Dixie Broadcasting Co.

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