Louisiana Television Broadcasting Corp.

LOUISIANA TELEVISION BROADCASTING CORPORATION 55 with an organization which admits to membership, employees other than guards.' 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner and the Employer agree that a unit of guards and watchmen is an appropriate unit. However, the Employer would exclude from the unit three individuals named Parsons, Meadows, and Sash, who the Employer contends spend a major part of their time exercising supervisory authority. The Petitioner contends that these employees are leadmen who should be included in the unit. The record shows that these individuals perform the work of shift fore- man, three out of five shifts a week. While performing these duties, these individuals are solely in charge of their shifts, receive a higher rate of pay than the rest of the guards, responsibly direct the em- ployees working under them, assign work, and grant time off. We find on these facts and the entire record that Parsons, Meadows, and Sosh perform supervisory duties. Further, as they exercise the powers of supervisors for substantial periods of time in the regular course of their work, we shall exclude them from the unit as supervisors.' Accordingly, we find that the following employees constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All guards and watchmen at the Employer's mining and ore process- ing operations in Inspiration, Gila County, Arizona, excluding office clerical employees and all other employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] A Federal Services, Inc., 115 NLRB 1729. 5 United States Gypsum Company, 127 NLRB 134. Louisiana Television Broadcasting Corporation and Local 995,. International Brotherhood of Electrical Workers, AFL-CIO. Cases Nos. 15-CA-2066 and 15-CA-2096. April 17, 1963 DECISION AND ORDER On December 21, 1962, Trial Examiner Henry S. Salim issued his Intermediate report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom- and take certain affirmative action, as set forth in the attached Inter- 142 NLRB No. 11. 56. DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the ex- ceptions and brief, and hereby adopts the findings,' conclusions, and recommendations 2 of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner except that provision 1(d), and the corresponding provision of Appendix A, are hereby amended so as to include after the clause "or to refrain from any and all such activities" the clause "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." The notice is also amended so that the note will read : No E.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. ' On page 62 of the Intermediate Report the Trial Examiner inadvertently referred to the testimony of Harold D. White as being that of Thomas White. 2 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Members Rodgers and Leedom are convinced that the attachment of inter- est to backpay exceeds the Board's remedial authority. While adhering to such view, for purposes of this decision they are acceding to the majority Board policy of granting interest on moneys due. INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this proceeding are whether the Respondent Corporation by engaging in alleged coercive tactics thereby violated Section 8 (a) (1) 1 and whether its termina- tion of two of its employees was motivated by their union activities in violation of Section 8 (a)(3) of the Act or whether the employees were terminated for lawful reasons? 'Interrogation of employees with respect to their union activities ; threatening em- ployees with loss of benefits, prospective advancement in employment, and reduction in personnel if they voted for the Union. 2 The pertinent provisions of the National Labor Relations Act, 61 Stat. 136, as amended, read as follows: LOUISIANA TELEVISION BROADCASTING CORPORATION 57 The charges in this case were filed on March 29 and May 23, 1962, and the case heard on July 31 and August 1 and 2, 1962, before Trial Examiner Henry S. Salim. The Respondent -filed its answers on July 24 and July 31, 1962, denying the com- mission of any unfair labor practices. Briefs were received from the General Counsel and Respondent on September 17, 1962, which have been fully considered. Upon the entire record and from observation of the demeanor of the witnesses while testifying, there are hereby made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Louisiana corporation located in Baton Rouge, Louisiana, where it operates a television station. During the past 12 months, the station's gross revenues exceeded $300,000 and it purchased directly from places outside the State of Louisiana goods and services valued in excess of $50,000. Respondent operates under license from the Federal Communications Commission and transmits television programs outside the State of Louisiana. Respondent admits and it is found that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 995, International Brotherhood of Electrical Workers, AFL-CIO, herein referred to as the Union, is a labor organization as defined in Section 2(5) of the Act. Ill. THE TESTIMONY Henry Havard, an alleged discriminatee, was employed by Respondent in its film department from February 1958 until his discharge on March 21, 1962. On or about March 15, 1962, Havard, with the aid of Glen Hawkins, the other alleged discriminatee, began to solicit Respondent's employees at their homes and on the Company's parking lot to join the Union. Havard was the prime protagonist of the union organizing campaign in Respondent's television station. He discussed the union with his fellow employees and he took the leading part in the drive to organize Respondent's employees, securing signed authorization cards, from 12 to 14 of them, between March 15 and March 21, the date of his discharge. Hawkins, who assisted Havard in these union activities, obtained the signatures of two employees.3 Thomas L. White, who is presently employed by Respondent, testified that on March 21, 1962, his supervisor, John T. Crowe, production manager, called him to his office. White's testimony is as follows: On March 21st I was approached by my supervisor, John Crowe. He asked me to come in to his office around 1:00 in the afternoon. He and I were alone in the office . . He started the conversation by asking me whether or not I had heard anything about union activities . . . . I said yes, that I had, that I had been approached . . Later in our conversation he did, through a slip of the tongue, mention the name of Henry [Havard] in regard to the ring- leader . and he gave me the impression that he knew that Henry Havard was the leader of the union group. He asked me if I signed any sort of card, and I hesitated in answering at first, and then I went ahead and told him yes, SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . . Suc. 8. (a) It shall be an unfair labor practice for an employer- (1) to Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . . On March 21, 1962, the Union requested that the Respondent recognize It, and on March 29, it filed a petition and request for representation with the Board and a hearing was held on April 10, 1962. (Case No. 15-RC-2524.) On May 8, 1962, a decision and direction of election was issued by the Regional Director and both the Respondent and Union sought review of said decision which was not ruled .upon by the Board as of August 2, 1962, the date when the hearing in this proceeding concluded. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I had. He seemed to be somewhat perturbed, dismayed at this answer of mine, and he told me that he was somewhat surprised to hear that I had done such a thing, that me in particular among management of the station they held me in some esteem and that they thought me to be a loyal and trusted employee. He went on to say that if a union should come into the station there would be necessarily some changes, possibly even cuts in the production personnel, as I understood him to say, if the union were to come in, naturally the station would not be able to support the amount of number of employees with the union as they do now without the union in the station. He also said that there was a . good possibility, good chance, that some of the benefits which we now enjoy at the station would be taken away, such as life insurance, hospitalization, profit- sharing plan, Christmas bonus and things like this. Again on Thursday, March 22, I was called into the office of Mr. Crowe, my supervisor, . around one o'clock and again the door was closed. We were alone. This time he seemed to want to make several points directed at me in particular concerning if I should join the union. He did say something to the effect that I would not be the remote cruiser director any more. That also he thought my chances of advancing into management would be almost nil as far as the station was concerned if I were to join the Union. On cross-examination, White testified as follows: Q. Other than what you have gathered from your remarks with Mr. Crowe, has any management man ever threatened you . ? A. You mean any other man aside from Mr. Crowe? Q. Yes. A. No, sir. Lloyd Gates, who is presently employed by Respondent television company, testified that Crowe, his supervisor, asked him to come to his office around 2 p.m. on March 21, 1962. He testified as follows: He [Crowe] asked me if I had heard anything about the organizing, and I told him that I had. He started talking about what the organizing would be, the union would be, and he knew that the talk was going around the station and he knew where the talk was coming from. * * * * * * * Q. Did he say whether he knew who was contacting the employees? A. He didn't say who, no, but he said that they knew who was talking . . And if this union went into effect, that it could cause a wall between the front office management and the crew in the back, production, and that there would be less chance for advancement, or say no chance for advancement I believe is what he said. Q. Did he ask you whether anyone had approached you to sign a card? A. Yes, sir, and I told him that I had not signed a card. Q. Was any mention made of the profit-sharing plan? A. Yes, sir. He said it was a possibility that it could be taken away if the union went in. John Di Benedetto, who is presently employed by Respondent, testified that Crowe called him to his office between 3 and 4 p.m. on March 21. He asked me if I knew why I was being called in to talk to him, and I said I thought it was about the union. Then he explained to me the advantages of the union coming into the station and not coming in . . . . Such as things that could be negotiated . . [Crowe] said that he knew that it was Henry Havard that gave me the card, brought me the card. * * * * * * * Q. Do you have any memory of Mr. Crowe asking about whether you signed anything? A. He asked me had I signed anything, and I said, "Yes." Joseph W. Daigle, who is presently employed by Respondent, was called to his supervisor's office, Crowe, about 4:30 p.m. on March 21. Daigle testified as follows: He wanted to know if I had signed a union card, and I told him yes, and he said, "Well I'm going to give you the company's side of the situation. If the union is voted in," he said, "all your benefits and salaries will have to be nego- tiated for. Everything will have to be negotiated for." And in return, I told LOUISIANA TELEVISION BROADCASTING CORPORATION 59 him, "Well this includes hospitalization and everything , I take it, like that," and I told him, "Well my wife is expecting a baby in October , and I strictly need my hospitalization." I really worried about that, so my reply to him was that I would have to weigh these things out fully and more so, but I probably could not vote for a union under those circumstances . He stated that if a man was on the floor with a license it would probably be hard for him to move up to a Director's position. Guillermo Vega, an employee of Respondent , was also questioned by Crowe on the same day as to whether he was given a union card and he was told by Crowe that he might lose his fringe benefits such as a profit-sharing plan, and medical and life insurance. A few days later Crowe elicited from Vega, in an oblique manner, that Havard had signed up Vega for the Union. Harold D. White and George David, who were the two employees that remained in the film department after Havard left Respondent's employ, testified that John Ferguson, program manager and their supervisor, spoke to them together on March 22 about the union situation. The Union had requested recognition the previous day. They testified that Ferguson told them there was a possibility that they could lose their fringe benefits if the union were selected by the employees. White testified as follows: Then [Ferguson] said, "Well, you know that the station has always been very lenient towards mistakes , but if a union came in, there would probably be only one mistake made," and then he said, "You know that Mr. Manship [president of Respondent] can cancel the trust fund at any time he desires to" and said if the union came in, he would imagine he would cancel it. He couldn't say for sure. He said, "You know that Henry has been fired," that he was very disappointed in Henry; he had always looked upon him as a friend and a person he could trust, but he had found out he was neither a friend of his nor ours. David also testified that Ferguson told them he was resentful of what Havard had done, stating, "that he was disappointed in that he thought he could trust him." Louis Craig who was employed by Respondent until May 1962, testified that Crowe spoke to him in his office about a week after Havard left Respondent's employ. According to Craig, Crowe said that he had heard that union activities were being started and this was the wrong way to go about getting raises . He also said , accord- ing to Craig, that Aubrey Moore [station manager] "was extremely mad," and that "he wanted to fire and whole bunch of us" but "he [Crowe] had to talk [Moore] out of it." And Crowe went on to say, Craig testified, that Mr. Manship [Respond- ent's president] "would be so mad [there] was no telling what he would do." Craig also testified that Crowe said that Manship could cut out the savings deal, that is the payroll savings; Crowe also referred to Tom White, another employee, and said, "You take a man like Tom White, bright and he's well educated , he could go a long way in television . Something like this could mess that man's future up . Jeffrey Plauche, who was employed by Respondent until May 1962, testified that both Crowe and Ferguson asked him if he had signed a union card. Havard, one of the two alleged discriminatees (Hawkins is the other) was called to Ferguson's office, his supervisor, around 4 p.m. on March 21, 1962, and told that he was being laid off due to a reduction in force. Ferguson handed Havard his check, and said: "As you know, we have been planning on letting you go because of the economy cut-back . . . . Hawkins, a cameraman , was discharged by his supervisor, Crowe, on May 16, 1962. Hawkins' testimony as to what transpired at that time is as follows: he told me that he was terminating my services, and he said that he thought about it a long time and considered seniority and everything, and that he was letting me go . I asked him if there was any particular reason for this, and he said that he thought my attitude hadn't been the best, that I was not showing any progress in my work. He said I did all right up to a certain point but then it stopped. He didn't say what that point was, or what particular incident there was about my attitude. He also said that he thought that I would do all right in journalism, which is my major field-I work in, television as a minor-but that he didn't think I would work out in television. He said that I could use him as a reference should I attempt to get another job, but he would have to put things down as they were. Hawkins testified that this was the first notice he received that he was to be dis- charged and that Crowe made no mention of a returning serviceman necessitating his discharge when he notified him of his termination. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in its answer avers that Hawkins was discharged on May 16, 1962, because of its written policy enunciated by a posted announcement in January 1962, that it might be necessary to terminate the employment of various personnel to make room for the reinstatement of former employees returning from military service. "Such a step," the Respondent's announcement stated, "will be taken only with the greatest reluctance and only if absolutely necessary." Hawkins' discharge, Respondent alleges, was necessitated by the return from military service of Lewis Latil who was employed by Respondent at the time he was drafted. However, at the hearing, Respondent asserted for the first time that Hawkins' attitude was "indifferent" and in corroboration introduced evidence that when pay raises were given in October 1961, all of the employees in the production department except Hawkins received such increases. A. Resolutions of fact and credibility Respondent's claim that Hawkins was discharged for an unsatisfactory attitude and its denial that it interrogated and threatened its employees was not corroborated by their producing as a witness, Supervisor John T. Crowe, who allegedly had personal knowledge of the most vital circumstances surrounding Hawkins' discharge and the alleged violations of Section 8(a)( I). The unexplained failure to produce Crowe as a witness at the hearing, renders the purported reason for Hawkins' discharge dubious and also warrants drawing an inference that if produced, his testimony would not have been favorable to the Respondent.4 His absence "not only strengthens the probative force" of Hawkins' testimony "but of itself is clothed with a certain pro- bative force." 8 Considerable credence also has been placed upon the testimony of those witnesses who were in the employ of Respondent at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testifying they would continue in the employment of Respondent. Moreover, the trier of these facts is not unmindful of the predicament of an employee who testifies adversely to his employer's interests, being apprehensive and fearful, with some measure of justi- fication, as to the future possibility of retaliatory action. These practical considera- tions coupled with the normal workings of human nature have led the Trial Examiner to credit the testimony of Thomas L. White, Lloyd Gates, John Di Benedetto, Joseph W. Daigle, Guillermo Vega, Harold D. White, and George David who are presently employed by Respondent, as it is believed they were impelled to tell the truth re- gardless of what consequences might eventuate. Unlawful motivation in discharge or layoff cases is not often proved by admission. Rather, the motive for the discharge or layoff must be ascertained from the context of preceding and attendant circumstances. While denials or disavowals of proscribed objectives may not be discounted because they are self-serving, they nevertheless are not to be credited merely because they are uttered. Nor may evidence which is cir- cumstantial be disregarded because it is based on inference. "Courts and other triers of facts, in a multitude of cases, must rely upon such evidence, i.e., inferences from testimony as to attitudes, acts and deeds; where such matters as purpose, plans, de- signs, motives, intent, or similar matters, are involved, the use of such inferences is often indispensible." 6 1. Hawkins' termination It should be noted that with respect to Respondent's contention that one reason it fired Hawkins was because of his attitude, which it characterized as "bad," "indif- ferent" and "not the best"-was not related to any specific incidents. Rather, they are broad, subjective characterizations of Hawkins' general attitude over an intermittent period of 3 years 7 and were, therefore, quite impossible to refute and difficult to impugn through cross-examination. For example, there is the cryptic statement of Moore, Respondent's station manager, that Hawkins "was satisfactory insofar as he never did anything to justify firing him." Also, Manship, Respondent's president, ' Inter8tate Circuit v. United States, 306 U.S. 208, 225, 226; N.L.R.B. v. Wallick and Schwalm Company, et at., 198 F. 2d 477, 483 (C.A. 3 ) ; Concord Supplies & Equipment Corp., 110 NLRB 1873, 1879. 6 Paudler v. Paudler, 185 F. 2d 901 , 903 (C.A. 5), cert. denied 341 U.S. 920. 6P. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 660 (C.A. 2). 7 Hawkins had previously worked for the Company from May 1959 to March 1960, at which time he was laid off, and from August 1960 to March 15, 1961 , when he became ill. The last time before his discharge on May 16, 1962, he was reemployed by Respond- ent on June 12, 1961. LOUISIANA TELEVISION BROADCASTING CORPORATION 61 testified that Moore told him Hawkins' "work is not of a nature that would require us to discharge him, because he performs his work, but he does not perform it with any great amount of enthusiasm or vigor or imagination." It is true that Respondent stresses Hawkins being the only employee in its produc- tion department who failed to receive a pay raise in October 1961, as indicative of the unsatisfactory quality of his work performance, but Hawkins attempts to refute this by his testimony that his supervisor, Crowe, gave him contradictory reasons for his failure to receive a pay increase. On one occasion, testified Hawkins, he was told by Crowe that because he had been ill for 3 months prior to the time the increases were granted, he was not qualified or eligible to receive one. There appears to be validity to this reason as Moore, Respondent's station manager, testified that every- one in the production department received raises who had been in the Company's employ for 6 months prior to the general raise on October 1, 1961. Hawkins, how- ever, who had become ill on March 15, 1961, was not reemployed until June 12, 1961. On another occasion, when Hawkins repeatedly requested a pay raise, he was in- formed by Crowe, so Hawkins testified, that "he couldn't get it through the front office." Then too, Hawkins' testimony stands uncontradicted that Crowe told him that his failure to receive a raise "had done [his] attitude good, and he thought I was showing progress in my work." These unspecific, inconsistent,8 contradictory, and unconvincing reasons given for Hawkins' discharge create a suspicion that they were offered to conceal an unlawful motive, which in this situation, it is found, was an attempt to forestall union activity and to abort the Union's organizational activities by discharging Hawkins, whose union activites, it is uncontradicted, Respondent was aware of before the date of his discharge .9 While an employer is not bound to justify the discharge of an employee until a prima facie case of discrimination has been established, he cannot, by mere retro- spective assertion of an unspecific dissatisfaction with his employee's attitude, escape the consequences of unlawful conduct. Hawkins, an experienced employee, who be- gan working for Respondent in 1959, and engaged in union activities commencing March 15, 1962, was precipitately discharged on May 16, 1962. There is no sub- stantial evidence on the record which discloses there was any credible basis for Re- spondent's alleged dissatisfaction with the quality of Hawkins' work. Moreover, Respondent's hiring a replacement for Hawkins shortly after his discharge belies its defense that his discharge was necessitated by the return from military service of one of their employees. These insubstantial, multiple and shifting explanations, which are indicative of a discriminatory intent, subsequently advanced for his discharge, compels the conclusion that the decision to discharge Hawkins was motivated by his union activities.10 Argumentatively assuming that Respondent may have had some cause for dissatis- faction with Hawkins' work prior to the termination of his employment, yet, as the Court of Appeals for the Third Circuit observed in a somewhat similar case, "it ap- parently become intolerable only after he had joined the Union." 11 Moreover, the Board and the courts have held that the fact a valid cause for discharge exists does not excuse a violation of the Act, if the evidence shows that the employer's real reason was to discourage union activities of the dischargee.12 As was recently stated by the Court of Appeals for the Fifth Circuit: 13 8 Crowe's offer to write a letter of recommendation for Hawkins is inconsistent with Respondent's contention that his attitude was unsatisfactory. 'See page 59, supra.. 8In arriving at this finding, no reliance has been placed upon Hawkins' affidavit. General Counsel's Exhibit No. 4. 10 "When an employer shifts position several times in explaining why an employee has been fired, his own case is weakened, and the Board's conclusion that the true reason was for union activity is correspondingly strengthened." N.L.R.B. V. Georgia Rug Mill, 308 F. 2d 89 (C.A. 5). Shifting reasons for an employee's discharge are indicative of a discriminatory intent. Dant & Russell, Ltd., 92 NLRB 307, 320; Fort Worth Steel and Machinery Company, 125 NLRB 371, 372. 11 N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 983. 12 Kingston Cake Company, Inc., 97 NLRB 1445, 1451. N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1) ; N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). 13 N.L.R.B. v. Linda Ja Shoe Company, 307 F. 2d 355, 357. "If employees are dis- charged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the National Labor Relations Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But if the discharge is because of union activity it is a violation of the Act even though a valid ground for dismissal might exist. This is a situation where it is believed that the Respondent has characterized the union activity for which Hawkins was discharged as an unsatisfactory attitude in an effort to justify the discrimination against him and that its asserted reason was simply a pretext or, perhaps, an afterthought, to disguise its unlawful motivation.14 Further, Respondent's defense that Hawkins' discharge was necessitated by the return from military service of one of its employees is rendered somewhat dubious in view of the uncontradicted fact that one, Joe Bock, was hired approximately 2 weeks after Hawkins' discharge in the same capacity as Hawkins had been employed. It is, therefore, concluded and found that by discharging Hawkins, Respondent was guilty of discrimination in violation of Section 8(a)(3) of the Act. 2. Havard's termination Henry Havard, the other alleged discriminatee, worked in Respondent's film department from February 1958 until his termination on March 21, 1962. He was originally hired as an assistant film director at a weekly salary of $50 . He received four successive wage increases and at the time he left Respondent 's employ he was earning $75 a week. The General Counsel contends that the reason for Havard's termination was to counter union organizational activity . Respondent in its answer denied that Havard's termination was the result of his union activities , averring that Havard was "laid off" due to a reduction in force. Ferguson, who was Havard's super- visor, testified that on November 7, 1961 , it was decided by Respondent's officials to lay off Havard as the three men then employed in the film department were one too many. Nothing was done at that time to effectuate this decision . Ferguson explained the delay by testifying that although the original decision was to terminate Havard as of November 13, 1961, he felt it would be unduly harsh to terminate Havard before his graduation from college the following February . In March, tes- tified Manship, Respondent's president, when he learned of the delay, he ordered Ferguson to lay off Havard immediately which was done on March 21, 1962. Fer- guson testified that although Havard had seniority over the other two men in the film department, Havard was selected to be the one laid off in the reduction in force because he did not intend to remain with Respondent in the event he obtained a better paying job. 15 Moreover, Respondent's witnesses testified in justifying Havard's "layoff" that they knew Havard had been actively seeking employment elsewhere in a better paying job some months before his layoff, whereas they considered White and David, the other two film department men as permanent employees who had no intention of leaving the Company. Conclusions Union membership or activity does not insulate an employee against the hazards of unemployment due to lack of work or any other reason related to the legitimate management of the business. [Citations omitted.] On the other hand, economic reasons may not be asserted to shield an employer against the consequences of his discrimination against an employee who would not have been laid off but for his union activities or membership. [Citations omitted.] The circumstances of each case must be weighed to determine what motivations truly dominated the employer in laying off or discharging the employee.ls The testimony detailed above, shows Havard was the "key" employee in the organizational drive and that Respondent not only was aware of the Union but also knew of Havard's participation in union activities at the time of his alleged layoff. This is evidenced by Crowe's conversation on March 21 with Thomas L. White, Joseph Di Benedetto and Guillermo Vega. Equally significant is Thomas White's testimony that Ferguson told him and George David that Havard "has been fired." 17 The context in which Ferguson made this statement dispels any doubts as to Respondent's motive in terminating Havard and also shows that Respondent 14 See N.L .R.B. v. Jackson Tile Manufacturing Co., 282 F. 2d 90 , 92 (C. A. 5). 15 Havard was also scheduled to enter military service but notified Respondent in No- vember 1961 that he bad failed to pass the physical examination. 10 N.L.R.B. v. Jones Sausage Co . & James Abattoir Co., 257 F. 2d 878, 881-882 (C.A. 4). 17 Ferguson's denial that he said this is not credited. LOUISIANA TELEVISION BROADCASTING CORPORATION 63 had knowledge of Havard's union activities prior to his discharge. This conclusion is fortified when the testimony detailed above, reveals the union animus of Re- spondent's officials, particularly Craig's testimony, that Crowe told him that these union activities so infuriated Moore, the station manager, that "he wanted to fire the whole bunch of us," and his statement that, "Mr. Manship would be so mad there was no telling what he would do." These statements which show manage-, ment's antipathy to the Union and its aversion to the actions of the employees in indicating an interest in the Union, is relevant as reflecting Respondent's prior knowl- edge of Havard's union activities as well as the basis for its official's attitude toward Havard immediately preceding his "layoff." 18 A realistic appraisal of the foregoing facts leads to the conclusion that Havard was discharged for his union activities and not laid off due to a reduction in force. This finding is based, in part, on the timing of his termination, and also on the precipitate manner in which his discharge was effectuated, in that he was given no advance notice. It stretches credulity too far to believe that there was only a coin-. cidental temporal connection between the lapse of 6 days from the inception of Havard's intensive union activities on March 15 to his discharge on March 21.19 Also significant is the fact that when Havard left Respondent's employ on March 21, Louis Craig, who formerly worked for Respondent, went to work for Respondent on March 26. Employers are not in the habit of dismissing competent employees merely to replace them. The courts have recognized repeatedly than an inference of "discriminatory motivation is sustained and buttressed by the fact that the explanation" given by the employer for its action "fails to stand under scrutiny." 20 It is concluded and found, therefore, that Havard's discharge, in conjunction with Hawkins', and in the light of the background developed by the evidence, constituted an interference with, restraint, and coercion of Respondent's employees in the exercise of their rights provided for in'Section"7 of the Act, and was discrimination in regard to their hire and tenure of employment, thereby discouraging membership in the Union in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.21 IV. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) The complaint alleges also that Respondent interrogated employees concerning their union activities, threatened employees with loss of benefits, loss of prospective advancement in employment, and reduction in personnel if they selected the Union as their bargaining representative. In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a) (1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to inter- fere with the free exercise of the rights guaranteed by the Act.22 Then too, on the issue of whether the Respondent violated Section 8(a)(1), consideration has been given also to Respondent's discriminatory discharges of Havard and Hawkins, as it is not required that each item of Respondent's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole with a view to drawing inferences reasonably justified l?y.their cumulative probative effect 23 - In applying these principles to the facts in this proceeding, it is found that Re- spondent in violation of Section 8 (a) (1) interfered with, restrained, and coerced its employees by the following conduct: (1) . Crowe, Respondent's supervisor, inter- rogating employees Thomas L. White, Lloyd Gates, John Di Benedetto, Joseph W. Daigle, Guillermo Vega, and Jeffrey Plauche concerning their membership in and activities on behalf of the Union; (2) Ferguson, Respondent's supervisor, threaten- ing employees Harold D. White and George David with loss of benefits if they selected the Union as their bargaining representative; (3) Crowe threatening employee Thomas L. White with personnel reductions, loss of benefits, and loss of prospective advancement in employment; (4) Crowe threatening Lloyd Gates and Louis Craig with loss of prospective advancement in employment and loss of benefits. is N.L.R.B. v. Georgia Rug Mill, 308 F. 2d 89 (C.A. 5). 19 N.L.R.B. v. City Transportation Co., 303 F. 2d 299, 300 (C.A. 5). 20 N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5) and cases there cited. 21 N.L.R.B. v. Griggs Equipment, Inc;, 307 F. 2d 275 (C.A. 5). 21 Time-o-matic Inc. v. N.L.R.B., 264 F. 2d 96, 99 (C.A. 7) ; Neco Electrical Products Corporation, 124 NL1IB 481, 482. 23 N.L.R.B. v. Popeil Brothers, Inc., 216 F. 2d 66, 68 (C.A. 7) ; N.L.R.B. v. Homedale Tractor & Equipment Company, 211 F. 2d 809, 313 (C.A. 9), cert. denied 348 U.S. 833. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent argues, however, that even if it is assumed these incidents occurred which are detailed above, nevertheless, its letter of May 1 sent to all its employees in which it is stated that none of Respondent's officials are authorized to interrogate employees or threaten them with discharge-absolves it, as a matter of law, from the legal incidence of Supervisors Crowe and Ferguson's prior conduct 24 This argument has no merit as the controlling time is when these incidents occurred which was approximately a month before the time that the Company expressed its policy to its employees by the letter of May 1. While this letter indicates good intentions on the part of Respondent, it is inadequate to dissipate effects of the Respondent's supervisors' previous unlawful actions 25 Moreover, the contention that the letter ,of May 1, in conjunction with Respondent president's speech to the employees, had the effect of dissipating the coercive conduct of Crowe and Ferguson must be rejected. It is well settled that statements of neutrality and disavowal of others' conduct, couched in general language, without specific reference to, or repudiation of, the prior unlawful conduct of the employer's supervisory personnel do not erase such prior unlawful conduct 26 President Manship's letter of May 1 did not make any specific reference to, or repudiate any prior unlawful conduct of the super- visory personnel. To the contrary, his assurance looked to the future: That no employee of Respondent "will" interrogate, interfere, threaten, discharge, or promise benefits. See Respondent's Exhibit No. 1. It is found therefore that the incidents delineated above were intended to have the effect of interfering with the rights guaranteed to employees by Section 7 of the Act and thus constituted interference, restraint, and coercion in violation of Sec- tion 8 (a) (1) of the Act 27 V. THE REMEDY Having found that the Respondent is engaging in and has engaged in certain unfair labor practices, it shall be recommended that it and its successors cease and desist from engaging in such conduct in the future and that it shall take certain affirmative action designed to dissipate the effects of its unfair labor practices and thus effectuate the policies of the Act. It has been found that Respondent discriminated in regard to the hire and tenure of employment of Glen Hawkins and Henry Havard by discharging them because of their union activities. It will be recommended that they be reinstated to their former or substantially equivalent positions. It is also recommended that Respondent make Glen Hawkins and Henry Havard whole for any loss of pay they may have suffered because of discrimination against them by payment to them of a sum of money equal to what they would normally have earned as wages during the period from their discriminatory discharge to the date of offer of reinstatement, together with interest thereon,28 less their net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and N.L.R.B. v. Seven-Up Bottling Company of Miami, Incorporated, 344 U.S. 344. 2* Respondent's attorney also spoke to its employees on March 28 answering any ques- tions they might have with respect to their rights . Manship, Respondent's president, also apprised the employees of company policy regarding the Union in a talk delivered on June 10, 1962. 26 Syracuse Color Press, Inc., 103 NLRB 377 at 392. 2E See Chicopee Manufacturing Corporation of Georgia, 85 NLRB 1439 , 1442 ; Salant f Salant, Incorporated, 92 NLRB 417, 445. 27 The Trial Examiner refused to order the General Counsel to produce for the Respond- ent's inspection , question and answer forms that the General Counsel had used in inter- viewing his witnesses but which were not signed by these witnesses. The Respondent takes exception to this ruling. In a recent case, Harvey Aluminum (Incorporated) and General Engineering, Inc., 139 NLRB 151, the Board affirmed the Trial Examiner's re- fusal to allow the respondent-employer to inspect a memorandum prepared by the General Counsel concerning his interview of witnesses called by the General Counsel . See also Section 102 .118 of the Board's Rules and Regulations, N.L.R.B. v. Chambers Mfg. Co., 278 F. 2d 715, 716 (C.A. 5), and N.L.R.B. v. Vapor Blast Mfg. Co., 287 F. 2d 402, 407-408 (C.A. 7), cert. denied, 368 U.S. 823. 281sis Plumbing cf Heating Co., 138 NLRB 716; Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142 ; Active Mobile Homes Corporation, 138 NLRB 808; Royal School Laboratories, Inc., 138 NLRB 818. LOUISIANA TELEVISION BROADCASTING CORPORATION 65 CONCLUSIONS OF LAW 1. The business operations of Respondent constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and (7) of the Act. 2. Local 995, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Glen Hawkins and Henry Havard, Respondent discouraged membership in Local 995, International Brotherhood of Electrical Workers, AFL-CIO, and committed unfair labor practices within the meaning of Section 8(a) (3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively or otherwise unlawful interrogating employees 29 concerning their membership in, or activities on behalf of Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization of its employees, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (b) Threatening employees with loss of benefits, with the loss of prospective advancement in employment and reduction in personnel if they selected Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization of its employees as their bargaining representative 30 (c) Discouraging membership in Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization of its employees, by discharging or by laying off any of its employes, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer Glen Hawkins and Henry Havard immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their senior- ity or other rights and. privileges, in the manner provided in the section of this report entitled "The Remedy." (b) Make whole Glen Hawkins and Henry Havard for any loss of pay they may have suffered by reason of the discrimination in the manner provided for in the section of this report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due Hawkins and Havard under the terms of this Recommended Order. (d) Post immediately in its offices in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix A." 31 Copies of said notice, to be furnished 2D N.L.R.B. v. Nashua Manufacturing Corporation of Texas, 218 F. 2d 886, 887 (C.A. 5), enfg. 108 NLRB 837. 80 Cf. Bon-R Reproductions, Inc. v. N.L.R.B., 309 F. 2d 898 (C.A. 2). si In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's authorized representatives, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fifteenth Region, in writing, within 20 days from the receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith 32 It is further recommended that unless on or before 20 days from the receipt of this Intermediate Report and Recommended Order, Respondent notifies said Regional Director, in writing, that it will comply with the above recommendations, the Na- -tional Labor Relations Board issue an order requiring it to take such action. '-"In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT threaten our employees with loss of benefits, with the loss of prospective advancement in employment, and reduction in personnel if they select Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, as their bargaining representative. WE WILL NOT interrogate our employees concerning their membership in and union activities on behalf of Local 995, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization of our em- ployees in a manner in violation of :Section 8(a)(1). WE WILL NOT discourage membership in Local 995, International Brother- hood of Electrical Workers, AFL-CIO, or any other labor organization of our employees, by discriminating in regard to their hire and tenure of employment or any term or condition of employment. WE WILL offer to Glen Hawkins and Henry Havard immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the discrimination in the manner and to the extent recommended in the Intermediate Report. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in their choice of bargaining representatives, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, or to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and=all of such activities. LOUISIANA TELEVISION BROADCASTING COMPANY, Employer. Dated------------------- By--------------------------------------_---- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans 2, Louisiana, Tele- phone No. 529-2411, if they have any question concerning this notice or compliance with its provisions.