Rounsaville of Nashville, Inc.

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