Hearst Corp.

RADIO STATION WISN Radio Station WISN , Division of Hearst Corporation and American Federation of Television and Radio Artists, Milwaukee Local affiliated with American Federation of Television and Radio Artists, AFL-CIO. Case 30-CA-612 February 5, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH, FANNING, AND BROWN On November 20, 1967, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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. He further found that Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to the exceptions, cross-exceptions to the Trial Examiner's Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. 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, the briefs of the parties, and the entire record in the case, and hereby adopts the findings,I conclusions, and recommendations of the Trial Examiner, with the modification noted below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Radio Station WISN, Division of Hearst Corporation, Milwaukee, Wisconsin, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order. Chairman McCulloch would not find coercive News Director Froelich's inquiry of employees Phillips and Wilson whether "either had been approached by AFTRA and/or asked to join AFTRA" and Froelich's statement to employee Mann that he knew the latter was "out to get us." Accordingly, he dissents from so much of the Section 8(a)(1) finding as is based on these incidents. 699 2 We deem it unnecessary to pass upon the Trial Examiner' s ruling as to Mann's unit status at the time he was interrogated by Respondent's General Manager Schneider and asked to give up his union card , as Mann was an employee engaged in union activity and Schneiders conduct vio- lated Section 8(a)(1) of the Act. TRIAL EXAMINER'S DECISION SAMUEL SINGER, Trial Examiner: This proceeding was heard before me in Milwaukee, Wisconsin, on September 21, pursuant to a charge filed on July 3 and complaint is- sued on August 10, 1967.1 The issues litigated were whether Respondent violated Section 8(a)(1) of the Act by engaging in acts of interference, restraint, and coercion (including interrogation and threats); and whether it vio- lated Section 8(a)(3) and (1) by discriminatorily discharg- ing and failing or refusing to reinstate an employee on ac- count of his union sympathies and in order to discourage union membership. All parties were represented by counsel and were af- forded full opportunity to be heard and adduce relevant evidence. Respondent did not call any witnesses but cross-examined witnesses called by the General Counsel. All parties waived oral argument at the conclusion of the case. Briefs were received from Respondent and General Counsel. Upon the entire record, the briefs, and from my obser- vation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED Respondent, a Delaware corporation, maintains its radio station and office in Milwaukee, Wisconsin, where it is engaged in radio broadcasting. During the past year, a representative period, its gross sales exceeded $100,000. During the same period, it performed services valued in excess of $50,000 for customers located outside Wisconsin. I find that at all material times Respondent has been an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Charging Party, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background; Revival of Organizational Activity at the Studio The Union was certified as bargaining agent for Respondent's staff radio announcers in March 1950. The last contract, covering July 1959 to June 1961, was ex- tended under its automatic renewal clause through June 1962. Thereafter, the parties did not attempt to negotiate a new contract until 1965, when negotiations failed to produce agreement.2 On April 6, 1967, the Union again Unless otherwise noted, all dates herein refer to the year 1967. A "difference of opinion" existed as to whether the contract was auto- matically renewed and in effect from year to year in 1963-1965, the Union contending that it had and Respondent that it had not. In any event, in April 1965 Respondent served formal written "notice of termination of all collective-bargaining agreements." 169 NLRB No. 97 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initiated contract negotiations; the parties then met on six or seven occasions , but were unable to reach agreement. At the outset of these latest negotiations, a dispute developed as to whether the bargaining unit covered Respondent's newsmen as well as announcers 3 the Union claiming that newsmen were covered and Re- spondent that they were not. Acceding to Respondent's request that the matter be resolved by a Board election, the Union on July 26 filed a petition for an election among the newsmen (Case 30-RC-685). The Union won the ensuing August 28 election by a 4 to 0 vote, and on September 6 was certified as the newsmen's bargaining representative. The proceeding here deals with alleged Company inter- ference, restraint, and coercion with Union activity among Respondent's announcers and newsmen, revived in the fall of 1966. Around October or November 1966, employees Sweet and Fontaine told employee Mann, at that time a Union board member (and now Union vice president), that they wished to join the Union. Mann sup- plied them with membership applications but "nothing . happened" until March 1967 when Sweet, Fontaine, and a third employee (Welch) requested Mann to arrange a meeting with Harry Halloway, the Union's executive secretary and attorney. At a meeting in the last week of March, attended by six employees (three announcers and three newsmen), Halloway discussed the advantages and disadvantages of unionization and answered individual employee inquiries. Also considered was "what could possibly happen to [the men] if the company found out [they] had joined the union." At two later meetings in April (attended by seven employees), the men discussed "the possibilities of a union contract" and the kind of con- tract they wanted. By the end of April or beginning of May most of the employees had signed the Union cards distributed to them at the studios. B. Interference, Restraint, and Coercion 1. The evidence In the meantime , around April 7, General Manager Schneider questioned employee Mann in his office about the "morale" at the studio . According to Mann's uncon- tradicted testimony- Mr. Schneider called me in and asked me first about the morale of the -some of the employees at the station at the Radio Center. That it had been discussed there earlier that the morale was pretty low, for some unknown factors, and that he wanted my opinion if they were improving . And I said, to the best of my knowledge they were. He then asked me if I wanted to give up my union card, and I said I hadn't thought about it. And he re- peated again that he felt that all employees could bar- gain individually on their own merit, that they did not need a labor organization to bargain for them. He said that he felt that a union contract would be, to some employees , a false sense of security. I agreed 8 Respondent employs approximately five announcers and four newsmen. 4 Mann also testified, without contradiction, on his preemployment in- terview with Schneider and Company News Director Froehlich in Janua- ry 1966 , in which Schneider had asked him whether he was a member of the Union. When Mann stated he was, Schneider asked "why ," to which' Mann answered that his last place of employment "was a closed union sta- with him, to a point, I said it's for my own reasons, I thought that I wanted a contract only for better working conditions and higher salary. Mann further testified that Schneider said he "had nothing against the union," but that his family "never had anything to do with a union." When Mann raised the sub- ject of a wage raise, Schneider indicated that the Com- pany "couldn't afford it at the time."4 The parties stipulated that during the week of April 10 or 17, while News Director Froehlich was in the newsroom talking on the telephone, he interrupted his conversation and called across the room to newsmen Phillips and Wilson and inquired "if either had been ap- proached by AFTRA and/or asked to join AFTRA." Both replied that they had been approached by AFTRA. Froehlich then "spoke into the telephone and said that he had two men in the newsroom who had." On May 3, Respondent (through Schneider) for the first time posted in its studio a no-solicitation rule. This rule read: While I am not concerned whether people belong to the Eagles, Elks, V.F.W., a union or any other or- ganization, such organizational solicitation must not take place during working hours. Of course, em- ployees off duty or on break time can carry on these activities with others who are off duty or on break time. The important thing is that there be no distrac- tion to those who are on duty. Employees had previously been permitted to solicit for charitable causes and for gifts to employees leaving em- ployment. Around May 4, News Director Froehlich directed em- ployee Mann to see him. When Mann came to the studio in his Company-owned car, Froehlich got in the car and, said he had "something very important to talk" about, ex- plaining that "he had information to believe [Mann] was seeing a member of the opposite sex at the station when [he] was on duty at night." Mann admitted that a woman had visited him at the studio, but identified her as his sister-in-law seeking assistance in a pending divorce suit. Mann also conceded that he had used "poor judgment," promising that it would not happen again. Froehlich "was happy with ... [Mann's] explanation," but said that if Mann's explanation "proved" untrue, his conduct "would be cause for dismissal." Mann "agreed with him." Just before leaving, however, Froehlich said, "I know you're out to get us." When Mann remarked "I don't know what you mean," Froehlich said "I don't think I have to ex- plain it." Mann said, "The only thing I want done is better working conditions and more money, higher salary." On May 11, Mann was called to General Manager Schneider's office where Company Attorney Mallien "re- peated" Froehlich's May 4 warning about " seeing a member of the opposite sex at the station." Mann gave Mallien "the same explanation that [he] told Mr. Froehlich, that it was a member of my family, a relative, a sister-in-law, who wanted [his] help" in a divorce proceeding and Schneider again expressed satisfaction with the "explanation." Mallien remarked that "the sta- lion." Schneider remarked that the Company's station (WISN) was not a "union station," and that he "felt that employees could bargain in- dividually on their own merit." He also asked if Mann "had ever thought of giving up [his] card." General Counsel relies on the January 1966 in- cident solely for background purposes , the incident having taken place outside the statutory 6-month period. RADIO STATION WISN tion was in the public eye, public image, and something about if information would prove to be otherwise that it would be cause for a dismissal." Mann "agreed with" Mallien. The record establishes that in the past Respondent had voiced no objections to studio visits during all hours (in- cluding evenings) by friends, relatives, and members of the public. Two days before the hearing, Respondent posted a "notice" barring visits by friends and relatives during other than "normal working office hours," 9 a.m. to 5 p.m. 2. Conclusions I find that Respondent interfered with, restrained, and coerced its employees in the exercise of their self-or- ganizational rights, in violation of Section 8(a)(1) of the Act, by and through the following conduct of its super- visors: (a) General Manager Schneider's April 7 request of employee Mann (while discussing employee morale at the studio during the revived Union campaign), "to give up" his Union card; and his accompanying statements that the employees did not need a union to bargain for them, that they "could bargain individually on their own merit," and that a Union contract would give them "a false sense of security." Schneider's remarks constituted a restrainful appeal to Mann to repudiate and withdraw his existing Union membership which, if taken by the Union's leading advocate (Mann), would have had a telling effect upon his co-unionists. His remarks also constituted an unlawful appeal for individual and direct bargaining at a time when the Union was still the statutory representative of Respondent's announcers (including Mann) and, indeed, when the Union was about to embark upon negotiations on a new contract.5 The unmistakable purpose and effect of Schneider's statements were to undermine the Union and to impair its effectiveness as bargaining agent. Con- trary to Respondent's contention (br. p. 8), its general manager's remarks were not mere expressions "of his own personal philosophy concerning the advantages or disadvantages of belonging to a union." To begin with, Schneider did not characterize his remarks as personal opinion. Furthermore, even if he did, his words would not have been "sufficiently magic to dispel in the minds of the employees the conviction that it was the representative of their employer to whom they were listening." N.L.R.B. v. Geigy Co., Inc., 211 F.2d 553, 557 (C.A. 9), enfg. 99 NLRB 822, 827-828. See also N.L.R.B. v. Globe Wire- less, Ltd., 193 F.2d 748, 751,752 (C.A. 9). (b) News Director Froehlich's May 4 statement to Mann (while questioning him concerning his meeting a woman at the studio during working hours), that Froehlich knew that Mann was "out to get us." As Respondent concedes in its brief (p. 16), Mann "was known to be a union leader and union Board member, was known to be involved in encouraging the other newsmen to become members of AFTRA." Within the total con- 5 As previously noted, the Union attempted to initiate negotiations in early April. Respondent did not dispute its representative status and, in- deed, met with it to bargain on a new contract 6 While General Counsel suggests that, particularly in the light of past uninhibited solicitation and studio visiting, Respondent 's May 3 promul- gation of a no-solicitation rule and its posting (2 days before the hearing), of a notice restricting studio visits , could be construed as attempts to im- pede and discourage union activity, he does not contend that either action was a violation. 701 text of the record, Froehlich's statement that Mann was out "to get" Respondent assumes the character of an em- ployer conveying to an employee the message that he equates union activity with employee disaffection or disloyalty toward his employer- notwithstanding the fact that as a matter of law it is no more than a protected statu- tory right. (c) News Director Froehlich's April inquiry of newsmen Phillips and Wilson whether they had been ap- proached by the Union and/or asked to join it. (As noted, Froehlich relayed the employees' affirmative response to the person he spoke with on the telephone.) Contrary to Respondent's contention (br. p. 10), the inquiry did not constitute "isolated and incidental questioning" when viewed in the context of Respondent's other coercive conduct, the circumstance that it was directed to two of the only four newsmen in the unit, the fact that there ap- pears no explanation or justification for the questioning, and the further fact that it was unaccompanied by as- surances against reprisals for union activity. I find that Respondent did not violate Section 8(a)(1) of the Act by News Director Froehlich's May questioning of employee Mann concerning his meeting a woman in the studio during working hours and his and Company Attorney Mallien's threat to discharge him if his explana- tion (that the woman was his sister-in-law merely seeking assistance in a divorce proceeding), proved untrue. Mann conceded that he used "poor judgment," that he promised the incident would not recur, and that he "agreed" that he would be subject to discharge if his story proved false. Under the circumstances, it is clear that the threat to discharge Mann was predicated on employee conduct un- related to union activity.6 C. The Discharge of Roger Sweet 1. Sweet's employment and Union activities Sweet worked for Respondent as a staff announcer from September 1963 until his discharge on June 29, 1967. His duties included selecting, placing, and in- troducing records on the air; reading live commercials and weather reports; and announcing station breaks. His employment until August 1966 had been uneventful. About 4 to 6 months before nis discharge, General Manager Schneider twice phoned in from his home that records Sweet had selected failed to "fit in with [the studio's] image ... of playing beautiful music." On the other hand, Sweet also received compliments. Thus, in the late fall of 1965 or early in 1966 Schneider phoned in to commend Sweet on his ingenuity in getting the station engineer to "fade" out the noisy portion of a record. In the spring of 1965, the then general manager (Butler) wrote Sweet a memorandum complimenting him on his "alertness in correcting an obvious mistake" in a com- mercial.7 In May 1967, Program Director Lambert re- marked that a fishing show "aired" and directed by Sweet "sounded just great" and that he (Lambert) "was real pleased with it." 7 Sweet changed the advertising copy from "Firestone Stores will replace front wheel beanngs for $1.00" to "Firestone would repack front wheel bearings for $1.00. " [Emphasis supplied] Sweet made the change without first consultmg any superior , wrote it up on "a discrepancy sheet" (a sheet where errors and unusual matters are recorded for transmittal to the general manager), and advised the next announcer of the corrected copy. In his memorandum commending Sweet's action, Butler asked Sweet to "continue [his] good work." 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sweet signed a Union card in the first week of April. As previously noted, he was one of the employees who had contacted Mann (a Union board member), about join- ing the Union in the fall of 1966 and again in March 1967. He attended all the 1967 Union meetings at which the men discussed organizational matters and the kind of con- tract they wanted to propose to Respondent. He and Mann were the only two of Respondent's nine announ- cers and newsmen who (along with Union Representative Halloway), attended a 1967 bargaining session on behalf of the Union. At the June 5 bargaining meeting, Sweet ar- gued for a Union proposal that employees working more than 20 hours a week be classified and paid as full-time employees, even if hired only as part-timers. When Respondent (through Schneider) expressed objection, Sweet "brought up the situation" of announcer Fontaine who was still classified as a part-timer after working 40 hours a week for 4 months. Schneider answered that the 4 months were Fontaine's "probationary period." 2. Respondent's asserted reasons for the discharge Respondent relies on the following three major in- cidents to justify Sweet's June 29 discharge: (a) Sweet had reported late for work on a Sunday morning in Au- gust 1966; (b) Sweet had changed a commercial on June 10 without obtaining prior approval from a supervisor; and (c) Sweet had used "profanity" over the air on June 19. (a) Sweet's work schedule in August 1966 called for his being on duty on Sunday mornings a half hour before the station went on the air at 7 a.m. On a Sunday in that month, Sweet overslept and reported to work at 7:30 in- stead of 6:30 a.m., but he gave 6:30 as his starting time on the timecard. When called to the office to explain, General Manager Schneider warned him for "falsifying" his timecard and asked him how many times in the past year he had been late on Sundays. Sweet said he "truthfully couldn't answer." Schneider remarked that he "was beginning to wonder" about Sweet's attitude. Sweet testified that he never thereafter came late for work or received complaints regarding his attendance. (b) On Saturday, June 10, Sweet received a telephone call from a client, Jack Evans of Colorama Carpets, requesting him to change an existing commercial to in- dicate that Colorama's "big sale" was starting on the next day, Sunday, June 11. Sweet said he would insert' the requested information, but that he "would have to delete something" from the original commercial in order to come up with the 30 seconds of commercial time the client had purchased. Sweet then changed the Saturday commercial to read, "Sale starts tomorrow" and the Sun- day commercial to read, "Sale starts today." He wrote up a discrepancy sheet showing the change and passed on the corrected copy to the next announcer. There is no evidence of any dissatisfaction on the part of client or Respondent with the manner in which Sweet made the change in the commercial; on the contrary, Sweet testified that the client knew of and requested it.s Furthermore, there was no managerial official in the stu- dio on Saturday, June 10, from whom Sweet could have obtained advance approval. Finally, there is no evidence that Sweet or any other announcer was ever advised of any rule requiring such approval for a matter of this type. As previously noted (footnote 7), Sweet had been com- mended by management for his initiative in changing a commercial on a prior occasion. And another announcer (Mann) testified, without contradiction, that he had previ- ously (in the spring of 1967) changed what appeared to be an erroneous commercial without obtaining advance per- mission from superiors. (c) When Sweet returned from his vacation on June 19, he was assigned to another vacationing employee's (Chuck Reynold's) shift to cover the 2 to 7 p.m. air show.9 About 4 p.m., Program Director Lambert asked him if he was familiar with the stock market and business news show. Sweet replied he was "somewhat " familiar with it.10 Lambert said that he would furnish Sweet with all the material he needed to do the show after Lambert finished the same show on FM, scheduled around 4:45 p.m. Around 5 p.m. (after Lambert finished his FM show), Lambert told Sweet, "Here's the material you'll need for the stock market and business show. All you'll need is about three minutes of material, because of the spot commercials in the show." Sweet gave the following uncontroverted account of his broadcast which began at 6:10 p.m. I had the format on my left and my material directly in front of me and I was reading the material as per the format. And then the format, it said, "in- sert the commercial prior to the Milwaukee, reading the Milwaukee stock market report." And I gave the cue which was listed in the format, which is, "I'll have the closing quotations on leading Milwaukee stocks in 60 seconds," which is the cue for the en- gineer to,play the commercial. And I looked up and the engineer wasn't there, he came running around the corner. He had been working on the FM machine, which was part of his duties.... Then he glanced at his log ... apparently, something was wrong and I moved my copy to look at my log and saw that the show was sustaining, or unsponsored, and I hit the intercom button to talk to Dick [the engineer] and I told Dick, "Oh, hell, it isn't spon- sored," hit my mike button, went back on the air and said- continued reading the show till the conclusion of the show. Shortly after the show, Sweet received a telephone call from an unidentified individual who told him that "at least, the announcer could apologize." When he asked "for what and who," he was told "For swearing on the air." At this point, Sweet realized that when he had reached for the intercom to speak to the engineer he failed to turn off his microphone and that his "Oh, hell" remark was heard by the audience. He then told the caller that "if the announcer had been aware that he had sworn on the air he certainly would have apologized for it" and this ended the conversation. Five minutes later another listener called and said, "Did you get much heat yet?" 8 Sweet testified that, in response to a Schneider memorandum advising that Sales Manager Gierhahn "had not been contacted " on the commer- cial and that he (Schneider) "wanted to know how I had taken care of the situation ," Sweet wrote Schneider an answering memorandum explaining the changes in the commercial. Respondent's counsel stated at the hearing that these memoranda could not be located in Company files Although counsel stated that a memorandum by Gierhahn on the incident was in the files, Respondent failed to produce such memorandum. 9 Sweet had normally worked on the night shift (4.45 p.m.-12.45 a.m.) before he left for vacation on June 12. 1 0 Sweet had done the show "maybe five times" during his 4 years with Respondent and each time the show had been sponsored RADIO STATION WISN 703 When Sweet replied "No," the caller laughed and said, "Well, don't let it bother you too much.... those things happen.... I thought it was funnier than hell." Sweet remained on the air until 7 p.m. without receiving another call. When Lambert arrived at the studio on the next day (June 20), Sweet related what he said "accidentally" on the air on the previous evening. Sweet told Lambert, "I was just shook up about it ... that this was the first time that it had ever happened to me, and ... was so sorry that it did happen ... that it was just an accident and I really regretted it." Lambert told him "not to worry about it too much, not to let it work on [his] mind, because this kind of matter can happen, can work on your mind." In reply to his question whether he should write up a discrepancy sheet on the incident, Lambert said "yes, so that the downtown office would have an answer in case of any let- ters regarding this matter." Sweet heard nothing further about the incident until June 29, when Lambert told him he "had been in- structed" to -hand him the following letter signed by General Manager Schneider: In recent weeks you have done things, any one of which could have resulted in your dismissal. I have somehow kept putting off making a decision. Perhaps I was subconsciously hoping that you would im- prove. You have not. Your latest episode on June 19 (forgetting that the mike was "live" when you made your "Oh, hell . . ." statement) has demonstrated to me that the moment of truth is at hand. Roger, you are being discharged. When employees quit we generally expect them to give us at least two weeks notice that they are leav- ing. In, fairness, I suppose we should give similar consideration to the employees who are discharged. Therefore, please consider this letter as notice that you will no longer be employed by WISN after July 15, 1967. Sweet read the letter and asked Lambert "to explain just what it was for." According to Sweet's uncon- tradicted testimony- Tom (Lambert] said, "Well it all dates back to when you were called in Herm's [Schneider's] office for your being late:" And I said, "That was last August [ 1966]." And he said he didn't remember the actual date. And I asked him if I had shirked any of my duties, or let someone else carry my load, or failed to prepare a good show when I was on the air, and he said, "No," he says, "I feel you have been working quite diligently, especially since you were called into Herm's', office." He said, in regards to this matter of saying, "Oh, hell," on the air, all we can do is look at the ratings and speculate that the damage that has been done perhaps would be minor, but this is [not] a common, everyday usage of English language on radio, and, of course,, it's not, here at WISN. He told me that I was free to', discuss this matter with anyone I wanted. However, he told me that, as a friend, not as a pro- gram director, don't mention anything about it on the air. And I told him that was the most uncalled for statement I had ever heard. When Sweet asked Lambert if he was being discharged for "any other reason," Lambert mentioned Sweet's June 10 change of a commercial (supra). When Sweet re- marked, "So what," Lambert said that "nobody had authority to change copy without approval of the sales manager." Indicating he was unaware of any such requirement, Sweet said he would not have changed it had he known of it. In the course of the interview, Lam- bert told Sweet that he "would help [him] try to find another job," although he did not then know of any openings.'1 3. Conclusions This case presents the familiar situation in which the trier of fact is required to draw inferences from evidence largely circumstantial, since direct evidence of a purpose to discriminate is rarely obtainable. As stated in N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8), "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence. Intent is subjec- tive and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the Board is free to draw any reasonable inferences." See also Hartsell Mills Company v. N.L.R.B., 111 F.2d 291, 293 (C.A. 4); Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466,470 (C.A. 9). Based on the entire record'12 I find that the evidence amply supports the inference that Sweet's June 29 discharge was, as alleged in the complaint, motivated by discriminatory considerations and not by the reasons ad- vanced by Respondent. In reaching this conclusion, I rely particularly on the following factors: (a) Respondent's expressed distaste for the revived 1967 Union activity as evidenced by General Manager Schneider's request to Mann to "give up" his Union card and repudiate the Union, his attempt to induce bargaining on an individual personal basis rather than collectively through the Union, News Manager Froehlich's statement that he knew Mann was out "to get" Respondent, and Froehlich's interrogation of employees Phillips and Wil- son concerning their Union sympathies. (b) Sweet's identification with the Union cause as evidenced by his role in attempting to reactivate the Union (in the fall of 1966 and spring of 1967), and in ad- vancing the Union's cause at the June 5 bargaining meet- ing with Respondent. (c) Respondent's awareness of Sweet's Union sym- pathies and activities since at least the June 5 bargaining meeting. (d) The insubstantiality and inadequacy of the reasons advanced by Respondent for the discharge -particularly since no responsible official of Respondent took the wit- ness stand to swear to and subject himself to cross-ex- amination upon any of them. It is difficult to believe that Sweet's tardiness and timecard "falsification" in August 1966, almost a year prior to the discharge, was an im- " Sweet is presently employed as "program director" for another radio station 12 As noted at the outset of this Decision, Respondent did not present any evidence at the conclusion of General Counsel's case Thus, the evidence adduced as to the alleged discriminatory discharge of Sweet (as well as concerning the alleged 8(a)(1) violations ), is uncontradicted 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pelling motive behind the decision to discharge, particu- larly in view of Sweet's subsequent satisfactory at- tendance. Respondent's further contention that Sweet's June 10 changing of a commercial without prior approval of a supervisor entered into the discharge decision, is nothing but an afterthought, in view of the lack of evidence as to existence of any rule against such changes, Respondent's past practice of condoning changes, the commendation given Sweet for previously making a similar change on his own initiative, and the affirmative evidence establishing that the customer requested the June 10 change and, furthermore, that no managerial offi- cial was present to give approval to the customer's requested change; Sweet's action appears nothing more than a minor, perfunctory adjustment in satisfactory solu- tion of an unanticipated situation and one with which management would in all likelihood have complied without question on customer request. Finally, the most recent incident relied on by Respondent- Sweet's June 19 "Oh, hell" remark on the air when he discovered that the stock market and business show was unspon- sored- appears less than the alleged "monumental error resulting in the use of profanity on the air" pictured by Respondent (br. pp. 21-22). The record shows that the error was wholly inadvertent and accidental, uttered in the good-faith belief that Sweet was off the air; and that Respondent itself so regarded it, since Sweet's superior (Lambert) specifically told Sweet (when the latter apologized for the incident) "not to worry about it too much." Furthermore, there is no evidence of any signifi- cant adverse audience reaction to Sweet's remarks; neither Lambert nor any other managerial official raised the matter in the next 9 days-until the discharge. Moreover, it is to be noted that the program in which the claimed objectionable word was uttered -a stock market and business report - was addressed to adults to whom the expression "hell" hardly appeared as offensive as Respondent attempts to portray. Under all the circumstances it would seem that Sweet's behavior "apparently became intolerable only" (N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980,983 (C.A. 3)), when the need for a defense appeared. I find and conclude that Respondent's claimed reasons for the discharge are pretextuous, designed to conceal its true motive for the discharge, namely, to rid itself of a Union adherent in order to discourage revival of Union activity at the studio. This is not to say that the record is devoid of evidence tending to negate discrimination. Thus, as Respondent stresses, it did retain in its employ other Union em- ployees, including the Union's most ardent member, Mann. And, so far as the record shows, it had for a long time (1950-1962) maintained amicable contractual rela- tions with the Union. Nor is there evidence of any prior unfair labor practice proceeding against it. However, giv- ing full weight to these countervailing factors, I find that they are outweighed by factors supporting a finding of discriminatory motivation. Cf. General Electric Com- pany, 155 NLRB 208, 221-222; Alton Box Board Com- pany, 155 NLRB 1025, 1039; General Tire & Rubber Company, 149 NLRB 474, 480-481.13 I conclude that General Counsel met the burden of establishing that Sweet was discriminatorily discharged on June 29 because of his Union sympathies, in order to discourage Union activity, in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their Union sympathies , by requesting an employee to withdraw from the Union , by inducing dealings and bar- gaining on an individual personal basis rather than collec- tively through the Union , at the time the Union was the exclusive bargaining representative, Respondent has in- terfered with, restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discharging Roger Sweet on June 29, 1967, and thereafter failing or refusing to reinstate him, in order to discourage Union activities , Respondent has dis- criminated in regard to hire and tenure of his employ- ment, in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The recommended order will contain the conventional provisions entered in cases involving findings of inter- ference, restraint, and coercion, and discriminatory discharges, in violation of Section 8(a)(1) and (3) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, and to offer rein- statement with backpay to the employee discriminated against. In accordance with usual requirements, reinstate- ment shall be to the discriminatee's former or substan- tially equivalent position, without prejudice to his seniori- ty or other rights or privileges. The discriminatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from his date of discharge (June 29, 1967), to the date of offer of reinstatement, less net earnings during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend, in view of the nature of the un- fair labor practices Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is recommended that Respondent, Radio Station WISN, Division of Hearst Corporation,, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 13 Cf N.L.R.B v. Puerto Rico Telephone Company, 357 F.2d 919,920 (C.A 1), where the court noted . "In so concluding [that there is a dis- criminatory discharge], we do not disregard the evidence of generally am- icable relationships between union and company, nor the fact that other union activists were retained by the company.... A violation of the Act does not need to be wholesale to be a violation. [Cases cited .]" The "fact that respondent retained some union employees does not exculpate him from the charge of discrimination as to those discharged ." N.L R.B. v. W.C. Nabors, 196 F.2d 272, 276 (C.A. 5). RADIO STATION WISN (a) Coercively questioning employees concerning their Union sympathies and activities; requesting em- ployees to withdraw from union affiliation and activity; inducing employees to bargain individually rather than through their bargaining representative; and in any other manner interfering with, restraining, or coercing em- ployees in the exercise of their rights under Section 7 of the Act. (b) Discouraging membership and activities in Amer- ican Federation of Television and Radio Artists, Milwau- ' kee Local affiliated with American Federation of Televi- sion and Radio Artists, AFL-CIO, by discriminating in regard to the hire and tenure of employment of Respond- ent's employees or by discriminating in any other manner in regard to any term or condition of their em- ployment, in order to discourage membership or activities therein. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Roger Sweet immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of his discharge, in the manner set forth in "The Remedy" section herein. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its studios in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not al- tered, defaced, or covered by any other material. (e) Notify said Regional Director in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith. 15 14 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 15 In the event that this Recommended Order is 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 705 Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT coercively question you concerning your Union sympathies and activities; nor shall we request any of you to withdraw from your Union; nor shall we attempt to induce you to deal with us in- dividually rather than through your bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Relations Act. WE WILL NOT discourage membership in, or activi- ties on behalf of, American Federation of Television and Radio Artists, Milwaukee Local affiliated with American Federation of Television and Radio Artists, AFL-CIO, by discriminating against you with regard to your hire or tenure of employement or any term or condition of employment. WE WILL offer Roger Sweet immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. All of you are free to become, remain, or refrain from becoming or remaining , members of American Federa- tion of Television and Radio Artists, Milwaukee Local af- filiated with American Federation of Television and Radio Artists, AFL-CIO, or any other labor Organiza- tion. Dated By RADIO STATION WISN, DIVISION OF HEARST CORPORATION (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Second Floor Commerce Building, 744 North Fourth Street, Milwau- kee, Wisconsin 53203, Telephone 272-3861.