Money Radio, A California Ltd. Partnership

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 698 (N.L.R.B. 1990)

698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Money Radio, a California Limited Partnership and Scott Greene. Case 21-CA-26651 January 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 13, 1989, Administrative Law Judge Clifford H Anderson issued the attached de- cision The Respondent filed exceptions and a sup- porting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Money Radio, a California Limited Partnership, Anaheim, California, its officers, agents, successors, and as- signs, shall take the action set forth in the Order, except that attached notice is substituted for that of the administrative law judge 'The Respondent has excepted to some of the judge s credibility find- ings The Board's established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings We adopt the judge's conclusions on the basis of our review of the record as a whole and on the judge's credibility findings based on his ob- servation of the demeanor of the witnesses In discrimmatee Greene's tes- timony that managing Partner Schwartz stated on the air that he would "sooner die than let the Union in," the judge noted that Schwartz' testi- mony was limited to a denial that he had ever made such a statement on the air and did not Include a denial that he had ever made such a statement other than on the air" Since the judge's finding was that Schwartz made the statement on the air, we do not rely on any adverse Inference the judge may have drawn from Schwartz failure to made a broader denial We also find without merit the Respondent s allegations of buts and prejudice on the part of the judge On our full consideration of the record and the decision, we perceive no evidence that the judge pre- judged the case, made prejudicial rulings, or demonstrated bias against any party in his analysis or dicussions of the evidence APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these 'rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT by radio broadcast or other means of communication tell our employees the managing partner would die rather than let the Union in Money Radio WE WILL NOT discharge you because of your union activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the nghts guaranteed you by Section 7 of the Act WE WILL offer immediate and full reinstatement to employee Scott Greene to the position he would have held, but for our wrongful discharge of him on January 20, 1989 WE WILL remove from our files any-and all ref- erences to the discharge of employee Scott Greene and notify him in wnting that this has been done and that the fact of his wrongful discharge will not be used against him in any way WE WILL make employee Scott Greene whole, with interest, for any and all losses he may have suffered as a result of his discharge on January 20, 1989 MONEY RADIO, A CALIFORNIA LIM- ITED PARTNERSHIP Margaret Hume and Frank Wagner, Esqs , for the Gener- al Counsel Edward "Buz" Schwartz, pro se, of Anaheim, California, for the Respondent Anthony Segall, Esq (Retch, Adel! & Crost), of Los Ange- les, California, for the Union 297 NLRB No 107 MONEY RADIO 699 . DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard the above-captioned case in trial on July 27, 1989, in Los Angeles, California The matter arose as follows On February 21, 1989, Scott Greene, an individual, filed a charge docketed as Case 21-CA-26651 against Money Radio, a California Limited Partnership (Respondent) On March 30, 1989, the Regional Director for Region 21 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint, and notice of hearing consolidating Case 21-CA-26651 with two other charges against Respondent for a common hearing and decision On September 5, 1989, I issued an order severing cases, severing the two other cases from the in- stant proceeding for all purposes The remaining portions of the complaint allege Re- spondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (Act) by discharging Greene on January 20, 1989, because of his activities on behalf of the American Federation of Television and Radio Art- ists, AFL-CIO, Los Angeles Local (the Union) The complaint also alleges agents of Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their and fellow employees' support for the Union and by making statements indicating the futility of employees' selecting the Union as their collective-bar- gaining agent Respondent denies all allegations of wrongdoing Fur- ther, Respondent challenges the propriety of an adminis- trative law judge employed by the National Labor Rela- tions Board hearing the instant matter Respondent's re- cusation merits threshold consideration Ruling on Motion to Disqualify the Administrative Law Judge Respondent, as part of its answer, in the preheanng conference call and at the hearing challenged the propri- ety of an administrative law judge employed by the Na- tional Labor Relations Board hearing the cases against it The representative of Respondent made it clear that the challenge was predicated entirely on the employee-em- ployer relationship between the designated administrative law judge and the Board and not on any other grounds Thus, Respondent does not contend that the particular designation of the administrative law judge, the specific identity of the judge, or the judge's conduct in the case was other than consistent with Board practice or an in- dependent basis for disqualification Rather, Respondent's challenge goes to an argued inherent lack of objectivity of an administrative law judge employed by the Board which also employs the staff of the General Counsel prosecuting the case Thus, the argument is that there is an insufficient separation or independence between and among the Board and its hirelings to ensure either a fair and impartial hearing and decision in the case or, equally important, the appearance of a fair and impartial trial and decision on the merits I accepted the factual contention of Respondentâ€”that I was in fact an employee of the National Labor Relations Board which agency also em- ploys the prosecuting staff, but denied the motion to dis- qualify as insufficient on its face given the provisions for the designation of and hearing of cases by administrative law judges in the Act and in the Board's Rules and Reg- ulations Section 10(c) of the Act and the Board's Rules and Regulations Section 102 34 et seq See also Ram- speck v Trial Examiners Conference, 345 U S 128 (1953), cf Butz v Economy, 438 U S 478 (1978) I reaffirm my ruling here based on the same authorities 1 All parties were given full opportunity to participate at the hearing, to introduce relevant evidence, to call, ex- amine and cross-examine witnesses, to argue orally and to file postheanng briefs On the entire record herein, including a postheanng brief from the General Counsel and oral argument from Respondent, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT2 I JURISDICTION The complaint alleges and the answer admits that Re- spondent is a California limited partnership engaged in the business of radio broadcasting with a facility located, since on or about January 30, 1989, in Anaheim, Califor- nia, and previously located in Los Angeles, California Respondent, annually in the normal course and conduct of its business operations, receives gross revenue in excess of $100,000 and sells services valued in excess of $50,000 directly to enterprises located outside the State of California Respondent subscribes to national wire services and advertises national brand products The complaint further alleges, the answer admits, and I find that Respondent is, and has been at all times material, an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act - III THE ALLEGED LABOR PRACTICES A Background Respondent is a two-person limited partnership operat= mg a radio station on a 24-hour-day, 7-day-per-week basis Edward "Buz", Schwartz and Vera Gold are the managing partners At relevant times until March 1989, Steve Kindred was Respondent's news director - Scott Greene started with Respondent in April 1987 as a full- time air anchor, but left in September 1987 He resumed his employment with Respondent in January ,1988 work- ' Appeals from rulings on motions to disqualify administrative law judges under Sec 102 36 of the Board s Rules and Regulations are gov- erned by the provisions of Sec 102 26 of the Rules 2 As a result of the pleadings and the stipulations of counsel and repre- sentatives at the trial, there were few disputes of fact regarding collateral matters Where not otherwise noted, the findings herein are based on the pleadings, the stipulations of the parties including stipulated documents, or other unchallenged credible evidence 703 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing the two weekend night shifts Friday 8 p m to Satur- day 4 a m and Saturday 8 p m to Sunday 4 a m His em- ployment continued until January 1989 although in the latter period Greene had reduced his employment often to a single shift per weekend for personal reasons The Union initiated an organizational campaign among Respondent's employees in August 1988 which culminat- ed in the filing of a representation petition docketed as Case 31-RC-6468 on September 30, 1988 3 Following a hearing, the Regional Director of Region 31 on November 14, 1988, issued a Decision and Direc- tion of Election Respondent filed a request for review of that decision with the Board but was unsuccessful in ob- taining review The election was conducted without the participation of Respondent on December 16 and 17, 1988, and, on December 29, 1988, the Union was certi- fied as the exclusive representative of a unit of Respond- ent's employes which included Greene B The Supervisory Status of Steve Kindred The General Counsel alleged that Steve Kindred was a supervisor and an agent of Respondent Respondent contends that while Kindred was news director until March 1989, he was not a supervisor or agent of Re- spondent In the representation case, as noted in the No- vember 14, 1988 Regional Director's Decision and Di- rection of Election, Respondent stipulated to Kindred's status as a supervisor as defined in Section 2(11) of the Act While Kindred did not have the power to hire or fire employees, it is clear that he could recommend their hire and fire and that he was authorized to reprimand them Schwartz testified no one other than himself and his partner, Gold, had supervisory powers but that Kindred stood next in the organizational structure at relevant times Schwartz testified that Kindred had from 18 to 19 employees under his direction who, if he was not a su- pervisor, were essentially unsupervised Further, as will be discussed below with respect to Greene, Kindred was involved in scheduling and in finding replacement em- ployees to fill vacancies created by illness or other cir- cumstances Given all the above, I find that Kindred in fact bore sufficient authority to be found a supervisor under the definition of the Act at Section 2(11) Accordingly, I find he was an agent of Respondent at relevant times until his departure in March 1989 C Allegations of Independent 8(a)(1) Violations Scott Greene testified that early on an afternoon in late November 1988, he listened to Schwartz' radio pro- gram, Investors' Club of America, in his automobile The program opened with a discussion of unions during which, Greene testified, Schwartz noted that a union was trying to organize Money Radio Greene further attrib- uted to Schwartz the statement during that broadcast, "I would sooner die than let the Union in" Schwartz cate- gorically denied ever making such a statement on the air 3 Respondent's former Los Angeles location was within the venue of the Board's Region 31 Scott Greene testified that he regularly spoke with Steve Kindred by telephone in midmorning on Fridays concerning his work schedule for the following week- end He testified to such a call with Kindred Just prior to the December 16 and 17, 1988 election Kindred, in Greene's recollection, asked how things were going with the election Greene told Kindred that the employees had had a meeting and that an election date had been set Kindred then asked Greene how many employees Greene thought would "go for" the Union Greene re- sponded that everyone he knew or had talked to was for the Union The conversation then ended Kindred did not testify D The Allegation of the Illegal Discharge of Scott Greene Greene testified without challenge that he attended two union meetings during the organizational campaign, that he discussed the desirability of a union with fellow employees working on his shifts, that he showed other employees a notice of election prior to the election and that he generally was supportive of the Union The record further reflects that other employees were more active on behalf of the Union initiating the process, solic- iting employee's support on petitions, etc Schwartz testi- fied without challenge that he knew or believed that other employee were either much more active on behalf of the Union than Greene, were members of the Union, or both There was no dispute that these other employ- ees had not been discharged or spoken to by agents of Respondent because of their union activities as of the time of the hearing 1 Greene's version of events Greene testified that he telephoned Schwartz at his office on Wednesday, January 18, 1989, determined Schwartz was free, and went to his office There Greene testified that he told Schwartz that his working circum- stances had changed and he was interested in full-time work Schwartz told Greene that he thought they would be able to work it out and the conversation ended amica- bly The following Friday, January, 20, 1989, Greene and Kindred had their usual midmorning telephone conversa- tion concerning scheduling Kindred told Greene, in Greene's recollection, that Greene was not scheduled to work that weekend Greene asked Kindred why Kin- dred replied that the schedule was "per" Schwartz Greene testified he called Schwartz the next morning, Saturday, January 21, 1989 He testified I asked [Schwartz] about why I wasn't on the schedule, and at that point he saidâ€”and I remember this specificallyâ€”"I have a problem with your work ethic in regards to this Union thing" And I said, "Well, does this mean that I will be on the scheduleâ€”removed from the schedule for Just this week or however long?" And he ended the conversation with, "I will call you" MONEY RADIO 701 Greene did not speak with Schwartz again He did call Kindred about 1 month later and asked Kindred if he had been put back on the schedule Kindred responded that he had not, "per" Schwartz The conversation ended Greene had no further contact with Respondent prior to the hearing 2 Schwartz' version of events Schwartz testified that he had a telephone conversa- tion with Greene in early January in which Greene told him he was losing or had lost his current full-time job Schwartz asked Greene if he was available for full-time work and Greene said yes Schwartz told Greene to come in to see him Schwartz testified that in contempla- tion of removing Greene from weekend night duty and placing him on full time, he desired to try another person in Greene's weekend position and, further, wished to see if that time period could be filled with one on-air person rather than the normal two Accordingly, Schwartz testi- fied, he did not schedule Greene for one weekend "to see how the program would work out without him in an- ticipation of using him on a full-time basis" Schwartz' pretrial affidavit asserts that Greene was not scheduled on one weekend because of complaints re- ceived about staff on the shift The affidavit makes no reference to omitting to schedule Greene as a test of one- person staffing Schwartz testified that he was not in fact punishing Greene for misconduct by removing Greene's name from the schedule Rather, Schwartz testified he was contemplating putting Greene on full time He testi- fied that if he had wanted to discipline or fire Greene for misconduct, he would have simply called Greene into his office and done so Schwartz testified that to his best recollection his last conversation with Greene was that described by Schwartz above which ended with Schwartz asking Greene to come in to see him Schwartz stated that Green was never fired He simply was not again sched- uled to work after having been removed from the sched- ule Schwartz testified When a week went by and when two weeks went by, and [Greene] wasn't on the schedule, he never called me up and said, "Are you or are you not going to put me on the schedule' Never Number two, I can not say he was not fired be- cause of Union activities because he was not fired It was my assumption, as it was with many people who left at that time, that it was because of the move 4 Schwartz denied ever having had a conversation with Greene subsequent to these events or otherwise in which he told Greene he did not like his work ethics because of this union or any similar wording Schwartz in effect denied the final conversation described by Greene ever took place 4 At this time Respondent was in the process of moving Its offices from Los Angeles to Anaheim, California E Analysis and Conclusions 1 The allegations of 8(a)(1) violations a The November radio broadcast allegation Greene testified he listened to a radio broadcast in which Schwartz during a discussion of unions stated that a union was trying to organize Respondent and that Schwartz would rather die than let the Union in Schwartz strongly denied ever making such a statement over the air Neither witness qualified his testimony on the issue or demonstrated equivocation or uncertainty of memory Such a vigorous, pithy statement by a manag- ing partner, in Respondent's circumstances the primary management official, during a union organizing campaign would not be likely to be misrecalled by an employee in- volved in such a campaign Greene's testimony, howev- er, is not corroborated by others and it would seem likely that, if such a statement had been made, other em- ployees or listeners ,would have heard it and been avail- able to corroborate Greene Despite all the above factors and others worthy of consideration in resolving the differing testimony, the resolution of this conflict in my view turns primarily on the demeanor of the witnesses This is so precisely be- cause of the purported clarity of the recollections testi- fied to and the high probability that, if such a statement were heard by Greene, it would have been easily and ac- curately recalled Having closely considered the matter, I credit Green's attributions over Schwartz' denials I do so based on a strong view that Greene's demeanor was far superior to that of Schwartz Each witness had the impressive timbre of voice and the reassuring cadence of speech of a professional broad- caster Neither appeared evasive in his answers or to wither under cross-examination Each was, standing alone, a superior witness Greene, however, was particu- larly credible in his calm confident direct examination and in his dispassionate defense of his recollections under cross-examination His demeanor was extraordinarily convincing I formed the firm belief listening to his testi- mony that he in fact recalled the actions and statements of Schwartz and that he was truthfully testifying con- cerning, them Schwartz, even given the handicap of being required to deny statements and actions attributed to him by Greene, a process difficult to do with other than bald negatives, simply did not leave nearly so favor- able an impression Comparing Schwartz' demeanor to Greene's, Schwartz exhibited a certain glibness and occasional self- serving generalization or incompleteness in his answers which weakened the credibility of his denials as com- pared to Greene Schwartz' recitation of the broadcast statements did not include what remarks he did recall making about unions on the air which could arguably have been misapprehended by Greene Schwartz' testi- mony in this area was also limited to a denial that he had ever made such a statement on the air rather and did not include a denial that he had ever made such a statement other than on the air 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, on several occasions the General Counsel demonstrated through the use of Schwartz' pretrial affi- davit, that his earlier versions of events did not fully track his testimony at trial Schwartz sought to explain the discrepancies by noting the relative illegibility of the affidavit, by admitting he did not have a complete under- standing of the import of the affidavit at the time of its making, and by dealing with the impeachments attempt- ed by the General Counsel on an item-by-item basis Schwartz' attempts to rehabilitate himself during this process were not completely successful, however, and his credibility was damaged by inconsistencies in his pre- trial affidavit as compared to his testimony at the hear- ing Having found the statements of Schwartz were made as testified by Greene, an admitted owner and managing partner of Respondent I further find that the statements violate Section 8(a)(1) of the Act for the following rea- sons First, as it in fact occurred, it was reasonable for Respondent's agent to expect that at least some of Re- spondent's employees would be listening to the radio sta- tion and hear Schwartz' statements Accordingly, Re- spondent bears full responsibility for the remarks when they were in fact overheard Thus, for purposes of analy- sis, Schwartz' statement over the radio may be consid- ered as if it were a statement made directly to Green by Schwartz in a private conversation The Board has long noted, with court approval, that an employer may not with impunity simply and baldly tell employees in any variety of ways that their efforts to obtain union representation will be futile Such state- ments may be reasonably expected to chill employees' rights to exercise their Section 7 rights to organize and therefore violate Section 8(a)(1) of the Act Thus, the Board has found employer statements to employees that there would never be a union election violated Section 8(a)(1) of the Act Zaruc, Inc , 277 NLRB 1478 (1986) The statement that the employer would never sign a contract has also been held to violate Section 8(a)(1) of the Act Without Reservation, 280 NLRB 1408 (1986) It may not be doubted that the statement by a partnership employer's managing partner that he would "sooner die than let the Union in" is at least the equivalent of the statements found violative in the cited cases According- ly, based on all the above and the record as a whole, I find that Schwartz' statements in his radio broadcast as testified to by Greene violated Section 8(a)(1) of the Act as alleged in the complaint b The preelection interrogation allegation Greene testified to a telephone conversation with Re- spondent's news director Steve Kindred in which Kin- dred asked Greene how things were going with the elec- tion and how many employees Greene thought would support the Union Kindred did not appear at the trial nor was his unavailability mentioned by any party I have found, supra, that Kindred was a supervisor and agent of Respondent at the time of the conversation I credit Greene's essentially unchallenged version of events It is an unfair labor practice for an agent of an em- ployer to interrogate an employee about his or her voting intentions or the voting intentions of other em- ployees Max, Mart, 246 NLRB 1151, 1161 (1979), Quin- tree Distributors, 198 NLRB 390 (1972) Not every in- quiry by a supervisor of an employee about upcoming election prospects for a union rises to the level of an im- proper interrogation however There is room for benign general inquiry which does not seek specific information about employee intentions Thus, in Gossen Go, 254 NLRB 339, 351 (1981), a supervisor asked an employee 1 week before an election how the employee thought the election would come out In Continental Kitchen Corp, 246 NLRB 611 (1979), the question was asked on the very day of the election "How do you think its going to go today?" In Borg-Warner Corp, 229 NLRB 1149 (1977), a similar question was asked In each case the questioning was held not to rise to a level of a violation of the Act even though in some cases a pattern of other violations of the Act was present As in cited cases, the instant questioning did not go beyond a permissible general conversational gambit and turn into a prohibited interrogation concerning employee voting intentions or union support This is especially true where the questions came from a low-level supervisor during a regular telephone conversation with an employee who was presumably at his home and not being pressed in the locus of management authority Accordingly, I find Kindred's questioning of Greene did not violate Section 8(a)(1) of the Act I shall therefore dismiss this allegation of the complaint 5 2 The allegation of an 8(a)(3) violation The dispute concerning the termination of Greene is one purely of fact Respondent does not contend that it would be proper to have discharged Greene because of his union activities Indeed, Respondent does not suggest Greene's conduct justified discharge or that he was dis- charged at all Rather, Respondent describes a series of events supportive of the proposition that whereas Re- spondent was contemplating putting Greene on full time, Greene simply abandoned his regular part-time job with- out ever being terminated by Respondent The General Counsel adduced evidence that Greene was a union supporter, that he was in the certified bar- gaining unit and that he was taken off the work schedule effective January 20, 1989, at Schwartz' direction Cen- tral to the General Counsel's case and strongly denied by Respondent was Greene's testimony, described in detail above, that Schwartz on January 21, 1989, in effect di- rectly told Greene he had been taken off the schedule because of his work ethic in regards to this union thing Greene further testified that his later checking with Kin- dred in February revealed that he was still being held off the work schedule at Schwartz' Instructions I credit Greene's unchallenged testimony about his conversation with Kindred Respondent effectively demonstrated at the hearing that Schwartz believed other employees had been more 5 The General Counsel s cited case, Pennsy Supply, 295 NLRB 324 (1989), is distinguishable That case involved specific interrogation of an employee's 'union sentiments and activity" MONEY RADIO 703 active in support of the union organizing drive than Greene whose activities seemed rather low key and that no other employee had been discharged, reprimanded or otherwise disciplined Respondent also noted that the events in question occurred in mid to late January, well after the mid-December election More importantly, the disputed events occurred only days after a conversation between Schwartz and Greene in which Schwartz gave Greene reason to believe that he would be converted to full-time employment Why, argues Respondent, if Greene's preelection union activities were a basis for em- ployer hostility to Greene, would Schwartz have indicat- ed to Greene in mid-January that he might well be put on full time? And having so encouraged Greene, why would Schwartz, but a few days later, tell Greene he was not going to be scheduled because of his work ethic and union activities? I have considered Respondent's arguments, which are not ineffective, as well as the burden the General Coun- sel bears to establish her prima facie case I find that the disputed conversation of January 21, 1989 as described by Greene and specifically denied by Schwartz turns this issue Put another way, if Schwartz made the statement to Greene that Greene was off the schedule because of his work ethic and union activities, the General Coun- sel's prima facie case is established and Respondents' de- fense collapses, irrespective of how the probabilities and circumstances collateral to the central event are weighed If the conversation did not take place and Greene's version of events is discredited, the General Counsel's prima facie case fails and Respondent prevails It is appropriate then to turn to those disputed events and the testimony concerning them The conflict in testimony is total, the versions of events diametrically opposed Greene descnbes in detail a conversation in which Schwartz admits that he is taking Greene off the schedule until further notice from him because of Greene's work ethic and his union activi- ties Thus, Greene's version of the conversation makes it clear that Schwartz is in effect firing Greene and that he is doing so for an impermissible reason Schwartz testi- fied that this conversation with Greene, as Greene de- scribed it, never happened Rather, Schwartz testified that the last contact he had with Greene was one in which Greene sought full-time employment and Schwartz told Greene full-time employment was likely and to come in to see him Greene's memory of the criti- cal conversation was certain and he repeated the events without damaging variation under direct and cross-exam- ination Schwartz, testifying after Greene, affirmed with certainty that the described conversation did not in fact take place Schwartz testified that he believed that Greene had simply silently abandoned Respondent, ap- parently because it was physically relocating its offices Neither version of events carries a significantly superi- or probability of occurrence in my view As Respondent argues, the General Counsel's scenario of a sudden turn of events in mid-January whereby Schwartz in but a few days turns from Greene's apparent friend to foe, all be- cause of Greene's earlier union activities in early Decem- ber, seems improbable So, too, Respondent's scenario having Greene seek full-time employment and then, after having been told his hope for full-time employment would likely be granted, having him immediately aban- don his part-time employment without further contact with Schwartz does not ring true Given the lack of determinative extrinsic factors, I re- solve the testimonial conflict based primarily on demean- or As noted supra, I fonnd a substantial - and significant variance between the demeanor of Schwartz and Greene during their testimony That variation continued' during the witnesses' testimony about this disputed conversation Based on demeanor, as described in detail supra, I credit the testimony of Greene over the contrary testimony of Schwartz Accordingly, I find that on January 21, 1989, Schwartz told Greene he was off the schedule because' of his work ethic and union activities and that he would remain off the schedule until further notice Since there is no dispute that Greene was never told he was to be scheduled again, I find that Schwartz in effect fired Greene on January 20, 1989â€”the day Kindred took Greene off the schedule per Schwartz' instruction I fur- ther find that Schwartz took the action he did for the reasons he gave Greene, i e, because of Schwartz' hostil- ity to Greene's work ethic and union activities Such ac- tions by an agent of Respondent violate Section 8(a)(3) and (1) of the Act and I so find -F Summary, . Crediting Greene's testimony, I have found that Kindred's inquiry of Greene concerning his opinion about how things were going with the Union and his es- timation of the Union's election prospects did not rise to the level of an improper interrogation of employee's union or election sentiments and therefore does not vio- late the Act Accordingly, I shall dismiss this allegation of the complaint Crediting Greene over Schwartz, I have found that Schwartz' radio broadcast statement' that he would sooner die than let the Union in to Respondent created among employees the impression that any exercise of their Section 7 right to organize would be futile and therefore violates Section 8(a)(1) of the Act Crediting Greene over Schwartz, I have found that Schwartz told Greene on January 21, 1989, he had been removed from Respondent's work schedule and would remain off the schedule until further notice because of his union activities I further find that, in fact, Schwartz did have Greene removed from the work schedule, thereby firing him, on January 20, 1989 because of Greene's actual or suspected 'union activities Respond- ent's conduct violates Section 8(a)(3) and (1) of the Act THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act I shall recommend that Respondent offer Scott Greene full and immediate reinstatement to the position he would have held, but for Respondent's wrongful ter- 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mmation of him on January 20, 1989 6 Further, Respond- ent shall be directed to make Greene whole for any and all loss of earnings and other rights, benefits and emolu- ments of employment he may have suffered by reason of Respondent's discrimination against him, with interest Backpay shall be computed in the manner set forth in F W Woolworth Go, 90 NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987) See also Florida Steel Corp, 231 NLRB 651 (1977), and Isis Plumbing Co, 139 NLRB 716 (1962) Respondent shall also be required to expunge any and all references to Greene's discharge from its files and notify Greene in writing that this has been done and that his discharge will not be the basis for any adverse action against him in future Sterling Sugars, 261 NLRB 472 (1982) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 Respondent independently violated Section 8a)(1) of the Act through its managing partner, Edward Schwartz, by broadcasting the statement that he would rather die than let the Union in Respondent 4 Respondent violated Section 8(a)(3) and (1) of the Act by firing Scott Greene on January 20, 1989 because of his actual or suspected union activities 5 Respondent did not otherwise violate the Act as al- leged in the complaint 6 The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act Based on these findings of fact and conclusions of law and on the entire record herein, I issue the following rec- ommended7 6 The Issue of whether or not reinstatement should be to a full-time job and backpay calculated on that basis or to his former 2-day-a-week em- ployment and backpay calculated on that basis was not litigated before me and I do not rule on the issue This issue may be addressed in the compliance stage of these proceedings as necessary and appropriate 7 If no exceptions are filed as provided by Section 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Section 102 48 of the Rules, be adopt- ORDER Respondent, Money Radio, a California Limited Part- nership, its owners, agents, successors, and assigns, shall 1 Cease and desist from (a) Telling employees by radio broadcast or otherwise that the managing partner and would rather die than let the Union in Money Radio (b) Discharging employees because of their union ac- tivities (c) In any like or related manner violating the provi- sions of the National Labor Relations Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to employee Scott Greene to the position he would have held, but for Respondent's wrongful discharge of him on January 20, 1989 (b) Make whole employee Scott Greene for any and all losses incurred as a result of Respondent's unlawful termination of him, with interest, as provided in the remedy section of this decision (c) Expunge from its files any and all reference to the discharge of employee Scott Greene and notify him in writing that this has been done and that the fact of his wrongful discharge will not be used against him in future personnel actions (d) Post at its Anaheim, California facility copies of the attached notice marked "Appendix " 6 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly upon receipt and maintains for 60 consecutive dys in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply ed by the Board and all objections to them shall be deemed waived for all purposes 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"