United Broadcasting Co.

INC., arrd -CA- PENELLO r 3(b) 10(c) ' cer- luln Iloard's ~cu~lutions ,111 .Yrundard Pmducrs Inc.. (1950), F.Zd, 162 I~asir hat derermined organiz~ng: elect- cd, oNer In rmployees 17 VISII y m d e n t Gen- cral sumcient he Respondent'$ Wrr~ht lnc.. I50 rec.t,rd Iwen operation. tlr m~imus tlecc\sary icneral Phillips, Ihake's ZANKEL, 8(a)(l) my $50,000 2(6) 2(5) I 253 UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, ET AL United Broadcasting Company of New Hampshire, Inc. d/b/a WMUR-TV Local 1228, Inter- national Brotherhood of Electrical Workers, AFL-CIO. Case 1 16656 December 10, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND On July 17, 1980, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, the General Counsel and he Charging Party filed exceptions and supporting briefs and Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. The General Counsel and the Charging Party have excepted to credibility findings made by the Administrative Law Judge. It is the established policy not to overrule an administrative law judge's with respect to credibility unless the clear preponderance o f the relevant evidence convinces us that the resolutions are incorrect. Dry Wall 91 N L R B 544 enfd. I88 (3d Cir. 1951). We have carefully examined the record and find no for reversing his findings. In view o f our adoption o f these credibility resolutions, we find it un- necessary to rely on the Administrative Law Judge's alternative findings he would have found no violation even i f he had either that: (I) Controller Hroblak asked employee Drake why the employees were or (2) Hroblak told Drake that, i f the Union were Respondent would only one package. the rejection o f which would result in a strike. In addition. we find no evidence the record that Hroblak questioned (including Drake) about the Union during his September to the station. Further, we adopt the Administrative Law Judge's conclusion that Re- did not violate the Act in discharging Drake because the Counsel failed to make a prima facie showing to support Inference that Drake's protected conduct was a motivating factor in decision to discharge him. See Wright Line. A Division of Line. 251 N L R B No. (1980). The only evidence in the regarding Drake's protected activity is that he had at one time employed at a unionized There is no showing o f hostility toward the Union by Respondent. Accordingly, we find it un- to rely on the Administrative Law Judge's determination that t Manager who made the decision and carried out discharge, did not know about Drake's membership in the Union. DECISION STATEMENT OF T H E CASE NORMAN Administrative Law Judge: This case was heard before me on April 28 and 29, 1980, in Boston, Massachusetts. Upon a charge filed on October 9, 1979,' by Local 1228, International Brotherhood of Electrical Workers, AFL-CIO (herein called the Union), the Regional Direc- tor for Region 1 of the National Labor Relations Board (herein called the Board) issued a complaint and notice of hearing on December 5, against United Broadcasting Company of New Hampshire, Inc. d/b/a WMUR-TV (herein called Respondent). The complaint, as amended at the hearing, alleges that Respondent engaged in violations of Section and (3) of the National Labor Relations Act, as amended (herein called the Act). Specifically, it is alleged that Re- spondent interfered with, restrained, and coerced its em- ployees by unlawfully interrogating them and threaten- ing that selection of the Union would be futile. Also, the complaint alleges that Respondent unlawfully discrimi- nated against its employees by discharging Lawrence Drake on October 5. Respondent filed a timely answer to the complaint. The answer admitted certain matters but denied the sub- stantive allegations and that Respondent committed any unfair labor practices. All parties appeared at the hearing. Each was repre- sented by counsel and was afforded full opportunity to be heard, to introduce and to present material evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. I have carefully considered the contents of the briefs filed on behalf of the General Counsel, the Union, and Respondent. Upon consideration of the entire record and the briefs, and observation of the witnesses and their demeanor, I make the following: I.JURISDICTION Respondent, a Delaware corporation, maintained its principal office and place of business in Manchester, New Hampshire, at all material times. At that location, Respondent, at all material times, has been engaged in operating a television station and related facilities. Re- spondent's annual gross revenue derived from that busi- ness exceeds $100,000. Additionally, Respondent annual- ly receives material valued in excess of at its Manchester facility directly from points outside the State of New Hampshire. Respondent admits, the record reflects, and I find, that it is engaged in commerce within the meaning of Section and (7) of the Act. The parties agree, the record reflects, and I find, that the Union is a labor organization within the meaning of Section of the Act. All dates hereinafter are 1979, unless otherwise indicated NLRB No. 102 11. I-RC- 1 -RC- 15 Hrob- consum- mated).3 inter h ~ s disposit~on objection on the to Excelr~or :' v~wted I t diwharge. this vkit Inc., Inc, & Inc.; Re- s~ondent's Moulton "aware re- 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union began an organizational campaign among Respondent's employees in July. On August 2, Stanley R. Brown, the Union's business manager, filed a petition for representation election with the Board (Case 16498). On August 15, Brown filed two more election petitions (Cases 165 and 165 16). On September 28, the Regional Director issued his de- cision on the petitions. Elections were directed in two appropriate units. The elections were conducted on Oc- tober 26. The employees in each voting unit rejected union representation. On October 31, the Union filed Ob- jections. On December 7, the Regional Director issued a Supplemental Decision. He directed second elections be- cause Respondent failed to submit the required Excelsior lists. The relevant managerial personnel of Respondent, af- filiated with the American Broadcasting Company net- work, are Samuel Phillips, general manager; Thomas Bonner, news director; and Gerald J. Hroblak, Control- ler. Phillips and Bonner are stationed in New Hampshire. Hroblak operates from Respondent's headquarters in Maryland. Apparently, at the time the representation petitions were filed, Respondent was negotiating for the sale of the Manchester station. According to Hroblak, who was uncontradicted on this point, Respondent's labor counsel advised that "any personnel changes in the way of a dis- charge" from the time Respondent became aware the pe- titions had been filed were subject to prior discussion with officials in Respondent's Maryland headquarters. Hroblak immediately instructed Phillips to comply with counsel's advice. Hroblak claimed he conveyed those instructions to Phillips to "avoid any unfair labor prac- tice charges." Thereafter, Respondent made no speeches to assem- blages of employees and distributed no campaign litera- ture. Hroblak visited the Manchester facility on Septem- ber 17. In addition to other purposes of that visit, lak intended to discuss the effect of the station's sale on the employees, answer any questions they might have re- garding the Union, and advise them Respondent was op- posed to unionization. (At that time, the sale negotiations were concluded, but the sale had not yet been Drake began his employment with Respondent on September 20. His employment continued until October 5, the date of the alleged discriminatory discharge. B. Credibility Credibility of the respective witnesses for the opposing litigants is critical to determination of the instant issues. Resolution of credibility determines whether the General The Objections also alleged, olio. interference with the election by interrogation and by Drake's discharge. In view of of the based failure provide lists the Regional Director did not rule on the other grounds. Hroblak the station again in October. appears this visit oc- curred after Drake's I find second not relevant herein. Counsel's or Respondent's version of the facts should be adopted. Moreover, credibility is the key factor in decid- ing Respondent's motivation for Drake's discharge. The ultimate choice in making findings of fact is based on my observation of witness demeanor, unrefuted testi- mony, the weight of the respected evidence, established or admitted facts, inherent probabilities, and reasonable inferences which may be drawn from the record as a whole. Northridge Knitting Mills, 223 NLRB 230 (1976); Warren L. Rose Castings, d/b/a V W Cast- ings, 231 NLRB 912, 913 (1977); Gold Standard Enter- prises, Gold Standard Liquor Store at Ridge Avenue; Chalet Wine and Cheese Shops, Ltd. at Fullerton Avenue; Chalet Wine and Cheese Shops. Ltd. at Highland Park., 234 NLRB 618 (1978). . . In the credibility contest between the witnesses pre- sented by the General Counsel and those on behalf of Respondent, a fair assessment of the testimony presented by each persuades me that the versions presented by witnesses are the most reliable. I find the fol- lowing specific, but not exhaustive, elements persuasive indicators of the respective reliability of the witnesses. Hroblak and Phillips testified as adverse witnesses in the General counsel's case and again during Respond- ent's case-in-chief. Respondent also presented Bonner as a defense witness. Drake and Brown testified on behalf of the General Counsel. In general, I find Respondent's witnesses were more forthright, candid, comprehensive, and direct than the General Counsel's witnesses who tes- tified on the same subject matter. Brown gave abbreviated testimony. It consumes only three transcript pages. Clearly, Brown was presented to prove Drake's union activity. Brown's direct testimony left an impression that only Drake was active on behalf of the Union. However, during cross-examination, Brown admitted that other employees had been active. Thus, Brown stated technician was the employee who initial- ly contacted the Union for organizational purposes. Fur- ther, Brown conceded, that the basis of his testimony that Drake was active was Drake's own self-serving report to that effect. I concede Brown did not fabricate his direct testimo- ny. However, I do find it misleading. Thus, counsel for the General Counsel asked him whether he (Brown) was if any of (Respondent's) employees were active members" of the Union. (Emphasis supplied.) Brown re- sponded in the aftirmative, and named Drake. The Gen- eral Counsel did not make explicit inquiry as to the union activity of Drake or any other employee. It is this context which gives rise to the misleading impression re- garding Drake's activity. It is undenied that Drake engaged in no ostensible union activity. He did not solicit signatures on authoriza- tion cards, distribute literature, or display any insignia by which he could have been connected with the Union. At the most, the record shows Drake merely engaged in casual union discussion with other employees. In this context, I conclude the whole of Brown's testimony INC., flects dis~rimination.~ 17 Orevious this non- ' activily. issue. Facts Anchormen UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, ET AL. 699 an effort to exaggerate a critical element of the General Counsel's prima facie case of Drake's testimony contains critical deficiencies. Drake presented testimony to prove Respondent had knowledge of his union membership. Thus, Drake testified that Hroblak had a conversation with him during Hroblak's September visit to the station. Drake testified he told Hroblak he (Drake) was "already a member" of the Union. Thus, Drake sought to create a testimonial im- pression that Respondent became aware Drake was a current union member. Hroblak's version was different. He testified that Drake told him he (Drake) previously only worked at a unionized station. Hroblak explicitly denied that Drake told him he was a current union member. First, I find Hroblak's account more direct and explicit than Drake's. Additionally, I consider Hroblak's testimony in this regard more plausible than Drake's. The conversation occurred only 2 weeks after Drake's initial employment with Respondent. Hroblak told Drake of Respondent's opposition to unionization immediately before the purported revelation by Drake of his union membership. In this context, I find it unlikely that an em- ployee with Drake's brief tenure would want his new employer to know of his present union affiliation. It is more reasonable to believe such an employee would hide that fact. Accordingly, 1 adopt Hroblak's version of this incident. Drake was evasive during cross-examination. I detect- ed an effort by him to narrate events in a light most fa- vorable to him. For example, Drake distorted the context of his September 17 conversation with Hroblak. Drake emphasized the extent of time consumed in union-related conversation. However, Drake's pretrial affidavit shows that the bulk of the conversation concerned Respond- ent's business activities. I found Drake orally evasive on this point. In contrast, Hroblak and Phillips gave more complete and direct testimony. Their narrations were candid, even with respect to matters which conceivably were damag- ing to Respondent's cause. For example, Hroblak ac- knowledged that he spoke with employees on September 17 about the Union and told them of Respondent's oppo- sition. Drake's testimony was confusing. This was particular- ly true when examined by Respondent's counsel. As noted, Drake testified he pointedly informed Hroblak of his union membership. During cross-examination, Re- spondent's counsel asked a series of questions, apparently designed to establish the extent of that membership. First, Drake denied he had been a union member at five employers. This denial included the place at which Drake was employed immediately prior to being hired by Respondent. At that juncture, it appeared Drake contradicted his direct testimony in which he claimed to have informed Hroblak of his union member- ship. Respondent's counsel continued interrogating along line. Drake finally answered that he had maintained union membership during previous employment at union employers. Patently, this series of questions and answers was confusing. Additionally, I consider it an ex- ample of what I conclude is the relatively imprecise character of Drake's testimony compared to that given by Hroblak and Phillips. Further, this testimony is an- other example of Drake's tendency to enhance the com- plaint allegations. In general, I found Drake to present his direct testimony in a well rehearsed manner. His tes- timony regarding matters for which he may not have been prepared is less sure and lacks spontaneity. In con- trast, Hroblak and Phillips generally were more precise and they were unshaken during cross-examination. Based on the foregoing, the recitation of facts, immediately below, is a composite of credited testimony, admitted facts, unrefuted oral testimony, supporting documents, and other undisputed evidence. For brevity's sake, only those facts considered material are set forth. Not every bit of evidence is discussed. Nonetheless, I have consid- ered all of it, together with all arguments of counsel. Omitted matter is considered irrelevant or superfluous. C. The In early August, Drake applied for employment with Respondent. Phillips interviewed him. Drake presented his resume. Drake's prior experience was in radio news. That experience included reporting news on the air. Drake made an on-the-air sample tape. Also, Bonner in- terviewed Drake. Bonner credibly testified that he told Drake Respondent was looking for an energetic individu- al who "could jump in, gather news stories, and work pretty much independently." After Drake's tape was reviewed and the interviews were complete, Drake was offered a job. The job classi- fication offered is disputed. I find it necessary to resolve that matter. Such resolution is a relevant consideration in deciding the validity of Respondent's defense. The Gen- eral Counsel contends Drake was hired as a news an- chorman. Respondent asserts Drake was hired as a street reporter with the potential of advancement of the 11 p.m. anchorman position. I conclude that Drake was not hired to immediately perform the duties of anchorman. Contrary to the Gener- al Counsel's position, even Drake testified that when he was hired he was told "He'd be working with the cur- rent anchorman to learn the equipment procedures." (Emphasis supplied.) Phillips and Bonner described that Drake's job orientation involved learning the functions of a street reporter. It is uncontradicted that approxi- mately 50 percent of Respondent's programing involves on-the-air appearances of street reporters. Drake and Phillips concurred in testimony which indicated that he was instructed to follow Bartlett, the current anchorman, and street reporters. The job of street reporter is to be on the street gathering news and researching news sto- ries for use in telecasts. Anchormen are responsible for gathering and organizing the news items and delivering it on the air to the public. also serve as pro- ducers. I acknowledge the General Counsel contends Drake's alleged dis- It is illogical to conclude Drake was hired as an an- criminatory discharge is founded on Drake's union membership, rather Notwithstanding this formulation. I find chorman. Concededly, he had no prior television experi- than current union Brown's testimony relevant to the credibility ence. Thus, it is reasonable to assume that Respondent . LABOR Drake equipment sources (3:30 11:30 story.5 stories 6:30 11 I5 o f f i ~ e . ~ - stories of suficient 10 vtew infm, ." ahswer was 700 DECISIONS OF NATIONAL RELATIONS BOARD would have required Drake to satisfactorily complete his training before ascending to the anchorman job. Upon the foregoing, I find Drake was hired as a street reporter and it was contemplated by him and Respondent that sat- isfactory progress would ultimately result in an anchor- man assignment at some undetermined future date. The General Counsel and the Union concede training was an integral part of Drake's initial employment. Even Drake acknowledged he was told that he would undergo train- ing. Accordingly, I find Drake was expected first to work as a street reporter. Drake accepted the position. reported to work on September 10. His first workweek was consumed in receiving instructions from Bonner regarding operation. Bonner also discussed Drake's duties with him. Drake was told to accompany other personnel as news stories were filmed. Bonner told Drake that after his first week on the job, he would gather news stories in the evening. Bonner suggested for material. Bonner testified that street reporters working Drake's shift to approximately p.m.) were expected to generate at least one, and possibly two, stories per day. (The number of stories expected, beyond one, depended on the geographical proximity of one to another). There is no evidence that Bonner told Drake of this require- ment during his first week of employment. In his second week, Drake generated two news and one sports Bonner testified, without contradiction he believed Drake's "progress was slow." Ronner based his belief on the fact that only two news had been generated by Drake during that week. Bonner explained that when no stories are obtained between and p.m., the late newscast consists of reruns from the 6 p.m. telecast. According to Bonner, Respondent seeks to avoid the rerun situation. Midway during Drake's second week, Bonner told Phillips of Drake's progress. Phillips instructed Bonner to speak to Drake about it. Later, Bonner asked Drake if he had a story for that evening. Drake answered he had no story. Bonner told him to try to find one. Bonner added "we would really like to have one story an eve- ning out of him (Drake) before the 11 o'clock news." Drake responded he would see what he could do. Drake's second workweek began September 17. As noted, on that date Hroblak visited the station. Respond- ent's operations manager, Gross, came with Hroblak. Hroblak spoke with approximately employees. Drake said Hroblak spoke with him in Phillips' office. Hroblak acknowledged that he talked with Drake, but denied the discussion occurred in Phillips' During direct examination Bonner testified these stories were gener- ated in Drake's third week. On cross-examination, Bonner placed these in the second week. My findings are consistent with the cross-ex- amination. It is apparent Bonner corrected his earlier testimony. The cross-examination contains a more explicit enumeration Drake's pro- duction. If considered a self-contradiction, it is not discredit Bonner. He otherwise was a forthright and credible witness. In any event. an error in which week the cited stories were generated is not sig- nificant. Whether those stories were in the second or third week of Drake's employment does not alter the total production statistics which Repondent claims was below par. The locus of this discussion need not be resolved, in of my find- ing, that Hroblak engaged in no proscribed conduct. Drake testified that Hroblak asked him whether he knew the Union was organizing. According to Drake, Hroblak asked "if I was aware that a union was being organized," and "if I had any idea as to why the employ- ees were organizing." Drake said he answered that he knew of the campaign but had no idea of the reasons for it because he had not worked there long enough to learn them. Further, Drake testified that Hroblak told him "if the Union was voted in . . . the Company would offer one package and if the employees refused that package they could go out on strike . . . Drake testified he re- sponded he was aware of what a union could or could not do because he "was already a member" of the Union from previous employment. Hroblak's version of his September 17 discussion with Drake was different. He testified that he was at the sta- tion to discuss business matters, report to employees re- garding the status of the station's sale, and to "answer any questions that were brought up by the employees concerning the Union, and, obviously, when appropriate to convey to them that management was opposed to or- ganization . . . ." Hrbolak testified that he asked each employee if he or she had any questions about the Union. Hroblak recalled Drake mentioned he was a new employee, did not have any question about the sale, and that he did not "know much about what was going on with the Union." Hroblak further testified he simply informed the em- ployees that management was opposed to unionization. He testified he presented no arguments against unioniza- tion in response to questions from employees. He candid- ly could not recall whether or not he volunteered nega- tive arguments. Hroblak testified that his conversation with Drake began by Hroblak telling Drake he was there to discuss any concerns Drake had regarding the sale of the station. Hroblak testified he also told Drake he would any questions Drake might have. According to Hroblak, it was then that Drake made the remarks indicated above regarding his brief employment with Respondent and union membership. Hroblak unequivocally denied he questioned Drake or any other employee regarding per- sonal union affiliations. In an apparent effort to dispel any unlawful implica- tion resulting from Drake's testimony, Hroblak was asked to describe a conversation he had that date with another employee, who is unidentified. Thus, Hroblak testified that he told the unidentified employee he there to answer questions about the sale and to let him know that management opposed unionization. They dis- cussed the sale. Then, according to Hroblak, the employ- ee opined that election of the Union as bargaining agent would result in Improvement in wages and equipment and scheduling problems. Hroblak testified he expressed doubt that the Union could effect the equipment and scheduling problems because those were rights of man- agement. Hroblak testified that the employee said he be- lieved the Union could compel Respondent to make changes in these areas. Hroblak testified that he remind- ed the employee that negotiations would result from a 1 Walton Manu facturing & Loganville attiibuted ern- narrition 8(a)(I) violation^.^ ~ t o r i e s . ~ I 1 show,1° night." 11 days uncontradicted,12 ." * ~hc. infm, no1 cons~ilute "er Tn. 5 . l o AF earlier 1 Thi\ one-story/each-day \randard. ' I Z 2 meet- c~)unsel. UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, INC., ET AL. 70 union win in the election; the Union could not force Re- spondent to do anything; and the Union's own leverage is to strike.' I fully adopt Hroblak's account of what was said by him, Drake, and the unidentified employee, on Septem- ber 17. Part of Drake's version is uncontradicted. Spe- cifically, Hroblak was not explicitly asked to address Drake's testimony to the effect Respondent would offer only one package in negotiations, nor whether he (Hrob- lak) spoke to Drake about a strike. I have already dis- cussed some reasons why I credit Hroblak instead of Drake, wherever their testimony conflicts. Based on such credibility resolution it is permissible to find facts con- trary to those presented by an uncontradicted witness. N.L.R. B. v. Company Pants Co., 369 U.S. 404 (1962). Close examination of Drake's account is illuminating. First, he corroborated Hroblak's testimony of how the conversations were initiated with employees. Thus, Drake acknowledged Hroblak introduced the union sub- ject matter by asking whether Drake knew of the Union's campaign. It was then, according to Drake, that Hroblak asked if he knew why the employees were orga- nizing. I concede such a question logically might follow. However, in all the circumstances herein, I conclude Hroblak did not ask this second question as to him. Rather, I consider Drake's testimony in this regard another effort by Drake to shape his testimony to con- form to the pleadings. The Union's campaign had been in progress for nearly 2 months by September 17. Hroblak spoke with Drake 6 weeks after the first petition had been filed. Throughout the entire period, Respondent issued no campaign literature and held no mass employee meetings. Thus, the record reflects minimal and moder- ate efforts by Respondent to induce employees to reject unionization. 1 shall find below that there is no merit to the amended allegation that Respondent threatened ployees with futility of selecting the Union as bargaining agent. No other evidence was presented to hint that Re- spondent engaged in any sort of opinion poll among the employees regarding the Union. In an atmosphere other- wise uncoercive. I simply find it implausible that Hrob- lak asked the alleged unlawful question of Drake. Similarly, I discount Drake's testimony that Hroblak said Respondent would offer "one package" and the em- ployees could go on strike if they refused it. Drake's nar- ration was not spontaneous. He presented this testimony in response to a leading question by counsel for the Gen- eral Counsel. The question was propounded after Drake had ended his about what-was said concerning the Union by him and Hroblak. Indeed, Drake had al- ready left the union subject matter and proceeded to de- scribe a discussion between the two regarding equipment problems. The leading question was asked after Drake ostensibly completed his narration of the September 17 discussion. These circumstances make Drake's testimony suspect. N o part of Hroblak's conversation with the unidentified employee is alleged as a violation of the Act. On all discussion regarding relative credibility con- tained hereinabove, I find Hroblak did not make the statements alleged as independent September 24 began Drake's third week of employ- ment. He generated no film However, Drake did perform walk-ons each day that week on the 6 and I I p.m. newscasts. Walk-ons involved Drake's personal appearance to report an item generally derived from the wire news services. On occasion, the reporters' source for walk-ons was telephone interviews, radio news re- ports, and in-person interviews. Reporters are required to rewrite such items for presentation in Respondent's tele- casts. At one point during Drake's third week, Drake spoke with Bonner. Drake asked when he would become the p.m. anchorman. Bonner responded that before Drake could produce the there was a need for him to gather film stories in the evening. Bonner offered to help Drake in this endeavor. However, he told Drake that he (Drake) had to generate at least one story per Drake persisted. He said he wanted to produce the p.m. newscasts. Drake said he was not interested in street reporting duties and complained that Respondent's equipment used for street reporting was old and in poor condition. Bonner indicated other of Respondent's em- ployees shared that feeling. However, Bonner told Drake the equipment was functional. sometime after the Drake-Bonner conversation, Phil- lips asked Bonner for a report on Drake's progress gath- ering news items. Bonner said he expected at least one story each night, but Drake was getting only two or three a week. Bonner reported he gave Drake construc- tive suggestions for gathering news. Bonner also report- ed Drake complained of his embarrassment when he had to use Respondent's equipment. Drake's final week of employment began October 1. In that week, he generated three stories in 4 days. Howev- er, Drake did not generate a story each day. No stories were generated by him on Monday, October 2 and Thursday, October 4. Stories were generated by him on Tuesday and Wednesday of that week. One of those , Contained two stories and the other, one story. On October 2, Drake, on his own initiative, spoke with Phillips in the latter's office. Phillips, whose version of the conversation is testified that Drake said "he would not do the job that I (Phillips) hired him to do; that he wanted to produce the news and direct the news; and he thought he could do a better job than the people that I already had . . . Phillips responded he could not understand Drake's remarks. He reminded Drake he had been hired as a street reporter. Finally, Phillips observed that the employees who produced and directed the news had been with the station for many years. In analysis section, I shall find the statements, even if made, do violations of the Act. supra. observed, production is a function of an anchorman. requirement will hereinafter be called the Drake was not asked any questions concerning the October ing by DEClSlONS one-story/each-day complained potentiaI 1. Inlerrogalion HrobIak Inc., unlon Knilting mills, Corp., 1022 Anrhony Health 11 (1978), 8(a)(l). Heallh Cenler, Slalemenl offutili(v 8(a)(l) arguendo, tIroblak agreements.13 Hrob- lak's imvlies - Loray (1970), Loray E l Impacl Casling I:' unident~fied not dlminish 268' 271 The 'Ontext in which Hrob'ak's of was question was asked demonstrates effect was not coer- tiampshire location. ~ h u s , reahonable to b e l i e ~ r Thus, I he the names 702 207 OF NATIONAL LABOR RELATIONS BOARD Later that day Phillips and Bonner discussed Drake. They reviewed Drake's production. They discussed Drake's embarrasment over equipment condition. They observed Drake's apparent reluctance to function as a street reporter. Phillips testified that he decided to termi- nate Drake because of Drake's failure to meet Respond- ent's production standard. Admitted- ly, Phillips had not personally reviewed Drake's work. On October 3, Phillips traveled to Respondent's Mary- land headquarters, as previously scheduled, for business purposes. In addition to conferring over other business matters, Phillips discussed Drake with Hroblak. This dis- cussion occurred pursuant to Hroblak's instructions to take no termination action during the pendency of the representation proceedings without such prior consulta- tion. Phillips told Hroblak he wanted to terminate Drake. They discussed Drake's work performance. Phil- lips said Drake was not performing to expectations. Hroblak and Phillips discussed the potential impact of a termination on the election. They noted there might be some impact and an unfair labor practice charge might be filed. Hroblak told Phillips that if he had a reason to discharge Drake that action was left to Phillips' discre- tion. On October 5, Phillips discharged Drake. Phillips gave Drake no reason. Phillips testified it was his practice to refrain from giving employees reasons for their termina- tion. There is evidence that during the terminal interview Drake his discharge was due to what he had said to Hroblak on September 17. Phillips testified he denied this and, instead, said the discharge was based on what Phillips reported to Respondent's Maryland head- quarters. I consider Drake's self-serving accusation of little probative value. First, I have already indicated I do not credit his description of Hroblak's alleged unlawful interrogation on September 17. Second, I observed Drake to possess a keen intellect. Clearly, he is capable of perceiving the value of making such an accu- sation. Interference, restraint, and coercion (a) Based on my finding that did not ask Drake to give him the reasons why the employees were orga- nizing, I find insufficient evidence in the record to sup- port a finding that Respondent committed the alleged unlawful interrogation. However, if it were found that Hroblak actually asked Drake if he had any idea why the employees were orga- nizing, I would, nonetheless, find that question is not proscribed by the Act. Whether interrogation of employees violates the Act, depends on a determination that it reasonably tends to have an unlawful effect. Hanes Hosiery, 219 NLRB 338 (1975); Die Corporalion, 199 NLRB its vice. find the question was preliminary to dis- cussing general work problems. Indeed, Drake himself testified that the question he ascribed to Hroblak immedi- ately evoked a discourse of the pros and cons of union- ism. Patently, the question elicits such a discussion. The question does not require Respondent to betray his affiliations and sympathies, nor those of any other em- ployee. The question, if posed by Hroblak, is not unlike asking employees what they expect to gain from a union. The latter interrogation is uncoercive where unattended by threats of reprisal or promises of reward. Whittaker Inc., Division of Whittaker NLRB 1019, (1973). No such threats or promises have been proved in the instant case. Thus, I find the context of the discussion vitiates the requisite coercive impact. Cf. The L . Jordan Center. 235 NLRB 13 where an inquiry into why employ- ees needed a union was found to violate Section In Jordan that question was accompanied, shortly thereafter, with management instructions that em- ployees restrain their union activities. Upon the foregoing, I find Respondent did not unlaw- fully interrogate employees, as alleged. (b) I have concluded that, supra, Hroblak did not tell Drake that if the Union were elected, Respondent would offer one package and that, if rejected, there would be a strike. Thus, based on credibility resolution alone, I find no merit to the allegation that Section of the Act was violated by Respondent threatening employees with the futility of selecting the Union as bargaining agent. Assuming, Hroblak made the remark as- cribed to him by Drake, I would find it is not unlawful. It is not contended that engaged in systematic unlawful interrogation. Hroblak's description of his con- versation regarding the Union with the unidentified em- ployee is revealing. In relevant part, Hroblak told that employee that negotiation would ensue if the Union won the election. He accurately explained why Respondent could not be compelled to make I inter- pret Hroblak's statement to the unidentified employee re- garding bargaining to indicate Respondent's recognition of its statutory bargaining obligations. The General Counsel and the Union urge that remark, if made, futility of selecting the Union and conveys an impression that Respondent would not bargain. I disagree. In The Corporalion, 184 NLRB 557 cited by the Union, the Employer was explicit in saying he would never sign a union con- tract. Thus, I find the case inapposite. There are, of course, situations where proscribed con- duct was found by implication. However, the unlawful implication evolves from circumstances which present a regressive bargaining motif. For example, see Rancho Marker, 235 NLRB 468, 471-472 (1978). In the entire in- stant circumstances, I view Hroblak's words. if uttered, to signify a posture of hard bargaining. After Drake said I conclude the fact the employee is does the trustworthiness Hroblak's narration. He not regularly em- ployed at the New it is did not know of the various employees situated there INC., Cruz (1979), 8(a)(l) situs & 13 (1 8(a)(l) uiola- one-story/each-day Conic 141 8(a)(l) 8(a)(l) 8(a)(3) N.L.R.B., F.2d 8(a)(3) Inc., 8(a)(l) I submit bou~ids UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE. ET AL. 703 he knew what a union could or could not do, Hroblak apparently dropped the subject. Hroblak did not seek to pursue the sinister theme ascribed to him. Moreover, the conversation with the unidentified employee tends to belie a proscribed effect. Another case, Dominican Santa Hospital, 242 NLRB 1107 cited by the Union, is distinguish- able. There, the employer issued a memorandum to em- ployees which, in relevant part, stated that negotiations start from scratch. That comment was considered evi- dence of a regressive bargaining stance. It was sufficient to support the conclusion that, by implication, the em- ployees had been warned that selection of a bargaining agent would be futile. The present context differs. I find nothing in the comment attributed to Hroblak, which suggests such a regressive posture. Indeed, the credited testimony reflects the opposite. Specifically, Hroblak ac- knowledged Respondent's bargaining duties to the un- identified employee. One additional point should be noted concerning both the above allegations of independent violation. Drake claimed Hroblak spoke with him in Phillips' office. Hroblak denied this. However, Hroblak did not specifically identify the locus of the discussion. Assuming Hroblak spoke with Drake in a locus of managerial au- thority, that fact is not dispositive of the issue of coer- civeness. Certainly, the of managerial-employee dis- cussions is a factor to be considered. That element alone, nonetheless, does not necessarily support a conclusion that the conversation was coercive. Fairbanks Medical Surgical Clinic, Inc., 2 NLRB 741 974). In Fairbanks, a managerial official interrogated an employee in the manager's office. That interrogation was unaccompanied by threats of reprisal. The Board found the site of the conversation was not, in itself, sufficient basis for finding the interrogation unlawful. It is not asserted in the in- stant case that Hroblak made additional threats. Accord- ingly, I find that if Hroblak spoke with Drake in Phillips' office that fact is of little probative value in all the in- stant circumstances. Upon all the foregoing, 1 find Respondent did not commit either of the alleged independent tions. 2. Drake's discharge The General Counsel and the Union contend Drake was discharged because he was a union member. Re- spondent asserts Drake was discharged because he failed to meet the standard. The General Counsel and the Union claim Respondent's defense is pretextual. The General Counsel must prove certain elements to establish a prima facie case of discrimination. Those ele- ments are (1) that the affected employee had engaged in activity protected by the Act; (2) the employer had knowledge of that activity; (3) that the adverse personnel action imposed on the employee was motivated by union animus; and (4) that the discipline had the effect of en- couraging or discouraging membership in a labor organi- zation. The General Counsel has the burden of proving his case by a preponderance of the evidence. Man- ufacturing Company, Division of Hampshire Woolen Com- pany, NLRB 201, 209 (1963). violations support findings of unlawful motiva- tion. I have found herein that Respondent did not engage in the alleged activity. Nevertheless, such viola- tions are not necessary to an finding. "Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self- serving. In such case . . . the trier of fact may infer motive from the total circumstances proved . . . . If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that. he can infer that the motive is one that the em- ployer desires to conceal-an unlawful motive-at least where . . . the surrounding facts tend to reinforce that inference." Shattuck Denn Mining Corporation (Iron King Branch) v. 362 466, 470 (9th Cir. 1966). The Shattuck Denn principle was quoted with approval by the Board in Best Products Company, Inc., 236 NLRB 1024, 1025 (1978). The allegation requires me to determine, from the totality of evidence, whether the asserted reason for Drake's discharge actually motivated it. Signal Delivery Service 226 NLRB 843 (1976). In addition to claiming the alleged activity is direct evidence of unlawful motivation, the General Counsel and the Union urge Respondent's failure to fur- nish the Excelsior lists evinces such motivation. I reject this contention. In support, the General Counsel cites Best Products, supra. In that case, the Board found that an administrative law judge had erroneously refused the General Counsel's proffer of findings in a prior represen- tation proceeding as evidence of union animus. con- clude that case factually distinguishable from the case at bar in a critical respect. In Best Products, the administra- tive law judge rejected findings which emanated from an evidentiary hearing. Herein, the Regional Director's sup- plemental decision evolved from an administrative inves- tigation of the Union's objections. No hearing on objec- tions was held. In these circumstances, it is speculative to assume the failure to the Excelsior lists was prompted by unlawful considerations. A variety of rea- sons may exist for that omission. They may be unreason- able or even invalid, but not unlawful. The simple fact is Respondent herein has not been afforded an opportunity to litigate the subject. That issue has not been placed for- mally before me. In the circumstances, I conclude it ex- ceeds the of justice and fairness to accord proba- tive value to the failure to comply with the Board's Ex- celsior requirement. I now turn to the pretext theory. A fair assessment of all the record evidence persuades me Respondent's de- fense has merit. Evaluation of the integrity of the defense entails a definition of terms. Specifically, analysis must clarify the meaning of Respondent's requirement that Drake was expected to generate at least one story each day. Seemingly, Drake sometimes met Respondent's standard. Arguably, the standard was met during the week Drake performed walk-ons every day. If walk-ons are contemplated within the definition of "generating a one-story/each-day l 4 one-story/each-day story.15 & Co.. Inc.. Paramount Co., Inc., ( ( I ) ' * I\ uncontrad~cled jnh entail\ some \trert rr- '" th~rd hecau\r dr, qual~fy "generation." Nuys 8(c) to helow 1187 Co.. Inc., Res~ondent ~roffered guage inartful Bonner, 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD story," then Drake fulfilled the standard and a founda- tion exists for finding its assertion a pretext. I conclude walk-ons are not an ingredient which satis- fies Respondent's requirement. Re- spondent's assertion of the existence of the one-story/ each-day standard is not seriously contested. Also. though the General Counsel and the Union claim Drake had been hired as an anchorman, their positions concede Drake needed to be trained. That training necessitated work as a street reporter. Analysis of the standard is instruc- tive. Such analysis shows that certain qualities must be demonstrated by the employees who are judged by those standards. Thus, to generate a story, an employee must show initiative, inventiveness, originality, and creativity. These qualities clearly are essential to the successful gathering of and reporting the news. The record, as a whole, shows the product of street reporters is the result of application of some of the enu- merated factors. An anchorman must use all the de- scribed elements. Also, anchormen must show ability to direct and produce a telecast of news. On the other hand, the performance of walk-ons does not entail application or demonstration of such stringent requirements and versatility. Gathering of source materi- als is considerably easier for walk-ons. They are derived from ready-made material. From the foregoing, I con- clude walk-ons are not the equivalent of generating a story. Viewed in this light, I find the record shows Drake did not meet Respondent's performance standard. The defense is susceptible to empirical measure. Thus, out of 15 workdays when the standard was expected (beginning with Drake's second workweek and ending on date of discharge), he generated only six stories. Two of the sto- ries were generated on one day; and one of them was a sports, not news, Accordingly, I find these sta- tistics provided Respondent with good cause for Re- spondent to consider Drake's work substandard. Whether that good cause was the operative factor in Drake's discharge is the next question. The Act "does not require that an employer acted wisely, or even rea- sonably; only whether reasonable or unreasonable, that it not act discriminatorily." Paramount Metal Finishing and Plating 225 NLRB 464, 465 1976). The General Counsel and the Union make inroads on Respondent's contention that Drake's termination was not motivated by unlawful considerations. Their argu- ments are only superficially appealing. Thus, the follow- ing factors militate against Respondent's position: The record contains evidence of Respondent's animus. Thus, it is admitted, one of the purposes for Hroblak's September 17 visit was to inform employees that Respondent was opposed to unionization, Hroblak forthrightly described that he pursued that aim. He nar- rated his conversations with the unidentified employee, and with Drake. I t that the anchorman porter's work. I have excluded the walk-ons during Drake's week I have found they not for the definition of However, expressions of animus, standing alone, d o not appropriately comprise the predicate for an unlawful inference. Proof of motive cannot be presumed merely by establishing the existence of union animus on the part of an employer. Van Publishing Company, 167 NLRB 415 (1967). Indeed, Section of the Act estab- lishes an employer's right to freely express his views as unions. An employer is perfectly at liberty to oppose unionization. This right is not without limit. Where animus is coupled with other indicia of hostility, the cir- cumstances thus created d o form a basis for a finding that employee discipline is unlawfully motivated. In view of Drake's numerical production, and the evi- dence of Respondent's knowledge, which I shall find to be failing, I cannot rely on the evidence in this record showing bare animus to establish the requisite un- lawful motivation. (2) There is evidence suggesting Respondent shifted its reasons for Drake's discipline. Such shifting of reasons is indicative of discriminatory intent. Tyler Pipe and Found- ry Company, 132 NLRB (1961); Greyhound Taxi 234 NLRB 864 (1978). It was at the instant hearing that, apparently for the first time. Drake's failure to meet , , the production standard as the sole ground for discharge. Nowhere in Phillips' memorandum (G.C. Exh. 5) pre- pared, as he claimed, on the day before Drake's dis- charge. does this reason appear. This omission presents a suspicious circumstance. This is evidence that the assert- ed defense is pretextual. I find this circumstance of little probative value. When testifying, Phillips identified the second paragraph of his memorandum as containing the basis for discharge. That paragraph, in full, states "he (Drake) was informed that his duties were to learn the routines, the people and the use of the equipment we were working with." Clearly, the quoted language does not state Respondent's defense in explicit terms. Nonetheless, I conclude the quoted lan- reasonably contains an allusion, albeit in language, to the asserted failure of Drake satisfactorily to progress during his training period. Accordingly, I accord little probative value to that evidence which sug- gests shifting reasons. (3) Drake's immediate supervisor did not recommend his termination. The record shows Bonner simply made periodic reports on Drake's progress. Admittedly, he did not recommend to Phillips that Drake be discharged. Phillips assumed all responsibility for the decision to ter- minate Drake. Admittedly, Phillips made no detailed per- sonal investigation of Drake's work performance. Phillips claimed he relied on Bonner's report and also his own confrontations with Drake. Drake criticized the equip- ment. He was rather presumptuous in his claim to become anchorman. In its totality, I conclude the record shows Phillips had sufficient basis to consider terminat- ing Drake. In the context of Hroblak's earlier instruc- tions to take no termination action without consultation during the union campaign, I find it reasonable that Phil- lips discussed the matter with Hroblak. In the context of having received negative reports from I am un- willing to place significance on the absence of a specific evidence sec. III,B, 1 story/each 1 Durvoses The numbered sus~icious How&- Carrom Inc, 17), Hroblak.15 Nuys 1. 2(2), (6), 2(2) l q c ) l 5 l 6 Sec. Regulations Sec. 705 UNITED BROADCASTING COMPANY OF NEW HAMPSHIRE, INC., ET AL. discharge recommendation from Bonner. At best, I con- clude that omission merely creates a suspicious circum- stance. (4) Respondent's asserted reason for discharge was presented after the fact. This is some the de- fense is pretextual. Stanford Seed Co., 245 NLRB 1064, ALJD, (1979). Thus, Phillips admitted he gave no reason for the discharge during Drake's terminal interview. Phillips testified, without contradiction, there had not been numerous terminations in the past. He cre- dibly explained it was his policy to avoid presenting dis- charges with the reasons for their termination to avoid rancor. Though Administrative Law Judge James L. Rose observed some reasons for discharge were after the fact, there was other evidence in Stanford Seed support- ing a finding of pretextual motivation. In that case, the discharged employee was provided patently false reasons for the discipline imposed. Those reasons were contro- verted by Stanford's past practice. In the instant case, there is no evidence of such inconsistency. Accordingly, I find the failure to give Drake a reason for his dis- charge, in the instant circumstances, of little probative value. (5) Finally, the General Counsel and the Union argue the failure to warn Drake he was subject to discipline warrants a pretext finding. I agree the record contains no evidence of such a specific warning. However, during Bonner's discussions with Drake in Drake's second and third weeks of work, Bonner told Drake of the one day requirement. In this context, I am unwill- ing to draw an adverse inference against Respondent be- cause it failed to explicitly warn Drake he was subject to potential discipline. Drake was in a training period. It is reasonable to assume a trainee would understand the consequences of a failure to perform in accordance with his employer's expectations. In any event, consider Bonner's unrefuted testimony that he advised Drake of Respondent's standard some evidence that the foundation of Respondent's defense existed early in, if not through- out, Drake's employment and has not been fabricated for of this litigation. five paragraphs immediately above, at best. create a series of circumstances. er, even substantial suspicions regarding Respondent's as- serted defense do not suffice as proof of discriminatory motivation. Division, Affiliated Hospital Products, 245 NLRB 703, fn. 1 (1979). Rather than relying on these suspicious circumstances, I am more persuaded by the failure of the record to show that Respondent had direct knowledge of Drake's union membership. As noted, Hroblak admitted Drake told him (on Sep- tember that he had been a union member at a former employer. The state of this record does not permit me to find that information was the nexus of unlawful motiva- tion. There is no evidence Phillips knew of Drake's union membership. The credible evidence shows it was Phillips who made the discharge decision. Thereafter, he consulted with Hroblak pursuant to previous instruc- tions. Phillips recommended the discharge action to Hroblak left the discharge to Phillips' discre- tion. There is absolutely no evidence that Hroblak told Phillips that he (Hroblak) knew of Drake's union mem- bership. I cannot infer Phillips' knowledge merely from suspicious circumstances. Accordingly, I find the record does not contain sufficient evidence to prove the essen- tial prima facie element of employer knowledge. Upon all the foregoing, I conclude the record fails to establish by a preponderance of evidence that Drake's discharge was pretextual and motivated by union animus. Van Publishing Company, supra at 416. Having found Drake did not meet Respondent's performance standards, I conclude he was discharged for good cause. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the follow- ing: United Broadcasting Company of New Hampshire, Inc. d/b/a WMUR-TV is an employer engaged in com- merce within the meaning of Section and (7) of the Act. 2. Local 1228, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section of the Act. 3. Respondent has not committed any of the unfair labor practices alleged in the complaint. 4. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section of the Act, I hereby issue the following recommended: The complaint herein is dismissed in its entirety. The Union asserts it was Hroblak who "ordered" Phillips to dis- charge Drake. I find the facts show the contrary. In the event no exceptions are filed as provided by 102.46 of the Rules and of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in 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.