Dixie Broadcasting Co.

National Labor Relations Board - Board Decisions

Jan 15, 1965

150 N.L.R.B. 1054 (N.L.R.B. 1965)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixie Broadcasting Company, Owner and Operator of Radio
Station WDXI and International Brotherhood of Electrical
Workers, AFL-CIO. Case No. 26-CA-1695. January 15, 1965
DECISION AND ORDER
On September 23, 1964, Trial Examiner Stanley N. Ohlbaum issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent, Dixie
Broadcasting Company, Owner and Operator of Radio Station
WDXI, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Stanley N. Ohlbaum in Jackson, Tennessee, on February 10 through 14, 1964, on a
complaint dated December 27, 1963,1 of General Counsel of the National Labor Rela-
tions Board, issued through the Regional Director for Region 26, based upon a charge
filed November 27 by International Brotherhood of Electrical Workers, AFL-CIO,
herein called the Union, and the answer of Dixie Broadcasting Company, Owner and
Operator of Radio Station WDXI, herein called the Respondent or WDXI. The
issues litigated were whether Respondent violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, herein called the Act, by (1) discrimi-
natorily discharging and failing and refusing to reinstate its employees Charles W.
Russell and Thomas L. McCalmon for union membership and activity, (2) discrimi-
natorily withholding normal periodic pay increases, (3) interrogating employees con-
cerning union membership, activities, and desires, (4) indicating to employees the
1 All dates are 1963 unless otherwise specified.
150 NLRB No. 99.
DIXIE BROADCASTING COMPANY 1055
futility of union membership since it would not bargain in good faith with the Union,
and (5) threatening employees with discharge if they voted for or designated the
Union as their collective-bargaining representative. Respondent denied all charges.
The entire record and also briefs received from counsel subsequent to the hearing
have been carefully considered. Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has been and now is a Tennessee corporation
with its principal office and place of business in Jackson, Tennessee, whence it broad-
casts radio and television programs. During the representative year immediately
preceding issuance of the complaint, Respondent received gross revenues exceeding
$200,000 from the operation of said business, and also purchased and received goods,
supplies, commodities, and services there, in interstate commerce, from points outside
of Tennessee, valued at over $50,000.
I find that at all material times Respondent has been and is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act, and that asser-
tion of jurisdiction in this case is proper.
II. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been and is a labor organization within the
meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
Background: Supervisory Status of Shackelford
Respondent Dixie Broadcasting Company is a radio-television network consisting
of one television and six radio stations, including Radio Station WDXI, located (as is
also Respondent's principal office) in Jackson, Tennessee. Shortly following the death
of Aaron B. Robinson, Sr., for many years the head of this enterprise, his son, Aaron
B. Robinson, Jr. (now approximately 25 years of age) succeeded to the presidency,
and around the same time, in January 1962, J. Kenneth Marston became executive
vice president and general manager, with overall managerial responsibility for the
network, including the power to hire and fire. Working under Marston's immediate
supervision is Raymond Walker Phipps, station manager of WDXI since about May
1962, who within policy formulations and directives of Robinson and Marston (such
as that on periodic pay increases, discussed below) operates and manages Radio
Station WDXI, and is in charge of its personnel, programming, sales, advertising, and
other operations. In turn, in developing and executing managerial decisions, Marston
depends upon data and recommendations provided by Phipps. As a smaller station,
WDXI is not as highly departmentalized as larger stations; thus, for example, Phipps
not only acts in the capacity of station manager, but also to an extent as program
director (particularly in the absence of such an employee), salesman, and even occa-
sional announcer. In the performance of his responsibilities, Phipps, within Dixie
network policy to which he is required to adhere, is not only in charge of hiring and
discharging WDXI employees and fixing their starting salaries, but also in a general
way oversees the work performance of station employees, including announcers. He
sets the "music format" 2 of the station and is in charge of broadcast time sales for
2 The "music [ al] format" of the radio station is its basic plan , scheme, or arrangement
governing the broadcasting of its preselected musical recordings during that portion of the
station's, daily broadcast time which is devoted to nonlive musical programs. Although
most of WDXI's daily broadcast time segments have names or titles (for example, the
station's daily broadcast activity commences at 4.45 a.m . with a program known as
"Wake Up to Music"), the names of the program segments themselves do not indicate
what type of musical recordings are to be played during the particular program periods.
In WDXI's musical presentation system there is, according to Dixie Network General
Manager Marston, a "formula for playing an Instrumental, a male vocalist, a female
vocalist, a novelty group, and then another instrumental" ; thus, "We open a quarter hour
with an instrumental , male, female vocal, a group , and then another instrumental."
[Footnote continued on following page]
775-692-65-v of 150-68
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advertising purposes. As he testified, he is always on the lookout for good talent
for the station staff, to that end receiving employment applications even when there
is no specific opening.
It is to be noted that, according to the testimony of Marston, although Phipps
establishes and regulates the basic music format, he does not specify individual record-
ings to be played. Adherence to the music format thus does not require adherence to
any specific musical selections or recordings, so long as they fall within the genus or
class prescribed by the music format; Shackelford testified that within the generic
pattern of the music format appropriate to the particular program on the air (e.g.,
"rock-and-roll"), the particular announcer serving as diskjockey for the program is
free in his own discretion to select and play any musical recording out of the appro-
priate piled-up group of records which has been auditioned, selected, and marked
(red X or green X) by Shackelford or by some other individual under Shackelford's
supervision. As part of his duties, according to Marston, Shackelford maintains a file
or list of the "top 40" or "top 50" of the currently top-rated popular musical
recordings. '
Immediately under Phipps at WDXI there had been, for a time prior to February
or March 1963, a program director. Although WDXI has not had an employee-
denominated program director since Jerry Heller left its employ in February or March
1963, some of Heller's responsibilities, including the checking of program logs and the
auditioning of musical recordings to determine desirability and allocation to different
type programs (e.g., red X or green X), were taken over by James E. Shackelford
when (after having reentered Respondent's employ as a radio announcer in May
1962) he was appointed chief announcer. of WDXI in March 1963.
Although the precise number of announcers in •a small station such as WDXI
varies, in general during the period here material there were more or less consistently
seven or eight announcers employed, some of them with dual, accessory, or related
duties involved in the station's operations.
Since becoming chief announcer at WDXI in March, Shackelford's duties and
responsibilities have included the preparation (subject to Phipps' supervision) and
posting in the station, over Shackelford's signature with the title "Supervisor," of
announcers' and announcers'/salesmen's work schedules and of changes therein,
specifying the precise hours each announcer or announcer/salesman is required to be
present for work in the station, together with other operating instructions and orders
to the personnel listed thereon; checking the daily program log under FCC regulations
and checking all station logs of the announcers to insure that they are properly main-
tained by all announcers; 3 and assuring the proper scheduling of program times and
broadcast announcements. Shackelford has also played a significant role in the hiring
of announcers, since his testimony indicates that he has conducted the initial interview
of such applicants for employment, has participated in the preparation of preemploy-
ment questionnaires, has sound recorded (taped) and auditioned the announcing
voices of applicants, and has effectively made employment recommendations to Phipps
which have been followed and acted upon by the latter, resulting in the employment of
the recommended individual. Although it is Phipps who makes the final decision
about hiring a potential employee, nevertheless be discusses it with Shackelford and
at least at times, even if not invariably, Shackelford has participated with Phipps in the
final employment interview, and Phipps has followed his recommendations It is clear
that Shackelford's activities and recommendations to Phipps on the subject of employ-
ment, as on other subjects important to station operations, have required the use of
Marston explained that in speaking of "music format" he means sequence of types of
musical recordings that are supposed to be played within a certain block of time Station
Manager Phipps determines what the sequence will be, out of a basic musical repertoire
of "modified top-40" ("Top 40" refers to the 40 currently top-rated musical recordings
as listed in Billboard, a publication utilized by the station,) The WDXI music format
was posted conspicuously at all times' in'tbe station control room, for the ready view and
reference of the announcers who were required to adhere thereto Colors (red, green, and
black) were utilized thereon for clarity and quick recognition, since the musical recordings
themselves were correspondingly marked with a red "X" (rock-and-roll type music) or a
green "X" (nonrock-and-roll type popular music) - In addition to the music format
(posted in the control room), the announcers stylebook, issued to all announcers by
Shackelford, also contained a similar instruction'on the broadcast of musical recordings
Russell testified that when he pointed out to Shackelford some inconsistencies between
what was in the book and what was on the station control room board, Shackelford told
him the stylebook did not contain the up-to-date format and that he should adhere to
the posted format.
s Announcers going on or off the air are required to sign the station log.
DIXIE BROADCASTING COMPANY 1057
independent judgment on the part of Shackelford, and have not been of a merely
routine or clerical nature, and I so find . Respondent 's former radio announcer,
McCalmon, credibly testified that in his preemployment interview with Shackelford,
the latter told him that his recommendation for hiring was needed and was usually
adopted; and, when Shackelford thereafter made a favorable recommendation to
Phipps, McCalmon was hired. Although Shackelford does not have authority to
grant raises as such, even Phipps (as is shown below) is required to operate within
the Dixie network operating policy in this regard. Shackelford testified that if
employees have salary grievances they come to him, and that in acting upon them
Phipps gives weight to Shackelford's recommendations. Shackelford further testified
that he has called to Phipps' attention the fact that an employee is due for a raise
under the network's periodic pay increase policy; and such raises have then (except as
discussed below) invariably followed. According to the credited testimony of
Respondent 's former announcer ( later announcer/salesman ) Russell , Shackelford
also played a role in employee transfer (in Russell's case, from announcer to
announcer/salesman). And although, according to Shackelford, he has never dis-
charged an employee of his "own accord," he has participated in such action, in that
not only has Phipps given weight to his recommendations, but he actually formally
discharged an employee on Phipps' instructions in the latter's absence .4 There is no
doubt that new announcers received basic instructions with regard to their work,
including the music format of the station and the necessity for adhering thereto and
to the announcers stylebook, from Shackelford. According to Shackelford's testi-
mony, he on his own initiative calls and holds staff meetings of announcers for the
purpose of directing their work activities; and he conceded that at these meetings,
presided over by him, it has been his responsibility to take up with the announcers
"the way they were operating, the things that they were doing right and things that
they were doing wrong, the way to improve things, and certain things are to be stopped
and that sort of thing." According to McCalmon, Shackelford held these announcers'
staff meetings normally at least twice a month. There is also credible testimony by
McCalmon or Russell, or both, that on occasion they, as well as another employee
(Johnson), were criticized, corrected, and instructed, if not reproved or reprimanded,
in connection with their work, by Shackelford; and that Shackelford authorized time
off when requested. According to Marston, as well as Shackelford himself, the latter
also has the responsibility for seeing to it that no musical recordings that the station
considers undesirable are broadcast, and Shackelford determines the recordings which
will fit into the station's music format. Russell also testified credibly that Phipps'
posted notice in the early spring of 1963 announcing Shackelford's elevation to chief
announcer indicated that problems as to salary, duties, schedules, etc , should be taken
up with Shackelford; that on one occasion when Russell telephoned Phipps about a
work problem, Phipps asked him whether he had taken it up with Shackelford; and
that while Phipps was on vacation in 1963, Shackelford posted a notice or notices
pertaining to outsiders keeping out of the radio control room. An instruction sheet on
the subject "Rules of' the Dixie Network." dated September 18, 1963, signed by
Shackelford as chief announcer, addressed to "All Announcers" and requiring them
to initial after reading it, sets forth certain basic directions for the announcers, and
states that "Any violation 'of these rules will not be tolerated under any conditions,
and could result in immediate dismissal without notice."
In a Board representation case hearing on September 25 involving among other
issues the question of the supervisory status of Shackelford, the Board's Regional
Director for Region 26 d6termined on or about October 18 that Shackelford was a
supervisor within the meaning of the Act. Respondent sought no review of that
determination. Thereafter, according to Shackelford, he received a letter from Mar-
ston indicating that he had been found to be a supervisor and would be ineligible to
vote at a scheduled Board-conducted election. At the same time, according to
Shackelford, Marston also personally "cautioned me to be overly careful as to what
I said to any employee and not to offend anybody," and, also, "Mr. Phipps said on a
couple of occasions to be sure to be extremely cautious.... Once he cautioned me to
be overly careful as to what I said to employees."
* Although there is evidence that Shackelford stated to Union Representative Blair on
August 14 that he had fired as well as hired at the station , it is not necessary to deter-
mine whether Shackelford in fact so stated or whether he in fact so acted , since the statute
does not require that in order to be a supervisor a person must have or exercise the
authority to actually hire and fire , and 'further since, ' as concluded below, Shackelford
possessed sufficient other attributes of supervisory status to satisfy the statutory definition
contained in Section 2(11) of the Act.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Notwithstanding the foregoing,5 Respondent in its answer not only denied the
allegation of the complaint as to Shackelford's supervisory status but "demands strict
proof of such agency or supervisory status" (answer, paragraph 6), and at the hearing
continued to emphasize its denial of the supervisory status of Shackelford. Upon the
entire record, I believe that the supervisory status of Shackelford, as defined by the
Act, has been amply established by the evidence. I accordingly find and conclude
that at all times material herein not only were Robinson, Marston, and Phipps super-
visors, but Shackelford also, at all times since his appointment and designation as
chief announcer in or about March 1963, has been a supervisor of Respondent within ,
the meaning of Section 2(11) of the Act.
A. Alleged discriminatory discharge of Russell and McCalmon
The complaint alleges that on or about November 21, in violation of Section
8(a) (3) and (1) of the Act, Respondent discharged and has since failed and refused
to reinstate employees Charles W. Russell and Thomas L. McCalmon because of their
union membership or affiliation, or because of other lawful concerted activities. The
answer admits the discharge and nonreinstatement of these employees, but denies they
were discriminatory in violation of the Act.
As is indicated in briefs of counsel , the issue of legality of these discharges turns
largely upon issues of credibility, involving the true reasons for their discharge and
also the time when Respondent really arrived at its decision to discharge them-
whether before (as Respondent claims) or after (as General Counsel contends)
Respondent learned of their affiliation with the Union or that they were engaged in
lawful concerted activity. Inasmuch as the cases of these two employees involve
numerous facts as well as background in common, in order to avoid undue repetition
both cases will to that extent be described together.
Russell entered Respondent's employ on February 18 and McCalmon on March 30,
each as a radio announcer after several years of prior experience in other radio sta-
tions, with no indication of adverse employment history. Each was hired after a
personal interview and voice audition (tape recorded at WDXI) by Phipps. Each
was told by Phipps at the time he was hired (Russell at $75 weekly plus 5 hours guar-
anteed overtime, McCalmon at $65 per week) that if he was retained in the station's
employ at the end of a 3-month (or 90-day) probationary period he would under the
station's policy receive a raise at that time, as well as periodically thereafter. By the
end of the 3-month probationary period, each had received the indicated periodic
pay increase.6
Around the end of June or beginning of July, Russell's job changed from announcer
to announcer/salesman. There is sharp conflict between the testimony of Russell and
Phipps as to why and how this change came about. According to Russell, when
Lauren Sievers, an announcer/salesman at the station, left its employ around the end
of June, Phipps persuaded him to take over Stevers' job of selling radio advertising
time, on a trial basis and with the prospect of increased earnings 7 and faster promo-
tion, but with the definite understanding that if Russell did not like saleswork (which
he had never tried) he would be "put back on the [announcing] board." According
to Phipps, however, the transfer of Russell from announcing to sales was not on a
trial basis, but was the outcome of a talk in which Phipps told Russell that he had
not been "working out and following orders in the control room" and that if he was
unwilling to be transferred to sales "we are going to have a very serious discussion
about your employment." In his testimony, Phipps agreed that this transfer of Russell
into sales (initially on a part-time basis of about half of each day, and later full time
except Saturdays, on which Russell remained in announcing ) took place in late June
or early July following the termination of Announcer/Salesman Stevers. Russell
5 The foregoing account, which is in large part essentially undisputed, is based upon
uncontroverted or credited portions of the composite testimony of all witnesses.
G Russell testified that at the end of his 3-month probationary period, around mid-May,
he automatically received in his pay envelope the $5 raise Phipps had described when he
was hired. In the case of McCalmon, Respondent's records (Respondent's Exhibit No. 5)
indicate that his March 30 entrance salary of $65 was raised to $70 on May 11 and to
$75 on June 22, for a total raise of $10 about the end of his 3-month probationary
period, in accordance with Phipps ' assurances to him when he was hired.
7 According to the testimony of Dixie Network General Manager Marston, although
an announcer receives only a salary, an announcer /salesman receives the salary plus
5 percent on collections from sales to advertising accounts ( including house accounts)
assigned to the salesman , although the announcer/salesman must personally absorb his
transportation expenses.
DIXIE BROADCASTING COMPANY 1059'
denied that there was any indication at the time of his transfer into sales, or at any
other time, that his work performance as an announcer was other than satisfactory,
but that, on the contrary, Phipps himself had praised it. Conceding that Russell was
a good announcer so far as technical capability was concerned, Phipps appeared to
confine his alleged dissatisfaction with Russell to his control room and other conduct,
as will more fully appear below.
There is further sharp conflict between the testimony of Russell and Phipps with
regard to what occurred after Russell was transferred into sales. Although Phipps
insists Russell's performance as a salesman was highly unsatisfactory and that he told
him so, Russell denies this. However, apart from this particular facet of the case,
which is discussed in detail below, Russell testified that after a relatively brief (about
1-month) trial period he found he was not happy in saleswork and therefore toward
the end of July made known to Shackelford and Phipps his desire to return to
announcing. According to Russell, Phipps agreed, telling him, "Well, you know what
I promised you. I hired you as an announcer. I didn't hire you as a salesman. If
I had hired you as a salesman, I might have some gripes with you, but I haven't."
Also according to Russell, Phipps and he then agreed that Russell would return to
announcing on September 1, when Johnson, a part-time ( i.e., summer ) announcer,
was scheduled to (and did) leave the station to return to college. Sharply disputing
this testimony, Phipps denies that he ever told Russell that he would be returned to
announcing on September 1 or at any other time, while admitting that toward the
end of July Russell asked to be transferred back to announcing. At the hearing in
this case, Phipps testified that when Russell thus brought up the subject of retransfer
to announcing, Phipps had no intention of then or ever again placing Russell into
announcing. In the representation case hearing held on September 25, Phipps had
testified to a hearing officer of the Board that he had discussed with Russell the matter
of returning him to full-time announcing on September 1, but had made no "promise"
in that regard.
Russell's supervisor, Chief Announcer Shackelford, testified that the reason Russell
was placed into sales was that a salesman (i.e., Sievers) had left, and until a replace-
ment could be found.8 In comparison to Phipps' testimony in this case that he
transferred Russell to saleswork because of his dissatisfaction with Russell's perform-
ance in announcing , in the representation case hearing on September 25 Phipps had
testified that Russell was transferred to sales "shortly after he [Russell] complained
about his other [i.e., announcing] arrangement and wanted to work out something
new. This was working out for him [Russell] when another employee [Sievers] left."
Phipps had further testified in the representation case hearing that it was Russell who
had requested a discussion with Phipps "For that purpose [i.e., transfer from announc-
ing into sales] and for that purpose alone." On the subject of Russell's transfer back
to announcing on September 1, Shackelford testified herein that he had been informed
by Russell that. he was returning to announcing on September 1 (the date when
summer announcer Johnson was leaving to return to college).
As appears below, on August 14 Russell affiliated with the Union, a fact of which'
Phipps concededly became aware on August 15 when so informed by Union Repre-
sentative Blair. Russell was never transferred back to announcing, even though
Johnson left on August 31. When, shortly after September 1, Russell reminded
Phipps and continued to remind Shackelford of the alleged promise to return him
to announcing on September 1, he received delaying or evasive replies. On Novem-
ber 21, he (together with McCalmon) was discharged without notice , under circum-
stances 'to be shown.
In resolving, as I hereby do, in favor of Russell's version of the circumstances of
his transfer from announcing to sales and the failure to transfer him back as then
and also later agreed, I have taken into consideration not only demeanor comparisons
based upon my observations of Russell, Phipps, and Shackelford while they testified
(as more fully noted below), but also what appears to me to be the probabilities of
the situation flowing from the undisputed facts as to the dates of the personnel changes
involving the departure of Sievers (end of June) as an announcer/salesman and of
Johnson (August 31) as an announcer, from the station; comparisons of the testimony
of Phipps in this case and in the earlier representation case;.Shackelford's cited testi-
mony concerning Russell's transfer into sales and concerning his subsequent projected
return to announcing ; and the concessions by Respondent's witnesses Marston, Phipps,
and Shackelford as to Russell's satisfactory capabilities as an announcer (and his
being retained in announcing on Saturdays, at all times until his discharge), coupled
with my findings below concerning his alleged other shortcomings or objectionable
behavior in the control room and otherwise.
8 Shackelford testified that he received this information from a source be could not
recall, management or possibly Russell himself. .
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerted Activities and Union Affiliation
Commencing about a month after Russell entered the employ of WDXI;' i.e.,
around mid-March, he, Shackelford (then possibly still a rank-and-file announcer),
and Adams (another announcer) initiated coffeebreak and mealtime discussions con-
cerning wages and other conditions of their employment at WDXI, and explored con-
versationally what they considered to be remedial measures, including unionization.
These talks among the three continued regularly, until they culminated in a restaurant
meeting on August 7, at which they were joined by McCalmon. According to McCal-
mon, at this meeting it was Shackelford (who by then had become chief announcer at
WDXI) who pressed for unionization of the WDXI announcers, indicating, however,
his preference for affiliating with AFTRA (radio announcers) rather than IBEW
(Electrical Workers=Charging Party herein); and, Russell testified, it was Shackel-
ford who, after asking them "if we started a union would we all stick with it, or would
we chicken out," took a vote resulting in their unanimous decision to "stick with it"
and their designation of Russell to make contact with a union. Russell thereupon
arranged a meeting on August 14 with IBEW International Representative Blair.
There is substantial variance between the testimony of Russell and that of Shackel-
ford-both of whom met with Blair preliminarily, before the others, on August 14-
as to whether Blair told Shackelford he could not join the Union because he was a
supervisor (Russell's version) or whether Shackelford had accompanied Russell to
see Blair in ignorance of where he was going and that when he arrived there he told
Blair he did not want to sign a union card (Shackelford's version). However, Shackel-
ford acknowledges his participation in the described organizational discussion in the
restaurant and his expression of displeasure there at existing wages and working con-
ditions at WDXI, including that he "didn't like to work fifty or sixty hours a week,
overtime" and that he "hoped there could be a way to stop it" and to stop working
7 days a week, with which the others agreed; and Shackelford also admits that he then
said to the others, "Oh, well, we'll call the Union man," but he now asserts that "this
was done in a joking way." (However, on cross-examination, 'Shackelford conceded
that he had also indicated at this meeting that AFTRA would be suitable as a union
at the station. It seems hardly likely that he would have carried the joke so far.)
Shackelford further concedes that, although he allegedly did not know where Russell
was taking him nor why, on August 14, he nevertheless asked Blair "what he could
do for me" and probably also "about our overtime pay."
It is undisputed that Russell, McCalmon, and Adams signed lards affiliating them-
selves with the Union on August 14, and that on the next day Union International
Representative Blair notified Phipps thereof on the telephone, requesting a meeting
to establish his representative status and to conduct negotiations, which Phipps
declined on the grounds that he was busy, lacked authority, and authorized company
personnel were out of town. It is also undisputed that Blair left a telephone number
where he could be reached, and that a letter. (Respondent's Exhibit No. 6) which he
wrote to Phipps that day (August 15) confirms with essential accuracy the conversa-
tion between him and Phipps earlier that day. That letter indicates that when, in the
course of their August 15 telephone conversation, Blair claimed to represent WDXI
announcers , Phipps pointed out that he (Phipps) also did announcing work at the
station , but was informed by Blair that the Union was not seeking to represent him
since he was identified with management. The letter also indicates that pending the
commencement of collective negotiations, there should be "no changes ... in the
status of wages or working conditions of the WDXI announcers," but continuance as
in the past. With regard to his telephone conversation with Blair on August 15,
Phipps testified that when Blair invited him to consult his (i.e., WDXPs) attorney,
Phipps asked Blair, "Well, is it all right if I conduct my normal day-to-day business,
then, without consulting an attorney, in your opinion, Mr. Blair?"
Respondent's officials Robinson and Marston, as well as Phipps, testified credibly
that their first knowledge of the Union or organizational activity among WDXI
announcers was on August 15, following Blair's telephone conversation with Phipps.
It is to be noted that both in that conversation and in the confirmatory letter of the
same date , Blair identified to Phipps, by name, the announcers whom the Union
claimed to represent as being Shackelford, Adams, McCalmon, Russell, and "a part
time announcer who I identified as a student who will most likly [sic] return to col-
lege [i.e., Johnson]" ( Respondent 's Exhibit No. 6). At this time, WDXI had eight
radio announcers , announcers/salesmen , and control-board operators; viz, Adams,
Fielding, Mrs. Freeman, Hewitt, Johnson (scheduled to leave around September 1 to
return to college ), McCalmon, Russell, and Shackelford' (chief announcer).
Under Respondent's periodic pay increase policy for employees, Russell was due a
periodic pay increase on or about August 17, and McCalmon was due one on or
about September 28. Neither employee received the increase. (Nor, allegedly, did
DIXIE BROADCASTING COMPANY 1061
Shackelford or Adams until, as stated below, November 23, 2 days after the discharge
of Russell and McCalmon on November 21, 1 day after the Union's withdrawal of
its petition for a representation election, at which time (November 23) Respondent
reinstituted its periodic pay increase policy and Shackelford and Adams received such
increases , allegedly prospectively only 9)
Following abortive discussions between Respondent and the Union,'during which
the Union claimed the appropriate unit consisted of only four announcers and
Respondent contended that it consisted of all,eight announcers, announcers/salesmen,
and control-board operators, the Union on September 4 filed a petition for a repre-
sentation election, upon which a hearing was held on September 25 under auspices
of the Board's Regional Director,10 resulting in a decision on October 18, determining
the appropriate unit to consist of seven of the eight employees (excluding Chief
Announcer Shackelford as a supervisor) and directing that a Board-conducted elec-
tion be held on November 20.
On November 19, the Regional Director approved, and so notified Respondent by
mail, the Union's application to withdraw its petition for the representation election
scheduled to be held on November 20.
On November 21, Russell and McCalmon were discharged by Respondent without
notice, by separate letters (General Counsel's Exhibits Nos. 2 and 3) handed to them
personally by Marston, stating among other things that the decision to discharge them
had been made "in early August of this year (before August 15)," but had not been
carried out because of Respondent 's receipt of the Union 's recognition request of
August 15. When McCalmon asked Marston if he thought this discharge was fair,
Marston said he did and that it had nothing to do with the union activities of
McCalmon, who had a good future in radio if he "applied" himself. When McCalmon
asked him for "any suggestions as to what I'm doing wrong," Marston replied that
he did not know but that in order to do a good job in radio he would have to work
on his voice, When McCalmon then went to the control room to pick up his
announcer's license and asked Phipps if he'thought it'was right that he should lose
his job, Phipps replied that he did know what he was talking about.
Immediately prior to the discharge of Russell and McCalmon on November 21,
WDXI had in its employ eight announcers, announcers/saelsmen, and control-board
operators; viz, Adams, Fielding, Mrs. Freeman, Hewitt, McCalmon, Palmer, Russell,
and Chief Announcer Shackelford. Johnson had left on August 31 to return to college
and Palmer came on about that time.
On November 23, 2 days after the discharge of Russell and McCalmon, according
to the testimony of Marston, the network's periodic pay increase policy.was placed
back into effect; and, further according to his testimony, the only two employees who
were affected by the resumption of the policy and who then received those. periodic
pay increases (prospectively only, not retroactive) happened to be Shackelford
and Adams.
Also on November 23, 2 days after his discharge, McCalmon obtained another job
as an announcer, at another Jackson radio station (WTJS), with the same duties and
at the same pay as at WDXI; and he actually commenced working there 2 weeks and
3 days thereafter ; i.e., in early December . ` He was still employed there as of the date
of the hearing in this case . Russell testified that he has been unemployed since his
discharge.
Respondent's denials that Russell and McCalmon were discriminatorily discharged
are predicated upon its contention that the decision to discharge each of these
employees for reasons related to his work performance had been firmly reached prior
to August 15, when (August 15) it learned,for the first time of their union affiliation
or concerted activities. Respondent's specific alleged reasons for the discharges of
these employees will now be considered.
6 Discussed under section B, 1, infra.
?O McCalmon credibly testified that after this hearing Shackelford told him at the sta-
tion that during his (Shackelford's) return with Marston from the hearing, to the station,
they had discussed the future of McCalmon, Russell, and Adams, and had agreed that it
would be a good idea to retain Adams and McCalmon, but that Russell faced an unsure
future with Dixie because, according to Marston, "Russell's attitude wasn't good and
that he [Marston] thought he had instigated the Union," and that "Mr. Marston said
that our relationship. with Mr Russell would be watched." McCalmon also credibly
testified that approximately 2 weeks after this conversation, Shackelford said he had
told Phipps , in response to the latter ' s question , that Russell would quit if placed on the
morning shift ( the station 's broadcast day begins at 4:45 a in., with personnel on that
shift apparently due in by 4 :30 a.m. ; the shift then changes at 8:15 a.m.), and that
Phipps' rejoinder was, "Fine." See section B, 2, infra.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Russell
Marston testified that he personally drafted and dictated the November 21 discharge
letters to Russell and McCalmon. In the discharge letter (General Counsel's Exhibit
No. 2) to Russell, Marston gave as the basis for Respondent's alleged decision "in
early August of this year ... definitely made to terminate your employment at that
time," his unsatisfactory work performance and repeated failures to meet the required
standard of conduct which, among other things, included: (1) lack of cooperation
with the policies set forth by management regarding the music format of the station,
(2) unwillingness to comply with policies set forth by management regarding dili-
gence in making sales efforts, and (3) poor attitude regarding performance of work
which was recognized by management as disinterest in work responsibility." At the
hearing, these alleged reasons were particularized.
There is for initial consideration the period during which Russell served as an
announcer, prior to his transfer to sales around July 1; that is, the 41/2 months from
the inception of his employment on February 18 through the end of June. It is
unnecessary to dwell on Russell's technical capability as an announcer, since not only
is it unquestioned but Respondent's officials and his supervisor, Shackelford, concede
he was and is a good announcer.11 Respondent's alleged dissatisfaction with Russell
during his tenure as an announcer assertedly stemmed, according to Phipps, from his
conduct in the control room, where he had not been "working out and following
orders." Phipps testified that Russell was hired as an announcer. Russell added that
when he was interviewed for the job, Heller was at the station as program director,
but that when he reported on the job Heller was gone. Phipps testified that it had
been part of Heller's job to audition, select, and assort musical recordings for broad-
cast on the station's programs. According to Shackelford, after Heller left, Russell
was assigned this task in addition to full-time announcing, and remained with this
additional task for about a month. Shackelford was, around then, made chief
announcer and took over some of the duties, including record selection, formerly per-
formed by Program Director Heller, who was not replaced. According to Shackel-
ford, Russell was then left doing a full-time announcing shift.12 Phipps testified
that, during the period while Russell was auditioning and selecting musical recordings,
his selections were inept or improper,13 and that this was why he was taken off that
additional task, which, according to Phipps, occupied from 1 to 6 hours per week
(depending upon the number of records coming in). Phipps conceded that Russell's
alleged selection of inappropriate records was not invariable but only as to "several"
selections, and that he (Phipps) also disagreed at times with the selections made by
Shackelford and others, including at times probably even those by Program Director
Heller. There was also some testimony by Phipps (and by Marston based upon
what Phipps had allegedly told him) about Russell's nonadherence to the station's
music format. Russell denied this, as well as that he had ever selected or broadcast
records with-suggestive lyrics, or that he had ever been reprimanded on either score 14
11 Phipps testified , with regard to Russell : "He's a very good announcer when he wants
to be A very good announcer. .. . He has a good voice and he can talk . . . he
sounded good on the air ." Shackelford likewise characterized him as "a very good
announcer." -
12 According to Phipps, after Heller left, Shackelford first took over record selection, and
later Russell did this for about a month, following which Shackelford resumed doing It
This apparent discrepancy between the testimony of Shackelford and Phipps is unim-
portant, in view of findings made herein.
13 Phipps described the faulty record selection as consisting of choice of recordings
having what he termed a "marked teen -beat" or with "suggestive" lyrics.
14 Russell also denied testimony by Marston at the hearing that-as allegedly told to
Marston by Phipps-Russell had brought from home his own records and played them over
the air. I credit Russell's denial of this unsubstantiated assertion.
While denying that he received any reprimand or criticism of his work, Russell conceded
that a week or two after he came to WDXI he received a memorandum from Phipps
calling attention to the necessity for adhering to the station's music policy and format,
and inviting him to communicate with him if necessary. Russell's testimony indicates
that he construed the memorandum to be in the nature of a message to a new employee to
feel free to come In to discuss questions or problems ; and that when he asked Shackelford
about it, he was told it was nothing and not to worry about it. Although under the cir-
cumstances and considering the timing of this memorandum of February 25 by Phipps
just a week after the inception of Russell ' s employment , Russell ' s interpretation seems not
unreasonable , I have considered the contents , date, and circumstances of this memorandum
in relation to the issues germane to Russell's discharge.
DIXIE BROADCASTING COMPANY 1063
Although, based upon the record as a whole, I credit Russell 's denial , I find that these
alleged matters in any event played no role in Russell 's discharge . The alleged ineffi-
ciencies or shortcomings were to an extent vague, were not established by substantial
credible evidence , and involved minor or picayune events such as occur as normal
incidents of employment . If singly or collectively they were really regarded as sig-
nificant by Respondent , Russell could readily have been discharged if found unamen-
able to correction ; instead , he was retained in Respondent 's employ upon expiration of
his 90-day probationary period in mid-May and was given a periodic pay increase,
indicating that Respondent itself ascribed insufficient importance to these matters to
merit his discharge.
Further particularizing Respondent 's reasons for Russell 's discharge, Marston testi-
fied that "Mr. Russell on occasion has voiced his own personal views while on duty
about integration and segregation , among other things, in the reporting of a news
broadcast," in giving only one side of a news item and omitting the other . Asked to
supply facts , however, Marston professed inability to do so beyond stating that he
thought the alleged incident involved an "integration incident in the state of Missis-
sippi" in the spring or early summer , in which Russell had allegedly "omitted part of
the news material that had to do with the government 's approach in Mississippi during
this integration problem," and that at WDXI announcers were required to read the
news script handed to them without deviation of any kind through addition or subtrac-
tion. However, after first testifying that WDXI policies permit no deviation by
announcers from the wording of news items as handed to them, it appeared from the
network's operations manual which he consulted and read from that it was at least
questionable that there was such a policy, if, indeed , not rather a policy to "edit" news
in appropriate fashion. Shackelford similarly, after the wording of news items as
handed to them , upon being shown the station's announcers stylebook (General Coun-
sel's Exhibit No. 7), modified his testimony so as to concede that announcers are
permitted under station policy to edit "news headlines," and he then further conceded
that under his and the station's usage "headlines" are not "headlines in the true sense
of the word" and could be several lines long. Russell denied any violation by him of
the station 's rules or policies with regard to the handling of news broadcasts , credibly
explaining that WDXI announcers were expected and required to edit news material
in view of the time element allocated for newscasts , as illustrated by pages 9 and 10
of the applicable announcers stylebook to which announcers were obligated to con-
form.15 I am impelled to credit Russell 's denial that he mishandled news as thus
claimed by Respondent , and also to find that in any event this was not a factor in
Russell's discharge , because of the vagueness of Respondent 's testimony thereon and
its failure to supply the alleged facts involved; 16 the apparent fact, as testified by
Marston , that the alleged incident was isolated and occurred once only; the circum-
stance that , if Respondent really attached the significance which it now ascribes to
this incident , it would seem that somebody in its employ could have testified to the
facts involved ; and the fact that, although Respondent now asserts the alleged incident
was extremely serious, no disciplinary action was taken against Russell by reason
thereof and he was allowed to remain on the air.
Respondent 's next specific alleged reason for discharging Russell was his assertedly
unsatisfactory performance as a time salesman , which according to Phipps became
"obvious in less than a month " after he was transferred into sales . Russell denies
that his performance as a time salesman was ever adversely criticized ; on the contrary,
15 Dixie network operations manual, chapter XXI (General Counsel's Exhibit No. 9),
appears also, as indicated in connection with Marston ' s testimony , to invite the "edit[ing]"
of news . Russell explained the distinction between "editing " and "editorializing," the
latter consisting of infusion of personal opinion, which he credibly denied ever doing on
the air Russell testified that on one occasion after he had affiliated with the Union
(i e , after August 14-prior to which, according to Marston , Respondent had reached
its firm determination to discharge Russell ), station newsman Hewitt told him, "Don't
editorialize ," but that, since he had not done so on the air and did not know what
Hewitt had reference to, and did not wish to provoke an argument with Hewitt (with
whom he did not see eye - to-eye on certain matters ), he made no reply. I do not regard
this candid admission by Russell as being significant in view of the date of the incident
and the absence of any contradiction by Hewitt of Russell 's testimony
Shackelford testified that Hewitt is the station news director who, when he ( Hewitt)
is in , decides on newsworthy items, and selects the news and gives the announcers a
newscast , but that "When he is out, it is up to the announcer on the board" and that
"Mr. Hewitt is outside the station more than he is in the station "
1s Lacking such facts, it is impossible to determine, for example , whether the alleged
mishandling of news was significant or even inadvertent.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he testified that Shackelford praised it. My rejection that this was the reason for or
played a role in the discharge of Russell is impelled by the following considerations:
the fact that, as herein found, Russell went from announcing into sales at Phipps'
request, on a trial basis and on Phipps' promise to return him to announcing at
Russell's request; the fact that Russell was transferred into sales when a vacancy was
created there by the termination of Sievers, and Shackelford's testimony 17 indicating
that Russell was then placed into sales until a replacement could be found; Respond-
ent's failure to establish by specific economic data the comparative quality of Russell's
sales performance, all factors considered; the fact that although Russell was initially
placed into sales on only a part-time basis, notwithstanding Respondent' s present asser-
tion that his performance was so highly unsatisfactory, he was then put on a full-time
basis there; the fact that Russell was in sales for only a short time when Respondent
allegedly decided he was unsatisfactory there, even though travel was required
throughout the customer area (at his own expense), Phipps and lifelong Jackson
resident Mrs. Freeman (a relative of Dixie Network President Robinson) themselves
handled the station?s major advertising accounts according to Marston, and newcomer
Russell had to "plow new ground" to succeed in this untried saleswork; and even
though in addition to outside sales calls, Russell (according to his credible testimony)
was required to work inside the station, not only doing part-time announcing, but
also in preparation of copy and recording of "spots" not merely for his own accounts
but also for Phipps and for Mrs. Freeman (for whom he also typed up orders); and
even though Phipps had agreed,18 as herein found, to transfer Russell back to announc-
ing on September 1, when announcer Johnson was schedule to leave to return to
college.
Respondent assigns as further reasons for its discharge of Russell that he failed to
pick up customer Shainberg's advertising copy regularly, and that he failed to turn in
daily sales records as required. The particular incident involving Shainberg occurred
on August 14, on which date the wife of the owner of the Shainberg store saw Dixie
Network President Robinson in a gasoline station after Shainherg's had closed for
the day, and informed him that the advertising copy had not been picked up that day.
Robinson told Phipps about this the next day, August 15. Russell's version from this
point on is that although prior to August 15 he had received no reprimand concerning
his work, on that day-the day when Union Representative Blair informed Phipps
that Russell and other WDXI announcers had affiliated with the Union-while he was
working in the radio sales office, Shackelford came in and asked, "Does anyone in
this room know a Mr. Taylor Blair," and he did not respond; that thereafter, a female
office employee came in and asked the same question, which again evoked no response;
and that immediately thereafter Phipps approached him and commenced taking him
to task for not picking up Shainberg's advertising copy. According to Russell, when
he reminded Phipps that he had never before done this or been told to do this, Phipps
said, "Well, you are supposed to know to pick it up" and to "do it from now on,"
which Russell said he would (and did). On his way out, Phipps turned and began
taking Russell to task for "not . . . turning in daily sales records." This involved
Russell's conceded failure to turn in such reports from August 1 to 14. When Russell
reminded Phipps of their understanding (about 2 weeks prior to this, when Phipps had
agreed to return Russell to announcing on September 1) that Russell would service
accounts on the air instead of continuing outside sales solicitation in the interim until
September 1 (at the same time it was understood by Russell, according to his credible
testimony, that he could discontinue filing daily sales reports, since they were unneces-
sary if he discontinued outside sales solicitation), Phipps replied, "From now on start
turning in your daily sales reports, and this is the last time I am going to tell you."
Russell said he would (and he did). With regard to the Shainberg incident, Phipps
testified that "He [Russell] was not paid a commission on the Shainberg's sales He
was paid a salary to carry out my instructions daily." With regard to the apparent
coincidence of Russell's discontinuance of the filing of the daily sales reports corre-
sponding with Russell's meeting with Phipps at the end of July when Phipps agreed to
return Russell to announcing, Phipps testified that at that meeting with Russell, "I
don't remember if that particular question [about discontinuing those reports] was
asked," although he (Phipps) himself did not tell Russell to discontinue the reports.
With regard to the Shainberg incident, although I credit Russell's testimony (empha-
sized on rebuttal) that he had not been asked by Phipps prior to August 15 to pick up
advertising copy from Shainberg, an account on which he received no commission, but
17 See footnote 8, supra.
>s I.e , both on the occasion of Russell's transfer into sales and on the occasion of
Russell's request for transfer back to announcing. Russell testified credibly that when he
reminded Phipps and Shackelford of those promises, he received only evasive replies.
DIXIE BROADCASTING COMPANY 1065
had picked it up whenever requested to do so by a secretary-"traffic manager" as a
favor to her,19 in any event I cannot believe that this was a matter of such importance
as to enter into the discharge of Russell; particularly since Shainberg's notification
thereof was so incidental after the close of business in a chance gasoline station
encounter, no serious consequences flowed therefrom, and it was isolated-and not
repeated thereafter. It is further noted that the Shainberg incident occurred on a date
subsequent to that on which Respondent had allegedly already decided to discharge
Russell, and therefore could not have entered into that decision. I similarly do not
accept Russell's failure to file daily sales reports for August 1 through 14 as playing
a role in his discharge, since I credit Russell's reasons for his discontinuance of those
reports at the time he did, following this meeting with Phipps at which the latter
agreed to transfer him back to announcing: since I cannot believe that if Phipps had
regarded those reports as really being due, instead of excused, he would have allowed
2 weeks to pass before bringing the subject up, which he did on the same day that he
received the news that Russell had affiliated with the Union; and since Russell resumed
the reports as soon as requested.
Phipps further testified that the "straw that broke the camel's back" was an incident
on August 9 when he assigned Russell to make telephone solicitations for sponsorship
participations in a local little league baseball game, but, according to Phipps, Russell
left the station and did not return until-the next day, when, called upon by Phipps to
explain, Russell said he had to go out on other business for the station and in an
"insubordinate" way turned on the broadcast microphone (rendering further conversa-
tion impossible). Russell' testified, however, that on August 8, he and Mrs. Freeman
were together asked by Phipps to solicit on the telephone as indicated and that he did
this during that entire day and the next day, August 9; that he did not leave the station
as Phipps testified; that he made as many sales as Mrs. Freeman or Phipps; and denied
that Phipps spoke to him on August 10 as Phipps testified. Mrs. Freeman was not
called to testify, and Russell's testimony as to his comparative success in these tele-
phone sales solicitations was unrebutted. Since, in addition to the foregoing, I cannot
believe that if, particularly on top of all of his other alleged misfeasances and non-
feasances, Russell had really acted in the inexcusably insubordinate fashion, both on
August 9 and again on August 10, described by Phipps-characterized by Phipps as
the "straw that broke the camel's back"-Phipps would not summarily have dis-
charged him, I do not credit Phipps' version of this incident 20
Other alleged particularizations of Respondent's reasons for discharging Russell
are that he had a "disgruntled" attitude (resulting according to Phipps, in his transfer
from announcing into sales); repeated violation of instructions to keep out of the
television' control room; an unexplained incident after August 15, when he was
allegedly observed outside of the television control room "waving his arms and
screaming" for some unknown reason; and exhibition of a "sullen attitude to other
employees." Russell denied the foregoing and testified that he got along well with
everybody (including Shackelford, with the possible exception of the last stages of
Russell's employment) at the station, except that he had had some personal differences
of viewpoint with Hewitt, not affecting or pertaining to their work.21 In the absence
of factual substantiation, I am unable to accept the foregoing vague and unproved
assertions by Respondent as true reasons for its discharge of Russell, in the light of
all circumstances shown by the record.
"Russell testified on direct examination that he had never before August 15 "been
instructed" to pick up, or picked up. Shainberg's advertising copy, but that Donna
Caradine, a WDXI secretary-traffic manager, had done so 'when told to do so. On
rebuttal, he testified that on occasion prior to August 15 he had picked up Shainberg's
copy on request of Donna Caradine as a favor to her when she asked him to pick it up
for her I do not regard this as a serious inconsistency, since the reasonable purport of
Russell's testimony appears to be that prior to August 15 he was under no instructions
from Phipps to pick up Shainberg's copy either as a regular practice or even on any
occasion, but that, prior to August 15, although Donna Caradine had been picking up
the Shainberg copy, he (Russell) would sometimes pick it up for her as a favor if she
asked him to
20 Nor can I credit Phipps' testimony that the reason he did not discharge Russell was
that he was in search of a replacement for him-a process in which he was still allegedly
engaged in 1964.
2i nlcCahnon testified credibly and without contradiction that Shackelford also has had
differences of viewpoint with Hewitt, both as to Hewitt's repeatedly running over his
newscast time for a minute to 2 minutes, and that Shackelford and Hewitt have had per-
sonal differences as to the handling of an Alabama crisis by the Governor of that State.
Shackelford and Hewitt have both continued in Respondent' s employ.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent claims that additional reasons for its discharge of Russell were that he
failed to wear a necktie as required while on duty in the control room, and his objec-
tionable pronunciation of the word "Negro." Russell admits not wearing a tie occa-
sionally while on duty, but testified-without contradiction-that other employees,
including Hewitt and Fielding, did likewise, and that, indeed, Hewitt never wore a tie.
He further testified that the subject of ties was never mentioned prior to the posting of
a notice (General Counsel's Exhibit No. 6) on September 18. Dixie Network General
Manager Marston testified that the announcers work in an area air-conditioned "after
a fashion," with the "air conditioning" assisted by opening the door; that he and
Phipps have gone to the station without ties, but not when "on duty"; that there is no
manualization of any requirement that ties be worn, but only that the employees "try
to do what is right within the customary codes of good conduct and good dress to
make a good impression out in the community as an employee of our company"; and
that the visiting public might be poorly impressed by seeing an announcer in a studio
without a tie. Although Marston indicated that Russell's failure to wear a tie was
brought to his (Marston's) attention, he testified that it has not been brought to his
attention whether Mrs. Freeman has worn slacks to work, and that deviations in dress
are not necessarily supposed to be brought to his attention Respondent's supervisor,
Chief Announcer Shackelford, conceded in his testimony that at times he has not worn
a necktie at the station. If regarded as important, it would seem that an employee's
failure to wear a tie is easily correctible by notice and, if necessary, warning. Upon
the entire record, I find that Russell's occasional failure to wear a tie in the control
room played no role in his discharge. As to Russell's allegedly objectionable pro-
nunciation of the word "Negro" (with a short instead of long "e"), cited by Phipps as
a reason why it was not feasible to return Russell to announcing, aside from the fact
that Russell denies Phipps ever discussed this with him, according to Phipps' own testi-
mony after he took it up with Russell he thereafter mispronounced the word on only
one occasion; and it is further noted that Russell was continued in announcing on
Saturdays up to the time of his discharge. I find that Russell's allegedly objectionable
pronunciation of the word "Negro" did not enter into Respondent's motivation- for
his discharge.
2. McCalmon
Respondent's discharge letter (General Counsel's Exhibit No. 3) to McCalmon, also
dated, as was Russell's, November 21, and also stating it was "in early August of this
year" that the "decision was then definitely made to terminate your employment at that
time," assigns as the reason for McCalmon's discharge "unsatisfactory work per-
formance due to a lack of announcing experience commensurate with ability desired
by management in a competitive situation."
As in the case of Russell, Respondent advanced at the hearing a particularization of
this alleged basis for discharge, consisting of a variety of specific alleged reasons. To
begin with, as in Russell's case, Respondent professes dissatisfaction with McCalmon's
selection of musical recordings for broadcast,22 and with his observance of the sta-
tion 's music format. McCalmon denied that he had ever been criticized with regard to
these matters. Shackelford testified that in order to relieve himself in part, McCalmon
was in addition to his regular announcing duties placed into the musical selection
auditioning task in July, and that although at first he did a good job, later,'when
Shackelford returned from his vacation in August, he found that "the music slipped"
and "We got more music in with an up-beat than in the regular overall program should
have been," and that since selection of musical recordings is "primarily a matter of
his taste" and that fitting-in with what the particular station wants "is something that
takes a while" and since it was Shackelford's job to keep this right, he discussed it
with McCalmon and it was corrected; and that soon thereafter Shackelford resumed
the task of personally selecting the records, and McCalmon remained on full-time
regular announcing except that he continued in charge of the 3 to 6 p.m. musical show
and occasionally auditioned records subject to the approval of Shackelford, his super-
visor. I credit McCalmon's denial that he was criticized (other than as he indicated
above) in these matters, while also crediting Shackelford's testimony that after his
discussion with McCalmon in August, McCalmon's record selection technique was
corrected so'as to conform to the station's tastes or desires. As in Russell's case, I
=a Phipps testified that this involved listening to a new musical recording and then
marking the disk with a green "X" If it was "easy listening" for nonteenagers, or with a
red "X" if it had a predominatingly "teen beat, the rock and roll beat, the heavy beat."
Red-X recordings were not to be played on green- X -type musical programs, and
vice versa. According to Phipps, McCalmon lacked good judgment in making the desired
distinctions between recordings qualifying for a green "X" as distinguished from those
which should be assigned a red 11 X ".
DIXIE BROADCASTING COMPANY 1067
find that these matters were minor in nature, were corrected,- and did not play a role
in the discharge of McCalmon, who was retained in Respondent's employ and given a
pay increase upon expiration of his 90-day probationary employment period.
Respondent assigns as a further reason for its discharge of McCalmon an incident
said to have occurred between him and Shackelford in the control room around
October 20 or 25 involving McCalmon's removal of a page from a magazine. At the
outset it is observed that since this incident occurred late in October, long after
Respondent's "decision ... definitely made" (General Counsel's Exhibit No. 2) "in
early August of this year (before August 15)" to discharge McCalmon,. it could
scarcely have played a role in that alleged decision. However, the incident arose out
of McCalmon's removal of the page from Billboard Magazine which listed the cur-
rently top-rated musical recordings. According to Shackelford, when on this occasion
in late October he asked McCalmon not to remove the page, McCalmon asked him
"if this was coming from me [Shackelford] or from Mr. Phipps" and to "tell him
[Phipps] that you told me [McCalmon]"; that he would continue to remove the page if
he wanted to; and that nobody at the station could fire him and that he could tell this
to Phipps. Although Shackelford testified on direct examination that he reported
this to Phipps, on cross-examination he testified that he did not "recall" whether he
told Phipps that McCalmon had said that nobody could fire him. And, although
Shackelford first testified that "definitely" neither he nor anybody else "since I've been
placed on music," other than McCalmon, ever removed this page of currently top-
rated musical favorites from Billboard Magazine, on cross-examination Shackelford
conceded that he had seen such Billboard pages posted up there when he came to work
at the station; and, although he first insisted these were "old ones," he quickly con-
ceded they may well have been current pages in replacement of pages from older
issues since "I don't know. I never even looked at it. I assume it was always the old
one ... because if there is something in there in the same place I would assume that
it was still the old sheet." 23 McCalmon denied ever telling Shackelford that he
would do as he pleased or that Phipps could not fire him. McCalmon's version of the
Billboard incident is that he had been removing the particular page out of the Bill-
board Magazines as they came in each week and had been placing them in the cabinet
containing new recordings to be auditioned, replacing the old page with the current
page as it came in; that he had been doing this for some months, with Shackelford's
knowledge; that in so doing he was following the existing practice-"Mr. Shackelford
had been doing this prior to the time I had .... He instructed me to audition the music,
and he had been doing it. So I did it, too"; that immediately after the representation
case hearing on September 25, McCalmon had been auditioning records and Shackel-
ford directed him to stop removing the Billboard sheet from the magazine and "said
that it would be grounds to be fired if I didn't," to which McCalmon remarked that
"surely I couldn't be fired for tearing a sheet out. Surely Mr. Phipps wouldn't fire
me for tearing a sheet out of Billboard," whereupon Shackelford "told me that I was
all wet; that the Union had me brainwashed, and that Mr. Phipps could hire and fire
as he saw fit regardless of the outcome of this Union activity. He [Shackelford] was
quite heated about it, and once again I stated, `Well, surely I couldn't be fired for
such a trivial thing as this,' " and that thereupon Shackelford left. At any rate,
McCalmon further testified that following this instruction from Shackelford, he never
again removed a page from Billboard, although he continued to see it posted in the
usual place in the record cabinet, and on one occasion on Shackelford's desk. Shackel-
ford testified that he did not, after the October incident, observe McCalmon remove
the page again, and never spoke to him about it again, although he knows- the page was
also removed by somebody thereafter. Shackelford denies telling McCalmon that
continued removal of the Billboard page would be cause for discharge, and also testi-
fied that he did not tell McCalmon that he (Shackelford) or the station regarded this
as a serious matter. Upon all of the evidence relating to this incident, including
McCalmon's version thereof (which I credit), Shackelford's admissions, and the date
thereof, I find that it did not play a role in McCalmon's discharge.
Respondent alleges that another reason-perhaps the chief reason-for its dis-
charge of McCalmon was his poor announcing voice, his unsatisfactory announcing
techniques, and his lack of announcing experience. Although no unusual voice pro-
x' Why Shackelford as chief announcer or anybody else in a supervisory position would
want a long-outdated sheet guide listing of current hit recordings to remain posted is not
apparent and was unexplained. Shackelford's allegedly continued assumption that it was
still the old sheet (several years old) may be tested by his further testimony that "I know
that it [current sheet] was missing from [current issues of] this magazine " There is
no suggestion that the publisher of Billboard was failing to supply these pages of its
magazine in the copies it was sending to WDXI.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction or speech pattern was discernible at the hearing, it is recognized that evalua-
tion of the type allegedly made by Respondent may involve highly subjective elements.
Here in issue, among other things , is whether Respondent in fact entertained the
opinions and formulated the judgments which it now avers that it did, and if so
whether they were the true reason for its discharge of McCalmon . In assessing
Respondent's contention in this aspect , it is noted at the outset that McCalmon's
experience and capability as an announcer , including his announcing voice quality and
techniques, were known to Respondent Supervisor Shackelford by actual recent dem-
onstrated experience with him when they were both announcers at another station,
and that prior to McCalmon's coming to WDXI Shackelford had urged him to apply
for an announcing job there. It is further noted that before McCalmon was hired
at WDXI , he was - interviewed and auditioned ( as to voice and announcing style, both
for news and commercials) not only by Shackelford but also by Phipps. And it is
additionally noted that, in accordance with the station 's apparent practice , McCalmon
was hired on a 3-month probationary basis, at the end of which he was retained in
the station 's employ as a full-time announcer and given a raise. It is further noted
that McCalmon had had relevant specialized education and qualifying prior experi-
ence as a radio announcer ; and that immediately ( 2 days ) after his discharge on
November 21 he obtained and has continued in another radio announcing job, involv-
ing the same duties and at the same salary as at WDXI , at another Jackson radio
station.
Based upon the implausibility of Phipps' assertions and upon my demeanor obser-
vations, I credit McCalmon's denials that he received voice projection, speech, or
announcing lessons at WDXI from Phipps , involving use of an elastic belt or other-
wise, as testified by Phipps. I further credit McCalmon's testimony that, with only
two exceptions ,24 he received no criticism from Respondent in regard to his work
performance . Pressed to supply facts with respect to McCalmon 's alleged voice,
speech, and announcing deficiencies , Marston replied that "It would be extremely
difficult to define it because it is a matter of judgment"; that he "was mumbling his
approach in reading the copy of the commercial"; that "it was my impression that I
was having great difficulty in understanding Mr. McCalmon . His voice did not have
a pleasing quality, at least to my hearing ." When asked in what respect it was not
pleasing, Marston testified , "I don't know . It was an over-all sense of being less than
pleased with the sound that was being projected." When asked why.it was unpleasant
to his ear, he replied, "Well, it just didn't sound right ... I am doing my best to give
you my feeling of the thing, but it is a matter of judgment. It is difficult for me to
define whether his voice had a raspy quality to it." When asked whether he would
say that it was raspy , Marston replied, "It seemed to have a strained quality, an
uncertain quality, one of hesitancy and reluctance. It lacked enthusiasm. It didn't
sparkle. All of these factors combined to give it a less than pleasing sound ." Marston
stated that the voices of the other announcers sparkled and had enthusiasm and all
of the qualities absent from the voice of McCalmon, and that this "pretty well covers
it" and that there was nothing else he could point to that was undesirable about
McCalmon 's voice-"it is a matter of judgment and I had made the judgment that
this fellow didn't sound the way I thought we ought to have an announcer sound ....
I have already said that it had a strained quality, a lack of enthusiasm , lack of clarity.
in my judgment , that just didn 't measure up to an experienced announcer 's voice."
Marston testified that what he meant in stating that McCalmon did not "sound to me
like an experienced radio announcer" was that he lacked the "ability to project him-
self through his voice quality to sell a commercial announcement," which Marston
agreed was just a feeling, a reaction, a hunch, which he received after McCalmon
had been on the job only a few days. '
Further on the subject of McCalmon's voice, McCalmon's supervisor, Shackelford,
testified that "good voice" in announcers "is a matter of opinion , and sometimes we
are disagreed about. a man's voice." Shackelford also testified that it was Phipps
(who had auditioned McCalmon before hiring him, and who had also retained him
after his 90-day probationary period) who "determines" the adequacy of announcers'
voices; that he (Shackelford) knew of nobody other than Phipps who was dissatisfied
with McCalmon's voice quality and announcing ; and that it was after Shackelford
24 The first exception involved a statement to him , about a month after coming to
WDXI, by Shackelford , relating to McCalmon 's not announcing the temperature in the
manner desired by WDXI ( i.e., announcing " thirty-nine ," Instead of " three -nine ," degrees,
the latter style being desired at the station ) He thereafter conformed to this instruc-
tion. The second exception involved the Billboard Magazine incident in October, de-
scribed above.
DIXIE BROADCASTING COMPANY 1069
returned from his vacation in August that Phipps remarked to Shackelford that there
was "too much dead air and not enough reflection" in McCalmon's voice, and to
mention to McCalmon that he "needed to get a little more reflection in his voice."
Marston further testified that McCalmon was inefficient in performance of his
"diskjockey" work, playing records and interspersing commercials. Asked to explain,
Marston testified that "My" judgment was that Mr. McCalmon was not going to be
adequate"; asked, "Is that the best answer you can give to this question that has been
asked you many times," he replied, "That is correct. Mr. McCalmon, in my mind,
was due to be terminated."
Marston also assigned as a reason for McCalmon's discharge his lack of sufficient
announcing experience. In this regard, it has already been noted that McCalmon
was in fact experienced, that his capabilities were known to Shackelford, that before
being hired he was interviewed by Phipps as well as Shackelford, and that he was
retained at the station after expiration of his 3-month probationary period and was
permitted to work there as a full-time announcer for almost 8 months. Furthermore,
Marston conceded the possibility that others with less experience than McCalmon
had been hired at WDXI, as well as the fact that Announcer Adams (who was
retained when McCalmon and Russell were discharged) had had only part-time expe-
rience at only one station when he was hired at WDXI.25
As indicated above, Marston (as well, in effect, as Robinson) testified that McCal-
mon's alleged poor voice and inadequacies as an announcer became apparent to him
within a few days after McCalmon came to work at WDXI on March 30. He was,
however, continued in the station's employ, and was given a periodic pay increase at
the end of his 90-day probationary employment period. Marston also testified that
the decision to discharge McCalmon because of his poor voice quality and inadequacy
as an announcer was arrived at around June 1.26 Marston subsequently testified that
it was in late July that it became apparent that McCalmon would have to be replaced.
Nevertheless, not only during all of this time (March 30 to July) but even thereafter,
for almost 8 months, McCalmon was permitted to remain as a full-time announcer.
I find it difficult to believe that'if Respondent's dissatisfaction with McCalmon as an
announcer was as great as it now pictures, it would have permitted him to continue
on the air as a full-time announcer for as long as it did. Its alleged explanation for
so doing is that it was in search of a replacement for him. I do not credit this
explanation, in view of the supposed seriousness of his deficiencies; the length of
time involved; and the fact that another announcer came in around September 1
when Johnson left to return to college.27 I also regard it as hardly likely that if, as
Marston now insists and as his discharge letter states, a firm decision had been made
to discharge McCalmon when he states, that Station Manager Phipps would in August
merely be telling its chief announcer, Shackelford, as the latter testified, to pass on
to McCalmon "that he needed to get a little more reflection in his voice."' It seems
to me far more likely that any desire for improvement in, or dissatisfaction with,
McCalmon's voice, or speech habits or announcing technique that Respondent may
have had -certainly not unusual on the part of any employer with relation to an
employee using his voice 28-was upon receipt of the union communication of
August 15 magnified out of all proportion into a pretextuous afterthought excuse to
"justify" that discharge, which was not really made for that reason at all. Upon the
record as a whole, I find that Respondent did not discharge McCalmon because of his
poor voice or speech quality or because of any deficiency or inefficiency in announc-
ing technique, or because of lack of announcing experience.
As in the case of Russell, Respondent now also assigns as one of its reasons for
McCalmon's discharge his failure to wear a necktie while at work. I believe that
sufficient has been said on the subject of neckties in connection with the discharge
25 Marston testified that he was unaware of Adams' lesser experience than McCalmon's
at the time he wrote the letter discharging McCalmon.
28 Marston later appeared to change this to "late July."
27 This other announcer was Palmer. He was hired at $95 per week. Russell had
been hired at $75 and McCalmon at $65 per week. Phipps testified that in hiring eai-
pioyees "I try to spend as little money as possible.," Although Phipps also testified that
Palmer was the replacement for McCalmon, Palmer's coming coincided with Johnson's
leaving.
a8 Marston testified that between June 1 and November 21, the only event that occurred
in this regard was that McCalmon received "instructions from Mr. Phipps on several
occasions to change the level of his voice, and to try to inject some enthusiasm into his
voice as a means of helping," and conceded 'that this type of instruction or advice is
customary and usual by supervisors toward announcers.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Russell, equally applicable here, not to require repetition; accordingly, for the
reasons there set forth, I hereby find that this did not play a role in McCalmon's
discharge. Finally, according to Marston, McCalmon was discharged because of a
"complete deterioration of Mr. McCalmon's interest in his work." Since no facts
have been adduced in support of this vague and unsubstantiated conclusion, I find it
has not been established by substantial credible evidence and played no role in
McCalmon's discharge.
With regard to both discharges, Respondent urges additionally that the discharges
were based upon its own good-faith judgments and beliefs as to facts, even if mis-
taken, and, further, that they were executed in reliance upon advice of counsel. In
view of findings herein made, rejecting as pretextuous the reasons advanced by
Respondent for these discharges, and based upon the record as a whole, I do not
credit Respondent's assertions that it based these discharges, or either of them, upon
any actual judgment or belief on its part as claimed. Nor is it an answer to unfair
labor practice charges that the acts involved were committed in good-faith error or
upon advice of counsel 29
In concluding, as I hereby do, that Respondent's discharges 30 of Russell and
McCalmon were discriminatory, in violation of Section 8(a) (3) and (1) of the Act,
because of their union membership or affiliation and because of their lawful union
and concerted activities, I have given weight to the following considerations in the
light of the record as a whole: my findings that the reasons advanced by Respondent
for these discharges are pretextuous and were not the true reasons, nor in fact believed
by Respondent to be the true reasons for the discharges; 31 the fact that Russell and
McCalmon were retained in Respondent's employ after the conclusion of their 90-day
probationary employment periods, and received pay increases at those times, notwith-
standing what Respondent now asserts were their substantial lack of qualifications,
19International Union of Electrical , Radio and Machine Workers , AFL-CIO, Local 613
(Erie Technological Products, Inc.) Y. NLRB, 328 F. 2d 723, 727 (CA 3) ; N.L R B
v. Clearfield Cheese Co., Inc., 322 F. 2d 89, 93 (C.A. 3). "We are of the view that good
faith, based upon an erroneous interpretation of the law, is not available as a de-
fense .. . . An employer who pursues a course of conduct later determined to be an
unfair labor practice does so at his peril ." International Union of Electrical , Radio and
Machine Workers, AFL-CIO, Local 613 (Erie Technological Products, Inc.) v. N.L.R.B.,
supra, at 727. A mistaken view of statutory rights and obligations does not legalize
unlawful conduct. Taylor Forge & Pipe Works v. N L R.B., 234 F. 2d 227, 231 (C.A. 7),
cert. denied 352 U.S. 942, and cases there cited ; Old King Cole, Inc. v. N.L.R.B., 260
F. 2d 530, 532 (C.A. 6). "The right of employees to engage in activity guaranteed by
Section 7 of the Act should not be subject to defeasance merely because the employer
believes he is not violating the Act in restraining the employee in his exercise of such
rights." N.L.RB. v. Puerto Rico Rayon Mills, Ino, 293 F. 2d 941, 945-946 (C.A. 1).
. . the statutory protection extended to a blameless employee is a firm and clear
guarantee, not one which constantly varies with the correctness of the employer's opinion
or with the accuracy of his sources of information " N.L.R.B. v. Industrial Cotton
Mills ( Division of J. P. Stevens Co.), 208 F. 2d 87, 91 (C.A. 4), cert denied 347 US. 935.
30 Also its .failure and refusal to reinstate. Although Respondent raised the contention
at the hearing that neither Russell nor McCalmon requested reinstatement, Marston him-
self testified that on or about November 22 he received a reinstatement request from
Union Representative Blair on behalf of these two employees , which Marston declined
several days later. Nor, in any event, would a reinstatement request be necessary follow-
ing discharges such as herein. "It is an old maxim of the law that it compels no man
to do a useless act." 3 Williston, Contracts, Sec. 698 A, p. 2008 (Williston & Thompson,
ed. 1936 ). Cf. American Compress Warehouse ( Division of Frost-Whited Company, Inc.),
144 NLRB 433.
sz In arriving at those findings, I have given effect not only to the facts appearing in
the written record, but also to credibility comparisons based upon demeanor of the witnesses
as they testified before me. Thus, Russell and McCalmon each impressed me as essentially
credible witnesses who testified straightforwardly and with candor in accordance with
their best recollections, and who withstood rigorous and able cross-examination quite
well. Marston testified to a degree unresponsively and with equivocation, and appeared
to volunteer unsolicited material, possibly because considered damaging to the other
side. Phipps impressed me as a witness who was at times highly evasive , unresponsive,
and argumentative, who volunteered unsolicited and at times prejudicial matter quite ex-
tensively, who repeatedly hedged, and who appeared to be partisan. At one point, when
Respondent's counsel was leading him (objection thereto was sustained), Phipps spon-
taneously stated , "He is not leading me." Shackelford also equivocated at times, exhibited
a "convenient" memory, was somewhat evasive, and evinced partiality.
DIXIE BROADCASTING COMPANY ' 1071
inefficiencies, and serious misfeasances, in each case going to the very heart of station
operations; 32 the fact that Russell and McCalmon affiliated with the Union on
August 14, and that this was made known to Respondent on August 15; the absence
of any evidence, other than Respondent's self-serving discharge letters and its apse
dixit testimony at the hearing, neither of which I credit, to support its contention that
its decisions to discharge each of these employees were arrived at prior to August 15,33
the date of its receipt of the Union's request to bargain on their behalf; the fact that
McCalmon, allegedly a highly unsatisfactory announcer, was retained in announcing,
while Russell, concededly a good announcer, was transferred into sales (except for
Saturdays), coupled with Respondent's failure after August 15 to honor its commit-
ments made prior to that date to return Russell from sales to full-time announcing on
September 1 with the departure of announcer Johnson, and the simultaneous advent
of announcer Palmer; Respondent's excuse for not having discharged two (or either
of) such allegedly highly inefficient and objectionable employees prior to August 15-
namely, that it desired first to obtain replacements for them-considered alongside
of (1) the fact that when they were together summarily discharged, no replacements
had been secured, and (2) the unimpressive nature of Respondent's alleged efforts to
obtain replacements, not even involving a single advertisement during the lengthy
period encompassed; the fact that, Russell and McCalmon, two of the three union
adherents,34 were the only employees discharged; the fact that Russell and McCalmon
were summarily discharged, contrary to Respondent's usual policy, without advance
notification of any kind; 35 the unique and unprecedented method utilized in effecting
as Respondent's long delay in carrying out its alleged decisions to discharge Russell
and McCalmon prior to its receipt of the Union's, recognition request are "inconsistent
with management's supposedly low esteem" in which it allegedly held these two em-
ployees. N.L.R.B. v. Wichita Television Corporation, Inc., d/b/a HARD-TV, 277 F. 2d
579, 584 (C A. 10), cert. denied 364 U.S. 871.
33 As well as the apparently somewhat inconsistent testimony of Respondent's witnesses
as to when those alleged decisions were arrived at.
34 There may have been as many as five union adherents at one time if Shackelford is
included ; with his exclusion, only four-viz, McCalmon, Russell, Adams, and Johnson.
Johnson was the summer announcer who left on August 28 to return to college, leaving
three union affiliates. Insofar as Adams (one of these three) is concerned, Phipps testi-
fied that his employment after the discharge of Russell and McCalmon was continued
"much against my wishes, 'but, by orders from Mr. Marston," until shortly thereafter, in
December, when Adams "disappeared one night," it being allegedly learned thereafter for
the first time by Respondent that he had reported for duty with the Air Force.
sc Cf. E. Anthony & Sons, Inc. v. N.L.R.B., 163 F. 2d 22, 26-27 (C.A.D.C.), cert. denied
332 U.S. 773. Respondent's witnesses conceded that at no time prior to their being handed
the discharge letters by Marston on November 21, was any indication given to Russell
or McCalmon that they were going to be terminated Phipps testified that he never told
Shackelford that Russell or McCalmon was going to be discharged. Shackelford testified
that he had no knowledge that Russell or McCalmon was to be discharged, but first
learned of it on November 21 immediately after their discharge Respondent conceded
that there was never any indication to Union Representative Blair that Russell or
McCalmon was being considered for discharge ; nor, until after their discharge on
November 21, that a decision had been arrived at prior to August 15 to discharge them.
(I do not credit Marston's explanation for this, "because we never had the opportunity
to make the statement to him [Blair]," in view of the meetings held with Blair and the
obvious availability of the telephone and correspondence to make any such matter readily
of record.) It is conceded that applicable provisions of the station's hiring and dismissal
policies and procedures require "suitable notice" under ordinary conditions. There was
also, as indicated in the testimony of Marston, no emergency or need for haste neces-
sitating the omission of such notice herein. (McCalmon had come to WDXI from another
State with his wife and three children.) After testifying that McCalmon was to be
discharged upon "ample notice," Marston conceded he was discharged without notice
and he could not explain when the intention to give him such notice was abandoned
Although Marston testified that the discharges of Russell and McCalmon were not carried
out prior to August 15 because "We didn't feel that there was any great sense of urgency
that demanded an immediate act. We wanted to get an adequate replacement for these
people, if possible," Marston conceded that at the time McCalmon was discharged no
replacement had been obtained for him. (This is in contrast to the testimony of Phipps,
who identified Palmer as the replacement for McCalmon. In this connection it is noted,
775-692-65-vol. 150-69
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discharge of Russell and McCalmon; 36 the alleged coincidence of-the timing of
the joint discharge of these two union adherents 37 2 days after withdrawal of the
Union's petition for a representation election; and the background and other unfair
labor practices found herein. All circumstances considered, in the,light of the entire
record, Respondent's "numerous and unconvincing reasons advanced for ... dis-
missal" (Stokely Foods, Inc. v. N.L.R.B., 193 F. 2d 736, 738; (C.A. 5)) place "too
great a strain on ...' credulity" (Edward G. Budd Manufacturing Co. v. N.L.R.B.,
138 F. 2d 86, 91 (C.A. 3)) and simply do not "stand under scrutiny" (N.L.R.B. v.
Thomas W. Dant, et al., d/b/a Dant & Russell, Ltd., 207 F. 2d 165, 167 (C.A.'9)).
however, that Palmer's advent was approximately simultaneous with Johnson's departure
around September 1 to return to college; that Phipps testified that Palmer was hired by
Marston himself, only in part to replace McCalmon but also "because he was •a play-by-
play sports man" [which McCalmon was not] and "to do other things" ; and that Palmer's
starting salary was $95 per week, $5 more than that of chief announcer Shackelford.
Shackelford testified that when Russell was transferred to sales, an announcer vae`ancy
resulted ; and that Palmer was hired for announcing and sports. After Marston's recol-
lection was refreshed by a reading to him of his testimony in the representation case,
Marston conceded that Palmer was hired to fill an opening which the station had on
August 8, with job title of sports announcer or sports director. Marston also revised
his earlier testimony that McCalmon's discharge hinged on the obtaining of a satisfac-
tory replacement by testifying this was not necessarily so, but then conceded that also
in an affidavit he gave to a Board agent on November 7 he had stated that -McCalmon's
discharge hinged on the obtaining of a satisfactory replacement, and also that on Decem-
ber 11 he had stated to a Board agent that replacement was not a problem in regard''to
McCalmon since other announcers could take up the workload.) After Phipps had testi-
fied that there' was no advertisement.for a replacement for McCalmon or Russell at any
time between June and November, a formal concession' was made on the record on
Respondent's behalf that, contrary to Marston's testimonial recollection, no such advertise-
ment was placed by Respondent for a replacement for either McCalmon or Russell
Shackelford's testimony indicates that interviewing of prospects or candidates for em-
ployment occurred regularly, in the course of the station's normal operations' Marston'
conceded that it is, not possible to distinguish efforts made by the, station to fireplace
Johnson from any efforts to replace McCalmon or Russell. Phipps testified, "I. don't
recall specifically looking for any announcers during that period [March-September]."
Phipps' testimony regarding the interview by him and Marston in early August of one
Argetis as a potential time salesman, allegedly to replace Russell, appears to be equally
consistent with Russell's contention that Phipps promised him at the end of July to return
him from sales to announcing on September 1, at which time Russell could step into' the
announcing vacancy created when he left announcing in June, or into the announcing
vacancy created when Johnson (who, had come in as a summer announcer in-June around
the time Russell was shifted into sales) was scheduled to leave around September 1 to
return to school (Respondent's Exhibit No. 5) ; presumably, with a return by Russell from
sales to announcing, a vacancy would have resulted in sales
is Marston testified that although Phipps possesses ,and has exercised the authority
to discharge WDXI employees in his own discretion, without consulting Marston, never-
theless in the case of Russell he took it up with Marston. As to the mechanics of'_tlie;
discharges themselves, Phipps testified that although as station manager normally he
handles discharges, in the case of Russell and McCalmon he did not do this, but Marston
handled, it personally. Marston confirmed this, stating that at no time prior to Novem-
ber 21 had he discharged an announcer, but that such discharges are normally handled,
at WDXI by Phipps directly or through Shackelford. "Such an unexplained departure
from a well-established procedure is certainly cogent evidence of discrimination " N.L.R.B.
v. Rock Hill Punting and Finishing Co, 131 F. 2d 171, 174 '(CA 4). Shackelford
testified that not only,was he at no time informed that Russell or MeCalmon was going
to be discharged, but that he was at no time told why either was discharged The failure
of an employer to consult or even inform a supervisor about the discharge of an employee
is also suspicious. N.L.R.B. v. Chautauqua Hardware Corporation, 192 F. 2d 492, 494
(C.A. 2). These circumstances, concededly unique in the histoiy'of WDXI, would also
appear to be extraordinary as a matter'of administrative procedure and operations
3T" . . where the discharge in question involves the 'key' employee 'in an.orgamza-'
tional drive, it may supply shape-and substance to otherwise equivocal circumstances."
N L R B. v Davidson Rubber Co., 305 F. 2d 166, 169 (CA 1). ^ See also N.L.R B v.
W C. Nabors, d/b/a W C. Nabors Company, 196 F. 2d 272, 275-276 (CA. 5), cert.
denied 344 U.S. 865.
DIXIE BROADCASTING COMPANY .1073
B. Alleged interference, restraint, and coercion -
1. Discriminatory withholding of normal periodic pay' increases
Since at least May 4, 1962, WDXI has had in effect a periodic pay increase policy
for its employees. According to the testimony of Dixie Network General Manager
Marston, the purpose of this policy is so that new 'employees may know what to
expect in the way of compensation. As, Marston testified, a newly hired employee
begins at an agreed salary; at the end of a 3-month period, his work is evaluated, and
if he is retained in the station's employ he is given 38 an increase in pay; and this
process is repeated at the end of 6 months, and periodically thereafter until 2 years.
This policy, which according to Marston is known and referred to by Respondent as
its "automatic" wage increase policy, is set forth in a document (Trial Examiner's
Exhibit No. 2), dated May 4, 1962, from Marston to Phipps. The document, entitled
"WDXI Radio Salary Schedule," while indicating that the administration of the policy
of -this "automatic pay scale" is to be handled by Phipps, instructs Phipps to issue
reports to, payroll personnel which will "mark clearly when the 6-month pay increase
is to take effect 39 . . . likewise all other periodic increases. Do not leave this to
chance, but be very specific by counting payperiods so that there will be no chance
of mistake on the part of payroll." (Trial Examiner's Exhibit No. 2.) Marston
testified that this policy was applicable to all announcers.
Describing the implementation of this policy in actual practice, Marston testified
that he had characterized these wage increases as "automatic" (as does the policy
document itself); and that "It was my thinking in the usage of the word `automatic'
... that these salary increases would take place provided the employee was satisfied
with the company and provided the company was also satisfied with the employee.
Other than that I couldn't elaborate further." He added, however, that since ordi-
narily if an employee was dissatisfied he would leave or if the'Company was dissatis-
fied with him he would be discharged, if the employee was still in the Company's
employ at the end of the period involved he would receive an increase. Shackelford,
as well as Russell and McCalmon, testified that when he was hired the automatic
periodic pay increase policy of WDXI was explained to him, and that thereafter each
received every periodic- pay increase as due, until Respondent's suspension of this
policy under- circumstances about to be described. Conceding that Marston and not
Phipps determined the wage policies for WDXI, Phipps testified that he is in charge
of carrying out those policies. Although Phipps conceded that the station's automatic
periodic pay increase policy was not relative but "a fixed thing, within two of three
days," he stated that he nevertheless interpreted it to mean that he had discretion to
apply or withhold application of the policy to any given individual; but, after later
testifying that it "is followed as a general rule," he was unable-to cite'even a single
instance (other than the situation about to be described) in which the periodic increase
was withheld 40 He conceded that "If an employee can remain the full 90 days he
is given an automatic wage increase" and that "under normal conditions, and as a
general rule, if an employee can remain employed for six months, that is, an announcer,
he will automatically receive two,raises; one at the end of 90 days, and the other at
8' Although' Marston first testified that an employee who is retained in the Company's
employ after 90 days is, "generally" given a pay increase, he later testified, as did other
witnesses, that 'such an employee, retained in the Company's employ, would receive 'the
increase. It may be that an employee hired at a salary seemingly substantially in excess
of the station 's usual starting salary ' maximums-such as, presumably , Palmer ($95
per week)-would not be subject to such an early "automatic" increase, in part because
the station's policy does not prima facie appear to be applicable to salaries in that range
(cf. Trial Examiner's Exhibit No. 2). Such a situation, for example, may justify Marston's
original qualifying expression of "generally."
11 It is noted that the written document (Trial Examiner's Exhibit No. 2) does not
speak of a 3-month periodic increase. The testimony of Phipps established, and I find,
that the policy set forth in this document was modified by Marston, for morale incentive
reasons, to the extent of providing for an automatic periodic pay increase at the 'end of
the first 3 months, as well as after the first 6 months (and thereafter, up to 2 years) of
employment
40 Conceding that the applicable policy document (Trial Examiner's Exhibit No. 2)
which speaks of the "automatic pay scale" gives no indication that Phipps has discretion
to withhold it, Phipps testified that this power-in effect the power to override the policy
itself-was given to him orally by Marston on some occasion he was unable to recall
I do not credit this The cases of Hewitt ($125 per week) and Palmer ($95 per week)
do not appear to be in point or comparable to those of Russell and McCalmon ; see foot-
note 38, supra. '
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the end of six months." Marston conceded that in Respondent's entire history there
had never been an instance, prior to the one about to be described involving Russell
and McCalmon, where Respondent omitted, skipped, suspended, or deferred 41 the
operation of its automatic period pay increase policy.
Under Respondent's automatic periodic pay increase policy and practice, Russell
was due a 6-month increase on or about August 18, and McCalmon on or about
September 30. Neither received it. Under that policy, Shackelford was also due an
increase on or about September 9 42 and Adams on or about September 15; they also
did not receive it. Russell testified credibly that when he did not receive this increase
he asked Shackelford why, and that Shackelford replied, " I can 't give you a raise
now. It would [be] just as illegal for me to give you a raise as it would be illegal for
me to cut your salary while all of this union stuff is going on .... Besides, you are
mixed up in this union stuff." 43 After first stating he was unable to recall whether
Shackelford had inquired concerning the automatic periodic pay raises after Au-
gust 15, on further questioning Phipps recalled that Shackelford had indeed come to
him and reminded him that "somebody had a pay increase coming," -but that he
(Phipps) had replied that he could not "change" any wages at all "during this period"
and that he "had been instructed to make no changes in wages at this time."
Two days after the November 21 discharge of Russell and McCalmon, following
the November 19 withdrawal by the Union of its representation election petition, that
is to say on November 23, Respondent reinstated into effect as of that date (Novem-
ber 23) its automatic periodic pay increase policy. The automatic periodic pay
increases which had been due to Shackelford and Adams in September were then
made to them, allegedly prospectively only as of November 23, but they were allegedly
not paid any such increase for any time prior to November 23. Russell and McCal-
mon have at no time been paid the increases claimed to have been due them in August
and September. When asked why Shackelford was not paid a retroactive increment,
as of the due date of his periodic increase, upon reinstatement of the Company's
policy in that regard on November 23, Marston's reply was, "Well the matter was
entirely financial. We are a small business." On the subject of Respondent's rein-
statement on November 23 of its periodic pay increase policy, Marston testified, "We
were going to try to get these things back into effect just as quickly as possible, just
as quickly as we could get to a place where we could return to normal"; "We were
just really under the impression-that the matter had been settled as a result of the fact
that the Union withdrew from this matter, and upon the advice of counsel"; "When
the decision was reached finally to discharge McCalmon and Russell, then, ,we tried
to get back to normal." 44 Asked what event or events were awaited to bring about
resumption of the periodic pay increase policy, Marston testified, "I was waiting,
frankly, until Mr. Hancock [Respondent's counsel] in consultation would agree that
the time had come for these pay increments to be given" and that he could not testify
as to "what was in Mr. Hancock's mind."
Respondent assigns as the reason for its failure to continue in effect its automatic
periodic pay increase policy from the date (August 15) when it received the Union's
request for recognition and the date (November 23) immediately following its dis-
charge of Russell and McCalmon (November 21) on the heels of the Union's with-
drawal of its representation election petition (November 19), that it did this, upon
advice of counsel, in deference to the Union's request as set forth in the Union's
letter of August 15, which Respondent conceded substantially accurately confirmed
Union Representative Blair's conversation earlier that day with Phipps 45 That letter
(Respondent's Exhibit No. 6) in material part states: .
"Marston indicated these pay raise dates have on occasion been advanced.
42 Respondent's Exhibit No. 5.
13 Shackelford testified that although he had no authority to grant raises, he has reminded
Phipps of the fact that a particular employee is due for an automatic pay increase
'* Marston explained that by "normal" he meant that "It was our judgment that when the
Union had withdrawn from this matter, that then the letter [of August 15 from the
Union to Respondent] no longer applied."
45 Respondent also contends that it would not in any event have paid Russell and
McCalmon their periodic pay increases after August 15 because they would have been
discharged "as quickly as a replacement could be found." I reject this explanation in
view of my findings that Respondent's discharges were discriminatory, in violation of the
Act, and its alleged reasons therefor pretextuous; and in view of the further fact that
replacements had not been found, and in view of Marston's concession that "If they had
been retained on the staff I feel sure that they would have received it." Moreover, this
alleged explanation does not account for the suspension of the pay increase policy itself,
across-the -board as to all employees at the time and under the circumstances described.
DIXIE BROADCASTING COMPANY 1075
In the interium [sic, i.e., pending commencement of negotiations by Respondent
with the Union] I [i.e., Union International Representative Blair] requested that
no changes be made in the status of wages or working conditions of the WDXI
announcers since they had given IBEW authority to be their exclusive collective
bargaining representative. Specifically I requested that no one be terminated or
layed [sic] off or wages changed until we could meet in negotiations. You asked
if you continued to operate as you had been on hours and such would this be
alright [sic] and I told you that as far as we are concerned at this time it would
be so long as the above conditions were observed.
Marston indicated that to his knowledge no station employees were advised that it
was because of the Union's letter that application of the wage increase policy was
suspended. Phipps testified that he did not suspend the application of this policy on
his own, but pursuant to instructions from Marston and Robinson. Dixie Network
President Robinson testified that he acted on advice of counsel to "see that the status
quo regarding wages, working conditions and so forth was maintained ...."; that on
the basis of this advice he "instructed Mr. Phipps not to make any changes in the
working conditions, wages, the status of wages of these individuals, or any individuals
in the company, and try as much as possible to maintain an amicable, amiable status
quo"; that neither he (Robinson) nor any other company official instructed any super-
visory personnel that the periodic pay increase policy should be held in abeyance, but
that wages would not be "changed"-"They [supervisory personnel] were not told to
hold the periodic pay increases in abeyance, as such. There would be no changes in
wages, and this, of course, was considered to mean there would be no changes in the
status of the wage, as stated in the letter [of August 15 from the Union]."
The complaint as amended alleges that Respondent's withholding on and since
August 15 from its employees of the periodic pay increases due under Respondent's
described policy and practice, interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights, in violation of Section 8 (a) (1) and was dis-
criminatory in violation of Section 8 (a) (3) of the Act. Denying this, Respondent
insists that its admitted suspension of its automatic periodic pay increase policy upon
receipt of the Union's August 15 letter, and its failure to pay increases due thereunder
until the policy was reinstituted on November 23 following the withdrawal of the
Union's Representation election petition and the discharge of Russell and McCalmon,
was only because the Union in its letter of August 15 had requested it to make no
"change." In my opinion, however, Respondent's suspension of its established auto-
matic periodic pay increase policy and the withholding and failure to pay the periodic
increments which had invariably theretofore been paid thereunder, constituted just
such a "change." An automatically due periodic pay increase under an existing,
operating system, is part of the wage structure; and its continuance would not consti-
tute a change, whereas its discontinuance or suspension, as herein, would 46 A con-
trary conclusion would, in my opinion, be unreasonable and was clearly not intended
by the Union, since it would imply that the Union requested a decrease in the func-
tioning wage structure until it was accorded recognition or until the culmination of
negotiations, which might for various reasons (as herein) be indefinitely postponed,
protracted, or delayed.47 The Board has held that, far from being improper or
"illegal" (as here stated by Respondent to its employees), the granting of a unilateral
wage increase during organizational efforts is not only permissible "where the raise
under consideration was one which was regularly or periodically granted or one
which the employee normally expected to receive" (Standard Coil Products, Inc.,
99 NLRB 899, 903), but the withholding thereof may be regarded as an unlawful
attempt by the employer to cause the employees to-reject the union (cf. N.L.R.B. v.
Crosby Chemicals, Inc., 274 F. 2d 72 (C.A. 5); Lingerie, Inc., 101 NLRB 1374;
Lewis Karlton d/bla Consolidated Frame Company, 91 NLRB 1295; Waldoroth
Label Corporation, 91 NLRB 673). To the employees denied such periodic pay
increases which they had been promised and which had been automatically forth-
coming in the past, as well as to the employees looking forward to such increases in
expectancy as their own periodic anniversary dates-were to occur, Respondent's sud-
den suspension of its established system and its nonpayment of the benefits thereunder
for the first time in its history, could signal nothing other-particularly, in, the absence
"Indeed, at one point in his testimony Marston conceded that Respondent's suspension
or deferral- of the automatic periodic pay increase policy upon receipt of the Union's
letter did "constitute[s] a change in policy."
47 If Respondent had entertained any reasonable doubt-and I do not think it did-as
to what the Union meant, it could readily have dispelled it through discussion or an ex-
change of correspondence.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a rational explanation-than that as soon as a union appeared on the horizon they
lost their periodic pay raises ; and that if they desired to exercise organizational rights
guaranteed to them by Act of Congress they did so under peril of losing, jeopardizing,
or at least indefinitely postponing receipt of their established pay increase increments
which constituted a feature of their employment . Respondent 's reinstitution of this
system immediately upon the Union 's withdrawal of its representation petition and
its discharge of unionists Russell and McCalmon could only have served to empha-
size the correctness of such a view. -
The Board had occasion to consider and deal with this question in International
Ladies Garment Workers' Union , AFL-CIO, 142 NLRB 82 (see also 143 NLRB
1122 ), wherein it held that the withholding of automatic wage increases to employees
in accordance with past practice , because of a union's request for recognition, was an
unfair labor practice in violation of Section 8(a) (1) of the Act.
As in connection with the issue of the legality of its discharges of Russell and
McCalmon , with- regard to the issue of the legality of its suspension of its automatic'
periodic pay increase policy and its withholding of benefits thereunder , Respondent
contends that the legality of its actions is established, or alternatively is 'not here open
to question , because they were allegedly undertaken in a good -faith belief of their
propriety , even if mistaken , and upon advice of counsel . Aside from the question of
whether Respondent in fact entertained such a good -faith belief , or its reasonable-
ness-both of which I resolve, upon the entire record , against Respondent-and fur-
ther aside from what the advice of its counsel really was and whether or not it was
misinterpreted or misapplied , a party and its counsel cannot be regarded as the final
judges of the legality of their own conduct.48
I find and conclude that, under all of the circumstances , Respondent 's suspension
on or about and between August 15 and November 23, 1963 , of its established peri-
odic pay increase system, and the withholding of increases and benefits due its employ-
ees thereunder during that period , were by reason of its employees having joined,
affiliated with, or assisted the Union or by reason of their having engaged in other
union or concerted activities for'the purpose of collective bargaining or other mutual
aid or protection ; that such suspension and withholding of automatic periodic pay
increases interfered with, restrained , and coerced Respondent 's employees in the
exercise of their rights guaranteed in Section 7 of the Act, and were under all of the
circumstances discriminatory in regard to the hire or tenure of their employment and
in regard to the terms or conditions of their employment to discourage membership
in a labor organization ; and that Respondent thereby violated Section 8(a)(1) and
(3) of the Act.
2. Other interference, restraint, and coercion-interrogation, indications of futility
of union membership or activity, and threats of discharge
Russell testified that, after work, in the afternoon or early evening of August 14
(after Shackelford had been told he was ineligible for union membership since he
was a supervisor), Shackelford came to his home and took him for an-automobile
ride, during which he asked him, "Charles, do you want to join the union? Do you
want a union at this radio station'" When Russell said that he did, Shackelford said,
"Well, do you know that Mr. Phipps can still fire you even though you are going to
vote for a union9 ... He can sit by his radio, and if you play one wrong record, or
a record he don't like, he can fire you. He is still the manager, and he has his rights,
and he can fire you even if you are going to vote for a union I have stayed up late
at night talking to Ray [Phipps], and I think a lot of him. He's a great guy .... But
Mr. Phipps still has his rights. He can fire you, even though you are going to vote
for a union," and he cited a specific example about playing- a wrong record or a record
he does not like. About 2 weeks after August 15, according to Russell, Shackelford
told him in the production room that he had been told by Phipps that if he were per-
mitted to vote in the representation election he (Shackelford) would be fired if he
did not vote "no." 49 -
48 See footnote 29, supra.
98 Shackelford testified that he could not "recall" making such a statement . Russell
conceded that he had never expressly been told that he (Russell) would
be fired for joining, selecting , or voting for a union McCalmon made a similar'con-
cession. The failure to make express threats of discharge is not determinative , within a
context of indirect threats and coercion , followed , as herein , by actual discharge. The
totality of coercive conduct may constitute a threat'of discharge, without those specific
words being used, and indeed may be more potent. "Intimations of an employer ' s pref-
DIXIE BROADCASTING COMPANY 1077
McCalmon testified that on various occasions after August 15, Shackelford asked
him such questions as, "How is the union progressing; is there anything new"; "How
are things going as far as the union is concerned"; and whether Announcer Hewitt
would be interested.50 Russell, according to his testimony, was similarly questioned
by Shackelford, who in addition to the matters elsewhere mentioned herein, frequently
inquired of him whether he had heard from Blair, what the Union was doing, what
was new with the Union, and "how the Union was coming along." On one of these
early occasions, according to Russell, when Russell told Shackelford he had not heard
from Blair, Shackelford told him that "Mr. Phipps was very upset because Mr. Blair
contacted him, something he had said [apparently involving Phipps' former experience
as an announcer]. He said that Mr. Blair put Mr. Phipps in his place." Russell fur-
ther testified that 3 or 4 weeks after August 15, while he was in the production room,
Shackelford asked him -"point blank out of a clear blue sky, `Charles, what do you
expect to gain from voting for the union?"' When Russell answered, "I don't know.
The only possible thing I can think of is more money, or better working conditions,"
Shackelford replied, "You can't get it ... the company just won't pay it. They just
won't pay it." Russell rejoined, "I don't know about that. I am not a lawyer. All
I am is an announcer." When, further according to Russell, upon his failure to receive
his automatic periodic pay increase due late in August (in his biweekly paycheck
following August 18, his 6-month anniversary), he asked Shackelford about it,
Shackelford replied, "I can't give you a raise now. It would [be] just as illegal for
me to give you a raise as it would be illegal for me to cut your salary while all of
this union stuff is going on .... Besides, you are mixed up in this union stuff."
According to McCalmon, on September 25 following the Board's representation
case hearing (at which Russell had testified for the Union, and in connection with
which Russell had served a subpena on Shackelford to attend), Shackelford told him
of a discussion he had had with Marston while returning from the hearing, in which
they had agreed that Russell's future with Dixie was unsure because in Marston's view
"Russell's attitude wasn't good and that he thought he had instigated the Union," and
that "Mr. Marston said that our relationship with Mr. Russell would be watched."
Further according to McCalmon, about 2 weeks thereafter, Shackelford told him that
in response to a question by Phipps he had told him that Russell would quit if placed
on the morning shift (i.e., reporting time 4:30 a.m.), and that Phipps' response was,
"Fine."
The incident involving McCalmon, Shackelford, and Billboard Magazine, also fol-
lowing the September 25 representation case, has already been described in another
connection.51 However, the exchange on the subject of the removal of the Billboard
pages and Shackelford's threat to McCalmon of possible discharge in case of repeti-
tion, was immediately preceded, according to McCalmon, by Shackelford's bringing
up the subject of the Union and asking, "How are things going as far as the union
is concerned?" McCalmon answered, "Well, they seem to be going all right. We
have a hope that we can come along with this thing." Shackelford stated "that even
if we got a union in that Mr. Phipps wouldn't bargain with us"; "that Mr. Phipps
wouldn't bargain as far as wages and working conditions were concerned." After
Shackelford then told him he could be fired if he continued to remove pages from
Billboard Magazine and McCalmon stated, "Surely I wouldn't be fired for such a
thing as this," Shackelford "told me that I was all wet, that I had been brainwashed
bythe union, and that we wouldn't get what we wanted," and left the room highly
excited.
Although Shackelford denies substantially all of the foregoing, I have already
found him to be lacking in credibility as a witness and accordingly discredit his
denials, and instead credit the testimony of Russell and McCalmon as recounted
above.52
erence, though subtle, may be as potent as outright threats of discharge." N.L.R.B. v.
Link-Belt Company, 311 U.S. 584, 600. Nor is the employee's subjective reaction or
opinion determinative of the legal issue involved, as to whether the employer's total con-
duct was coercive or otherwise improper under the Act. See N.L.R.B. v. Link-Belt Com-
pany, supra, at 588; Eastern Die Company, 142 NLRB 601; The Rein Company, 114
NLRB 694; B.M.C. Manufacturing Corporation, 113 NLRB 823; Forest Oil Corporation,
85 NLRB 85.
co McCalmon characterized 'Shackelford's questions to him as in the nature of "passing
conversation" or "passing remarks."
si See section III, A, 2, supra.
sa I have noted, in this connection, Shackelford's testimony that he did on occasion ask
Russell and Adams "how was it coming, what is new, what's up"; that this was not
"intended" by him to be with reference to the Union ; and that he does not remember
"offhand" whether the responses he received dealt with union activities.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing- represents the picture of other alleged interference , restraint, and
coercion herein. With regard to the described incidents of interrogation, Respondent
urges that these occurred in an atmosphere of friendliness between Shackelford and
the employees in question, involving the free supplying by the employees to Shackel-
ford of such information as he may have educed, and was therefore noncoercive.
Although' the degree of true friendliness between these employees and Shackelford,
particularly by and after the time of the September representation election (for
which Russell had served a subpena on Shackelford to appear) may be open to doubt,
in any event it is unnecessary that an employee be subjected to rack-and-screw or
similar crude' methods of information-gathering in order to constitute interference,
restraint, or coercion under the Act; nor is the particular employee's subjective reac-
tion determinative of the legality of the practice or of the particular technique
employed in its exercise. It is, furthermore, unnecessary here to decide whether the
described incidents of interrogation would have been illegal, or such as not to justify
a remedial order, had they occurred in an atmosphere free from coercion or in isola-
tion, for the fact is that they did not occur in such an atmosphere or in isolation.
Realism would therefore appear to require that these incidents of interrogation be
viewed as part of the total picture of interference, restraint, coercion, and discharges
presented, and not in a fragmentized isolation which they never had 53
With respect to all of the described incidents, interrogation, and otherwise, Respond-
ent contends that these were unauthorized on Shackelford's part, and, indeed, contrary
to his instructions. Assuming this to be true, and particularly since no claim is made
that Respondent took any steps to alert the employees to Shackelford's alleged absence
of authority in this area or to disavow his actions on its behalf, it would not seem
-reasonable to hold the employees, to whom Respondent had by its posted directives
and actions held out its chief announcer, Shackelford, as the employees' font of
supervisory authority, to the requirement of staking out with surveyor's accuracy the
boundaries of his true authority or its undisclosed limitations. To the employees,
as well as to Respondent and Shackelford himself, Shackelford wore the vestments
of management, with every evidence that they fit and had been officially bestowed.54
There was an obligation on Shackelford as a supervisor to refrain from the interfer-
ence, restraint, and coercion described, and an obligation upon Respondent to take
effective measures to restrain him if he did not. Having had the profit of his activities
on its behalf, Respondent cannot avoid the loss. Moreover, that Shackelford's activi-
ties in this period were unauthorized and unknown to Respondent may be.doubted.55
In any event, however, the fact that a supervisor commits unfair labor practices which'
are unauthorized by, or even contrary to, his employer's instructions, does not dispel
their coercive nature nor discharge the employer from responsibility therefor.56 The
sa Cf. N.L R B. v. Harbison-Fischer Manufacturing Co., 304 F. 2d 738 (C.A. 5) ; N.L.R B.
v. Midwestern Instruments, Inc, 264 F. 2d '829 (C.A. 10), cert. denied 360 U.S. 932;
International Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 114-115.
64 Cf. The Bama Company, 145 NLRB 1141.
rs For example, contemporaneously with his other activities, Shackelford was conveying
to the employees the policy passed on to him from Respondent's highest managerial,ele-
ments for the purpose of being made known to employees, that the continuation of
Respondent's automatic periodic pay Increase policy after the advent of the Union would
be "illegal." This appears to be indicative of the vesting of authority In him by Respond-
ent In this area at this time. " . . . an employer is chargeable with knowledge of union
activities acquired by . . . a supervisor. And the supervisor' s statements are admiss-
ible as evidence of hia employer's motivation in discharging Individuals." Montgomery
Ward & Company, Incorporated, 115 NLRB 645, 647, enfd. 242 F. 2d 497, 501 (C.A. 2),
cert. denied 355 U.S. 829; accord, Arlington Hotel Company, Inc., 127 NLRB 736. Nor
would the assumption , that Shackelford was playing a duplicitous role in the situation
alter the Indicated result ; nor assumption that his was advice or warning to the employees
from a friendly, as distinguished from a hostile, supervisor. Advice or warning from
such a friendly source may, Indeed, convey greater authenticity, reliability, and weight,
and may thereby carry more potent coercive effect. 'Cf. N.L.R.B v. Marval Poultry Com-
pany, Inc., 292 F. 2d 454 (CA. 4). It is "a fact of common experience-that the desire
of employees to unionize is directly proportional to'the'advantages thought to be obtained
from such action " The Radio Officers' Union of the Commercial Telegraphers Union,
AFL (A. H. Bull Steamship Company) v. N.L.R B., 347 U.S. 17, 46.
mCf. National Labor Relations Act, Section 2(13). "Nor does, the Board lack,the
power to give weight to the activities of some of the supervisory employees . . . even
though they did not have the power to hire or to fire. As we indicated in International
Association of Machinists v. N.L.R.B., supra, the strict rules of respondeaf superior are
not applicable to such a situation. If the words or deeds of the supervisory employees,
DIXIE BROADCASTING COMPANY 1079
totality of the conduct here involved, upon the entire record here presented, may in
my opinion justifiably be regarded as having constituted interference, restraint, and
coercion of employees through interrogation, indications of futlity of union member-
ship or activity, and threats of discharge (actually carried out, as herein found) by
reason of such membership or activity, as alleged in the complaint, in violation of
Section 8(a) (1) of the Act. I so find and conclude.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act . Having found that Respondent discriminatorily
terminated and failed and refused to reinstate two employees , I shall recommend that
Respondent be required to offer the employees who were thus discriminated against
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges , and to make them
whole for any loss of earnings they may have suffered by reason thereof , by payment
to them of a sum of money equal to that which they normally would have earned as
wages from the date of said unlawful termination to the date of Respondent's offer
to reinstate them , less their net earnings during such period , backpay and interest to
be computed in the manner prescribed by the Board in F. W . Woolworth Company,
90 NLRB 289 , and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that
Respondent discriminatorily suspended its automatic periodic pay increase policy
system and withheld and failed to pay periodic increases due to its employees there-
under from and between August 15 and November 23, 1963 , I shall recommend that
Respondent be required to make whole its employees for any loss suffered by reason
of such suspension and nonpayment ,57 by payment to them of the sums of money
which they normally would have received if such system had not been suspended on
and between August 15 and November 23, 1963 , with appropriate adjustment of sub-
sequent periodic pay increase dates and appropriate payments by. reason thereof,
together with interest on the foregoing . I shall further recommend that Respondent
be required to make available necessary records for computation of backpay , periodic
pay increases withheld , and adjustment of periodic pay increase dates.
In view of the fact that the unfair labor practices committed are of a character
striking at the roots of employee rights safeguarded by the Act ,58 I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
I shall also recommend that Respondent be required to post an appropriate notice;
and that appropriate notification be given to any affected employee in the Armed
Forces of the United States.
CONCLUSIONS OF LAW
1. Dixie Broadcasting Company, Owner and Operator of Radio Station WDXI,
is an employer engaged in commerce within the meaning of the Act.
2. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
3. Respondent has violated Section 8 (a) (1) of the Act by interfering with , restrain-
ing, and coercing its employees in the exercise of rights guaranteed to them in Sec-
tion 7 of the Act, by unlawful interrogations , indications of futility of union member-
ship or activity , and threats of discharge in connection with such membership or
activity , as hereinabove specifically found and set forth.
4. Respondent has violated Section 8 (a) (3) and ( 1) of the Act by its suspension,
on or about and between August 15 and November 23, 1963 , of its periodic pay
increase system and the withholding of periodic pay increases due to its employees
thereunder during that period; said suspension and withholding having been by reason
of its employees ' joining, affiliating with , or assisting the Union , or for having engaged
in other union or concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
taken in their setting, were reasonably likely to have restrained the employees' choice and
if. the employer may fairly be said to have been responsible for them , they are a proper
basis for the conclusion that the employer did interfere." N.L.R.B. v. Link-Belt Com-
pany, 311 U . S. 584, 599.
w See International Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 83,
and 143 NLRB 1168.
58 Cf. N.L .R.B. v. Entwistle Mfg. Co ., 120 F. 2d 532 , 536 (C.A. 4).
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has violated Section 8 (a) (3) and (1) of the Act by its discharges
of Charles W. Russell and Thomas L. McCalmon on November 21, 1963, and its
failure and refusal to reinstate either of them since that date, by reason of their having
joined, affiliated with, or assisted the Union or having engaged in other union or con-
certed activities for the 'purpose of collective bargaining or other mutual aid or pro-
tection, thereby discriminating against said employees in regard to the hire and tenure
of their employment.
6. The unfair labor practices described in paragraphs 3, 4, and 5 are unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.59
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record, and pursuant to Section 10(c) of the Act, I hereby recommend that
the Respondent, Dixie Broadcasting Company, Owner and Operator of Radio Station
WDXI, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees coercively concerning union membership, affiliation,
desires, sympathies, or activities.
(b) Indicating to employees the futility of joining, affiliating with, voting for, or
designating, as collective-bargaining representative, a union, or of engaging in union
or other lawful concerted activities for mutual aid or protection.
(c) Threatening, directly or indirectly, employees with discharge or other reprisals
for joining, affiliating with, voting for, or designating, as collective-bargaining,repre-
sentative, a union, or for engaging in union or other lawful concerted activities for
mutual aid or protection.
(d) Discouraging membership in International Brotherhood of Electrical Workers,
AFL-CIO, or any other labor organization, by discriminatorily discharging or threat-
ening to discharge, or failing or refusing to reinstate with full backpay, or otherwise
engaging or threatening to engage in any discriminatory action against, any employee
in regard to his hire and tenure of employment or any term or condition of
employment. - . '
59 Rulings reserved at hearing:
(1) Respondent's motion at the hearing that official notice be taken of-the Board's
representation case, hereinabove referred to, is hereby granted.
(2) At the outset of the hearing, Respondent moved to dismiss the complaint upon
grounds -set forth in an undated document entitled "Motion To Dismiss," marked "Trial
Examiner's Exhibit No. 1 for Identification." The grounds in essence involved the asserted
refusal by the Board's Regional Director for Region 26 to issue a complaint upon Sec-
tion 8(a) (1) and (5) charges filed against Respondent on November 1, 1963, in Case No.
26-CA-1675, whereon the Union requested review but withdrew its request after the
Director of the Office of Appeals advised it that its request for review was allowed.
Respondent requested herein that official notice be taken thereof. In this connection,
it is noted that subsequent to this request, Respondent withdrew its aforedescribed
motion to dismiss (Trial Examiner's Exhibit No. 1 for Identification), which appears to
encompass this request for official notice and to render it moot. In any event, however,
the Board-may take official notice of its own proceedings, utilizing them to the extent
material. For this purpose, considering Respondent's request for official notice to be
potentially applicable in connection with Respondent' s general motions to dismiss at the
conclusion of the entire case, I take official notice of the other-case to the extent requested
and deny Respondent's general motions to dismiss, insofar as they may be based upon
the Regional Director's indicated action in Case No. 26-CA-1675. That case involved
an alleged violation of Section 8(a)(5), pot charged herein, and'the indicated action is
not preclusive of the maintenance of this proceeding. Clearly, General Counsel's power
was not exhausted by the Regional Director's action therein. Cf. Pant Millang Company,
117 NLRB 1277, affd. 360 U.S. 301 ; Ivan C. McLeod v. Local 239, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Abbey Auto Parts
Co., 330 F. 2d 108 (C.A. 2) ; W. Ralston & Co., Inc. and Technical Tape Corporation, 131
NLRB 912, footnote 3, enfd. 298 F. 2d 927 (C.A. 2) ; Taylor Forge and Pipe Works, 113
NLRB 693,'705-706, and cases cited, enfd . 234 F. 2d 227 (C.A. 7), cert. denied 352
U.S. 942. k
(3) In view of findings and conclusions herein made and explained at length, Respond-
ent's motions to dismiss the complaint'as amended, and each and every paragraph thereof,
are hereby denied.
DIXIE BROADCASTING COMPANY 1081
(e) Failing to grant automatic periodic pay increases to its employees , in accord-
ance with past practices, because of the recognition request of International Brother-
hood of Electrical Workers, AFL-CIO, or because of employees' membership in,
affiliation with, voting for, or designating, as bargaining representative, said Union
or any other labor organization, or for engaging in union or other lawful concerted
activities for mutual aid or protection. _
(f) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
to engage' in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Offer Charles W. Russell and Thomas L. McCalmon immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges (dismissing, if necessary, any persons
hired on or after August 15, 1963), and make each of them whole for any loss of
pay, in the manner set forth in "The Remedy" section of this Decision. In the event
that Russell or McCalmon is presently serving' in the Armed Forces of the United
States, notify him of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(b) Make whole its employees for any loss of earnings suffered as the result of
the unlawful withholding of automatic periodic pay increases, in the manner set
forth in "The Remedy" section of this Decision.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay and automatic periodic pay increases due under the terms of this
Decision.
(d) Post at its radio station in Jackson, Tennessee, -copies of the attached notice
marked "Appendix." 60 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 26, shall, after being duly signed by Respondent's authorized repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive-days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision and Recommended Order, what steps have been taken to comply therewith.61
eo In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10-days, from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies 'of the Labor Management Relations
Act, as amended, we hereby notify you that:
WE WILL offer Charles W. Russell and Thomas L. -McCalmon immediate and
full reinstatement to their former positions, or substantially equivalent positions,
without prejudice to their seniority or other,rights and privileges, with backpay
and interest, for any wages they lost as a result of our discrimination against them
because of their union membership, affiliation, or activity and the termination of
their employment on November 21, 1963, and our failure and refusal to reinstate
or reemploy them since that date.
WE WILL pay our employees for loss of earnings suffered because of our with-
holding of automatic periodic pay increases.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT illegally interrogate employees as to their union membership,
affiliation , desires, sympathies, or activities.
WE WILL NOT, directly or indirectly, threaten employees with discharge for
joining, affiliating with, voting for, or designating as their collective-bargaining
representative, International Brotherhood of Electrical Workers, AFL-CIO, or
any other labor organization, or for engaging in union or other lawful concerted
activities for mutual aid or protection.
WE WILL NOT indicate to employees the futility of joining, affiliating with,
voting for, or designating, as collective-bargaining representative, International
Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization,
or of engaging in union or other lawful concerted activities for mutual aid or
protection.
WE WILL NOT discourage membership in International Brotherhood of Electri-
cal Workers, AFL-CIO, or any other labor organization, by terminating or
threatening to terminate, or by failing or refusing to reinstate or reemploy, or by
otherwise engaging or threatening to engage in any discriminatory action against
any employee in regard to his hire or tenure of employment or any term or condi-
tion of employment.
WE WILL NOT fail to grant automatic periodic pay increases to our employees
in accordance with our past practices because of the recognition request of Inter-
national Brotherhood of Electrical Workers, AFL-CIO, or because any of our
employees join, affiliate with, vote for, designate, as collective-bargaining repre-
sentative, or otherwise engage in union activity or assist that union or any other
labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their rights, guaranteed to them by Congress, to self-
organization, to form labor organizations, to join or assist any labor organization,
to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from engaging in any or all such activities.
All employees are free to become, remain, or to refrain from becoming or remain-
ing, members of International Brotherhood of Electrical Workers, AFL-CIO, or any
other labor organization.
DIXIE BROADCASTING COMPANY, OWNER AND
OPERATOR OF RADIO STATION WDXI,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If the above employees are presently serving in the Armed Forces of the
United States, we shall notify them of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room 746,
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Waterman of Puerto Rico-U.S.A ., Inc. and New Orleans Steam-
ship Association and General Longshore Workers, I.L.A., Local
Union Nos . 1418 and 1419, AFL-CIO, Parties to the Contract.
Case No. 15-CA-2297. January 15, 1965
DECISION AND ORDER
On February 11, 1964, Trial Examiner James V. Constantine issued
his Decision in the above-entitled proceeding, finding that Respondent
150 NLRB No. 96.