidence clearly demonstrates that some members of the
group of four had concluded by September 24, 1997, that their
jobs were in jeopardy. Giles testified that he had concluded
that his remaining days at WXGI were to come to a close soon
with his discharge because Gee “had stated to enough people”
within 15 days of his discharge that he was making changes and
was rehiring Trimble. Giles testified:

So we had reason to believe that we would be terminated.

As was his custom, he moderated that statement by testifying
that he expected some of the employees, but not all, would be
terminated. He testified that on September 15, the employees
discussed this proposal and every staff member, including
Shannon, expected Trimble to acquire authority over them. In
their discussions, Southworth expressed his expectation of dis-
charge. Giles further testified that he and Southworth were the
only two employees “that were greatly concerned that we were
to be terminated.” He further testified that he did not “foresee”
the discharge of Shannon, the chief source of solicited station
sales. As a basis for these conclusions, Giles cited a change in
“atmosphere” starting on September 1 and increasing thereaf-
ter, the rehiring of Trimble, and the expressed opinion of every
staff member, including Shannon and Matthews, that his au-
thority would be expanded beyond that of a mere sales repre-
sentative.
Giles testified that Shannon expressed fear that Trimble
would disrupt the harmonious relationship built up when Shan-
non was the general manager.
Giles testified that he had thought that Matthews was liable
to be discharged but then he had heard through the “rumor
mill” that Matthews had been offered another position.
Thus, on September 24, 1997, 2 days before the opening of
the Virginia State Fair at which WXGI was to operate a remote
broadcast from the booth of its chief advertising client—the
Union—the first contact with the Union was made. Shannon
had solicited the Union’s account and the Union had made it
clear to Gee that it wanted its account serviced by Shannon, to
the extent that it would increase its business with the station
significantly. Gee testified that he was not altogether pleased to
place Shannon in charge of the account, which for a time was
Holt’s and which Holt admittedly considered an onerous and
unsatisfying duty. Gee testified that he explained to Holt that
the station was “desperate” for the Union’s promised increase
in commissions. Gee testified that he could not resist the Un-
ion’s offer and in the first part of September, he accepted and,
by implication, decided upon Shannon’s continued employment
and thereby implicitly condoned a variety of alleged preexisting
complaints he testified he had placed in Shannon’s personnel
file.
Matthews testified that on Wednesday morning, September
24, Shannon introduced Matthews to Union Representative
Paul Evans at a breakfast meeting in the dining room of a
nearby motel. Also present were Union Business Agent Willie
Snow and another person simply identified as Gregg. Mat-
thews testified that at the meeting he and Shannon were given
“a card” with which they did nothing at the time. Matthews
testified that he probably threw his card in the back seat of his
automobile and “left it for a couple of days” until on an uniden-
tified date he signed, dated, and returned it to Evans. Matthews
testified that he also picked up a union bumper sticker from the
Union’s Fair booth. He testified that he placed the sticker on
his car bumper on an unspecified date and drove to work there-
after with that car on at least three unspecified occasions. He
testified that on an unspecified occasion or occasions he talked
to three or four other control room employees “about the Un-
ion.” He gave no details and identified no one. He failed to
testify what he said or who else, if anyone, was present.
Giles testified that he made contact with Union Representa-
tive Evans at the union booth at the Fair on September 24.
According to Giles, Evans, upon being approached by Giles,
told him that Shannon and Matthews had already talked to him
that morning about the prospective change in station ownership,
the ongoing litigation, and “about the concerns that they had for
the well being of the employees and job security for those em-
ployees.” Giles testified that Evans stated that “he had sug-
gested to them that we seek affiliation with the UFCW Local
400 as a means of helping to protect our job security and also to
further our interest on the job if we retained our positions.” In
cross-examination, he testified that Evans stated “that there
could be that possibility that we would be protected in the sense
that action could be taken that would prevent us from being
fired . . . .”
Giles testified that during his conversation with Evans, he
received from him cards to be filled out by coworkers for the
purpose of “expressing interest in [the Union] and affiliation.”
He testified that Evans also provided him with union bumper
stickers and “some buttons” at that meeting. Matthews was
silent as to the buttons. Giles testified that on an unspecified
date he signed one of those cards and thereafter spoke “about
the cards” to approximately eight or “perhaps nine” unidenti-
fied persons employed at the station from September 24
through Sunday, September 28, at unspecified locations. He
did not testify what he said to them or what they said in re-
sponse. He testified that seven unidentified employees re-
turned signed cards to him.
Curiously, Matthews failed to corroborate Giles’ hearsay tes-
timony as to what was discussed at the alleged September 24
breakfast meeting between Shannon, Evans, Snow, and the
unknown Gregg. Evans testified only in rebuttal to another
issue and did not corroborate Matthews or Giles as to Septem-
ber 24 conversations. Snow testified as to a conversation be-
tween Matthews and Gee on September 30 but did not corrobo-
rate Matthews as to September 24 events. The unidentified
Gregg did not testify.
Shannon not only failed to corroborate Matthews and Giles’
hearsay account as to the events of September 24 but also con-
tradicted Matthews as to how and from whom he received a
union card and with whom he discussed the Union. He testified
that he did not personally engage in any discussions about the
Union with “people” “other than [about] the card” which he
received from Giles at the station at an undisclosed location on
an undisclosed date when they were alone. He testified to no
other union activities:

. . . I signed a card that I would like to hear about it, you
know, a hearing, or whatever you call it. A meeting.
Shannon did not testify where he signed the card or
what he did with it. It is dated September 24 but he is un-
sure of its accuracy. Thus, his own testimony hardly de-
WXGI, INC. 703
scribes his activity as at the enthusiastic forefront as sug-
gested by Giles’ testimony.

Southworth testified that he first heard of the Union on an
unnamed date when Giles entered the station control room and
urged him to sign a card that “indicated that would allow the
Union to come and display its wares, so to speak, before us.”
Thus, he, like Shannon, did not understand that the signing of a
“card,” whatever it stated, either effectuated union membership
or the authorization of union representation.6
Apparently Southworth was not even interested enough to
hear the Union describe its function because he never signed
the card which he considered to be a mere invitation to do so.
Southworth testified that he was discharged before he had any
opportunity to engage in union activities. If this is literally
accurate, he would have been fired before Giles proffered him
the card because that in itself is such opportunity. He testified
that he believed he had been discharged because of Gee’s
power struggle conspiracy suspicion and because Gee had
learned that . . . we were interested in hearing the Union’s mes-
sage . . . Thus, from what Southworth had been aware, the only
palpable union activities were an inchoate attempt to learn more
about union representation. The Respondent’s witness, Holt,
testified that he had observed no union-related activity in the
station by anyone.
The General Counsel argues that Gee, however, suspected
more of an organizing campaign threat had developed than
even Southworth had been aware. Neither Matthews, Shannon,
nor Southworth corroborated Giles’ testimony that he openly
solicited as many as nine station employees to sign cards, of
whom about seven allegedly did so. That group of nine proba-
bly included Shannon as well as Southworth. Thus, seven other
unnamed employees are alleged to have been solicited to sup-
port the Union in what the General Counsel and the Union ar-
gue to be in an open manner in a small, easily observable area.7
The opacity of Giles direct examination about his card solici-
tation cleared up a bit in cross-examination when he was de-
manded by the Respondent’s counsel to disclose what evidence
he had of Gee’s knowledge of his union activities. Giles oblig-
ingly testified that his unspecified conversations with unidenti-
fied employees on unspecified dates and locations in the station
were done openly and overheard on an unspecified number of
occasions by unidentified persons who “were close to David
Gee that would have the wherewithal [sic] to tell him about it.”
He was not asked to expand and clarify this testimony in redi-
rect examination. No foundation or context was given for this
speculative conclusion. However, there was no motion to strike
it. Giles also testified that when he approached his coworkers,
he did not caution them that anything was secret or to be with-
held from Gee.
Giles testified in direct examination that he did not utilize the
bumper sticker until Monday, September 29, when he also wore
the union button. He failed to testify whether or not he had
worn the union button before that date. Shannon, Matthews,

6 Only Shannon’s card was proffered into evidence. It contains the
usual authorization for representation by the Union. Shannon appar-
ently was not interested enough to read what it actually and clearly
stated.
7 Employee Thomas Williams testified in regard to the Johnnie’s
Poultry issue. He testified that he signed a union card but did not tes-
tify where, when, or for whom. He understood the purpose was simply
to obtain information.
and Southworth failed to testify as to any display of union ma-
terials by Giles. The yellow, black, and red printed sticker
stated, “Union, Yes.” The buttons stated, “By American Shop
Union.” Giles testified that he personally never before placed a
radio station client’s advertising on his person or vehicle in the
past. There is no evidence that anyone else ever did so at the
station. Giles testified that he saw the union bumper sticker on
Matthews’ vehicle on September 30 and possibly before that
date, but he could not recall with any certainty. Giles worked
the 5 to 10 a.m. broadcast shift. Matthews worked the 2 to 6
p.m. shift. Southworth worked the intervening 10 to 2 p.m.
shift.
3. Concurrent significant events
In both examinations, as an adverse witness and the Respon-
dent’s witness, Gee testified that three incidents led to the dis-
charge of Matthews. One was the Shooters incident described
above. Gee testified that the second occurred on September 26
and involved a State Fair report incident and the third was a
report he received on September 29 regarding alleged harboring
of underage boys by Matthews at a shed or storage facility be-
hind the station. Gee testified that the light was still “green” for
Matthews’ employment retention after the Shooter incident but
started turning to “red” after the State Fair incident and finally
turned completely red for nonretention with the report of Sep-
tember 29.
Gee testified that at the State Fair broadcast booth on Friday
night, September 16, announcer Clellan Jarrell, radio evening
staff broadcaster, reported to him an alleged statement by State
Fair official D. Harmon to the effect that Matthews had in-
formed Harmon that Keatley had discovered a loophole in the
station sales contract whereby Gee would not obtain ownership.
Gee testified that later in the evening at the broadcast booth,
Harmon confirmed Jarrell’s report. Gee testified that he was
“disappointed” at this “public disclosure” and “disturbed.”
Neither Harmon nor Jarrell testified. Matthews worked the 2
p.m. to 6 p.m. broadcast shift and had departed. Gee made no
attempt to confront Matthews either in person or by telephone
regarding Harmon’s report. There is no explanation as to what
“loophole” Matthews might have alluded. Thus, as of Septem-
ber 29, Matthews had engaged in alleged behavior that merely
disappointed Gee but which did not motivate Gee to discharge
him.
Gee testified that he was in court on Monday, September 29,
awaiting the opening of the hearing with Holt who was sched-
uled to testify. Gee testified that prior to the hearing, Holt ap-
proached him and told him he was worried because the station
had a serious problem inasmuch as he had received a telephone
call from a woman in the community. Gee testified that Holt
described the woman as “disturbed” and quoted her as alleging
that her 11 or 12-year old son and another neighbor boy had
been harbored at the storage shed behind the station for 4 or 5
days and provided food, clothing, and drugs by an individual
called “Cowboy,” which is Matthews’ air personality name.
Gee testified that Holt had misplaced her name and telephone
number and it took a few days to find it. This would appear to
be a curious lack of diligence by a person who considered the
report so alarming that he intercepted Gee who was busy pre-
paring for trial. The reference to “Cowboy” was not in Gee’s
pretrial affidavit.
Holt testified that he indeed received such telephone call at
the station and reported it to Gee in the courthouse hallway.
However, according to Holt, there was no reference to a “Cow-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
boy.” Rather, the woman asked if the station employed a
“Mark,” to which Holt responded “Yes, Mark Matthews.”
Upon Holt’s disclosure, the woman merely stated, “I guess.”
She did not explicitly tell him that Mark did the harboring or
that an announcer was involved. Holt testified that he promised
to investigate by looking for discarded clothes in the storage
shed and that she gave him her telephone number and name
which he wrote down and placed on his desk. He testified that
he did indeed misplace it and that he did not locate it until 1 or
2 days later at which time he gave it to Gee. He was uncertain
whether he gave it to Gee before or after the discharge. He did
not identify her to Gee when he made his report. Holt failed to
testify whether he ever searched the shed.
Despite the discrepancies in the testimony of Gee and Holt, I
must credit them that there had been a report whereby reason-
able suspicion could be raised that she implicated an employee
named “Mark” in the incident in some vague capacity, although
not necessarily for responsibility. I do so because Giles grudg-
ingly admitted that prior to the discharge, he himself had re-
ceived a telephone call at the station from a woman who told
him that she was concerned that WXGI “would become, in
some manner involved” in “a controversy” concerning irregu-
larities with underage boys and that she “mentioned” the name
of Mark Matthews.
Gee testified that during the immediate predischarge period
of time on unspecified dates, he had received reports from re-
ceptionist Fran Davis regarding Shannon, with whom she had
an “adversarial relationship.” Gee testified that she had re-
ported to him that Shannon was “aggravating” the “tremendous
friction in house.” No details were provided of the nature of
the “aggravating” and the “friction.” Thus, this testimony was
given within the context of the Davis report to Gee of the Sep-
tember 9 reaction of Giles and Southworth to the Trimble an-
nouncement. Gee testified that as of early September, he had
decided to retain Shannon’s employment but that at some un-
specified point between then and September 30, he changed his
mind.
4. The discharges
On Monday “evening,” September 29, Giles testified that he
parked his vehicle in the station parking lot. He testified that
Don Price, the station announcer on duty at that time, was pre-
sent as well as another unidentified person. No other details
were provided. Giles testified that he next drove his vehicle to
the station at 4:45 a.m. Tuesday, September 30, and parked in
the front part of the lot nearest the building and the entrance
sidewalk. No one was present. He recalled seeing Matthews’
car parked in the lot also bearing the union bumper sticker.
Giles testified that Gee customarily visited the station only 2
days a week but that he encountered him there that day at 8
a.m. in the control room where they had a conversation regard-
ing maintenance of a certain piece of recording play-back
equipment for about 10 minutes. Giles testified that during that
conversation he wore the union button with the legend printed
on it, “Buy American, Shop Union, UFCW Local 400.” It is
not clear how large this button is, where he wore it, or how
visible it was. Clearly, it did not refer to union representation
or membership.
Giles testified that after his shift ended at 10 a.m., he re-
turned to his desk to sort some musical recordings for storage
when Gee approached and summoned him to his office. There,
according to Giles, Gee told him that he had written him a
complimentary letter. Giles read the letter which notified him
of his termination effective with that shift. The letter stated:

I have decided to embark upon a new format change at
the station that I feel is contrary to your preference. Con-
current with the desire of change, and your stated strong
objection and reaction to the station’s decision to em-
ployee John Trimble, I am terminating your present “work
shift” assignment as presently enjoyed. The last shift of-
fered shall be that shift of September 30, 1997.
I am impressed and recognize your effort at executing
your assignments during past 8-12 week! I feel you have
given WXGI service above and beyond any reasonable
expectation of an employer. Accordingly, it shall be my
recommendation that the station offers you other opportu-
nities at a time that might suit an agreeably mutual sched-
ule.
You are to be commended for your dedication, loyalty
and commitment to a cause I know you feel very strongly
about. I wish you the very best with your new endeavors
and hope that your feelings of disappointment might be
tempered to allow us to work together in the future.

Giles testified that they discussed the letter’s contents and that
Gee stated that he felt it was necessary to make staff changes
and that since Giles was a member of a team hired and directed
by Keatley, he would be replaced by a member of Gee’s newly
hired team. Giles testified that he told Gee that based upon
statements Gee had made to him earlier, he had been expecting
the termination but that he was “intrigued” because he was
aware that Gee intended to retain certain employees previously
hired by Keatley.8 Giles told Gee he was making a mistake and
the conversation ended except for some inconsequential discus-
sion.
Southworth, as was his routine, was to replace Giles for the
10 a.m. broadcast shift after a 5-minute newscast. At about
10:10 a.m., Giles approached him, stating that Gee had just
presented him with a letter of termination and stating, “I can’t
believe it, he’s fired me.” This is a curious response in light of
Giles’ own testimony that he was expecting to be discharged
based upon earlier conversations with Gee. According to
Southworth, Gee poked his head into the room and asked to see
Southworth. The latter responded that he was presently on the
air and it would be difficult to do so. He also stated to Gee, “I
imagine you have a letter for me of termination; if that’s the
case, then bring it on in . . .” Gee then invited Holt into the
room to replace Giles on the air. Southworth received his letter
of termination and departed without further discussion.
Clearly, the discharge was no surprise to him. The letter stated:

Based upon your strong objection and reaction to the
station’s decision to employee John Trimble I am termi-
nating your present “work shift” assignment as presently
enjoyed.
The last shift offered shall be that shift of September
30, 1977.
I feel you have given WXGI service above and beyond
any reasonable expectation of an employer. Accordingly,
it shall be my recommendation that the station offers you

8 Certain employees like Jarrell and Holt were retained. However,
there is no evidence that they openly denounced Trimble as a tyrant and
dictator.
WXGI, INC. 705
other opportunities at a later time that might suit an
agreeably mutual schedule.
You are to be commended for your dedication, loyalty
and commitment to a cause I know you fell very strongly
about.

Neither Southworth nor Giles disputed with Gee the contents
of their termination letters. Giles and Southworth did not ask
and Gee did not explain to them just to what “cause” he consid-
ered them to be so dedicated. Perhaps they did not ask because
they understood the “cause” to be their opposition to Trimble’s
restoration to power, i.e., Gee’s suspected power struggle con-
spiracy. As the General Counsel argues, it could also refer to
their union organizing activities of which Southworth, however,
displayed very negligible, if any, commitment. Finally, the
“cause” could simply mean Giles’ and Southworth’s commit-
ment to an unchanged, traditional country music format. How-
ever, if Gee’s reference to a cause meant a nonunion-related
cause, he would reasonably be expected to testify so. He did
not. The Respondent has thus left the meaning of Gee’s termi-
nation language open to adverse inference.9
As was his practice, Matthews arrived at the State Fair’s re-
mote broadcast location in the Union’s display and information
booth about 15 or 20 minutes prior to his scheduled 2 p.m.
broadcast shift. He telephoned the station to inform them that
he had arrived and was ready to broadcast, but he was informed
that Gee was en route to the broadcast site and that Matthews
was to wait for him. Matthews testified that Gee arrived and
approached him “in a very pleasant atmosphere” at the broad-
cast table and suggested to him that they retreat to another more
private location whey they could sit and have a soda. Accord-
ing to Matthews, Union Representatives Tom Rogers and Wil-
lie Snow were present with Matthews when Gee arrived. Mat-
thews testified that he rejected Gee’s invitation on the grounds
that he was about to commence his broadcast. In the presence
of those union representatives in the union booth, Gee told
Matthews that he was disheartened because Matthews had lied
to and deceived him, had kept things from him, and that he had
understood from “other reliable sources” and the “testimony”
of other “folks” that he, Southworth, and Giles had come to-
gether to “form a union.” Matthews testified that Gee contin-
ued on to say that he was disappointed in them, that there were
to be some changes, that they were not playing on his team, and
that “until such matters were to be resolved,” Matthews’ posi-
tion as an announcer for WXGI “was over.” Gee then purport-
edly added that if Matthews should reconsider his position in
the next 30 days, he would be welcome to “come to WXGI and
sit down with him and discuss that at that time about future
employment.” Gee shook Matthews’ hand and left. According
to Matthews, Gee said nothing about the alleged harboring of
boys at the station or about any kind of investigation.
Matthews’ testimony did not refer to the receipt of a termina-
tion letter. However, on September 30, Gee had prepared a
termination letter-memorandum addressed to Matthews, which
stated:

I have decided to embark upon a new format change at
the station that I feel is contrary to your preference. Con-
current with the desire of change, and your stated strong

9 As discussed below, the same language was used in Matthews’ let-
ter. There is little evidence of Gee’s perception of Matthews as a
strong opponent of Trimble or a staunch defender of the old music
format, except for the Shooters’ incident.
objection and reaction to the station’s decision to em-
ployee John Trimble, I am terminating your present “work
shift” assignment as presently enjoyed. The last shift of-
fered shall be that shift of September 30, 1997.
I am impressed and recognize your effort at executing
your assignments during past 8-12 week! I feel you have
given WXGI service above and beyond any reasonable
expectation of an employer. Accordingly, it shall be my
recommendation that the station offers you other opportu-
nities at a time that might suit an agreeably mutual sched-
ule.
You are to be commended for your dedication, loyalty
and commitment to a cause I know you feel very strongly
about. I wish you the very best with your new endeavors
and hope that your feelings of disappointment might be
tempered to allow us to work together in the future.
This termination for you is contrary to my stated desire
to offer you continuos [sic] employment. The decision to
terminate your employment comes with recent information
of your behavior and remarks! I encourage you to reflect
over the next 30 days and if interested, reapply to WXGI.

Tom Rogers has been a member of the board of directors of
the Union since 1991. What this amounts to is that he attends
the monthly directors meeting. Otherwise, he is employed full-
time at a supermarket. He testified that he was present in the
union booth at the Fair during the conversation and was stand-
ing 2 to 3 feet to the right of Matthews and Gee with Willie
Snow, a coworker, to his left. Rogers testified that Gee told
Matthews “that he had deceived him by not letting him know
he signed up with the Union” and that he had already dis-
charged Giles and Southworth and that he was not a team
player [and] if he could be on the right team, he could reapply
for his job in 30 days and he might consider rehiring him.
Thus, Rogers’ more shortened version of the incriminating
admission refers to Matthews’ “signing up” for the Union but
not the multiple “forming” of the Union with Giles and South-
worth. Notably, both versions exclude reference to Shannon.
However, Rogers’ version gives some explanation of just what
Matthews is to reconsider, i.e., if he realigned his loyalty to
“the right team,” he might be rehired. Gee never explained just
what he wanted Matthews to reflect on or to do that would
enable his reinstatement. Certainly, if Matthews had been
guilty of improperly harboring underage youths, there is noth-
ing he could do to erase past misbehavior. Of course, he could
abandon support of the Union. As for supporting Trimble, he
had not been perceived as strongly critical of Trimble as had
been Giles and Southworth.
Willie Snow at the time was a business agent for the Union.
He was retired from 16 years of union service when he testi-
fied. Snow admitted that all he could recall of the conversation
was the “gist” of it. Contrary to Matthews, Rogers at first testi-
fied that Snow was not present at the start of the conversation
but joined later. Rogers immediately amended this testimony
by claiming that Snow may have been there first but walked
away and joined later, explaining that the booth area is “pretty
big.”
Snow testified that when he walked up and first approached
them, Gee and Matthews were already speaking. Snow testi-
fied that he heard Gee accuse Matthews of deceiving him by
joining a labor union and that he would “no longer be able to
use him, that he did not have his priorities right, and he was on
the wrong team, and also that if he wanted to take some time
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706
and think about it and reapply in 30 days for his job, that he
may take him back if he got his priorities straight.” According
to Snow, Matthews expressed concern whether he will be able
to broadcast that day but that Gee told him that his listeners will
be disappointed because he will not.10
In cross-examination by counsel for the Respondent, Snow
reiterated all segments of his direct examination quotation of
Gee’s remarks except for the union-joining reference. Counsel
asked Snow if those were all of Gee’s exact words. He an-
swered that they were all the exact words he could recall. In
redirect examination, he reiterated the union-joining reference.
According to Gee, he told Matthews that he had embarked
on a change in “format” and a new team and as of that moment
Matthews was not on the new team. According to Gee, he
stated to Matthews:

Mark, I know this greatly disappoints you because the last
conversation that we had I had promised you that there might
be some overnight and some spots, employment opportuni-
ties, and so this is contrary to what verbally I have promised
to you and I want know that I have received some information
that troubles me and it disappoints me and there are certain
things that I must investigate; and Mark, if, in fact, the inves-
tigation that I am going to conduct proves not to be harmful to
you, you will have a right in 30 days to come back to the radio
station and, if you are interested, you can reapply.

Gee testified that the troubling information he had in mind at
the time of the conversation was the report of harboring under-
age boys. However, he did not explain this to Matthews then or
at any time later, despite his proffered intent to investigate. Just
what kind of accurate investigation Gee expected to conduct
without confronting the accused with the substance of the alle-
gation was not explained by him. In fact, Gee claimed that he
was so cryptic with Matthews that he spent “just a couple of
minutes” discharging him. Gee made no attempt in his testi-
mony to explain just why his letter-memorandum of termina-
tion failed to refer to any investigation, but rather predicated
Matthews’ reinstatement upon Matthews’ “reflection” and not
upon the results of an investigation.
Gee testified that it was his intent to speak to some union
representative about his intent to replace Matthews, who was
the Union’s choice of announcer at the Fair for that time slot
pursuant to contractual right. Gee claimed that he saw abso-
lutely no union representative staffing the union display booth
area, which he testified was “a quite expansive area that went
on, as I recall, both sides of the aisle . . . at the exhibit hall.” He
claimed that he walked to the far end to find someone he be-
lieved was part of the Union. Upon his questioning, that person
told him that Evans was not present.11 Gee testified that he
“absolutely did not” see Snow or Rogers present with Matthews
during the discharge interview. Gee claimed that he was sensi-
tive to preserving privacy because of the “difficult nature” of
the interview and would have been aware of anyone within
earshot range. Undoubtedly, this would have made sense, par-
ticularly more so if you are about to tell someone they are
unlawfully discharged because of their allegiance to the organi-

ent.
10 Gee testified that he had arranged to bring Jarrell to the Fair as
Matthews’ replacement.
11 Gee testified that he later telephoned Evans at his home and ex-
plained Matthews’ termination and replacement to which Evans re-
sponded, “no problem.” Evans testified that he was at the Fair from 9
a.m. to 11 p.m. and in the union display area except for relief breaks.
zation for which two witnesses are employed. However, if
Matthews were alone, why did Gee feel the need to invite him
to a private area to be alone? Moreover, people spontaneously
motivated by a deep-seated hostility sometimes, in the heat of
emotions, do things that do not make sense.12 Yet, Matthews
characterized the context as a “very pleasant atmosphere.” Just
how Gee’s demeanor created such an impression while he made
such a bald, public admission is indeed remarkable, particularly
when the admission was certain to alienate Gee’s most
remunerative cli
After Matthews’ termination, there is no evidence of any
criminal proceeding or even a police investigation. Gee testi-
fied that he subsequently interviewed the woman who had
complained “to see if the allegations were credible.” He testi-
fied that the interest he had in doing so was because Matthews
had filed a claim for unemployment compensation. Thus, he
admittedly did not initiate an investigation as a prelude to re-
scinding the discharge as he allegedly so stated to Matthews.
He investigated in preparation for a hearing regarding unem-
ployment. The parties stipulated that the merit of the harboring
complaint is not relevant to these proceedings.13 Thus, Mat-
thews was discharged purportedly, in part, because of an unin-
vestigated complaint, the substance of which he was not in-
formed.
As in the case of Giles and Southworth, Gee did not testify
as to what was the “cause” he referred to in the discharge letters
that he attributed to the three employees.
Shannon testified that at an unspecified time on Monday,
September 29, he was broadcasting for the station at the State
Fair. For some reason, Shannon telephoned Gee at the station.
Shannon testified that Gee asked if he could come to the sta-
tion. Shannon explained that he was alone and that there was no
one to replace him in the broadcast booth. Shannon testified
that Gee replied that what he wanted to see Shannon about
could not wait until tomorrow. Gee testified that the purpose of
the summons to the office was to inform Shannon that he was
discharged. As a Respondent witness, Gee testified that as of
September 29, he had decided to discharge Matthews, Giles and
Southworth. Having made that decision, he explained that it
was “time for a brand new team” and to “get rid of any poten-
tial problem” and to discharge Shannon as well. As an adverse
witness for the Acting General Counsel, Gee testified that he
decided to discharge Shannon on September 30, which he char-
acterized as “judgment day.” But then he testified that he had
previously prepared a discharge letter for Shannon. In his pre-
trial affidavit, he testified, “when . . . Bobby Shannon called on
the 30th, he said he was busy at the station and could not come
in to see me. When I got off the phone, I decided to fire
Overman [Shannon].”
Thus, in that testimony, Gee, in effect, conceded that there
had been no preceding fixed intent to discharge Shannon de-
spite a variety of preexisting items regarding Shannon’s behav-
ior that he testified that that he found he did not like, e.g., dis-
putes with coworkers over commissions, Shannon’s use of free
tickets provided by a client, dealings with clients, the Shooters
incident, reports of his employee aggravation, etc. Somehow,
something caused Gee to sit down and review Shannon’s per-
12 Certainly, in varying degrees, Gee’s letters of termination do not
make sense and are inconsistent with his testimonial explanations.
13 The stipulation necessarily means that the Respondent’s rein-
statement of Matthews was not related to the merits of the youth har-
boring complaint.
WXGI, INC. 707
sonnel file on September 29 or 30 and decide to discharge him,
but only after he had decided to discharge Matthews. Thus, in
effect, Gee testified that he just decided he might as well elimi-
nate the last of the group of four, i.e., Shannon, whom he char-
acterized as the “catalyst” of that group.
Gee’s testimony revealed a particular intensity in describing
his motivation for discharging Shannon. As an adverse wit-
ness, Gee testified that he decided to effectuate the discharge of
Shannon on September 29 or 30, not because he refused to
come to the office as summoned but because of his previous
behavior and as part of “judgment day” for all of the group of
four. Gee testified:

. . . the intent was to have—I had a new team coming
in on the 30th and it was the end of the pay period.
The intent was to quickly get the four of them out of
the station—to get their belongings out so that the new
team could come in that afternoon a [sic] get prepared to
go on the air the next day.

He testified that Shannon “appeared to be the catalyst in all my
difficulties with some of the employees at the station, and it’s
long stemming. It goes back to really the problem I had with
Keatley.” He testified that a “tension” existed between former
manager Shannon and himself, but this had existed prior to
September 1997. He conceded that he considered Shannon to
be the centerpiece of dissension at the station and close to Giles
and Southworth, but reports from Fran Davis about Shannon’s
abstract aggravation of dissension go back to September 9.
Yet, Gee waited until he decided to discharge Matthews. That
occurred on September 29 at the earliest. Gee did not testify
just what behavior of Shannon caused discord, dissension, or
tension, except for several instances of commission disputes
wherein salespersons are arguing for a greater share of the
commission pie.
Shannon testified that on September 30, he arrived at the
State Fair broadcast site sometime after 10 and 11 a.m. and
later saw Matthews preparing to go on the air at about
2 p.m. He observed Jarrell standing at the WXGI automobile
parked nearby.14 Next, from a distance, Shannon testified that
he observed Gee talking to Matthews. He also saw with them
union representatives he did not know by name except for one
called “Tom.” Shannon testified that he walked up and heard
only part of the conversation, i.e., something said by Gee about
30 days and Matthews’ response that he did not need 30 days.
According to Shannon, Gee became aware of Shannon and
invited him to go outside to a little table located between the
booth and the public restroom. Gee testified that after he told
Matthews that he was discharged, he immediately walked out
of the booth directly to where Jarrell was waiting 25 yards
away and told him to take over the broadcast and departed.

14 Gee testified that after he discharged Matthews, Jarrell later re-
ported to him that the union agents refused to accept Jarrell’s substitu-
tion for Matthews at the broadcast booth and, therefore, Jarrell de-
parted. Thus, apparently there were some agents for the Union at the
broadcast booth at about time the substitution was attempted, i.e., on
the heels of the discharge. Gee’s hearsay testimony of Jarrell’s report
is inconsistent with Gee’s description of the scene immediately after the
discharge. If Jarrell’s report was accurate, those union agents must
have been displeased by something that occurred or that was said by
Gee in the discharge notification of which they either witnessed or were
advised of it at the time, or for some inexplicable reason they did not
personally like Jarrell.
Jarrell, a current WXGI employee, was not called to corrobo-
rate Gee.
According to Gee, he notified Shannon of his discharge
about 2 p.m. He uncertainly testified.

I think as I recall, Mr. Shannon was terminated first, and then
Mr. Matthews. Yes, sir.

Neither Matthews, Rogers, nor Snow testified as to Shannon’s
presence about that time. If Shannon concocted his testimony
with respect to the sequence of the discharge, the question
arises as to why he did not go further and corroborate Mat-
thews, Rogers, and Snow as to Gee’s alleged reference to the
Union. Finally, if all four of these General Counsel witnesses
conspired to concoct testimony as to Gee’s alleged incriminat-
ing admission, they did a remarkably very poor job of it con-
sidering inconsistencies and omissions in their testimony.
Shannon testified that at the outside table, Gee told him that
he needed team players and that Shannon was not a team
player. Shannon testified that he replied that he did not under-
stand and asked if Gee were firing him. Shannon testified that
he was so “shocked” and “stunned” that he could not recall
what else was said but only recalled walking away. Shannon
testified that at the time of this notification he did not under-
stand why he was being discharged.
Gee’s account of the discharge interview essentially tracks
that of Shannon. He identified a letter-memorandum of dis-
charge addressed to Shannon but which Gee did not bring to the
discharge interview. It bears Shannon’s signature of accep-
tance dated October 7, 1997, and Gee’s handwritten notation.

P.S. Delivered this message to Shannon 9/30/97 at 2:10 P.M.
at State Fair.

The letter states:

Re: Termination of Employment
On June 3, 1977, you and J.D. Keatley entered into a
termination notice of your 4-25-97 contract of employ-
ment! As a further clarification of any intent on part of
WXGI, or Gee Communications, Inc. I now also reaffirm
or establish the desire of WXGI to terminate its relation-
ship with you!
Your last pay of this date is your last payment. Should
income received by WXGI on the gross billings on your
accounts at 20% exceed your draw for the month, WXGI
will be indebted accordingly.

Gee’s timing of the interview as of 2:10 p.m. indicates that
regardless of the sequence, Shannon’s discharge was either
immediately before or after Matthews’ termination. Since Gee
did not explicitly deny Shannon’s appearance in the booth at
that time and his uncertainty as to the sequence, I credit Shan-
non as to sequence and his placement in the booth. Because of
Gee’s inconsistency with Jarrell’s report as to his ejection from
the site by union agents, the failure of Jarrell to corroborate
Gee, the improbability of the Union’s leaving its display booth
unattended, especially during a remote broadcast, and Gee’s
request to adjourn to a private area, I credit the testimony of the
Acting General Counsel’s witnesses that they were all indeed
present.
The September 30 Shannon memorandum referred to a June
3, 1997 Keatley-Shannon agreement to terminate their contract.
Clearly, this event preceded Gee’s early September decision to
retain Shannon’s services. Gee testified that after reviewing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
Shannon’s personnel file, he had come to the conclusion that
prior to June 24, 1997, Keatley and Shannon had mutually
agreed to terminate Shannon’s employment contract. However,
as of that date, Gee claimed that Shannon “could bring some
long-term value to the radio station . . . .”15 Gee testified that
he accordingly drafted an employment agreement wherein he
invited Shannon to accept continued employment under the
terms set forth therein as account executive. The document was
introduced into evidence. It bears the signature of Gee dated
September 8, 1997, and that of Shannon dated September 18,
1997.16 Gee testified that he and Shannon indeed spent many
hours negotiating the agreement. In effect, the termination
memorandum proffers no clear reason for Shannon’s discharge.
Moreover, Gee’s acceptance of the employment agreement
postdates numerous complaints, many of them bordering on the
trivial, that Gee alluded to when questioned as to the reasons he
discharged Shannon. Furthermore, there is no evidence that
Gee explicitly rescinded that offer which remained outstanding.
If there had been anything serious enough to motivate Gee to
withdraw his offer, which had not yet been accepted by Shan-
non, Gee could have easily earlier done so and avoided an em-
ployment relationship that he variously and inconsistently testi-
fied he intended to terminate later based in part on conduct of
Shannon before and after September 8 and before September
29.
The thrust of Gee’s testimony is that he suddenly decided to
discharge his senior account executive who was responsible for
most of its sales accounts at a time when the station was “des-
perate” for revenue. Furthermore, he did so for no specific
recent behavior but merely because of Shannon’s association
with air personalities Giles and Southworth, with whom he
perceived Shannon to be “closely” connected. Although there
may have been prior incidents as grounds for complaint against
Shannon, there was adduced into evidence no cogent, immedi-
ate motivation for Shannon’s discharge other than group asso-
ciation. Although Gee testified to the hiring of replacement air
personalities for Giles, Southworth, and presumably Matthews
as full-time announcers, he testified to no prearranged replace-
ment for his chief sales executive. Sales were outside the orbit
of Trimble’s authority and ability. Holt was admittedly defi-
cient in sales ability, which Trimble highly valued. I conclude
that had not Giles, Southworth, and finally Matthews been dis-
charged, Shannon would not have been discharged despite
whatever purported past complaints or resentment Gee had
regarding him.
Shannon testified that a few hours after his discharge, he
went to Keatley’s home to obtain his paycheck. According to
Shannon, the following conversation occurred. Shannon asked
Keatley if he were aware that Shannon had been discharged by
Gee. Keatley answered yes, that he had been so aware and,
furthermore, that Gee also “knows you all are trying to form a
union,” or “something to that effect.” Keatley asked, “what’s
going on down there.” Shannon changed the subject, obtained
his check, and departed. He admitted that his recollection was
poor and he could recall nothing else. Upon leading examina-
tion, he testified that Keatley made some reference to Giles in

15 Despite Gee’s admitted perception of a history of an adversarial
relationship between Keatley and Shannon, Gee claimed that he subse-
quently identified Shannon as a leader of the pro-Keatley group.
16 Shannon admitted, however, that he had never returned his signed
acceptance to Gee because he and Gee were still negotiating the terms
of the agreement.
regard to a union deal but he could not recall what it was. In
cross-examination, he testified that Keatley may have referred
to Giles’ attempting to obtain union representation at the station
and then asked him “what’s going on,” to which Shannon re-
plied, “I don’t know.”
5. Testimony of Attorney Beutler
Mark Beutler testified that he had been employed by the law
firm representing the Respondent at trial until October 31,
1997, and had, in part, represented in the station ownership
litigation. He testified that he and Gee had several conversa-
tions regarding the future employment status of the “four” dur-
ing the summer of 1997 subsequent to the June 17 settlement.
In those conversations, according to Beutler, Gee expressed a
desire to replace all of the four. He testified that Gee vacillated
on Matthews but unequivocally wanted to “get rid of Giles and
Southworth” and “indicated strongly that he wanted [Shannon]
to go as well.”
I find Beutler’s testimony to be outright contradictory to
Gee’s testimony recited above. Gee claimed that he lobbied
Trimble to retain Giles and Southworth in some form of on-call
employment and, thus, he did not want to “get rid of” them.
Gee testified that as of early September, he intended to retain
Shannon and had executed a proposed employment offer to
Shannon as late as September 8, which he did not retract until
September 30 after he decided to terminate completely the em-
ployment of Matthews, Giles, and Southworth. I, therefore, do
not find Beutler’s testimony credible as to subsequent conver-
sations with yet another attorney representing Gee before the
FCC as to an ongoing effort up to September 29 to persuade
that attorney to approve Gee’s alleged longstanding, continuing
expressed desires to sever completely the employment relations
of three of the four. That attorney allegedly counseled against
discharge for some obscure FCC licensing regulation concern
despite the authority of management vested in Gee by virtue of
the June 17 settlement. Not only did the Respondent fail to
obtain the corroboration of that attorney but also Gee himself
did not corroborate Beutler, presumably because he could not
do so.
C. Analysis—Discharge and Related Issues
1. The Keatley admission—Respondent knowledge
The Respondent argues, inter alia, that because of the open
breach in the relationship between Keatley and Gee in the con-
text of their ongoing adversarial litigation, that merely because
Keatley was still the owner of WXGI, prepared and issued pay-
checks, his knowledge of union activities ought not be imputed
to the WXGI discharge decision-maker—Gee. I agree.17 As to
Shannon’s credibility as to the Keatley postdischarge conversa-
tion, I conclude that he must be credited. He was clearly in a
position either to concoct or embellish whatever the deceased
Keatley had said to him regarding union activity without fear of
contradiction. Similarly, he refused to embellish his testimony
as to what he heard Gee tell Matthews regarding the Union.
Accordingly, despite his testimonial faults, I find that he is a
basically credible witness, and I find that Keatley did make
reference to the union organizing activity. Although I do not
17 Keatley, in any event, was the owner and paycheck issuer whom
Gee admitted had some managerial authority. As such, he was an agent
of a party proponent and, as such, made an admission against interest to
Shannon. As to the admissibility of Shannon’s testimony regarding the
deceased Keatley, see Fed.R.Evid. 804(a)(4) and (b)(3).
WXGI, INC. 709
necessarily impute Keatley’s awareness of it to Gee, I do find
that it establishes first that despite the flaws in the testimony of
Giles and Matthews regarding the degree and nature of the
incipient union-related activities by them, such activity did
occur and it occurred openly enough and to such an extent that
the reports of it came to the absentee owner.
I further find that the evidence in the record as a whole is
sufficient to support an inference that Gee himself must have
received the same reports. Gee admitted that Davis, Jarrell, and
Holt reported to him a variety of behavior by the group of four
which they considered to be divisive, tended to cause dissen-
sion, or constituted disloyalty. Therefore, it is perverse to not
infer that they also reported to him Giles’ and Matthews’ open
union-related activities regardless of the limited subjective
understanding of the nature of union card signing by some of
the group of four. This is particularly so because of the Re-
spondent’s failure to call these employees, all under Respon-
dent Gee’s control, to testify as to precisely what they did or
did not report to Gee. Therefore, I cannot credit Gee that he
was oblivious to such activities.
The complaint alleges that by Keatley’s alleged statement to
Shannon on September 30, Respondent WXGI violated the Act
by telling employees that they had been terminated because of
union activity. Shannon’s testimony does not support the fac-
tual allegation. Furthermore, as I have found, Keatley and Gee
were too estranged for Shannon to have reasonably believed
that Keatley was privy to Gee’s motivation.
2. Gee’s alleged admission to Matthews
Matthews’ testimony standing by itself, if uncorroborated,
could not stand up against trustworthy, convincing contradic-
tion. Matthews’ demeanor was confident enough in direct ex-
amination, but in a persistent cross-examination he appeared
confused. At one point he admitted to having “no independent
recollection” of the critical element of the conversation and his
recollection of details was inconsistent.18 Rogers and Snow
corroborated him with respect to the essence of the conversa-
tion, if not in precise detail. This corroboration, however, was
flawed by the inconsistencies noted above. Again, their testi-
mony was liable to be dismissed if contradicted by credible,
convincing testimony. However, both Rogers and Snow, who
admitted their prounion sympathies, exhibited an excellent
spontaneous demeanor. They readily admitted their recollec-
tive inadequacies and did not try to embellish what little they
admittedly recalled.
I have already discredited Gee with respect to his denial of
knowledge of union activity by members of the group of four
and also his disingenuous denial of the presence of Rogers and
Snow at the scene of Matthews’ dismissal. It was typical of his
testimony to exaggerate and distort the facts to support the
main point of his testimony. Gee’s demeanor was not sponta-
neous, nor was it convincing and forthright. At times, it reeked
of cumulative contrivances. He tended to give rambling, undis-
ciplined discourses and tedious evasions instead of responsive,
to-the-point answers. Gee’s testimony throughout on almost all
issues is riddled with internal and external inconsistencies,
contradictions, evasions, and improbabilities. Furthermore, it
was virtually uncorroborated by potential witnesses who, as
employees, were under Respondent Gee’s control but whom
Respondent Gee failed to call to testify. Witnesses, who were

18 He was not asked for his definition of “independent.”
called by Respondent Gee gave testimony inconsistent with or
contradictory to Gee in important detail.
Gee’s testimony with respect to the reason for the discharges
were inconsistent with the sense of the written letter-
memoranda notices of terminations. For example, Mathews’
notification letter by no reasonable interpretation could be re-
lated to the last and allegedly final cause of his discharge—the
improper juvenile harboring complaint. The inconsistencies in
that testimony were discussed above in reluctant detail as was
his testimony relating to Shannon’s discharge which it precipi-
tated, thus invoking the “day of judgement.”
The argument is made that Gee would not make such in-
criminating admission to Matthews in front of two union repre-
sentatives. This assumes that Gee, at that time, understood that
his announcers were employees protected by the Act. His at-
torney on the sale understood it, but there is no evidence that
Gee was so instructed. Furthermore, as noted above, Mat-
thews’ discharge was the spontaneous result of Gee’s sudden
discovery of a most recent action by Matthews. Gee acted
hastily and was obviously so disturbed that it caused him to
suddenly change his mind on Matthews’ continued employment
in some capacity. Gee’s memorandum-letter, as oblique as it is,
tends to corroborate Matthews’ testimony more than it does
Gee’s own testimony. Gee’s failure to investigate the juvenile
harboring complaint or to confront Matthews with it also tends
to support the testimony of Matthews, Rogers, and Snow. It
demonstrates that something recently occurred which was per-
ceived by Gee to have adversely affected Matthews’ commit-
ment and loyalty to Gee’s managerial regime. The facts neces-
sitate a conclusion that that event was not the uninvestigated
juvenile harboring report but rather the incipient union activity
of Giles and Matthews.
In light of my conclusion that Gee was aware of Matthews’
recent connection to Giles’ union activity, the fact that his
memorandum-letter must be interpreted to refer to it, and the
precipitous nature of the discharge convinces me that Gee was
too besotted with vengeance to consider the incriminating na-
ture of the admissions. Inasmuch as I find Gee’s testimonial
demeanor and his testimony as a whole to render him a less
credible witness than Matthews, Rogers, and Snow, I credit the
essence of their testimony that Gee orally clarified what his
letter-memoranda implied, that Matthews was being terminated
because of his disloyal support of the Union and that his dis-
charge could be rescinded if Matthews recanted his union alle-
giance. No recantation occurred. Instead, an unfair labor prac-
tice charge was filed and the merit of the harboring complaint
was, as stipulated, irrelevant to the issue of Matthews’ rein-
statement.
I find that by Gee’s informing Matthews that he had been
discharged because of his union activities, Respondent WXGI
violated Section 8(a)(1) of the Act.
The complaint also alleges that Gee’s September 30 state-
ment to Matthews unlawfully created the impression of surveil-
lance. I find such allegation incompatible not only with the
facts but with the Acting General Counsel’s and the Union’s
arguments that Giles and Matthews engaged in such open union
activity at the worksite that Gee could not help be aware of it. I
find that allegation to lack merit.
3. Discharge analysis
The General Counsel has the burden of proving that pro-
tected activity was at least a partial motivating factor in the
Employer’s adverse employment decision. Having done so, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
burden then shifts to the Respondent to show that lawful rea-
sons necessarily would have caused that decision. Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). It is not
enough to demonstrate that a lawful reason may have existed.
It must be proven that the lawful motivation actually motivated
the adverse action. Precision Industries, 320 NLRB 661, 662,
709 (1996), enfd. 118 F.3d 585 (8th Cir. 1997), 523 U.S. 1120
(1998).
A prima facie case is made out when the General Counsel es-
tablishes union activity, employer knowledge, animus, and
adverse action taken against those involved or suspected of
involvement that has the effect of encouraging or discouraging
union activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991).
Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without
direct evidence. Evidence of suspicious timing, false reasons
given in defense, and the failure to adequately investigate al-
leged misconduct all support such inferences. Adco Electric,
307 NLRB 1113, 1128 (1992), enfd. 6 F.3d 1110 (5th Cir.
1993); Electronic Data Systems Corp., 305 NLRB 219 (1991);
Visador Co., 303 NLRB 1039, 1044 (1991); Asociacion Hospi-
tal del Maestro, 291 NLRB 198, 204 (1988); Clinton Food 4
Less, 288 NLRB 597, 598 (1988). Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Abbey’s
Transportation Services v. NLRB, 837 F.2d 575, 579 (2d Cir.
1988); Rain Ware, Inc., 735 F.2d 1349, 1354 (7th Cir. 1984);
Williams Contracting, Inc., 309 NLRB 433 (1992); Fluor
Daniel, Inc., 304 NLRB 970 (1991).
Motivation of union animus may be inferred from the record
as a whole where an employer’s proffered explanation is im-
plausible or a combination of factors circumstantially support
such inference. Union Tribune Co. v. NLRB, 1 F.3d 486, 490–
491 (7th Cir. 1993). Data Systems Corp., 305 NLRB 219
(1991); Fluor Daniel, Inc., supra.
An inference of animus has been found to have been appro-
priately raised by timing, knowledge, and the manner of dis-
charge implementation. Sawyer of Napa, 300 NLRB 131, 150
(1990), citing NLRB v. Rain Ware, 732 F.2d 1349, 1354 (7th
Cir. 1984). Where a respondent vacillates in its position and,
for example, deviates from proffered explanation in pre-trial
position statements and later proffers different or additional
testimonial explanations, “. . . an adverse inference may be
drawn that the real reason for its conduct is not among those
asserted.” Black Entertainment Television, 324 NLRB 1161
(1977), citing and quoting from Sound One Corp., 317 NLRB
854, 858 (1995); Vulcan Waterproofing Co., 327 NLRB 1100
(1999).
The General Counsel has established minimal union activi-
ties by Giles and Matthews. As found above, those activities
were sufficient enough to have prompted rumors of an organiz-
ing effort to have reached Keatley and Gee. Gee associated all
members of the group of four in any behavior he considered to
be disloyal. Having knowledge of the “disloyal” activities of
some of the group, he suspected that the others participated and
he presumed, rightly or wrongly, that Shannon, who had been
associated closely with the Union’s advertising account, was
the catalyst, i.e., the leader of disloyal behavior.
The General Counsel has also adduced evidence of animus
toward the Charging Party Union, whatever Gee may have felt
about AFTRA. As discussed above with respect to the Mat-
thews letter-memoranda, the only sensible interpretation of that
letter is that Gee conditioned Matthews’ reinstatement upon a
change in his commitment to some cause and not upon the re-
sults of an investigation in the juvenile harboring report. That
cause, because of the sequence of events, could only have been
Matthews’ perceived union activity. The same reference to a
cause commitment is found in the letter-memoranda for Giles
and Southworth, and the logical inference is that the identical
language refers to the same cause, i.e., the actual or suspected
activities of Giles and Southworth. Gee’s admission to Mat-
thews in the discharge interview merely confirms what the
factual context necessarily infers, i.e., that Gee was so hostile to
the incipient union activities that he abandoned his previous
plans for which he had “lobbied” Trimble so urgently and now
decided to completely terminate Matthews, Giles, and South-
worth. No other reasonably explained and coherently detailed
intervening event supports such a drastic change of position
from that of September 15. Incidents such as the Shooters’
event, the Trimble rehiring notice of September 9, and the ju-
venile harboring complaint were not taken seriously enough to
warrant investigation and, except for a brief encounter with
Shannon regarding the Shooters incident, not even a direct
confrontation. Although the Shooters incident was character-
ized as a “rebellion,” it admittedly did not necessarily preclude
the retention of Matthews.
As found above, Shannon’s discharge was the direct result of
the decision to terminate Matthews, Giles, and Southworth.
Further inference of motivation premised upon union animus
may be inferred from the Respondent’s shifting reasons prof-
fered in its position statement and in Gee’s testimony and from
the shifting defenses proffered in Gee’s internally and exter-
nally, inconsistent, contradictory testimony of which a critical
portion was not corroborated by witnesses under Respondent
Gee’s control or was contradicted by Beutler and Holt.
I find that the General Counsel has adduced sufficient evi-
dence of knowledge, timing, animus, and shifting, false, and
contrived defenses to support an inference that Giles, South-
worth, Matthews, and Shannon were discharged because of the
actual or suspected union activities of some or all of them.
I further find that the Respondents have failed to adduce
credible, cogent, and convincing evidence that in any event,
Respondent WXGI, by its agent Gee, would have deviated from
his predetermined September 15 employment plans and would
have totally terminated the employment status of those employ-
ees regardless of their actual or suspected union activities.
Accordingly, I find that Respondent WXGI, Inc. violated Sec-
tion 8(a)(1) and (3) of the Act on September 30, 1997, by re-
scinding the on-call and casual employment status of Giles and
Southworth and the regular midnight and regular weekend em-
ployment status of Matthews that would have been effective
upon the hiring of their replacements on October 1, 1997, as
had been determined prior to union activities and by the dis-
charge of Shannon from his position of senior account execu-
tive.
D. Successorship
The Respondents, in the brief, argue and cite relevant Board
and court precedent as follows:

Successorship is a highly complex issue. The successorship
analysis is “primarily factual in nature and is based upon the
totality of the circumstances of a given situation.” Fall River
Dyeing & Finishing Corp. v. NLRB [106 LC ¶ 12,333], 482
WXGI, INC. 711
U.S. 27, 43 (1987). A new employer is a successor if there is
“substantial continuity” between the enterprises. Fall River,
482 U.S. at 43. Substantial continuity exists when the new
company has “acquired substantial assets of its predecessor
and continued, without interruption or substantial change, the
predecessor’s business operations.” Golden State Bottling
Co., Inc. v. NLRB [72 LC ¶ 14,124], 414 U.S. 168, 184
(1973). “The essential inquiry is whether operations . . . re-
main essentially the same after the transfer of ownership.” In-
ternational Union of Elec. Radio & Mach. Workers (IUEW)
v. NLRB, 604 F.2d 689, 694 (D.C. Cir. 1979). The analysis
“is undertaken with an emphasis on the employees’ perspec-
tive.” Fall River, 482 U.S. at 43. The analysis is further
complicated because,

the real question in each of these “successorship” cases
is, on the particular facts, what are the legal obligations
of the new employer to the employees of the former
owner or their representative. The answer to this in-
quiry requires analysis of the interests of the new em-
ployer and the employees and of the policies of the la-
bor laws in light of the facts of each case and the par-
ticular legal obligation that is at issue. . . .There is, and
can be, no single definition of “successor” which is
applicable in every legal context. A new employer, in
other words, may be a successor for some purposes
and not for others. Howard Johnson Co. v. Detroit
Joint Board, [74 LC ¶ 10,066], 417 U.S. 249, 262-63
at n. 9 (1974).

To determine whether a “substantial change” has occurred,
courts and the Board consider

whether the business of both employers is essentially
the same; whether the employees of the new company
are doing the same jobs in the same working condi-
tions under the same supervisors; and whether the new
entity has the same production process, produces the
same products, and basically has the same body of cus-
tomers. Fall River, 482 U.S. at 43 (citations omitted).

Fall River, supra, dealt with the successor’s bargaining obli-
gation. Golden State, supra, dealt with the liability of a succes-
sor for the predecessor’s unfair labor practices. The Acting
General Counsel, in the brief, sets forth the appropriate prece-
dent and argument, and conclusions in which I concur and
adopt, as follows.

A bona fide purchaser of a business who has knowl-
edge of the seller’s unfair labor practices at the time of the
purchase, and who continues the business without inter-
ruption or substantial change in operation, employee com-
plement, or supervisory personnel has joint and several li-
ability for remedying the seller’s unfair labor practices.
Golden State Bottling Co. v. NLRB, 414 U.S. 168, 84
LRRM 2839 (1973). “Unlike successorship for bargaining
purposes, this obligation does not require that a majority
of the successor’s employees be former employees of the
predecessor, and also does not turn on whether those em-
ployees are represented by a union.” Bell Glass Co., 293
NLRB 700, 707 (1989). See also Greyhound Taxi Co.,
292 NLRB 267, 268 (1989); St. Mary’s Foundry, 284
NLRB 221, 221 fn. 4 1987) [Commercial Forgings Co.,
315 NLRB 162 (1994)]. The successor’s liability includes
the backpay and reinstatement of employees terminated in
violation of Section 8(a)(3) of the Act. Bell Glass, 293
NLRB at 707. The requirement that the successor have
knowledge of the predecessor’s violations is satisfied if an
individual serves as a principal of both businesses. Id. at
708.
In the instant case, there can be no question that Re-
spondent Gee had knowledge of Respondent WXGI’s ac-
tions with respect to the September 30 terminations. Thus,
David Gee was the official of Respondent WXGI who
terminated the discriminatees, and he is the owner and
highest official of Respondent Gee.
Similarly, despite the Respondents’ protestations, there
is no doubt that Respondent Gee continued the business of
Respondent WXGI without interruption or substantial
change. In this regard, there was no change of personnel,
format, music style, facilities, or management when Re-
spondent Gee assumed control of the station on October
17. Tr. 208-210. If one considers the changes occurring
after September 30, the date of the discharges, the same
result obtains. Specifically, at least eight of the twelve
non-supervisory employees working for Respondent
WXGI in early October also had worked for that corpora-
tion on September 30, immediately after the terminations.
Tr. 211–212. There is no dispute that Respondent Gee
hired “a large number” of Respondent WXGI’s employ-
ees. St. Mary’s Foundry, 284 NLRB at 221 fn. 4.
As for the Respondent’s operations, again there was
virtually no change. Although Gee and some of the dis-
criminatees agreed that the type of country music played
by the radio station changed on October 1, both Respon-
dents operated a country music radio station at the same
facility with many of the same announcers. Furthermore,
David Gee has been a high-ranking manager of the busi-
ness since June.
In sum, Respondent Gee meets the definitions of suc-
cessorship under NLRB v. Burns International Detective
Agency, 406 U.S. 272, 80 LRRM 2225 (1972). Golden
State Bottling Co., and the Board and court cases interpret-
ing those decisions. Accordingly, the Respondents are
jointly and severally liable for the unlawful discharges of
Giles, Southworth, Matthews, and Shannon.

I agree and so find.
Although the change of format from traditional or legendary
country music to a more modern country music format may
seem drastic to a devotee of the former, it was still modern
country music, announced and played on the air to the same
radio market audience from the same station building. Al-
though “high tech” improvements and new equipment have
been gradually implemented since October 1997, it has not
altered the essential nature of this “employing industry” at the
time of the takeover. Cf. Precision Industries, supra at 710–
711.
E. The Trial Preparation Interrogation
1. Facts
As of the date of the trial, Thomas Williams was employed
by the Respondent as a part-time announcer at WXGI. He was
also employed elsewhere. On the Friday before the trial, April
17, 1998, he received at his home a telephone call at 10:50 a.m.
from Trimble who told him this trial was to commence on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
Monday and Gee and “his attorney” would like to talk to him at
the station between 2 and 4 p.m. Williams declined because of
other commitments. Trimble then asked him, “Can you talk to
him on the phone?” Williams said, “[S]ure.” The Respon-
dent’s attorney then spoke on the telephone, introducing him-
self. Williams, without contradiction, testified to the substance
of that conversation.
The attorney, Thomas Roberts, asked whether Williams
worked with Trimble and whether his working conditions were
pleasant. Williams answered affirmatively. The Respondent’s
attorney then asked Williams if he “knew anything about a
union forming with WXGI.” Williams responded that the Un-
ion had been a longtime WXGI advertiser. Attorney Roberts
asked whether Williams “filled out a union card.” When he
answered that he did, he was asked, “Were you going to form a
union?” Williams testified that he “just had the impression we
were to get information.” When asked whether he received any
information, he replied that he did not.
The Respondent’s attorney then asked Williams what he
knew about Matthews. Williams referred to some innocuous
general information. The attorney asked whether Matthews had
a “wild life style.” Williams responded “not to my knowledge”
and characterized Matthews as being a clean, punctual person
who did a “good Job” and who worked beyond the hours as-
signed to him. Williams was asked if he knew Shannon, Giles,
and Southworth, and he replied that they were all “nice people”
and “hard workers.” The attorney then told Williams that if he
talked to the Acting Counsel for the General Counsel, “just
talk, you know, in his [Robert’s] presence.” Williams could not
recall the exact words of this somewhat unclear statement. He
could recall nothing further. The testimony in direct examina-
tion concluded:

Q. Was anything said about whether your participa-
tion in that conversation was voluntary?
. . .
A. No sir.
Q. Was anything said by the gentleman on the tele-
phone about anything happening to you in the future with
respect to that conversation?
A. No. No, sir.

In cross-examination, Williams testified that Roberts in-
formed him that he did not have to speak to the Counsel for the
General Counsel or to the Union’s attorney but was not in-
formed that he did not have to speak with the Respondent’s
attorney. He conceded that yes, he was asked if he were “will-
ing to speak with the caller” and that he answered affirmatively.
He also recalled that he was told by attorney Roberts that
AFTRA was the union most radio and television personalities
joined and he answered that he did not know and was “just in
the dark on unions.”
Williams also testified that the Respondent’s attorney who
cross-examined him stated, “You would think [the Union] if
they would want you to join, they would take the time to get
you the information,” to which he answered that he did not
know anything about that. He admitted that he was asked no
questions as to his “state of mind” or that would “pry into other
union matters.” He testified that yes, he has hung up on callers
with whom he did not wish to speak. When asked whether his
participation in the telephone conversation was on a “strictly
voluntary basis,” he answered: “Well, yeah. You’re right. I
could have hung up.” However, he denied that it was made
clear to him “that there would be no reprisal for cooperating
with the Union . . . .”
2. Analysis
The Board in Johnnie’s Poultry held:

In allowing an employer the privilege of ascertaining the nec-
essary facts from the employees [in preparation for litigation],
the Board and courts have established specific safeguards de-
signed to minimize the coercive impact of such employer in-
terrogation. Thus, the employer must communicate to the
employee the purpose of the questioning, assure him that no
reprisal will take place, and obtain his participation on a vol-
untary basis; the questioning must occur in a context free
from employer hostility to union organization and must not be
itself coercive in nature; and the questions must not exceed
the necessities of the legitimate purpose by prying into other
union matters, eliciting information concerning an employee’s
subjective state of mind, or otherwise interfering with the
statutory rights of employees. When an employer trans-
gresses the boundaries of these safeguards, he loses the bene-
fits of the privilege. [Johnnie’s Poultry Co., 146 NLRB 770,
775 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965).]

The Acting General Counsel correctly argues that the Board
and courts of appeal have strictly followed that rule except for
extraordinary circumstances, not present here, citing appropri-
ately Standard-Coosa-Thatcher v. NLRB, 691 F.2d 1133 (4th
Cir. 1982); Le Bus, 324 NLRB 588 (1977); L & L Wine & Liq-
uor Corp., 323 NLRB 848, 853 (1997). As was also correctly
argued by the Acting General Counsel, the employees’ subjec-
tive understanding of a patently coercive interview is irrelevant.
Miami Systems Corp., 320 NLRB 71 fn. 4 (1995).
The Respondent argues, incorrectly, that the Johnnie’s Poul-
try standard is inapplicable herein because it is limited to inter-
views of intended witnesses of whom Williams was not in-
cluded. However, the standard applies to investigatory inter-
views as well and furthermore to interviews with respect to the
investigation of an unfair labor practice charge. Le Bus, supra
at 598–599.
Williams’ testimony was not the most confident, and his rec-
ollection was not the most assured. It was vulnerable to con-
tradiction. However, the Respondent chose the role of litigator
for its attorney and not that of witness. Accordingly, I must
credit Williams. No explanation was given to Williams as to
the necessary relation of the interrogation as to his and other
employees’ union activities to the scheduled trial. Williams
answered Trimble that “sure,” he would talk to attorney Rob-
erts on the telephone, but neither Trimble nor Roberts explicitly
told him that he was free to decline to do so.
The Johnnie’s Poultry standard requires the Respondent to
have made an affirmative assurance and not merely to have
created a potentially ambiguous context from which the em-
ployee might infer that his participation was voluntary. That
Williams could have “hung up” on the attorney without explicit
threat of reprisal or that he responded affirmatively to Trim-
ble’s investigation again without the same assurance falls short
of an affirmative assurance.
It could also be argued that Robert’s opening gambit of ask-
ing Williams if he considered his working conditions to be
“pleasant” could reasonably be interpreted to contain a subtle
suggestion that he should cooperate to keep it that way. How-
ever, for the above reasons, I conclude that on April 17, 1998,
the Respondent, by its agent Thomas Roberts, coercively inter-
WXGI, INC. 713
rogated Williams concerning his and other employees’ union
activities in trial preparation investigation without complying
with the Johnnie’s Poultry standard and, thus, violated Section
8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. As found above, the Respondents are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. As found above, Respondent Gee is a successor to Re-
spondent WXGI with liability to remedy its unfair labor prac-
tices.
3. As found above, Respondent WXGI has violated Section
8(a)(1) and (3) of the Act and, further, I find such violations
affect commerce within the meaning of Section 2(6) and (7) of
the Act.
4. The Respondents have not violated the Act in any other
manner.
THE REMEDY
Having found that Respondent WXGI engaged in unfair la-
bor practices in violation of Section 8(a)(1) and (3) of the Act, I
recommend that its successor, Respondent Gee, be ordered to
cease and desist therefrom and to take certain affirmative action
designed to effectuate the purposes of the Act. Having found
that Respondent WXGI unlawfully discharged Bobby Overman
a/k/a Bobby Shannon from his position as senior account ex-
ecutive and having found that Respondent WXGI unlawfully
rescinded its intention of continuing the employment of Steve
Giles and Wiley Southworth on a casual, on-call basis and
Mark M. Matthews on a regular weekday midnight shift and
regular weekend basis after lawfully terminating their full-time
day shift positions on about October 1, 1997, I recommend that
Respondent Gee be ordered to offer Bobby Overman a/k/a
Bobby Shannon immediate and full reinstatement to his former
position, Steve Giles and Wiley Southworth to on-call, casual
announcers, and Mark M. Matthews to regular weekday mid-
night shift and regular weekend announcer, positions intended
for them effective October 1, 1997, or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges previ-
ously enjoyed, and make them whole for any loss of earnings
and other benefits computed on a quarterly basis from the date
of discharge to the date of proper offer of reinstatement, less
any net earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]