Rounsaville of Nashville, Inc.

National Labor Relations Board - Board Decisions

May 20, 1970

182 N.L.R.B. 562 (N.L.R.B. 1970)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rounsaville of Nashville , Inc. and American Federation
of Television and Radio Artists, AFL-CIO. Case
26-CA-3278
May 20, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On November 28, 1969, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled case,
finding that Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommend-
ed that such allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief and Respondent filed
a reply brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegated
its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial Exam-
iner 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 briefs, and the entire record in this
case, and hereby adopts the findings' conclusions, and
recommendations of the Trial Examiner except as indi-
cated hereinafter.
The Trial Examiner found that Respondent granted
radio announcer Thomas Weakley a $10-a-week wage
increase as an incentive to spur better performance
rather than as an inducement to encourage him to vote
against the Union. He also found that Station Manager
Blackwell's remark that Weakley would lose his job
for failing to conform to union standards was merely
a "legitimate expression of opinion . . ." We do not
agree with either of these findings.
The Trial Examiner discusses in detail a series of
incidents leading up to the date on which the wage
increase was given, all of which indicate that the Employ-
er was dissatisfied with the calibre of Weakley's work.
Thus, on a number of occasions in September and
October 1968, Blackwell and Respondent's program
director, Perkins, advised Weakley that he would have
to correct certain speech deficiencies if he wished to
project effectively on the air. He was also relieved
I The Trial Examiner found that Respondent had not discnmmatorily
discharged employees Guy Cameron and Augustus Mitchell No excep-
tions were filed to these findings Accordingly, the Board adopts them
pro forma
of assignments to make commercial tapes for the radio
station 's sponsors.
On or about October 28, Weakley, who was receiving
$10 less per week than the other announcers, asked
Perkins for a raise. Perkins broached the matter to
Blackwell and a decision was made that not only would
the request be denied but that Weakley would be dis-
charged. That same day, Weakley was informed that
he had 30 days to find another job. The following
day, Weakley signed a union authorization card and
solicited other announcers to act similarly. He also
told his fellow announcers about his discharge, and
one of them, Guy Cameron, interceded in Weakley's
behalf, requesting Blackwell to rescind the termination.
On November 11 during an announcer ' s meeting,
Blackwell questioned the employees about their interest
in the Union. In particular, he commented that some
announcers would not satisfy union requirements.
Although he had already sent a written confirmation
of the discharge to Weakley, he stated to him that
he would be the "first to go." A number of the announc-
ers urged Blackwell to reconsider and promised to work
with Weakley to help him improve his performance.
In the face of what Blackwell regarded as desirable
team spirit on the part of the announcing staff, he
decided to keep Weakley on, subject to future evaluation.
Then, shortly before December 1, 5 days prior to
the election, Blackwell informed Weakley that he would
be getting a $10 pay raise, ostensibly as an incentive
to do a better job.
Viewing the Employer's overt dissatisfaction with
Weakley's abilities against a backdrop of union animus
as documented by the Trial Examiner, we find the
characterization of the pay raise as an incentive award,
implausible. A more logical inference is that the raise
was granted in an attempt to alter Weakley's vote in
the pending election. As such, we find that the Employ-
er's conduct constituted a violation of Section 8(a)(1).
Neither can we accept Blackwell's statement that
Weakley would lose his job for falling short of union
standards as an innocent expression of opinion of a
possible future occurrence, for he had already given
Weakley notice of termination. Moreover, there is no
evidence in the record that the Union had any intention
of imposing work standards upon its members. If there
was any link between the advent of unionization and
continued employment, it was forged solely by Respond-
ent. Consequently, we conclude that Blackwell' s remarks
were thinly veiled threats both to Weakley and indirectly
to the other employees attending the meeting that their
jobs might depend on their disavowing the Union.
Accordingly, we find Blackwell's statement is violative
of Section 8(a)(1).
BORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, as modified herein, and
orders that Respondent, Rounsaville of Nashville, Inc.,
182 NLRB No. 89
ROUNSVILLE OF NASHVILLE, INC.
Nashville, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Designate the first paragraph of the Trial Examin-
er's Recommended Order as 1(a) and add the following
paragraph as 1(b):
"(b) Cease and desist from granting wage increases
to employees or threatening them with loss of employ-
ment unless they disavowed the Union for the purpose
of interfering with, restraining, or coercing them in
the exercise of rights guaranteed by Section 7 of the
Act."
2. Amend the fourth indented paragraph of the Appen-
dix attached to the Trial Examiner's Decision so that
it states:
WE WILL NOT grant wage increases threatening
employees with loss of employment or in any other
manner interfere with, restrain, or coerce, our
employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case, which
was tried before me at Nashville, Tennessee, on various
dates between April 9 and 23, 1969, with all parties
represented by counsel, involves the issues whether
on various dates in 1968 and 1969 the above-named
Respondent had interrogated employees and threatened
them with discharge and sale of its radio station and
loss of benefits because of their activities on behalf
of the above-named Union, gave employees the impres-
sion that it kept their union meetings under surveillance,
and gave them a wage raise to discourage adherence
to said Union, all in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq. (herein called the Act), and discharged
two employees, changed the work shift of a third, and
reduced the weekly work hours of a fourth, because
of their union activities, in violation of Section 8(a)(3)
of the Act. The issues arise on a complaint issued
March 13, 1969, by the Board's Regional Director for
Region 26,' and answer of Respondent admitting jurisdic-
tion but denying the commission of any unfair labor
practices. At the close of the testimony, a motion of
Respondent to dismiss the complaint on the merits was
taken under advisement and is disposed of by this Deci-
sion. All parties waived oral argument but written briefs
filed by General Counsel and Respondent have been
carefully considered in preparation of this Decision.
Upon the entire record in the case, including my
observation of the witnesses on the stand, I make the
following:
' The complaint issued after Board investigation of charges filed
by the Union on February 7 and March 12, 1969
FINDINGS OF FACT
563
1. RESPONDENT' S BUSINESS AND THE STATUS OF THE
UNION
Respondent is a Tennessee corporation with an office
and place of business in Nashville , Tennessee, where
it is engaged in commercial operation of radio station
WVOL . In the 12 months before issuance of the com-
plaint Respondent in its business operation derived gross
income in excess of $100 ,000, and in the same period
received in excess of $10,000 for sale of air time for
commercial advertising of national brand products. In
the same period it subscribed to interstate news services,
including United Press International . Respondent admits
and I find that at all times material herein it is and
has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
I find that the above -named Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Facts and Events
During all pertinent times in late 1968 and early 1969
WVOL was operated for Respondent by Noble V. Black-
well as general manager, William Perkins as program
director, and Wayne Robinson as chief engineer, all
of whom are supervisors within the meaning of the
Act. William A. Selley, a vice president of Respondent
and national sales manager for all its stations, with
his office in Atlanta, Georgia, is also a supervisor within
the meaning of the Act.
Early in 1968, the general manager , program director,
news director, and music director of WVOL were white,
while most of the station personnel including all announc-
ers and the assistant engineer , were Negroes. In this
period the employees presented certain demands and
grievances to Respondent which were the subject of
negotiations, during which the announcers and some
other employees went on strike and picketed the station
for several days with the aid of a committee from
the National Association for the Advancement of Col-
ored People. In efforts to settle the dispute both manage-
ment and the employees enlisted the aid of certain
Nashville community leaders as mediators, including
Noble V . Blackwell , who was at the time associated
with a local medical college . Conferences of the parties
and the mediators resulted in execution of a formal
"memorandum agreement " on April 30, 1968, by Robert
W. Rounsaville, president of Respondent, and the 10
employees of WVOL, including assistant engineer
Augustus Mitchell and news announcer Thomas D.
Weakley. Blackwell, as a community representative,
and Mitchell , as spokesman for the employees, were
prominent in the discussions and assisted in drafting
the settlement agreement . In that document Respondent
undertook to find and install at WVOL a qualified Negro
general manager , to appoint employee Edward Hall,
Sr., as interim Negro news director pending appointment
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a Negro general manager , and agreed to leave promo-
tions and transfers of employees to the discretion of
the new general manager, with right of appeal first
to him and then directly to the president or executive
vice president of Respondent at Atlanta, in writing with
the knowledge of the general manager , or by phone
call in his presence. The parties agreed on wages and
other benefits, full reinstatement of certain employees
who struck, and certain aspects of station operation,
such as news handling, programing, editorial policy,
community relations, etc., on which management
reserved the general right of control. The agreement
was fulfilled in part by the appointment of Blackwell
as general manager on July 1, 1968, replacement of
the white program director with William Perkins in Sep-
tember, and of the white news' director with Edward
Hall, Sr., sometime before July.''All the replacements
were Negroes: Perkins had worked previously in other
Rounsaville stations, and Blackwell had an impressive
record of prior business, administrative, and radio experi-
ence.2
The Union began an organizing campaign among
employees of WVOL about October 28, 1968, when
Weakley sought its advice and help after he had received
a 30-day notice of termination of employment from
Blackwell under circumstances noted hereafter.
Announcers Weakley, Guy Cameron, and Paul McKis-
sack and engineer Mitchell on October 28 and 29, 1968,
signed cards authorizing the Union to represent them
for collective bargaining , and on November 7 the Union
formally notified'Respondent by letter of that date that
it claimed majority status among employees in the unit
noted' below, and requested a meeting to negotiate a
contract. Blackwell received the letter that day and
talked to the union men -on' the 8th. On November
14, 1968, the Union filed a petition with the Board
in Case 26-RC-3337 seeking certification as bargaining
,agent of employees in a bargaining unit consisting of
all employees who regularly or frequently appear before
a microphone at WVOL, including but not limited to
sstaff announcers, newsmen, and regular part-time
announcers, excluding all other employees and supervi-
sors as defined in the Act. Pursuant to a stipulation
of the parties, a consent election was held December
6, 1968, in which 7 out of 10 eligible voters voted
for the Union, with I vote against. On December 12,
1968, the Employer filed timely objections to conduct
affecting the results of the election. On January 7,
1969, the Regional Director for Region 26 filed his report
recommending that the objections be overruled. The
2 He had many years of prior experience in organizing and operating
small enterprises in the employment and public relations fields , including
radio ' and TV programing and placement of personnel in radio and
the entertainment industry, as well as fundraising for educational and
medical institutions and churches In these endeavors he had employed
and supervised groups of people ranging from 4 to 80 or more In
addition, he had previously worked for Respondent, working his way
up in the organization from 1959 to 1964-from salesman to positions
in program development and public relations From 1964 to 1966 he
worked in the television field, returned to Respondent in the latter
year as an accounts executive, then worked for 2 years in an alumni
organization for a Nashville medical college, until his return to WVOL
Employer filed exceptions to, the report on January
31, 1969, which matter was still pending before the
Board when the hearing opened herein.'
When Perkins became program director in September,
he and Blackwell began to make changes in the station
programs and announcers' work and assignments in
an effort to improve the WVOL output on the air and
its "image " before the Negro community in the Nashville
area. He emphasized these objectives repeatedly at
announcers' meetings from July onward. In September
Blackwell also made Mitchell the sports coordinator,
and discussed changes in the sports program with him.
In one such discussion Mitchell told him `,`we've got
to check on this memorandum agreement and find out
if you are adhering to, it." When Blackwell asked, what
agreement, Mitchell said "the 'memorandum agreement,"
explaining he had been spokesman, for the employees
named in it. Blackwell replied that he would not recog-
nize Mitchell as such spokesman. Mitchell said he was
their spokesman "in the way that unions have shop
stewards." Blackwell'replied, "There is no union here."
Mitchell said Blackwell owed it to the employees to
read the agreement. Blackwell said'he had never seen
it in final form, so' Mitchell procured a copy, which
Blackwell read over, recognizing some phrasing as his
suggestions during the negotiations in April. Employee
unrest and fears about mass discharge as a result of
program and policy changes arose in the station, so
at a general staff meeting on October 14 or 21, Blackwell
produced the agreement, went over it item by item,
indicating that most provisions had been fulfilled or
were in process, and then asked the employees, "we
really do not need this, do we?" saying he did not
"think I have got to' come in here every morning and
pull out a piece of paper and check it off to see if
I am adhering to this agreement," and that "we under-
stand each other, most of ' the things on this paper
have been adhered to." The employees generally agreed,
and Blackwell then said, "Look, I am going to bury
it, put it in my drawer right' here, we do not need
it right now -at all, as we are living up to it, working
on it. "4
On October 22,' Perkins gave Weakley a 30-day notice
of termination for alleged substandard performance and
both Perkins and Blackwell talked to him about it on
October 28. The circumstances of this action will be
considered below'in discussion of the alleged discrimina-
tion against Weakley. On November 11, the announcers
came to Blackwell in a group to intercede for Weakley,
and in that discussion Cameron told Blackwell the men
were upset' because of rumors at the `station that there
would be mass discharges of employees because manage-
ment was dissatisfied with the performance of the "air
staff," so the employees felt they might lose their jobs.
Blackwell asked where the rumors came from, but no
9 The above facts are found from stipulations of the parties, documen-
tary proof, and credited testimony of Blackwell, Perkins, Mitchell,
and Weakley
' These facts are found from a composite of credited, testimony
of Blackwell, Weakley, and Mitchell Testimony of any of them at
variance therewith is not credited
ROUNSVILLE OF NASHVILLE, INC.
one could tell him. Although at least four announcers
had signed up with the Union on October 29, there
was no mention of this or the Union at this meeting,
and Blackwell had no inkling of their action until he
received the Union's letter on November 7.5
B. Alleged Coercion by Respondent
Blackwell mentioned the Union's demand for bargain-
ing, at the regular meeting of announcers on November
11, asking them why they wanted union representation.
His secretary, Sue Evans, asked them why they would
do such a thing to Blackwell, after all he had done
for them. Cameron replied that the memorandum agree-
ment had been "buried" and the men were afraid their
pay raises had been "buried" with it. Cameron asked
Blackwell what was the "big gripe about Negroes joining
the Union," and Blackwell replied there was no gripe
about that, the Company only wanted to know why
they joined it.
At a similar meeting on November 18 or 25, Cameron
raised the question of the advantages of the Union
by asking Blackwell if it would be to his advantage
if the men did not join the Union. Blackwell said it
would, explaining that the Union was the same as the
American Federation of Musicians, that he had had
an experience with the latter organization while running
a TV show at a station in Nashville, where he wanted
his musicians to join that union to get more money,
but after investigation he found that they would not
get more, but less than the wage scale for white musi-
cians, and that the Musicians ' union did not want Neg-
roes in its membership at that time. Cameron replied
that a different union was involved here. Blackwell
reminded them that Selley had been in town recently
to review the new budget which included raises for
everyone, but with the union "hassle" he was afraid
the raises might not go through, and he asked the
men to tell him what was so good about joining the
Union, what they would get out of it."
At a meeting with announcers on December 2, Black-
well introduced an executive of a record producing
company, who urged the announcers to join an integrated
organization called National Association of Television
and Radio Announcers, arguing this would help them
as Negro announcers. The, announcers told him they
had already chosen the Union as their bargaining agent.
During his remarks Blackwell walked in and out of
the room several times. When the speaker concluded
Blackwell returned and asked the announcers if they
knew what a union really was, what it meant to get
involved with one, and if that was what they really
wanted. In general discussion about this, Cameron asked
why the union question was always brought up in general
announcers ' meetings . Blackwell replied , " I don't care
5 The above facts are found from credited testimony of Blackwell
and Perkins , and some corroboration by Cameron, whose testimony
at variance therewith is not credited.
` The above discussions are found from credited testimony of Camer-
on, and partial admissions of Blackwell Testimony of the latter at
variance therewith is not credited
565
about the Union, I want to know why you are joining
a union, because you are going to hurt yourselves."
Hall stated some reasons why the men wanted a union,
such as faulty equipment and lack of a news cruiser
for Hall's use in his newscasting. Another announcer
raised questions about their duties and working condi-
tions. Blackwell answered some of these complaints
with economic explanations. Referring to complaints
about their pay, Blackwell explained that many things
entered into the decision on their pay; he also mentioned
the proposed pay raises in the new 1969 budget, and
said he feared the raises might not go through. He
also said tht Mr. Rounsaville would sell the station
"if the-price-was right, that was good business," that
every station was up for sale, "if aman got someone
to buy a station I imagine he would sell it." Cameron
replied that he could not sell it "while we had this
labor dispute. "r
On the same day, Perkins approached McKissack
in the newsroom and asked him "what about that union
bit?" McKissack asked what he meant, and Perkins
said he wanted to know how he was going to vote,
that Blackwell and Perkins were "trying to decide what
we have to do." McKissack replied that this was a
"big decision, there was a lot to think about on both
sides," and he had not made up his mind. The same
day Perkins called Weakley to his office and told him
not to "get involved" with Mitchell and Cameron, that
Mitchell was a "feeble-minded old man." He added
that he was not making any campaign speeches or trying
to influence Weakley, but just wanted to know how
Weakly would vote in the 'election. Weakley replied
that he could not tell him right then, as* he did not
know.'
On December 7, the day after the election, Blackwell
walked into the control room and told announcers McKis-
sack and Kilcrease the results of the election. McKissack
said, "This is what the men wanted." Blackwell replied,
"We can live with it, but I hope the men did not
cut off their noses to spite their faces," and that someone
would probably get hurt as a result of it. At the weekly
meeting of the whole staff on December 9," Blackwell
announced the results of the election, saying, "Now
we have the Union. Whether it will be good or bad
remains to be seen, but I have my apprehensions whether
some will make it."i"
' The events of this meeting are found from credited and mutually
corroborative testimony of Cameron and Blackwell , testimony of the
latter at variance therewith is not credited
" These facts are found from credited testimony of McKissack and
Weakley. Perkins did not deny specifically the talk with Weakley,
and admitted that he may have made the above -stated remarks to
McKissack at other unidentified times "in passing conversation "
" Weekly meetings of the whole staff were held Monday morning
about 9 a.m. Perkins and Blackwell usually met separately with the
announcers in a group about 10 a. in the same day
"' These remarks are found from credited testimony of McKissack
and Hall, as corroborated by admissions of Blackwell His denials
of portions of the remarks are not credited , as he admitted discussions
of the Union with individuals and also at announcers' meetings, and
the general remarks about the probable effect of the Union on the
men, as attributed to him , are of the same tenor as similar remarks
about Weakley, as noted hereafter
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The interrogation of employees by Blackwell on
November 11 and December 2 about their reasons for
joining the Union and Perkins' interrogation of McKis-
sack and Weakley in December about how they would
vote in the election were clearly not casual inquiries,
but deliberate attempts to find out employees' views
regarding the Union, which were coercive and violated
Section 8(a)(1) of the Act, particularly when Blackwell
displayed Respondent's antiunion sentiments when he
allowed an outsider on December 2 to try to persuade
them to join another and clearly integrated labor organi-
zation in preference to the Union, at an earlier meeting
stated arguments designed to show that the Union had
been anti-Negro in the past, and on December 7 and
9 expressed the, views that the Union might not be
beneficial to all the employees. In addition, Blackwell's
fear stated at the latter meeting that the raises budgeted
for 1969 might not go through, followed by the inquiry
as to what the men thought they could get out of
the Union, was well calculated to coerce them by warning
them that adherence to the Union might result in loss
of that raise, in further violation of Section 8(a)(1).
Finally, a similar violation occurred in his repetition
on December 2 of the view that the raises might not
go through, and his mention of the ever-present possibili-
ty of sale of WVOL, all after the men had definitely
rejected the argument of the outsider favoring another
union, for those were thinly veiled and coercive threats
of possible reprisal for their continued adherence to
the Union."
C. The Discharge of Guy Cameron
Guy Cameron was hired as an announcer at WVOL
on August 26, 1968, and worked the night shift from
7 p.m. to midnight until his discharge on December
20, 1968. His testimony indicates that he may have
had some prior experience in programing at a radio
station in Buffalo, New York, but he gave no details
as to the extent of that experience. After signing a
union authorization card for Weakley on October 29,
1968, Cameron was outspoken in discussing employee
grievances and favoring the Union in the station both
in and out of announcers' meeting , as noted above.
In November, he also discussed the Union privately
at the station at various times with other announcers
and held at least one private meeting with Weakley,
McKissack, and Mitchell at his home regarding the
Union and its campaign plans. There is no direct proof
that any station official observed, attended, or had other
direct knowledge of these activities.
On December 20, 1968, Blackwell called Cameron
to the station early in the morning and discharged him
for alleged insubordination , insulting remarks, and tardi-
ness , in the course of a 3-hour conference in which
Perkins participated and which ran as follows: When
Cameron came in, Blackwell asked for his keys to
" I find no violation of the Act in his remarks of December 7
and 9 which stated his opinion that unidentified employees might suffer
some vague detriment from the advent of the Union
the station. Cameron said he had never received any.
Blackwell then asked him for a 2 weeks' notice of
his resignation. Cameron asked, "Does this mean I
am fired?" Blackwell said yes, he was asking for his
2-week notice. Cameron asked why he was fired, and
Blackwell replied, "For insubordination, insulting
remarks and excessive tardiness." Cameron commented
if it was for tardiness, Blackwell might as well fire
the whole staff, as no one was ever on time, everybody
was late. Blackwell admitted this was true, "that is
something that is going to be corrected," and reminded
Cameron that Perkins had reported he came in tardy
"at times." Cameron asked what the "insubordination"
was. Blackwell replied that he had been very patient
with Cameron about his conduct, that he felt he "did
not know any better," that Cameron had not worked
in radio long enough to know that at WVOL they
were trying to develop a "team attitude," so Blackwell
had overlooked many things he did. Cameron asked
him for details of the insubordination, and Blackwell
recited (1) at an announcers' meeting early in December
Cameron had ridiculed Blackwell before the announcers
by saying he did not know what he was doing, was
just an office manager, that Blackwell did not pay Camer-
on but the Atlanta office did, and that Cameron did
not need the job at WVOL, (2) his continual evasion
and disobedience of instructions from Perkins by giving
some excuse for not following them, (3) Cameron's
warning to Blackwell one evening that announcer Kil-
crease might get "hurt" by some people, referring to
some promoters for whom Kilcrease had failed to play
a record as he had promised, to which Blackwell replied
that Cameron should not start such rumors, and Cameron
rejoined, "It happens in New York" and (4) Cameron's
insulting and insubordinate behavior at a Christmas party
held by Blackwell for the staff at his home on December
17. At this point, Perkins came in and joined the discus-
sion; Blackwell told him he had discharged Cameron
for insubordination and lateness, and mentioned Camer-
on's insubordinate conduct toward him at the Christmas
party; on this Perkins said that his wife (who was
present at the party) had commented that Cameron
must not like working at WVOL, from what he said
and the way he had acted. Cameron asked what they
were referring to, and also asked Perkins "what has
your wife to do with the running of this station?"
Blackwell then detailed his conduct there. Cameron
charged that at the party Blackwell had pointed to
him and told him his father was "graft." Blackwell
denied it, saying Hall had said that; the two argued
over that a while. Cameron asked for more details
of his insubordination, and Blackwell replied that he
already knew what he had said and done, and if he
could not understand, he was not going to explain it
to Cameron. In the discussion, Cameron boasted that
he was a good disc jockey, wanted to get into the
"big league," and could get a job anywhere in the
country. Blackwell said he hoped that he could. Cameron
then accused him of "doing this because of the Union."
Blackwell denied that the Union had anything to do
with it, that it was only because "you have shown
ROUNSVILLE OF NASHVILLE, INC.
me that you do not want to be part of our organization,",
that Blackwell had a business to run at WVOL and
had often said they must have "team effort, unity,"
with everybody "pulling together," but with only 22
people they could not have an effective statjon if every-
one was "going off in different directions." Cameron
defended his conduct by saying that Blackwell encour-
aged the announcers to say what they thought, and
think independently Blackwell admitted this, adding "but
by the same token you do not tear down the bridges
we are trying to build," that, Cameron could be an
independent thinker without trying to disrupt the organi-
zation. Both Blackwell and Perkins told him that at
WVOL they were trying to build effective bridges into
the community, but that Cameron's conduct could
become a "cancer of dissent spreading among the other
men on the air staff" and "if we have disruption at
the station level, how can we go out and talk about
soul motivation?" Blackwell charged that Cameron was
deliberately trying to discredit everything WVOL was
doing , and he could not tolerate that type of person
in his organization. In answering Perkins' remarks, Cam-
eron accused him-of a dislike of Cameron; Perkins
admitted "you know we have our thing," and Cameron
agreed that "we have a thing here, we don't have
any love for each other." In answer to a query from
Cameron, Perkins, told him that his production work
on the air was satisfactory, but that management had
been very patient with him, trying to make WVOL
a happy station with happy people "as part of what
WVOL means in this revolution." Blackwell told him
"you just'don't want to conform to this" and reminded
him that wherever he got a radio job he had to conform
to guidelines set up by his employer, he could not
do just what he wanted and expect to get paid for
it. Cameron replied, " I am not going through what
you went through, you people are old and antiquated,
and I want mine now and I am going to get it." Blackwell
replied that was fine, "but you have to pay the price
to get it, it takes hard work, understanding , some devo-
tion and loyalty." Perkins said Cameron's defiant attitude
was "like a cancer of discontent spreading among the
rest of the men on the air staff," and that he could
not tolerate that type of person working for his organiza-
tion. Perkins also asked Cameron if his adherence to
the Union and vote for it was his way of "tying manage-
ment 's hands," if Cameron was going to "hang this
over our heads" so that he could do what he wanted
when he wanted, regardless of station rules, regulations,
or policies. Cameron said it was not, but only his way
of "protecting his job"; and that "we are going to
get ours, and this is one way of doing it." Perkins
asked why he was "protecting your job, no one was
going to fire you." Cameron then referred to an instance
shortly after Perkins became program director when
he came into the control room and told another announc-
er that if it was the last thing he did, he would fire
Cameron. Perkins-made no reply or comment on this
incident. The discussion on Cameron's conduct became
rather heated, and at one point in discussion of his
own background, ability, and desire for instant success,
567
Cameron became angry and told both officials, "You
are not going to suceed in this, you guys are not going
to make it."
At the end of the discussion , Blackwell told Cameron
he need not work that night , as he could not trust
him on the air while in his present frame of mind,
but that he would give him 2 weeks ' pay. Blackwell
also said he would call ' Cameron at a later date, but
he never did . Cameron took his personal belongings
from the station the next day. He was never been
recalled by Respondent.12
It is clear from the unfair labor practices found above,
as well as Blackwell ' s remarks to employees disparaging
the Union in the period before the election , that Respond-
ent had a definite union animus . Management was also
well aware of the announcers ' adherence to the Union
from their remarks to the record company executive
who tried to sell them on another labor organization
and their comments about it in announcers ' meetings.
Blackwell was specifically aware of Cameron 's prounion
sentiments as well as his concern for the announcers'
welfare as a group from his remarks questioning Black-
well's antiunion arguments in two announcers ' meetings
in November . Perkins was also aware of Cameron's
concerted activities from his warning to Weakley to
"not get involved " with Mitchell and Cameron, when
questioning him about his union sentiments; and both
Blackwell and Perkins were given further evidence of
these sentiments at the discharge interview , when Perkins
squarely asked if Cameron was bringing in the Union
to "tie management's hands," and his reply that he
did it to protect his job . These circumstances raise
a strong prima facie case of discriminatory discharge,
which 'require Respondent to adduce strong proof ' of
discharge for cause in rebuttal.
Of the three causes assigned by Blackwell and by
Respondent in its brief , the charge of tardiness lacks
substance and appears to have been advanced by Black-
well as a makeweight , because he admitted to Cameron
at his discharge that most everyone was guilty of that
offense, Perkins in his testimony admitted he had been
late at times for his own morning show , and Respondent
produces no proof indicating the extent of the tardiness
of others or what , if any , discipline had been imposed
on employees for that offense.
On the broad charge of insubordination, Blackwell
outlined to Cameron four instances of his conduct,as
set forth above. It is significant that Cameron did not
12 The facts as to this conference are found from credible and mutually
corroborative testimony of Blackwell and Perkins , as corroborated in
part by admissions of Cameron I do not credit Cameron 's testimony
in conflict therewith because his testimonial version was in large part
a truncated and disconnected recital of some of the discussion and
the course thereof, and his general defiant attitude toward both officials
is indicated by his admissions , stated in irritated and angry fashion,
that he had been "begging and harping for damn near half an hour"
to try to get Blackwell to detail his insubordinate actions, and his
admission that he had a definite bias against Perkins after he was
made program director instead of Cameron His hostility toward Perkins
is also shown by Hall 's credible testimony that there had been a
continued "personality clash" between Cameron and Perkins, with
arguments between them , which were well known to the staff
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in terms deny the charge that he openly ridiculed Black-
well and his ability as general manager before the entire
announcer staff in December; in fact„ he admitted this
disrespectful attitude toward management continued
when he charged Blackwell and Perkins as being "old
and antiquated" and wanted "mine now" without going
through the hard work they had endured to reach their
present status, and he tried to defend it by indicating
that he was only thinking and speaking independently,
as Blackwell had encouraged the announcers to do.
Thus, this was clearly an instance of outspoken disloyalty
to the Employer which was well calculated to destroy
the morale of the staff and its cordial relations with
the Employer, and would have warranted his immediate
discharge in December. 13 The failure to discharge for
that alone at the time does not detract from the serious-
ness of the offense, but rather indicates the patience
and forbearance of the new station management in its
attempt to weld a harmonious team of employees, as
Blackwell outlined to Cameron at the discharge.
On the failure to follow Perkins' instructions, I find
from credited testimony of Perkins and Blackwell, and
admissions of Cameron, that: On Thanksgiving evening,
November 28, 1968, Cameron had been drinking early
in the evening, and came to work that night a half
hour late, which required announcer Kilcrease to work
a half hour overtime until Cameron showed up. His
broadcast that night was monitored by Perkins, as he
often did with all announcers, and Perkins noticed that
at the outset his speech was slurred and his remarks
often incoherent, in great contrast to his usual diction,
which was very good. Perkins thought he had been
drinking, but as the broadcast went on, these indications
disappeared, so he did not take any action except to
report the incident to Blackwell the next day, but on
December 2 he spoke to Cameron about it, and the
latter admitted he had been drinking , but argued he
was not drunk on the air. Perkins warned him not
to let it happen again . Cameron apparently took the
warning seriously, for he admitted he never again
indulged in drinking before reporting for work. On the
night of November 29, while auditing Cameron's broad-
cast, Perkins heard him make a comment about a two-
man newcast by Weakley and McKissack the night
before, to the effect that "we are the first station to
have comical news" and that "we have Huntley-Brink-
ley, and McKissack-Weakley of WVOL." In the same
broadcast Cameron also mentioned a party he had pre-
pared for the announcer staff the night before, saying
"it goes to show you who your friends are, you go
to the trouble of preparing all this food and nobody
shows up,,' and "They will know the next time I invite
them, that is a fine way to treat your co-workers."
Perkins reported these incidents to Blackwell, who was
much concerned because such public remarks tended
to indicate internal dissension and to place WVOL in
a bad light and were detrimental to its "image" in
the community, which hindered his attempts to put
the news department on a paying basis.
The record also shows that Perkins had difficulty
in making Cameron follow station policy and rules in
use of background music during broadcasts and in making
commercial tapes for advertisers according to prepared
scripts. It was station policy to use music from a list
of "top 40" records maintained in the station record
library in all broadcasts, both in compliance with regula-
tions of the Federal Communications Commission and
in order to maintain the station's popularity by playing
selections which the public desired most. Cameron knew
the importance of close station control over music selec-
tions to,comply with FCC regulations and avoid the
appearance of "payola."14 However, on several occa-
sions Cameron did not use the "top 40" records from
the station library, but substituted his own selections
of modern "rock" records. When Perkins admonished
him about this, he explained that he was "doing my
thing," meaning he played what he wanted. After Perkins
complained to Blackwell about it several times, Blackwell
compromised by allowing Cameron to use his own selec-
tions while running a jazz-type show from 10 p.m.
to end of his shift, but insisting that he use the "top
40" in the earlier part of his shift. Once in mid-December,
Perkins asked Cameron to record an introduction to
a No. I record on the popular list,, but he failed to
do it, and explained the failure to Perkins by saying
he could not find the right music for it; Perkins reminded
him WVOL had a complete music library for this pur-
pose, that his excuse was not valid. Just before Thanks-
giving , Cameron was assigned to record a commercial
for Emma's Flower Shop, a regular commercial advertis-
er on WVOL , using light background music specified
in the script and the production order issued by the
production department. He departed from the script
by using loud "rock" music , so that the tape had to
be re-recorded properly before it could be used. When
admonished by Perkins about this, Cameron's excuse
was he was "doing it my way" because the library
was not open for use when he made the tape, so he
had to use what was available, as the specific music
required did not accompany the script, at which Perkins
"threw up his hands," but did not formally reprimand
or otherwise discipline him.
According to Blackwell's testimony , the culminating
instance of insubordination, and the "straw that broke
the camel's back," was Cameron's behavior at the
Christmas party on December 17 and 18, 1968. Through-
out the party alcoholic drinks were freely served to
the guests, under the supervision of one John C. Martin,
director of physical education and athletic coach at
Fisk University in Nashville, and a close friend of
Blackwell. The party was held for the WVOL staff
and their wives and female friends, but Blackwell also
invited leaders in the Negro community served by
" "Payola" is the practice of special , usually secret, payments by
recordmakers to announcers to induce them to plan and "push" their
records on the air This became so widespread that after Congressional
" NLRB v Local Union No 1229, Electrical Workers, 346 U S and other investigations some years ago the FCC adopted strict regula-
464, 472, 475 Lions prohibiting the practice
ROUNSVILLE OF NASHVILLE, INC. 569
WVOL. Cameron arrived about, 12:30 a.m. on the 18th,
and almost from the outset began to attract attention
by his pronounced opinions and tendency to take over
any discussion in which he was involved. After casual
talk with a few guests, he got into a discussion with
Perkins and Hall about what makes a gentleman. Hall
opined that the -only true gentleman was a Southern
gentleman. Cameron disagreed, saying there were no
boundaries for gentlemen, and claiming that Southerners
were ignorant of 'a lot of things, and were "hicks"
and "asses," and he made other comments about them
in which he freely and repeatedly used the 'expressions
"Mother f " and"' S- 0- B-."'s He then pride-
fully put his father in the class of a gentleman, indicating
he had come from ihe South but worked his way up
as a policeman on' low pay in Buffalo, New York,
to a point where he supported a large family and owned
property. While explaining this, Blackwell joined the
group and asked Cameron, "Was it legitimate?" and
Hall commented, No, it must have been graft." Camer-
on indignantly denied this, saying his father was a hard-
working man.
Cameron went to the 'kitchen for, a drink, where
Blackwell was calling dance steps for a dance routine.
Blackwell greeted him' at the bar, asking if he was
ready to go home to New York State for Christmas;
Blackwell had previously granted him time off for the
visit. Cameron said he was and that "you better worry
about me coming back, because if I get up to Buffalo
and start partying through the holidays, I might, not
come back." There was some general laughter at this
remark, and one lady present asked Cameron "you
are not happy with your job here?" to which he replied
he did not need the job, "I am beholden to nobody."
The lady commented that everyone needs to work.
He replied, "I don't" and -"I don't need this job, I
could care less about it, I don't give a damn about
Rounsaville radio." Blackwell commented that everyone
had to work, and whether he liked the job or not,
Rounsaville ' was paying him to do the work and "we
hope that you will do what is expected of you." Cameron
replied,that he might go' and get a "high-powered job"
in New York and not return to Nashville, that he "might
even go to Cuba," that he did not "owe any allegiance
to Rounsaville." Blackwell replied that he might not
owe it, but "certainly all or most employees are loyal
to their employers." Cameron replied, "Loyal, hell,"
and that "M F (meaning Rounsaville) had
exploited disc jockeys all over the country" and "we
are going to do something about it." Blackwell comment-
ed "this,. is the revolution we are involved in, it is
not peculiar 'to any organization or group, we are really
now beginning to find our own and make our own.""'
Cameron then loudly and' in excited fashion gave his
IS The first expression is a disgusting , degrading , and obscene reference
to a person who has intimate relations with his own mother, the second
is a similar degrading reference which is unfortunately well known
views on white ownership of radio - stations , saying "as
long as white owners of Negro radio stations are not
stopped , they are still prostituting black communities,
because they take out money and do not put any back
in," and that while Rounsaville gave thet public service
and religion time, and "did their part for the communi-
ty," that had to be stopped so that every black radio
station could be No . 1 in any general market if it
was run properly , "but there is no such thing as black
radio and white radio , there is just radio , and until
this is stopped'you are still going to have that problen1i,
and Rounsaville is guilty of it." Still talking loudly
and with frequent profanity , Cameron said the people
at that "MF" station did not know what they were
doing , except him and Blackwell ' s secretary , 'and that
Perkins as program ' director did not know what he
was doing . Cameron then began to explain how the
station should be run , when Blackwell interrupted and
told him angrily ' and 'loudly , "Look, man, you don't
tell us how to run the radio station ." Cameron repeated
his statement about Blackwell and,Perkins , adding "that
MF Rounsaville has got you in this position, so you
don't know what ' is going on ." He repeated he did
not care about "this SOB job , you or anyone else."
At this point , Mrs. Blackwell had brought her baby,
who was ill, downstairs and gave her to.her husband
to hold; she asked Cameron to lower his voice because
the children upstairs were asleep and one,was ill. He
replied that he had been invited and would 'say what
he wanted , and that she should take the child back
upstairs if it was sick . Martin ' s wife reminded Cameron
that he was a guest in Blackwell ' s house and was "raising
Cain ," asked if he had ono respect for the house. He
replied addressing Mrs. Blackwell , that he had no respect
for the house , the children , "or you , either , because
I do not have any respect for any black woman."
He said the same to Mrs. Martin. Martin then intervened
to tell Cameron "you are going too far," and tried
to turn the conversation into a joke, but Cameron contin-
ued to repeat loudly that "they" did not know what
they were doing at WVOL, that he knew more, that
he was young and successful and had "arrived," that
"I could do more for this station than anyone " because
he was "program director at a top station in Buffalo,"
and that Blackwell did not understand because he was
"not df this generation , you people are out of it, old
people." Both Martin and Mrs. Blackwell asked if he
knew Blackwell ' s age , but Cameron did not answer.
Martin also questioned Cameron 's lack of ability and
experience , comparing it with his extensive , education
and teaching experience when he was Cameron's age
and also Blackwell ' s success as an administrator. When
he asked Cameron to prove what he claimed , Cameron
replied only with cursing and some repetition of his
claims about himself , his indifference to his job, and
that "that MF Rounsaville is doing what all white station
owners have done over the years , and I am going
to do something about it, I don 't owe him anything."
Martin finally suggested to Blackwell , who was still
angry and excited, not to argue with Cameron any
because too often used in general, though not parlor-type, conversation which is the only wording consistent with the thrust of this whole
"I In context, Blackwell must have been referring to "our own place," remark.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more, and led him to another part of the house Cameron
was one of the last guests to leave the party "
On the afternoon of the 18th, Blackwell discussed
Cameron's behavior with Perkins, asking Perkins what
he thought about Cameron s future at WVOL Perkins
said they could not tolerate his attitude any longer,
it was bad for employee morale, and he should be
terminated Blackwell expressed the view that Cameron
"does not know any better" but that he was maliciously
and purposely trying to "make a point," "to discredit
what we are trying to do here," and that he was "com-
pletely out of step " Perkins said he had been saying
that all along, that although he was good on the air,
Cameron did not cooperate with the workers, was not
trying to be an effective employee, and "we cannot
tolerate his insubordination " Blackwell said he would
call Respondent's attorney about it, because "they"
could not continue to allow him to make insulting state-
ments, to discredit the station constantly, and keep
the announcers constantly upset
The same day, Blackwell talked to an attorney of
Respondent, saying "this is the straw that broke the
camel's back" in relating the conduct of Cameron, that
the station needed more than just a good announcer,
and Cameron was trying to upset the small staff of
about 22 people He said he would recommend that
Cameron be discharged The attorney counseled that,
if that was his decision, he should "follow through
with it," if he were sure about his conduct Blackwell
repeated they could not continue to accept his insubordi-
nate and insulting remarks and conduct, or his "overall
attitude at the station " Blackwell then made the dis-
charge at the conference of December 20 as related
above
General Counsel belittles the extent and significance
of Cameron's conduct at the party by arguing that
Cameron was provoked into his long tirades on various
subjects throughout the party by a single remark of
" The facts as to the party are found from credited testimony of
Blackwell Perkins and Martin as corroborated in part by testimony
of Cameron and Hall Testimony of Cameron at variance with the
finding is not credited because his version of the events and talk
was clearly a partial story relating incidents as though they had occurred
without context which in itself makes them somewhat incredible In
addition his resort to profanity in testimony when he related his attempts
to get Blackwell to detail on the 20th his insubordinate conduct on
the 18th his admission that he frequently uses profanity in announcers
meetings and otherwise in his daily life and his very animated and
excited attitude on the stand when expounding his views on the black
revolution and his animosity toward white ownership of enterprises
employing blacks like WVOL as he had done it at the party convinces
me that most of his dialogue at the party was very opinionated given
in loud and often heated manner with repeated vulgar and profane
expressions and that his attitude toward Blackwell Perkins Mrs Black
well and Mrs Martin was very argumentative and openly disrespectful
all of which detracts from his general and specific credibility Aside
from his demeanor his credibility is further weakened by his attempts
to imply by his testimony that Blackwell might have been drunk at
his own party might have been rather loose in his mode of directing
a dance routine but the lack of corroboration for this testimony
even by Mitchell a coworker for the Union leads me to believe
that Cameron was using the age old ploy of a person guilty of reprehensi
ble conduct of trying to divert attention from his own conduct by
trying to focus attention on what he believes to have been the same
or worse conduct by others
Blackwell implying that Cameron 's father may have
reached a position of affluence and property by "graft "
However , this is a weak argument , for while it was
natural for Cameron to make an indignant and angry
denial of such a remark , whether it came from Hall
(as I have found ) or Blackwell , it hardly justifies his
later loud tirades interspersed with much profanity on
the black revolution , his general attack on white owner-
ship of WVOL which turned into specific personal
attacks on Blackwell and Perkins and their operation
of the station , as well as side insulting remarks in
contemptuous vein to the wives of Blackwell and Mar-
tin '" His remarks about the black revolution were
undoubtedly sincere and Blackwell agreed with him on
this by recognizing the existence and need for the revolu-
tion for the general advancement of all Negroes 19 How-
ever , Blackwell showed commendable restraint as the
host when he did no more than get a bit excited and
suggest that Cameron (with his limited experience) could
not tell him and Perkins how to run WVOL, and then
walked away from the continual tirade , even though
Cameron had been insulting and abusive toward his
wife Nevertheless , the detrimental effect of this open
and gross rudeness both to the host employer and his
wife upon the morale of staff members present, as
well as upon Blackwell ' s status before other guests
still present , was inevitable and could not have been
unnoticed by Blackwell Hence , the gross insubordina-
tion inherent in Cameron ' s conduct stands out, even
though he did not indulge in violence or the threat
thereof to an extent which might have induced Blackwell
to ask him to leave As a gentlemanly host , Blackwell
and his friend , Martin , were naturally constrained to
answer Cameron ' s tirades only by polite though firm
counterarguments , but the fact that Blackwell did not
throw him out of the party bodily does not reduce
or condone the flagrancy of his conduct, or prevent
Blackwell as the employer from imposing discipline for
it at a later and proper time and place Nor does the
delay of one full day before discharging Cameron indicate
any doubt by Blackwell as to the seriousness of his
conduct or the validity of it as the reason for discharge,
but rather that Blackwell was not acting in undue or
suspicious haste but only after review with Perkins
'" In making his statements on these subjects I find that Cameron
was not drunk but in full possession of his senses as there is no
credible proof that he or Blackwell was drunk Hence I must assume
that he made his insubordinate insulting and rude remarks deliberately
with full knowledge of their probable effect on both Blackwells both
Martins Hall Mitchell and other staff members and other guests
who may have heard them
i" Blackwell s patience and attempts to work with Cameron even
after the advent of the Union also appears from credited testimony
of Blackwell that after being hired Cameron at times became irritated
when people complained about his Afro hairdo chin beard and mustache
and his Nehru type jacket Blackwell told him people did not object
to this appearance but reminded him that we have an image to
project here and after that teed to capitalize on his mod clothing
and appearance in trying to advance the WVOL image by having
local newspapers use his photos and a writeup on him in special
articles He also had Cameron appear often at local charity and communi
ty functions with Weakley This projection of his personality was
apparently successful except that the newspaper would not print his
photos
ROUNSVILLE OF NASHVILLE, INC.
and in his own mind of all of Cameron's past conduct,
which included insubordinate conduct and evasion of
station rules and policy at least since November. He
also properly sought legal advice before acting, since
the Union's campaign and the representation case were
still pending. Cameron's undenied disparagement of
Blackwell before the announcers 'early in December,
followed by his similar ridicule of him and Perkins
at the Christmas party before staff members and commu-
nity leaders, as well as his admitted recent ridicule
of fellow announcers on the air, and the inevitable
effect of such conduct on the staff among themselves
and vis-a-vis the Employer, were clearly what both
officials had in mind when describing Cameron's conduct
as a "cancer of discontent (or dissent)" among the
employees. In light of these facts, I give no significant
weight to Perkins' query about Cameron's support of
the Union as a means "of tying management's hands,"
because he described this as a possible device whereby
Cameron might be trying to operate as he pleased at
WVOL without regard to rules, regulations, or station
policy. This, of course, was the lack of cooperation
and teamwork about which both officials were complain-
ing, and I conclude that Perkins was not criticizing
Cameron's adherence to the Union as such, but only
stating his suspicion that he was using that otherwise
protected conduct as a pretext for continuing and justify-
ing his insubordination; and Cameron confirmed this
as part of his purpose when he admitted "we are going
to get ours, and this is one way of doing it." This
clearly referred to his strong view that the present
Negro management was "old" and "antiquated" and
did not know how to run the station, implying that
it was time for younger Negroes to "take over." In
this context, I cannot view Perkins' remarks as indicating
his union adherence as such as a motive for the later
discharge, but only as a possible use of the Union
as a tool for ousting the present station management,
even taking it bodily out, of white ownership, as part
of the "black revolution." I have found no authority,
nor does General Counsel of the Union cite any, which
establishes this use of a labor organization by employees
adhering to it as a concerted, activity protected by the
Act.21 On the other hand, it is well settled that union
adherence or membership does not immunize an employ-
ee from discipline for insubordination or violation of
employer orders, rules, or regulations.21 I have consid-
ered the testimony of McKissack that near the end
of January 1969, after both Cameron and Mitchell were
out of Respondent's employment, but still engaging in
concerted activities with employees, that Perkins warned
him not to "get mixed up with" Cameron and Mitchell,
or let them influence him, because it was company
strategy to "clean house" and get rid or troublemakers
like Cameron, Mitchell, and Hall; and that if he wanted
full-time work he should "work along with me and
211 I make no finding that the Union as such was encouraging or
trying to aid Cameron or other employees who signed cards in any
basic endeavor to take over the business from Respondent
21 See fn 13, above, also Ferrell-Hicks Chevrolet, Inc , 142 NLRB
154, 156, and Lasko Metal Products, Inc., 148 NLRB 976
571
Blackwell." Accepting this testimony for the moment
as true, it must be noted that Perkins did not mention
the Union , its organizing campaign or the pending repre-
sentation case, even though these facts were long known
to Respondent and employees, but only spoke of Camer-
on, Mitchell, and Hall as "troublemakers." In light
of Cameron's insubordinate activity noted above, and
Mitchell's admitted serverance of employment with
Respondent because he was disappointed with Blackwell
as general manager and felt he could no longer work
with him , after threatening to have him ousted as general
manager, as found hereafter, there is a stronger inference
from Perkins' remarks that he was referring to Cameron's
insubordination toward the two officials and Mitchell's
admitted determination to have Blackwell ousted, when
calling both "troublemakers," than that he referred to
their prior concerted activities on,behalf of the employ-
ees.
Considering all the pertinent facts and circumstances
pro and con, the issue is a close one, but I am constrained
to conclude that Respondent has adduced cogent proof
indicating that Cameron was discharged for continual
in, subordination in his work, both by defying and evading
orders of management and on two occasions in December
openly defying, ridiculing, and insulting both Perkins
and Blackwell in circumstances well calculated to destroy
morale among the employees and hinder the efforts
of those officials to weld a harmonious team of station
management and employees in order to improve the
local "image " of WVOL and enhance its business,
all. with the ulterior motive, openly expressed, of first
causing the ouster of both officials (though they had
been brought in at the behest of the Negro staff) and
eventually taking over management of WVOL from
its white owners, which proof is adequate to rebut
the proof adduced by General Counsel tending to show
that Cameron was discharged for concerted activity
and adherence to the Union. I shall therefore grant
Respondent ' s motion to dismiss the complaint as regards
Cameron's discharge and failure of reinstatement, and
will recommend dismissal of the complaint to that extent.
D. The Termination of Augustus N. Mitchell
Mitchell was an old retainer , having worked from
1951 to about 1959 as transmitting engineer and assistant
chief engineer at Respondent ' s Louisville , Kentucky,
radio station , and from 1959 to his discharge in the,
same capacity of WVOL, under the immediate supervi-
sion of Chief Engineer Wayne B. Robinson . His experi-
ence in the electronic engineering field is unquestioned,
as he has long held a first-class FCC license as a radio
and telephone engineer. At the time of discharge on
January 24 , 1969, he was working the evening shift,
from 4:15 p.m . to 12:15 a.m.
I have found that Mitchell was a prominent spokesman
for the WVOL employees' in the negotiation and execu-
tion of the April 30, 1969, memorandum agreement,
that in October he questioned Blackwell about his adher-
ence to that agreement and indicated he was speaking
for the employees just like a union steward would,
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and on October -291 signed a union card. He was not
included in the unit of employees eligible to vote in
the election. While there,is no proof that, Respondent
knew of his union adherence in October, it is clear
from the above activities that in November Respondent
knew he was active in employee concerted activities.
This knowledge was confirmed and broadened by evi-
dence of his eavesdropping on a company official'conver-
sation and his discussion with Vice President Art Selley
on November 8. On that day Mitchell tapped in on
a telephone conversation on a private station line
between Chief Engineer Robinson and Executive Vice
President Ralph Johnson in Atlanta, Georgia. Mitchell
overheard-Robinson tell Johnson that "as far,as I can
find out" tMitchell is the one who brought the Union
in and was apparently one of the ringleaders. Mitchell
at once sought out Selley, who was at the station review-
ing the, 1969 budget, and told him that some people
thought he was the ringleader in bringing in the Union,
but he was not, that he "just went, along with what
the men wanted," and he hoped' there would be no
"problems.`116 reminded Selley, that in the April negoti-
ations he had recommended Selley as temporary station
general' manager. He said he wanted to explain why
the employees felt that they should have union represen-
tation, that it was because Blackwell had told them
he had "buried" the'memorandum agreerent, because
"it had been fulfilled," but they thought it had not
been fulfilled, so they thought thex needed some repre-
slentation. Selley replied he did not understand what
he meant by "buried." Mitchell said it was not, in
effect any more. Selley said he had never seen it,
so Mitchell got a ,copy and, at Selley's request, pointed
out certain provisions which he claimed had not been
fulfilled, but admitted that in most provisions it had
been fulfilled or was in process of fulfillment. Selley
replied that the agreement was not, fulfilled, in, some
respects, and was still in effect including the grievance
clause, and that Blackwell had no authority to "bury"
it. He still questioned whether the men should be upset
in feeling it was `-`buried," so Mitchell called in ' Ed
Hall, who also told Selley everyone thought it was,
"buried" by Blackwell. Selley insisted the agreement
was still in effect, and said he too hoped there would
be no problems,, and that as Mitchell had been, there
a long time, the men "look up to you," and Mitchell
could ",do a lot" by letting them know the agreement
was still in effect. In arguing tit'was "buried," Mitchell
complained "we cannot even,call Atlanta any more."
Selley replied "you know better than that," that as
an old employee he must have known it had been
company policy for years to let any employee call Mn
Rounsaville, Johnson, or Selley at Atlanta with the
knowledge of the station, manager if he could not settle
any dispute finally with the manager, and that Mitchell
could call Atlanta any time and Rounsaville'would listen'
to him as an old employee. He also told Mitchell that
he felt actions like calling in the Union or "disturbances"
could be avoided if management were aware of the
problems, and Mitchell could always call Atlanta with
the knowledge of the station manager.
Selley then said he wanted Mitchell completely sat-
isfied in. his own mind that the agreement was not
"buried,", so he took Mitchell in to see Blackwell.
Selley repeated to Blackwell that Mitchell said he, had
buried the agreement. Mitchell accused him of saying
it. Blackwell admitted he had said he would "bury"
it by putting it in his desk drawer, and repeated the
reasons he had given the men at the October 14 or
21 staff meeting, and insisted that management had
lived up to the agreement., Selley asked Mitchell if
he was satisfied and suggested they go through the
agreement again if he had any question whether Respond-
ent had not done, certain things or made a diligent
effort to do so. Mitchell replied, no, he was satisfied
and glad to know, that it was still in effect, that it
had been a ",play, on words the way he said it, and
it had me upset." Blackwell told, him the agreement
was "part, of the function of the station, part of our
environment, of what we are doing." Mitchell said'he
was satisfied.22 '
After a regular staff meeting on November 11, Black-.
well told Mitchell, Perkins, and Cameron in his office
that he had been trying to get raises for the employees,
which had been approved in the 1969 budget which
Selley had just reviewed at the station, but he now,
felt that he would be unable to get the raises because
the men had asked for union representation, and that
the, men had "hurt,themselves" by so,doing. Blackwell
also told Mitchell aside from the others that he felt
that the announcers' actions regarding a union were
none of Mitchell's business.23, Blackwell spoke a few
days after the Union's demand for bargaining, but before
the filing of the representation petition, yet his remarks
contained no further explanation (such as an explanation
of existing law, or ,legal advice) why the -employees'
choice of the Union would prevent, the raises. Hence,
his remarks were well calculated to advise the employees
that Respondent' would probably withhold the raises
already approved, because of'their,union activities, and
were thus coercive and violated Section 8(a)(1) of the
Act.
On December 5, Blackwell and Perkins called a special
meeting of the announcers to discuss rumors about
mass discharges, a sale- of the station , and a possible
strike or boycott by employees. Mitchell was present.
Perkins asked the men where they, heard the rumors,
and some of them'named Mitchell. He denied he circulat-
ed the rumors, blaming it on the announcers. Perkins
told him in the presence, of, Blackwell that it seemed
obvious that most of. the rumors found their way back
to him, and that he had no reason to interfere with
programing, that engineering was his area of responsibili-
ty, and he should stay in that.
At this meeting Mitchell told Blackwell that Selley
had him working at WVOL "to keep an -eye on what
you are' doing;" and had told him tie could call Selley
22 The above facts are found from credited testimony,of Mitchell,
Selley, Hall, and Blackwell Testimony of any of these witnesses at
variance therewith is not credited
21 This discussion is found from credited testimony of Mitchell and
Perkins, which is not specifically denied by Blackwell
ROUNSVILLE OF NASHVILLE, INC.
any time he wanted to. Blackwell replied, "Gus, you
can call Art Selley any time you want as long as you
let me know," and "as far as Atlanta having you here
to report, you are talking out of the top of your head. "24
On or before January 22, 1969, the announcers told
Mitchell they would meet with management on that
date to learn about shift changes, and feared they might
not like them. Mitchell told them that if they had trouble
about it and could not reach any agreement with manage-
ment, they should tell him and he would contact the
Atlanta office directly to give Respondent a chance
to settle the problem before any trouble ensued. At
that meeting, Perkins announced changes of schedules,
including the shift of Weakley from a morning to the
night schedule. Weakley at once called Mitchell, saying
he did not like the change. Mitchell talked to the other
announcers by telephone, learning that they were dis-
turbed mainly about Weakley's schedule change and
the fact that Perkins himself had taken over Weakley's
morning schedule. Mitchell called Union Attorney Bran-
stetter and explained, the problem, and was advised
to send a telegram to Atlanta about it.' Mitchell shortly
after noon sent a telegram to President Rounsaville
in Atlanta: "Advised by attorney Branstetter emergency
at WVOL. Need your help immediate attention suggest
Art Selley." After sending it Mitchell called Chief Engi-
neer Robinson, told him he thought the trouble at the
announcers' meeting was very serious, that the union
attorney had advised him to telegraph the home office
because of the possibility of a strike, so he sent it
in hope that some one from that office would come
to Nashville to straighten it out.
The Atlanta office contacted Blackwell 'on the 22nd,
read the telegram to him, and asked for an immediate
report. When Mitchell came to work, shortly after 4
p.m., Blackwell told him in the presence of Perkins
he had heard about the telegram, and that Atlanta wanted
a report on it at once. He asked Mitchell if he sent
it. Mitchell admitted he did, and recited its wording
at request of Blackwell. Blackwell asked why he had
sent it, and Mitchell replied the situation was such
that "the home office needed to know about it."'Black-
well asked why he felt that way, and Mitchell replied
that what he had heard about the' announcers' meeting
made him feel there would be a strike shortly, that
"things are really blowing up around here," and he
had been told by Selley that if something like that
happened, he should notify the home office, so he had
sent the telegram after talking to the union attorney.
Mitchell asked Blackwell to call Rounsaville or Selley
at Atlanta. Blackwell at first refused, then placed the
call but was unable to reach either official.
Blackwell then privately asked Perkins what he knew
about a strike. Perkins said he did not know, but had
heard about the telegram , and could only attribute it
to Weakley's dissatisfaction with his schedule change,
as the other announcers seemed satisfied with the other
changes. Blackwell also questioned Kilcrease about a
24 This discussion is found from uncontradicted testimony of Perkins
and Blackwell
573
strike, but he replied he knew nothing about it. Blackwell
then reported to Vice President Johnson in Atlanta about
Weakley's complaint, and that he had told Mitchell
about it, and "Mitchell had taken it on himself to
send the telegram," but had not discussed it with Black-
well, and that Perkins and Kilcrease knew nothing about
a 'strike, and Blackwell knew of no other problems
at WVOL other than the program changes. Johnson
told Blackwell to give Mitchell an oral reprimand for
notifying Atlanta without talking first to Blackwell, that
this was the proper procedure. He also directed Black-
well to explain to Weakley in presence of Perkins the
need for his change of shift. Blackwell then discussed
the situation with Respondent's attorneys in Washington
by telephone, and they advised the same procedure
as Johnson had outlined.
When Mitchell reported for work on the 23rd, Black-
well called him in and told him in the presence of
Perkins and Robinson that there would be no answer
to his telegram. Mitchell replied that he expected none.
Blackwell then told him that this was an official repri-
mand, that he had gone beyond his responsibility in
sending the telegram without going through normal chan-
nels, and that he must not do it again, that if he wanted
to communicate with the home office, the proper channel
was to contact his immediate superior, Robinson, and'
if it was serious enough to take to the home office,
Mitchell should bring it to Blackwell, and under, no
circumstances should he send any communication to
the home office without letting Blackwell know about
it first. Mitchell argued that Selley had told him to
contact Atlanta directly if the situation was bad enough.
Blackwell replied that Selley told him to do it "in
my presence." Mitchell argued, "I feel something has
to, be done, this thing is getting out of hand." Blackwell
asked what it was, saying WVOL had a program' director,
that he and the announcers were part of Blackwell's
staff, and that "we made a programming decision,"
but that Mitchell'was in engineering, that was his area
of responsibility and the job for which he was being
paid, and if he wanted to be part of the WVOL team
he must stay in his area of work, and stay out of
programing, for programing changes "have nothing to
do with you." Mitchell replied in very positive fashion
"that is impossible, I. could not stay back in engineering
and out of the announcers affairs, because you cannot
represent them, you can only represent management;
I am their spokesman." Blackwell then repeated that
this was an official reprimand, that he did not want
Mitchell to communicate with Atlanta without first check-
ing with Blackwell, and that "if it should happen again,
drastic action will be taken," that "I will have to termi-
nate you." Mitchell then angrily said, "You are threaten-
ing me , I will take no threats of this kind." Blackwell
replied he was not threatening him, but "this is a warn-
ing," and asked if Mitchell wanted him to repeat what
he had said. Mitchell said angrily that would not be
necessary; and added, "I do not like your procedure:"
Blackwell then turned toy Weakley who had come
into the office during the latter part of the heated discus-
sion and told him he had to work the night shift. Weakley
'574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he would, but did not like it. Mitchell told Weakley,
"You did exactly what the attorney said," and then
jumped up, walked to Blackwell's desk, shook his finger
at him and said angrily, "I can tell you one thing
before your witness, you will not be sitting in that
chair much longer as general manager." Blackwell asked
if that was a threat, and Mitchell replied, "No, that
is a warning," repeated the same statement, and walked
Out. 2.1
Mitchell went to the engineering department with
Robinson, where they talked about the meeting Mitchell
told Robinson "this is it," and that he was going to
spend 2 weeks in St. Louis. Robinson said he was
sorry about it, that "this had nothing to do with engineer-
ing, we got along fine here." Mitchell asked him if
he would give him a recommendation if he decided
to- leave, and Robinson replied that since his engineering
ability wa's not in question, he saw no reason why
he should not give him one if he wanted it. Mitchell
said it would be difficult for him to continue working
at WVOL under the circumstances. Robinson then typed
and signed a letter reciting Mitchell's experience, saying
that he had performed his engineering duties well, recom-
mending his engineering ability highly, and ending, "His
decision to leave our employment is personal and has
nothing to do with engineering." In giving him the
letter, Robinson asked Mitchell if he would work that
night, and Mitchell said he would not embarrass Robin-
son, as he, did not have anyone to work the night
shift, so "I will go ahead and work tonight," as a
"fair exchange" for the letter. Mitchell went to work
and Robinson went home.
On the morning of January 24, Mitchell came to
the station and asked Blackwell to call Atlanta about
the telegram, saying he wanted to "verify" the telegram
to "clear this thing up," and that he "hated to be
made a fool of." Blackwell replied that he did not
have time. Nothing was said by either about, whether
Mitchell would or could work that night. However,
when Robinson came in during the early afternoon,
Blackwell asked when Mitchell was due to report, and
Robinson said, 4:15 p.m. About 4:1'5 and 5:15 p.m.,
Blackwell asked him if Mitchell had come in, and Robin-
son said he had not, questioning whether or not Mitchell
had quit. Blackwell said the last time, "We 'cannot
have this." He had a termination letter prepared, which
notified Mitchell of his discharge as of 5:30 p.m. that
day, asked him to turn station keys and property over
to Robinson, and remove his FCC license. He gave
the letter to Robinson to hand to Mitchell if he came
in. Robinson worked the whole night shift, as Mitchell
never came in. He reported this late in the shift to
Blackwell, who told him to leave the termination letter
2i The facts as to the events of January 22 and 23 are found from
a composite of, credible and mutually corroborative testimony of Black-
well, Perkins, and Robinson, as corroborated in part by testimony
of Mitchell and Weakley, plus some documentary proof Testimony
of Mitchell and Weakley at variance therewith is not credited, because
Weakley heard only a small portion of the discharge talk, and Mitchell's
version of the events reflect only a fragmentary and self-serving version
of the whole course of events
in the office for Blackwell to mail out. Blackwell sent
it out by registered mail early on January 25.
Late in the afternoon of the 25th, Mitchell came
to the station, turned over his keys to Robinson, and
gathered up his, license and personal belongings. In
talking to Robinson, he said, he could no longer work
for a man like Blackwell, who had been a big disappoint-
ment to Mitchell as general manager, because when
he first came to WVOL Mitchell had high hopes that
he was the man for the job, but he had proven he
was not. Robinson replied that he was sorry the situation
had ended as it did. He did not mention the termination
letter or show a copy to Mitchell. Mitchell received
the original in the mail on Monday, January 27.21,
It is clear from the record that ever since April
1968, Mitchell had openly supported the announcers
in. their disputes with Respondent, he reiterated this
support to Selley on November 8, and in his heated
quarrel with Blackwell on January 23 made it clear
that he would continue to support and act for them
in their concerted and union activities, contrary to Black-
well's views and directions. It is also clear that his
telegram of January 22 to Respondent was an instance
of legitimate and protected concerted activity on their
behalf, as it was sent with their knowledge and consent
and after advice from the Union, and that the office
confrontation of the 23rd arose directly from that protect-
ed activity. General Counsel argues that Respondent
in effect discharged Mitchell on January ,24 for alleged
insubordination consisting of his insistence upon speak-
ing and acting for the employees without prior clearance
with Blackwell, contrary to the.latter's orders, and that
such conduct was not insubordination because Mitchell's
indignant refusal to cease the concerted activities was
provoked by Blackwell's improper reprimand for taking
such action. The trouble with this contention is that
it deals only with Respondent's alternative defense of
discharge for cause, and completely ignores the final
outcome of the confrontation of the 23rd and Mitchell's
significant actions thereafter.
First of all, Blackwell did not treat Mitchell's outburst
on the 23rd about his concerted activity as insubordina-
tion warranting discharge, for when' he indicated he
wanted Mitchell to stay at his engineering work and
away from the announcers' problems,,Ihe explained his
reason for the demand, i.e., the divergent work of
the programing people and the engineering department;
and when Mitchell vigorously' dissented and gave his
reasons for continuing to represent the announcers,
Blackwell did not further question his position, but
repeated the reprimand, as ordered by Respondent, for
the limited reason that he went to top management
directly, without first appealing to his immediate superi-
ors and then appealing to Atlanta only, with the knowl-
edge of Blackwell.. Credited testimony of Selley plus
the grievance clause in the April 30 agreement makes
21' The events of the 23rd and following dates are found from credited
and mutually corroborative testimony of Blackwell, Robinson, Perkins,
and documentary proof, as corroborated by admissions of Mitchell,
whose testimony in conflict therewith is not credited
ROUNSVILLE OF NASHVILLE, INC.
it clear that the procedure which Mitchell had ignored
had been company policy for over 20 years and had
been incorporated in the memorandum agreement with
the consent of the announcers and Mitchell. I cannot
agree with Mitchell or General Counsel that Respondent
through Blackwell had openly dispensed with'this proce-
dure after he became general manager , in view of Selley's
explanation and assurances to Mitchell on November
8 found above, Blackwell's attempts twice to contact
Atlanta at the request of Mitchell, and his announcement
to Mitchell that the reprimand was for going over his
head about a grievance, in violation of that policy.
Further, Blackwell's warning at that time that a repetition
of the offense would bring discharge was clear notice
to Mitchell that he was only being reprimanded, not
fired, at that time. I must also find that Mitchell was
of the same opinion when he left that interview, for
his ensuing remarks to Robinson indicated that he was
ready to quit immediately because of dissatisfaction
with Blackwell's views and procedure but was willing
to work only that night to help out Robinson, with
whom he had no differences. I find that Robinson had
the same impression, when he agreed to give Mitchell
the letter of recommendation in which he made it plain
that Mitchell was making the decision to quit Respondent
for personal reasons; Mitchell did not object to the
wording of the recommendation. Further, his request
to Blackwell the' next morning to contact Atlanta is
consistent only with the conclusion that he felt he was
still an employee, for his request to have Blackwell
make the call conforms'to the longstanding company
policy on grievances and its expression in the April
agreement;27 Mitchell was intelligent enough to know
that he would not have been required to ask Blackwell's
permission to contact Atlanta, or to have him make
the call, if Mitchell were no longer an employee. Again,
Blackwell still considered him an employee on the }24th
when he inquired at least three times of Robinson about
his reporting time and whether he came to work, 'and
only decided to discharge him and prepared the discharge
letter after learning he had not reported for work at
all. Finally, since Mitchell did not receive the discharge
letter until January 27, and, there is no proof that his
status or nonstatus as an employee was discussed with
Blackwell on the 24th or any time later, his voluntary
appearance at the station on the 25th to clear out his
personal effects, with the remark to Robinson that he
could no longer work for Blackwell because he had
not measured up to Mitchell's hopes, confirms that
he was carrying out, the last acts of a voluntary quit
for that reason. These facts and circumstances affort
cogent proof of a voluntary termination of employment
" In making this finding, I place no reliance upon an alleged oral
agreement between Rounsaville and Mitchell at an "open house:' at
WVOL 10 years before , when Rounsaville is alleged to have told
Mitchell that if he remained loyal to Rounsaville , Rounsaville could
be loyal to him, and Mitchell could call Rounsaville anytime he had
trouble This was patently not a formal agreement by Rounsaville,
but only an assurance made in casual conversation that his door was
open to any employee with troubles, and is not inconsistent with the
policy of taking problems to top management only through normal
channels in the management structure
'575
on or before the start of his shift on January 24 which
is adequate to rebut the contention of a discharge for
discriminatory reasons on or after that date.2X I therefore
conclude that General Counsel has failed to sustain
the requisite burden of proving from all the pertinent
evidence that Respondent discharged Mitchell on January
24 because of his protected activities.
In view of this conclusion, I find it unnecessary to
consider or determine the alternate issue as to the reason
for and validity of the termination letter of January
24, except to note that its immediate motivation was
apparently Mitchell's failure to report for work that
day without any prior notice to Robinson or Blackwell.
This was in effect an unexplained absence without leave,
which was a serious matter in the engineering department
consisting only of Robinson and Mitchell. In such circum-
stances it is mere speculation to say that a termination
stated ,as effective at 5:30 p.m. on the 24th, useless
though it may have been in view of Mitchell's unan-
nounced failure to report and removal of his effects
before he got the letter, was based on ,a purported
"insubordination" on January 23, particularly where
Mitchell was allowed to work the night of the 23rd,
and Blackwell clearly expected him to work on the
24th.
On all the pertinent facts and circumstances and for
the reasons stated above, I grant Respondent's motion
to dismiss the complaint as to Mitchell's discharge and
failure of reinstatement, and shall recommend that the
complaint be dismissed to that extent.
E. The Change of Schedule of Weakley
Thomas D. Weakley was hired by the white managers
of WVOL sometime prior to April 1968, as a part-
time newscaster , but was made a full-time announcer
by Blackwell in August 1968, at a salary of $90 per
week , with Program Director Perkins as his immediate
supervisor . 29 In the latter status, he was on the air
in the midday shift , from 11 a.m. to 3 p.m. daily,
although he reported at 8 a.m . to do production work
on tapes for commercials and other spot announcements
until 10 a.m.
Weakley engaged in the strike of announcers early
in 1968 which resulted in the execution of the agreement
of April 30 , and signed a union authorization card on
October 29, 1968, but there is no credible proof, that
Respondent knew directly or indirectly of the latter
act.
After Blackwell and Perkins became general manager
and program director in July and September 1968, respec-
tively, they began to review and evaluate station pro-
Z" General Counsel does not contend that Blackwell's remarks to
Mitchell amounted to a constructive discharge on the 23rd or 24th
21 Blackwell did this at the suggestion of the white program director
who preceded Perkins and who had recommended that Weakley might
have greater potential as an announcer if he gave up his other job
and worked full time at WVOL Blackwell suggested this to Weakley
when hiring him full time, saying he now had a chance to develop
and make a place for himself in radio Weakley gave up the other
job
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grams and the work of each announcer in efforts to
improve their performance and the " image " of WVOL
on the air so as to increase its popularity and broaden
its audience with the goal of making it No. I in the
Nashville area. Blackwell directed Perkins to tighten
up on the "program sound ." From the outset both
noticed that Weakley was not effective on the air, in
that he spoke very rapidly and indistinctly when reading
news, with a thin and wheezing voice, so that it was
hard to understand his broadcasts . His commercial tapes
sounded amateurish . In September and October, Perkins
audited him on the air and listened to some of his
tapes, and told Blackwell be doubted if he could ever
become a good announcer. However , both officials talked
to him about it , mentioning his problems in making
tapes and speaking clearly on the air, suggesting that
he make practice tapes and play them back to himself,
in order to learn his weaknesses and correct them and
that he practice announcing by reading aloud to himself.
Perkins gave him pointers on enunciation , diction, and
breath control , and often assisted him in making tapes
and playing them back to note weaknesses in these
areas and suggest corrections . In one of these sessions,
Perkins noticed that he wheezed , and expressed the
view that his trouble might be physical , asking him
if he had adenoids, because he appeared to have some
throat obstruction which made his tones nasal and pre-
vented him from projecting a good sound on the air.
Weakley admitted he had adenoids but that he had
not talked to a doctor about it . On another occasion,
either in an announcers ' meeting or privately , Blackwell
mentioned the possibility of adenoids and suggested
an operation might help his condition , but Weakley
indignantly rejected the suggestion . Blackwell told him
that if he wanted to stay in radio , he would have
to practice and train himself , and also have his physical
trouble corrected . In this period , Cameron also noticed
his speaking difficulty and , when he could not understand
him on the air, would tell him to "open your mouth,
get all that mush out of your mouth." When Edward
Hall, Sr ., was made news director in late 1968, Blackwell
shifted him to an early morning shift as announcer
which overlapped Weakley's schedule, so that Hall could'
read the news in place of Weakley. Due to his inability
to make good tapes, Weakley was able to make accepta-
ble commercials for only one theatre advertiser during
the first 4 months of his morning schedule, and spent
most of his production time making only practice tapes.
Weakley's performance did not improve , so on Octo-
ber 22 Perkins called him in and told him he had 30
days in which to find another job, because he could
not keep up with the demands of his job at WVOL,
and that Perkins and Blackwell would help him find
a job where he might make more money . Blackwell
also said that if Weakley still liked radio, he could
use the WVOL facilities on weekends to practice
announcing , and when he felt that he could handle
the job properly he could reapply at WVOL and they
would consider him for a job. Weakley signed up with
the Union on October 29, and solicited other announcers
and Mitchell to do the same . Beforehand he had told
the other announcers of his notice, and on October
28 or 29 Cameron interceded for Weakley by asking
Blackwell to rescind that notice, saying it was unfair
because his termination would occur just before Christ-
mas and would be hard on him and his wife and two
children. Blackwell replied that he did not see how
he could keep Weakley much longer because he could
not handle newscasts properly. Cameron admitted Weak-
ley's performance on the air was not mature, but argued
that he should be given a chance to improve, and that
Cameron would work with him to help him improve.
At a regular staff meeting on November 11, Blackwell
mentioned the recent demand of the Union, and said
he felt the employees would hurt themselves by seeking
union membership. At the announcers' meeting following
it, in which Blackwell asked why they wanted union'
representation, he also asked if, they knew what they
were doing in joining the Union, and stated his feeling
that some announcers would not meet union qualifica-
tions for their jobs, and that Weakley would be the
"first to go"; he told Weakley directly that he was
the weakest announcer at WVOL, that he did not seem
to improve, that he could not broadcast news or "cut
commercials," and Blackwell did not know what he
could do with him, which was unfortunate because
he knew Weakley liked radio, but that the profession
was more demanding than ever before; he also expressed
the opinion that Weakley could not get a job in radio
anywhere else, and was lucky to be with WVOL. The
announcers argued for retention of Weakley to give
him another chance, citing the same hardship reasons
and making the same offers of assistance that Cameron
had put forth. Blackwell said that it was against his
better judgment to retain him, but their offer was the
type of team spirit and cooperation that WVOL needed,
so he would let Weakley remain until January 1, after
which he would reevaluate his performance to decide
if he should be retained.
In November and December, both supervisors contin-
ued to watch Weakley's performance, hoping he would
improve with help from the other announcers. Perkins
continued to give him pointers about enunciation, diction,
and breath control, and, Cameron also make specific
suggestions. On occasion Blackwell himself suggested
that Weakley read aloud and make tapes in the studio
for practice. Blackwell also tried to help him in another
way: After he was given a full-time job, Weakley had
asked Perkins for a raise, but Blackwell had refused
it on the ground that his performance did not merit
it. After Blackwell rescinded his 30-day termination
notice on the promise of the announcers to help him,
he also thought a raise might give Weakley added incen-
tive to improve his work. Perkins did not agree with
this, but shortly before December 1 Blackwell told Weak-
ley that he was getting a $10 raise which would be
in his next pay emvelope which came December 1.
This put Weakley's pay at $100 a week, the same
as all other announcers. When telling him about it,
Blackwell said it was an "incentive raise, it is up to
you to do a good job, and now you can really get
with it." In view of these circumstances of the wage
ROUNSVILLE OF NASHVILLE, INC.
raise, I find no substantial proof of coercive purpose
or effect in this action; or that Respondent violated
the Act thereby, and I hereby grant Respondent's motion
to dismiss paragraph 12 of the complaint relating thereto,
and will recommend that the complaint be dismissed
to that extent. Nor do I find any violation of the Act
in Blackwell's vague opinion to, the announcers on
November 11 that the employees would hurt themselves
by seeking union membership, and that Weakley might
lose his job for failure to meet union standards, for
in the context of Blackwell's explanation of Weakley's
deficiencies, which were known to all the announcers,`
his remarks were clearly legitimate expressions of opin-
ion about possible consequences of advent of the Union
in the station.. ' • -
'Management noticed some improvement in Weakley's
performance on the air' in December, but his diction
was still poor so that he was hard to understand when
reading the news. -His production -work on tapes did
not improve, however, which created-a serious problem
because in the weeks before Christmas there was
increased production and use of commercial tapes, and
Weakley's inability to make them put an unusual load
of that work on other announcers. '
Shortly after. January 1, 1969, Blackwell and Perkins
made a routine evaluation of the performance of each
announcer, and then called Weakley in,for,an interview,
advising him of the continuance. of his weaknesses.
When Weakley complained that he was given no chance,
to make commercials, Blackwell explained that business-
men paid for commercial tapes, and the announcer who
made them was in effect their. salesman on the air,
but that Weakley had, not improved enough through
practice to make good commercials which could be
understood: In, arguing about this, Weakley wheezed
when talking, and Perkins.,commented that it must, be
adenoid trouble. Blackwell agreed that he might have
such trouble, and asked if he had seen a doctor, that
an operation might help him. Weakley got angry, said
he had not' seen a doctor, he 'would not spend money
for an operation, and that he could do commercials
just as well as anyone. '
After auditing. Weakley's tapes and broadcasts for
the next 2 weeks, both officials decided about January,
16 that they would have to move Weakley from the
morning to a night schedule, that Perkins would take
his -place on the morning shift to.'handle most of the
production load beforehand and then make the, news-
casts, and that McKissack, a part-time newscaster, would
work the night shift with .Weakley to handle the news,
while Weakley played records; this shift would' still
enable Weakley to gain experience and develop his
own performance, while,, placing ', him in , a time slot
with a-smaller audience where his lack of ability would
not be as noticeable or affect WVOL as much commer=
cially. When notified of, the change on January 21 or
22, Weakley -protested privately.,to Perkins, who appar-
ently suggested 'he might go on, a 6 a.m. to 10 a.m.
shift, where a younger than was preferable, and which
would permit Weakley to continue"his "record hops."
Weakley'indicated that would be agreeable to him. At
577
a special meeting on ,January 22,, Perkins announced
shift changes, including that of Weakley,, to all the
announcers, the changes to be effective February 3,
1969. Weakley protested his change, arguing that at
his present pay and his "rating" where he was "tied
for No. 3," he did, not see why, he should go back
to the night shift. Perkins then took him to see Blackwell,
where Weakley made the same protest. Blackwell replied
that he could not put him on in daytime, because he
needed a man on that -shift who could "really cut the
mustard," meaning make good commercials and read
the news clearly,. and that was a full-time job for a
"top" man. He then asked Weakley if he would "work
with us." Weakley said he would but complained that
a return to a night job was going backwards, not ahead.
Blackwell said the change was unfortunate but necessary
for the best interests of the station and the community,
and that Weakley was being placed where WVOL could
best use him and still get back its investment in him.
Weakley `asked how he could handle his night record
"hops," while working at night .31' Blackwell replied that
he knew Weakley needed the extra, money, and he
wanted him to handle the "hops," and suggested that
when he wanted time off for that,-he should tell Perkins,
who would have one Rick Murray, a part-time "combo"
man, take his place, as he did for other announcers,
but that Respondent could not pay Weakley for that
time off, only the man actually on duty. Blackwell
said this was the way it would have to be, and asked
Weakley if he understood clearly that he would have
to work nights, and would "work with us." Weakley
said he would, but did not like it.
Following this meeting , Perkins asked Weakley pri-
vately if he was going 'to_ "strike." Weakley said he
was not, but could not prevent Mitchell from doing
anything he wanted to do. -Perkins asked Weskley to
go back and try to talk to Mitchell. Weakley shortly
asked Mitchell privately if the employees would strike,
and Mitchell replied that they would not, but "we are
going to try to get Blackwell out as general manager."
Since February • 3, Weakley has continued to work
the night shift as a disc jockey only, with McKissack
doing the .newscasts; he has done no commercial tapes,
with the exception of one which he did without assign-
ment to it by Respondent, in order to help out another
disc jockey.31 .
3'! While working days, Weakley had developed an additional source
of iicome from acting' as master of, ceremonies at "record hops"
on weekends and at night
",The above facts are found from credited and mutually corroborative
testimony of Blackwell and Perkins, and documentary evidence, as
supported in part by admissions of Cameron and Weakley Testimony
of Weakley at variance' therewith is not credited, because on most
vital points it is clear that Weakley told only a fragmented and disconnect-
ed story, his recollection of important dates was vague , he contradicted
himself on the gist of certain conversations with Perkins and Blackwell,
and his -demeanor and voice output on the stand, as well as my own
audition of certain commercial tapes which he'admitted were his produc-
tion, convinces me that he had'noticeable difficulty in ordinary speech,
as well, as a thin, rather high voice, which was noticeably lacking
in, the- carrying power inherent in a normal masculine voice which
projects sounds in the middle-range and bass voice registers
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent further violated Section 8(a)(1)
of the Act by Perkins' query of Weakley on January
22 about whether he would strike, following his patent
dissatisfaction with the decision to put him on night
shift, because this query was in the pattern of similar
coercive inquiries by Perkins found herein.
During the week of January 20, Weakly attended
a private meeting at Cameron's home with McKissack
and Mitchell to discuss the progress of the union cam-
paign , contract demands, and the discharge of Cameron.
There is no proof that Respondent had direct knowledge
of this meeting . but shortly after it Perkins heard from
announcer Kilcrease about this and other secret meetings
at Cameron's house, at which the four were reported
to be working together in a conspiracy to get rid of
him and Blackwell. Perkins had several discussions about
this with McKissack which will be considered in my
analysis of McKissack's work-hour reduction. As a result
of these rumors and discussions, on February 3 Weakley
and McKissack were summoned to a conference with
Perkins and Blackwell, in which Perkins told both he
"wanted to clear the air with Blackwell, find out if
we were going to get down to business and do a job,
and have a topnotch station or not." Perkins said he
had heard both had been at Cameron's house plotting
a conspiracy against him and Blackwell, and asked
McKissack what he had talked to Cameron about outside
the station on a previous occasion. Both men denied
any conspiracy, and McKissack explained he had talked
to Cameron near the station about a record hop. Weakley
said he did not know what the officials were talking
about, but that he was "going to do my thing, and
sock it to them on night time." At Perkins' request,
McKissack gave Blackwell the same explanations about
prior talks with Cameron and Weakley that he had
made to Perkins on February 1, as found hereafter.
After some discussion with McKissack about full-time
work, which will be analyzed hereafter, Blackwell talked
to Weakley about his "bitter" attitude toward Blackwell.
Weakley said he did not dislike Blackwell but resented
the way Blackwell had ordered him to work at night,
indicating he thought he had been ordered to work
at night "or else." Blackwell asked if Weakley would
try to do commercials, and Weakley said he would.
Blackwell said some commercials had been assigned
to him, and "I want you to work on them. " 32 It is
clear from testimony of Cameron, McKissack, and
Weakley that in January the three and Mitchell had
several private discussions at Cameron's house about
the Union, its campaign, contract demands, the discharg-
es of Cameron and Mitchell, and filing of proceedings
with the Board, and Weakley also had several talks
with Cameron outside the station, but Weakley and
McKissack denied the meeting activities when ques-
tioned by Perkins. I conclude that Perkins' interrogations
on these subjects constituted coercive queries about
their concerted activities, and that Perkins' prefatory
statement of getting information about these meetings
32 This conference is found from credited and mutually corroborative
testimony of Perkins , Blackwell , Weakley, and McKissack
created the impression that Respondent was maintaining
some sort of surveillance of employees' concerted or
union activities, and that both the queries and remarks
were coercive and violated Section 8(a)(1) of the Act,
like Perkins' similar inquiries of each man previously.
General Counsel projects a picture of discrimination
against Weakley from (1) the written confirmation of
the 30-day oral termination, which was issued the day
after Blackwell got the Union's demand, (2) the with-
drawal of the notice only after a united protest by
the announcers on Weakley's behalf coupled with an
unexpected wage raise shortly after, which he calls
in combination a "sugar" approach, and (3) a subtle
attempt to get rid of Weakley by a series of discussions
with and announcements about him resulting in the
"backward" change of shift, all designed to make him
quit, which Respondent settled on rather than a brazen
and outright discharge while the union campaign and
Board representations proceedings were pending and
Weakley was improving in his night job, but which
left the way open for a later discharge. This last circum-
stance is no more than outright speculation, in light
of the salient fact that Weakley did not quit but is
still employed at the night-time job, where he is still
doing only limited work as a disc jockey (though paid
the same as other announcers), which is consistent with
the fact that he is still plagued with an apparent vocal
defect, and the lack of substantial proof that his recent
performance has improved on the air. The November
8 confirmation of the oral termination notice is of no
significance, because before it was actually sent Weakley
and the announcer group reacted promptly to the earlier
oral notice, and Blackwell responded favorable to the
announcers' promises to help Weakley by giving him
a second chance, both to help him and in recognition
of the announcers' team spirit. Such lenient treatment
of a known participant in past concerted activities mili-
tates against any inference of discrimination. Nor can
I view such interest in the future of Weakley and WVOL
as a reluctant or resentful retreat before the announcers'
concerted action in favor of later and more drastic
action, because although he came to WVOL as a raw
recruit with no prior radio experience (as he admitted)
and he has had continual difficulty in training himself
to meet the exacting requirements of a good radio
announcer, Respondent has still continued to bear with
his infirmities, including the physical one which he refus-
es to try to correct or eliminate, by working with him
constantly. In face of these circumstances, the factors
relied on by General Counsel raise no more than a
suspicion that Respondent has been acting pursuant
to a dark and devious plan to get rid of him at some
future but more propitious time.
General Counsel's reliance on the alleged Hooper
rating of December 1968, as evidence of Weakley's
excellent performance, is misplaced. That rating listed
him as tied for No. 3 rating with two other stations
(out of 13 checked) for his midday shift. While Hooper
ratings have a business significance for radio stations
because advertisers rely on them in requesting a specific
ROUNSVILLE OF NASHVILLE, INC.
time of day or announcer for presentation of their radio
commercials, and Blackwell admits he did not consider
this rating or the January issue before shifting Weakley,
its value in appraising the shift becomes insignificant
in light of Selley's credible testimony that: the monthly
Hooper rating is a special one of slight significance
or value as compared to the PULSE survey on which
Respondent usually relies, because the usual Hooper
survey is based on a 2-month sampling of the reaction
of listening audiences, a more reliable time-spread, and
the full Hooper rating for the period including the shift
changes did not come out until March 1969. Further,
the Hooper rating is based on telephone interviews,
which do not disclose whether the person or family
interviewed is Negro or white, so that its ratings are
not adjusted for the proportion of Negro or white persons
interviewed. Thus, it is of much less value to WVOL
in appraising its announcers' reception in the Negro
community than the PULSE surveys which are based
on personal interviews in the home and take into account
whether the family is Negro or white, reactions by
age groups and by women and children separately. The
PULSE survey for a monthly period between November
13 and December 13, 1968, indicates that WVOL had
its greatest penetration in the home in the 6 a.m. to
10 a.m. period, about 40 percent more than in the
midday period; and it was first of 13 local stations
listed in number of males listening to it in the early
morning period, but did not reach as many adults in
the midday period. The record also shows that when
Weakley worked the midday period, Reverend Morgan,
an experienced announcer who was also a minister and
former gospel singer with a very good radio voice and
diction, was on the air in the hour before Weakley,
so that his output probably aided Weakley's rating.
In addition, even under the limited Hooper rating cited
by Weakley, both Kilcrease and Cameron had better
ratings for their evening and night periods than Weakley
for his, and Respondent's testimony makes it clear that
both men had experience and also far better "sound
projection" on the air. These facts clearly indicate that
Weakley's apparent high rating in the midday period
is questionable in itself and, if accurate, was in some
measure due to factors besides his own performance.
Nor can I see substantial indication of discrimination
in Respondent's failure to get rid of Weakley when
it early discovered his vocal problem, or in its reliance
on that inadequacy when it changed his shift. Rather,
the facts that Perkins knew about it as early as September
1968, that both officials at various times suggested resort
to medical help for its correction or elimination, and
Blackwell still kept him at work even after he refused
to do anything about it, portray more of a sincere
and sympathetic desire to keep him on and continue
to help him, with the aid of other announcers, to train
himself and overcome the physical defect, particularly
where he apparently wanted to remain in radio, than
a desire to get rid of him. They show that both officials
recognized his determination to succeed in radio, and
by retaining and working with him decided to gamble
that his determination might help him overcome his
579
inadequacies.33 In all this action, the outstanding picture
is that of two older Negro supervisors trying their best
to help along a younger member of their own race
with Respondent's approval, a broad circumstance which
far outweighs the technical and speculative arguments
of the General Counsel.
On all the pertinent facts and circumstances I conclude
that, while certain remarks and coercive conduct by
Respondent found elsewhere herein indicate its union
animus and tend to make the issue as to Weakley
a close one, Respondent has adduced cogent proof indi-
cating that its treatment of Weakley was based solely
on economic motives and a sincere desire to help him
improve his own position despite his infirmities, which
is adequate to rebut the proof adduced by General
Counsel which at most points toward discrimination,
and that General Counsel has failed to sustain the ulti-
mate burden of substantial proof on the entire record
that Weakley's change of shift had a discriminatory
motivation.
I hence grant Respondent's motion to dismiss the
complaint insofar as it charges discrimination against
Weakley, and will recommend that the complaint be
dismissed to that extent.
F. The Alleged Reduction of Hours of McKissack
Paul McKissack was hired at WVOL on August 28,
1968, as a part-time newsman to assist announcer Hall
on the afternoon shift , working a minimum of 18 hours
a week. Blackwell picked him from five applicants for
on-the-job training in the news department because he
had a good resonant voice, as part of Blackwell ' s efforts
to build that department into a paying proposition. His
first duties were to drive the station automobile, known
as the "new cruiser," around the Nashville area between
3 and 6 p . m. to cover traffic accidents and other city
incidents, 6 days a week . He signed a union authorization
card on October 29, 1968 , was subjected to coercive
interrogation by Perkins about his union sentiments on
December 2, and indicated his prounion sentiments to
Blackwell on December 7, as found above . He also
discussed the Union privately with Weakley and Camer-
on (after the latter ' s discharge ) outside the station several
times, and attended meetings at Cameron's home as
found elsewhere.
After his initial assignment , Blackwell shifted McKis-
sack around as announcer and news gatherer between
the morning , afternnon, and evening shifts, as needed,
while he was making program changes in his effort
to improve the station "image"; during the changes
McKissack worked irregular hours , between 18 to 30
per week , in November and December , with only one
43-hour week which included overtime . Blackwell also
encouraged him to take courses in journalism to educate
himself for a full-time news job. About the end of
33 Aside from his physical problems, Weakley admitted that his prior
employment had been as salesman and stock clerk in stores in two
other cities in Tennessee, but his only radio experience had been
limited to a 4- to 5-month stint giving 5-minute weather reports from
a radio station in Indiana
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December, McKissack asked Blackwell for full-time
work, and the latter indicated the news department
could not afford it, because it was not paying for itself
yet, but suggested McKissack might try to find a paying
sponsor for the regular newscasts, and offered McKis-
sack a job in the sales department for this purpose,
so he could earn more money than as a newscaster.
McKissack turned down the offer.
In January 1969, McKissack's work hours continued
to very between about 24 and 30 per week. On January
28, in a private talk with McKissack, Perkins mentioned
rumors that McKissack had been meeting with Cameron,
Mitchell, and Weakley at Cameron's home, and that
the four were plotting a conspiracy to get rid of Perkins
and Blackwell. Perkins told him that "at this point
in the game," as a younger staff member learning the
work, he "should not get mixed up in anyone else's
problems that have been created before you came here,"
but that he should "look out for yourself" and continue
to improve his newscasting. McKissack asked what this
meant, and Perkins replied. "Don't let yourself get
mixed up with Mitchell and Cameron, don't let them
influence you, I would hate to see you lose your job
and be out of radio." McKissack said he would not
let anyone influence him. Perkins also said he and Black-
well had been talking about putting McKissack on as
full-time employee with full benefits, on the night sched-
ule, from 7 p.m. to midnight, at $100 per week, 5
nights a week, and that if he got "this deal" for McKis-
sack the latter would have to "work along with me
and Blackwell." Perkins said he would check on this
further and let McKissack know, but "I think the dream
has come true."
On January 31, Perkins approached McKissack while
at work and told him again to be careful, not to let
himself get caught in anyone else's problems, and not
work in "this conspiracy thing." He repeated that if
he gave McKissack full-time work he would have to
"work along with me and Blackwell," adding, "I think
I can put a lot of faith in you, do not let me down."
When'McKissack came to work on February 1, he
asked Perkins what he meant by the "conspiracy thing,"
indicating he knew Blackwell had 'seen him talking to
Cameron and was worried about it. Perkins replied
that someone had told him and Blackwell about a conspir-
acy of McKissack and the other three men to get rid
of them. McKissack denied he was in any conspiracy,
as he would not want Blackwell's job with its responsibil-
ities. Perkins also said someone had told him that McKis-
sack had been seen talking a lot in private with Weakley,
that both officials had been told that McKissack had
called Cameron outside the station for a talk on the
31st, and that they had discussed the "conspiracy."
McKissack admitted the talk with Cameron outside the
station, but said he did not see how anyone could
have known what they talked about. Perkins told McKis-
sack the reason he had not been put on full-time work
beginning February 3 was because of these rumors of
his conduct. McKissack said he did not `think it was
anyone's business whether he talked to Weakley or
Cameron about anything, but "if it was keeping me
from being a full-time employee, I will tell, you what
I said to both of them," and he related a talk with
Weakley about doing a record "hop" for, youngsters
in the neighborhood where McKissack lived, and that
he talked, to Cameron about borrowing an amplifier
from him.34 Perkins asked McKissack to meet with
him and Blackwell on February 3 after the staff meeting,
to "get this thing straightened out," as he felt that
if Blackwell was satisfied that McKissack was not
involved with Weakley and the other two men in the
"conspiracy," McKissack could work full time . McKis-
sack said he would be there.
I have found above some of the detailed discussion
of both officials with Weakley and McKissack on' Febru-
ary 3, which had coercive connotations. After repeating
the explanations of his conduct that he had made to
Perkins, and denying any part in a conspiracy, McKis-
sack told both supervisors that "all that stuff is' water
under the bridge," and all he wanted to find out was
whether he would work full time and what hours; he
also asked Blackwell if it would help if he sold some
air time for the newscasts. Perkins said he had told
him they hoped to put him on at night , but added
he did not know whether it would be in a week or
so. Blackwell said he -did not know when he could
do it, it might be in a week or a month, but he could
not afford to do it then because the news department
was not "paying off," but he urged that McKissack
should "just hang on in there." McKissack got upset,
saying Perkins had promised him full-time employment.
When McKissack reported for work on February
10, Perkins told him Blackwell had told Perkins to
put him on full time,' with all benefits of a' full-time
employee, saying it would be 5 nights a week, from
7 p.m. to midnight, at $100 per week; and that he
would work every night except Wednesday, so he' could
continue night school classes that night, and would
work Saturday night to'make up for Wednesday. Perkins
said he would show him how to fill out the timesheet
and would arrange to get a card for him showing his
insurance benefits. He worked the above schedule that
week. On Friday, February 14, Perkins told McKissack
that he did not have to work Saturday nights, if he
did not want to, as his schoolwork was a form of
training for his job. McKissack said he would work
Saturday nights until he finished school 4 weeks hence.
Perkins then told him to come to see him with announcers
Hall and Babb after the staff meeting on Monday, the
17th, to discuss a proposition about using ABC network
news.
On February 17, after the staff meeting , McKissack
met with Blackwell, Perkins, Babb, and Hall in Perkins'
office, where the latter discussed the possibility of a
contract with the ABC Contemporary News Service.
Perkins said the Atlanta office did not think ,the newscast-
ers were doing a professional job, as they were not
3' McKissack was not telling the truth about his talk with Cameron,
for he admits that on the 31st he called Cameron outside the station
away from a discussion with two other employees in the lobby, and
the two talked outside about the Union, its contract demands, and
the probability of early negotiations
ROUNSVILLE OF NASHVILLE, INC.
connecting local experiences with national events, and
thus not approaching the standards of a professional
network. Blackwell stressed the importance of good
diction to bring up their standards to that of ABC.
In this discussion, Perkins played back a tape recording
of an "air check" on Hall's newscasts, and also referred
to letters about it from the Atlanta office and the ABC
network, saying that this newscast was most unprofes-
sional. Perkins then gave McKissack a time schedule
of 28 hours a week, saying, "We are right back at
the same old thing." McKissack replied he did not
know what he meant, that he thought he was on full
time. Perkins replied that Blackwell had told him this
was "what we will have to do." McKissack indicated
he was not satisfied. Blackwell had left the meeting
before this part of the talk, so McKissack talked privately
with Hall about it, and at his suggestion they both
sought out Blackwell and asked him to talk to them
and Perkins McKissack told both officials of the shift
setup stated by Perkins. Blackwell said it was not possi-
ble for him to be a full-time employee then, as the
news department was not paying off. McKissack asked
Blackwell what revenue it was getting from handling
contemporary news, and Blackwell replied, none, as
it was a temporary setup, there was no contract signed
with ABC. Blackwell asked Perkins if he had told McKis-
sack he would be full time. Perkins said he had because
Blackwell had told him that. Blackwell said that he
must have misunderstood, and Perkins said he must
have misunderstood, too. Blackwell then said "we can-
not do it" because the news department was not paying
for itself, but that McKissack might go on full time
when the department did pay off, and one reason they
had put him on nights was to allow McKissack to
work elsewhere during the day, as he had complained
about lack of money. He repeated that McKissack would
go on full time when the department paid for itself.
McKissack said that he was not satisfied, because he
had been misled and was the victim of a misunderstand-
ing between the two officials.
Since that discussion and up to the hearing McKissack
has worked 30 hours a week on night shift, at $2
an hour, as a part-time employee, and in this same
period the news department has not yet begun to pay
for itself.35
The complaint charges that on February 17 Respond-
ent "reduced the total weekly hours of work" of McKis-
sack for discriminatory reasons. If that were the sole
issue, the complaint must fall because uncontradicted
documentary proof and admissions of McKissack dem-
onstrate that prior to the week of February 3, he was
working an average of far less than 30 hours a week,
as a part-time employee, but beginning with that week
he has worked a full 30-hour week up to the time
of his testimony.
" The above facts are found from credited and mutually corroborative
testimony of McKissack, Weakley, Hall, Blackwell, and Perkins and
documentary proof Testimony of any of these witnesses at variance
therewith is not credited
581
General Counsel claims, however, that McKissack
was promoted by Perkins on February 10 to full-time
status with full employee benefits, with pay of $100
a week for a 30-hour week, and on February 17 was
reduced to part- time status of 28 hours a week, with
a reduction in pay to $2 an hour. While the reduction
to 28 hours did not in fact take place, the record shows
that his total pay was in fact reduced, for he has
since been earning $60 a week for a 30-hour week,
with none of the insurance or other benefits of a full-
time employee. Since Respondent adduced much proof
to show that the alleged promotion was unauthorized,
due to a misunderstanding between Perkins and Black-
well, and that full-time status was not given to him
for economic reasons, it is clear that the real issue
litigated by the parties and to be decided was the reason
and motivation for the reduction in status and pay
on February 17.
At the outset, I find that Respondent further violated
Section 8(a)(1) of the Act by (1) Perkins' mention to
McKissack on January 28 and February 1 of the rumor
of meetings with Cameron, which reasonably gave the
impression that Respondent was keeping employees'
outside meetings under surveillance, (2) his thinly veiled
warning on January 28 that McKissack might lose his
job if he got "involved" with Mitchell and Cameron,
clearly referring to suspected concerted activity among
two present and two former employees, and (3) his
persistent interrogation of McKissack on February • 1
about the subject of his private talks with Weakley
and Cameron, which reasonably tended to have a coer-
cive effect on employees 3" despite the actual motive
for this probing noted hereafter. In light of these and
other unfair labor practices found above, Respondent's
justification for its treatment of McKissack must be
subjected to careful scrutiny to ascertain its truth and
sincerity.
The economic reason inherent in the repeated mention
of the failure of the news department to pay for itself
appears to be honest, because supported by cogent
proof of Blackwell's repeated talks with the announcers
about improving their newscasts so the station could
pay for itself and qualify for a contract with a national
news service, which would probably produce a substan-
tial and steady income, and McKissack's own admission
of offers to help to find a news sponsor and rejection
of a prior offer by Blackwell of a salesman's job in
this connection. However, the "misunderstanding"
between Perkins and Blackwell about whether and when
McKissack should be promoted is suspect, because the
basis or background of that "misunderstanding" is not
explained by either official, even though both admitted
"' These remarks and queries were clearly not casual because Black-
well admitted that shortly before February I, Perkins told Blackwell
he was "concerned" about both employees, that "I don't know what
is going on , but I do not think Paul is really aware of what he is
involved in," whereupon Blackwell suggested he talk to both to "clear
the air" and get them to "go to work " Perkins admitted his talk
with McKissack on January 31 was prompted by the rumors of the
"conspiracy" against the supervisors and McKissack ' s involvement
in it, so he thought he would "catch him before he got too involved
in it
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in testimony that they had discussed many times the
failure of the news department to become a paying
proposition, continually discussed the work and progress
of McKissack and other announcers, and Blackwell
had talked to McKissack about his request for full
time work at least once before Perkins made the commit-
ment on it Hence, it is strange that neither official
can explain just how their "misunderstanding" came
about This failure becomes more significant in light
of Perkins' clear promises of full-time status if McKis-
sack would stay out of the "conspiracy" against him
and Blackwell and would "work with us," for Respond-
ent was thus offering McKissack a substantial benefit
in return for his abstention from concerted activity
in the form of conspiratorial action with two ousted
employees who had openly stated their objective of
ousting Perkins and Blackwell from WVOL General
Counsel claims the "conspiracy" involved only protected
activity, and the testimony of McKissack, Weakley,
Cameron, and Mitchell about their meetings after the
discharge of the latter two indicates that they were
in fact talking about the usual union affairs and discharge
of two employees If Respondent knew this when Perkins
made the conditional offer of promotion, that offer would
clearly be an unlawful offer of benefit under settled
decisions, which would raise a strong suspicion and
perhaps an inference that Blackwell's reversal of the
promotion decision a week later was discriminatory
However, there is no substantial proof that Blackwell
or Perkins knew or had good reason to believe what
the four men, although known union adherents, talked
about in their private meetings When questioned about
it, Weakley and McKissack gave the officials no reason
to believe or suspect that the meetings involved union
activity, for they made sure to deny any concerted
activity when questioned, or turn aside further question-
ing by giving personal or false topics for their discus-
sions In addition, the Union made no formal or other
protests to Respondent about conduct of the two supervi-
sors after appearing on the scene in November, so
they had no reason to believe that the Union was guiding
or involved in the personal "conspiracy" against them
Thus, it is clear that the reports they received about
meetings for a "conspiracy" gave them good reason
to believe that Weakley and McKissack were meeting
with two former employees only to plot an active conspir
acy to oust the supervisors, and they were further
justified in this belief by the recent open ridicule and
disparagement by Cameron of both of them, and Mitc-
hell's more recent open threat before quitting his job
to get Blackwell removed as general manager, as found
above Further, Perkins did not mention the Union
or the activities of McKissack and Weakley in its cam-
paign to McKissack when making the offer of benefit
if he would "work with us" and not take part in the
"conspiracy " Hence it is just as valid an inference
that Perkins was talking about the rumored personal
attacks upon himself and Blackwell, when quizzing
McKissack and Weakley, as that he was talking about
their secret union activity I cannot find, therefore,
that Perkins was making coercive offers to McKissack
to abstain from known or suspected union activity which
would be violative of the Act I also note that the
complaint does not charge, nor does General Counsel
argue, that these offers were coercive within the meaning
of Section 8(a)(1) These blanks in the testimony and
the theory of General Counsel lead him to argue that
Blackwell withdrew the full- time status on February
17, after McKissack had "cleared the air" by denying
any involvement with Cameron and Mitchell and thus
procured the promotion from Perkins, only after receipt
of the Union 's original charge on February 10, 1969
But this is no more than a very thin speculation from
timing alone, because the charge did not mention McKis-
sack by name , and if Respondent were as militant to
retaliate against a union member as General Counsel
argues, it is likely that Blackwell would not have waited
until February 17 to revoke the full- time status of McKis-
sack 37 It is a further mounting of speculation upon
speculation to say that the first charge "provided the
stimulus for Blackwell's second thoughts" about McKis-
sack, because it did allege discharge of Cameron, Mitc-
hell, and Weakley, with whom Blackwell "knew"
McKissack was involved However, that knowledge is
not proven, but only the fact that rumors reaching
the supervisors led them to suspect connivance among
the four, not in union activity, but for the ouster of
Blackwell and Mitchell In addition, I have found that
Cameron was lawfully discharged for flagrant insubordi-
nation which clearly involved gross disloyalty to his
employer It is clear that Mitchell displayed similar
personal disloyalty to his supervisors when he threatened
to have Blackwell ousted, which would have justified
his discharge for that cause before he quit, and afforded
ample justification for the later but unnecessary formal
termination letter 311 With this disloyalty fresh in their
minds, it was natural for both supervisors to question
Weakley and McKissack closely about their own loyalty,
when hearing rumors of their meetings with two disloyal
former employees, to find out if these remaining employ-
ees had the same disloyal attitude toward their supervi-
sors personally which would make it unlikely that they
would work as a harmonious team with other station
employees under the guidance of their supervisors to
promote the community standing and "image" of
WVOL aA Hence, I find no violation of the Act in
the direct questions by both supervisors to both employ-
ees, whether they were working in the personal vendetta
against the supervisors or would continue to "work
with us," for this interrogation related to possible disloy-
' This timing would have supported an inference of discrimination
only if the revocation had occurred after the first amended charge
of March 12 was received by Respondents counsel on the 13th as
it did mention discrimination against McKissack on February 17 but
that of course was long after the action of that date
'" See Joanna Cotton Mills Co v N L R B 176 F 2d 749 753
(C A 4) Caterpillar Tractor Co v N L R B 230 F 2d 357 (C A
7)
That the personal vendetta against Blackwell was still alive at
the end of January is apparent from testimony of Weakley that after
his shift change became definite on January 22 he asked Mitchell
privately if the men would strike and was told they would not but
that we are going to try to get Blackwell out as general manager
ROUNSVILLE OF NASHVILLE, INC.
alty and its effect on station operation, which would
be ground-for discharge or refusal of promotion, rather
than to their union membership or union activity in
the usual sense. In light of these circumstances, Respond-
ent's proof of economic reason and motive for the
continuance of McKissack as a part-time employee ade-
quately rebuts the thin inferences of discrimination rising
almost solely from Respondent's other unfair labor prac-
tices, and the speculations of General Counsel noted
above.
On all the pertinent facts and circumstances, I find
that General Counsel has not sustained the ultimate
burden of proof from the whole record that McKissack
was reduced from a full-time employee to part-time
status because of his union 'membership and union or
concerted activities. I grant Respondent's motion to
dismiss the complaint insofar as'it charges this treatment
was unlawful, and will recommend that the complaint
be dismissed to that extent 41
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
' COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the
Act. While the unfair labor practices violated only Sec-
tion 8(a)(1) of the Act they comprise a variety of coercive
actions which were repeated and had their impact upon
a substantial number of employees within a period of
a few months. I shall therefore recommend a broad-
type order. I also recommend dismissal of the complaint
insofar as it charges specific discharge or other discrimi-
natory conduct against Guy Cameron, Augustus N. Mitc-
hell, Thomas D. Weakley, and Paul McKissack, and
as'to any other allegations not found herein to be viola-
tions of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of the Act.
2. By interrogating employees about their union senti-
ments or activities, their desires on voting in a Board
election, or their other concerted activities, threatening
4' In reaching my conclusions as to each of the above employees,
I have also considered other arguments of General Counsel which
are corollary to his main contentions as to each and have disposed
of them in the above findings and conclusions
583
them with loss of benefits , or loss bf employment,through
a sale of station WVOL, if they adhered'to the above
Union , - and by giving them the impression that their
union or concerted activities are under surveillance,
Respondent has interfered with, restrained , and coerced
employees in the exercise of rights guaranteed to them
by Section 7 of the ' Act, which- conduct amounts' to
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2 (6) and (7) of the
Act.
3. Respondent did not violate the Act by its discharge
of Guy Cameron , by its conduct toward Augustus N.
Mitchell as found above, by changing the work shift
of Thomas D. Weakley , or by reducing the work hours
and pay of Paul McKissack , or by any other actions
or conduct alleged in the complaint , except as found
above.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in the
case, I recommend that Rounsaville of Nashville, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from interrogating employees
about their union sentiments or activities, their desires
on voting in a Board election, or their other concerted
activities, threatening them with loss of benefits, or
loss of employment through sale of station WVOL,
if they adhered to the above-named Union, or any
other labor organization, or from giving them the impres-
sion that their union or concerted activities are under
surveillance, or in any other manner interfering with,
restraining, or coercing them in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Post at its place of business in Nashville, Tennes-
see, copies of the attached notice marked "Appendix."41
Copies of said notice, on forms provided by the Regional
Director for Region 26, after being, duly signed by
Respondent's representative, shall be posted by it imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its 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.
41 In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Section 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 42
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges the discriminatory
discharges of Guy Cameron and Augustus N Mitchell,
discriminatory change of shift of Thomas D Weakley,
and discriminatory reduction in hours or pay of Paul
McKissack, and as to any other alleged violations of
the Act except as found above
of our station WVOL, if they adhere to American
Federation of Television and Radio Artists,
AFL-CIO, or any other labor organization
WE WILL NOT give our employees the impression
that their union or concerted activities are under
surveillance by us
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of rights guaranteed to them by Section 7
of the Act
as In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 26 in writing within 10 days from the date of
this Order whit steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about
their union sentiments or activities , or their desires
on voting in a Board election , or their other concert
ed activities
WE WILL NOT threaten our employees with loss
of benefits, or loss of employment through sale
ROUNSAVILLE OF
NASHVILLE, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
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
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
562 Federal Courthouse Building , 801 Broadway, Nash-
ville, Tennessee 37203, Telephone 615-242-8321, Ext
5922