Kslm--Am And Ksd--Fm

1342 KSLM-AM' & KSD-FM Holiday Radio; - Inc., d/b/a KSLM-AM and, KSD- FM and American Federation Of- Radio and Television Artists, AFL-CIO. Cases 36-CA- 4028, 36-CA-4056, and 36-CA-4126 31 July -1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS, On 19 October 1984 Administrative Law Judge Gordon J. Myatt issued the attached supplemental decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Gen- eral Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. - The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rul- ings,' findings, and conclusions as modified and to substitute the attached Order for that of the judge., This 'is a compliance proceeding to determine, the amounts. of backpay and the reinstatement obliga- tions owed to six discriminatees. For the reasons set forth herein, we make the following modifica-, tions to the judge's backpay award and reinstate- ment order.2 - = 1. The Respondent operates radio stations KSLM-AM and KSKD-FM in Salem, Oregon. Brian Schreiber and Carl Grossenbacher were em- ployed as full-time on-the-air announcers on KSLM-AM until their unlawful discharges in No- vember 1981. In May 1982 the Responent automat- ed KSLM-AM to a degree sharply reducing the use of on-the-air announcers.3 As a result the Re- spondent's remaining on-the-air announcers were assigned to positions as operators-on-duty, an entry-level position in the broadcasting industry, at a substantial reduction in wages. Notwithstanding the change to automation, however, the Respond- ent did not terminate the on-the-air announcers. The judge found that all backpay and reinstate- ment obligations toward Schreiber and Grossen- bacher terminated as of May 1982, the date of au- We find no merit to the Respondent's contention that the judge erred by refusing to admit evidence that the Respondent and the Union alleg- edly reached a bargaining impasse on 30 January 1984 Under the cir- cumstances of this case, we agree with the judge that such evidence is not material to issues pertaining to the reinstatement and backpay obliga- tions owing to the discriminatees in this proceeding 2 No exceptions were filed to Administrative Law Judge Jerrold H Shapiro's original decision finding that the Respondent engaged in unfair labor practices Accordingly, the Board's Order in the original proceed- ing was not reported 9 It is undisputed the automation was motivated by legitimate business considerations tomation. We disagree. In order to terminate the claimants' backpay and reinstatement rights in their entirety as of-a certain date, the Respondent must demonstrate that,, even in the-absence of the unfair labor practices, it would have terminated the claim- ants for. legitimate business reasons. By terminating all backpay and reinstatement for Schreiber and Grossenbacher as of May • 1982, the judge found in effect that, unlike the remaining on-the-air an- nouncers who were reclassified and not terminated, Schreiber and Grossenbacher instead would have been terminated. We find no evidentiary basis in the record to support such a likelihood. According- ly,, in order to place Schreiber and Grossenbacher in the position they would have occupied absent the unfair labor practices, we find it appropriate to require' the Respondent to offer them reemploy- ment to the position of operator-on-duty.4 Further, we find it appropriate to calculate backpay • based on the wage scale of the operator-on-duty position as of 4 May 1982 when the Respondent reclassified and transferred the on-the-air announcers.5, 2. Prior to their unlawful discharges, Daniel Van Meter .6 - was employed as sports director • and Landra Snow was employed as a -newscaster-re- porter. The judge found that backpay and rein- statement for these individuals terminated as of September 1983 when the' Respondent commenced use of a satellite hookup to receive network events. The judge. rejected- the Respondent's contention that Van Meter and Snow would have been termi- nated earlier in July 1983 upon the hire of new General Manager Greg Fabos. We find merit in the Respondent's contention. General Manager Fabos testified without contra- 'diction that upon his hire in July 1983 he conduct- ed a review of the Respondent's broadcasting oper- ation. Based on his assessment of the. Respondent's news and sports coverage, Fabos concluded that maintenance of the status quo was appropriate and that the scope of news and sports coverage existing at the time of Van Meter's and Snow's employment was no longer required.' Fabos testified in this 4 Although Schreiber has accepted interim employment paying higher wages, we will not presume that he has abandoned his entitlement to re- instatement in the absence of an unconditional offer by the Respondent 5 The record is insufficient to establish the weekly hours of work and wage rate Schreiber and Grossenbacher likely would have earned had they been reclassified Accordingly, we shall remand this proceeding to the judge for a further determination of the amount of backpay owing and to take such appropriate action consistent with our opinion The judge erroneously set forth Grossenbacher's net backpay for the fourth quarter of 1981 as $1080 The correct amount is $1280, as set forth in the second amended backpay specification a The judge erroneously stated that Van Meter was unlawfully dis- charged on 15 January 1981 The correct date is 15 January 1982 r Van Meter and Snow were never replaced following their dis- charges 275 NLRB No. 184 KSLM-AM & KSD-FM regard that his assessment of listener interest indi- cated that national and regional sports were the predominant focus of listener attention and that ex- pansive- coverage of local sports was unnecessary.8 Fabos also testified that he concluded that news coverage was fully. adequate as of July 1983. Contrary to the judge, we find that the hiring of Fabos.as_ general,, manager, and Fabos' credible as- sessment: of the Respondent's operation in July 1983 establish that the Respondent would have ter- minated the employment of Van Meter and Snow in July 1983 for -nondiscriminatory reasons.9 To find otherwise under.the circumstances of this case is to reject Fabos' uncontradicted and credible as- sessment of his editorial judgment concerning the scope of the Respondent's coverage of news and sports. We decline; to' "second guess" Fabos' credi- ble testimony regarding such a decision. 1 ° Accord- ingly, we shall terminate backpay and reinstate- ment as of July 1983 for Van Meter and Snow." 3. For the reasons set forth by the judge, we agree that the Respondent has failed to establish that the production duties performed by claimants Tim Conner and Marlene Hamilton were eliminat- ed or substantially., reduced subsequent to their un- lawful discharges. We do not however agree with the judge's findings regarding the backpay of these claimants in the following respects. During the backpay period, Conner secured in- terim employment with radio station KGAL in Albany, Oregon. Thereafter, Conner moved his residence from Salein to Portland, Oregon. As a result, Conner determined that the round-trip com- mute from Portland to Albany (approximately 150 8 As sports director, Van Meter covered, inter alia, local high school football'and conducted an evening call-in program 8 Member Dennis, dissenting, agrees with the'judge, for the reasons he stated,'that General Manager Fabos' testimony is not sufficient to estab- lish that, even in the absence of the unfair labor practices, the Respond- ent would have eliminated the two positions in question in July 1983 10 We find unpersuasive the judge's findings that Van Meter's dis- charge precluded him from developing listener interest in local sports Thus no probative evidence was presented Indicating that Van Meter rea- sonably could have altered listener interest had he remained employed Further, in view of Fabos' testimony that present staffing levels for'news coverage was sufficient, in July 1983, it is immaterial whether or not lower level management representatives may have contemplated the hiring of additional news personnel prior to-July 1983 Accordingly, the testimony of applicant; Gwen Godrey that she was interviewed for a news position prior to Fabos' hire does not establish that the Respondent would have hired a newscaster-reporter in lieu of Snow .- 1 I As Van, Meter's position would have been eliminated during an un- specified date-in July 1983 the gross backpay period shall terminate on the last day of July. 1983 The second amended backpay specification re- veals that Van Meter had interim employment during the third quarter of 1983 but does not indicate the extent to which these interim earnings were earned in July 1982, if at all As it is inappropriate to offset interim earnings during a period when gross backpay has been terminated or tolled, we shall remand. this issue to the judge for further appropriate action regarding Van Meter's backpay Snow's interim earnings during the third quarter of 1983 fully offset -total gross backpay Accordingly, we adopt the judge's backpay calcula- tion regarding Snow I 1343 miles) was too great to continue full-time employ- ment with KGAL. Accordingly, Conner voluntari- ly reduced his days of work from 6 to 3 during the third quarter of 1983 and resigned his employment with KGAL during that same quarter. The judge found that the strenuous commute from Portland to Albany justified Conner's decision to limit his - work hours and to resign. We disagree. 12 It is undisputed that Conner's departure from in- terim employer KGAL was caused not by any matter incidental to his interim employment but in- stead by Conner's personal decision to move to Portland. Although a claimant is of course entitled to determine his place of residency, the conse-' quences of a claimant's willful decision to reduce and ultimately terminate suitable interim employ- ment for personal convenience unrelated to secur- ing other equivalent interim employment or to the nature of the departed interim employment should reasonably be borne by the claimant and not by the Respondent. See Electrical Workers Local 401 (Stone & Webster Engineering),-266 NLRB 870, 878 (1983).13 Accordingly, we find that Conner willful- ly reduced his interim earnings and that his pro- jected earnings at KGAL constitute a continuing offset against gross backpay.14 The judge also found that claimant Hamilton jus- tifiably resigned interim employment with John 12 Member Dennis, dissenting, would affirm the judge Conner's dect- sion to resign interim employment does not, in and of itself, constitute a willful loss of earnings The question is whether Conner acted unreason- ably and without justification See, e g. Ozark Hardwood Co, 119 NLRB 1130, 1139, and fn 10 (1957) The record shows only that Conner "had to move to Portland," and the Respondent never inquired further as to precisely why Conner had to move Because the Respondent has the burden of proof on this question (Fort Lock Corp, 233 NLRB 78, 80 (1977)), and because circumstances may have existed that justified the move, Member Dennis would hold the Respondent accountable for its own failure to inquire fully into the matter, 13 Contrary to our dissenting colleague, it-is not the Respondent's evi- dentiary burden to explain and clarify Conner's personal reasons for moving to Portland Conner's testimony establishes that he voluntarily quit his interim employment because of his personal desire to move his residence to Portland Where, as here, no evidence whatsoever is present- ed that the voluntary resignation is attributable to anything other than obscure personal desires unique to the claimant, it is inappropriate to - place on the Respondent the burden of affirmatively establishing a nega- tive, i e , that the nature of the interim employment was not a reason for the resignation or that the personal reasons of the claimant were not jus'ti- fted 14 Medhne/Industries, 261 NLRB 1329, 1332 (1982) See also Knicker- bocker Plastic Co, 132 NLRB 1209, 1214 (1961) Chairman Dotson would toll gross backpay' during periods of unemployment following an unjusti- fied voluntary resignation or discharge for cause See Brady'v Thurston- Motor Lines,•753 F 2d 1269 (4th Cir 1985) We modify Conner's backpay as follows Conner earned $3276 when employed on a full-time basis with KGAL during the second quarter of 1983 We shall apply this amount to all subsequent quarters as a continu- ing offset to 'the extent it exceeds Conner's subsequent actual interim earnings For the third quarter of 1983 Conner's interim earnings are" offset by an additional $1208 thereby reducing his net backpay for that quarter to a total of $1284 During the fourth quarter of 1983 Conner had interim earnings of $1731 The additional'offset is $1545 thereby reducing his net backpay for that quarter to a total of $924 ' 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Kosydar Advertising, Inc. (Kosydar) and therefore did not incur a willful loss of earnings. The record establishes that Hamilton was hired by Kosydar as an advertising copywriter. Hamilton thereafter re- signed from this position because of "political and philosophical problems" over the nature of certain political copywriting she was assigned. Hamilton testified that she was required to work for a client of a "extremely conservative" political persuasion and that the resulting dissatisfaction with her work caused by these "political problems" led to her res- ignation. At the hearing the General Counsel sought to in- troduce additional testimony from Hamilton re- garding the nature of her interim employment-with Kosydar preceding her resignation. The judge re- fused to admit this testimony into evidence. The General Counsel then made an offer of proof that Hamilton would have testified that she resigned be- cause her interim employer required her to engage in various political activities on her own time. Con- trary to the judge, we find that Hamilton's testimo- ny offered by the General Counsel and rejected by the judge is relevant to the issue of whether Hamil- ton failed to mitigate her loss of earnings and should have been admitted into evidence. Accord- ingly, we find it appropriate to remand consider- ation of the issue of Hamilton's backpay entitle- ment to the judge to take evidence in support of the rejected offer of proof and to make appropriate findings of fact and conclusions of law. Evidence presented at the reopened hearing regarding Hamil- ton's backpay entitlement shall be limited to those matters set forth in the General Counsel's offer of proof along with any appropiate rebuttal.15 with this Order, plus interest, by making a valid offer of reinstatement to this employee. Tim Conner- -$12,677.95 Landra Snow $13,343.09 IT IS FURTHER ORDERED that the Respondent shall make a valid offer of reinstatement to employ- ees Brian Schreiber, Marlene Hamilton,- and 'Carl Grossenbacher consistent with the Board's opinion in this proceeding. IT IS FURTHER ORDERED that the record in this proceeding be reopened and that a further hearing be held before the administrative law judge for the purpose of taking evidence in determining the amount of backpay owing to -employees' employees ' Brian Schreiber, Carl Grossenbacher, Marlene Hamilton, and Daniel Van Meter consistent with the Board's opinion in this proceeding. ' IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for Region 19 for the purpose of arranging such further hearing, and that the Regional Director is authorized to issue notice thereof. IT AS FURTHER ORDERED that, on conclusion of such further hearing, the judge "shall prepare and serve on the parties a second supplemental deci- sion, containing findings of fact; conclusions of law, and recommendations, and that following service of such decision on the parties the provi- sions of Section 102.46 of the National Labor Rela- tions Board Rules and Regulations shall be applica- ble. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ORDER The Respondent, Holiday Radio, Inc., d/b/a KSLM-AM and KSKD-FM, Salem, Oregon, its officers, agents, successors, and assigns, shall make whole the following named employees by payment to them of the sum of money set forth opposite their names, plus interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),16 less withholdings required by Federal or state law. In addition, the Respondent shall pay to employee Tim Conner any additional backpay, plus interest; accruing after the third quarter of 1983 until such time as the Respondent fully complies 15 In view of our finding that consideration of Hamilton 's backpay en- titlement shall be remanded to the judge, we find it unnecessary at this time to consider the question of whether the philosophical nature of Hamilton's interim employment could have justified her resignation The judge inadvertently designated $3600 as net backpay for Hamilton during the fourth quarter of 1983, $3600 was the amount of Hamilton's interim earnings at Kosydar that quarter and not her net backpay 16 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) GORDON J. MYATT, Administrative Law Judge. On February 23, 1983, Administrative Law Judge Jerrold H. Shapiro issued his decision in the - above- captioned matter (JD-(SF)-32-83) finding that Respondent Holi- day Radio, Inc d/b/a KSLM-AM and KSKD-FM vio- lated Section 8(a)(1)(3) and (5) of the National Labor Re- lations Act. No exceptions to the judge's decision were filed and on April 12, 1983, the National Labor Relations Board issued an Order adopting the judge's findings and conclusions and ordering the Respondent to take the action set forth in the judge's recommended Order.' - Judge Shapiro found, inter alia, that. Respondent un- lawfully discharged employees Brian Schreiber and Carl Grossenbacher on November 19, 1981, employees Daniel Van Meter and Marlene Hamilton on January 15, 1982, employee Landra Snow on March 31, 1982, unlawfully reassigned employee Tim Conner from its production de- partment to an undesirable position on January 15, 1981, and finally, unlawfully discharged employee Tim Conner on March 5, 1982, and again on April 23, 1982. To 1 The Board's Order was not reported KSLM-AM & KSD-FM remedy these violations, the judge's recommended Order,, now the Board's Order by adoption, requires Re- spondent to reinstate the above employees to their former or substantially equivalent positions and make them whole for any loss of earnings they may have suf- fered as a, result of Respondent's unlawful conduct by payment to each a sum equal to what he or she would have earned from the date of his or her discharges (with the_ exception of, Conner) to the date Respondent offers them'. reinstatement,- less interim earnings during that period In the case of Conner, the period is to begin from the date of his .unlawful reassignment to the date Re- spondent offers him or her reinstatement, less interim earnings during the appropriate period In fashioning the reinstatement and backpay remedy, Judge Shapiro acknowledged that he found Respondent automated KSLM-AM in May 1982, and that the auto- mation of the AM station was not discriminatorily moti- vated.2 While the impact of the automation on Respond- ent's backpay and reinstatement obligations was not liti- gated in the proceedings before him Judge Shapiro noted that Respondent would have an opportunity at the compliance stage "to demonstrate what effect, if any, the automation of KSLM-AM would have on the employ- ment of the discriminatees herein, with a view toward mitigating its backpay and reinstatement obligation ." (ALJD at 66.) Following the Board's Order, Respondent and the General Counsel entered into a stipulation which provid- ed, among other things, that Respondent did not object to the Board's Order of April 12, 1983. Further, the stip- ulation provided that the parties-were unable to agree on the amount of backpay due or the reinstatement issues in- volving the discriminatees and agreed that the Regional Director for Region 19 would issue a backpay specifica- tion and notice of hearing to resolve these differences. Finally, the stipulation provided that in the event judicial proceedings became necessary to enforce the Board's backpay determination, the only issue before the court would be the validity of that determination. The Regional Director issued a backpay specification and notice of- hearing. on September 28, 1983, to which Respondent filed an answer and a first amended answer. Hearing was held in this matter on February 2 and 3, 1984. The parties were represented by counsel and af- forded an opportunity to examine and cross-examine wit- nesses and to present material and relevant evidence on the issues involved. At the commencement of the hear- ing, the General Counsel amended the backpay specifica- tion to correct certain inadvertent errors and omissions and to include two additional quarters in the computa- tion of the amounts alleged to be due the discriminatees. In addition, the parties entered into a stipulation regard- ing certain facts to -be - considered in determining the backpay and reinstatement issues. (See G.C. Exh. 4.) Based on the entire record in this proceeding, the briefs submitted on behalf of the parties, and on my ob- servation of the demeanor of the witnesses while,testify- ing, I make the following 2 The finding in the underlying case reveals that KSKD-FM was fully automated from its inception with no live personalities as announcers FINDINGS AND CONCLUSIONS I BACKGROUND A. The Impact of Automation on the KSLM Job Classification and Functions 1345 As noted , it was found in the underlying unfair labor practice case that Respondent automated KSLM-AM in May 1982 Further, it was also found that the decision to automate was not discriminatorily motivated and was prompted by legitimate business considerations In so finding, Judge Shapiro noted "that the automation of KSLM adversely [a]ffected the employment of all of the KSLM unit employees" in that "[t]hey all suffered a sub- stantial reduction in their earnings ." In opposing the claim set forth in the backpay specification the Respond- ent does not contest the formula advanced by the Gener- al Counsel to compute the gross backpay of the claim- ants. Rather, it is apparent from its answer and amended answer, the evidence adduced at the hearing, and the ar- guments contained in its brief that Respondent is con- tending that the automation of KSLM either eliminated or drastically changed the character of the jobs at the radio station to lesser paying positions . Further, that the hours now needed to perform the duties have been so drastically reduced that the positions now available are not the same or substantially equivalent 'to the jobs previ- ously held by the discriminatees . Thus, the overriding issue here is the impact that automation and the intro- duction of other technologically advanced equipment had on the KSLM unit positions.3 B. The Operation of the Automated Equipment and the Introduction of Other Changes and Revisions in Respondent 's Operating System The undisputed evidence discloses that by May 4, 1982, the automated equipment , principally known as the Shaefer 930E, was installed and operational at KSLM. Essentially, this equipment consists of four reel -to-reel tapes and several carousels which accept tape cartridges., There is a computer unit in the Shaefer in which the taped material (reels or cartridges) is programed in its re- quired sequence and then automatically broadcast at the 3 Regarding the introduction of other state-of-the-art equipment, the General Counsel contends in her brief that Respondent is urging for the first time an affirmative defense which was not set forth in its answer or amended answer to the backpay specification According to the General Counsel, the automation of KSLM is limited to the installation of the equipment (Shaefer 930E) which allows the station to prerecord on reel- to-reel tapes or tape cartridges, sequence the programs in the equipment's computer, and then broadcast them on the air at the desired time I do not, however, accept this narrow interpretation of the expression "auto- mation " It is evident from Respondent's answer and amended answer, as well as the evidence adduced at the hearing and the arguments contained in its brief, that Respondent is-contending that automation is a total proc- ess of which the Shaefer 930E is but a part In addition, that the installa- tion of the Shaefer equipment permitted the introduction of other state- of-the-art equipment which could be programed into the Shaefer 930E and allow the Respondent to broadcast without the use of live personal- ities I find, therefore, that the introduction of other equipment, either as a result of the installation of the Shaefer 930E or to enable the Respond- ent to maximize the total effectiveness of the automated process, is specif- ically encompassed within Respondent's answer and amended answer to the backpay specification 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required time or interval In addition, the computer prints out a continuous log showing what has been aired and at what time 4 This was to satisfy the Federal Com- munication Commission (FCC) requirements as well as for billing purposes. Liz Roper, Respondent's business manager, testified that ,"[a]t the time of automation in 1982," she, worked on a revision of the "Martin System."5 Roper stated that the Martin System was a cumbersome and "idiot proof" process which took 11 orders (presumably for one com- mercial) and generated 44 invoices . -According to Roper, as a, result of the automation and FCC deregulation, she devised a system whereby she could - get an entire com- mercial schedule on one invoice form . Other than the general statement this change was effected at the time of the automation process, however, Roper gave no specific date as to when the revised paperwork system became operational at the station. Roper also testified that Respondent purchased a word processor to be used by the production department in writing copy for commercials and public service an- nouncements . Roper stated that prior to the introduction of the word processor, those individuals writing copy had to type a draft, duplicate it, and when the draft was edited or corrected retype the copy in final form for du- plication again for the production of the commercial or public service announcement . With the use of the word processor, Roper testified that Respondent's copywriters produced a draft on diskettes and editorial revisions were easily made before printing out the final acceptable ver- sion. Thus, according to Roper , Respondent was able to produce the same number of commercials in much less time As in the case of her testimony concerning the re- vision of the Martin System, Roper did not indicate when the word processor became operational at KSLM. Finally, Respondent's general manager, Greg Faboss testified that in September 1983, Respondent ' secured equipment whereby it could have a direct hookup with major network programs and sporting events via satel- lite. Prior to this arrangement , Respondent's network broadcasts were transmitted by telephone lines . The sat- ellite connection not only enhances the fidelity of the transmissions, but also permits the Respondent to either broadcast the network programs directly or tape and, then program them into the Schaefer computer for broadcasting automatically at a later time C. Respondent's Current Programing Format Currently, Respondent , follows a programing format in which 'the major portion of its .broadcasting is prepro- gramed material - sequenced in-and operated-through the automated equipment . Prior to automation and the other " Prior to the automation of the station, the live announcers 'had to make the log entries by hand concerning the material being aired :-' 6 The Martin System was the paperwork process used by Respondent in producing commercials and 'public service announcements and billing customers for the commercials Although Roper - failed to provide any specifics as to how each department was affected, she asserted the paper- work system to produce a commercial had an impact on administration, traffic , production , and sales 6 At the time of the underlying unfair labor practice case , Respond- ent's general manager .was Edd Routt Fabos was hired to replace' Routt as general manager in July 1983 - technological changes, KSLM followed a format where- by there were live announcers before open , microphones for 8-hour shifts during the entire broadcast period. The postautomation format reveals far less scheduling of live on-the-air announcing . The unrefuted testimony of Fabos discloses the typical broadcast schedule currently fol- lowed and graphically illustrates the change ' in format -re- sulting from the automation and the introduction of the state-of-the-art equipment. - From 6 until 9 a.m. (described as.the morning "drive time"), Tim Crosby, the program director, is on the air "live." Part of his duties during this period include giving two or three 2-minute segments of scores of-sport- ing events received on the AP wire: T. -L. Fuller, the news director, also broadcasts the news "live " during the morning drive time. At 9 a .m. the station is automated until noon and plays only tapes. From 9' until 10 a.m., Crosby makes voice tracks on tape; i.e., records his voice for subsequent broadcasting by means of the automated equipment . At noon, there is a half' hour of news ;broad- casting. Of this time 15 minutes are devoted to local news broadcast "live" by Fuller and '15 minutes -are CBS network news programed via the satellite through the automated equipment. From 12 .30 iintil 3 p.m. the station is fully automated again playing only tapes . The period from 3 until 6 p .m. is a mix of live announcing by a con- tract person known as Doc Nelson and preprogramed music. Nelson broadcasts a specialty 'program' for which he is paid $5 an hour and he periodically stops the tape to make announcements on an open mike . A station op- erator is also on duty to monitor the automated equip- ment while Nelson broadcasts. From 6' until 6:15 p.m. the equipment automatically broadcasts network news received via the satellite After 6: 15 'p.m. the station op- erates fully automated Preprogramed 'tapes are played or, if special network programing is to be aired, the equipment automatically broadcasts these 'events at the scheduled time. On Friday evenings , unless preempted by network or sporting events, Jim Zinn from the sales department does a live show called the "Cruisin' Show "' In addition , the station carries special sporting events such as the Portland Trailblazers, Oregon State University sports (mostly basketball), CBS network foot- ball, the World Series baseball games, and also the Seat- tle Seahawks games When , these special events are broadcast by Respondent , they are programed" through the automated equipment and no live' announcing is re- quired. II. ANALYSIS OF THE INDIVIDUAL BACKPAY AND REINSTATEMENT CLAIMS' A. General Legal Principles Which Apply to the: Backpay and Reinstatement Issues- Before determining the individual claims here it is helpful to review the basic legal criteria established over the years by the Board and the courts regarding backpay and 'reinstatement claims. It is 'settled law that a backpay ' The unrefuted testimony of Fabos discloses that the Cruism' Show is developed around Zinn's on-air-'personality, . and the show would be dropped from Respondent's broadcast format if Zinn did not announce it KSLM-AM & KSD,-FM and reinstatement order vindicates the public policy,of the statute by "making employees whole for losses suf - fered on 'account.of an unfair labor, practice." Nathanson v. NLRB, 344 U.S. 25, 27 (1952) -Accord: NLRB v. Rutter-Rex Mfg Co., 396 U.S. 258,.263.(1969).-It is also_ settled law that "the findings of an unfair labor practice . is presumptive proof that some backpay is owed by the [Respondent]." NLRB v. Mastro.Plastics Corp, .354, F.2d 170, 178 (2d Cir..1965), cert.,-.denied 384 U.S. 972 (1965). See also NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968). The burden on the General Counsel is to prove the gross amount of the backpay due each. claim- ant, NLRB v. Laredo Packing Co., ' 730 F.2d 405 (5th Cir. 1984), and this burden is limited to establishing "what would not have been.taken from [the employee] if the [Respondent] had not contravened the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943) Once ,the General Counsel has established the gross amount of backpay, due each claimant, the burden is on, the Respondent to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability. NLRB v. Miami Coca Cola- Bottling Co., 360 F.2d 569, '575 (5th Cir. 1966); NLRB. v., Mastro Plastics Corp., supra. It is not sufficient for Re- spondent to show theoretical or statistical probabilities, Triangle Sheet Metal Works, 267. NLRB 650 (1983), nor- can this burden be satisfied by self-serving or conclusion- ary statements, W.C. Nabors, 134 NLRB 1078, 1088 . (1961), enfd. as modified on other grounds 323 F.2d 686 (5th Cir. 1963), cert denied 376 U.S. 911 (1964). Thus, it is incumbent' on Respondent to establish by specific ob- jective evidence "just what employment in the compen- satory sense [is no longer] available." NLRB v. Izzi, 395 F.2d 241, 243 (1st Cir. 1968).8 Finally, it is well estab- lished that any doubt or uncertainty in the evidence must be resolved in favor of the innocent employee claimant and not the Respondent Wrongdoer. NLRB v. NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir' 1976); NLRB v. Miami Coca Cola Bottling Co., supra at 572-' 573. B: The Individual Claimants Taking into consideration the general principles that apply to Respondent's backpay and reinstatement obliga- tion, I arrive at' the following findings and conclusions, regarding -the individual claimants:- 1. Brian Schreiber Schreiber, a full-time announcer, working an 8-hour shift at KSLM, was an on-air personality working before - a live microphone prior to his unlawful discharge on No- vember 19, 1981., The evidence, is clear, both from the findings in an unfair labor practice case and the testimo- ny presented here, that when the automation equipment. became operational on May 4, 1982, there was a sharp 8 Since it was found in .the underlying case that the automation of. KSLM was for legitimate business purposes and, further, since it has been found here that the technological and system changes were "a part'of or resulted from the automation process, Respondent's burden does not in - clude establishing that these actions were not taken for the purpose of avoiding its backpay and reinstatement obligation' - 1347 reduction in the use of on-air personalities in the station's broadcast format. As noted, during the "morning drive- time" (6 to 9, a.m.) Crosby, the-program director, and Fuller, the. news director, are on the air "live." The next segment of live announcing occurs at 12:15 p.m, when Fuller broadcasts the local news. In the afternoon the Doc Nelson specialty show is broadcast on-air from 3 to 6 p.m. After 6 p.m there is no live announcing except on Fridays when Zinn goes on the air "live" to announce the Cruism' Show for 3 hours . However, this show is subject to preemption,_by network sports should such events occur during this time frame on Fridays, and the show is developed around Zinn's on-air personality. • i Thus, it is apparent that Respondent's live announcing slots are, at a maximum, 6 hours in a broadcast day on Mondays through Thursdays and-9 hours on Fridays, in the event the Cruisin'. Show is not preempted by net-, work events. Since the Cruisin' Show would be dropped if Zinn did not announce it, I find that this segment of live announcing is not to be included in the available on- the-air opportunities at KSLM.9 Assuming, without de- ciding, that the' Nelson specialty show could be per- formed by one-of Respondent's own announcers, it be- comes evident that the live announcing slots now avail- able, beginning at 6 a .m. and ending at 6 p.m (hours not previously worked by Schreiber),- are at most 6 hours per day This is a reduction of at least 25 percent in the an- nouncing time performed by Schreiber, in an 8-hour shift,. - prior to his unlawful discharge • in November 1981 10- TheGeneral Counsel contends, however, that the po- sition of operator-on-duty, to which all of Respondent's remaining live announcers were assigned at the time of the- automation, is equivalent to'the duties performed previously by the live announcers. Therefore, according to the General Counsel, the duties of this position and the hours required to perform them must be considered in determining the available substantially equivalent em- ployment. I do not agree with this contention. First, it is evident'from the unfair labor practice" case and the testimony here that when KSLM's live announc- ers 'were reclassified as operators-on-duty after the auto- mation equipment became operational, their pay was re- duced from a salary 'starting at $800 per month to an hourly wage rate, of $3.50. It is readily apparent that the reduction in wages is directly related to the fact that a 9 Similarly, I do* not include the 4-day, 24-hour live broadcasting pro- motional event Respondent proposes to engage in as part of'its 50th year anniversary celebration Crosby and Nelson are scheduled to do the live announcing for this event It is apparent that the anniversary celebration is a one-time event that is not a part of Respondent's normal broadcast . format 10 In arriving at this percentage of reduction , I do not rely upon the summaries introduced by Respondent as its Exhs 5, 6, and 7 As the General Counsel correctly points out, they are incomplete as they fail to note all of the duties performed by Respondent 's station personnel and the hours allocated, to performing these duties Nor do they disclose the allocation of hours for all of the employees whose duties changed after the advent of the automation equipment Nevertheless, it is apparent from the testimony regarding Respondent's current broadcast format and the evidence in. the unfair labor practice case that the live announcing seg- ments were drastically reduced after, the automation equipment became operational 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lower level of skill is required in the performance of the operator's duties. In the unfair labor=practice case, Gen- eral Manager Routt testified that the function of live an- nouncers "was to create a 'one-on-one' atmosphere, where they were talking to an audience doing weather forecasts, introducing records, dropping in-little pieces of information-about what was going on in the community, [and] maybe humorous little bits." In contrast,' the opera- tors monitor the automated equipment to make certain it is operating' correctly and rarely, if ever; use a live microphone. Because the bulk of the programs are prere- corded and. programed' in the. computer for playing -at 'the appropriate broadcast time,- this amounts to little. more than observing the control panels to make certain that the equipment is functioning properly In the event of a malfunction, the operator pushes the-necessary but- tons to correct the defect. . ' . Secondly, the testimony also establishes that since these duties. do not take' up all. of the operators' working time, they are required to perform other; duties at the Re- spondent's stations, For example, the all-night operator monitors the equipment. for both the AM and FM sta- tions as well as record: music on tape or tape, cartridges for programing through the-automation- equipment at a later time. One, operator, Hatley, does, the weather for KSKD-FM, occasionally voices -commercials on, tape, and does "traffic" 11 for the FM station while, on duty as an operator. Schoneke, another operator, does "traffic" for KSLM• while on duty. According to the testimony of Schoneke, her operator duties only take up 15 percent of her working time and the balance is devoted, to the. traf- fic work.,, Others are called on to -,"voice track" i 2 , pro- grams, commercials, or public service announcements- on tape.or to record music while on duty. The, testimony discloses that a person is able to record 4 hours of voice tracks in approximately 30 minutes. After the .tapes are recorded, they are programed into the automation equip- ment for broadcasting at a subsequent, time - From the above, I find that the duties of the operators, including the voice tracking, are "substantially different and entail far 'less, skill: than- those, required of a live an- nouncer before an open microphone. While there is no question that live announcers can, perform the monitor- ing of the,autom_ated.equipment, it is equally evident that the' duties. of an operator involve, less,skill and is consid- ered an entry-level position in the broadcast .industry. It is for this reason that the operator's-position is, a -lesser paying job. 'Although voice -tracking produces the same final result as live, announcing,. i.e., a voice -being transmitted over the airways. through the .station's equipment, I find that this function-is also below the skill,level of alive an- nouncer Voice tracking does not. require the, person to - 11 "Traffic" duties consist essentially of getting information' from the clients concerning when the client, wishes, its commercial to be aired -,and the frequency that this is to be done The traffic person then prepares a log *showing what programs and commercials 'are to be broadcast each day and at what particular time • 12 As noted, Crosby spends approximately,l hour a day making voice tracks Further, the testimony indicates another employee voice tracks programs that 'run 4 to 5 hours' per' day These voice tracks are' used when the Respondent has no network'coverage of any` kind to broadcast be before an open microphone projectmg•a personality in order-to generate a following among the-listening public., Rather, it entails the -reading of copy -to be recorded 'on tape'and interspersed between preprogramed material for subsequent broadcasting. Indeed, the fact that it takes ap- proximately 30 minutes to voice track-a 4-hour program indicates the lack of personality projection that is so es- sential to that of a live announcer Thus, in the job pro- gression the operator's position 'is' at the 'bottomvoice tracking is a step above, and live announcing is at the apex. - • For the reasons set forth above, I find the operation 'of the automation equipment at KSLM resulted in the con- version of the on-the-air announcers' duties to that of op- erator-on-duty and, further, that on-air announcing op- portunities at Respondent's station were reduced by at' least 25 percent. I also find that the duties of, the opera- tors, even when they involve voice tracking, are not the same 'as' or substantially equivalent to 'the duties per- -formed by the: on-the-air announcers since'-the former re- quire a lesse'r degree of skill and are'compensated at a lower rate of pay Board policy construes "substantially equivalent" as "requiring that the jobs utilize similar skills, receive similar pay, have similar working condi- tions and the like." Polynesian Cultural Center v. NLRB, 582 F.2d 467, 476 (9th Cir. 1978). See also Oneita Knit- ting Mills J. NLRB, 375 F.2d 385, 387-388 (4th 'Cir. 1967); Alcan 'Cable West, 214 NLRB '236 (1974); New' Fairview Hall Convalescent Home, 206 NLRB 688 (1973);' Ramona's Mexican Food Products, 203 NLRB 663 (1973). Accordingly, I conclude that after May 4, 1982, there were, no positions available which were the same as or substantially equivalent to the: live announcer position from which Schreiber had,been unlawfully discharged. Since it has been established that the automation process which eliminated the live announcers' positions and sub- stantially reduced the on-the-air opportunities 'was insti- tuted for,legitimate business 'reasons, unrelated to the conduct surrounding the unlawful discharges and not to avoid Respondent's backpay and reinstatement obliga- tion, I find the backpay and reinstatement obligation to this claimant terminated as of that date - Respondent raises two other contentions, in mitigation of its' backpay obligation. One applies to Schreiber in particular and the other to all of the claimants generally. First, Respondent contends that Schreiber has secured interim employment in•California at.a higher rate of pay than he received while employed by Respondent. This argument is presumably. premised on the ground that Schreiber's current employment,'in another State paying better wages, is evidence'of an intent not to accept rein-' statement and .thereby terminates; Respondent's backpay and reinstatement obligation to him I do not have to decide this question, however, since Schreiber did not accept this interim" employment: until the third quarter of 1982-well after the date I have found Respondent's ob- ligation to him ceased. The second argument advanced by Respondent is that its. obligation to all claimants should be reduced by any amounts- of unemployment compensation they have re- ceived during the interim period. Suffice it to say that - KSLM-AM & KSD-FM 1349 this is contrary to existing law' 3 and involves a matter of, policy which only the Board, itself, can change. Therefore, I reject this contention of Respondent out of hand; not only as it applies to the particular claimant Schreiber but as to all of the claimants herein. ' In view of the above analysis, I find the amount of. backpay due Schreiber to be as follows:14 Fourth Quarter 1981 $ 920.00 First Quarter 1982 2,566.90 _ Second Quarter 1982 0 $3486.90 2. Carl Grossenbacher Grossenbacher was also anon-the-air announcer em- ployed full time by Respondent and found to,be unlaw- fully discharged on:the same date that Schreiber was dis- charged (November 19, 1981).. On. the basis of my find- ings regarding the termination of the Respondent's back- pay and reinstatement obligation to Schreiber, I find, for the same reasons, that Respondent's obligation to Gros- senbacher terminated on May 4, 1982. Accordingly, I find the backpay due Grossenbacher,to be:- - Fourth Quarter 1981 _ $1,080.00 First Quarter,1982' 566.67 Third Quarter 1982 0 $1,846.67 - 3 Daniel Van Meter Van Meter was the sports <director for KSLM at the time he was unlawfully discharged on January 15, 1981. As such, he broadcasted sports reports seven times a day, hosted a 45-minute sports talk program Mondays through Fridays from 6:15 to 7 p.m. and did a sportscast on Saturday mornings the sportscasts consisted of. re- ports on national, regional, and local sporting events. Van Meter testified he obtained the information for the local portions _of his, sports program from local contacts he developed in the area The information on the nation- al and regional events was obtained from the various wire services. By his own estimate, he worked 40.to 45 hours a week while employed by the Respondent. When Van Meter was discharged, Respondent did not hire a replacement to perform his duties Instead, the sports format was changed 'to limit the broadcast of local sports to a reading of scores and the elimination of local sporting events and local sports' programs. The CBS net- work feeds to national events was by telephone ' lines until Respondent installed the direct hookup 'via satellite to the network events in September 1983. Thereafter, the major sports events were programed into the automated equipment for broadcast directly from the network 'feeds or taped for broadcast at a later time through'. the equip- ment. Fabos testified that when he was hired as general manager in July 1983, he decided to' maintain the "status 13 See NLRB Y Gullets Gin Co, 340 U S 361 (1951) 14 As noted earlier, Respondent does . not contest the appropriateness of the backpay formula applied by the General Counsel. or. the measure of the backpay quo," and not have the same kind of sports coverage that existed when Van Meter was employed Fabos asserted this decision was based on his assessment of the kinds of sports, in the local area and listener interest in network coverage The General Counsel correctly observes that the auto- mation of KSLM in May 1982 did not result in the elimi- nation of Van Meter's position at the station. Rather, the evidence establishes that Respondent's officials merely decided to rearrange the sports format after Van Meter was unlawfully discharged ' There is no evidence present- ed here by Respondent to demonstrate that a change in the sports format was being considered before the termi- nation of Van Meter. Nor has. Respondent presented any evidence to , demonstrate that the change in the sports format resulted from a later business decision which would have resulted in the elimination of Van Meter's job. Granted, Fabos testified that in July 1983 he made a decision to maintain the "status quo," but the status quo as he'found it was the direct result of Respondent's dis- criminatory termination of Van Meter'in January 1982. Thus, it cannot be said that the decision of Fabos to maintain the existing sports format in 1983 was a nondis- criminatory intervening event which would have elimi- nated Van Meter's job. This is especially true since Re- spondent's unlawful actions effectively' precluded Van Meter from developing, the very factor which was para- mount in Fabos' decision ; i.e., listener interest in local sports coverage and programs. Since it is necessary for the Respondent to demonstrate by specific objective evi- dence that Van Meter's position would have been elimi- nated, NLRB v. Izzi, supra and since any doubts or un- certainty must be resolved in favor of the claimant rather -than the wrongdoer, NLRB v. Miami Coca Cola Bottling, 'Co , supra, I find the Respondent has not established on 'this record that - the position of sports director would have been eliminated in July '1983 when Fabos became the general manager. - This issue becomes a closer one, however, when one considers the circumstances that obtained after the instal- lation of the equipment for the direct hookup to network coverage via satellite in September 1983. Prior to this, the network broadcasts were transmitted by telephone lines. After the satellite connection, Respondent' was' able to receive transmissions directly from the network events and was thereby enabled to expand its coverage of these programs with better-quality in the transmission . 'As the testimony indicates, this equipment is the latest state of the art:" Moreover, it permits the station to broadcast the network coverage directly through the automated equip- ment 'or tape the event' and program it into the computer for later broadcasting at ;a desired time: Additionally, the testimony discloses the equipment enables the Respond- ent to cover major regional sporting events such as the Seattle Seahawks games' and similar hookups are being developed for direct transmission of the Portland Trail- blazers'and the Oregon State basketball games. In view of this development, utilizing the satellite hookup for network events through the 'automated equipment,, I find Respondent has presented sufficient ob- jective evidence to establish that the position of sports 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD director would no; longer have existed after September 1983 '5Accordingly, I find Respondent's backpay and re- instatement obligation toVan Meter ceased at that time. Finally, the record discloses that Respondent, through its attorney, sent a letter to Van Meter, dated May • 19, 1983, purportedly offering him reinstatement. (See R. Exh. 1-F).' 6 The letter stated: Pursuant to the Board's Order of April 12, 1983, in the above-captioned case, the Company-is required- to offer you reinstatement. As counsel for the-Com- pany, you can consider that- this letter is such an offer. However, at this time the job you previously held or a substantially equivalent position is not available. If you are interested in employment with the Company, please update our current 'application form which is' enclosed: . Respondent argues that the-offer of reinstatement sent to-Van Meter is a valid offer and thereby tolls-its-back- pay obligation to this claimant:" -I reject this argument. Respondent's offer informed Van Meter that his position of one substantially 'equivalent was not available. How- ever, I have already found that Van Meter's position did not cease to exist until after September-1983. For an offer of reinstatement to be valid, the position offered must be on the same-level of employment as the job from which the_ employee was, wrongfully terminated, NLRB v. W. C. McQuaide, Inc., 552 -F.2d 519, 529 (3d Cir. 1977), and must not merely bean invitation to apply for reemployment. Polynesian Cultural Center v. NLRB, supra at 475. The offer made to Van Meter -was nothing more than a request to update his application and is tan- tamount to an offer 'to' apply for reemployment.' There- fore, I find Respondent's: offer of reinstatement to the discriminatee is not d 'valid one Considering the above, I find Respondent's backpay and reinstatement, obligation to Van, Meter to be as fol- lows. First Quarter 1982' $1,785.79 Second Quarter 1982 • 2,081.14 Third Quarter 1982 3,202.60 Fourth Quarter 1982 - , .2,606.04 First Quarter 1983 - • 1,298.27 Second Quarter 1983 2,310 45.- Third Quarter 1983 1,705.76 $14,990.05 'Is There is no evidence- in, the, record about the precise date' the' hookup via satellite. became operational Fabos testified, the equipment came on line in September 1983 As the Respondent ,is, required in these proceedings to show specifically when a given position would be elimi- nated, I find the entire month of September is to be included in, the calcu- lation of the backpay dueiVan Meter ..1 ^ . Is Identical letters were, sent to all of the-discrimmatees'by Respond- ent's attorney on the same date (See R Exhs,1-A through I-E )- 11 It was not necessary to reach this argument in the cases of, Schreiber and Grossenbacher since it was found that their positions were in fact eliminated on May 4 1982;"prior to the letters'offeriii reinstate- ment . - - 4. Tim Conner and Marlene Hamilton Before January 15, 1983, Conner was employed by Re spondent as manager of the production department 18 This department. had the responsibility for productiiig the commercials for both the AM and FM stations of the Respondent. Conner and Hamilton shared the same duties. These tasks entailed receiving taped commercials from advertising agencies on behalf of clients and deter- mining the continuity • that- the commercials would be broadcast; i.e., the frequency that • they would be aired and at what times Based on instructions from the client or the agency, they would issue written instructions to the announcers or disc jockeys regarding the airing of the commercials and the delivery style to be followed. In addition, they wrote the ' commercials produced by Re- spondent (copywriting) for clients who h ad purchased air time from the sales department: They also "voiced" commercials produced by Respondent. Further, Conner and Hamilton ' 'produced "speculative" commercials which were used by the sales employees to induce poten- tial buyers-to 'purchase radio time. Finally, their duties required them to check all commercials to make certain that' they complied with the various governmental and industry association regulations. It was found-in the underlying unfair labor practice case that on January 15, 1982, Respondent discriminator- ily discharged Hamilton and reassigned Conner to a less desirable position paying $200 a month less in wages. In his new position, Conner worked 5 days a week from 4 p.m. to midnight; the first 2 hours doing production work and the remainder of the shift as an operator. Judge Shapiro further found that Conner was discrimina- torily discharged-by Respondent on March 5, 1982, rein- stated shortly thereafter with no loss in pay, and subse- quently discriminatorily discharged again on April 23, 1982. When Hamilton was discharged and Conner reas- signed in January 1982, their duties in the production de- partment were reassigned to other staff members. Dora Hatley testified that she became the production coordina- tor for both the AM and FM stations and wrote the copy formerly produced by Conner and Hamilton. She stated she was assisted ' by another employee, Gail Schoenke, for the first two months and thereafter was the only person- writing copy -until July 1983. At that time, according to Hatley, she became the "traffic person" for KSKD-FM and Debbie Aydelott succeeded her, as the copywriter. ' Hatley testified that when she became the full-time copywriter; she only spent 6-hours per day performing the 'work previously performed by Conner and Hamilton during their 8-hour workday.19 According to Hatley, 50- p ercent of her-time was devoted to copywriting, 25 per- cent to weather and the like, and 25 percent to commer- cial production (voicing commercials). Hatley admitted on • cross-examination , however, that several other em- ployees also wrote -copy while she had that iespdnstbil- 18 Conner was paid $1200 monthly and worked from 8 am to 5 p in , 5 days a week as manager of this department - - 19 It is .stipulated by the parties that Respondent produces the same number of commercials now as were written and produced in January 1982 ' KSLM-AM & KSD-FM ity, but stated that it occurred. only occasionally . She ac- knowledged that employee Haynes wrote copy "on oc- casion," that employee Pete Tosi wrote copy "on occa- sion, but rarely," 20 and that employee Zinn from the sales department 'wrote copy, "maybe once or twice." Aydelott testified she took over Hatley 's duties as- copywriter in July 1983. She stated that her copywriting duties took up "[a]pproximately two-thirds to three-quar- teers- of ,the day " Liz Roper, Respondent's business man- ager, also testified regarding the production department and the amount of time devoted to writing copy Roper stated that Aydelott was the only employee writing copy except in rare instances . According to Roper , Aydelott performs the same duties that were performed by Conner and Hamilton but accomplishes the work in 6 hours a day.21 She acknowledged that Shoenke and Zinn had written copy when Hatley was first assigned the duties but stated they only did so for a short period of time. Roper also refuted the testimony of Routt in the unfair labor practice case regarding the copywriting duties of Tosi .' According to Roper, Tosi was paid $50 a month to voice' commercials and not to write copy . She admitted, however, that the only basis of her knowledge as to which employee wrote copy was predicated on whether she personally -observed the employee performing this duty - Contrary to the testimony of these witnesses, General Manager Fabos testified that both Hatley and Aydelott currently write the commercials for Respondent. Fabos stated the copywriting duties are divided between these two employees . He gave no estimation, however, of how much of their working time was devoted to this job each day Respondent contends that the revision of the Martin System and the purchase of the word processor dramati- cally reduced the amount of time required to perform the production work previously produced by Conner and Hamilton . Roper's testimony regarding the revision of the Martin System-which resulted in the elimination of numerous forms-failed to disclose how this , change specifically affected the writing of copy or the produc- tion of commercials . She did state, however , that the use of the word processor shortened the amount - of time re- quired to write copy Prior to its operation , copy had to be typed, edited , and retyped and. then duplicated for voicing the commercials . With 'the word processor, cor- rections are made on the diskette and stored until a final copy is printed out. Considering all of the above, I am not persuaded that Respondent has demonstrated here that the automation". ' of KSLM has resulted in the elimination of or drastic re-', duction in the production duties performed by Conner_ and Hamilton prior to their unlawful discharges . Fore- most is the fact that Respondent has failed to demon- 20 Then -General - Manager Routt , testifying in the underlying unfair labor'practlce case in August 1982, stated Tosi wrote and aired'commer- cials and was paid $50 a month by Respondent to do so (See G C Exh 7) 21 Roper admitted and the record in the unfair labor practice case es- tablishes that both Conner and Hamilton received pay raises in late 1981 (prior to their discharges) and Conner was promoted to production man- ager ' 1351- strate how the automation equipment itself has changed the employment opportunities in the production depart- ment. The Shaeffer 930E •and the satellite hookup deal exclusively with the broadcast function of the stations and not with the duties performed by the production de- partment. Indeed, it is the end product of the production department that is programed into the automated equip- ment and broadcast by the stations. Therefore, it cannot be said here that the operation of this equipment in any way impacted on the duties performed by Conner and Hamilton. . ' This leaves the revision of the Martin System and the operation of the word processor as the only other changes in Respondent's operation that could possibly re- sulted in the reduction of the. production work. As noted, Roper's testimony regarding the - revision of the Martin System fails to establish how these changes af- fected the work of the production department. She merely testified that the change in the paperwork system affected the production, traffic, sales, and administration departments. No evidence was presented by- the Re- spondent, testimonial or otherwise, concerning how these revisions in the Martin System caused any reduction in the time required to write copy or to perform the other duties in the production department. In the absence of any such showing, the contention that the changes in the Martin, System reduced the number of hours required to perform the work in the production department must be rejected. Regarding the use of the word processor -in writing copy for commercials, concededly the operation of such equipment would reduce the amount of time required to produce finished copy. But whether Respondent's con- tention that the time reduction was so great as to reduce two 8-hour jobs to one 6-hour job is accurate is another matter. The testimony offered to support this affirmative defense is at best conflicting. On the one hand, Aydelott, Hatley, and Roper assert the copywriting duties were performed by a single employee and only required 6 hours of that employee's working day. Yet, Fabos, the general manager and chief operating official at the sta- tion, unequivocally stated that the copywriting duties were performed by two 'employees-Aydelott and Hatley. Further, in the underlying unfair labor practice case, the then general manager Routt testified that em- ployee Tosi was paid $50 a month to write copy and voice commercials; this was in direct contradiction of Roper's testimony that Tosi was only paid this amount to voice commercials: Moreover, while Roper, Hatley, and Aydelott stated only one employee now writes copy, both Roper and Hatley admitted on cross-examination that copy is also written by employees Zinn and Haynes "on occasion." Furthermore, although Roper testified very authoritatively concerning the number of hours spent each day writing copy, she admitted that the only basis of her knowledge about this fact was whether she, happened to see an employee doing that work - In light of the testimony of •Fabos in this proceeding and the testimony of the prior general manager in the underlying proceeding, I find the statements of Aydelott, Hatley, and Roper regarding the amount of time and the . 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of persons assigned to write copy to be conflict- ing and inherently inconsistent and, therefore, totally un- reliable and untrustworthy. For this reason, I find the credited testimony 'establishes that more-than one person is currently assigned' to and' performs the copywriting duties for Respondent's stations. Accordingly, it becomes apparent- that Respondent has failed to demonstrate by specific objective evidence that the duties -performed by Conner and Hamilton in the production department have been drastically reduced or that one such position has been eliminated; either by, the operation of the automated equipment, the introduction of other up-to-date office equipment , or by the revision of the Martin System. NLRB v. Izzi, supra. , It follows, therefore, that Respondent's backpay and reinstatement obligation to these two claimants does not cease until they have-been offered reinstatement to their former or substantially equivalent jobs • Since the rein- statement offers sent to these employees on May 19, 1983, specifically denied' any such positions were avail- able and merely invited the claimants to update their em- ployment -applications, I find the offers were not -valid offers of reinstatement, , which, would have tolled Re- spondent's- backpay and reinstatement obligation. Polyne-. scan Cultural Center v. NLRB, -supra Respondent advances one further argument in an effort to mitigate its backpay liability to Conners and Hamilton. Respondent asserts that each of these claim- ants incurred a willful loss of earnings by unjustifiably quitting interim employment and that this amount must be offset against Respondent's backpay obligation. The law is ' well settled that in making an employee whole for loss of pay suffered as a result of an employ- er's unfair labor practices, deduction is made from gross backpay "for actual [interim] earnings ' of the worker, [and] also for losses which he willfully incurred by a clearly unjustified refusal to take desirable new employ- ment." Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198- 200 (1941) -A worker who has been a victim of an unfair labor practice is not entitled to simply await rein- bursement from his or her employer for wages lost." NLRB v. Mercy Peninsula Ambulance Service, 589 F 2d 1014, 1017 (9th Cir. 1979). Thus, "the employee may not voluntarily withdraw from the labor market and isolate himself against employment, thus willfully incurring the losses for which he seeks recompense." Keller Aluminum Chairs Southern, 17.1 NLRB 1252, 1256 (1968) (citing Phelps Dodge). An employee's "backpay may be reduced to the extent that' the employee fails to remain in the labor market " Atomic Workers v. NLRB, 547 F.2d 598, 602 (D.C:Cir. 1976). The burden of.proving such a willful loss of earnings is on the Respondent in these proceedings. Neeley's Car Clinic, -255 NLRB 1420 (1981); Southern Household Prod- ucts Co, -203 NLRB 881 (1973). A deduction from a backpay claimant's gross backpay because of his willful loss of earnings is permitted "not so much [for] the mini- mization of damages as [for] the healthy policy of pro- moting production and employment." Phelps Dodge Corp., supra at 200. . When an employee unreasonably quits an interim job - during the backpay period-especially one that pays as much or more than the employee would have received from the employer who unlawfully discharged him or her-that employee may be deemed to have engaged in a willful loss of earnings which may be offset against the offending employer's backpay obligation See Artim Transportation System , 193 NLRB 179 , 183 (1979), Flor- ence Printing Co., 158 NLRB 775, 791-792 (1966). But the mere fact that a claimant voluntarily quits interim employment does not, in and of itself, necessitate a find- ing that the claimant left the labor market In Mastro Plasttcs22 the Board stated with subsequent court ap- proval [A] claimant who obtains a job but then leaves it for a justifiable reason is not deprived of all further claim; the assumption is that the reason for his quit- ting the job would not have been present at Re- spondent's plant and therefore the job is not sub- stantially equivalent. The record here shows that following his discharge by - Respondent, Conner worked several jobs and did free- lance work until he secured a position in the latter part of December 1982 with radio station KGAL in Albany, Oregon. He was hired as the production director and did some on-air announcing for KGAL. Conner' s initial starting salary was $800 per month and this was in- creased to $1000 on March 1, 1983. The record further discloses that Conner was commuting approximately 5000 miles every 3 months or a little better than 1666 miles a month from Salem to Albany to maintain the job at KCAL Conner subsequently moved to Portland, Oregon, and on August 15, 1983, took a reduction in pay to $768 a month for 3 days' work at KGAL as opposed to six because he found the commute (150 miles) to be too demanding for a 6-day week. He subsequently left the employ of KGAL and took a position with another employer in Portland. - Respondent contends that Conner unjustifiably re- duced his earnings at KGAL by curtailing and then quit- ting his employment there; and thereby incurring a will- ful loss of earnings I reject this argument and find that the strenuous commute required to sustain the job at KGAL justified -Conner's decision to limit and ultimately quit his position with that employer A backpay claimant is not required to seek or maintain employment "which- involves conditions that are substantially more onerous than his previous position." NLRB Y. Laredo Packing Co., supra at 408, citing NLRB v. Madison Courier, 472 F.2d 1307, 1320-21 (D.C. Cir 1972). Thus, I find Re- spondent has failed to establish that Conner's decision to limit and subsequently terminate his employment at KGAL was unjustified and unreasonable in these circum- stances. Regarding Hamilton, the record shows she was em- ployed during the backpay period as a copywriter for an advertising firm that handled, among others, the account for the Red Lion/Thunderbird Inns Hamilton testified that after she started working with the firm the scope of 22 Mastro Plastics Corp, 136 NLRB 1342, 1349 (1962), enfd 354 F2d 170 (2d Or 1965), cert denied 384 U S 972 (1966) KSLM-AM & KSD-FM her job changed. The firm gave up the advertising for Red Lions and began to- handle governmental relations for that client. Hamilton stated the client was of an "ex- tremely conservative" persuasion and she developed "real political and philosophical problems" over the nature of the work she was required to perform. These problems led to differences with her employer and began to result in criticisms of her work. Hamilton and her em- ployer mutually agreed that he did not need an advertis- ing copywriter but, rather, a political copywriter. For this reason, Hamilton quit her job. Respondent contends Hamilton voluntarily terminated her employment with the advertising firm for her own personal convenience and thereby engaged in a willful loss of earnings I do not agree In the field of creative writing, of which copywriting is a part, the development of political and philosophical differences over one's work product and the direction that one's work must take is as onerous a working condition as would be created in an industrial environment where an employee is assigned to a more strenuous or less desirable job Therefore, Hamil- ton's decision to quit her interim job was not for her own convenience but because her working conditions became onerous and unsuitable through no fault of her own. Based on my analysis of the reinstatement offers sent to the discriminatees, I find the Respondent has not made valid offers of reinstatement to these two claim- ants. Accordingly, Respondent's' backpay and reinstate- ment obligation continues to run until such time as Re- spondent fully complies svith the Order in the underlying case On the basis of the amended backpay specification, I find Respondent's backpay obligation to Conner and Hamilton through the fourth quarter of 1983, exclusive of interest, to be as follows: Corner Hamilton 1982(1) $50000 - $2,05000 1982(2) 2,541 00 2,977 50 1982(3) 3,44300 2,964 15 1982(4) 537 95 3,01415 1983(1) 1,72400 2,43780 1983(2) . 1,72400 2,31709 1983(3) 2,49200 1,51922 1983(4) 2,46900 3,60000 $15,43095 $20,879.91 5. Landra Snow • - Snow was employed by the Respondent as a newscast- er and reporter prior to her unlawful discharge on March 31, 1982. At the time she was discharged there were two reporters in the KSLM-AM news depart- ment-Snow and Andrew McKinney. The director of Respondent's news department was and is T. L. Fuller. Snow's duties included doing newscasts at noon and in the afternoon. She monitored police calls and the wire services for news leads and stories. In addition, Snow wrote and produced a program called "Justice for All," which was aired once -a week over the AM station, and 1353 helped with a public affairs program produced by the Respondent She also covered special assignments in the field when directed to do so by Fuller After Snow was discharged no replacement was hired in the 'news department and McKinney became the only staff person there. The findings in the underlying unfair labor practice case and the testimony presented in-the in- stant case reveal that Respondent was less than satisfied with McKinney's performance as a newsperson. Mark Lantz, a former employee of Respondent, testified that in July 1982'he spoke with Fuller about McKinney's cover- age of a rafting event sponsored by Respondent. Lantz was critical of McKinney's reports because it, appeared McKinney was getting- intoxicated .during the event. Lantz testified that Fuller replied McKinney "had been walking a fine line for quite awhile." According to Lantz, Fuller said he wished he could hire Snow back but could not because Respondent was involved in litiga- tion with Snow.23 McKinney voluntarily quit his job with Respondent in October 1982 to_ take another posi- tion in Arizona. The record shows that Respondent did not consider hiring a newsperson after McKinney departed until June 1983. Gwen Godsey, an individual unconnected with the parties in these proceedings, testified she heard that Re- spondent was looking for a part-time person . for the KSLM news department. She arranged an interview- with Fuller and was told the duties consisted of assisting him in the news production for the Respondent. These duties included taking audio and network feeds, giving feeds to other stations, and involved some on-air an- nouncing. According to Godsey, she had heard there was some litigation involving the Respondent and she in- quired about it when interviewing with Fuller. She stated Fuller replied that it was a sex discrimination suit brought by Snow. Godsey also asked Fuller during the interview whether the position she was applying for would ever-become full time. She. stated Fuller respond- ed by saying it would become full time after the litiga- tion was concluded.24 Godsey made a demonstration tape for Respondent but was not hired to fill the news department position-. Fabos testified that when he became general manager in July 1983, the afternoon newscasts were performed by an employee named Norton. These duties were subse- quently assigned to David Freer, on- a contract basis, in September 1983, and he currently performs this work for the news department. The parties stipulated. that Freer is Respondent's' chief engineer for which he receives a salary of $1650. Separate and apart from his engineering duties, Freer is hired on contract at $7 an hour to func- tion as operator-on-duty from 3 to 6 p.m. on Mondays through Fridays. While on duty as an operator, Freer 23 The record shows Snow filed a sex discrimination complaint against Respondent with the Civil Rights Division of the Oregon Bureau of Labor and Industries regarding her discharge This complaint was dis- missed by the agency on January 20 , 1980 (see R Exh 10), and there is no'indication in the record as to whether Snow appealed this determina- tion or pursued a private right of action on the complaint in the state court 24 Fuller, currently employed by Respondent, was not called as a wit- ness in this proceeding P54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gives on-air delivery of one FM and five AM newscasts, is responsible for monitoring police and fire reports, is assigned by Fuller to write news copy and obtain audio interviews by telephone, changes the tapes for the AM automation equipment, and handles any other automation problems that might arise. •In addition to his other news department duties, Freer also monitors the AP wire serv- ice and edits copy received from it. Every other Satur- day, between 5 and_ 9 a.m., Freer gathers, writes,,'and gives on-air delivery of seven AM newscasts. - In addition* to the duties performed by, its own news department, the record testimony also indicates that Re- spondent uses a contract news service. However, it is un- clear in the record when the use of this service began or how often the tapes from this service are aired in'Re- spondent's broadcast format. Respondent contends that there was no position avail- able for a full-time news person after the advent of the automated equipment and the network feeds through the satellite hookup. Alternatively, Respondent contends that its backpay and reinstatement obligation to Snow ended when McKinney left in October, 1982, and no' replace- ment was assigned to perform full-time staff duties in the newsroom. Turning to the latter argument"first,' I find the record evidence belies Respondent's contention. The unrefuted testimony of Lantz demonstrates Respondent's officials were dissatisfied with the work of McKinney well before he voluntarily quit, but did not consider rehiring Snow because of the litigation she was involved in against Re- spondent. Although Respondent did not replace McKin- ney after he quit, the undisputed testimony of Godsey es- tablishes that in June 1983, Respondent was seeking to hire a staff person to work in the news department. While the position for which Godsey interviewed was to be part time, initially , it is apparent from her uncontro- verted testimony that Fuller intended to make it a full- time job once the "litigation" in which Respondent was involved was resolved.25 I find, therefore, that Respond- ent has failed to demonstrate by way of specific proof that the position of a full-time news person was eliminat- ed after: McKinney voluntarily quit. This is especially true since the testimony of Godsey compels the strong inference that Respondent failed to fill "this. position for reasons related to its initial discriminatory treatment of Snow and not because the position was eliminated for business or economic reasons. Since the burden is on Re- spondent "as the wrongdoer to disentangle the lawful from the illegal consequences of its misconduct," NLRB v. Transport Co. Texas, 438 F.2d 258, 262 (5th Cir. 1971), and any uncertainty must be resolved against the wrong- doer rather than the innocent claimant, NLRB v.'Miami Coca.Cola Bottling Co.,.stipra, I find the Respondent has failed to demonstrate with certainty that there was no full-time position available in the news -department in June 1983. 15 The General Counsel correctly points out, it is of no consequence here whether the "litigation " referred to Snow's sex discrimination claim (which was dismissed by the Oregon agency in January 1983) or the mat- ters involved in the instant proceeding What is of importance here is that Respondent did not intend to fill the news position with a full-time person until the dispute , which involved Snow, was resolved I find, however, that the record evidence does support Respondent's primary contention that the automation of KSLM coupled with the operation of the satellite hookup providing network feeds to the equipment has reduced the duties of the staff newsperson to 3 hours a day. The record discloses that Freer assumed the news department -duties on a contract basis sometime in Sep- tember 1983, and it was also sometime in the same month that the Respondent's satellite hookup with the network became operational. As with the sports coverage, Re- spondent expanded its network coverage at the expense of the local news through the,use of this new equipment. Thus, the testimony of Fabos and the description of Freer's duties (stipulated by the parties), reveal that for 3 hours each day he performs much the same work previ- ously performed -by Snow but on a more limited scale and that the use of network through the automated equipment has been greatly expanded; either to go di- rectly through the automated equipment when broadcast by the or recorded on tape for programing into the com- puter for later at a convenient time. Accordingly, I find Respondent has established by suf- ficient objective evidence that the duties of the news de- partment full-time staff person have been reduced to 3' hours a day, and that this position is no longer the same as or substantially equivalent to the position, previously held by Snow. Since Respondent has failed to establish with specificity the exact datethat the expanded network coverage occurred in September 1983, 1 find, as in the case of the sports director, that the entire month of Sep- tember is to be included in determining Respondent's backpay and reinstatement obligation. I further find, that the letter sent to Snow on May 19, 1983, by Respondent's attorney is not a valid offer of re- instatement which would toll Respondent's obligation to this claimant Having found that the record evidence es- tablishes that it was not until after September 1983 that the duties of the staff news person were drastically cur- tailed by the operation of the automated equipment and expanded use of network coverage, it is clear that this letter, stating the same or equivalent position was not available in May and inviting Snow to update her em- ployment application, fails to satisfy the requirements of a valid offer of reinstatement. See Polynesian Cultural Center v. NLRB, supra. On the basis of the above, I find Respondent's backpay obligation to Snow to be as follows: Second Qtr. 1982 $2,850.00 Third Qtr. 1982 3,375.00 • . Fourth Qtr. 1982 2,573.53 First Qtr. 1983 2,851.24 Second Qtr 1983 - 1,693 32 Third Qtr. 1983 0 $13,343.09 -On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed26 211 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Continued KSLM-AM & KSD-FM ORDER The Respondent, Holiday Radio, Inc., d/b/a KSLM- AM and KSKD-FM, its officers, agents, successors, and assigns, shall make whole the following named employ- ees by payment to them of the sums of money set forth. opposite their names, plus interest computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977),27 less withholdings required by Federal or state law. In addition, Respondent shall pay to employees Tim Order shall , as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 27 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) 1355 Conner and Marlene Hamilton any additional backpay, plus interest, accruing after' the third quarter of 1983 until such- time as Respondent fully complies with the Order adopted by the Board and not contested by Re- spondent in the underlying unfair labor practice proceed- ing, plus interest, by making a valid offer of reinstate- ment to these two employees. Brian Schreiber • $3,486.90 Carl Grossenbacher 1,846.67 Daniel Van Meter 14,990.05- Tim Conner 15,430.95 Marlene Hamilton 20,879.91 Landra Snow 13,343.09 i C,