Wxon-Tv, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1988

289 N.L.R.B. 615 (N.L.R.B. 1988)

WXON-TV
WXON-TV, Inc. and National Association of
Broadcast Employees and Technicians, AFL-
CIO. Case 7-CA-25199
June 30, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On July 29, 1986, Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a brief, the Gener-
al Counsel filed cross-exceptions and a brief, and
the Respondent, the General Counsel, and the
Charging Party filed answering briefs.
The National Labor Relations Board has delegat-
ed 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 certain of the
judge 's rulings , findings , and conclusions and to re-
verse others, as set forth below.
1. The Respondent operates a television broad-
casting station . At the hearing the parties stipulated
that about August 30, 1985, the Respondent elimi-
nated unilaterally its production department with-
out bargaining with the Union as bargaining repre-
sentative of the employees 1 and that the decision to
eliminate the department resulted in the layoff of
three bargaining unit employees. The judge found
that the failure to bargain over this decision violat-
ed Section 8(a)(5) and (1) of the Act. The Re-
spondent contends that the decision to eliminate
the production department did not turn on labor
costs within the meaning of Otis Elevator Co., 269
NLRB 891 (1984), and, therefore, there was no
duty to bargain regarding this matter. We find
merit in the Respondent's contention and find that
the decision to eliminate the production department
was not a mandatory subject of bargaining.
In addition to its broadcasting of television pro-
graming and the sale of commercial air time, the
Respondent also maintained a production depart-
ment that produced commercial and public affairs
programing. In February 1985 the Respondent's
general manager-vice president, Douglas Johnson,
met with two of the three employees in the pro-
duction department, Carl Scott and Robert Schade.
According to Scott, Johnson indicated that the Re-
spondent was concerned with the falling revenues
of the production department. Johnson produced
i The parties stipulated that on August 30, 1985, the Union was certi-
fied as bargaining representative of all employees of the Respondent di-
rectly involved in the production , presentation , and transmission of pro-
grams
615
accounting ledgers to the employees and stated, ac-
cording to Scott, that in 1984 production income
had fallen to $6900 while production salaries had
reached $184,000. Johnson pointed out that since
1982 production income had "gone way down"
and production salaries had "gone way up." It is
undisputed that production income formerly was in
the range of $100,000 annually.
Johnson asked Scott and Schade to survey the
production rates that production companies and
other television stations charged their clients. John-
son also asked the production employees to work
more closely with the Respondent's sales depart-
ment in order to help generate more production
income. Scott testified that Johnson advised them
that unless the production department generated
greater income, continuation of the production de-
partment would be in jeopardy.2 The record
shows, and the judge found, that the Respondent
thereafter increased its efforts to obtain additional
customer use of its production department and to
increase commercial production. General Manager
Johnson testified in this regard that many of the
Respondent's competitors had special effects equip-
ment that the Respondent did not possess, but that
it was determined that obtaining such equipment
was not economically justified.
The uncontroverted testimony of General Man-
ager Johnson establishes that 6 months after his
February 1985 meeting with Scott and Schade, and
despite the increased efforts to increase commercial
business, production "did not increase one iota."
Indeed, the judge found that the production de-
partment was not economically viable.3 On August
30, 1985, the Respondent decided to eliminate the
production department and did so without bargain-
ing with the Union. The production department's
three employees were terminated.
In Otis Elevator Co., 269 NLRB 891 (1984), the
Board held that management decisions that affect
the basic direction or nature of the business are ex-
cluded from the mandatory bargaining subjects de-
scribed in Section 8(d). The critical factor , as iden-
tified by the Board plurality, is whether the deci-
sion turns upon a change in the nature or direction
of the business, or turns upon labor costs. Id. at
892. In the instant case , the judge found summarily
that "the primary factor appears to have been the
production department salaries against revenues"
2 The judge concluded erroneously that there was no discussion at this
time concerning the possibility of eliminating the production department
2 There is no contention that the decision to eliminate the production
department was motivated by anything other than valid business reasons
Accordingly , we disavow the judge's comments that the timing of the
decision in relation to the employees' designation of the Union as their
bargaining representative "suggests discrimination in the Respondent's
August 30 decision "
289 NLRB No. 80
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that the decision , therefore , turned substantial-
ly upon labor costs. Thus, the judge found that
General Manager Johnson's express reference to
salaries in relation to declining income at the Feb-
ruary 1985 meeting with employees Scott and
Schade established that the predominant reason for
elimination of the production department was labor
costs . We disagree.
Contrary to the judge, we are unable to find
under the circumstances of this case that the Re-
spondent's decision turned upon labor costs simply
by virtue of General Manager Johnson's reference
to salaries at the February 1985 meeting. Thus, the
evidence is clear that the production department
had suffered a precipitous decline in revenues from
approximately $100,000 to, at most, $6900.4 Gener-
al Manager Johnson attempted to increase revenues
thereafter through increased sales efforts to no
effect. Further, it is uncontradicted that the Re-
spondent's efforts to do so were limited by the ab-
sence of certain special effects equipment that it de-
cided was not cost effective to procure. After a 6-
month effort, income generated by the production
department remained unchanged.
On these facts, we find that the essence of the
decision to eliminate the production department
was based on the failure of that department to gen-
erate revenues sufficient to justify its continued ex-
istence; that consequently it did not constitute a
mandatory subject of bargaining because it turned
on a fundamental change in the direction of its
business.5 Thus, the Respondent was faced with a
situation in which a department employing three
employees and utilizing equipment at hand generat-
ed income that was, beyond question, extremely
low and essentially nominal in character. Although
Johnson made specific reference at the February
1985 meeting to $184,000 in production department
salaries, and perhaps this played a role in triggering
an attempt to increase revenues , it does not follow
that the decision, therefore, must have "turned
upon" labor costs. Inland Steel Container Co., 275
NLRB 929, 937 (1985), enfd. sub nom. Steelworkers
Local 2179 v. NLRB, 822 F.2d 559 (5th Cir. 1987).
Rather, it appears that production revenues were
so low that, in the absence of a substantial increase
in income, the department was not economically
viable irrespective of salary levels. In this context,
the logical import of Johnson's reference to in-
creasing salary levels, in relation to decreasing
income, was to demonstrate the plight of the de-
4 Although employee Scott testified that Johnson described 1984 pro-
duction income as $6900 , Johnson testified that it was in the range of
$4000-5000.
5 These findings are warranted under any of the views expressed in
Otis Elevator Co, supra
partment and to impress on the employees the need
to increase revenues. This likelihood is supported
by Johnson's contemporaneous instructions to co-
ordinate matters with the Respondent's sales de-
partment and by Johnson's comments that, unless
the production department generated greater
income, its future would be in jeopardy. Accord-
ingly, we shall dismiss that portion of the com-
plaint alleging that the Respondent unlawfully
eliminated the production department without bar-
gaining with the Union.
2. The judge also found that even if the decision
to eliminate the production department was not a
mandatory subject of bargaining, the Respondent
still had the obligation to negotiate with the Union
concerning the effects of that decision on wages,
hours, and employment conditions of bargaining
unit employees. The Respondent contends in its ex-
ceptions that the complaint did not encompass any
allegations that the Respondent failed to bargain
over effects, as found by the judge. We find merit
in the Respondent's exception.
With regard to the elimination of the production
department, the complaint alleged in its entirety
that the Respondent violated Section 8(a)(5) and
(1) when it "unilaterally eliminated the production
department, resulting in the lay off of three em-
ployees without bargaining with the Charging
Party." As contended by the Respondent, the com-
plaint does not allege a separate unlawful refusal to
bargain over the effects of the elimination of the
department on wages, hours, and employment con-
ditions. More particularly, the allegedly unlawful
conduct placed in issue by the General Counsel
was the Respondent's failure to bargain over the
decision to eliminate the production department,
i.e., the unilateral discontinuance of the production
department without first bargaining with the
Union. Indeed, at the hearing the parties limited
the factual issues to be litigated by stipulating that
the Respondent took unilateral action without bar-
gaining "over the decision to eliminate the depart-
ment." Further, neither the General Counsel nor
the Union contended at the hearing or in their
posthearing briefs that the Respondent had not
only failed to bargain over the decision to eliminate
the production department but also separately
failed to bargain in violation of the Act over the
effects of that decision.6 Accordingly, we agree
with the Respondent that the issues litigated did
not encompass the effects-bargaining violation
6 We also note that although both the General Counsel and the Union
filed answering briefs in response to the Respondent 's exceptions, neither
party took issue with the Respondent 's contentions regarding the judge's
allegedly erroneous findings as to effects bargaining.
WXON-TV
found by the judge, and we shall delete those find-
ings from our Order.7
3. By letter dated November 11, 1985, the Union
requested certain information from the Respondent
pertaining to the following matters: the reasons for
the termination of bargaining unit employees
Joseph Pzenowagis, Robert Schade, and Carl
Scott; accompanying documents referring to that
decision; the status of in-house production work;
the status of public service broadcasting spots; pro-
duction service subcontracting; duties of the chief
operator; and bargaining unit work being per-
formed by supervisory personnel.
That same day, November 11, 1985, the Union
signed the unfair labor practice charge, officially
filed on November 12, 1985, alleging that the Re-
spondent violated Section 8(a)(1), (3), and (5) by
unilaterally changing terms and conditions of em-
ployment of bargaining unit employees , assigning
quasi-supervisory duties to unit employees, termi-
nating and discriminating against employees, and
refusing to provide requested information.
By letter dated December 4, 1985, the Respond-
ent, through Labor Relations Director Shirley
Moore, responded to the Union's information re-
quest. The letter, noting that the request was filed
only I day prior to the filing of the unfair labor
practice charge, advised the Union that most of the
requested information would be provided to the
Board in the course of the investigation and that, as
a result, the Respondent would not provide the in-
formation directly to the Union. By letter of De-
cember 6, 1985, the Union demanded that the re-
quested information be supplied directly to the
Union. On December 31, 1985, the Regional Direc-
tor for Region 7 issued the complaint in this case.
Thereafter, by letter of January 8, 1986, counsel for
the Respondent provided the Union with a copy of
its position statement submitted to the Region in
connection with the investigation of this case.
Counsel for the Respondent indicated in the letter
that the Union should advise her in the event that
additional questions remained unanswered and that
7 We find this case factually distinguishable from the Board's recent
decision in Litton Business Systems, 286 NLRB 817 ( 1987). In that case,
the Boatd found that an employer violated Sec. 8(aX5) and (1) by refus-
ing to bargain over its decision to lay off unit employees as an effect of
its decision to convert its plant machinery to a new process . In Litton,
however, in contrast to the instant case , the complaint separately alleged
an unlawful failure to bargain over "the decision to lay off employees,"
and effects bargaining issues were fully litigated Id. at fn . 7. Further, in
Litton the General Counsel did not contend to the Board that the under-
lying decision to convert the machinery was a mandatory subject of bar-
gaining, thereby framing the issue to be decided , under the facts of that
case, as pertaining to the decision to lay off employees Here, the issue
litigated by the General Counsel was whether the unilateral decision to
eliminate the department entirely was a mandatory subject of bargaining
because it turned on labor costs ; and, as noted , neither the General Coun-
sel nor the Union made any specific contention regarding an effects bar-
gaining violation
617
an attempt would be made to provide appropriate
responses. The parties stipulated that there was no
response to the January 8, 1986 letter. There is no
evidence that the Union otherwise sought to bar-
gain over the matters contained in the unfair labor
practice charge and in the November 11, 1985 re-
quest for information.
The judge found that the Respondent violated
Section 8(a)(5) and (1) by not providing the re-
quested information. The Respondent excepts to
that finding, contending that under the circum-
stances presented in this case, the Union's request
for information was not for the purpose of collec-
tive bargaining but was for a purpose related to its
unfair labor practice charge. We find merit to this
contention and reverse the judge's finding of a vio-
lation.
It is axiomatic that a collective-bargaining repre-
sentative is entitled to information relevant and
necessary to the proper discharge of its duties as
the collective-bargaining representative. NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1955). In the instant
case, however, it appears that the Union elected to
pursue resolution of the matters sought in its No-
vember 11, 1985 request for information through
the Board's unfair labor practice procedures rather
than through the collective-bargaining process.
Thus, on the same day that it requested information
from the Respondent, the Union signed, and by the
next day had filed, an unfair labor practice charge
raising virtually the identical matters sought in the
information request-the unilateral elimination of
the production department, the elimination of unit
work by unilateral creation of a supervisory posi-
tion, and the discriminatory termination of employ-
ees because of their union activities. Indeed, the
unfair labor practice charge alleges that the Re-
spondent unlawfully failed to provide information,
pertaining to the very matters contained in the in-
formation request made on the same day that the
charge was prepared.
Thus, before the Respondent even had knowl-
edge of the request for information, let alone an
opportunity to respond, the Union was charging it
with violating the Act by failing to provide the re-
quested information. Further, apart from the infor-
mation request itself, there is no evidence that the
Union initiated any contact whatsoever with the
Respondent in any bargaining context regarding
the matters contained in the information request
and the unfair labor practice charge. Thus, it is evi-
dent that the Union chose to prosecute these mat-
ters through the Board's unfair labor practice pro-
cedures rather than to bargain with the Respond-
ent. Its information request, therefore, under the
facts of this case, was akin to a discovery device
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pertinent to its pursuit of the unfair labor practice
charge rather than to its duties as collective-bar-
gaining representative. Huck Mfg. Co., 254 NLRB
739, 755 (1981 ); American Oil Co., 171 NLRB 1180,
1188 (1968). Accordingly, we shall dismiss that
portion of the complaint alleging that the Respond-
ent violated Section 8(a)(5) and (1) by failing to
provide information."
4. We agree with the judge that the Respondent
violated Section 8(a)(3) and (1) by refusing to rein-
state employee JoAnn Thompson.9 In adopting the
judge's findings, however, we note, in addition to
the judge's analysis of the Respondent's defense,10
the following with respect to the evidence perti-
nent to the Respondent's evidentiary burden under
Wright Line, 251 NLRB 1083 (1980)-a burden
which, like the judge, we find the Respondent has
not carried.
Thompson began her employment with the Re-
spondent in 1983. On September 6, 1985, Thomp-
son commenced an approved unpaid pregnancy
leave of absence for the birth of her child. For sev-
eral weeks prior to her leave of absence, she
worked in the Respondent's traffic department as a
traffic assistant preparing "facility sheets." The fa-
cility sheets prepared by Thompson contain titles
and segment times for commercials and instruct the
station's engineers when commercials are to be
aired.
Commercials, however, are often not aired, and
during each month the Respondent prepares "pre-
emption forms" that contain information concern-
ing each commercial that was not broadcast. Pre-
emptions may occur in connection with an error in
the preparation of facility sheets in the traffic de-
partment or they may occur because of broadcast
scheduling that does not permit the commercial
8 Further , to the extent the November 11, 1985 request pertained to
the decision to eliminate the production department , it did not concern a
mandatory subject of bargaining and, therefore , the Respondent was not
obligated to provide requested information bearing on that decision. UOP
Inc., 272 NLRB 999, 1000 ( 1984); Otis Elevator Co, supra at 894
In agreeing with his colleagues that the Respondent did not violate
Sec. 8(a)(5) and (1) by failing to furnish the requested information,
Member Johansen reties on the fact that there had been no refusal to the
Union's sole request for the information when it filed its charge alleging
such a refusal.
8 We adopt the judge's findings that the General Counsel met her
burden under Wright Line to establish that Thompson 's union activities
were a motivating factor in the failure to reinstate , noting Thompson's
role as a union activist, the Respondent's knowledge of Thompson 's role,
and the disparate treatment directed toward Thompson in comparison to
all other employees who took pregnancy leave , all of whom were rein-
stated upon application
1° In rejecting the Respondent 's defense for not reinstating Thompson,
the judge concluded "that the Respondent's contention that Thompson
was an incompetent employee was a pure fabrication " He deemed the
evidence submitted to show her alleged incompetence to be "unpersua-
sive" and "not credible " Although these conclusions of the judge sug-
gest that he viewed the Respondent 's assertions as purely pretextual, he
nevertheless appears to have considered the merits of those assertions on
their own terms
spot. It is clear , however, that they occur in the
regular course of business. It is also clear that the
airing of commercials provides the principal source
of income for the Respondent, and that when a
commercial is not broadcast, i.e., "preempted," the
Respondent does not get paid for it.
About November 1, 1985, Thompson sought to
return to her traffic assistant position. Her request
was denied. The Respondent, through General
Manager Douglas Johnson, advised Thompson by
letter of November 1, 1985, that she would not be
reinstated because her job performance prior to the
approval of her leave had been unsatisfactory.
Johnson indicated further that Thompson's former
position would be eliminated shortly and would be
performed automatically by computer. 11
The Respondent contends that Thompson was
not reinstated because of her unsatisfactory job per-
formance in the preparation of facility sheets. More
specifically, the Respondent asserts that it lost sub-
stantial revenues from Thompson's errors in pre-
paring facility sheets, as a result of which a number
of commercials were preempted, and hence no pay-
ment was received. Contrary to the Respondent,
we find that the Respondent has failed to establish
that Thompson would not have been reinstated, for
the reason asserted by it, even without her union
activities.
At the outset, we note that, as the judge found,
the amount of revenue loss caused by the failure to
broadcast preempted commercials normally is in
the range of approximately $3000 monthly. During
Thompson's tenure in writing facility sheets, essen-
tially around August 1985, the revenues lost be-
cause of preempted commercials totaled $3630. Ac-
cording to the preemption forms for that period,
$2060 was attributed to facility sheets prepared by
Thompson and $1570 to other sources. Critically,
the Respondent presented no documentary evi-
dence for any other monthly period detailing the
usual monthly breakdown of revenue losses con-
tained in its preemption forms, notwithstanding
that the Respondent admittedly had in its posses-
sion thousands of commercial contracts for a 12-
month period, containing numerous preemption
forms. 12
" The parties stipulated that about November 19, 1985, the Respond-
ent unsuccessfully attempted to use a computer program to automate the
"facility function" in the traffic department and that the department has
operated subsequently in the same manner as it had prior to August 1985
i2 The judge noted that the Respondent "brought forth approximately
nine boxes of materials representing contracts for about 6 months before
and 6 months after the events of this matter which contained many of the
preemption sheets " The only preemption sheets introduced into evi-
dence, however, were the sheets placed in Thompson's file during the
period she was employed in the traffic department.
WXON-TV
More particularly, the record contains no proba-
tive documentary evidence concerning relative per-
centage of revenue losses normally attributable to
the errors in the traffic department, as distinguished
from scheduling events, or the relative percentage
of traffic department errors normally attributable to
the employee occupying the position occupied by
Thompson during her tenure in the traffic depart-
ment .13 Further, the total amount of revenue lost
during Thompson's traffic department tenure
($3630) is not disproportionate to the norm ("ap-
proximately" $3000), and $1570 of the revenue
losses during that period was attributable to other
sources. Indeed, even if it is assumed that the total
revenue losses during the period Thompson per-
formed as a traffic assistant exceeded the monthly
average by $630, that amount conceivably may
have been wholly or primarily attributable to dis-
proportionate losses from sources outside the traffic
department during that period.
In short, even assuming that revenue losses of
$2060 were attributable to Thompson's preparation
of facility sheets, the Respondent has not demon-
strated that Thompson's job performance exceeded
the usual range of preemption losses which the Re-
spondent itself tolerated in the normal course of
business .14 Accordingly, we adopt the judge's find-
ing that the failure to reinstate Thompson violated
Section 8(a)(3) and (1) of the Act.
5. We agree with the judge that the Respondent
coercively interrogated employee Carl Scott in vio-
lation of Section 8(a)(1). The record shows that
several days before the Board-conducted election
in August 1985, pursuant to which the Union was
certified as bargaining representative, General
Manager and Vice President Douglas Johnson
called production department employee Carl Scott
into a management office. This meeting was one of
a series of meetings conducted by Johnson with in-
dividual employees during the week preceding the
election. At the outset of the meeting with Scott,
Johnson indicated that he did not care one way or
the other about the Union and that if it was time
for the Union to come in or not, it did not make
much difference. Johnson then asked Scott whether
he was in favor of the Union. After Scott indicated
he was not in favor of the Union, Johnson stated
that Scott should not worry about their conversa-
tion the previous February regarding the future of
the production department. Johnson also stated, in
reference to the Union, that "he wanted to squash
18 The traffic department is composed of a traffic manager, a traffic
assistant , and another individual whose specific duties are not detailed in
the record
14 We also note that apart from the absence of probative documentary
evidence, the judge found that Traffic Manager Petrykowski 's testimony
regarding Thompson's job performance was not credible
619
this thing and squash it big." The judge also found
that Johnson told Scott that voting the Union in
was akin to a slap in the face to management. 1 s
Applying Sunnyvale Medical Center, 277 NLRB
1217 (1985), we find that Johnson's interrogation of
Scott under the circumstances reasonably tended to
restrain , coerce, or interfere with Section 7 rights.
First, we note that the inquiry was made by a high
management official, Johnson, who occupied the
positions of general manager and vice president
and who, the previous February, had informed
production employee Scott that the future of the
production department was in jeopardy. Thus, at
the time of the inquiry, Scott was aware that John-
son essentially was reevaluating the future of
Scott's job status. Indeed, Johnson's oblique refer-
ence to their February conversation served to em-
phasize this reality. Second, the inquiry took place
in a one-to -one encounter in a management office
only days before the representation election, and
the nature of the information sought in this encoun-
ter concerned Scott's preference in that election.
Third, considering the encounter as a whole, the
interrogation occurred in the context of Johnson's
highly charged expressions of hostility toward the
Union. Thus, Johnson indicated to Scott that he
wanted to "squash" the Union and "squash it big"
and expressed the view that a favorable vote for
the Union would be a slap in the face to manage-
ment. Although at the outset of the encounter
Johnson expressed assurances of neutrality regard-
ing the Union, these assurances were directly con-
tradicted by his subsequent comments, and could
not be taken at face value. In these circumstances,
we agree with the judge that the interrogation vio-
lated Section 8(a)(1) of the Act.16
REMEDY
Having concluded that the Respondent has en-
gaged in certain unfair labor practices, we shall
order the Respondent to cease and desist and to
ib In finding that an interrogation regarding Scott's union sympathies
took place, it appears that the judge credited elements of both Scott's
version of the conversation and elements of Johnson 's version Thus, the
judge found that Johnson stated that employees' voting for the Union
would be considered a slap in the face of management , which is consist-
ent with Johnson 's version , whereas Scott 's version is that Johnson indi-
cated that if the employees voted in the Union , "it was just like the em-
ployees saying, fuck you, management " Further, Scott testified , as found
by the judge, that Johnson asked him whether he was for the Union,
whereas Johnson testified that he did not ask Scott what his feelings were
with regard to the Union and that Scott voluntanly indicated he was not
for the Union None of the parties filed exceptions to the judge's resolu-
tions of credibility
16 We find no ment to the Respondent 's contention that the judge
erred in not permitting the Respondent's counsel to question Scott re-
garding whether he subjectively perceived himself to be coerced
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
take certain affirmative action designed to effectu-
ate the policies of the Act.' 7
Having concluded that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally
creating a new supervisory position to include bar-
gaining unit work, without bargaining with the
Union,1' we shall order the Respondent, if the
Union so desires, to rescind the position of assistant
chief operator. Kendall College, 228 NLRB 1083
(1977).
Having concluded that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to re-
instate employee JoAnn Thompson to her former
position, we shall order the Respondent to offer
JoAnn Thompson immediate and full reinstatement
to her former job or, if that job no longer exists, to
a substantially equivalent position, without preju-
dice to her seniority or any other rights or privi-
leges previously enjoyed, and make her whole for
any loss or earnings and other benefits she may
have suffered in accordance with the provisions of
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded.' 9
ORDER
The National Labor Relations Board orders that
the Respondent, WXON-TV, Inc., Southfield,
Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concern-
ing their interest or their activity on behalf of the
Union.
(b) Unilaterally creating a new supervisory posi-
tion to include bargaining unit work without bar-
gaining with the Union.
(c) Refusing to reinstate an employee who took
maternity leave of absence because of her interest
in and activity on behalf of the Union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) If the Union so desires, rescind the position
of assistant chief operator, and accord recognition
17 Under the circumstances of this case , and given the nature of the
violations found, we have substituted a narrow cease-and-desist order for
that recommended by the judge We have also deleted the ,judge 's recom-
mended inclusion of a visitatorial clause . Cherokee Marine Terminal, 287
NLRB 1080 (1988).
18 No exceptions were filed to the judge's findings on the merits re-
gardmg this allegation.
19 283 NLRB 1173 (1987). Interest will be computed at the "short-
term Federal rate" for the underpayment of taxes as set out in the 1986
amendment to 26 U S C § 6621
to the Union as the collective-bargaining represent-
ative of the former occupant of that position who
was in the bargaining unit.
(b) Offer JoAnn Thompson immediate and full
reinstatement to her former job or, if the job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section
above.
(c) Remove from its files any reference to the
unlawful refusal to reinstate JoAnn Thompson and
notify her in writing that this has been done and
that her alleged poor work performance will not be
used against her in any way.
(d) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Southfield, Michigan facility copies
of the attached notice marked "Appendix."20
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(t) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
20 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WXON-TV
WE WILL NOT coercively interrogate employees
concerning their interest in or activity on behalf of
National Association of Broadcast Employees and
Technicians, AFL-CIO.
WE WILL NOT unilaterally create a new supervi-
sory position to include bargaining unit work with-
out bargaining with the Union.
WE WILL NOT refuse to reinstate an employee
who took maternity leave of absence because of
her interest in or activity on behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, if the Union so desires, rescind the po-
sition of assistant chief operator and WE WILL
accord recognition to the Union as the collective-
bargaining representative of the former occupant of
that position who was in the bargaining unit.
WE WILL offer reinstatement to JoAnn Thomp-
son to her former job or, if that job no longer
exists, to a substantially equivalent position of em-
ployment and WE WILL make her whole for any
loss of wages or other rights and benefits she may
have suffered as the result of our discrimination
against her, less any net earnings, plus interest.
WXON-TV, INC.
Mark D. Rubin, Esq., for the General Counsel.
Elaine Grand Stulberg, Esq. (Sommers, Schwartz, Silver &
Schwartz), of Southfield, Michigan, for the Respond-
ent.
Samuel C. McKnight, Esq. (Klimist, McKnight, Sale &
McClow), of Southfield, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me at Detroit, Michigan, on 14
and 15 April 1986, on the General Counsel's complaint
that alleged that the Respondent engaged in certain vio-
lations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (29 U.S.C. § 151 et seq.)'
In brief it is alleged that the Respondent unlawfully in-
terrogated an employee, discriminated against an em-
ployee by refusing to reinstate her following a maternity
leave of absence, and breached its obligations to bargain
in good faith by: unilaterally eliminating the production
department (resulting in the layoff of three bargaining
unit employees), unilaterally creating a supervisory posi-
tion and vesting it with bargaining unit duties , unilateral-
ly transferring bargaining unit work to supervisors, and
1 The charge was filed on 12 November 1985, and the complaint issued
on 31 December 1985.
621
refusing to furnish the Charging Party certain requested
information.2
The Respondent generally denied that it committed
any unfair labor practices and affirmatively contends that
JoAnn Foggie Thompson3 was not reinstated following
her maternity leave of absence because of poor work
performance. The Respondent contends that whether to
eliminate the production department was not a mandato-
ry subject of bargaining, and therefore its decision could
be made unilaterally. The Respondent contends that
during the course of the investigation of the charges it
furnished the information requested by the Charging
Party. The Respondent argues there was no change in
the bargaining unit work done by supervisors; and final-
ly, the Respondent denies that the interrogation of em-
ployees was unlawful.
On the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The Respondent is a Michigan corporation engaged in
the operation of an independent UHF television broad-
casting station . In this business , the Respondent annually
has gross revenues in excess of $500,000, and broadcasts
nationally advertised products the revenue from which
exceeds $50,000, utilizes national news services for which
it pays in excess of $ 10,000, and has purchased goods,
products, and materials with value in excess of $50,000
directly from points outside the State of Michigan. The
Respondent admits, and I find , that it is an employer en-
gaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
National Association of Broadcast Employees and
Technicians , AFL-CIO (the Union) is admitted to be,
and I find is, a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Douglas Johnson is the Respondent's vice president
and general manager . A. J. Johnson, his father, is the
chairman of the board of directors and president. In Feb-
ruary 1985,4 Douglas Johnson called into his office Carl
Scott and Bob Schade, two of the three production de-
partment employees, and discussed with them the gener-
al lack of productivity in that department. According to
Scott's testimony, Johnson said that for 1984 the produc-
tion department salaries were $184,000 while the depart-
ment income was $6900. This compared unfavorably
with the preceding years, but was consistent with the
2 Other allegations of 8(a)(5) violations were alleged in the complaint
but either were withdrawn or no evidence was offered concerning them.
Thus, the allegations summarized above were the only ones litigated
3 This spelling is from her signature on an exhibit . The transcript is in
error and is corrected.
4 All dates are in 1985 unless otherwise indicated.
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trend. Revenues for the production department had been
going down with the salaries going up.
Notwithstanding these figures, there apparently was no
discussion at that time between management and employ-
ees concerning the possibility of eliminating the produc-
tion department. Indeed, the Respondent's sales manager,
Sandy Henry, testified that during the spring, the sales
department was increased and sales efforts included
pitching to potential customers the fact that the Re-
spondent had its own production capability.
Other than these two events, the record is devoid of
any evidence concerning the status of the production de-
partment from early 1985 until the Respondent deter-
mined to eliminate it on 30 August.
Sometime in 1985 , the Union began an organizational
campaign among the Respondent 's employees . Active in
this campaign was bargaining unit employee JoAnn
Thompson. A representation hearing was held on 7 June
at which she appeared as a witness on behalf of the
Union. Although it is unclear from the record the dispo-
sition of that hearing, an election was in fact held among
the Employer's bargaining unit employees5 in which a
majority voted in favor of representation by the Union.
Thus, the parties stipulated that on 30 August the Union
was certified as the employees' bargaining representative.
On that date , as noted above , the Respondent eliminat-
ed its production department and subsequently the three
production department employees were terminated-Carl
Scott and Robert Schade effective 13 September and Joe
Dzenowagis effective 20 September.
Prior to the election, which apparently was sometime
in August, Douglas Johnson individually called into his
office most, if not all , of the bargaining unit employees
and asked them, according to his testimony, about their
"concerns." Johnson's discussion with Scott along these
lines is alleged to have been violative of Section 8(a)(1)
of the Act.
On 23 September, the Respondent created a new su-
pervisory position of assistant chief operator, which job
included supervisory responsibilities as well as duties pre-
viously performed by the bargaining unit position of as-
sistant chief operator. It is agreed that the Respondent
gave no notice to the Union prior to creating this posi-
tion.
And in connection with this, Gary King was promoted
from the bargaining unit position of assistant chief opera-
tor to the supervisory position of chief operator but he
continued to perform bargaining unit duties in addition
to those supervisory duties of chief operator. The pro-
motion and the continued performance of these duties by
King was without notification to or bargaining with the
Union.
On 11 November, counsel for the Union wrote Doug-
las Johnson asking to be furnished certain information
S It is alleged and admitted that the appropriate bargaining unit within
the meaning of Sec 9(b) of the Act is-
All employees employed by WXON-TV, Inc., in Southfield, Michi-
gan, who are directly involved in the production , presentation and
transmission of programs, including on-air personnel , technicians,
production technicians, maintenance technicians, film editors and the
shipping and receiving clerk, but excluding clerical employees, sales-
persons, guards and supervisors as defined in the Act
with regard to the termination of the production depart-
ment employees and the promotion of Gary King and
another employee. This letter was answered on 4 De-
cember by Shirley L. Moore, the Respondent's director
of labor relations, who stated that as a result of the
Union having filed a charge with the Board, the informa-
tion requested would be furnished during the course of
the investigation and "as a result, we will not be provid-
ing the information directly to you."
On 6 December, counsel for the Union replied to that
letter stating that the Union demanded the information
be furnished directly. On 8 January 1986, counsel for the
Respondent sent to the Union a position statement that
had been submitted to the Board in connection with the
investigation of the instant matter. The Respondent con-
tends that this position statement contains all the infor-
mation requested by the Union to which it is entitled.
JoAnn Thompson was hired as a film editor in 1983
and worked in that job until July 1985, at which time she
was transferred to the traffic department, apparently as a
result of reduced work available for film editors. In the
traffic department Thompson, along with others, was re-
sponsible for writing up "facility sheets." These are in-
structions to the engineering department concerning the
time when certain commercials are to be aired. Accord-
ing to the Respondent, in this work Thompson made a
"costly amount of errors," whereas for others with the
same training "errors were few."
On 16 August, Thompson wrote a memo to her super-
visor stating that "as per company policy" (which she
testified, uncontradictedly, she learned from A. J. John-
son) she wished to take pregnancy leave for 90 days be-
ginning with the date of her delivery, which was estimat-
ed to be 28 August. She in fact left work on 6 Septem-
ber.
About 1 November she requested her job back effec-
tive 4 November but was advised by letter of 1 Novem-
ber from Douglas Johnson that she would not be rehired
in the traffic department because "the work you were as-
signed was not done properly and accurately." He went
on to say that the job was going to be computerized, and
thus there would be no work for her in that department
in any event. He indicated that should a job come open
for which she was qualified, she would be considered."
B. Analysis and Concluding Findings
1. Interrogation
Douglas Johnson testified in connection with his inter-
rogation of Carl Scott, as well as the others, "that I was
not concerned with how they voted. I wanted to make
that perfectly clear at the outset, that I wasn't concerned
about their feelings about the union." He went on to tes-
tify, however, that he had set up these meetings individ-
ually with the employees the week prior to the election
Although Johnson in his letter refers to Thompson's job as being a
"clerical position," which apparently would be one excluded from the
bargaining unit, there is no contention that Thompson was not in fact a
bargaining unit employee at the time she entered on maternity leave, nor
that the position for which she sought reinstatement following her preg-
nancy is a bargaining unit position
WXON-TV
in order to discuss "their individual needs and concerns,"
and "was the primary reason to find out if there were
any common elements that in fact were taking place or
in fact any individual concerns."
Johnson further testified he told Scott, "that in fact if
they voted in the Union, it could be construed as a slap
in the face to management . That is what I said."
According to Scott, Johnson called him into the chief
engineer's office and asked if he was "in favor of the
union coming in." Scott said, " no." Johnson then told
Scott not to worry about what had happened in Febru-
ary (apparently referring to the discussion concerning
the production department) and, according to Scott,
Johnson said , "He wanted to squash this thing and
squash it big."
Although the testimony of Scott and Johnson concern-
ing this event differ in some minor respects, Johnson did
not deny Scott's testimony that he said he wanted "to
squash this thing and squash it big." That statement,
along with Johnson's admission that a vote by employees
for the Union would be considered "a slap in the face of
management ," clearly removes the interrogation from
the type approved by the Board in Rossmore House, 269
NLRB 1176 (1984).
The interrogation concerning an employee's union
sympathies took place the week prior to an election
during which the Company's chief operating officer
stated that he wanted to squash the Union and that
voting for the Union would be considered a slap in the
face of management . Such aggressive comments imply
more than innocent inquiry. Johnson's systematic interro-
gation of employees was not the benign , trivial , or isolat-
ed type of interrogation that sometimes the Board has
concluded is not unlawful. Here, Johnson in fact interro-
gated employees in an effort to assure them that their
"concerns" were being considered , while at the same
time suggesting to them how unhappy management
would be were they to vote for the Union. I believe and
conclude that Johnson's interrogation of Scott in July
1985 was violative of Section 8(a)(1) of the Act.
2. Elimination of production department
The Respondent stipulated that it unilaterally terminat-
ed the production department on 30 August, and that the
three production department employees were discharged.
The Respondent admits by stipulation that it did not bar-
gain or attempt to bargain with the Union concerning
this matter.
The Respondent argues that its decision to eliminate
the production department is not a mandatory subject of
bargaining . Inasmuch as the decision involved a change
in the course of its business, such was therefore not the
type of matter about which it is required to bargain with
the Union, citing First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (1981), and Otis Elevator Co., 269
NLRB 891 (1984). I disagree.
At the outset it should be noted that whether the Re-
spondent was economically justified in eliminating the
production department is not an issue. Indeed, from the
scanty facts of record, it appears that the production de-
partment was not economically viable and that the Re-
spondent could have its needs better met by outside pro-
623
duction. Nevertheless, the question is whether the Re-
spondent's decision to eliminate three bargaining unit
jobs was the type of thing about which it was obligated
to bargain with the Union.
Although the allegation on this issue involves the Re-
spondent's alleged refusal to bargain in good faith, I note
that the decision was made after the employees designat-
ed the Union as their bargaining representative, even
though the facts concerning the low productivity of the
production department had been known for many
months . Such suggests discrimination in the Respondent's
30 August decision. But discrimination in this respect
was not alleged.
There is scanty evidence concerning the basis of the
Respondent's decision. The principal evidence is that the
production department's revenues for some time had
been less than the production department salaries. John-
son testified that some of the equipment needed for pro-
duction was not cost justified. Since the primary factor
appears to have been the production department salaries
against revenues, it is clear that the Respondent 's deci-
sion from a business standpoint turned substantially on
labor costs. Although there may have been other factors
involved, on this record I conclude that labor costs were
predominating.
In Otis Elevator, the Board, in expanding on the ration-
ale of the Supreme Court in First National Maintenance,
stated that under certain circumstances a company's de-
termination to change the course of its business, notwith-
standing loss of bargaining unit jobs, was not a mandato-
ry subject of bargaining. The Board noted that the "deci-
sion did not turn upon labor costs," though such may
have been a factor. Thus, the decision was not one that
the company had an obligation under Section 8(a)(5) of
the Act to negotiate with the union. Nevertheless, the
employer had a duty to bargain over its effects.
And in any event, even if the initial decision to elimi-
nate the production department was not a mandatory
subject of bargaining, the Respondent had the clear obli-
gation under the Act to negotiate with the Union con-
cerning the effects of the decision that in this case in-
cluded the termination of three bargaining unit employ-
ees. In no respect did the Respondent negotiate or even
tell the Union of its plans to eliminate the production de-
partment, nor give the Union an opportunity to negotiate
concerning the effects of this decision on wages, hours,
and employment conditions of bargaining unit employ-
ees. Accordingly, I conclude that by failing to bargain
with the Union concerning its decision of 30 August to
eliminate the production department and its failure to
bargain with the Union over the effects of this decision,
the Respondent violated Section 8(a)(5) of the Act. I
shall recommend an appropriate remedy.
3. Creating the supervisory position
It is alleged in paragraph 12(c) of the complaint that
about 23 September, the Respondent created a new su-
pervisory position (assistant chief operator), the job
duties of which included bargaining unit work.
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is further alleged in paragraph 12(e) that about 30
August, the Respondent unilaterally transferred bargain-
ing unit work to supervisory employees.
At the outset of the hearing the parties stipulated:
Two, on or about September 23, 1985, Respondent
created a new supervisory position of Assistant
Chief Operator, vesting the job with supervisory re-
sponsibilities and with the work previously per-
formed by the bargaining unit position of Assistant
Chief Operator without prior notice to or bargain-
ing with the Charging Party.
At that time the assistant chief operator was Gary
King . Although the only evidence concerning the allega-
tion of paragraph 12(c) of the complaint is the stipula-
tion , it is clear that the Respondent made Gary King's
job as assistant chief operator a supervisory position
where before it had been included in the bargaining unit.
Presumptively then, and undeniably, following 23 Sep-
tember , King was a supervisor but continued to perform
some of the work (if not all the work) that he had per-
formed while a member of the bargaining unit. It is
therefore clear that as a result of the Respondent 's unilat-
eral action, from and after 23 September the bargaining
unit suffered a loss of work.
The "loss of work is a change in the terms and condi-
tions of employment which under Sec. 8(d) of the Act,
the employer is obligated to bargain over with the union.
Respondent's failure here to bargain over that change
thus violates Sec. 8(a)(5)." Lutheran Homes, Inc., 264
NLRB 525 at fn. 2 (1982). Although the Respondent
contends that to be a mandatory subject of bargaining
such a loss of unit work would have to be "substantial,"
there is no evidence to rebut the reasonable presumption
that in a small bargaining unit such as here, the loss of
one job would not be substantial.
Although the record is sparse on this issue, I do con-
clude that the Respondent's decision to make the assist-
ant chief operator a supervisor had the result of reducing
the amount of work available to bargaining unit employ-
ees by one job. Such therefore was the type of decision
over which the Respondent had a mandatory obligation
to bargain. By unilaterally creating the job of assistant
chief operator as a supervisory position , the Respondent
violated Section 8(a)(5) of the Act and an appropriate
remedy will be recommended.
About this time, the chief operator resigned and on 23
September King was promoted to that job. This is al-
leged in paragraph 12(d) to have been a unilateral act on
the part of the Respondent violative of Section 8(a)(5),
again under the rationale of Lutheran Homes, supra. The
parties stipulated:
Number four, on or about September 23, 1985,
Gary King was promoted from the bargaining unit
position of Assistant Chief Operator to the supervi-
sory position of Chief Operator. Following said
promotion, King continued to perform his former
duties and [sic] in addition the supervisory duties of
Chief Operator. This took place without notification
to or bargaining with the Union.
It appears the General Counsel has alleged both (a) the
assistant chief operator was removed from the bargaining
unit and (b) when King was promoted he continued to
do the work of assistant chief operator , which had been
bargaining unit work. Thus, it appears that the very same
work was lost to the bargaining unit twice on the same
day.
The two stipulations appear simply to be two ways of
stating the same violative conduct engaged in by the Re-
spondent . King, the assistant chief operator , who had
been a bargaining unit employee , was taken out of the
bargaining unit along with the work he was performing.
Even if, as may be the case, on King 's promotion Tom
Bader was made assistant chief operator , there is still
only one violation of the Act. The bargaining unit lost
the work of the assistant chief operator . The chief opera-
tor was always a supervisor . Though it is possible there
was additional loss of work to the bargaining unit, this
record does not reflect it.
I conclude that the Respondent did, in fact , violate
Section 8(a)(5) of the Act by unilaterally creating a su-
pervisory position and including in the duties of that po-
sition work that had previously been done by the bar-
gaining unit.7
4. The request for information
It is alleged that by letter of 11 November, referred to
above, the Charging Party made a request for informa-
tion relevant to the performance of its duties as the certi-
fied representative of the bargaining unit employees, and
that the Respondent 's refusal to furnish such information
was violative of Section 8(aX5). The parties stipulated to
the general facts involved in this matter. The Respond-
ent, however, takes the position that inasmuch as the
Charging Party received this information during the
course of this proceeding, specifically in the form of a
copy of counsel's position statement to the Board, its ob-
ligations under Section 8(a)(5) have been met.
There can be little doubt of the Respondent's general
obligation under the Act to furnish the Union informa-
tion it requests that is relevant to performance of its obli-
gations as the employees ' bargaining representative.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), and
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
The Respondent does not argue this proposition nor
does the Respondent contend that the information re-
quested by the Charging Party was not in fact relevant,
except as to that relating to closure of the production de-
partment. The Respondent contends that it ultimately
furnished the information by giving a position statement
to the Board , which later made its way to the Union.
The Board has long held that the mere fact that the
Union may have obtained the information subsequent to
7 It is alleged in par. 12(b) that the Respondent unilaterally subcon-
tracted bargaining unit work, which paragraph of the complaint was
withdrawn . Similarly , it was alleged in par . 12(d) that on 8 November the
Respondent unilaterally changed bargaining unit positions from full time
to part time thereby reducing bargaining unit work Neither the General
Counsel nor the Charging Party offered any evidence to support this alle-
gation Accordingly , it will be recommended that pars 12(b) and (d) be
dismissed.
WXON-TV
its request does not militate against a finding that the em-
ployer violated the Act in not being forthcoming when
the information was requested . E.g., K & K Transporta-
tion Corp., 254 NLRB 722 (1981). In addition , here the
Respondent never in fact furnished the information to
the Union . It maintains that the Union came on the infor-
mation through other sources . Such is clearly not re-
sponsive to the Employer 's obligations under the Act.
I therefore conclude that by failing to furnish the in-
formation outlined in paragraph 12(f) of the complaint in
a timely fashion, the Respondent violated Section 8(a)(5)
of the Act. An appropriate remedy will be recommend-
ed.
5. Refusal to reinstate JoAnn Thompson
As outlined above, JoAnn Thompson was the princi-
pal organizer of the union activity and appeared as a wit-
ness on behalf of the Union at the representation hearing
on 6 June. When the work of the film editing depart-
ment, of which she was a member, substantially dissipat-
ed, she was transferred to the traffic department in July,
under the supervision of Kim Petrykowski.
Thompson testified credibly and without contradiction
that she talked to Company President A. J. Johnson
who told her that she could have a 90-day leave of ab-
sence without pay and to communicate this to the office
manager, Garnet Bowden (stipulated to be a supervisor).
Thompson wrote a memo to this effect and on 6 Septem-
ber left work to have her baby. When she applied for re-
instatement in November she was denied . Douglas John-
son took the position, as he set forth in his letter, that
she was an incompetent employee in the traffic depart-
ment and that even if she could do the work, the Re-
spondent intended to computerize that job and thus there
would be no work for her.8
The evidence of Thompson's alleged incompetence is
the testimony of Kim Petrykowski to the effect that
during the month that Thompson worked in the traffic
department she made more errors than other employees.
Petrykowski, however, did testify that errors were made
routinely.
As best I can determine, employees in the traffic de-
partment write instructions, on a "facility" sheet, to the
engineering department as to when to put certain com-
mercials on the air. The Respondent's principal, if not
sole, source of income is from the airing of commercials,
and if a commercial does not for some reason, the Re-
spondent does not get paid. Commercials that do not
make it on the air are considered to have been "preempt-
ed." Thus, when a commercial has not been broadcast, a
preemption sheet is attached to the commercial contract
and where known , the reason for the preemption is
stated. The preemption can be the result of an error in
the traffic department (which the Respondent contends
was the case regarding the preemptions for which
Thompson was allegedly responsible) or because the
6 At the time, the Respondent intended to computerize the work
Thompson and others had done in the traffic department but was unable
to do so Since at least mid-November the work has been performed as it
was prior to Thompson's leaving in September
625
commercial time was used for some other reason such as
a speech by the President.
In any event, at the end of each month, the traffic de-
partment is furnished all the preemption sheets and for I
or 2 days Petrykowski will go over these in the presence
of all the traffic department employees while they are
doing their regular duties, and critique them. Petry-
kowski calls out to various employees their errors. Ac-
cording to Petrykowski, Thompson was not the only em-
ployee who committed errors. Indeed, the Respondent
brought forth approximately nine boxes of materials rep-
resenting contracts for about 6 months before and 6
months after the events in this matter, which contained
many preemption sheets. No attempt was made to ana-
lyze all the preemptions on all of these contracts, but suf-
fice it that there were many preemptions of commercial
spots.
During Thompson's leave, Respondent put in her file
18 preemption sheets, which totaled $3630 of lost reve-
nue. Douglas Johnson testified these preemption sheets
cover the month Thompson was employed in the traffic
department. Johnson testified that the station's revenue is
approximately $700,000 per month.
Of 18 preemption sheets in Thompson's file only 12
have her name . These 12 total revenue losses of $2060.
The other six preemption sheets, showing revenue losses
of $1570, do not contain any reference to Thompson, nor
is there any indication from the testimony of Johnson or
Petrykowski as to why these particular sheets were in
Thompson's file. It appears, and I believe, that the Re-
spondent placed in Thompson's personnel file all the pre-
emption sheets for the month of July, regardless of
whether the Respondent knew or had reason to believe
that Thompson was responsible for the fact that the com-
mercial did not run. Further, from Johnson's testimony it
is unclear whether the preemption forms really establish
revenue-losing mistakes, or if so, who, if anyone, was re-
sponsible.
The preemption sheets in Thompson's file simply do
not prove, as contended by the Respondent, that she was
a poor employee.
Thompson was known by management personnel, in-
cluding Kim Petrykowski and Douglas Johnson, as an
activist on behalf of the Union. The Respondent har-
bored animus against the Union, as demonstrated by its
interrogation of Scott as well as its refusal to bargain
with the Union subsequent to the 30 August certification.
And Thompson was treated differently from all other
employees who took pregnancy leave (the parties stipu-
lated that every other employee who had asked for a
leave of absence for pregnancy was in fact reinstated on
application). From these facts I conclude that the Gener-
al Counsel made out a prima facie case of discrimination
against JoAnn Thompson.
The burden therefore shifted to the Respondent to
demonstrate that it would have refused to rehire Thomp-
son even absent her having engaged in union activity.
Wright Line, 251 NLRB 1083 (1980). I conclude that the
Respondent failed to meet its burden. Indeed, I conclude
that the Respondent's contention that Thompson was an
incompetent employee was a pure fabrication. The al-
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged evidence of incompetence was not only unpersua-
sive but is not credible . The testimony of Petrykowski
suggests that Thompson committed no more errors than
other employees in the traffic department , if she in fact
committed any errors . It is impossible to tell from the
preemption forms whether in fact the spots did not run
as a result of an error or for some other reason. In any
event, it is clear that in the regular course of business
commercial spots are preempted . Johnson testified that
the amount of revenue loss averages in the range of
$3000 a month, or about the amount totaled on the pre-
emption sheets that were attached to Thompson's file.
The point is, preemption is common and is not in and of
itself an employment error . There is no persuasive evi-
dence that Thompson committed any more employment
errors than others and absent such , I find that Petry-
kowski 's testimony and her self-serving memo to John-
son incredible.
I believe that the Respondent refused to rehire the
principal known activist on behalf of the Union follow-
ing her pregnancy leave because of her union activity
and because the employees had voted to select the Union
as their bargaining representative . Accordingly, I con-
clude that by failing to reinstate JoAnn Thompson on
her request , effective 4 November, the Respondent vio-
lated Section 8(a)(3) of the Act, and I shall recommend
an appropriate remedy.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business , have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having concluded that the Respondent has engaged in
certain unfair labor practices , I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act, in-
cluding offering immediate and full reinstatement to Carl
Scott , Robert Schade, Joseph Dzenowagis , and JoAnn
Thompson to their former jobs or , if those jobs no
longer exist, to substantially equivalent positions of em-
ployment without loss of seniority , wages, or other
rights and benefits and make them whole for any losses
they may have suffered in accordance with the provi-
sions of F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as provided for in Florida Steel Corp ., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). Backpay for Scott and Schade is to com-
mence 13 September , Dzenowagis 20 September, and
Thompson 4 November.
[Recommended Order omitted from publication.]