Booth Broadcasting Co.

National Labor Relations Board - Board Decisions

Apr 12, 1976

223 N.L.R.B. 867 (N.L.R.B. 1976)

BOOTH BROADCASTING CO. 867
Booth Broadcasting Co. and American Federation of
Television & Radio Artist-Cleveland Local, AFL,
CIO. Cases 8-CA-8961, 8-CA-9162, and 8-CA-
9322
April 12, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On January 14, 1976, Administrative Law Judge
Joseph I. Nachman, issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
plaints, as amended, allege that in the course of an organi-
zational campaign by American Federation of Television
& Radio Artists-Cleveland Local, AFL-CIO (herein
Union), Booth Broadcasting Co. (herein Respondent or
Company), (1) interfered with, restrained, and coerced its
employees in the exercise of their Section 7 rights; (2)
discharged two employees because of their activities on be-
half of the Union; and (3) after the Union won certifica-
tion, failed and refused to bargain with it, all in violation of
Section 8(a)(1), (3), and (5) of the Act. By answer, Respon-
dent admitted the filing of the charges and the nature of its
business, but denied all other allegations of the complaint.
For reasons hereafter more fully stated, I find the allega-
tions of the complaints sustained by the evidence, and rec-
ommend an appropriate order.
At the hearing, all parties were afforded full opportunity
to introduce relevant and material evidence, to examine
and cross-examine witnesses, to argue orally on the record,
and to submit briefs. The General Counsel waived oral
argument, and oral argument by counsel for Respondent is
included in the transcript. Briefs submitted by the General
Counsel and Respondent, respectively, have been duly
considered. Upon the pleadings, stipulations of counsel,
the evidence, including my observation of the demeanor of
the witnesses while testifying, and the entire record in the
case, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Booth Broadcasting
Company, Cleveland, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
1 In his statement of the facts the Administrative Law Judge inadvertently
states that the date of Langford Stephens ' discharge was February 22,
whereas the record shows that it was on February 20.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1960), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
JOSEPH I. NACHMAN, Administrative Law Judge: This pro-
ceeding heard before me at Cleveland, Ohio, on September
30 and October 1 and 2,1 involves three separate com-
plaints issued pursuant to Section 10(b) of the National
Labor Relations Act, as amended (herein the Act), consoli-
dated for hearing and decision.2 In substance the com-
1 These and all dates hereafter mentioned are 1975, unless otherwise indi-
cated.
2 In Case 8-CA-8961, the complaint issued May 9. on a charge filed
FINDINGS OF FACT 3
Respondent operates a radio station in Cleveland, Ohio,
under the call letters WABQ. In late December 1974, Jerry
Wright, employed by Respondent as an announcer and as-
sistant program director, after first discussing the idea with
a member of his fellow employees, contacted Kenneth
Bickl, executive secretary of the Union, and obtained au-
thorization cards and applications for membership in the
Union. Early in January, Wright obtained signed authori-
zation cards and membership applications from five of the
seven employees in the unit and sent them to Bickl. All
these cards were signed on January 14. A sixth card was
signed and mailed to Bickl by an employee on January 19 .4
On January 22, Bickl wrote Respondent that AFTRA rep-
resented the announcers and newsmen employed by Re-
spondent, and that it desired a meeting for the purpose of
negotiating a contract. Respondent did not reply to this
letter.'
February 21. In Case 8-CA-9162, the complaint issued June 26, on a charge
filed May 7. In Case 8-CA-9322, the complaint issued September 11, on a
charge filed July 24, and amended August 15.
3 No issue of commerce or labor organization is presented. The complaint
alleges and the answer admits facts which establish that Respondent is en-
gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act.
Moreover, the Board has heretofore asserted jurisdiction over Respondent's
operations. See Booth Broadcasting Company, 134 NLRB 817 (1961).
4 Employee Michael Dix was not solicited to sign a card because he had
been a member of the International union for some years.
5 General Manager Stenback testified that this letter never came to his
attention, and speculated that it may have been due to the fact that the
station was closed down by reason of community activity, hereafter referred
to in greater detail, for some days between January 22 and January 31 and
that the letter was probably lost. In view of the strong presumption that
mailed matter is delivered in the due course of mail (C.J.S. Evidence, §
Continued
223 NLRB No. 132
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After obtaining the signatures to the authorization cards,
but apparently before transmitting them to Bickl , Wright
asked newscaster Dix what, in the latter 's opinion, would
be the attitude of management about a union . Dix replied
that he did not know, but would ask General Manager
Stenback. The same day Dix did discuss the matter with
Stenback, relating that it was Wright who had asked him
the question . Stenback replied that a union would be cost-
ly, and that he "absolutely did not want a union here."
Promptly after this conversation Dix told Wright what
Stenback had said. Some 10 to 15 minutes later Stenback
came to Wright's office and asked Wright, "Why is ev-
eryone so afraid?" and "Why do [you] need a union?"
Wright replied it was for job security and pay raises. Sten-
back then stated he did not know what he was going to do
about it, and left the room.
Beginning about January 20 , certain groups in the com-
munity,' collectively called United Black Coalition, which
were claiming that the programs broadcast by the WABQ
did not relate to the community , began making demands
on the station with respect to programming and personnel,
and various meetings were held at which these demands
were discussed. Following one such meeting on January
20, Stenback called a staff meeting . Among those attend-
ing, in addition to Stenback , were Station Manager Knight,
Sales Manager Ambler, Program Director Langford Ste-
phens , and Wright . During the meeting there was no dis-
cussion of the Union . However, after the meeting conclud-
ed, and as people were leaving, Stenback told Wright that
he (Stenback) was having a lot of problems about the
Union, and asked Wright why he wanted a union at the
station. Wright again told Stenback that it was for job se-
curity and also added that it was for pay raises, pointing
out that he had been promised a pay raise by the prior
manager , and had not received it. Stenback 's only response
was that he would look into the matter. Later in the day,
Stenback, Wright, and others went to a bar for drinks, at
which time Stenback remarked that he could not under-
stand the men, "What do you need with a Union?
Everybody's job is safe." 8
136(d) ). and the fact that I do not find Stenback to have been a credible
witness, as hereafter more fully set forth. I find that this letter came to
Respondent's attention no later than January 25.
6 The foregoing findings are based on the credited testimony of Wright
and Dix . Stenback denied that he had any conversation with Wright or Dix
concerning the Union in mid- to late January and, in fact , was unaware of
any union activity at that time , although he admitted such activity came to
his attention early in February . Stenback also admitted that on one occa-
sion , which he fixed as late November or early December 1974, Dix met him
in the hall and in a casual manner asked what he (Stenback ) thought about
having a union , and that he had no recollection what reply he made , if any.
I do not credit Stenback's denials of the conversations concerning the
Union with Dix and Wright.
7 These included , inter afro, Hough Area Development, Harmony on Eu-
clid, Black Unity House, and Black Revolutionary Guard.
8 My finding with respect to these conversations between Wright and
Stenback is based on the credited testimony of Wright . Stenback denied
that he had such conversations , but I do not credit his denial . Knight testi-
fied that the Union was not discussed at the staff meeting , and that he
recalled no one lagging behind with whom Stenback could have had such a
discussion , but admitted it could have happened without his observing it.
Knight also admitted that while he could not recall when it happened. he
did hear Stenback ask Wright if the latter was a member of the Union. I do
not regard Knight's testimony as in conflict with that of Stenback. or as
corroborating the latter.
On or about Janua 22, the Black Coalition closed
down the radio station, it did not operate for the remain-
der of that day, nor did it operate on January 23 or 24.
Late in the evening of January 23 or 24, Stenback tele-
phoned Wright and, after telling Wright that the station
could not afford a union and that the men did not need
one, asked Wright to report for work the following morn-
ing. Wright admitted that he told Stenback that he could
not report for work the next day because he was in sympa-
thy with the complaints that the community was making
against the station. However, the following morning,
Wright decided to report for duty, and went to the station
for that purpose, but was unable to gain entrance to the
building because the doors were being picketed.1° The evi-
dence shows that the station began operating again at some
hour on January 25, but at what hour, and under what
circumstances , is not entirely clear. It is undisputed howev-
er, that the station was again shut down by the Black Co-
alition at approximately noon of that day. Again the group
invaded the station proper and asked Mac Pettigrew, the
announcer then on the air, to shut the station down. Petti-
grew reported the request to Program Director Langford
Stephens, who in turn discussed the matter with then Sta-
tion Manager Knight, and at the latter's direction, Ste-
phens made an announcement over the air. After identify-
ing himself as program director of the station and
mentioning the names of the other announcers , Stephens
stated that they were in agreement with the Black Coali-
tion, and after asking for the support of the community,
told Mac Pettigrew to "Push the Button ." The station re-
mained off the air for the remainder of that day (a Satur-
day), but resumed operations on Monday, January 27. The
station does not operate on Sundays."
A. The Discharge of Langford Stephens
On February 18, Langford Stephens requested an audi-
ence with Stenback, and asked Wright to accompany him
to the office. In Stenback's office , Stephens handed Sten-
back a written memorandum which, in substance , stated
that Stephens was resigning as program director , but would
continue as a staff announcer , and that he was taking this
action because he felt that Wright, who was then assistant
program director, and whom he was recommending for the
job, was better qualified than he to perform the duties of
9 This was accomplished not only by picketing in front of the station, but
also by physically invading the premises and requesting Jim Stephens, who
was then broadcasting , to take the station off the air . The latter complied.
10 Stenback admits that he had a conversation with Wright on the occa-
sion referred to, but claims that Wright called him . According to Stenback,
the Union was not mentioned in the conversation , and he merely told
Wright that the station would broadcast the next morning and asked him to
be on duty; Wright promised to do so, but did not appear ; he telephoned
Wright that morning, and the latter again agreed to report for duty that day,
but did not do so. I do not credit Stenback's version of the conversation.
" Based on the credited testimony of Langford Stephens. Knight, a wit-
ness called by the Respondent , denied that he authorized Stephens to make
the announcements over the air or to direct Pettigrew to cut the station off
the air. He admitted, however, that he was present at a meeting when a
number of the announcers were present , that he participated in the discus-
sion when the decision was made to take the station off the air, and that he
agreed with that decision. In view of this fact, I credit Stephens that he
acted at the direction of Knight.
BOOTH BROADCASTING CO. 869
program director.12 Stenback' s response was that he was
unable at that time to fill the job because he was then in
the process of evaluating applications for the purpose of
selecting a Black general manager , and it was his desire
that this person , when selected, should have a free hand in
selecting his own staff, but added that in the meantime
Wright would be acting program director and Stephens
would continue as an announcer .13 Stenback then asked
both Wright and Stephens why they wanted a union, to
which both replied, "For job security." 14 The meeting con-
cluded on that note.
On February 22, Stenback advised Stephens by memo-
randum that the resignation the latter had submitted was
being accepted as a total resignation effective immediately.
The memorandum gave no reason for the action, and Sten-
back admitted that his notice was intended by him to be a
final and complete discharge. Stenback testified that his
reasons for discharging Stephens were (1) that by resigning
as program director, but electing to remain as an announc-
er, Stephens was attempting to dictate the terms under
which he would work, and that he (Stenback) did not wish
to separate the duties of program director and announcer;
(2) that he concluded that Stephens had been involved with
the United Black Coalition in closing down the station on
January 25; and (3) that Stephens, without permission, had
excused himself from the air while performing as an an-
nouncer, to attend a meeting of the United Black Coali-
tion . Other than Stenback's testimony, which I do not cred-
it,15 there is no testimony to support item (3). Moreover,
the complete invalidity of reasons (2) and (3) assigned by
Stenback for Stephens' discharge is demonstrated by his
testimony that had Stephens not submitted the resignation
on February 18, he would at that point have had no reason
to discharge Stephens, as well as his testimony that it was
not until April, after attending the trial in Court of Com-
mon Pleas that he became convinced that Stephens and
Wright were involved in the activities of the United Black
Coalition.
B. The Discharge of Wright
Wright was employed by Respondent as an announcer
from February 15, 1974, until his discharge on May 2.
Aside from one incident in February regarding tardiness,
and an incident regarding his appearance on a television
12 At the hearing Stephens testified that he was motivated in this regard
by his understanding that as program director he would not be permitted to
vote in the upcoming Board election , and that he wanted to preserve his
right to vote.
13 Stenback admits that he promised to circulate a staff memorandum to
that effect, but that he never did so.
14 Although Stenback denied generally that he interrogated any employee
concerning the Union , he admitted that he made a statement to the effect
that he understood the Union was coming in, and that either Wright or
Stephens replied in the affirmative , and made some statement that job se-
curity was what they were seeking. Stenback also testified that he told Ste-
phens that he did not understand his trying to pass his authority as program
director on to someone else. Both Stephens and Wright denied that any
such statement was made . I do not credit Stenback in either aspect of his
denials.
15 The authority of a trier of fact to discredit the uncontradicted testimo-
ny of a witness is clear . See N.L.R.B. v. Walton Manufacturing Company, 369
U.S. 404, 408 (1962).
program , both incidents being hereafter discussed in more
detail , there is no evidence that Wright was reprimanded or
his job performance otherwise called in question by Re-
spondent prior to the discharge . Although Stenback, who
came to the station on September 9, testified that about a
month or 6 weeks thereafter he noticed that Wright's job
performance was not up to what was required of him, and
that at no time thereafter did Wright's job performance
adequately improve . The evidence shows that on Novem-
ber 26 , 1974, Stenback wrote a letter to Veterans Adminis-
tration concerning Wright in which he stated:
His work has not only at WABQ but in our commu-
nity has. been tremendous . His work record has been
superb. He is a fine hard -working gentleman that I
have been proud to be associated with . [Emphasis sup-
plied.]
On May 2, Wright was discharged without prior warn-
ing, and effective forthwith, was handed a memorandum
which stated the reasons for his discharge in the following
language:
1. Failure to follow program schedule during your
show segment.
2. Past unsatisfactory work performance.
3. Making false entries on operating log.
4. Mis-statement of fact regarding a Public Service
Announcement.
5. Conduct contrary to, and in violation of Company
policy.
The above-mentioned memorandum was handed to
Wright at a meeting to which he had been summoned, and
at which time Stenback and Abram who had become gen-
eral manager of the station on March 15, succeeding Sten-
back in that job, the latter having become a vice president
and director of broadcast operations the preceding Janu-
ary.
After reading the memorandum given him , Wright stat-
ed that the reasons for the discharge were in very general
language, and asked Stenback if he would amplify them,
but the latter refused saying that he had everything docu-
mented and that he did not have to discuss them further
with Wright . Wright then told Stenback that he was not
there to argue the matter but wanted to know just what he
was being charged with and if there was any basis for such
charges. Respondent persisted , however, in its refusal to
give Wright a detailed basis for his discharge.16 Because
16 My findings in this regard are based on the credited testimony of
Wright . Although Stenback and Abram gave testimony which sharply con-
flicts with that of Wright, I find on careful analysis that I cannot credit
them. Although I find a number of discrepancies in their testimony, a few of
the more critical ones will suffice . ( 1) Abram testified that although he
found it necessary , because he had so recently came to the job , to confer
with Stenback to get information about facts not known to him, it was he,
and he alone , that made the decision to discharge Wright . Stenback, on the
other hand , testified that he participated fully in the decision to discharge
Wright, that in fact he and Abram made a joint decision . (2) Abram testified
that he conducted the final interview with Wright , that Stenback had very
little to say , and that the specific reasons for the discharge were fully dis-
cussed and explained to Wright , and while Abram could not recall just what
questions Wright asked , he did recall that Wright asked a number of ques-
tions, that each question was fully answered , and that all five points were
fully discussed. On the other hand , Stenback testified that he participated
Continued
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent adduced testimony as to what it meant by
each of the five allegations in the May 2 memorandum and
Wright's alleged misdeeds, I separately discuss each of
them.
1. Failure to follow program schedules
Before discussing this alleged reason for Wright's dis-
charge a word is necessary by way of explanation as to the
manner in which the station operates . At the start of each
day there is placed in the control room a so-called operat-
ing log, which lists the various functions to be performed
by each announcer during the period he is on duty. The
announcer signs the log and enters the time that he takes
charge of the transmitter, as well as the time that he per-
forms each function called for by the log while he is on the
air."' In addition the station three or four times a year
causes a monitor to be placed on its operations to check
whether or not the announcers in fact perform their as-
signed duties , and at the proper time. The monitor is not an
electronic recording device ; some person listens in on the
station and records by hand on a paper what he or she
hears on the air, and the time the particular item was
heard . These hand notes are subsequently typed up in the
form of a log , known as a "Meticulog log," which is for-
warded to the station . By comparing the Meticulog for a
given date with the station's operating log for the same
date, management can determine whether an announcer
during his tour of air duty did in fact perform his assigned
duties , and that he did so at the proper time . It is undisput-
ed that a monitor was placed on the station for the week
from Monday, April 28 , through Saturday , May 3 . Station
Manager Abram testified that the Meticulog for a given
date is normally received by the station on the second
workday following the date of the log.18
fully in the meeting of May 2 and that Wright did not ask for an elaboration
of the five points in the discharge memorandum , and for that reason there
was no elaboration . In fact, according to Stenback, the only statement
Wright made at this meeting was that he was going to the Labor Board. (3)
Stenback testified that although he suspected from the start that Wright was
fully involved with the Black Coalition in the closing down of the station,
his attendance in court for the trial of an action brought by Respondent to
enjoin United Black Coalition and others from disrupting the activities of
WABQ , and at which Wright and Langford Stephens testified on April 2,
that his suspicions were confirmed , and that this is what he meant by item
5 of the memorandum that Wright had engaged in conduct contrary to
Company policy . Abram , on the other hand , testified that any involvement
Wright may have had with United Black Coalition played no part in the
decision to discharge him, and that item 5 of the May 2 memorandum had
reference to the fact that Wright had informed him several weeks before
that he kept a pistol on the premises, which was contrary to a statement of
policy he formulated and circulated among the employees . Because of these
and other inconsistencies hereafter referred to, I credit Wright's version of
what occurred at the interview of May 2.
17 For example , the log may call for the news at 9 a.m., a commercial
sponsored by Coco Cola at 9:05 , and another commercial sponsored by
Proctor & Gamble at 9:05.45 . By signing the log opposite these entries and
recording the time , the operator certifies that he performed that function
and that he did so at the time he indicates . The keeping of such a log is
required by regulations of the Federal Communications Commission, and it
also serves the function of enabling management to assure itself that the
announcer has performed the duties assigned to him at the required time.
18 Thus, according to Abram , the April 28 Meticulog was received by the
station on April 30 and the May 2 Meticulog on May 5 or 6 because of the
intervening Sunday.
The only Meticulogs Respondent relies on in the instant
case , are those of April 28 and May 2 , which were received
in evidence as Respondent 's Exhibits 25 and 27 , respective-
ly. The operating logs for the same dates were received in
evidence as Respondent 's Exhibits 26 and 28, respectively.
As Abrams admitted that the Meticulog for May 2 was not
received by him until May 5 or 6 , its contents were not
known to him on May 2 and could not have formed a part
of or constitute a consideration for his discharge memoran-
dum of May 2 . Abram contends that a comparison of
Respondent 's Exhibit 25 with 26 shows that two commer-
cial announcements shown on the station or program log,
namely , an announcement sponsored by Johnson & John-
son, to have been aired at 10 .23 a.m ., and Cleveland Busi-
ness League on behalf of its member , Davis Grant , to have
been aired at 10:38 .55, were not run . The Meticulog shows
a spot announcement on behalf of Johnson Disposable Di-
apers at 10:23, and another on behalf of Davis Grant In-
surance at 10:38.40 . Abram's conclusion that these two
spot announcements were not run seems to be based on the
fact that on the Meticulog for April 28 in the column head-
ed "Program," opposite the items above mentioned, there
appears the pencil entry "N.R.," which means "Not Run."
There is no evidence as to when or by whom this legend
was placed in the Meticulog . My examination of that log,
however, convinces me, and I find that those initials are in
a completely different handwriting and were placed on the
document by some person other than the person who wrote
the material in the column headed "announcement." It is
significant to me that in the last-mentioned column, the
letters are in ink and slant to the right , whereas the initials
"NR" are in pencil and slant to the left . I find it significant
also that so far as the evidence shows the person who does
the monitoring does not have a copy of the program log,
recording only what that person hears on the air , and, if an
entry were made by the person doing the monitoring, it is
reasonable to assume , absent affirmative evidence to the
contrary-and such is not in the record-that the monitor
heard announcements on behalf of the sponsors men-
tioned.
Abram further testified that another item he took into
consideration was a memorandum given him by a member
of the office force , that on April 17, betwen 8 : 20 and 8:35
a.m., four commercials , a sports program, and a public ser-
vice announcement were not run , and that his examination
of the program log for that date confirmed the information
furnished him . There is no evidence , however , that Abram
or any other official of the station discussed this incident
with Wright, or sought any explanation of it from Wright,
nor did the person who allegedly provided this information
testify.
2. Past unsatisfactory work performance
Abrams testified that by this item of his May 2 memo-
randum of discharge, he had reference to two things ; first,
that in going through the program logs for late 1974 and
January 1975 he found instances where spots had been
missed , and that those were considered alongside that
BOOTH BROADCASTING CO. 871
which was disclosed by the Meticulogs of April 28 and
May 2; secondly, that there were several instances where he
had assigned Wright to meet with community groups, and
later learned that Wright had failed to do so. According to
Abram, if there were any other derilictions on the part of
Wright that fell within paragraph 2 of his memorandum, he
could not recall them at the time he testified. With respect
to the second item, Abram gave no testimony, other than
his conclusion, of any instance when he assigned Wright to
meet with a community group, or the circumstances sur-
rounding the incident. As to the first item, Abram testified
that it was not until he received the Meticulog of May 2,
which as I have indicated was not before May 5 or 6, did
the thought occur to him to check the prior records so that
the information he gathered from that search could not
have been within his knowledge or form the basis for
Wright's discharge on May 2.
Additionally, Abram testified that before he made the
decision to terminate Wright, he discussed with Stenback
the information that had come to his attention, because
having been on the job only about 6 weeks, he thought
perhaps Stenback might have some material information
that had not come to his attention. Abram admitted that
Stenback gave him some information, particularly a copy
of the warning letter hereafter more fully discussed, which
Stenback gave Wright on February 19 for tardiness.
Abram admitted that his check of the records disclosed no
instance of tardiness by Wright subsequent to February 19.
Because Stenback gave testimony concerning Wright's
reporting late for duty, and which he claimed formed a
part of his decision to discharge Wright, a summary of this
evidence should be set forth. On February 19, Stenback
gave Wright a memorandum reading as follows:
In going over the program logs for the past 2 months
(12/3/74 thru 2/5/75) I find that you have been late
getting to work and signing the log late on at least 5
occasions.
This is to inform you that Booth Broadcasting will not
tolerate any more negligent tardiness. It will mean im-
mediate dismissal.
Wright credibly testified that he discussed this memo-
randum with Stenback the same day that he received it,
asking for a list of the dates he was allegedly late, and that
upon being furnished that information, pointed out to
Stenback that some of the dates he mentioned were Sun-
days when he was not scheduled to work; others were Sat-
urdays when he was scheduled to and did report for duty
at 9:30 a.m.; and on other occasions the log itself showed
he reported for work on time . According to Wright, whom
I credit, following the above discussion Stenback told
Wright to forget the matter.19 Notwithstanding the above,
Stenback, when he testified before me, referred to some 12
instances between September 28, 1974 and February 5,20
19 Stenback admits that after receiving his memorandum , Wright came to
his office , denied the charge , and asked for a list of the dates when he was
allegedly late, which was supplied . According to Stenback, Wright then said
that he would be in after lunch and present proof that he had not been late,
but that he never presented "any [thing of] substance ." As indicated, I credit
Wright.
when, according to Stenback, Wright either did not report
for duty at all, or reported late. For example Respondent's
Exhibit 7, which is the program log for January 14, shows
Wright on duty at 8 a.m., but that Wright's name does not
appear on the document. From this Stenback concludes
that Wright was absent from work without authority 21
Respondent's Exhibit 40 is a program log for Saturday,
December 28, and Respondent's Exhibit 39 is the transmit-
ter log for the same day. According to Stenback, Wright
should have been on duty that day at 9:30 a.m., but that
the logs show that he signed in at 10:05, from which he
infers that Wright was 35 minutes late. Stenback draws the
same inference of tardiness with respect to the logs for
September 28, October 19, November 2, and December 7.
Stenback also admitted that the memorandum of February
19 was based solely on tardiness, and had no other pur-
pose.
Stenback conceded that if, after the February 19 memo-
randum, Wright did not report late, the purpose of his
memorandum would have been achieved, and yet only evi-
dence of alleged tardiness by Wright to which he made
reference was the incident of Saturday, March 8. Stenback
claims that Wright reported for duty 10 minutes late that
day, as evidenced by the transmitter log for March 8,
which shows Wright signed on at 9:40 a.m. instead of 9:30
a.m., which, according to Stenback, was Wright's assigned
duty hour. With respect to this incident also, Stenback ad-
mits that he became aware of the fact immediately that it
happened, because he was in the station and saw Wright
come in, and also admits that he said nothing to Wright
regarding this incident, nor did he take any action against
Wright until the discharge on May 2, notwithstanding the
statement in his February 19 memorandum that another
incident of tardiness would result in "immediate dismiss-
al."
With respect to these several incidents, Wright credibly
testified that applicable government regulations require
that an announcer sign a log at the actual time he takes
over the transmitter, and that the time he signs the log does
not necessarily indicate that he was late for work since he
has many other duties to perform in the building, such as
production work. Indeed, according to Wright, whom I
credit, he recalls specifically that he was in the station per-
forming other duties well before his scheduled starting
hour on many of the occasions referred to. Wright addi-
tionally testified credibly that also included in his duties
was public service work, that is appearing at schools and
other community functions, and that when he worked in
the community he did not do a regular air shift, and hence
did not sign the log on those occasions. Whether the in-
stances that he did not sign the log were instances when he
was in the field, Wright said he was unable to determine
without a complete check of additional records which Re-
20 The exact dates are September 28, October 19, November 2, and De-
cember 3, 7, and 28, 1974, and January 14, 20, 24, and 29, and February 4
and 5, 1975. All but the first three dates occurred in the interval covered by
Stenback 's memorandum of February 19.
21 Stenback draws the same inference with respect to the incidents on
November 2, 1974. and January 20 and 24, and February 4 and 5, 1975.
Stenback included January 24 as a day Wright failed to sign the log, but did
not mention that this was one of the days that the station was off the air by
reason of the picketing activity of the United Black Coalition.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent kept . Such additional records were not produced
by Respondent , nor did it offer any other testimony on the
subject.
3. Making false entries on operating log
Many aspects of this item were in essential parts dis-
cussed under the preceding item . Abram admitted that he
had no personal knowledge of this item and relied on the
log (which he conceded was insufficient on its face to sup-
port the inference Respondent would draw) and on what
Stenback told him . Stenback testified that on January 29
he received a memorandum from the station engineer in-
forming him that the station was not placed on the air at
the normal hour of 8 a.m. due to the absence of Wright;
the station was put on the air by Announcer Yarbrough at
8:21 a.m .; Wright arrived and began his broadcast duties
at 8:30 ; and reference to Respondent 's Exhibits 12 and 31,
being the transmitter log and operating log, respectively,
for January 29 shows that Wright recorded 8:15 a.m. as the
time he took over the operation of the station . Wright gave
no testimony in explanation of this seeming discrepancy.
Stenback admitted that he became aware of the facts
involved on January 29 , having received the engineer's re-
port and examined the logs referred to on that day. Al-
though he regards falsification of the logs as a serious of-
fense that requires either immediate dismissal or at the very
least a severe reprimand , he concedes that he did not dis-
cuss this matter with Wright , or take any action against
him because of this conduct , prior to the discharge memo-
randum of May 2 . Stenback explained that his memoran-
dum of February 19 was intended only as a reprimand for
tardiness , and that he did not mention falsification of the
logs, explaining his failure to do so by claiming that at the
time of his memorandum he had not yet seen the logs,
although he had earlier admitted that he saw the logs on
January 29.
4. Misstatement of facts regarding a public service
announcement
This item requires some background discussion . In Janu-
ary 1975 , a group representing Jehovah 's Witness came to
the station to arrange for the running of a public service
tape for which the station would make no charge. Being
referred to Wright, he examined the material and felt that
it qualified as public service material , but not wishing to
make the final decision , took the matter to Stenback and
related the request that had been made of him . Stenback
examined the tape and told Wright to inform the group
that there would be a charge of $75 for the service they
requested . Wright did so , and the group declined to pay the
requested charge . Stenback does not deny this conversa-
tion . On March 8 Wright , as a representative of Station
WABQ , appeared on the program of a local TV station
along with other people from the community . The program
dealt with the shutdown of Station WABQ in late January.
In the course of the program , and in response to a question
from the moderator , Wright stated , in substance, that
WABQ had a policy of charging $75 for a 30-minute public
service program , and that this was not only unusual, but
was also unlawful , giving this as one example why the sta-
tion was not relevant to the Black community.22
Abram testified that this item of his discharge memoran-
dum referred to the above-mentioned incident , and that
Wright's statement constituted a misrepresentation that it
was company policy to charge $75 for airing a public ser-
vice program . According to Abram , he made the decision
to discharge Wright for this incident , and that he made
that decision solely on the basis of the fact that he saw and
heard the program at the time it was broadcast and on his
review of the tape when it became available to him on or
about March 15 23 Abram testified that he discussed this
incident with Stenback , but gave no testimony as to what
was discussed . He made no claim that he had discussed the
incident with Wright.
Stenback testified that he saw and heard the broadcast
and also reviewed the tape ,24 and on that basis concluded
that Wright's statement constituted a misrepresentation
with respect to Respondent 's policy of charging for public
service programs which , according to Stenback , is unlawful
under the Federal Communications Act. Stenback further
testified that he regarded Wright 's conduct as a very seri-
ous offense , and that on March 10 (that being 2 days after
the TV broadcast) he called Wright into his office and rep-
rimanded him for this conduct , saying that it must never
happen again . Stenback admitted that , to his knowledge,
the conduct had not been repeated.
C. Conduct Contrary to, and in Violation of Company
Policy
Abram testified that this term of the discharge memo-
randum referred to two things . The first was that in a con-
versation he had with Wright at some undisclosed time, the
latter stated that he kept a pistol in the control room which
someone had taken , and that keeping a firearm on compa-
ny premises violated a statement of company procedures
and policies which he prepared and circulated among em-
ployees25 The second item which Wright said he had refer-
ence to by this item was that Wright had threatened anoth-
er employee of the station . According to Abram he began
compiling the statement of Company policy shortly after
he came on the job , and in his direct testimony attempted
to leave the impression that he had the document before
him when he prepared the termination letter of May 2. On
cross-examination , however, Abram admitted that his
statement of policy was not issued until June 1975. Both
22 On the tape which is in evidence , a portion of the statement is attribut-
ed to Diablo, but Wright admits that this is an error and that the statement
referred to was all made by him.
23 The tape was sent by the TV station with a covering letter dated March
13. 1 assume it was received at Respondent's office by March 15.
24 Stenback testified that the tape was sent to him at his request, but I do
not credit that statement . The letter which accompanied the tape makes it
clear that the tape was sent to Stenback because the participants attributed
certain statements and conduct to him, and the station was offering him an
opportunity to reply to those charges if he wished to do so . It was obviously
for this reason that the letter was sent by certified mail.
25 The document referred to provides under the heading "Reasons for
discharge or other disciplinary action":
3. The possession , use, or discharge of firearms on company premises
shall be grounds for dismissal.
BOOTH BROADCASTING CO. 873
Abram and Stenback admitted that no statement of policy
or other document of a similar nature existed prior to the
June 1975 document. Moreover, Abram makes no claim
that he informed Wright that his conduct violated Compa-
ny policy. The second matter to which Abram says he had
reference was an incident in which Wright allegedly threat-
ened a female employee. There is no evidence in the record
to prove that in fact he ever made such a threat 26
Interestingly enough Stenback, who claims that he par-
ticipated in the decision that Wright should be discharged
for conduct "contrary to and in violation of company poli-
cy," had an entirely different version of what was meant by
this item of the May 2 discharge memorandum. According
to Stenback this item had reference to the fact that after
listening to the evidence in the court proceeding brought
by Respondent to enjoin the United Black Coalition and
others from interfering with Respondent's business opera-
tions, he became convinced, and his earlier suspicions were
confirmed, that Wright was fully involved in the activity
which brought about the shut down of the station on Janu-
ary 22 and 25. Strangely enough, Stenback did not refer at
all to the alleged un incident, or to the alleged threat to a
fellow employee2q
D. The Alleged Refusal to Bargain
The parties stipulated that following the appropriate
proceeding before the Board, the Regional Director on
April 10, 1975, issued a certification that the Union was the
duly selected and exclusive representative of Respondent's
employees in an appropriate unit.28 Upon issuance of the
certification the Union requested Respondent to bargain
with it, and a meeting was scheduled for July 2 .29 This
meeting was very short and the only thing that occurred
was that Union Business Representative Bickl presented
Respondent with the draft of a proposed contract and sug-
gested that the parties meet when Respondent had studied
the Union's proposal. The first negotiating session took
26 Abram admitted that he had no personal knowledge concerning this
incident, and that all his information was based on what the employee had
told him . This testimony was rejected and counsel was told that if he wished
to prove those facts he would have to produce the employee. The employee
was not called , nor was any explanation given for the failure to do so. A
memorandum allegedly prepared by the employee was offered as an exhibit,
but was rejected . The fact that Respondent chose to rely solely on weak
hearsay evidence instead of the direct evidence of the employees allegedly
involved, and who was apparently available, appropriately gives rise to the
inference I draw , that had the employee been produced , her testimony
would have been adverse to Respondent . See Interstate Circuit v. United
States, 306 U.S. 208, 226.
27 Stenback did refer to an incident in which Wright is alleged to have
failed to follow through and see that a talent tour sponsored by the station
for the inmates at a state institution in Mansfield , Ohio, proceeded as sched-
uled. Wright denied that he was in any way responsible for the fact that the
show did not proceed as scheduled . In any event, Stenback conceded that
this incident was not sufficient to warrant discharge , and that he just "threw
it in ," presumably as make weight.
28 Respondent does not challenge the certification or the legal effect
thereof . The unit is "all announcers, including regular part-time announcers
employed by the employer at its radio station [in ] Cleveland, Ohio. but
excluding all office clerical employees , salesmen , engineers , custodians and
professional employees , guards and supervisors as defined in the Act, and
all other employees."
29 An earlier meeting date had been scheduled for June 4, but this was
canceled by Respondent.
place on July 22, and lasted approximately 30 to 45 min-
utes. Present for the Company were attorneys Forbes and
Buchanan, General Manager Abrams, and Vice President
Stenback; Bickl and Wright for the Union. The meeting
opened with Bickl asking if Respondent had considered the
Union's proposal. Attorney Forbes responded that a proce-
dural problem he had must first be resolved, and asked
what role Wright would play in the negotiations. Bickl re-
plied that Wright was there as an advisor and to assist him
(Bickl). Forbes stated that Wright was no longer an em-
ployee; was the central figure in a number of the charges
filed against the Company; that being a disc jockey Wright
was not qualified to speak for the entire group of employ-
ees; and for those reasons he would be unwilling to pro-
ceed with the bargaining so long as Wright was present,
but had no objection to Wright waiting in an anteroom
where Bickl could confer with him from time to time. Bickl
told Forbes that composition of the Union's bargaining
committee was not an appropriate matter of concern to
Respondent, and that so long as he (Bickl) was satisfied
with Wright, that was all that mattered. Forbes insisted,
however, that Respondent would not proceed so long as
Wright was in the room. Bickl responded that it was fruit-
less to proceed in that posture, and left the meeting with
Wright.
The parties met again on an undisclosed date late in
August. Present for the Company were Forbes, Abrams,
and Stenback, and for the Union, Bickl and company em-
ployees Wilborn, Gail Williams, and Jimmie Williams,
with Wright being unable to attend because of a prior out-
of-town engagement. At this time the parties discussed the
first six articles of the Union's proposal. Bickl described
this discussion as largely exploratory, or low level argu-
ment, particularly on the provisions dealing with "union
shop" and "no strike" proposals of the Union. No agree-
ments were reached at this meeting.
The final meeting between the parties took place on Sep-
tember 26, just 3 days prior to the commencement of the
hearing of this case. Present for the Company were Forbes,
Abrams, and Stenback; and Bickl, Wilborne, and Wright
for the Union. At the outset, Forbes renewed the position
he previously advanced, that Respondent would not pro-
ceed with bargaining if Wright was in the room, and again
suggested its willingness to proceed if Wright waited in an
anteroom where Bickl could confer with him whenever he
desired. Bickl declined. Forbes then Stated that he would
have to research the law on the matter, and suggested that
in the interim Bickl withdraw the refusal-to-bargain
charge, which Bickl could refile if no agreement was
reached. Bickl also rejected this suggestion. Bickl then
asked if Respondent were willing to engage in further dis-
cussion of the six articles considered at the prior meeting.
Respondent agreed, and further discussion was had with
respect to those items, but agreement was reached only on
certain portions of the recognition article. This discussion
took place in Wright's presence, but Respondent refused to
go beyond those six articles if Wright was present.
Contentions and Conclusions
I find and conclude that Respondent violated Section
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(l), (3), and (5) of the Act by the following:
A. The 8(a)(1) Violations
Stenback's interrogations of Wright shortly following the
conversation between Dix and Stenback, when he asked
why Wright needed a Union; Stenback's similar question
to Wright following the staff meeting in his office on Janu-
ary 20; as well as Stenback's interrogation of Wright and
Langford Stephens on February 18, in Stenback's office, as
to why they wanted a union. Absent circumstances justify-
ing interrogation by an employer concerning the
employee's union sympathies and desires, such interroga-
tion inherently restrains and coerces employees in the exer-
cise of their Section 7 rights. No evidence was introduced
by Respondent and no reason suggests itself to me to es-
tablish a legitimate reason for Stenback's inquiry, which
was not limited to one isolated occurance, but which was
put on at least three separate occasions. Certainly the ques-
tions were not put to enable Respondent to determine
whether it was under a legal obligation to deal with a union
that was making a demand for recognition. As the interro-
gation had no legitimate purpose, it is reasonable to infer,
as I do, that Stenback intended to frustrate, to the extent it
was possible for him to do so, the organizational efforts of
the employees, and hence the interrogation violated Sec-
tion 8(a)(l) of the Act. I so find and conclude.
B. The 8(a)(3) and (1) Violations
1. The discharge of Langford Stephens
Upon the entire record, I find and conclude that Ste-
phens' discharge was discriminatorily motivated, and that
Respondent's alleged reason for terminating Stephens was
merely a pretext seized on in an effort to obscure the true
motive for the discharge. I do so based on the totality of
the following reasons:
1. During the 16-month period of his employment by
Respondent, from October 15, 1973, until his discharge on
February 20, Stephens was admittedly a satisfactory em-
ployee. Indeed, Stenback admitted that but for the letter of
resignation submitted by Stephens on February 18, which
is hereafter more fully considered, he would have had no
basis for discharging Stephens.
2. Stenback's opposition to the Union is clearly shown
not only by his interrogation of Stephens and Wright, but
by his statement to Dix that Respondent did not want a
Union, and I fully credit the additional testimony given by
Dix, which was not denied by Stenback, that the latter
suggested that Dix discourage employees from voting for
the Union and complained about the pressure he was get-
ting from the Union, even suggesting that perhaps the best
course for him to pursue was to fire all the employees and
hire a whole new staff.30
3. When Stephens submitted his letter of resignation on
February 18 and explained that he was resigning only as
30 Although Dix's testimony as to the time of this statement was not en-
tirely clear . I fully credit him that the statement was in fact made by Sten-
back.
program director but wished to remain as an announcer,
Stenback indicated his agreement and even promised to
circulate a memorandum to the staff announcing Stephens
change in status. Certainly he made no complaint at this
time that Stephens was attempting to dictate the terms of
his employment, or that Stenback found such unaccept-
able.
4. Although Stenback denied that he had any prior in-
formation of Stephens' interest in the Union, that fact was
made known to him at the February 18 meeting, when as I
have found, he asked Stephens and Wright why they want-
ed the Union, and was told it was for job security.
5. Without further word from Stephens or, so far as the
evidence shows any intervening event, Stenback, on Febru-
ary 20, in the midst of the workweek, discharged Stephens,
effective immediately.
6. Stenback assigned three reasons for discharging Ste-
phens. These were (a) Stephens' involvement with United
Black Coalition in closing down the station; (b) that Ste-
phens had, without permission from management, excused
himself from the air while broadcasting to attend a meeting
of United Black Coalition; and (c) that he did not wish to
separate the program director's job from the announcer's
job. As to (a), I find it significant that while Stenback testi-
fied he suspected from the start that Stephens and Wright
were fully involved with United Black Coalition, he also
testified that it was not until after he attended the trial in
the Court of Common Pleas in April, when both Stephens
and Wright testified, that his suspicion was confirmed. As
to both (a) and (b), it is clear that whatever conduct Ste-
phens may have engaged in, it occurred in late January,
was fully known to Stenback, and, if engaged in by Ste-
phens, was of a most serious nature. Why Stenback had to
wait until February 20, just 2 days after learning that Ste-
phens was a union adherent, to take action against the
latter, he did not explain. Item (c), Stenback very plainly
threw in as to make weight.
7. What all this adds up to is that a previously satisfac-
tory employee is suddenly discharged in mid-workweek,
without prior warning or notice, hard upon discovery that
the employee was a supporter of the Union which was
trying to become the bargaining representative of the em-
ployees, a move which Respondent opposed. There are the
classic indicia of a discriminatorily motivated discharge,
appropriately giving rise to the inference that the stated
reasons for the discharge were simply a pretext, and that
the true reason for the discharge, and the one which Re-
spondent desires to conceal, was its desire to rid itself of a
supporter of the Union in a unit which consisted of only
five to seven employees, and this is particularly true where
it is found, as I do in the instant case, that Respondent's
stated reasons for the discharge does not stand up under
scrutiny. As the Court of Appeals for the Ninth Circuit
stated the principle in Shattuck Denn Mining Company v.
N. L. R. B., 360 F.2d 1018, 1020:
... If he [the trier of fact] finds that the stated motive
for the discharge is false , he can infer that there is
another motive. More than that, he can infer that the
motive is one the employer desires to conceal-an un-
lawful motive-at least where, as in this case, the sur-
BOOTH BROADCASTING CO. 875
rounding facts tend to reinforce that inference.
Accordingly, I find and conclude that Stephens' dis-
charge was discriminatorily motivated, and hence violated
Section 8(a)(3) and (1) of the Act.
2. The discharge of J. R. Wright
As in the case of Stephens, I find and conclude, upon
consideration of the entire record, that Wright's discharge
was discriminatorily motivated, and the reasons Respon-
dent assigned were simply pretexts seized upon in an effort
to obscure the discriminatory motive. In light of the many
inconsistencies of the testimony of Abram and Stenback,
their contradictions of one another, and the fact that they
relied on some alleged misdeeds which were not even
known to them at the time of the May 2 memorandum,
stands out as proof positive that the reasons they gave for
discharging Wright were nothing short of an attempt to
resurrect and regurgitate alleged past misdeeds on the part
of Wright, some of which if they occurred at all, had long
since been condoned, solely for the purpose of trying to
invent some apparently legitimate reasons for the dis-
charge. The discriminatory motive may properly be infer-
red from this conduct alone, but the conduct does not
stand alone . As heretofore stated in connection with the
Stephens discharge, Stenback suggested to Dix that per-
haps the best course for him to pursue to avoid the Union
was to get rid of all the employees and hire a completely
new staff . Additionally, I credit the testimony of Dix that
Stenback asked Dix to watch Wright and try to get some-
thing on him that would justify his discharge.
In sum, I am convinced and accordingly find and con-
clude that the various reasons assigned by Respondent for
discharging Wright are merely pretexts, and that the real
reason for the discharge was Wright's union activity. Ac-
cordingly, the discharge violated Section 8(a)(3) and (1) of
the Act.
C. The Refusal-to-Bargain Allegations
On the facts summarized, I find and conclude that Re-
spondent, by refusing to negotiate with the Union, the
duly certified collective-bargaining representative of
Respondent's employees in an appropriate unit, if the
Union insisted upon having Wright present during the ne-
gotiations, violated Section 8(a)(5) and (1) of the Act. This
conduct by Respondent was, in effect, an attempt to dic-
tate the composition of the Union's bargaining committee
which, absent unusual circumstances, is a matter of no
concern to Respondent. Wade & Paxton, 96 NLRB 650
(1951); Standard Oil Company, 137 NLRB 690 (1962);
L. G. Everist, 103 NLRB 308 (1953). In L.G. Everist, supra,
although the factual situation was the reverse of that pre-
sented here, the principles there stated are fully applicable
to and dictate the proper result here. In Everist, the Board
said (at 309):
Respondent's insistance that bargaining negotiations
be conducted in the presence of the rank-and-file em-
ployees clearly was contrary to uniform industrial
practice and was not conducive to the orderly, infor-
mal, and frank discussion of the issues confronting the
negotiators necessary to reach a contract. It also con-
stitutes interference with the employee's right to bar-
gain through the representatives of their choosing, and
evidenced the Respondent's absence of good faith in
dealing with the statutory bargaining agent of the em-
ployees?
Accordingly, I find and conclude that by insisting that it
would not bargain with the Union if Wright was present
during negotiations, Respondent refused to bargain with
the Union, which is the bargaining agent of the employees
involved, and thereby violated Section 8(a)(5) and (1) of
the Act.
Upon the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees as to their.reasons for
wanting union representation, Respondent interfered with,
restrained, and coerced employees in the exercise of their
rights protected by Section 7 of the Act, and thereby violat-
ed Section 8(a)(1) of the Act.
4. By discharging Stephens on February 20, and Wright
on May 2, Respondent discriminated against them in re-
gard to the tenure and terms and conditions of their em-
ployment, and thereby violated Section 8(a)(3) and (1) of
the Act.
5. The Union is, and at all times material herein has
been, the certified exclusive collective-bargaining represen-
tative of the employees in an appropriate unit of "All an-
nouncers, including regular part- time announcers em-
ployed by the employer at its radio station [in] Cleveland,
Ohio, but excluding all office clerical employees, salesmen,
engineers , custodians and professional employees, guards
and supervisors as defined in the Act, and all other em-
ployees."
6. By insisting since July 22 that it would not bargain
with the Union if Wright were present as a member of the
Union's negotiating committee, Respondent refused to
bargain with the Union as the exclusive coliective-bargain-
ing representative of the employees in the aforesaid appro-
priate unit, and thereby engaged in and is engaging in un-
fair labor practices proscribed by Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
31 The Everist case was made available to counsel during the hearing, and
at oral argument he was asked to state the reason for his view that the case
did not apply here. After some discussion, counsel stated that the case
would be discussed in the brief he proposed to file. His brief makes no
reference whatever to the Everist case.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices proscribed by the Act, I
will recommend that it be required to cease and desist
therefrom and to take the affirmative action set forth be-
low, designed and found necessary to effectuate the poli-
cies of the Act.
Having found that Respondent interfered with, re-
strained , and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, I conclude from the
totality of said unlawful conduct that Respondent should
be required to cease and desist from in any manner inter-
fering with , restraining, or coercing its employee . N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); Califor-
nia Lingerie, Inc., 129 NLRB 912, 915 (1960).
Having found that Respondent discriminatorily dis-
charged Langford Stephens and J. L. Wright, it will be
recommended that Respondent be required to forthwith
offer each of them immediate , full, and unconditional rein-
statement to his former or substantially equivalent job,
without prejudice to his seniority or other rights , privileges,
or working conditions , and to make each of them whole for
any loss of earnings suffered , by paying to him a sum of
money equal to the amount he would have earned as wages
from the date of his discharge to the date Respondent of-
fers him reinstatement , as aforesaid, less any amount he
may have earned during said period , to be computed in
accordance with the formula prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). Addition-
ally, it will be recommended that Respondent be required
to preserve and, upon request, make available to author-
ized agents of the Board , all records necessary or useful in
determining compliances with the Board's Order herein, or
in computing the amount of backpay due as herein provid-
ed.
Having found that Respondent since July 22, 1975, has
refused to bargain with the Union as the exclusive collec-
tive-bargaining representative of the employees in an ap-
propriate unit , it will be recommended that Respondent be
required, upon request, to bargain with the Union as such
representative concerning the wages , hours, terms, and
conditions of employment of employees in said unit, and, if
an understanding is reached, embody the same into a
signed agreement . Additionally, by its aforesaid refusal to
bargain , Respondent deprived its employees of representa-
tion by a bargaining agency possessing the status and en-
joying the presumptions attached to such an organization
for the period of 1 year following certification . To place
Respondent , the Union , and the employees in as nearly as
possible the same posture as that which existed before, it
will be recommended , in accordance with Board policy,
that upon the commencement of good-faith bargaining,
and for a period of 8 months thereafter , the Union be re-
garded as if the initial year of certification had not yet
expired. Mar-Jac Poultry Company, Inc., 136 NLRB 785-
787 (1962); Burnett Construction Company, 149 NLRB
1419, 1421 (1964).
Upon the foregoing findings of fact , conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 32
Respondent , Booth Broadcasting Company, Cleveland,
Ohio, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
membership in, sympathies for, and activities on behalf of
American Federation of Television & Radio Artists-
Cleveland Local , AFL-CIO, or any other labor organiza-
tion.
(b) Discouraging membership in American Federation
of Television & Radio Artists-Cleveland Local, AFL-
CIO, or any other labor organization , of its employees, by
discharging, or in any other manner discriminating against
employees in regard to their hire or tenure of employment,
or any other term or condition thereof.
(c) Failing or refusing , upon request , to bargain collec-
tively with American Federation of Television & Radio
Artists-Cleveland Local, AFL-CIO, as the exclusive col-
lective-bargaining representative of its employees in an ap-
propriate unit composed of "All announcers including
regular part -time announcers employed by the employer at
its radio station in Cleveland, Ohio , but excluding all office
clerical employees , salesmen , engineers , custodians and
professional employees , guards and supervisors as defined
in the Act, and all other employees."
(d) Insisting or demanding that persons selected by the
Union to serve on its bargaining committee , be excluded
from negotiating meetings.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization , to form, join , or assist labor organizations, to
bargain collectively through representatives of their own
choosing , and to engage in other activities for the purpose
of collective bargaining , or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Offer Langford Stephens and J . W. Wright immedi-
ate, full, and unconditional reinstatement to their former
or substantially equivalent positions without prejudice to
their seniority or other rights and privileges , and make each
of them whole for any loss of pay suffered as a result of the
discrimination against them , computed as provided in the
section hereof entitled "The Remedy."
(b) Preserve and, upon request , make available to the
National Labor Relations Board or its authorized agents,
for examination and copying , all payroll records , social se-
curity payment records , timecards , personnel records and
reports , and all other records necessary or useful in de-
termining compliance with this Order, or in computing the
32 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
BOOTH BROADCASTING CO
amount of backpay due under the terms hereof.
(c) Upon request bargain collectively with the aforesaid
labor organization as the exclusive collective-bargaining
representative of the employees in the aforesaid appropri-
ate unit, with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if an un-
derstanding is reached, reduce the same to a signed written
agreement.
(d) Post at its premises in Cleveland, Ohio, copies of the
attached notice marked "Appendix." 33 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 8, shall, after being duly signed by an authorized rep-
resentative, be posted as herein provided immediately
upon receipt thereof, and be so maintained for a period of
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Decison, what steps it
has taken to comply herewith.
331n the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to 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
877
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To refrain from any and all such activities
WE WILL NOT In any manner interfere with our em-
ployees in the exercise of their rights. All our employ-
ees are free to become or remain a member of
AFTRA, or not to become or remain a member of
that or any other union.
WE WILL offer Langford Stephens and J. W. Wright
immediate, full, and unconditional reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make each of them whole for any loss
of pay suffered by reason of their discharge, together
with 6-percent interest
WE WILL, upon request, bargain collectively with
AFTRA-Cleveland Local as the exclusive represen-
tative of our employees in an appropriate unit com-
posed of all announcers, including regular part-time
announcers employed by us at our radio station in
Cleveland, Ohio, but excluding all office clerical em-
ployees, salesmen, engineers, custodians and profes-
sional employees, guards and supervisors as defined in
the Act, and all other employees, with respect to rates
of pay, wages, hours, and other terms and conditions
of employment, and, if an understanding is reached,
reduce the same to a signed written agreement.
WE WILL NOT insist or demand that any person se-
lected by the Union to be a member of its bargaining
committee, not be present at or participate in bargain-
ing negotiations.
BOOTH BROADCASTING COMPANY
The Act gives employees the following rights:
To engage in self-organization