Rollins Telecasting, Inc.

ROLLINS TELECASTING, INC. 613 Rollins Telecasting, Inc. and Teamsters Local Union No. 648, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Cases 3-CA-4538, 3-CA-4591, 3-CA-4636, and 3-RC-5218 October 10, 1972 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 30, 1972, Administrative Law Judge 1 Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order' as modified herein. 1. In the latter part of August, H. L. Kelly was offered a job transfer. Before accepting the transfer, she inquired whether she would be considered a confi- dential employee and ineligible to vote in the upcom- ing election. Respondent's station manager expressed his opinion that she would be a confidential employee and therefore would not be eligible to vote in the election. Having been so informed, she accepted the transfer. Unlike the Administrative Law Judge, we do not find that Respondent violated Section 8(a)(1) of the Act by his statement to Kelly. The fact that the Board subsequently determined that she was an eligi- ble voter does not alter the noncoercive nature of his statement in the circumstances in which it was made. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings 3 For the reasons set forth in his separate opinion in United Packing Com- pany of Iowa, Inc, 187 NLRB No. 132, Chairman Miller concurs in the issuance of the bargaining order, but only on the basis of Respondent's serious violation of Section 8(axl) and (3) of the Act as set forth in the attached Administrative Law Judge' s Decision. 2. We agree with the Administrative Law Judge that Vice President James Roddey's speech of August 11 was understood by the employees to mean in its totality that it would be futile for them to vote for the Charging Party. Roddey emphasized three main points. First, he pointed out that the Respondent had previously closed a business enterprise rather than deal with the Teamsters. Second, he pointed out that if the Teamsters attempted to force Respondent to deal with them through a strike, the employees would lose their jobs "temporarily or permanently" through replacements. Third, he suggested that the employees organize a committee to deal with Respondent and indicated they would benefit by such a procedure.' The Administrative Law Judge found that all three points taken together were violative of Section 8(a)(1). Contrary to our dissenting colleague, the employer's speech found lawful by the Board in Texaco Inc., 178 NLRB 434, contained no threats or promises. The employer there did not suggest that employees would lose their jobs in the event of a strike, and, unlike the speech in the instant case, was a balanced appraisal of the rights of employees with respect to union repre- sentation. 3. In agreement with the Administrative Law Judge, we have overruled challenges sufficient in number to affect the outcome of the election, and have sustained certain of the Union's objections to conduct affecting the validity of the election. Accord- ingly we, shall remand the representation case to the Regional Director for Region 3 with directions that the challenged ballots be opened and counted, and that a revised tally issue. If the revised tally establishes that Teamsters Local Union No. 648, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, represents the majority of Respondent's employees in the agreed-upon appro- priate unit the Regional Director shall certify it as the collective-bargaining representative of the unit em- 4 In concluding that James Roddey's speech to employees on August I I violated Sec. 8(a)(1) of the Act, Chairman Miller relies solely on the finding that it contained a veiled promise of benefit for foregoing unionization and dealing directly with Respondent . Unlike his colleagues, Chairman Miller would not find that Respondent violated Sec . 8(axl) by the statements Roddey and Dixon made concerning strike replacements . The Board, in Texaco Inc., 178 NLRB 434, found similar statements did not exceed the bounds of protection afforded by Sec. 8(c) of the Act. Furthermore, Chair- man Miller does not agree that Roddey's speech contained a veiled threat that Respondent would close down rather than deal with the Union. The Administrative Law Judge did not credit any testimony to that effect. Rather, he relied on Roddey's concession, evidenced soley by the latter's testimony that he told employees that at another location "it had been the Company's decision that rather than submit to the demands [of the Teamsters] that we felt were unreasonable, we would prefer to close that office." (Emphasis supplied.) It is upon this testimony that the alleged violation of Sec. 8(axl) must be tested. Viewed separately or in the context of the entire speech, this statement does not suggest that Respondent would close down rather than deal with the Union. 199 NLRB No. 92 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees. Otherwise, we shall direct that the election be set aside and that the Regional Director dismiss the petition. in Case 3-RC-5218 and vacate all proceed- ings in connection therewith. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Rollins Telecasting, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as modified herein: 1. Delete paragraph 1(f) from the recommended Order. 2. Insert the following after the last paragraph of the recommended Order: "IT IS FURTHER ORDERED that the election be set aside, the petition in Case 3-RC-5218 be dismissed and all proceedings in connection therewith be vacat- ed, if, after the opening and counting of the two chal- lenged ballots, the tally of ballots shows that the Union has not obtained a majority of the votes cast." 3. Substitute the attached notice for the Adminis- trative Law Judges. DIRECTION It is hereby directed with regard to the election held on September 28, 1971, in Case 3-RC-5218, that the Regional Director for Region 3 shall, pursuant to the Board's Rules and Regulations , within 10 days from the date of this Direction, open and count the ballots of Patrick Connelly and John Ryan, and there- after prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the above ballots; and IT IS HEREBY FURTHER DIRECTED that if the results according to the revised tally indicate that the Peti- tioner has received a majority of the total votes cast, including the above-named challenged ballots, the Regional Director certify Petitioner as the exclusive representative for collective-bargaining purposes of the employees in the appropriate unit. However, if the revised tally of ballots shows that Petitioner has not received a majority of the total ballots as provided above, then it is ordered that the election held on September 28, 1971, in Case 3-RC-5218 be set aside, and all proceedings connected therewith vacated. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE The National Labor Relations Board having found, after a trial, that we violated Federal law in various ways, we hereby notify you that: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT discharge you for engaging in union activities. WE WILL NOT promise you raises and other benefits for rejecting union representation. WE WILL NOT threaten to close the station if you vote for union representation. WE WILL NOT tell you it would be futile for you to vote for union representation. WE WILL offer Patrick Connelly and John Ryan immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any earnings they lost as a result of their discharge on July 16, 1971, plus 6 percent interest. WE WILL, upon request, even if the election held at the station on September 28," 1971, does not result in certification of Local 648, bargain collectively with Teamsters Local Union No. 648, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as your exclusive representative and, if an understanding is reached, embody it in a signed agreement. The unit appropriate for such bargaining is: All our employees at Television Station WPTZ, Plattsburg, New York and at Terry Mountain, New York, including office clerical employees, but excluding sales personnel, managerial employees, confidential employ- ees, watchmen and guards, professional em- ployees, and supervisors as defined in the Act. All our employees are free, if they choose, to join Teamsters Local Union No. 648, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion. ROLLINS TELECASTING, INC. (Employer) NATIONAL LABOR RELATIONS BOARD Dated By An Agency of the United States Government (Representative) (Title) ROLLINS TELECASTING, INC. 615 We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the 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. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14204, Tele- phone 716-842-3112. TRIAL EXAMINER'S DECISION Melvin and Mrs. Kelly. Consequently, I recommend that the challenges to the ballots of Connelly and Ryan be over- ruled, but that the challenge to the ballot of Melvin be sustained. This should lead to a second revised tally of ballots which will show a majority of Respondent's employ- ees voted for representation by the Charging Party, and certification of the Charging Party within the context of Case 3-RC-5218 will result. (Connelly and Ryan did not testify explicitly that their challenged ballots were cast for the Charging Party. However, they initiated the Charging Party's organizational campaign, and nothing which hap- pened to them between their discharge and the election would indicate a change of heart in the interim.) In the event that it does not, I recommend that certain objections to the -election held on September 28 be sustained, that the pro- ceedings in Case 3-RC-5218 be vacated, and that the issue of Respondent's obligation to recognize and bargain with the Charging Party be resolved in accordance with the Gis- sel principle (N.L.R.B. v. Gissel Packing Company, 395 U.S. 575), as found below. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: STATEMENT OF THE CASE BENJAMIN K. BLACKBURN , Trial Examiner: The petition was filed in Case 3-RC-5218 on July 22, 1971.' The charge in Case 3-CA-4538 was filed on July 23 . A Stipulation for Certification Upon Consent Election in Case 3-RC-5218 was approved by the Regional Director on August 23. The charge in Case 3-CA-4591 was filed on September 17. The election in Case 3-RC-5218 was held on September 28. Six challenged ballots were determinative. Objections were filed on October 4. The charge in Case 3-CA-4636 was filed on October 20 and amended on October 28 and again on November 11. The Regional Director consolidated Cases 3-CA-4538, 4591, and 4636 for hearing and issued a consol- idated complaint on November 29. He issued his Report on Challenges and Objections in Case 3-RC-5218 on Decem- ber 7. In it, he consolidated Case 3-RC-5218 with the three unfair labor practice cases in the event a hearing proved to be necessary. On January 18, 1972, the Board issued a Deci- sion and Order in the consolidated cases in which it ordered, under circumstances which have come to pass (i.e., opening of the other three challenged ballots and challenges still determinative), a hearing on three challenged ballots and several objections. Hearing on all four cases was held in Plattsburgh, New York, on January 24, 25, 26, and 27, 1972. (The General Counsel's motion to correct the transcript is hereby granted.) The principal issue litigated was whether Respondent discharged Patrick Connelly and John Ryan on July 16, James Melvin on September 9, and H. L. Kelly on Novem- ber 9 for reasons which violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. For the reasons set forth below, I find that it did so in the cases of Connelly and Ryan, that it did not do so in the cases of FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, operates a tele- vision station known as WPTZ in Plattsburgh, New York. The station annually grosses more than $100,000 and re- ceives goods valued at more than $50,000 which are trans- ported to it directly from points outside the State of New York. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. , II. THE UNFAIR LABOR PRACTICES A. Facts 1. The discharge of Patrick Connelly and John Ryan WPTZ is one of three television stations owned by Respondent. Respondent is part of the media division of Rollins, Inc. Along with other "media"-i.e., cable tele- vision, outdoor advertising, and radio-the three stations are under the direction of James Roddey, group vice presi- dent in charge of Rollins' media division. In late June and early July Roddey summoned the managers of the enter- prises under him to Respondent's home office in Atlanta for a series of meetings. The television stations' turn came on July 9 and 10. William Eaton, manager of station WPTZ, was in Atlanta at that time for that purpose. Roddey explained to Eaton and the managers of the other two television stations that various developments in the television industry such as the loss of cigarette advertis- ' Dates are 1971 unless otherwise indicated. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing revenues after January 1, 1971, had created a problem with respect to Respondent's anticipated profits. He point- ed out that income projections which he had made for the fiscal year that began on May 1 were running behind. He gave each a budget for the quarter beginning August 1 and instructed them to work together with the data available, such as their anticipated revenues, to see what they could devise in the way of reducing such costs as total salaries, telephone, gas and oil, stationery and other supplies, and copying work. He set the month of August as a target date for bringing costs into line with the revised projection. The three managers spent the balance of the 2-day conference working on the task set them by Roddey. Eaton returned to Plattsburgh on Sunday, July 11. Eaton held his usual Monday conference with his de- partment managers the next morning. He reviewed with them his notes from the conference he had just attended. He went over briefly such areas as telephone, payroll, expense for Xerox, technical maintenance expenses, and news ex- penses. He instructed each to study his own department and return to him with suggestions he might have for reducing expenses. Thomas Beardsley went to work for WPTZ as a studio technician in February 1971. In May or June, Larry Bender, the news director, told Beardsley he would keep Beardsley in mind for an opening WPTZ was thinking of creating in the news department. Roddey subsequently authorized the hiring of an additional newsman. Around July 1, Bender told Beardsley to make a test videotape. Beardsley did so. About a week later Bender told Beardsley to get a shave and a haircut because he would be starting in the news depart- ment on July 25. On Tuesday, July 13, Bender told Beards- ley that, while his transfer to the news department was still certain, it was being put off until mid-August because Beardsley could not be spared from the control room until Frank Kennedy, engineering supervisor in the studio, re- turned from vacation. Overt union activity began later that same day, July 13, among WPTZ's employees. Discussions of unionization had been going on among the employees for a month or more. Eaton was aware of these discussions and knew that Patrick Connelly was involved in them. On that afternoon, one of these discussions resulted in Connelly's telephoning the office of the Charging Party and making an appointment for the following day. Patrick Connelly is the son of Robert Connelly, WPTZ's sales manager. He went to work for the station on May 19 as a combined film and camera man. In mid-July his duties included setup and camera work on 5-minute live newscasts at 7:25 and 8:25 a.m. (WPTZ, an NBC affiliate, begins its broadcast day at 6:55 a.m. It carries the Today Show from 7 to 9 a.m. each weekday morning.) Connelly spent the balance of his workday in sorting, assembling, and packaging film used by the station. In these tasks he worked with and assisted Roderick Wilson, WPTZ's film editor. Connelly was accompanied to the office of the Charg- ing Party in the late afternoon of July 14 by John Ryan. Ryan started with WPTZ in March 1970 as a film and camera man. In June 1970 he transferred to the news de- partment. In July 1971 his duties included presentation of the 7:25 and 8:25 a.m. newscasts. He then spent the balance of his day covering news events and preparing them for presentation on WPTZ's evening newscasts . He and Con- nelly went to the Charging Party's office when they finished work on July 14. Connelly and Ryan talked to Victor Mousseau, the Charging Party's president and business agent. They ex- plained their interest in being represented by the Charging Party. Mousseau explained the procedures for organizing a unit of employees. He gave them a supply of a booklet entitled "The Law and You" which the Charging Party uses in its organizing campaigns . The back cover of the booklet is a perforated authorization card which is torn off and executed by employees who want union representation. Connelly signed an authorization card on the spot and left it with Mousseau. Connelly and Ryan went from Mousseau's office to the Dairy Queen, a limited menu restaurant next door to WPTZ frequented by WPTZ's employees. There they discussed their strategy for signing up WPTZ's employees. Ryan signed an authorization card at that time. Connelly and Ryan divided up a list of other employees they thought would be interested and set out to solicit their signatures. Connelly signed up Roderick Wilson on July 14; Ryan signed up Carl Leahy, Raymond Bryant, Donald Colborn, Lucius Smith, and Cindy Bromley. The next day, at the station, Connelly and Ryan jointly signed up Thomas Beardsley, H. L. Kelly, and James Mel- vin. After work they sought out Richard Maynard at a baseball diamond and signed him up there. They also went to Terry Mountain, the location of WPTZ's transmitter. However, they changed their minds about soliciting Dick Krause, engineer at the transmitter, and left without broaching the union subject to him. (Ryan talked to Nevton Dunn, tower supervisor, about joining the Union at Dunn's home on the evening of July 15. Ryan and Connelly both mentioned what they were up to on July 15 to Larry Bender, Ryan's immediate supervisor. Bender wished them luck.) Eaton also visited the transmitter on July 15. On his return, while he was seated in his office a few minutes after 5 p.m., he answered the telephone. The caller was Krause. Krause asked Eaton if Ryan was there, explaining that his wife told him Ryan was looking for him. In the course of this chance conversation, Eaton told Krause that Ryan was probably looking for Krause in order to get him to sign an authorization card. Eaton summoned Ryan to his office at the end of the 8:25 newscast on the morning of July 16. Eaton said, "John, I am sorry but we are having an economic cutback and we have to let you go as of the 30th. You are released today. Hand in your keys." Ryan handed over his keys and tele- phone credit card. Eaton asked where Ryan's camera was. Ryan said it was in his car. As Ryan left Eaton's office, Eaton followed him. They walked through the reception area outside Eaton's office . Ryan said to the persons in the area that he would be back with the Teamsters. Eaton fol- lowed Ryan to Ryan's car. Ryan gave Eaton the camera equipment which belonged to Respondent. Eaton summoned Connelly to his office as soon as he had finished with Ryan. Eaton told Connelly that his posi- tion was being eliminated due to an economy cutback. Ea- ton explained that he was eliminating the two live morning ROLLINS TELECASTING, INC. 617 newscasts as well as a locally produced daytime show called News of Women or NOW. Eaton asked Connelly for his keys. Connelly gave them to him, along with some pens and notebooks which belonged to Respondent . Eaton asked if Connelly had any personal effects in the building. Connelly said yes, in the film department, where he worked. Eaton accompanied Connelly to the film department while Con- nelly picked up his things, then escorted him to the door. Ryan and Connelly went directly from the television station to the Charging Party's office. They told Mousseau what had happened. He immediately drafted and posted a demand letter for an all-employees unit. Eaton received it before noon that same day. Eaton advised Atlanta what had happened. He carried the Charging Party's demand letter around unopened until William Ford, a partner in the At- lanta law firm which represents Respondent, arrived in Plattsburg several days later. Ford replied to the Charging Party's July 16 demand letter under date of July 20. He declined to recognize the Charging Party prior to Board certification on the ground that Respondent doubted the Charging Party's majority. Ryan talked to Bender shortly after his discharge. Bender told Ryan he had not been aware that any cutbacks were impending in the news department. The 7: 25 and 8 :25 a.m. newscasts were last carried by WPTZ on Monday, July 19. Arthur Bradley, operations manager, second-in-command of the station, and an expe- rienced announcer, performed Ryan's role . The record does not reveal who performed Connelly's. The record also does not reveal precisely when the NOW show disappeared from the air. Apparently it was on or shortly after July 16. The NOW show had been produced for WPTZ by a Mrs. Twells on a contract basis. Her connection with the station ended when the show went off the air. Connelly and Ryan were paid by Respondent through Friday, July 30. They did not work after 9 a.m. on July 16. On July 23 Eaton told Beardsley his transfer to the news department was being canceled because of an economic cutback. Connelly's departure caused Wilson to have to work overtime. Shortly after the election held in Case 3- RC-5218 on September 28, Wilson asked for an assistant. Since November Wilson's stepson, a schoolboy, has worked with Wilson on a parttime basis, performing roughly the same duties as Connelly other than Connelly's work on the morning newscasts. 2. The Dairy Queen incident On July 21 Ryan was seated in the Dairy Queen with Carl Leahy and Thomas Beardsley when Lincoln Dixon, WPTZ's engineering manager, came in. Dixon joined the group. The smile on his face caused Ryan to chuckle. Dixon said, "You shouldn't laugh now because you are going to lose." He then said he was sorry that Ryan had lost his job and added, "In light of the bad labor record of this compa- ny, John, you definitely should have written a letter to Mr. Eaton prior to trying to get the Union cards signed, and prior to getting the Union movement going." (Dixon had made a similar comment, that a letter to Eaton before they started their union activities would have protected Connelly and Ryan from discharge, to H. L. Kelly on July 16. 1 do not credit Dixon's testimony that his remark to Ryan, Leahy, and Beardsley in the Dairy Queen was made after Ryan expressed some doubt about Respondent's motive for firing him.) Around the same day, Dixon told Dennis McDowell, a studio engineer, in the course of a conversation about the union situation initiated by McDowell, it was too bad the only people who would get hurt would be the employees, the Company was already making arrangements to bring peo- ple in in the event of a strike, and the station could keep running a lot longer than the employees who would go out on strike. 3. James Roddey's August 11 speech As already indicated, the petition was filed in Case 3-RC-5218 as soon as Respondent rejected the Charging Party's July 16 demand for recognition, and the election was held on September 28. In the interim , Roddey made two trips to Plattsburgh in connection with Respondent's cam- paign. He spoke to the employees on August 11 and again on September 26 or 27. On August 11, in his own words, he said: Q. Would you begin at the beginning of the meet- ing, and describe what you said, and what was said to you? A. It is in the testimony I have heard-I have heard that it was characterized as a speech. It was more of an extraneous discussion about the Company's posi- tion. I think I generally began by explaining why I was there-that it was generally understood that I was there because of the Union activities, and that I wanted to make the Company's position, as far as the home office of Rollins, very clear; that we did not want a Union; that I was there to find out what conditions existed that would cause the people to want a Union. In addition to that, I indicated that I had heard from Mr. Eaton-that he had reported to me that there were rumors that the Teamsters were a powerful Un- ion; that they will pull a great deal of pressure on Rollins through contracts they had with Rollins, and with companies they dealt with across the country, be- cause Rollins is a national concern. Also that I heard the Teamsters were very tough, and a lot tougher than the last union that had been active in Station WPTZ. I heard that they would be able to get the Company to agree with things that the other union had not. I pointed out to them that I didn't believe that was the case; that first of all we had union contracts with Teamsters in our Company ; that the only connection we had with the Teamsters was an office in Florida that they had organized, and that it had been the Company's decision that rather than submit to the de- mands that we felt were unreasonable, we would prefer to close that office. I indicated that I would be the man that they would bargain with, and I would deal with them at arm's length ; that I acknowledge that the Teamsters were a hard bargaining force, but that I would bargain 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hard also, and that the election, if in favor of the Un- ion, would not mean they would automatically get all of these benefits that they felt they wanted; that it only gave the Union the right to negotiate, and that there was no legal means by which the Union could force us to agree with anything that we did not believe was in the best interest of the Company; that one method they might use would be to strike. I told the people that if they did strike under cer- tain circumstances, that they could be replaced tempo- rarily or in other circumstances they could be replaced permanently. Q. Did you give any explanation for the temporary or permanent replacement? A. I don't think there was any question on that particular issue. s s • s Q.... what if anything was said about an employ- ee committee? s A. Well, I have to tell a little background. I had asked for questions about why they needed a union. There were several responses, some of which quite frankly surprised me. Some of the employees said they were having to get Welfare in order to exist. Some of them had two jobs in order to support their families. One remark that was made, was that they had to get food stamps-federal government food stamps. I indicated that I was surprised, and that I didn't know that conditions like that existed. They also said that the cost of living was extremely high, and I acknowledged that I didn't know that until I came up here, and had discussions with Mr. Eaton- we had discussed the issue and it was pointed out to me that the cost of living is fairly high in the Plattsburgh area. In response to that, I replied to that that if they would like to get something together, either individual- ly or as a group or committee, and talk to me, and explain to me the problems, I would certainly be willing to do so. Q. Anything said concerning investigating other stations? A. I offered to get the wage scales and the cost of living figures for comparable markets in upstate New York, New England and so forth. Q. What if anything else was said in the course of the meeting? A. I believe that particular meeting, there was a discussion about our recent union activities in Dela- ware. I pointed out that the Company had won the election, and that the organizational efforts were at- tempted by a large national union. This was cable television, and that the Company had won the election. I don't remember the exact num- ber of the vote-I think it was 14 to nothing. I said that since that time the Company had formed a committee of employees, and this was working very successfully. s s • s 0 Q. Going back to the previous meeting, there was testimony earlier concerning the question about the discharge of Mr. Connally and Mr. Ryan, and do you remember that? A. Yes. Q. Tell the Trial Examiner what happened. A. Somebody brought the question up-I don't remember-several people in the group were quite ac- tive in asking questions. One of the persons asked about the termination of Mr. Ryan and Mr. Connally. I think I remarked that it was done hastily. Q. Did you make an explanation? A. I was asked for an explanation, and I said that I was not really at liberty to discuss that matter at that time. 11 4. Janet Newbegin's attempts to get a raise Janet Newbegin, hired on May 3 at $1.95 an hour, was sales and engineering secretary at WPTZ. After working 2 or 3 months, she sought a raise.,The evidence with respect to what resulted from her campaign presents the only signif- icant credibility conflict in this record. The conflict is be- tween Miss Newbegin and Lincoln Dixon, one of Miss Newbegin's immediate supervisors. According to Newbe- gin, Dixon talked to her in terms of a raise if the Charging Party did not win the election. According to Dixon, he told her she would get a raise after the election regardless of the outcome. More specifically, Dixon testified that he dis- cussed their conversations about a raise with Roddey, Rod- dey thought that Miss Newbegin was baiting him in order to create an unfair labor practice or an objection to the election, and that, on Roddey's instructions, he told Miss Newbegin, when she drove him to the Plattsburgh airport on September 16, that she would get a raise to $100 a week regardless of who won the election. I credit Miss Newbegin over Dixon, principally because of the insight provided by the forthright testimony of Robert Connelly, the sales man- ager, into the atmosphere at WPTZ in July, August, and September. Robert Connelly testified that his son's union activities so disrupted his home life that he and Patrick were not speaking to each other during this period. Connelly was "working on" his wife to determine "what the hell" Patrick was doing organizing for the Charging Party. Connelly said to his wife, "He ain't been here long enough for anybody to hurt him or for him to know anything about the busi- ness." Mrs. Connelly said, "Well, your company's skirts aren't so damned clean either." She said that Patrick had told her Respondent was trying to bribe Janet Newbegin to vote for it. Connelly replied, "No way." ROLLINS TELECASTING, INC. 619 Miss Newbegin struck me as an intelligent young wom- an who would have no trouble understanding what was being said to her by her bosses during the heat of an organiz- ing campaign. The fact that what was said to her became a cause celebre at the time convinces me that her version is to be preferred over Dixon's. Sometime in late July or early August, Miss Newbegin began complaining to Dixon that she could not live on her income. Dixon asked her what she thought a fair salary would be. She said that she needed $90 a week to live on. Dixon agreed that she was worth $90 a week and promised to try to get it for her. The wage freeze instituted by Presi- dent Nixon in mid-August obviously intervened, for when Miss Newbegin carried her campaign to Eaton in August, he told her that he could not give her the raise she deserved because of the President's wage freeze and the pendency of the election. This came during a conversation in which Ea- ton also told Miss Newbegin that there were no advantages for the employees in a union and pointed out that when the employees at another of Respondent's companies went on strike, Respondent simply brought in replacements. The culmination came on September 16. (The com- plaint speaks of illegal promises of wage increases by Dixon on three occasions in August and September "in an automo- bile on route to the airport and in the studio at WPTZ." My finding as to the precise date on which this conversation took place in based on Dixon's testimony, which I credit, that September 16 was the only occasion during this period when Miss Newbegin drove him to the airport. Dixon's memory was corroborated by his pilot's log. In light of Dixon's admission that Miss Newbegin drove him other places during this period, I attach no significance to the fact that Miss Newbegin testified to two different conversations with Dixon about her salary while on trips to the airport or to her vagueness as to the precise dates on which these conversations took place. Respondent's contention that this allegation of the complaint should be dismissed, especially in light of its essentially unsuccessful efforts to have the complaint clarified through a motion for a bill of particulars, because the General Counsel's evidence did not conform to his pleadings, is without merit.) On their way to the Plattsburgh airport that day in Miss Newbegin's car, Dixon asked her if she remembered their conversation about $90 a week. When Miss Newbegin said that she did, Dixon told her that she would get a raise to $100 a week if the Charging Party lost the election. When Roddey visited WPTZ a day or two before the September 28 election, he told Miss Newbegin he would see to it that any promises which had been made to her were kept. On September 28, just before she voted, Dixon said to her, "Remember, I have committed you to the company." 5. H. L. Kelly's transfer H. L. Kelly went to work for WPTZ on December 14, 1970, as logging secretary under the supervision of Arthur Bradley, the operations manager. Around August 20 Cindy Bromley, the continuity secretary, resigned. Because of the importance of the continuity secretary's job and the quali- ties required of the incumbent if it is to be performed prop- erly it was decided to transfer Bradley's secretary, Ann Bowen, to that position. Bradley offered Miss Bowen's job to Mrs. Kelly. He explained that Miss Bowen would take certain of her old tasks-i.e., the preparation of certain recurring documents-with her to her new job and that Mrs. Kelly would retain certain of her peripheral duties-i.e., the preparation of certain weekly reports-but that, in the main, Mrs. Kelly's new duties would consist of acting as his private secretary. A new employee was to be hired to take over Mrs. Kelly's primary duty, logging. Mrs. Kelly had recently heard, at a union meeting, about some of the intri- cacies of Board law on unit inclusions and exclusions, in- cluding the rule relating to confidential secretaries. (The Charging Party held three meetings for Respondent's em- ployees during the campaign, one in July and two, appar- ently in August. Prounion employees, Mrs. Kelly included, also wore "Vote Teamster" buttons while at work during this period.) Consequently, she asked Bradley what effect such a transfer would have on her status. Bradley referred her to Eaton. Eaton told her that becoming Bradley's pri- vate secretary would make her a confidential employee and thus she would be ineligible to vote in the upcoming elec- tion. Mrs. Kelly asked for some time to think about Bradley's offer. She eventually accepted. She started on her new duties on Monday, August 30. H. L. Kelly's name was not on the list of eligible em- ployees prepared by Respondent for use at the election on September 28. Ann Bowen's name was. Mrs. Kelly voted a challenged ballot. (William Ford, Respondent's attorney who was at the location on election day, also told her she could not vote because she was a confidential employee.) She was challenged by the Board agent conducting the elec- tion on the ground that her name was not on the list. In his December 7 Report on Challenges and Objections, the Re- gional Director concluded that she was not a confidential employees and recommended that her ballot be opened and counted; it was, on January 21, 1972, along with two other challenged ballots, pursuant to the Board's order of January 18, 1972. The revised tally of ballots issued on January 21, 1972, shows 11 votes for the Charging Party, 11 votes against, and 3 determinative challenges. (The original tally showed 10 votes for the Charging Party, 9 against, and 6 determinative challenges.) Shortly after Mrs. Kelly's transfer, Janet Newbegin had a conversation with Bradley. Miss Newbegin remarked that Ann Bowen was acting like a 5-year-old and very upset that Mrs. Kelly was made Mr. Bradley's secretary. She said she was surprised that Miss Bowen had not figured out that Respondent made Mrs. Kelly a confidential secretary in order to kill her vote for the Charging Party. Bradley asked Miss Newbegin why she did not tell that to Miss Bowen. Miss Newbegin said she was going to. At the hearing, counsel for Respondent stipulated that H. L. Kelly and Ann Bowen were in the unit on various dates in July on which the General Counsel contends that the Charging Party represented a majority of Respondent's employees under the Gissel doctrine, supra, although Re- spondent reserved its position for future litigation growing out of Case 3-RC-5218 that, as Bradley's private secretary on and after August 30, Mrs. Kelly was a confidential em- ployee. Ann Bowen was Bradley's private secretary on the July dates in issue. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The discharge of James Melvin Mrs. Kelly attempted suicide on Monday, September 6, and was taken to a hospital . Bradley visited her on Sep- tember 7 at a time when her estranged husband was with her. As a result, Bradley exchanged only a few words with Mrs. Kelly. On his return to the station, he talked to James Melvin, a technical director, about Mrs. Kelly's attempt to kill herself. Melvin blamed the incident on Respondent. He said, "The [obscenity] capitalistic company, don't they give a [obscenity] about the people that work here? It is the company's fault that Kelly is in the hospital ." Melvin, Mrs. Kelly's friend, visited her on the evening of September 7. Melvin was on duty at the time . He left the station for an hour without permission and without the knowledge of any supervisor in order to go to the hospital. (No issue has been made in this case about Melvin's conduct on September 7. The question of whether his discharge was violative of the Act turns solely on his similar conduct on the evening of September 8.) Bradley visited Mrs. Kelly in the hospital again on the afternoon of September 8. Mrs. Kelly asked him if Melvin .could visit her that evening. Bradley replied that Melvin had the evening off. Mrs. Kelly corrected him. Bradley said it was all right with him if Melvin came to the hospital that evening. Evening visiting hours at the hospital end at 8:30. Shortly before 8 p.m. Mrs. Kelly, distraught that Melvin had not yet arrived, left her bed and sneaked to a public tele- phone. She called the station and asked to speak to Melvin. After a short delay, Melvin came to the phone. The record does not reveal precisely what they said to each other al- though, on the basis of Melvin's subsequent conduct, an inference is justified that it was a highly emotional conver- sation. Melvin asked Carl Leahy, a tape and projection loader who was also on duty in the studio that night, to take over for him and prepared to leave the building. Bradley was in his office on the second floor of the station at that time with Shawn Fitzgerald , WPTZ's produc- tion manager. Melvin went first to Bradley's office. He paused in the door, said that he had to leave to go to the hospital, and started walking toward the back stairs without waiting for an answer. Bradley told Fitzgerald to stop Mel- vin because Melvin had production to do that night and Bradley did not want him to leave. (Bradley was referring to a commercial and an interview scheduled for taping that evening. As technical director, Melvin would be involved in that activity.) Fitzgerald called out, "Jim, just a minute," and followed him down the hall . He caught up with Melvin at the top of the rear stairs . Fitzgerald said that Bradley did not want him to leave, he had production to do. Melvin said, "I know, but I got to go," added that Leahy was taking over for him, and continued down the stairs and out the back door. Fitzgerald returned to Bradley's office and said, "He has gone." Bradley asked what Fitzgerald had said to Mel- vin. Fitzgerald said, "Well, I told him you said he couldn't leave. He went down the back stairs and I asked him who was going to take over the board , and he said Carl will handle it. As he said that, the last thing I saw was one leg going out the back door." Bradley called Eaton at home and told him what had happened. Eaton told Bradley to find out why Melvin had left so precipitously when Melvin returned and, if Melvin's explanation satisfied him, let Melvin return to work. Melvin left the station a little before 8 p.m. and re- turned around 9 p.m. He arrived at the hospital a few min- utes before visiting hours ended. He spent approximately 20 minutes with Mrs. Kelly . In his absence, Leahy performed the work Melvin would have performed if he had been there without incident. This consisted of "switching the breaks," i.e., performing the necessary operations, at the appropriate times, to cause local commercials, promotional materials, and station identifications to go on the air when breaks occurred between network programs. Leahy indicated that each of the items aired in this manner had, in fact, gone on the air properly by placing a checkmark next to it on the program log. This is the manner in which the person who is "on the log," i.e., the person who is responsible for main- taining the program log required of television stations by the Federal Communications Commission , indicates that the material aired as logged. However, Leahy did not place his initials on the pages on which his checkmarks appeared as the regulations required. Neither did he indicate by signing on the cover sheet in the appropriate places that he had been responsible for the log during the hour Melvin had been out of the station. Thus, at the end of WPTZ's September 8 broadcast day, its log for that period indicated that Melvin had been responsible for the log during the period of an hour when Leahy had, in fact, been keeping it. If the log had been kept properly, Melvin would have signed off on the cover sheet as of the time he turned the log over to Leahy and Leahy would have signed on and they would have reversed the process on Melvin's return. (Melvin was not on the log for those hours on the evening of September 7 during which he also left the station in order to visit Mrs. Kelly in the hospital.) When Melvin returned to the station , Fitzgerald was in the control room. He took Melvin upstairs to Bradley's office. Bradley said, "Jim, where did you go?" Melvin said, "I went to the hospital, you know that." Bradley said, "Jim, did you have permission to leave? We had work to do tonight." Melvin said, "Stop this [obscenity] and get to the point. How much of this [obscenity] am I supposed to take up with? Can't this company give a guy time off to see some- body in the hospital?" - Bradley said, "Did you have permission to leave?" Melvin said, "No." Bradley said, "Jim, are you fully prepared to assume your responsibilities downstairs again?" Melvin said, "Of course." Bradley said, "All right, thank you." Melvin returned to the studio, where he finished his shift without incident. The production work scheduled for that evening was done. Bradley telephoned Eaton at home again and informed him that he had let Melvin return to work. The next morning, September 9, Bradley checked the log for the preceding day in his customary manner. He discovered the aforementioned discrepancies for the first time. He reported to Eaton . Eaton telephoned Atlanta and conferred with Respondent's authority on FCC regulations ROLLINS TELECASTING, INC. 621 relating to the maintenance of program logs. He was ad- vised on how to rectify the discrepancies so that the FCC would not penalize WPTZ if it discovered what had hap- pened. Pursuant to this advice, Bradley prepared and signed a To Whom It May Concern memorandum explaining what had happened, which was attached to the front of the log. That evening, when Leahy was again on duty, Bradley asked him to sign and initial the September 8 log. Leahy said he wanted time, in view of Melvin's discharge earlier that day, to get some legal advice before he did so. Leahy was summoned to the station the next morning, September 10, by Eaton. Leahy checked with Mousseau before he went. He arrived at the station a little after noon. He signed and initialed the September 8 log. He demanded and received 4 hours' pay for being called in 4 hours before his normal 4 p.m. starting time. Meanwhile, on September 9, Melvin reported for work at 3 p.m. He was summoned to Eaton's office. Eaton said he was sorry but, due to what had happened the night before, he had no alternative but to dismiss Melvin. He gave as his reason the fact that Melvin had left the station with- out permission and committed a serious FCC log violation the previous evening. Melvin, upset, said he hoped Eaton was glad he had finally got Melvin. He added that his only regret was that he had let his professionalism slip to the point where he made a mistake in logging. Melvin asked if he was to receive 2 weeks' pay. Eaton said no, when a person is fired for cause, he is not entitled to 2 weeks' notice, Melvin was to leave immediately. Eaton asked Melvin for his keys. Melvin gave them to Eaton and left. Melvin returned to the station on September 16 in or- der to find out whether he was going to receive pay he thought he was entitled to for showing up for work on September 9. Eaton saw him and told him visitors were not allowed in the station. Melvin said he had simply come in to fill out his timesheet. Eaton threatened to throw Melvin out if he did not leave the building immediately. As Melvin was leaving the building he was stopped by Lincoln Dixon. While Melvin was in Dixon's office, Eaton called Dixon on the intercom. Dixon told Melvin he had better leave the building. Melvin did so. It is not uncommon at WPTZ for the person who is on the log to leave the studio-control room area for short peri- ods of time to go to the Dairy Queen, or to the toilet, or to offices on the second floor without signing off and then back on the log. Similarly, it is not uncommon, although it happens less frequently, for a technical director to miss a break because he happens to be out of the control room at the time for one reason or another and for someone in the control room to switch it for him and make an appropriate check mark or marks on the log without initialing the log. In those cases, the person who has been technically on the log has been in a position to be personally aware that the items which the log says were aired were, in fact, aired, as required by FCC regulations. However, no person who was on the log has ever turned over the log to another person under circumstances analogous to the evening of September 8, for example, when he was called home in an emergency during his shift, without signing off the log when he left and back on when, and if, he returned. On the other hand, no employee of WPTZ was ever discharged prior to September 9 for failure properly to perform his duties in connection with the log. The only instance, prior to September 9, in which an employee was disciplined involved Donald Col- born, another technical director. Colborn received a letter of reprimand for failing to sign off the log at the end of the broadcast day on several occasions and for switching breaks in a sloppy manner. Paragraph (a) of section 73.669 (general requirements relating to logs) of FCC regulations reads: The licensee or permittee of each television broad- cast station shall maintain program, operating and maintenance logs as set forth in §§ 73.670, 73.671, and 73.672. Each log shall be kept by the station employee or employees competent to do so, having actual knowl- edge of the facts required, who in the case of program and operating logs shall sign the appropriate log when starting duty, and again when going off duty. Paragraph 1 of section 17-04.11 (program logs) of Respondent's operations and precedure manual reads: Falsifying program logs shall constitute sufficient grounds for dismissal of the individual or individuals concerned. Mrs. Kelly was discharged from the hospital on the afternoon of September 9. She called Eaton and told him she was going away for a few days and would probably be back the middle of the following week. Eaton told her to take the whole week off if she needed it. He told her to get better, she had a job with WPTZ for the rest of her life if she wanted it. While Mrs. Kelly was out sick he arranged with Roddey for a waiver of Respondent's sick leave rules so that Mrs. Kelly could be paid for the entire time she was off. Mrs. Kelly was paid. Eaton and Bradley also held a meeting of several of the female members of WPTZ's staff, apparently those with whom Mrs. Kelly had had some per- sonality conflicts prior to her breakdown, and discussed with them a compassionate attitude toward her when she returned. On Tuesday, September 14, Mrs. Kelly received a call from Melvin. Melvin told her Bradley was trying to get in touch with her. Mrs. Kelly called Bradley. Bradley asked her to come to the station because Eaton and he wanted to talk to her about coming back to work, her work was piling up. She went. The upshot of the conference was that Mrs. Kelly returned to work on the afternoon of September 15. Mrs. Kelly did not have an easy time of it between September 15 and the termination of her employment on November 9. Two additional meetings of female employees were held after her return. The first was held by Eaton 2 or 3 days after September 15 and was similar to the one held while Mrs. Kelly was out sick. The second was held around October 1 as a result of Mrs. Kelly's complaint to Bradley that the other women were picking on her. Mrs. Kelly, Bradley, and Eaton were all present at this one. Mrs. Kelly and the other women aired their grievances. Bradley and Eaton essayed the role of conciliators. (I do not credit Mrs. Kelly's testimony that she does not recall participating in such a meeting around October 1.) Around October 12 Mrs. Kelly had an exchange with Bradley illustrative of the strain she was feeling. Bradley came into the office and asked Mrs. Kelly if she had seen the sign at the Big N, a discount store across the street from 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WPTZ. Mrs. Kelly said she had not. Bradley said the Big N was taking applications. Mrs. Kelly asked Bradley if he had applied. Bradley replied, "Why don't you quit before we have to discharge you, it would make it simpler." (I have credited Mrs. Kelly over Bradley as to the direct quotation for purposes of this Decision. Bradley testified that he re- plied, "Oh, you don't really mean that." However, I have no doubt, as Bradley emphasized and as even Mrs. Kelly's testimony of what led up to the quotation confirms, whatev- er Bradley said was said in a bantering manner. In view of Mrs. Kelly's medical history and what I observed of her emotional state at the hearing, I suspect she heard words more menacing than Bradley actually spoke.) 7. Other events in October In October Janet Newbegin's father was seriously ill. She was given Friday, October 8, off in order to go home to see him. She was ill on Thursday, October 7, and took off to consult a doctor, apparently without notifying Respon- dent. Lincoln Dixon, one of her bosses, went looking for her and was informed by a neighbor, incorrectly, that she was at an infirmary. Dixon called the infirmary and was told that she was not there. When Miss Newbegin returned to work on October 12, she was called in by Robert Connelly, her other immediate supervisor. He told her that Eaton had instructed him to find out why she had been absent without leave and, if her explanation was unsatisfactory, to fire her. She explained that she had been given Friday as a day off. Connelly pointed out that she had been absent on Thursday also and had not provided a doctor's certificate as required by Respondent to justify the day off as excused sick leave. Miss Newbegin interjected the strained situation which ex- isted at the station as a result of the organizing campaign which had not yet been resolved by pointing out to Connelly that Respondent had tried to bribe her to vote for it and accused Connelly, implicitly if not explicitly, of threatening to discharge her because of her union activities. Connelly said that he had heard about the bribe, alluding the conver- sation with his wife which I have set forth above in connec- tion with the credibility conflict between Miss Newbegin and Lincoln Dixon. The result of the incident was that Miss Newbegin obtained a doctor's certificate explaining her ab- sence on Thursday, October 7, and was not discharged. She remained in Respondent's employ until January 5, 1972, when, apparently, she left of her own volition. Sometime between September 28 and October 22 a document fell into Eaton's hands which purported to ana- lyze, from the Charging Party's point of view, how each employee had voted in the Board election on the former date. On the latter date Eaton sent Roddey a personal and confidential letter which read: Following is a brief appraisal of all station person- nel in or out of the voting unit including various opin- ions as how they may have voted where applicable: Bird Berdan-Opinion is unanimous , including the planted or misplaced notes mentioned to you as reflecting an opinion from the other side, that Bird voted Company. Ann Bowen-Although her vote has never been opened there is no doubt how she voted or where she stands, and she has been a great and loyal help through it all. Mike Kandis-All parties including previously mentioned one from the other side count him as a Com- pany vote. Leon Kelly-Again unanimous opinion that he vot- ed Company. Ed Kozlowski-By opinion from all quarters a Company vote, and he acted as Company observer during the balloting. Dick Krause-He was not shown on the list from the other side at all, I am confident that he is and was Company all the way and all others who know him well enough to express an opinion agree. Pete Premo-Classified as Company by all parties including the list from the other side. Bonnie Shea-Also, classified as Company by all parties including the list from the opposition. Andy Chance-He was not reflected one way or the other on the opposition list, and as you know his challenged ballot is still unopened. Larry, Art and I feel confident that when opened his ballot will be Compa- ny. I might add that when vote count is discussed with or by anyone miscellaneous opinions seem to agree that he voted Company. Dave Hart-Link and I both feel that he voted Company, the opposition list said Union, Art Bradley says Union or for which ever side did the last pitch job, and Larry doesn't feel qualified to have an opinion. I personally feel that Link is close enough to him, and that he fed enough comments back to Link about Henry's and others effort to convert him that I go along with Links Company position opinion. I don't feel he is complex enough to attempt to be an actor or that he would have commented as he did to Link if he were Union oriented. Denis McDowell-Link and I both feel he was a Company vote, the opposition list indicated Union, when pressed to state an opinion one way or the other Art and Larry both said they would have to go Union on him although they aren't strong in their opinions. If he voted Union he has got to be a fantastic double agent in my opinion on the basis of various conversa- tions Link and I have had with him both before and since the election. Rod Wilson-The opposition list said Union, I had him as a question mark before the vote was count- ed and now for Union. Larry feels he was a Union vote and Art feels he voted Company. Regardless of vote he has worked hard keeping film up by himself. Lucius Smith-Classified as Union all the way from all quarters. His carpenter work continues as a real asset. Al Melite-I had him as a question mark prior to the election and now feel he was a Union vote, the opposition list didn't show his name. Art and Larry when pushed to say one way or another feel he went Company. Link says he was a Union vote. Carl Leahy-The opposition list and all parties before and after agreed that he voted Union. He was Union observer in the balloting area, and at least he was open as to where he stood. ROLLINS TELECASTING, INC. 623 Charley Burnell-Before the election I had him as a question mark and now feel he definitely went Union. The opposition list and Larry both said Union, but Shawn and Art both feel he voted Company. Shawn seems strong in his conviction that Charlie voted Com- pany. Dick Maynard-I had listed as question before and have no doubt now that he voted Union. The opposition list, Larry and Art all agree-Union. Henry Premo-Union all the way including the opposition list. George Ryan-Union in all opinions, but he was not named in either direction on the opposition list. H. L. Kelley-If it is ever opened and counted there is no doubt it will be Union. Jan Newbegin-Definately [sic] Union in the opinion of all parties including the opposition list. Pres- ent attitude leaves something to be desired. Don Colborn-Union all the way including the opposition list. Attitude has been miserable during all of this period: John Ryan, Pat Connelly and Jim Melvin can all be lumped together with no doubt about their votes if and when counted. That covers the twenty five ballots cast , and pres- ent attitudes among them are surprising. With the ex- ception of Don Colborn and Jan Newbegin I feel present attitudes are very good among what I class as the Pro Union people. A lot of the Company people feel frustrated presently waiting to see what happens next. In my present opinion we would be much better off if we could get rid of Colborn, Newbegin and H. L. Kelly. H. L. is very intelligent, is presently doing a good days work, but is just too weird to contribute to orderly operation of the station. Colborns attitude stinks and is not likely to change, and Jan Newbegin is not doing what she is capable of putting out. Beyond those three if their are others that we would be better off having work for some other company I would OK them going up the list from bottom to top starting above H. L. Should we have another election the following would now be added to the list of eligible voters: Doro- thy Matthews, Fred Delaney, Joe Campos & Bob Shimko. Of these four the Company could count on Dorothy Matthews and Fred Delaney . I'm not sure at this point about the other two. Now let's touch on supervisors and their involve- ment: Link Dixon-Link is tired at present and suffering from moving bone fragments in his airplane crash bat- tered jaw. In spite of this he gave the Company full support through all of this and has been pushing hard on our construction activities. Nev Dunn-Pushes hard for the Company all the way. Frank Kennedy-I don't feel took an active part in either direction during the preelection period. He has been giving all out effort during and since on the con- struction projects in the station. Art Bradley-Did exactly what he was told or asked to do during the preelection period and contri- buted greatly by filling in on air, and in various open shots. Shawn Fitzgerald-Came to life and made an all out effort during the preelection period . Has been working very hard since getting ready in the studio for color cameras to be activated. Larry Bender-Made an all out effort prior to the election and has put in many extra hours in effort to plug the holes in the news department . Strain of news department problems and personal problems is show- ing. In a category all by herself in more ways than one, Ellen Wells has been truly both a "confidential" and dependable staff member through all of this activity. I don't want her face to get too red typing this memo, but it is a shame that more families don't turn out daugh- ters that measure up to her standards. 8. The discharge of H. L. Kelly Around 1 p.m. on November 11 Mrs. Kelly was work- ing at her desk in Bradley's office when she overheard Ann Bowen say to Bradley, "When am I going to get the Aubu- chon continuity report out?" The Aubuchon continuity re- port is a monthly document sent to an advertiser. As of November 11 the report covering the month of October was several days overdue . Most of it had already been prepared by an employee other than Mrs. Kelly and Miss Bowen. Approximately 30 minutes' work remained. Preparation of the Aubuchon continuity report was not one of Mrs. Kelly's regularly assigned tasks. Mrs. Kelly considered it to be Miss Bowen's work. Miss Bowen was one of the female employ- ees at the station whom Mrs. Kelly thought was persecuting her. Bradley's reply to Miss Bowen was that he would have Mrs. Kelly do it. Around 4:30 p.m., when Mrs. Kelly was busy with one of her regular tasks, Bradley told her to finish the Aubuchon continuity report. She told him that she was too busy with what she was doing. She finished the task she was working on at 5 p.m., her regular quitting time, and prepared to leave the station. Bradley asked about the Aubuchon continuity report. An emotional scene ensued in the course of which Mrs. Kelly asked Bradley if he was going to use force to keep her at the station past her quitting time and Bradley took the position that she must give him a yes or no answer immediately whether she was going to finish the report. Mrs. Kelly said she would think about it and let him know in the morning. Bradley said that, if she did not answer his question, there was no point in her returning in the morning. Mrs. Kelly left and never returned. Mrs. Kelly and Miss Newbegin live together. The next morning, Miss Newbegin gathered up the personal effects which Mrs. Kelly had left at the office . She began leafing through a stenographer's notebook which Mrs. Kelly had used in the course of her work and tearing out pages which contained material which she considered to be Mrs. Kelly's personal property. Bradley ordered her to stop. A few acri- monious words passed between them. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Analysis and Conclusions 1. Section 8(a)(3) a. The discharge of Patrick Connelly and John Ryan Respondent's ostensible reason for discharging Patrick Connelly and John Ryan on July 16 is that Eaton decided to eliminate daytime news programs because of the instruc- tions he had received in Atlanta the preceding weekend in order to reduce the payroll. It is so obviously a pretext that setting forth the basis for my conclusion is almost an act of supererogation. In the first place, Respondent does not contend that Eaton was ordered to reduce the payroll at WPTZ by dis- charging employees. Roddey's testimony about what he said in Atlanta at the conference of television station managers makes it clear that salaries were only mentioned in the aggregate sense of not letting them get out of line with anticipated revenues. Eaton's own account of his Monday morning staff conference reflects this same approach. And, most significantly, Bradley's account of the WPTZ staff conference shows that, if the payroll was mentioned at all, it was only in passing, thus: Q. Tell the Trial Examiner what happened at the meeting? A. That meeting was primarily devoted to eco- nomics within the station , itself. Q. Tell him what was said? A. As I recall, the main thrust of the meeting was that the month of August, I believe, is going to be a very tight month economically because it is going to be an example not only to our television operations but to our corporate office of just how well we can control our budget and how we can cut what we feel are unneces- sary expenses, and what we can do as individual de- partment heads within the station to reduce expenditures. He did mention several things,' specifically. I think one of the things hardest hit was the use of telephone toll calls. Each one of us or each department, respon- sibility of each department head has a budget for the telephone, among other budgets within the shop, and it was stressed very highly among other things that we will endeavor to do everything humanly possible to stay within and hopefully under our telephone budget and that included the personnel in our budget who were directly responsible to us as department heads. Q. Was there any specific discussion of layoffs or personnel cutback? A. To my knowledge, no, sir. Next, the time sequence of Thomas Beardsley's hopes of becoming a newsman and the dashing thereof is most significant. On Tuesday, July 13, after the Monday staff conference but before Connelly's and Ryan's visit to the Charging Party's office, Beardsley was not told that a third newsman would not be added to the staff, only that the date was being postponed. Finally, there are such traditional indicia of discrimina- tory motivation as the fact that Connelly and Ryan were discharged in the middle of the day, the fact that Eaton escorted each of them from the station, the fact that the major part of the work each performed continued to be done by others after they left, and the fact that Wilson, the man with whom Connelly worked, had to go on overtime and eventually had to use his stepson part time to keep up with the work. The main string to Respondent's bow is the argument that Eaton, while admittedly being aware of a "rumbling" of union activity among its employees, was unaware of Connelly's and Ryan's overt union activities which began in the late afternoon of Wednesday July 14, when he made his decision to eliminate the morning newscasts. This argument turns on the significance to be attached to four lines in the transcript, thus: Q. At what point did you make the decision or consider a reduction in the work force? A. To the best of my recollection probably about Wednesday of that week. At no point in the record does Eaton specifically deny knowledge of Connelly's and Ryan's activities. At one point prior to asking the above question, counsel for Respondent took the following position: TRIAL EXAMINER: Are you asserting that part of your defense was a lack of Company knowledge of Union activities at the time Pat Connelly and John Ryan were discharged? MR. BACHELLER: No, our evidence will show that we had some evidence of Union activities-at least one day before they were terminated. I find, on this state of the record plus Eaton's account of his phone conversation with Dick Krause on the evening of July 15, that Eaton had knowledge of Connelly's and Ryan's overt union activities when he decided to eliminate the morning newscasts. Eaton's personal animosity against the Charging Party is revealed by his October 22 letter to Roddey. When Eaton learned that Connelly and Ryan were the ringleaders of an effort to organize WPTZ's employees, he have the classic knee-jerk reaction and fired them for it, seizing on economics as a pretext. When he did so, Respon- dent violated Section 8(a)(3) and (1) of the Act. b. The discharge of James Melvin James Melvin is a more difficult case. The evidence for and against the General Counsel's pretext theory is closely balanced. On the one hand, for example, is the fact that no employee was ever discharged, before Melvin, for his han- dling of the program log. On the other is the fact that Don Colborn was officially reprimanded for doing precisely what Melvin was, in part, ostensibly discharged for doing on the evening of September 8, i.e., failing to sign off the log when he left the station for an appreciable period of time. The Melvin and Colbom cases cannot be equated, of course, for Melvin's act was much more egregious than Colborn's. Colborn's sin lay in forgetting to sign off the log when the station closed down. Melvin's lay in turning re- sponsibility for the log over to someone else while the sta- tion was operating and leaving the log in a condition where it did not reveal on its face that someone other than he had been responsible. Similarly, all of the haggling in the record over what persons on the log did when they slipped out for a cup of coffee or went to the toilet does not shed any real ROLLINS TELECASTING, INC. 625 light on the issue before me. If there is one thing that is crystal clear in this record, it is that James Melvin's dis- charge was unique in the annals of Station WPTZ. This proceeding contains several strong elements in the General Counsel's favor. Melvin was discharged not too long before the election. As the results of the voting estab- lish, the issue was a close one at the time. Respondent was strongly opposed to the Charging Party. Melvin was clearly and obviously identified with the prounion side. His con- cern for Mrs. Kelly was linked to his attitude toward Re- spondent as an employer, as his angry, obscene exchange with Bradley when Bradley returned from the hospital on September 7 demonstrates. Emotions on both sides were deeply involved. All the elements are, I think, 'present to justify an inference that Respondent seized on the events of September 8 to rid itself of a union advocate if Respondent's ostensible reason for discharging Melvin will not stand the most rigorous scrutiny. Moreover, in the General Counsel's favor are such items as the fact that WPTZ's programming went on the air without incident while Melvin was away from the station, thanks to Carl Leahy, the fact that Bradley permitted Mel- vin to go back to work when he returned from the hospital, the fact that production work scheduled to be done on the evening of September 8 was done, and the fact that Respon- dent suffered no real harm as a result of Melvin's failure to sign off and back on the log. In the latter connection, I was not impressed by the stress Eaton sought to place on the dire consequences which would surely have resulted if an FCC inspector had walked info the station on the evening of September 8. The simple fact is that none did. And, as Eaton himself conceded, if the log had not been corrected and a To Whom It May Concern memorandum attached to it on September 9, it would have been virtually impossible for an inspector thereafter to discover what happened. Respondent does not claim that Melvin was discharged for leaving the station without permission. If it did, the fact that he did so on the evening of September 7 when he was not on the log would assume greater significance even though there is no evidence that Respondent learned of that incident. Rather, Respondent has consistently maintained that Melvin was discharged for dereliction of duty while on the log on the evening of September 8. All of its actions, including Eaton's statement at the discharge interview that Melvin was being discharged for leaving the station without permission and for committing a serious FCC log violation, were consistent with such a motive. Therein lies the key to this issue. The General Counsel introduced into evidence a por- tion of the FCC regulations relating to logs to rebut the testimony of Respondent's witnesses that Melvin's dere- liction exposed it to serious penalties. The portion in the record simply establishes the requirement that television stations maintain daily program logs and sets forth, in de- tail, what they shall contain. I left the record open to give Respondent an opportunity to insert other specific portions of the FCC regulations relating to penalties. Respondent has not availed itself of this opportunity, although it has included in an appendix to its brief several FCC decisions and other documents which bear on the seriousness of log- ging violations. (Although these are not, literally, "a copy of the FCC regulation which purports to be on logging which is not contained in" the exhibit introduced by the General Counsel, I hereby, pursuant to the commitment I made at the hearing, designate them as Trial Examiner's Exhibit 1 and receive them into the record of this proceeding.) Never- theless, it is common knowledge that the FCC holds the power of life and death over television stations and that television stations are, with good reason, concerned about its regulations. In my view, the most significant fact in this record is the call which was immediately made to Atlanta when the discrepancies in the September 8 log were discov- ered and the dispatch with which Eaton and Bradley fol- lowed the instructions they received to correct them. The picture I get from all the evidence before me, including the FCC cases submitted by Respondent, is two executives of a television station seriously concerned about a violation of FCC regulations and not thinking, at least for the moment, of the upcoming election. For that reason I find the General Counsel has not established by a preponderance of the evi- dence that Respondent's ostensible motive for discharging James Melvin on September 9 was a pretext. c. The discharge of H. L. Kelly If there is a continuum that runs from the most obvi- ously illegal discharge in Board history to the most obvious- ly legal, the case of H. L. Kelly must be as close to one end as the case of Patrick Connelly and John Ryan is to the other. The first witness called by the General Counsel was William Eaton. The first piece of evidence the General Counsel put into the record was Eaton's personal and confi- dential October 22 letter to James Roddy. At the end of the General Counsel's case I solicited a motion to dismiss from Respondent so I could throw out that part of the complaint which alleged Mrs. Kelly's discharge as a violation of the Act. I did so on the ground that the General Counsel had failed to make out a prima facie case. The General Counsel took a special appeal while the hearing continued. The Board reversed. The only evidence in the record which might conceivably justify a finding of discriminatory moti- vation in Mrs. Kelly's case is the references to her in Eaton's October 22 letter to Roddey. It was my opinion when I granted Respondent's motion to dismiss that those refer- ences, taken in the context of all the statements in the letter, and weighed agains Mrs. Kelly's own account of what hap- pened on November 11, were not enough to support even a prima facie case. Nothing that has happened since, includ- ing the Board's reversal of my ruling, has caused me to change my mind. I find, therefore, that Respondent dis- charged H. L. Kelly on November 11 for insubordination and not for a reason proscribed by the Act. 2. Section 8(a)(1) a. Miscellaneous allegations The complaint contains long and elaborate allegations of independent violations of Section 8(a)(1) of the Act by Respondent. At the end of the General Counsel' s case I also dismissed an allegation, predicated on Eaton's October 22 letter to Roddey, that Respondent had created an impres- sion of surveillance among its employees. The General 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel did not appeal this ruling . On the basis of the record as a whole, I find no support for an allegation that Respondent interrogated its employees by the acts of Wil- liam Eaton, Lincoln Dixon, and James Roddey, in the sense in which that term of art is used in Board law. (The General Counsel would infer violations by Eaton and Dixon from the October 22 letter. I do not think the wording of the letter will support inferences that conversations with employees, for instance, in the paragraph on Dennis McDowell, were coercive in nature . The allegation as to interrogation by Roddey is predicated on his August 11 speech to the em- ployees of Station WPTZ . Other allegations of the com- plaint based on that speech are discussed in more detail below.) Another paragraph alleges that Eaton withheld a wage increase from an employee on or about August 3. This allegation is predicated on Janet Newbegin's conversation with Eaton about a raise. I have found that the conversation took place in mid-August, based on Miss Newbegin'a testi- mony that Eaton gave both the wage freeze and the union situation as reasons why he could not give her a raise at that time. No violation occurred at that time since Eaton was not motivated by the union activities of employees and the Gen- eral Counsel has not established a pattern of raises which would have resulted in one for Miss Newbegin around that time if the election had not been pending even though the wage freeze might have postponed its implementation. The fact that Eaton also expressed antiunion sentiments (a strike elsewhere had caused Respondent to bring in replacements) in the same conversation does not aid the General Counsel's case. In any event, the remarks made by Eaton on that occasion did not exceed Respondent's free speech rights under Section 8(c) of the Act. However, allegations that Respondent violated the Act by promising wage increases are proved in the record. I find that Respondent violated Section 8(a)(1) in this respect by Dixon's remarks to Miss Newbegin on September 16 (she would get a raise to $100 a week if the Charging Party lost the election ) and Septem- ber 28 ("Remember, I have committed you to the compa- ny") and by Roddey's remark to her on September 26 or 27 (he would see to it that any promises which had been made to her would be kept. Another paragraph alleges threats to discharge em- ployees by Arthur Bradley , Robert Connelly, and William Eaton. The allegation as to Eaton is based , once again, on the October 22 letter. I find no support in it for this part of the complaint. As with my ruling at the hearing on impres- sion of surveillance , I find nothing illegal in a supervisor and manager writing a personal report to his superior which was seen only by the confidential secretary who typed the fair copy for him until other employees retrieved the torn pieces of his handwritten draft from a trash bin and taped them together. As to Bradley and Connelly, the allegations are based on their conversations in October with H. L. Kelly and Janet Newbegin, respectively. The Bradley-Kelly inci- dent was a joking exchange. Connelly did not threaten to discharge Miss Newbegin because of her union activities. Respondent did not violate the Act on either occasion. Two other parts of this proceeding deserve more de- tailed treatment. They are Roddey's August 11 speech and H. L. Kelly's transfer. b. James Roddey's August 11 speech Various employees testified and Roddey conceded that he made the following points either in his opening remarks to them on August 11 or in the question and answer period which followed: 1. He countered the argument that the Teamsters are a powerful union which could get benefits for the employees by pointing out that on the only occasion when the Team- sters had organized one of Respondent's enterprises, Re- spondent had closed it rather than deal with the Teamsters. He was as hard a bargainer as the Teamsters and would be capable of resisting the Teamsters' demands for benefits which Respondent did not want to give. 2. He cautioned employees that, if the Teamsters re- sorted to a strike, the only legal means available to them to force Respondent to give in to their demands, they would be replaced, temporarily or permanently depending on the circumstances that prevailed at the time. 3. He suggested that the employees organize a commit- tee to deal with Respondent about their grievances. He attempted to persuade them that such a course would be better for them than going union by assuring them he would act if their claim that they were grossly underpaid proved accurate by area standards. The complaint alleges this speech violated the Act be- cause Roddey suggested to employees that they deal direct- ly with Respondent rather than through a union, that he told them another of its "stations" had closed rather than give in to a union, and that he created an impression among employees that it would be futile to select the Charging Party as their bargaining representative . I agree. Roddey obviously intended to stay within the bounds of permissible campaign propoganda under Board law. His reference to temporary or permanent replacements proves that. Howev- er, when it is coupled with his ready admission that he did not elaborate on the difference because no employee pressed the point, it indicates that he intended to come as close as possible to the line which separates free speech from illegal statements. When viewed in the context of the meet- ing as a whole, as well as the total situation which existed at WPTZ at that time, it is clear that point 1, above, was reasonably understood by the employees to be a veiled threat to close the station if the Charging Party won the election, that point 3 was reasonably understood by the employees to be a veiled promise of benefits if they rejected the Charging Party, and that all three points taken together were reasonably understood by the employees as a message that it would be futile for them to vote for the Charging Party. Lincoln Dixon's remarks to Dennis McDowell around July 21 ("it was too bad the only people who would get hurt would be the employees, the company was already making arrangements to bring people in in the event of a strike, and the station could keep running a lot longer than the employees who would go on strike") were also coercive, when considered in context, for the latter reason. Each mes- sage was violative of Section 8(a)(1) of the Act. c. H. L. Kelly's transfer As already indicated, the facet of this proceeding at ROLLINS TELECASTING, INC. which I disagree with the General Counsel most profoundly is the treatment accorded by Respondent to Mrs . Kelly. The complaint alleges violations of Section 8(a)(1) in that Re- spondent changed Mrs. Kelly's job classification and duties in order to keep her from voting in the election and changed her working conditions because of her adherence to the Charging Party. If Respondent did such things for such motives, of course, they would constitute violations of Sec- tion 8(a)(3) of the Act as well. In fact, the General Counsel in his brief argues for a Section 8(a)(3) type remedy even though the complaint does not allege violations of Section 8(a)(3) in this regard. There is, of course, no legal inconsis- tency between the General Counsel's pleadings and his brief, for there is no bar to a Section 8 (a)(3) type remedy for an appropriate Section 8(a)(1) violation. The point does, however, point up the basis of my disagreement with the General Counsel's theory. The General Counsel emphasizes Respondent's mo- tive. He points to Janet Newbegin's comments about Ann Bowen acting like a 5-year-old and Arthur Bradley's re- sponse that she should tell Miss Bowen her view that Re- spondent had made Mrs. Kelly a confidential secretary in order to kill her vote as the clearest indication in the record of Respondent's discriminatory motive . I do not read this testimony as an indication of anything other than that the employees viewed the transfer in this way and that Bradley told Miss Newbegin to tell it to Miss Bowen and not to him when Miss Newbegin brought the subject up. The record as a whole permits no conclusion but that Respondent acted toward Mrs. Kelly from motives of compassion throughout. There is much testimony by Mrs. Kelly in the record, relied on heavily by the General Counsel, to the effect that Bradley did not give her any work to do after she became his private secretary and that various persons at the station persecuted her. I have not included it in my findings of fact, above, because I do not believe it. When Mrs. Kelly was on the witness stand she was obviously a seriously disturbed young woman. Even if Miss Newbegin's remark to Bradley about Ann Bowen acting like a 5-year-old is taken as objec- tive evidence that Miss Bowen and other female employees treated her shabbily and not as simply a manifestation of Mrs. Kelly's neurotic point of view, it does not establish that Respondent, in the person of any of its supervisors, did so. Every incident in the record which relates to Mrs. Kelly's personal troubles indicates Respondent 's concern for her as a human being; from Bradley's visiting her in the hospital the day after she tried to kill herself to the meetings he and Eaton held with employees in order to smooth her path. For these reasons, I conclude that Respondent's sole motive for transferring Mrs. Kelly to the job of Bradley's private secre- tary was its desire, as stated, to fill the job of continuity secretary in the most effecient manner following the res- ignation of Cindy Bromley. The conclusion that Respondent transferred Mrs. Kel- ly for a nondiscriminatory reason does not, however, dis- pose of the question of whether Section 8 (a)(1) has been violated, for the question of Respondent's motive ceases to be controlling when the incident is viewed from the stand- point of what was said to Mrs . Kelly and its effect on her and other employees. Eaton told Mrs. Kelly that the trans- fer made her a confidential employee, that confidential em- 627 ployees were barred from the unit, and that she would there- fore not be able to vote in the election . Regardless of his motive for making this statement, Eaton was wrong about her becoming a confidential employee , as the Board has already ruled in Case 3-RC-5218. The effect reasonably to be anticipated from such a statement on employees situated as were Mrs. Kelly and the other employees of WPTZ was a restraint on them in the exercise of their Section 7 rights. When Eaton made this statement to Mrs. Kelly around August 20, therefore, Respondent violated Section 8(a)(1) of the Act. 3. Section 8(a)(5) At all times relevant to this issue , there were 28 em- ployees, including Patrick Connelly, John Ryan, and James Melvin, in the all-employees unit agreed to by the parties in Case 3-RC-5218. On July 16, the day on which the Charg- ing Party mailed and Respondent received the Charging Party's demand for recognition, the Charging Party had authorization cards from 14 of those employees . On July 19, the day before William Ford, Respondent's attorney, opened and replied to the Charging Party's demand letter, it had 16. On July 30, it had 18. The only one of these cards which Respondent contends does not validly designate the Charging Party as the signer's representative for purposes of collective bargaining is that of Dennis McDowell. McDo- well signed a card for Carl Leahy on July 14. McDowell's testimony as to what Leahy said to him on that occasion is as follows: Q. (By Mr. Bacheller) Referring to the card which you signed on July 14th and your conversation with Mr. Leahy, do I understand that he said that the card is only to find out about the Union? A. He said that the card was to show that the employees were interested in having a Union come in and that this would petition them to come in, but it didn't necessarily constitute the fact they would get in. He said we would have meetings with the Union and we would decide whether we wanted them in there; that there would be an election ; that signing the card did not mean that the Union was in or that necessarily we wanted them in; that we wanted them to petition the company and talk to them. Q. Only for that purpose? A. Right. In other words, Leahy told McDowell that his authori- zation card was for an election only. As an "election only" card, it cannot be counted in determining whether the Charging Party represented a majority of Respondent's em- ployees. Eliminating it from the calculations leaves the Charging Party with 13 valid authorization cards on July 16, 15 or July 19, and 17 on and after July 30, all in a unit totaling 28 employees . The Charging Party thus achieved majority status on July 19, before Respondent rejected its demand for recognition. Therefore, all the prerequisites to bargaining required under the Gissel doctrine (N.LRB. v. Gissel Packing Company, 395 U.S. 575)--i.e., a demand for bargaining in an appropriate unit a majority of whose mem- bers have authorized the demanding union to represent them for purposes of collective bargaining as evidenced by 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valid authorization cards executed by those employees-are present here in the event Gissel is otherwise applicable. The Supreme Court's test as set forth in Gissel at 614 that, "[i]f the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once ex- pressed through cards would, on balance, be better protect- ed by a bargaining order," then a bargaining order should issue is met here. Respondent's principle unfair labor prac- tice was the discharge of Patrick Connelly and John Ryan for seeking to organize its employees. No violation is more destructive of the employee rights the Act is designed to protect. Even if the traditional remedy for discriminatory discharges results in Connelly and Ryan one day walking back into the station waving their backpay checks over their heads to the cheers of an assembled multitude, Respondent's employees will not soon, if ever, forget the price they have been forced to pay and the ordeal they have been put through because of Respondent's violation of the rights of its employees. I find, therefore, that Respondent has violated Section 8(a)(5) and (1) of the Act by refusing, on and after July 20, to bargain with the Charging Party. III. THE CHALLENGES AND THE OBJECTIONS TO THE ELECTION Of the three challenged ballots still outstanding in Case 3-RC-5218, I recommend that those cast by Patrick Connelly and John Ryan be opened and counted, that the one cast by James Melvin not be opened and counted, and that a second revised tally of ballots be issued. Three objections to the election held on September 28 were referred to me for hearing. The first related to the discharge of Melvin. Since I have found that the General Counsel has failed to prove that Melvin's discharge violated the Act, I recommend that this objection be overruled. The second related to events which took place on election day. The third related to events • not specifically alleged by the Charging Party but uncovered during the investigation of Cases 3-CA-4538, 4591, and 4636 which occurred during the critical period; i.e., those events alleged as violations of Section 8(a)(1) in the complaint in this proceeding which occurred between the filing of the petition in Case 3- RC-5218 on July 22 and election day. The gravamen of the second objection is that Respon- dent destroyed the so-called laboratory conditions neces- sary for a fair election by locking the back door to the station, thus forcing employees to approach the polling place by a route which led past the offices where executives and supervisors were working. The back door was, in fact locked during the election. There was a sign on it which read "Please use front door from 2 to 4 p.m.," the period during which the poll was open. The front stairs debouch onto a second floor reception area. Ellen Wells, who is private secretary to William Eaton, the station manager, and appar- ently doubles as receptionist, has a desk in this area. Eaton's office lies just off it. So does the office of Arthur Bradley, the operations manager. Eaton was working in his office during the election. He went into the reception area four or five times. Bradley was in his office during part of the time. He greeted several employees as they went by and asked if they had voted yet. William Ford, Respondent's attorney who was at the station for the election, waited in the recep- tion area while the poll was open. In order to reach the sales office where the poll was set up, employees had to walk through the reception area and down a hall past the film department, the newsroom, and the restrooms. Before the election, Ford placed masking tape across the hall at the reception area end and at a point beyond the entrance to the sales office. He issued strict orders that no one other than employees on their way to the poll was to cross the tape between the hours of 2 and 4 p.m. These orders were not violated. By sticking one's head out the sales office door, it is possible to see down the hall and into part of the reception area. There is nothing in these arrangements and/or events which in any way affected the outcome of the election. I recommend that the second objection be overruled. With respect to the third objection referred to me for hearing, I have already found that Respondent violated Section 8(a)(1) of the Act by Lincoln Dixon's conduct on September 16 and 28 and James Roddey's conduct on Sep- tember 26 or 27 in promising Janet Newbegin a raise if she voted against the Charging Party; by Roddey's conduct on August 11 in threatening to close the station if the Charging Party won the election, in promising employees benefits if they rejected the Charging Party, and in telling employees it would be futile for them to vote for the Charging Party; and by William Eaton's conduct around August 20 in telling H. L. Kelly that she was being transferred to a confidential employee's position and would, therefore, not be able to vote in the election. All of these events took place during the critical period. Together they interfered with the election sufficiently to invalidate the September 28 election. I rec- ommend that the third objection be sustained. If the second revised tally of ballots issued in Case 3-RC-5218 after the ballots of Patrick Connelly and John Ryan are opened and counted shows that a majority of the valid votes cast on September 28 were cast for the Charging Party, I recommend that the Charging Party be certified. If it does not, I recommend that the election held on Septem- ber be set aside and that, in conformity with my recommen- dations below in Cases 3-CA-4538, 4591, and 4636, all proceedings in Case 3-RC-5218 be vacated. Upon the foregoing findings of fact, and upon the en- tire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Rollins Telecasting, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 648, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent at its Television Sta- tion WPTZ, Plattsburgh, New York, and at Terry Moun- tain, New York, including office clerical employees, but excluding sales personnel , managerial employees, confiden- tial employees, watchmen and guards, professional employ- ees, and supervisors as defined in the Act constitute a unit ROLLINS TELECASTING, INC. appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after July 19, 1971, the Charging Party has been and is now the representative for the purpose of collective bargaining of the employees in the unit de- scribed above within the meaning of Section 9(a) of the Act. 5. By refusing, on July 20, to recognize the Charg- ing Party as representative of the employees in the unit described above for the purpose of collective bargaining and by refusing at all times thereafter to recognize and bargain with the Charging Party, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By discharging Patrick Connelly and John Ryan on July 16, 1971, for engaging in union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By promising an employee a raise on September 16, 26 or 27, and 28, 1971, if she voted against the Charging Party; by threatening to close the station if the Charging Party won a Board representation election and promising its employees benefits if they rejected the Charging Party, both on August 11, 1971; by telling its employees, on July 21 and August 11, 1971, that it would be futile for them to vote for the Charging Party in a Board representation election; and by telling an employee on or about August 20, that she was being transferred to a confidential employee's position and would, therefore, not be able to vote in a Board repre- sentation election, Respondent has violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. The allegations of the complaint that Respondent violated Section 8(a)(3) and (1) of the Act by discharging James Melvin on or about September 9, 197.1, and H. L. Kelly on or about November 9, 1971, have not been sus- tained. 10. The allegations of the complaint that Respondent violated Section 8(a)(1) of the Act by various acts and con- duct not expressly found violative herein have not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and remedy them. As already indicated, I will recommend that Respondent be required to recognize and bargain with the Charging Party as the duly designated representative of its employees and, -if an understanding is reached, embody it in a signed agree- ment in the event that further processing of Case 3- RC-5218 by the Board does not result in the same duty being imposed on Respondent by a Board certification. Since the discharge of Patrick Connelly and John Ryan for engaging in union activities, the basis for my recommenda- tion that Respondent be required, in any event, to recognize and bargain with the Charging Party, was such an egregious violation of the Act, I will also recommend entry of a broad rather than a narrow order. With respect to Connelly and Ryan, I will recommend the usual remedy of reinstatement and backpay computed on a quarterly basis, plus interest at 629 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Finally, I will recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Rollins Telecasting, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) In the event Case 3-RC-5218 does not result in certification of Local 648, refusing to recognize and bargain with Teamsters Local Union No. 648, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the unit found appropriate herein. (b) Discharging employees for engaging in union activ- ities. (c) Promising employees raises and other benefits if they reject union representation. (d) Threatening to close television stations if employees vote for union representation. (e) Telling employees it would be futile for them to vote for union representation. (f) Telling employees they are being transferred to a confidential employee's position and thus are ineligible to vote in a Labor Board representation election when, in fact, their transfers are not to confidential positions. (g) In any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, in the event Case 3-RC-5218 does not result in certification of Local 648, bargain collectively with Teamsters Local Union No. 648, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit found appropriate herein and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Patrick Connelly and John Ryan immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions and make them whole for any earnings they lost as a result of their discharge on July 16, 1971, plus 6 percent interest. (c) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the 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. 2 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, 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. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its television station in Plattsburgh, New York, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, 3 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." including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith .4 IT Is ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations by Respondent of Section 8(a)(3) and (1) of the Act by discharging James Melvin or or about September 9, 1971, and H. L. Kelly on or about November 9, 1971, and insofar as it alleges violations by Respondent of Section 8(a)(1) by acts and conduct not expressly found violative herein. ° In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."