WMPP

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seaway Broadcasting Company, Inc. d /b/a WMPP and Charles Branch, Jr. and Samuel Walder. Cases 13-CA-10856 and 13-CA-10978 July 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 24, 1972, Trial Examiner William Feldesman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiners' Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. Samuel Walder, and a separate complaint was issued thereon by the General Counsel on December 13, 1971, against the Respondent. Compositely, the complaints (that in Case 13-CA-10856 was amended at the hearing) allege that by discharging or constructively discharging employee Charles Branch, Jr., and by discharging employee Samuel Walder, on or about August 11, 1971, because they "engaged in statutorily protected and concerted activities and/or union activities," the Respondent committed unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act. The Respondent's answers, as amended at the hearing, deny the commission of any unfair labor practices. The Respondent asserts that Branch engaged in no statutorily protected conduct and was discharged for cause, and that in any event he was a "supervisor" as defined in the Act and hence not an "employee" entitled to the Act's benefits; and that Walder was separated for legitimate business reasons unrelated to any activity on his part falling within the Act's protections. These are the fundamental issues that have been presented in these proceedings. Upon the entire record, after seeing and hearing the witnesses and observing their demeanor on the stand, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Seaway Broadcasting Compa- ny, Inc. d/b/a WMPP, East Chicago Heights, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i In adopting the Trial Examiner's finding that Respondent violated Sec 8(a)(I) in discharging Branch and Walder, we rely solely on his finding that Respondent was motivated by Branch's protected concerted activity and by Walder's close association with Branch We find it unnecessary to reach the question whether Respondent was also motivated by Branch's union activities on behalf of American Federation of Radio and Television Artists TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM FELDESMAN, Trial Examiner: These cases were consolidated on December 13, 1971, and tried before me in Chicago, Illinois, on January 6, 7 and 11, 1972. The charge in Case 13-CA-10856 was filed on September 2, 1971, by Charles Branch, Jr., and a complaint was issued thereon by the General Counsel on October 29, 1971, against Seaway Broadcasting Company, Inc. d/b/a WMPP, East Chicago Heights, Illinois, herein called the Respondent. The charge in Case 13-CA-10978 was filed on October 28, 1971, by i All four disc jockeys employed by the Respondent were also announcers There were about four additional announcers , however, who 1. THE BUSINESS OF THE RESPONDENT The Respondent admits, as the complaints allege, that it is and at all material times has been an Illinois corporation engaged in that State in the operation of a radio broadcasting station; that during the past 12 months it derived a gross income in excess of $100,000 in the course and conduct of its business operations; and that it subscribes to national news services, and sells time for advertising purposes to advertisers of national brand products and to advertisers located in the States of Illinois and Indiana. I find upon the foregoing, as the Respondent further admits in accordance with the complaints, that the Respondent is and at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Supervisory Status of Charles Branch, Jr. As noted above, the Respondent claims that Charles Branch, Jr., was a supervisor as defined in Section 2(11) of the Act, as such not an employee within the meaning of Section 2(3) and therefore not entitled to the benefits of the Act. Branch started to work for the Respondent on April 10, 1968. He was employed as a radio announcer and disc jockey' from that time until, his separation from the Respondent in August 1971. At times he also worked as a salesman and as an engineer. He held a first class were not disc jockeys Allen Wheeler, the Respondent's station manager, also performed some announcing duties 198 NLRB No. 84 WMPP engineer's license, without which a person could not sign the Respondent's radio station on or off the air. About March 15, 1971, he was made acting program director when the incumbent program director, Eddie Holland, was transferred to sales; and on March 19, 1971, he was appointed supervising staff announcer for a 30-day trial period which was thereafter continued by the Respondent indefinitely. In fact, he served in both temporary capacities until the Respondent discharged him, although there was little or no difference between his duties as acting program director and as supervising staff announcer, especially insofar as any alleged "supervisory" functions were concerned. These titles and attendant responsibilities and certain additional obligations assigned to him constitute the basis for the Respondent 's defense that he was a supervisor within the purview of Section 2(11) of the Act when he was fired and that it consequently did not violate Section 8 (a)(1). Branch was hired by the Respondent at a salary of $135 per week. He received no wage increase throughout the entire period of his employment. Notwithstanding the supplementary duties which were assigned to him, starting in March 1971, his salary remained the same. Despite these extra burdens Branch continued to work his regular shifts as an announcer and disc jockey just as he did before. These temporary additional duties conferred upon him very little if any power to act with authority in or concerning his relations with other employees. As he testified, his first assignment as acting program director was to prepare for his superiors' approval a format, "something like a blue print," for the station to follow on the air. Other assignments, as he further testified, were to "see that the play list was made-up on time and to listen to other stations and see what records they were playing." But in these assignments, it is evident, and in his other work as acting program director, and in his other additional functions, he was not given any meaningful authority over other workers. He was not authorized to hire or fire employees, or to make effective recommendations for hiring and firing. Not even Allen Wheeler, the Respon- dent's station manager, who earned $25,000 per year and under whom Branch worked directly as acting program director and supervising staff announcer, had these powers. Authority to make effective recommendations for hiring or firing was vested in an executive board composed of Wheeler, Allen Brown, the Respondent's general sales manager and vice president, Verda Beckwith, the Respon- dent's bookkeeper (where decisions involved financial matters), and Charles Pinckard, the Respondent's presi- dent and chairman of its board of directors. That it was Pinckard who had the actual authority to hire or discharge employees and to take other important decisions in regard to personnel or the Respondent's operations is made crystal clear by the evidence, and in particular by Pinckard's own testimony. The record amply demonstrates that, for this small radio station employing 15 to 18 individuals, personnel decisions of substance were made by Pinckard himself. For example, wage increases were Pinckard's exclusive concern . As later indicated, neither 2 These are the remaining supervisory powers enumerated in Sec 2(l 1), which also prescribes the exercise of independent judgment in their use, and 497 Wheeler nor Brown had the power to act upon Branch's request for a raise for the staff of announcers, including himself. There is no convincing evidence that Branch , in either of his temporary additional capacities , had authority to transfer, suspend, lay off, recall, promote, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their greivances, or effectively to recommend such action .2 Whatever "assignments" he made, or "directions" he gave, were of a routine nature and within a very narrow ambit . He was to "become thorough- ly familiar with all [disc jockey] schedules , including Sunday personnel," but beyond that no enforcement authority was entrusted to him . While Branch ostensibly had authority to recommend air shift schedules to Wheeler, the evidence shows that in practice Branch had little to say about this matter and exercised no independent judgment. The net effect of the one schedule he prepared-and at Wheeler's request and virtual dictation-was to continue the existing air shift assignments with but one change: an alteration and switch in his own assignment and only for Saturday work. The record clearly demonstrates that no exchange of shifts between announcers was permissible without Wheeler's prior approval. Insofar as direct dealings with other employees were concerned, Branch was given the ministerial and routine tasks of assuring that announcers kept the control room and recording studios clean, did not abuse the right to use a station telephone, reported for work at least a half hour before air time, signed the air log properly, and played records in accordance with a list previously approved by Wheeler. Responsible for the "orderly processing and recording of commercials," Branch was also to "follow- through" on personnel assigned to record them . In these predetermined and circumscribed areas little room was left for the exercise of discretion or independent judgment. There is absolutely no evidence , moreover, that Branch could take or effectively recommend disciplinary action in the event his wishes or "orders" in these matters were ignored. On the contrary, the record discloses that the strongest action he took was occasionally to report to management infractions of these requirements . Objections to his demands also resulted in his suggestions to employees that they speak to higher authority. Another job assigned to him was to "check" tapes for Sunday religious broadcasts with reference to the quality of recording and questionable program content. These re- sponsibilities had nothing to do with supervisory powers, as such . The role of monitor and censor is not at all the role of supervisor. Nor is there any evidence that he could go so far as to cancel a religious broadcast in whole or in part on his authority alone, or that he could even effectively recommend such action. The Respondent took pains to refer in its brief to Branch's designation as "second co-chairman and record- er" of a music committee appointed to select certain "top" records to be played on the air . But that committee consisted of all the disc jockeys, and Branch credibly testified that, like every other nonsupervisory member, he more than routine action, as a prerequisite for meeting the definition of a "supervisor " 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had but one vote, and that a majority vote was necessary to change the position of a record on the play list. The record reveals that the first cochairman was Wheeler-and that he had a veto vote. This is another instance in which Branch was given work to do, but not the work of an official having substantial authority over other employees, and therefore not the work of a "supervisor" as defined in Section 2(11) of the Act. Testimony was even elicited by the Respondent on cross- examination of Branch that he was required "to keep [the library] straightened up." It also appears that Branch was responsible for establishing a "workable filing system for the record library." These chores are not atypical of the routine, ministerial functions the Respondent gave Branch to perform in the additional positions he held on a temporary basis from March 1971 until his discharge in August of that year, and of the facts on which the Respondent relies for its contention that Branch was a "supervisor" under the Act. Branch's supplementary duties apparently relieved Wheeler of certain of his less important responsibilities as station manager. The titles conferred upon Branch were honorific and more: they demanded extra work. But I am convinced and find that Wheeler retained any major personnel powers that fell within his authority and yielded no consequential function to Branch that required the use of independent judgment. Branch, the disc jockey with most years of service when he was fired in August 1971, was under the Respondent's allocation of authority to him no more than a senior and "straw boss" in relation to other announcers, having been given no real supervisory powers over them. Not only does the record make it clear that Branch did not consider himself to be a true supervsior, but there is no evidence that his fellow employees regarded him as such. On the evidence, no other view by him or his coworkers was warranted in the light of his actual conduct and his actual authority from March to August 1971. From the foregoing facts and the entire record, I find that Branch, at all times during his employment, was not a "supervisor" as defined in Section 2(11) of the Act, but on the contrary was an "employee" within the meaning of Section 2(3) and thereby entitled to the benefits and safeguards of Sections 7 and 8(a)(I). "We do have a rule de minimis here. If any authority over someone else, no matter how insignificant or infrequent, made an employee a supervisor, our industrial composite would be predomi- nately supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of a company where to park his car." N. L. R. B. v. Security Guard Service, Inc., 384 F.2d 143, 151 (C.A. 5). "Statutory supervision must have both conceptual and practical aspects and must be meaningful in respect to the position occupied by the employee. Implemented intentions are integers in the formula. A supervisor may have potential powers, but theoretical or paper power will not suffice. Tables of organization and job descriptions do not vest powers. Some kinship to management, some empathetic relation- ship between employer and employee, must exist before the latter becomes a supervisor for the former." Id. at 149. "The test is what power the worker actually exercises, and the finely-shaded gradations of power in any enterprise proscribe a wooden reading of Section 2(11). Amost any employee `directs' other employees in some position at some time." Food Store Employees Union, Local 347 v. N.L.R B., 422 F.2d 685, 690 (C.A.D.C.). These conceptual guides and legal tests for the fair and sensible application of Section 2(11) buttress the finding I have made that on the evidence adduced Branch was an "employee" under the Act fully entitled to its protections. B. The Discharges of Charles Branch, Jr., and Samuel Walder Branch's employment on April 10, 1968, as an announc- er and disc jockey, his salary of $135 per week, his holding of a first class engineer's license enabling him to sign the station on and off the air, and his temporary appointments as acting program director and supervising staff announcer and assignment to handle additional responsibilities in March 1971 have already been mentioned. After his initial employment by the Respondent, Branch was ultimately assigned to shifts embracing "class double A" time, the most expensive on the air, shifts he worked until his separation. Branch testified credibly that he participated in "community work" as an employee of station WMPP. Thus, he ran dances to raise money for charitable purposes, sponsored a volley ball league to "keep some of the kids off the streets of Chicago Heights," spoke at an elementary school about the braodcasting industry and "how to go about getting into" it, and engaged in other similar activities. He also testified that his notion of radio was "working with the community," that radio is "licensed for the community." He further testified, and I find, that in these community activities he was "Charles Branch from WMPP and whenever [he] did anyting [he] had a banner [he ] always put up," the banner bearing the station's name. People were constantly turning to the radio station for aid of this kind and Branch on behalf of the station often gave it. As he testified, it was "promotion for the station and it helped [him] to create a following." During his employ- ment by the Respondent, Branch also performed quite frequently at "sets" or "hops"-dances held at various public places such as night clubs. As a known station WMPP radio personality his announced presence at such functions, at which he would "spin" or play musical records, served to attract members of the public and induce them to pay an entrance fee in order to see him and dance or listen to the records he played. In these instances, also, he would display the WMPP banner.3 He was paid for his services at these affairs either directly from the "gate receipts" or by the operator of the public place. As he testified with respect to this commercial venture, which allowed announcers to supplement their earnings after they completed their work and left the air, "it helps promote the station and it made income for the announcers." WMPP disc jockeys who during their shifts publicized on the air "sets" or "hops" at which they would later appear were required to buy and pay for the time they used for these 3 Branch testified credibly without denial that Wheeler authorized him to display the banner at "sets" or "hops " WMPP advance announcements. Payments for such self-advertis- ing also benefited the station. The Respondent charged $2.50 for a 10-second "spot" or announcement, and $5 for one lasting a minute. Avoidance of such payments is known as "stealing" time, but not in the sinister sense of committing a crime. Branch's last day of work for the Respondent was on August 10, 1971, and he was paid through August 15. The General Counsel contends that the Respondent discharged Branch on August 11, 1971, because he had discussed with other announcers the need for and introduction of a union at the Respondent's radio station and the desirability of obtaining a pay raise from management for the announcing staff, and because on August 9, 1971, he had actually spoken for the announcers and asked management for a wage increase for them and a meeting to discuss this subject. But the Respondent claims that it discharged Branch later in August 1971 and for a variety of reasons, including innumerable instances of "stealing" time and work performance deficiencies, uncon- nected with any statutorily protected activities in which he may have engaged, and it also denies that Branch on August 9 truly engaged in concerted action. These matters and related evidence are later considered and discussed. Samuel Walder commenced his association with the Respondent in March 1971, although there is disagreement whether and when he acquired full employment status. Like Branch, he was employed by the Respondent as a disc jockey and an announcer. It is undisputed that he was separated by the Respondent on August 11, 1971. Before the Respondent employed him, Walder, who had attended a radio braodcasting school and had received a third class engineer's license in 1969 entitling him to broadcast and announce on the air, frequently helped Branch to "spin" records at "sets" or "hops" and was paid for his services by the business organization established to receive the proceeds Branch earned for this work. Walder was, in effect, Branch's employee. In this work he acquired practical experience using recording equipment and public- ly introducing records. Walder's work on "sets" and his close association with Branch were well known to Wheeler and Pinckard when the Respondent hired Walder and permitted him to go on the air at its station. Walder credibly testified, and I find, that Pinckard originally interviewed him for a job with the Respondent in January 1971; that he saw Pinckard again about February 26; that about March 1 he completed an application form, spoke to Wheeler, and was told by Wheeler that Pinckard had given a Although the "sign-off" shift was daily the last one on the air, an announcer with a third calss engineer's license could operate it, as the holder of a first class license took over briefly for the very short time required to sign the station off the air 5 Verda Beckwith, the Respondent's bookkeeper, testified that Walder "became a regular employee within the meaning of the withholding statutes" on June I, 1971, and that before that time Walder was given "travel expenses which would be any gas or car repairs either in his coming to work and there were no withholdings from that " Under either version, Walder's or Beckwith's, Walder was placed on the regular payroll by at least June I. 1971 But, apart from tax matters, Walder's entrenchment as a regular employee of the Respondent antedated June I and lasted until his severance from the Respondent's employ Exhibits introduced into evidence by the Respondent show that Walder (under the professional name, "Freddie Scott," which was suggested to him by Wheeler) was assigned to the "sign-off" shift as of April 26 in a publicized air shift schedule, dated 499 his approval that Walder "be put on the air" and that Walder would be placed under Branch for training; that for about I week thereafter he worked on the air as a trainee on a 1-hour show and received $50 per week for expenses; that about March 8, after this week and his work on the show, Wheeler thanked him and said he would call him if he needed him again; that after this week the Respondent never again notified him that he was working on a trial or temporary basis; that Wheeler called him about March 15, and on that day at the radio station Pinckard gave him the 10 a.m. to 2 p.m. "slot," one shift having become open by reason of the transfer of Eddie Holland, then the program director, to the sales staff; that about April 15 he was supplanted on the 10 a.m. to 2 p.m. shift by Buddy Bell, a disc jockey who had more accumulated service time with the Respondent, and was told he would be assigned to the "sign-off" shift, when it became available; that later in April at Wheeler's request he replaced Buddy Bell "a few times" on the 10 a.m. to 2 p.m. shift; and that he was then assigned to work the "sign- off" shift as of April 26. The "sign-off" shift operated seasonally during daylight saving time, starting in the spring as the number os hours of daylight increased, and ending in September in the late summer when they dwindled to an insubstantial number of minutes; it began daily at 6 p.m. and its duration depended on the number of daylight hours in the day.4 On April 26, as Branch credibly testified, without denial, Bret Davis, the disc jockey who had had the "sign-off" shift in the past and who had also been given weekend work to perform, quit the Respon- dent's employ. It appears that Walder then fully became a replacement for Davis, having been hired, as Wheeler testified, primarily as a "stand-by" to fill in for others as needed, and having been given the "sign-off" shift. Walder also credibly testified, and I find, that he started to accrue a regular salary from the Respondent on March 15, 1971 (the day Pinckard assigned him to the 10 a.m. to 2 p.m. shift), that he was first paid a salary on April 1, that his salary was $100 per week, and that this salary continued until the Respondent separated him.5 Walder worked the "sign-off" shift until his separation on August 11, 1971, and was paid through August 15. In the course of his employment he "bought" time from the Respondent, apparently to announce on the air his own appearnaces at outside functions. The General Counsel argues that the Respondent discharged Walder on August 11, 1971, because he had discussed with Branch and other disc jockeys bringing a April 22, 1971, containing the names and shifts of all regular disc jockeys, and signed and certified, as requested , that he had read the instructions in three memoranda issued by Wheeler on March 19, 1971. two addressed to "All Air Personalities," and the third to "All Personnel Concerned " The date March 19 appears next to Walder's signature on two of the memoranda These documents are some evidence that Waler 's status by at least March 19 and before June I was something more than that of a "trainee" or casual worker Because of them and Walder's favorable demeanor on the stand, I have credited all the testimony he gave which is attributed to him in the above paragraph , notwithstanding testimony of Beckwith, Wheeler, and Pinckard collectively tending to create the impression that he was never more than a "trainee " or "on trial," and that he was at most a "temporary" w',rker I find that Walder was employed on a regular "stand-by" basis at a salary of $100 per week commencing on March 15, 1971 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union into the Respondent's station, and because the Respondent closely identified him with Branch and Branch's concerted activities, particularly Branch's August 9 demand upon management for a wage increase and a meeting. The Respondent insists, however, that Walder was employed on a temporary basis on the "sign-off" shift,6 and that it severed Walder for a number of faults, among them "stealing" time and technical inadequacies as an announcer, which had nothing to do with any conduct on his part protected under the Act. These matters and the evidence related to them are fully considered and discussed below. Toward the end of May 1971 Branch had a conversation at the radio station with another announcer, Exell Jones, about joining the American Federation of Radio and Television Artists, a union also known as AFTRA. Jones, who had joined AFTRA while she was working in a different industry, initiated the conversation by asking Branch if he received "talent fees" for "cutting" tapes that were "commercials." He answered in the negative and was informed by her that as a member of this union such fees would be paid for such work. She also pointed out, as Branch credibly testified, that other benefits resulted from AFTRA membership: she mentioned a "retirement" plan and "health care plan" and "went on to name a few of the benefits involved." As Jones, who was called by the Respondent as a witness, testified, Branch asked her "to get him forms for it." Branch's own testimony indicates, and I find, that he also told her that, insofar as becoming a union member was concerned, he would "think that over." AFTRA's initiation fee of $200 was regarded by Branch as quite high; Jones said it did not have to be paid "all at one time." Jones then communicated with AFTRA' and caused it to mail to Branch union literature, which he received about July 26, 1971.7 and on August 1 passed on to Walder to read. This literature was about the Union and its activities and benefits, and it included a union membership application form. About May 24, 1971, a week or so after his conversation with Jones, Branch at Wheeler's request, gave disc jockey Buddy Bell, in the control room of the station, a "tardy slip" to "fill out." Bell asked "what's this," and Branch replied "this is from Mr. Wheeler, station policy." Bell then said "man, this is a bunch of ..." and Branch rejoined "man, take it to the union." Bell then said "maybe we should take it to the union-that is a pretty good idea. If we had a union to take it to." Branch informed Bell to take the slip to Wheeler, if he did not wish to complete it, and left the control room. Five minutes later Bell delivered the slip, signed, to Branch, and Branch turned it over to Wheeler.8 Around June 11, 1971, disc jockey Frank Alexander told 6 1 have already found that Walder's employment was not "temporary" and limited to the "sign-of r' shift-that he was also hired as a regular "stand-by" to substitute for others as needed and received a salary of $100 per week starting with his shift work on March 15, 1971 1 have also found that the "sign-off" shift continued into September, well beyond August 11, the date Walder was separated r The envelope in which the literature was sent to Branch is postmarked Chicago, July 23, 1971 8 The findings in the above paragraph are based on Branch's undenied testimony, which I credit Bell did not testify as a witness 9 The findings in the above paragraph are based on the credible Branch at the station "man, that is a good idea you give Buddy," explaining that the idea was "bringing in the union." After some further conversation, during which Branch denied telling Bell that "we were going to bring in the union," Alexander said "it's a good idea and I go for it, but in a situation like this, all of us have to stick together." Branch pointed out that Jones was already a union member; and Branch and Alexander then agreed the matter should be carried further and that Alexander would tell Walder about it .9 Walder credibly testified, without direct contradiction, that Alexander talked to him at the station that same evening sometime after 6 p.m.; that Alexander mentioned speaking to Branch and Bell about possibly "bringing in the union into the station;" and that Walder offered Alexander his "full support." That night, about 11:30 p.m., at a place called Winston's Lounge, a night club where Branch was "spinning" records, Walder "walked in" and informed Branch that Alexander had told him, Walder, "we were going to bring in the union," and had asked Walder if he "would support it." Walder went on to tell Branch that he had answered "yes" to Alexander's query, and inquired of Branch if he was "right." Branch replied that he "was right." 10 As Walder credibly testified without specific denial, about June 14, 1971, at Shannon's Lounge, another night club, he, Bell, and Alexander met and discussed bringing in the Union to secure higher wages and other benefits; and a series of some six similar discussions among the disc jockeys then ensued in June and July 1971, in which 'Walder was a participant. Branch testified credibly without direct denial, and I find, that on August 6, 1971, in the control room of the station, he, Alexander, and Bell had a conversation in which Bell asked what they were "going to do about the union thing"; that Alexander suggested "maybe we should just ask Mr. Pinckard for a raise"; that Branch replied "yes, that is the way it's done. We either ask him or we don't"; that Bell then inquired, "well, who is going to do it"; and that the following then occurred: I [Branch] looked at them-they looked at me-Frank [Alexander] started laughing-Buddy [Bell] started laughing and I started laughing. Finally Buddy said well, I think you are tighter with the old man than anybody else for the simple fact I been messing up. I pointed out how he been coming to work late-how he quit four or five different times-he said I won't go to him and ask him, you know. I said, okay, I will do it and left out of the control room. In accordance with Branch's undisputed testimony, I ;find that on August 9, again in the station's control room, testimony of Branch, which Alexander. called as a witness by the Respondent, did not specifically deny Indeed, Alexander in his testimony admitted talking with Branch on one occasion about AFTRA Alexander was a hesitant , reluctant witness, who found it difficult to recall pertinent events To the extent his testimony conflicts with that of Branch or Walder, I do not credit it 10 These findings are predicated upon Branch's testimony, which was corroborated by Walder At this Juncture all four disc Jockeys were involved in concerted action and Branch had spoken about "the union" to each of the other three WMPP Bell reminded Branch of his commitment and said: "Don't forget you are supposed to go to Wheeler and have him ask Mr. Pinckard for a raise"; that Branch replied he was "going to do it. Give me time"; that Bell responded to the effect that there was "No time like the present. The sooner the better"; and that Branch said "okay" and left. Branch then proceeded directly to Wheeler's office. Allen Brown, the Respondent's general sales manager and vice president, was with Wheeler in Wheeler's office when Branch arrived there on August 9, 1971. Branch was asked by Wheeler "what's on your mind?" and answered "we want you to ask Mr. Pinckard for us for a raise." Wheeler then inquired if Branch desired a raise, and Branch replied, "yes. I'd like to have a raise." Wheeler ascertained from Branch that he had been at the station "almost four years" and "never had a raise." When asked how much of a raise he thought he should have, Branch responded, "I'd like to get about $250 a week-who wouldn't?" As Brown testified, Branch was informed that neither Brown nor Wheeler was empowered to grant him a raise. Brown said "all you had to do was go to Mr. Pinckard and ask." Branch commented that "until the doctor said I should cut out the sets I wasn't concerned about a raise so I never did ask him. I felt maybe he'd give me a raise if, you know, the time came around now when I got to cut out the sets. I do myself need a raise and I said the other fellows stated that they wanted one, too." Wheeler stated that Branch had worked hard and merited a raise, but Branch emphasized that he was "asking for a raise for everybody on the whole staff," not only for himself. Branch added that "the guys" were "all complain- ing and so they told me to ask," when Wheeler observed that maybe a raise would help some" and inquired why Branch was making the request "for everybody else." Wheeler then suggested that Branch have Mrs. Beckwith prepare "a letter asking Mr. Pinckard for a meeting to discuss the operation and to ask him for a raise." Branch went to Beckwith's office and told her what he wanted. Beckwith, as she testified, made a few suggestions and helped Branch with some phrasing of the letter. She ultimately typed a letter that satisfied Branch and Branch immediately took it to Wheeler. Wheeler observed that the letter was what he had in mind and told Branch to sign it and inform Beckwith "to put it in with the regular dispatch" to Pinckard. Branch did as Wheeler indicated." The letter, which was forwarded to Pinckard by Beckwith that evening,12 reads as follows: TO Mr. Charles Pinckard, President DATE Aug 9, 0971 FROM Charles Branch, Jr.-Program Director (Act- ing) SUBJECT Announcing Staff ii Except as otherwise specifically stated, the foregoing findings in the above paragraph are premised on Branch's testimony, which I credit I was impressed by the straightforward manner in which Branch testified, his accuracy and his general demeanor on the stand I do not credit Wheeler's testimony about this meeting where it conflicts with Branch's In particular, I discredit that part of Wheeler's testimony attributing to Branch the statement "I am not going to go and put my neck on the block here asking for a raise just for myself-I am going to ask for a raise for the other D J 's so this won't appear that I am just coming up asking for a i aise for me only, that I am being selfish " In so doing, I have noted and deem it significant 501 This is to request a meeting with the Executive Board at your earliest convenience. This meeting will be to discuss the present operation at the station with the primary interest of discussion being raises for the staff announcers. Due to the increased cost of living, I feel a raise is necessary to maintain a working interest from all employees. The entire announcing staff will be present at this meeting. Sincerely, /s/ Charles Branch Charles Branch On August 10, 1971, announcer Chuck Cain was hired py the Respondent. On August 11, the Respondent hired Announcer Bob Weaver. Cain, like Branch, held a first class engineer's license. Cain was auditioned on the air on August 10 for a substantial portion of Alexander's 2 p.m. o 6 p.m. shift, much to Alexander's concern. Alexander Approached Wheeler and asked if he was fired, and Wheeler answered "no." Branch that afternoon unsuccess- fully attempted to learn from Wheeler the meaning of Cain's appearance and precisely what was happening. Wheeler informed Branch that Cain was being tested at Pinckard's direction and that he knew nothing more. After a number of conversations that day Wheeler finally Advised Branch over the telephone that Pinckard had communicated with Wheeler and told Wheeler to inform Branch not to report for work the next day for his 6 a.m. to 10 a.m. shift, but to come to the station at 11 a.m. In response to Branch's request for information, Wheeler stated that he did not know what was occurring, that Pmckard had merely asked him, Wheeler, to convey these nstructions to Branch. Branch said "okay." When Branch arrived at the station the next day, August 11, shortly before 11 a.m., locks were being changed on the oor, and the receptionist informed him that she had instructions not to admit him and that he was to wait in the lobby. About 2-1/2 hours later Wheeler invited Branch into his office and left. After some time, Wheeler returned to his office and advised Branch that Pinckard had instructed him to have Beckwith prepare a letter for Branch and that Beckwith would complete it shortly. Wheeler left and returned again with a letter, which he 'signed and gave to Branch, together with a check that paid Branch through August 15. The letter, dated August 11, 1971, reads: Dear Mr. Branch: Due to our budgetary limitation and the high level of unemployment in existence today, we the members of ,that Wheeler indicated in his testimony that Brown was present when this alleged statement was made by Branch, but that Brown, who was called by ,the Respondent as a witness, did not corroborate Wheeler's testimony that Branch did in fact make the statement Nor did Brown corroborate Wheeler on other points of difference between Branch and Wheeler concerning what was said on this occasion, especially Wheeler's testimony that he and Brown had criticized Branch for being absent from the station when he was needed after his 6 a in to 10 a in shift ended iz Pinckard, as Beckwith testified, "doesn 't make it out there [to the station ] every day " 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the WMPP Executive Board have decided that you will start your vacation as of today. We regret that at this time, based upon our budgetary limitation, we will not be able to grant your requested salary increase. However, feel free at any time in the future to call on us for references. Very truly yours, /s/ Allen Wheeler Allen Wheeler Station Manager Branch read the letter and said "man, this got to be a joke." Wheeler asked what he was talking about, and Branch observed "hard as I been working?" Wheeler then stated "well, you know." Branch asked what was meant by the letter's reference to a vacation. Wheeler answered "if I was you, if you plan to come back when your vacation is up, I just give Mr. Pinckard a call." Branch inquired if the letter meant he was fired. And Wheeler replied: "no, it doesn't say that you are fired, but truthfully, Branch, I wouldn't look back, take it and go." 13 Based on the foregoing facts-the employment of Cain on August 10, the first class engineer's license held by Cain, the abrupt refusal to let Branch work his shift on August 11, the changing of the locks that day, the denial that day of Branch's usual right of entry to the station as an employee, the contents of the August II letter suddently forcing on Branch a "vacation" 14 and offering him "references," Wheeler's pointed suggestion that day that if Branch planned to return after his "vacation" (whose limits were not fixed) he should first call Pinckard, and finally Wheeler's statement that day that "I wouldn't look back, take it and go"-I conclude and find that Branch was permanently discharged on August 11, 1971, and not subsequently as the Respondent contends.15 On August 10, 1971, Wheeler summoned Walder to his office and told him he "could take the rest of the day off and that Frank Alexander would work [his] show." Wheeler also instructed Walder to come to the station at 11 a.m. the next morning. On August II Walder reported at the station about 1 I a.m. as directed, and after waiting in 13 These findings are predicated on Branch's testimony, which I credit, despite a somewhat different version of this conversation offered by Wheeler, as I find Branch to be the more reliable witness See In 11, supra Branch also testified, and I find, that he had previously requested of Beckwith a vacation beginning about August 19, and that in his conversation with Wheeler on August I I no time limits were set for the "vacation" mentioned in the August I I letter 14 The reasons given in the letter for the forced "vacation" at that time do not withstand scrutiny The "budgetary limitation" did not preclude the hiring of Cain and Weaver or the August wage increase for announcers which is referred to later As for the "high level of unemployment in existence today," this is such an obvious non sequitur that further comment is unnecessary 15 This contention rests on Pinckard's testimony that he did not fire Branch until later in August, after two telephone calls were made to him by unidentified persons mentioning threats that Branch was going to burn and bomb the radio station and other properties of the Respondent because of the Respondent's action against Branch on August 11, Pinckard harboring the belief that Branch was in fact behind such threats But, as I have found above, the action taken by the Respondent on August I I was to discharge Branch-and this occurred before any telephone conversations and claimed the lobby about an hour and a half was admitted to Wheeler's office where Wheeler gave him a letter and a final check paying him through August 15, 1971. The letter, dated August 11, 1971, reads: Dear Mr. Walder: Due to the cut back in sign-off time, the WMPP Executive Board has decided that because of budgetary limitations, it is not practical to continue your services, at this time. However, feel free to contact us next spring when our sign-off time will again be extended. , Very truly yours, /s/ Allen Wheeler Allen Wheeler Station Manager I find that Walder was discharged on August 11, 1971 (the Respondent in its brief refers to this action as a "lay-off"), before the "sign-off" shift had actually come to an end in 1971 with a substantial diminution of daylight hours in the day. Cain took over Branch's shift, and Weaver took over Walder's. Within 2 weeks of August II Pinckard granted the announcing staff'a wage increase. Bell and Alexander, the disc jockeys who survived the discharges of August 11, were beneficiaries of this action. In view of the small staff of 15 to 18 persons employed by the Respondent, Pinckard's very active part in directing ,the station's operations and relations with its personnel, and Pinckard's own testimony that "They [the employees] .all run and tell the boss [Pinckard] things," I infer and find that the discussions among the disc jockeys about AFTRA and bringing in a union, and obtaining a wage increase and other benefits, became known to Pinckard before he discharged Branch and Walder on August 11. I also infer and find that Branch's letter of August 9, addressed to Pinckard, marked Branch for Pinckard as the leader of such concerted action and as the activist responsible for its effectuation by means of the specific request for a wage raise and a meeting with the announcers to discuss the subject.16 There is no doubt that Pinckard associated Walder threats were made I also find on the entire record , including Pinckard's own testimony, that Pinckard was personally responsible for Branch's discharge-and Walder's (see infra )--on August II I do not credit Pinckard's testimony that he did not really fire Branch until a subsequent time in August It is also important to note that Branch credibly testified without denial that the police officer assigned to investigate the matter of the alleged threats, following Pinckard's communication with the authorities about them, cleared Branch, informing Branch he was satisfied Branch was not responsible for any threats There is no evidence that any legal proceedings were ever brought against Branch in connection with this matter. And it is significant that Pinckard testified that, while he purportedly fired Branch later in August and that this matter was the decisive element in the determination to separate Branch, the discharge took place in a telephone conversation with Branch after Branch had called the station to learn more of the police investigation, and that he, Pinckard , after telling Branch that he had heard Branch was going to "burn down the radio station and blow up the towers" never gave Branch "a chance to say anything I [Pinckard I told him [Branch I to go to see the FBI if he knew when he was going back to work " 16 1 have found that Branch on August 9 was the spokesman for the disc WMPP 503 closely with Branch. Walder's "employment" by Branch was well known to Pinckard when Walder was hired by Pinckard. Testimony of Pinckard, although given in the context of attempting to assign cause for Walder's discharge, nevertheless reveals Pinckard's coupling of Walder with Branch. Thus, Pinckard testified that "Charlie Branch became his [Walder's] idol"; and that "I [Pinck- ard] didn't need Walder because Walder was in collusion with Branch." Pinckard on cross-examination testified that he meant by his remark about "collusion" that Walder was Branch's "employee at one time for salary, for pay. Branch, from what I gather, had been paying him then. It appears that they started giving promotions together. This I don't know. But along the grapevine of my other employees I heard that." If Pinckard on August 11 discharged Branch because of his leadership in the activities described above, and Walder because Pinckard tied him to Branch as Branch's intimate and regarded them as one, the Respondent plainly violated Section 8(a)(1) of the Act with respect to each. If there were no more to this case, the facts outlined above, including Branch's letter of August 9 to Pinckard, the timing of the discharges in -elation to that letter, the weak excuses for the discharges in the August Ii letters to Branch and Walder (the insubstantiality of these reasons is almost apparent on their face, has already been hinted at and is elaborated upon later), and the granting of a wage increase after the discharges demonstrating both the danger and needless- ness of concerted action, would firmly establish such violations of the law. But, as noted before, the Respondent insists that it discharged Branch and Walder for valid reasons. All the Respondent's asserted reasons and the evidence given to support them will be considered below, first with respect to Branch and then in regard to Walder. The August 11 letter to Branch mentions the Respon- dent's "budgetary limitation" and the "high level of unemployment in existence today." It is quite significant that the Respondent elicited no testimony and makes no argument in its brief to substantiate these reasons-the only reasons given to Branch on August 11. Announcer Cain, the holder of a first class engineer's license, was hired on August 10, and announcer Weaver was hired on August 11. Furthermore, a wage increase was granted to the announcers within 2 weeks of Branch's discharge. These facts, admitted by the Respondent, completely destroy the "budgetary limitation" excuse. And as for the "high level of unemployment" reason, the most charitable thing that can be said about it is what has been said before: that it is an obvious non sequitur and warrants no further comment. The Respondent relies heavily on the alleged burning and bombing threats for which Pinckard assertedly believed Branch to be responsible.17 But these took place after August 11 and could not have been a factor when Branch was fired that day. Moreover, even assuming the jockeys and sought a wage increase on behalf of the announcing staff and not for himself alone The Respondent's contention to the contrary is rejected That contention is based on Wheeler's testimony, which I have not credited See fn i I, supra it See in 15, supra 18 I credit Branch's testimony that rapidity of speech was mentioned to him by Pinckard and Wheeler a number of times in 1968, several times in 1969, possibly once in 1970, and not at all in 1971, that lateness or leaving discharge occurred after these claimed threats, Pinckard conceded the telephone calls giving rise to his belief were made by unidentified persons and still he would not permit Branch to make any explanation. In addition, Branch was exonerated by the investigating police officer and there is nothing in the record to indicate that any legal proceedings were ever instituted against him. To fire an employee with more than 3 years' service on the basis of this flimsy evidence without hearing him out seems rather drastic and unreasonable action and would make this reason exceed- ingly suspect. In any event, as found above, Branch was fired before any burning or bombing threats were ever made. The Respondent elicited testimony from Pinckard that Branch "stole" time on countless occasions, and in his announcing and side activities did not satisfy the moral and cultural standards the Respondent expected its announcers to meet to "uplift" its listening audience. These are the claimed primary reasons additionally advanced by the Respondent, although Pinckard and Wheeler in combination testified to more alleged deficiencies in Branch. Thus, according to them, Branch spoke too rapidly, lacked reading ability, was tardy in reporting to work, left work too early, talked "too much into his music," did not convene the music committee to permit all the disc jockeys to vote, switched shifts with Alexander on one occasion as a result of which the station was not signed on the air on time, was a "loner" and not a "group-type man." Presentation of even a shorter catalogue of defects would challenge the ingenuity of the most accomplished faultfinder.18 But the Respondent in its brief does not press these alleged defects as reasons in themselves for discharg- ing Branch. It appears to depend primarily upon Branch's claimed "stealing" of time and "cultural" and "moral" insufficiencies. Neither of these alleged infirmities, nor any of the others, was mentioned to Branch when he was discharged on August 11. Moreover, the Respondent asserts that almost all, including the two it presses, continued throughout Branch's entire employment of more than 3 years. During his tenure, however, he was assigned to announce on "class double A" time, was appointed as late as March 1971 acting program director and supervising staff announcer and given additional duties to perform, was told by Wheeler on August 9 that he deserved a wage increase, and was, when fired on August 11, the disc jockey with the most service longevity. These facts powerfully demonstrate that the Respondent must have recognized that Branch was of considerable worth as an announcer; and they erect formidable barriers to acceptance of the defenses the Respondent tenders for discharging Branch. Pinckard gave the following testimony in explanation of his appointment of Branch as acting program director: "Well, he was the best thief there.19 He seemed to be able to work with Mr. Wheeler. He was a guy that would come early was not brought to his attention, that the absence of other disc jockeys made it impossible to convene all of them at one time for music committee meetings ; and that it was Alexander's failure to report in accordance with a shift exchange approved by Wheeler that made the station late in going on the air on the one occasion in question 19 This statement is somewhat illuminating with respect to just how serious the Respondent regarded " stealing" time to be 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to work on time at that time in particular . So he had some value to us. He had a first class ticket when the government requests a first class man bring the station on the air, and we couldn't find any other Blacks, and we couldn't find any Whites that wanted to come out that far and work out there." But 5 months later, after Branch had engaged in conduct safeguarded by the Act , immediately following his August 9 letter to Pinckard , he was no longer of any value to the Respondent . Pinckard's professed difficulty in finding an announcer with a first class engineer 's license is gainsaid by the undisputed fact that he was able to procure the services of Cain, the holder of such a license, one day after Branch's letter of August 9. I do not attribute this to sheer coincidence or instant serendipity. The impression Pinckard conveys that Branch , as the possessor of a first class engineer's license, held Pinckard in thrall during Branch's tenure as an employee is dissipated by the additional fact that Pinckard's own testimony also shows that four other employees held such a license while Branch was employed and they included Eddie Holland , who did not leave as program director until March 1971, and even then continued in the Respondent 's employ on its sales force. If Branch had truly been as poor an employee as the Respondent paints him to have been, the Respondent could have fired him long before August 11, 1971, and used one or more of these four other employees to sign the station on (or off) the air, in conjunction with the announcing services of a person holding a third class engineer's license, for the temporary period required to recruit and hire a full replacement for Branch. Furthermore , I find that Pinckard exaggerated Branch's alleged "stealing" of time. He testified that Branch "just couldn't stop stealing"; that he spoke to Branch about "stealing" time a "Good dozen times" in 1968 , "about a dozen times" in 1969, and "so many times [he] couldn't remember" in 1970 ; and that he "might catch him [Branch] stealing sometime twice in one day" in 1971. Even Wheeler conceded that Branch "basically" followed the procedure of submitting requests for time to the "traffic department prior to 12 o'clock of the day they wanted to start these spots, with no exceptions "; that he could only "recall several instances of violations ;" and that the latest occurred in February 1971, 1 month before the Respon- dent conferred upon Branch the titles of acting program director and supervising staff announcer. Although Wheel- er also testified that Branch did not prerecord 10-second spots as required under the Respondent's rules and that in April 1971 he told Branch that "it appeared he [Branch] continued to exceed the 10 seconds on these commercials" and "to put them on [cartridge]-to record them," he further testified that when he had first mentioned this subject to Branch, Branch had denied exceeding 10 seconds during such live self-advertising . Significantly, Wheeler mentioned June 1971-2 months before Branch's discharge-as the latest date he spoke to Branch about exceeding the limit on 10-second commercials . In view of the inconsistency between Pinckard's testimony and Wheeler's, and inasmuch as I have found Branch to be a reliable witness, I credit Branch's testimony to the effect that he never in fact "stole" time; that it was never his intention not to pay for time he used for himself ; and that on two occasions, the latter in February 1971, when it was brought to his attention that he had used time for himself on the air without prelogging it, this occurred before he could postlog it as he had intended, and he then proceeded to do just that. If, as the Respondent asserts, it believed that Branch was indeed a dishonest employee , it is strange that it offered in its August I I letter to Branch to give him "references" to obtain other work . Pinckard's explanation for the offer that he bore Branch no ill will and was willing to help him is not persuasive. When Pinckard was asked on the witness stand what motivated him to fire Branch , he responded: The completion of many, many months of thought and wanting to give to our listening audience all that WMPP could give to the blacks and to the oriented and to the ethnic. Charlie Branch did not have this thing that would create and bring about what we desired was a part of culture. Charlie Branch was on the low level of a guy who wanted to go into taverns and slums and scums and bad-name record hops. Give me a drink of that wine. I think blacks have been accused and a part of that too long. The poor Mexican, the poor black, the poor Spaniard, I wanted Branch to lift that group of people, and this is the thing that made me make the decision that Branch is no good for this organization of what we are trying to perpetuate . Something uplifting. Branch's commendable community work, reflecting on the station, has already been discussed . Moreover, there is no evidence of specific complaints from members of the public that Branch's work on the air or on "sets" was vulgar and demeaning . Precisely what moral or cultural standards were demanded of Branch as a disc jockey who projected his personality while announcing and introduc- ing and playingjazz music records , and exactly how in this occupation he could "uplift" the listening audience is not disclosed by Pinckard's testimony . Had Pinckard dis- charged Branch earlier in his employment and not on the heels of the August 9 letter; had Pinckard not appointed Branch as acting program director as late as March 1971, long after Branch had been an announcer and had been appearing with the Respondent's acquiescence at "sets" or "hops"; had the Respondent not assigned Branch to a shift on the most expensive and desirable air time ; had Pinckard not admitted by his own testimony that when Branch was hired in 1968 Branch had told him he was looking for a job because Branch 's employer in Denver "wouldn 't let him do his thing. . . . doing some record hops , making some extra money, trying to get ahead in this world"; had Branch himself not indicated in his conversation with Wheeler and Brown on August 9 that on the orders of his physician he would no longer be performing at "sets" or "hops," Pinckard's effusive testimony about Branch 's "uplift" shortcomings as the reason for his discharge might have been entitled to greater respect and weight than it now commands. I am convinced that none of the reasons offered by the Respondent for discharging Branch actually triggered his separation. I conclude and find that the Respondent discharged Branch on August 11, 1971, for the reason that Branch had WMPP 505 prominently engaged in union and concerted activity protected under Section 7 of the Act, and that the Respondent thereby violated Section 8(a)(1) of the Act. The August 11 letter to Walder mentions a "cut back" in sign-off time and "budgetary limitations" as reasons for severing him. But, in place of Walder, Weaver was hired and given the "sign-off" shift, which had not yet been eliminated as there had not been a sufficient reduction in the hours of daylight . And, as already indicated , Cain was also employed, and a wage increase was granted to the announcers later in August . The reasons set forth in the letter simply will not pass the test of critical analysis-they are obvious pretexts for Walder's discharge . But the Respondent contends it had other reasons for firing Walder, reasons which were not stated to Walder when he was discharged on August 11. Wheeler testified that Walder had a "high peak-type" voice that "made him sound on a number of occasions as if he was younger than he really was." As Wheeler addition- ally testified, however, the most Wheeler did about this condition after Walder was assigned the "sign -off" shift was to talk to Branch in May 1971 and tell "him to get with Walder and see whether he could get him to project out of his stomach more to deepen his voice ." Wheeler conceded that Walder's "operation of the board" gave no cause for complaint, and that "As far as his reporting to work on time, things of this nature, we had no problem with him there." Pinckard, in his testimony, insisted, unlike Wheeler, that Walder "stole" time, spoke too rapidly, "can't read, can't write, can't enunciate, can't punctuate, nothing you can do with him. Let him go back to school ." Pinckard stated that, insofar as Walder's alleged inability to read was concerned, he did not talk to Walder about it, but "turned that over to my manager [Wheeler]." Wheeler offered no corroboration of Pinckard 's testimony in this respect. Pinckard did testify that he complained to Walder about other matters, including Walder's alleged "stealing" of time, rapidity of speech and poor enunciation . But Walder denied that Pinckard ever spoke to him about them. Pinckard testified further that on one occasion he told Walder that he was "Just like your trainer Charlie Branch. You ain't a d-a-m, and he ain't worth a d-a-m." However, Walder also denied that this statement was made to him by Pinckard . Pinckard was inclined to testify rather expan- sively about most subjects . His testimony about Walder's many deficiencies, including Walder's alleged "stealing" of time, was not corroborated by Wheeler , who as station manager was certainly in a position to know about such matters if they actually existed or occurred . Furthermore, I have already had occasion to refer to Walder's favorable demeanor on the witness stand . I therefore credit Walder's denials. Walder was tried on the air for the first week in March 1971. Thereafter, despite his claimed faults, the Respon- dent gave him a regular shift for a time , asked him to substitute for Bell, and then assigned him to the "sign-off" shift, which he worked from April 26 until his separation in August. He was employed by the Respondent for a period of some 5 months. Walder was discharged with Branch 2 days after Branch's August 9 letter to Pinckard, who considered Branch and Walder as one . The reasons for firing Walder advanced by the Respondent through the testimony of Wheeler and Pinckard are lacking in substance and cogency. I find that the Respondent discharged Walder for the reason that it linked him with Branch, who was fired by it for his leadership in union and concerted activity protected by the statute, and that by so discharging Walder the Respondent violated Section 8(a)(1) of the Act. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Seaway Broadcasting Company, Inc. d/b/a WMPP, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent violated Section 8(a)(1) of the Act by discharging Charles Branch , Jr., and Samuel Walder because they engaged in union and other activities protected by the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and from like or related invasions of the employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the purposes and policies of the Act. It has been found that the Respondent discharged Charles Branch, Jr., and Samuel Walder on August 11, 1971, in violation of Section 8(a)(1) of the Act. It will therefore be recommended that the Respondent offer Charles Branch, Jr., and Samuel Walder immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of their discharges by payment of a sum equal to that which they normally would have earned, absent the discharges, from the date of the discharges to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be additionally recommended that the Respondent preserve and, upon request , make available to the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of this recommendation. Upon the foregoing findings of fact, conclusions of law, 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER20 The Respondent, Seaway Broadcasting Company, Inc. d/b/a WMPP, East Chicago Heights, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they have engaged in union or concerted activities protected under Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Charles Branch, Jr., and Samuel Walder immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discharges by the Respondent in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records relevant and necessary to the determination of the backpay due and the rights of reinstatement provided under the terms of this recommended Order. (c) Notify Charles Branch, Jr., and Samuel Walder in the event that they are now serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its office in East Chicago Heights, Illinois, copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by it immedi- ately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.22 20 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec 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 21 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 22 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read - "Notify said Regional Director in writing, within 20 days from the date of this Order, what 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 discharge our employees because they have engaged in union or concerted activities protected under Section 7 of the National Labor Relations Act. WE WILL offer to Charles Branch, Jr., and Samuel Walder immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and make them whole for any loss of earnings suffered as a result of their discharges by us on August 11, 1971. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exericse of rights guaranteed to them by Section 7 of the Act. SEAWAY BROADCASTING COMPANY, INC. D/B/A WMPP (Employer) Dated By (Representative) (Title) We will notify immediately Charles Branch, Jr., and Samuel Walder, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. 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, Everett McKinley Dirksen Building, Room 881 , 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.