Central Broadcast Co.

CENTRAL BROADCAST CO. Central Broadcast Company and United Food and Commercial Workers Union, Local 73R, AFL- CIO, CLC. Cases 16-CA-10432 and 16-CA- 10453 23 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND STEPHENS On 30 June 1983 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record' in light of the exceptions and brief and has 1 After Issuance of the judge's decision in this case the Respondent filed a motion requesting that the Board take judicial notice of certain newly discovered evidence or in the alternative reopen the record so that the Board could consider such evidence. The Respondent would offer into evidence decisions of the Equal Employment Opportunity Commis- sion and the Oklahoma Human Rights Commission finding that there is no reasonable cause to believe the Respondent engaged in discriminatory practices against employee Fru Fru Reed (Partin) The Respondent's motion is denied These agencies' determinations were rendered under statutes with different definitions, policies, and purposes from those of the National Labor Relations Act The Respondent does not show that the unfair labor practice allegation as to Reed's layoff was considered, or could have been considered, by either agency Our decision and that of the judge must be based on an independent consideration and evaluation of the evidence received in this proceeding The Respondent's motion and accompanying documents indicate that the decisions of the Equal Employment Opportunity Commission and the Oklahoma Human Rights Commission are dated 30 and 13 June 1983, re- spectively The unfair labor practice hearing in this matter closed on 21 October 1982 The Respondent delayed filing its motion to reopen the record until 6 September 1983 Absent an explanation for this delay, we conclude that it provides additional grounds for denying the motion. See Bobo Drainage, 242 NLRB 728 fn. 1 (1979) ® The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings At the hearing the Respondent submitted a tape recording containing a barely audible conversation between employee James Peters and the Re- spondent's president William Payne in Payne's office on 4 May 1982. The judge was unable to locate this conversation on the tape and therefore did not consider it in determining Peters' credibility as a witness The judge did, however, consider a transcript of the conversation We have listened to the entire tape and find no basis for reversing the findings with respect to Peters' credibility In its exceptions the Respondent contends, inter aha, that the judge's conduct of the hearing displayed bias against it We find no merit in this exception Careful review of the record shows no statements, findings, or other evidence indicating bias or prejudice on the judge's part The judge inadvertently omitted from the list of employees in the bar- gaining unit James M. Mitchell, who both the Union and the Respondent stipulated is a member of the unit The judge also inadvertently omitted from his Conclusions of Law his finding, which we adopt, that the Re- spondent violated Sec 8(a)(3) as well as Sec 8(a)(4) of the Act by chang- ing the working conditions of James Mitchell and by laying off Mitchell and Joseph Findlay We will amend the Conclusions of Law accordingly. These madvertencies do not affect our decision 501 decided to affirm the judge's rulings, findings 2 and conclusions3 as modified.4 We agree with the judge's findings that the Re- spondent violated Section 8(a)(1) of the Act by making several coercive and threatening statements during the Union's organizing campaign.5 We also agree that the Respondent violated Section 8(a)(3) and (4) by changing the working conditions of an employee and then laying him and another employ- ee off because of their union activities and because they testified for the Union at the representation hearing. We further agree that the Respondent vio- lated Section 8(a)(5) by unilaterally changing the bargaining unit employees' working conditions and violated Section 8(a)(3) by permanently laying off all eight employees who were union adherents.6 1. We find merit however in the Respondent's exceptions to the judge's 8(a)(1) findings with re- spect to certain statements of Company President William Payne. On 16 April 1982 the Union had advised Payne that it represented a majority of the employees in the unit of announcers employed at the Respondent's radio station and requested recog- I The Respondent installed an automated broadcasting machine on 15 May 1982 and between 14 and 17 May permanently laid off employee Peters and seven of the remaining eight unit members who had signed authorization cards On 21 May Company President William Payne asked employee Jay Coomes whether he had told Peters that the machine had been taken out Coomes replied that he had not Payne then said "those guys [referring to the laid-off announcers] were only hurting themselves," and that he wished someone "would get the message through to them that they should get other jobs" We agree with the judge's finding that the announcers were unlawfully laid off and that Payne's statement vio- lated Sec 8(a)(1) of the Act Given the Respondent's virulent union animus and the discriminatory nature of the layoff of the announcers, the obvious import of Payne's statement was that as long as the laid-off em- ployees supported the Union, they should look for work elsewhere The record contains no evidence supporting a contrary interpretation. Conse- quently, there is no basis for concluding that Payne was merely stating a rule requiring mitigation of backpay and, therefore, it is irrelevant that Payne's remark arguably may mirror such a rule. 4 The judge found that the Respondent's bargaining obligation arose on 16 April 1982, the date on which the Union attained majority status and demanded recognition The Respondent, however, did not embark on its course of unlawful conduct until 20 April 1982. It was at that time that the bargaining obligation arose Kroger Co, 228 NLRB 149 (1977), see also Trading Port, 219 NLRB 298 (1975) Accordingly, we shall order bargaining from that date Member Dennis agrees with the judge that the Respondent's hallmark violations of pervasive effect, particularly the permanent layoff of eight of the nine unit employees, are "outrageous" within the meaning of the first category of NLRB P. Gissel Packing Co, 395 U S 575 (1969), and warrant a remedial bargaining order See her concurring opinion in Re- gency Manor Nursing Home, 275 NLRB 1261 (1985) As she explained in her Regency Manor concurrence, Member Dennis does not believe it ap- propnate to consider mitigating developments in cases falling within the first Gissel category 6 We agree with the judge 's findings that the Respondent violated Sec 8(a)(1) based on Program Director MacKinnon's statement to employee James Peters that the Respondent's counsel had stated that "the ugly head of unionism had arisen and the station would have to do what- ever necessary to solve the problem" We do not, however, adopt the judge's reliance in part on PPG Industries, 251 NLRB 1146 (1980) 6 We find it unnecessary to pass on the judge's finding that the Re- spondent's layoff also violated Sec 8(a)(5) because imposing the remedy for such a violation here would be superfluous 280 NLRB No. 56 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nition. On 20 April Payne made a speech to the employees on the subject of unionism. In the midst of explaining his understanding of the representa- tional process Payne remarked , "[I]f a strike is called, and a picket line were used, the economic impact upon this station would prove disastrous." Later in his speech Payne said: The only weapon a union has is the use of a strike and, from my point of view, everyone loses in a strike except the union organizers. Those on strike lose wages, the company loses profits, and the union officials get paid just the same. Now, I am not saying that a strike is in- evitable, but I am saying that a union has no possible way of guaranteeing to anyone that for the dues, initiation fees, fines, assessments or whatever it may cost to be a member that they can deliver with certainty anything. Payne similarly stated in his 23 April letters to announcers Reavis and McNatt the following: The outside organizer CAN'T LOSE! His salary goes on no matter whether the econom- ics require layoffs or strikes resulting in NO INCOME. I am not saying that we would be faced with a strike inevitably, but I have never heard of a strike in a non-union business. When Payne closed his speech by explaining his view that unions cause dissention among employees he stated: Incidentally, while it is on my mind, I want to tell you about a report that I read the other day of all the suffering, all the losses and the problems the airlines are suffering-be aware of that-some are on the verge of going out of business. Airlines that have had prominent names all during the years and yet one airline stands out above all the rest without any com- plaint about not making a profit. Without any complaint about making work harmoniously or without conflict and that airline is Delta Air- lines. It isn't an accident. I believe that it is the one big airline and the only big airline that doesn't have a union. The judge found that Payne's statements drew a subtle connection between unionization and loss of job security and thereby were violative of Section 8(a)(l). An employer is entitled to present its negative views on unionism as long as it does not do so in a manner that threatens its employees with retalia- tion. This right is recognized in Section 8(c) of the Act.7 Accordingly, only where the employer's statements constitute a threat to retaliate against its employees for supporting the union or a promise of benefit for refraining has the employer crossed the line separating permitted campaigning from pro- scribed threats. We do not believe Payne's state- ments caused the Respondent to cross that line. Payne's statements concerning strike activity and the poor economic performance of some unionized airline companies do not predict strikes and bank- ruptcy for the Respondent and a resulting loss of employment for its employees. Those events were carefully portrayed as not inevitable, but merely possible, results of unionization. Thus, Payne did not predict adverse consequences in such a manner that he was obligated to phrase them "on the basis of objective fact to convey [his] belief as to demon- strably probable consequences beyond his con- trol." Moreover, Payne's statements do not in any way intimate that the Respondent would force a strike or close its station in punishment for its em- ployees supporting the Union. Accordingly, in the absence of any threats of retaliation we find that Payne's statements in his 20 April speech and 23 April letters did not violate Section 8(a)(1) of the Act.9 2. The judge also found that the Respondent's program director MacKinnon interrogated an- nouncer James Peters in violation of Section 8(a)(1) on 13 and 18 May 1982. We agree that MacKin- non's questions were coercive within the meaning of Rossmore House, 269 NLRB 1176 (1984). On 13 May MacKinnon approached Peters at the Respondent's radio station and stated to him that they "had better meet for lunch." Previously, on 20 and 22 April, Peters had met with MacKinnon at a nearby restaurant at MacKinnon's request. MacKinnon confided to Peters at both these meet- ings management's views and plans regarding the Union's organizing campaign, which had begun in mid-April. MacKinnon learned of this information in supervisors' meetings and in personal conversa- tions with Company President Payne and other management officials. At each lunch meeting MacKinnon updated Peters on management's plans to avoid unionization. At the 13 May meeting MacKinnon warned Peters that Payne had decided to use automation as a method of avoiding unionization through dismis- 7 NLRB v. Gissel Packing Co, 395 U S. 575, 618 (1969) 8 395 US . at 618. See also NLRB v. Shenanigans, 723 F.2d 1360, 1368 (7th Cir. 1983), NLRB v Berger Transfer & Storage Co., 678 F.2d 679, 690 (7th Cit. 1982) 9 In light of the Respondent's numerous unlawful threatening remarks, Member Dennis finds it unnecessary to pass on whether the Respondent's speech and letters constituted illegal threats inasmuch as such a finding would be merely cumulative CENTRAL BROADCAST CO. sal of the unit employees. He further warned Peters that Payne would be installing automated broadcast equipment imminently and that Payne wanted the firing of the announcers to coincide with the close of the pay period on 15 May. MacKinnon told Peters that he had better "do something." "What about this Union?" he asked, "How strong and tough is this Union of yours?" The Respondent did in fact install an automated broadcast machine on 15 May and permanently laid off Peters and the seven other announcers be- tween 14 and 17 May. On 18 May MacKinnon called Peters and asked, "Well, when are you going to hit me with an injunction?" Peters testi- fied that MacKinnon and he had previously talked about injunctions and that MacKinnon had advised him, on the basis of MacKinnon's experience as a deputy sheriff, that an injunction could be obtained in labor-management disputes . Peters also testified that MacKinnon had mentioned to him that an in- junction had once been granted against a Boston television station. MacKinnon's question on 13 May concerning the Union's strength was asked in the context of a con- versation involving other unfair labor practices, in- cluding a discussion of the Respondent's intention to use automation as a pretext for the Respondent's unlawful layoff of the employees supporting the Union. Further, the questioning of Peters on 18 May as to when the Union would file an injunction against the Respondent was an impermissible in- quiry into internal union affairs and strategy in re- sponding to the unfair labor practices. Moreover, this question was asked in a coercive setting inas- much as the conversation took place only days after the unlawful permanent layoff of Peters and other employees for their union activities.10 Ac- cordingly, we find that the Respondent's interroga- tions of Peters on 13 and 18 May 1982 violated Section 8(a)(1). AMENDED CONCLUSIONS OF LAW 1. Delete Conclusion of Law 3(k). 2. Delete Conclusion of Law 9(c) and reletter Conclusion of Law 9(d). 3. Substitute the following for Conclusions of Law 5, 8, and 9(a), respectively. "5. By requiring James M. Mitchell to engage in work which he had not done previously, which was less skilled than his regular position as a pro- fessional newsman, by assigning him a split shift 10 Member Johansen finds that MacKinnon's questions were not coer- cive They were an outgrowth of earlier, friendly conversations between the two which have not been found unlawful, occurred off the Respond- ent's premises in a neutral setting, and did not seek information which could be used against union supporters 503 which caused him an increase in travel expenses, and by terminating him and Joseph W. Findlay Jr. because of their union activities and their testimony at a representation hearing conducted by the Board, the Respondent thereby violated Section 8(a)(3), (4), and (1) of the Act. "8. At all times since 20 April 1982 the Union has been and is the exclusive representative of the employees in the unit described above for the pur- pose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. "9(a). On or about 20 April 1982, and thereafter, refusing the Union's demand to recognize and bar- gain with it as the exclusive representative of the employees in the unit described above." ORDER The National Labor Relations Board orders that the Respondent, Central Broadcast Company, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that the Respondent's counsel or any other agent of the Respondent said that the ugly head of unionism had arisen and that the Respondent would do whatever was necessary to solve the problem. (b) Telling employees that the Respondent's president, counsel, or any other agent of the Re- spondent said that the Respondent had no intention of bargaining with United Food and Commercial Workers Union, Local 73R, AFL-CIO, CLC even if it won an election. (c) Telling employees that a change in their hours and duties was intended by the Respondent to cause employees to quit. (d) Telling employees that an employee who had engaged in misconduct would not be fired because he was the Respondent's only possible "No" vote in a forthcoming Board election, and that the Com- pany might need him; and telling employees that this was the policy of the Respondent's president. (e) Telling employees that the Respondent's president said he was going to show Tulsa how to handle unions and, in connection with a forthcom- ing Board election, that there would be no employ- ees left and nothing to negotiate about. (f) Telling employees that a company supervisor had recommended that all bargaining unit employ- ees be fired. (g) Coercively interrogating employees concern- ing their union sympathies and activities. (h) Offering employees economic or other bene- fits as an inducement to cease engaging in union 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, and telling employees that a supervisor had recommended such an offer. (i) Asking employees when the Union is going to file an injunction against Respondent, or otherwise interrogating employees concernng the Union's liti- gation strategy. (j) Telling employees that the union adherents who had been permanently laid off were only hurt- ing themselves, and that someone should tell them that they should get other jobs. (k) Telling employees that discriminatorily laid- off employees would never come back to work for the Respondent again, and that the Company would fight it no matter how long it took. (1) Telling employees that the Respondent had a new hiring policy whereby applicants for employ- ment would have to agree not to become involved in union activities. (m) Discouraging membership in United Food and Commercial Workers Union, Local 73R, AFL-CIO, CLC, or any other labor organization, by permanently laying off employees, by construc- tively discharging them, or by changing their work to more onerous and undesirable work entailing in- creased travel expenses because of their union ac- tivities or by discriminating against them in any other manner with respect to their hire, tenure of employment, or terms and conditions of employ- ment. (n) Permanently laying off employees, changing their work to more undesirable and onerous work entailing increased travel expenses, or otherwise discriminating against them because they have filed charges or given testimony under the Act. (o) Refusing to bargain collectively concerning rates of pay, hours, and other terms and conditions of employment with the aforementioned Union as the established bargaining representative of its em- ployees in the following appropriate unit: All regular full-time and regular part-time on- air announcers and news department personnel employed by the Respondent at its radio sta- tion KTFX-FM in Tulsa, Oklahoma, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. (p) Unilaterally changing the regular hours, duties, and working conditions of its employees, as- signing new duties, changing the method whereby work is to be accomplished, limiting certain work to specified hours of the day, requiring that over- time work first be cleared with management, and requiring employees to specify the exact hours worked in each day, without notice to the Union and an opportunity for it to bargain over such mat- ters. (q) Unilaterally installing a sequencer at its sta- tion, or any other equipment affecting the hire, tenure of employment, or terms or conditions of employment of its employees in the unit, without giving notice thereof to the Union and affording it an opportunity to bargain over the effects of its de- cision to install such equipment upon the employ- ment of the employees in the unit. (r) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer James M. Mitchell, James C. Peters, Joseph W. Findlay Jr., Fru Fru Reed, Bob Reavis II, Rodney McNatt, and Jay T. Coomes immediate and full reinstatement to their former positions, in- cluding in the case of Coomes part-time announc- ing and part-time sales work, or, if any such posi- tions no longer exist, to substantially equivalent po- sitions, without prejudice to the seniority or any other rights or privileges previously enjoyed, dis- charging, if necessary, any employee hired to re- place any of them, and make them and Barry Robb (who was unlawfully laid off and returned to work) whole for any loss of earnings any of them may have suffered by reason of the Respondent's unlawful permanent layoffs of them about 15 May 1982, and, in the case of Coomes, by reason of its further unlawful constructive discharge of him on 20 May 1982, and 4 June 1982, in the manner de- scribed in the remedy section of the judge's deci- sion. (b) Make James M. Mitchell whole for the addi- tional travel expenses incurred by him as a result of the Respondent's discriminatorily assigning him to a split shift and, upon his acceptance of an offer of reinstatement, reassign him to his former work to the extent that it is available, discharging, if neces- sary, any employee hired to do such work and, to the extent that such work is not available, to sub- stantially equivalent work. (c) On request, recognize and bargain in good faith with the above-named Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. The bargaining prescribed by this Order shall be conducted retroactively to 20 April 1982. (d) On request, bargain with the Union over the effect of its unilateral installation of a sequencer, the unilateral change in its employees' hours, duties, and working conditions, its assignment of new duties, the change in the method whereby work was to be accomplished, the limiting of cer- tain work to specified hours of the day, the re- CENTRAL BROADCAST CO. quirement that overtime work first be cleared with management, and the requirement that each em- ployee specify the exact hours worked in each day. (e) Notify the Union of any forthcoming decision to purchase equipment affecting the hire, tenure of employment, or terms and conditions of employ- ment of the employees in the unit described above, or any pending decision to lay off, otherwise termi- nate, or reassign such employees, and afford the Union an opportunity to bargain concerning any such decision's effects on the aforesaid employees. (f) Expunge from its personnel records, or other files, any reference to its discrimination against the employees described above and notify each such employee in writing that this action has been taken and that evidence of his or her unlawful layoff, constructive discharge, or discriminatory reassign- ment will not be used as a basis for future person- nel action against him or her. (g) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (h) Post at its radio station in Tulsa, Oklahoma, copies of the attached notice marked "Appen- dix."" 1 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. " If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 505 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT tell employees that our attorney or any of our officers said that the ugly head of un- ionism has arisen and that we will do whatever is necessary to solve the problem. WE WILL NOT tell employees that a change in their hours and duties was intended to cause them to quit. WE WILL NOT tell employees that other employ- ees' engaging in misconduct will not be fired if they are our only "No" vote in a Board election, or that this is the policy of the Company's president. WE WILL NOT tell employees that the Compa- ny's president said that he was going to show Tulsa how to handle unions, and that after a Board elec- tion there would be nothing to negotiate about. WE WILL NOT tell employees that a supervisor recommended the firing of all bargaining unit em- ployees. WE WILL NOT offer employees economic or other benefits in return for their refraining from en- gaging in union activities, or tell employees that a supervisor had recommended such an offer. WE WILL NOT coercively interrogate employees concerning their union sympathies and activities. WE WILL NOT ask employees when the Union is going to file an injunction proceeding against us, or otherwise interrogate employees concerning the Union's plans. WE WILL NOT tell employees that union adher- ents who have been permanently laid off are only hurting themselves, and that someone should tell them that they should get other jobs. WE WILL NOT tell employees that discriminatori- ly laid-off employees will never come back to work for us, or that we will fight it no matter how long it takes. WE WILL NOT tell employees that we require ap- plicants for employment to agree not to become in- volved in union activities. WE WILL NOT discourage membership in United Food and Commercial Workers Union, Local 73R, AFL-CIO, CLC, or any other labor organization, by permanently laying off employees, by construc- tively discharging them, or by changing their work to more onerous and less desirable work entailing increased travel expense because of their union ac- 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivities or by discriminating against them in any other manner with respect to their hire , tenure of employment, or terms and conditions of employ- ment. WE WILL NOT permanently lay off employees, change their work to more undesirable and onerous work entailing increased travel expenses , or other- wise discriminate against them because they have filed charges or given testimony under the Act. WE WILL NOT refuse to bargain in good faith with the Union mentioned above concerning the employees in the following appropriate unit: All regular full-time and regular part-time on- air announcers and news department personnel employed by the Respondent at our radio sta- tion KTFX-FM in Tulsa, Oklahoma, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. WE WILL NOT unilaterally change the regular hours, duties, and working conditions of our em- ployees, assign new duties, change the method whereby work is to be accomplished, limit certain work to specified hours of the day, require that overtime work first be cleared with management, or require that employees specify the exact hours worked in each day, without notice to the Union and an opportunity to bargain concerning these matters. WE WILL NOT unilaterally purchase or in- stall a sequencer or any other equipment affecting the tenure of working conditions of our employees in the above-described unit without giving notice to the Union and an opportunity to bargain over any such decision's effects on our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer James M. Mitchell, James C. Peters, Joseph W. Findlay Jr., Fru Fru Reed, Bob Reavis II, Rodney McNatt, and Jay T. Coomes im- mediate and full reinstatement to their former jobs including in the case of Coomes part-time announc- ing and part-time sales work, or, if any such posi- tions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, dis- charging, if necessary, any employee hired to re- place them, and WE WILL make them and Barry Robb whole for any loss of earnings and other ben- efits they may have suffered by reason of our un- lawful layoffs and constructive discharges of them, with interest. WE WILL make James M. Mitchell whole, with interest, for any additional expenses he may have incurred because of our assigning him to a split shift for discriminatory reasons and, on his accept- ance of an offer of reinstatement, WE WILL assign him to his former work to the extent that it is available discharging if necessary any employee hired to do such work, or to substantially equiva- lent work. WE WILL, on request, bargain in good faith with the Union concerning the hire, tenure of employ- ment, and other terms and conditions of employ- ment of the employees in the appropriate unit de-, scribed above, and, if an agreement is reached, embody it in a signed, written agreement. WE WILL, on request, recognize and bargain with the Union over the effects of our prior unilat- eral installation of a sequencer, our unilateral change in our employees' hours, duties, and work- ing conditions, our assignment of new duties, the change in the method whereby work is to be ac- complished, the limiting of work to specified hours of the day, the requirement that overtime work first be cleared with management, and the require- ment that employees specify the exact hours worked in each day. WE WILL notify the Union of any forthcoming decision to purchase equipment affecting our em- ployees in the unit described above, or to lay off or otherwise terminate or reassign them, and WE WILL give the Union an opportunity to bargain with us concerning any such decision's effects on our em- ployees. WE WILL expunge from our personnel records all references to our unlawful actions against em- ployees, and WE WILL notify them in writing that such action has been taken and that evidence of such action will not be used as a basis for future personnel actions against them. CENTRAL BROADCASTING COMPANY Norman W. Eckhardt, Esq., for the General Counsel. Charles A. Kothe, Esq., and Jon K Sargent, Esq. (Houston and Klein, P.C.), of Tulsa, Oklahama, for the Respond- ent. Rex Reynolds and R. Lawrence Roberson, of Tulsa, Okla- hama, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The charge in Case 16-CA-10432 was filed on May 3, 1982,1 by United Food and Commercial Workers Union, Local 73R, AFL-CIO, CLC (the Union). The Union filed the charge in Case 16-CA-10453 on May 14, and an amended charge on May 17 . A consolidated com- plaint issued on June 16. As amended at the hearing, the 1 All dates are in 1982 unless otherwise specified CENTRAL BROADCAST CO. 507 complaint alleges that Central Broadcast Company' (Re- spondent) asked employees about the strength of union support among employees , when the Union would "hit Respondent with an injunction," and what it would take to terminate this support or get the employees to drop the Union, thus implying an economic benefit for such action. Further, the complaint alleges , Respondent told employees that its attorney, its president, or both said that "the ugly head of unionism" had been raised and that the station would do whatever it had to do to solve the problem; that Respondent's president was "going to show Tulsa how to handle unions" and union organizing campaigns; that he was not going to fire an employee be- cause the latter was the only "No" vote Respondent had; and that Respondent had no intention of bargaining if the Union won the election, and "what would there be to negotiate if there were no employees?" The complaint additionally alleges that Respondent told employees to terminate their support for the Union, that one supervi- sor wanted all announcers fired, that if the sales manager had his way everyone involved with the Union would be fired, that an employee's hours were reduced because of his support of the Union, that the employees were only hurting themselves, and that Respondent's president wanted them to get other jobs. Further, the complaint avers, Respondent told employees that it would never rehire any of the (terminated) announcers, that new em- ployees would have to sign agreements not to engage in any union activity, that Respondent's president saw no reason to terminate an employee because he was the only "no" vote and might be needed in the future, that Re- spondent would fight 5, 10, or 15 years, and that there was no way the employees could ever come back to work at the station. The complaint asserts that all such acts were violative of Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint also alleges that Respondent changed the working conditions of employee Jim Mitchell so that they became more onerous and less desirable , and termi- nated Mitchell and employees Jim Peters, Joe Findlay, Barry Robb, Fru Fru Reed, Bob Reavis, Rodney McNatt, and Jay T. Coomes, about May 15,8 because of their union activities, in violation of Section 8(a)(3) and (1) of the Act. Respondent's additional motivation in connection with the above -noted actions against Mitchell and Findlay is alleged to have been retaliation for their testimonies in a representation hearing , thus violating Section 8(aX4) and (1) of the Act. Finally, the amended complaint alleges that the Union represents Respondent's employees in an appropriate unit,4 and Respondent has refused to recognize and bar- 2 Respondent's name is indicated as it appears in the consolidated com- plaint The General Counsel's motion to amend complaint, which adds various 8(ax5) allegations, lists the name as "Central Broadcast Company d/b/a KTFX-FM" (G.C Exh 1(n)) The motion was granted without objection, and the transcript uses the name therein. However, in a related representation proceeding, Case 16-RC-8464, the parties stipulated that "Central Broadcast Company" is the correct name (R Exh. 9, p. 6-7) 1 conclude that the stipulation is accurate and correct the transcript. 3 The complaint also includes "Tom Pepper" as an alleged discrimma- tee This is a radio pseudonym for Rodney McNatt 4 The appropriate unit consists of gain with it, and has unilaterally changed its employees' hours, schedules, and working conditions in violation of Section 8(a)(5) and (1) of the Act. Additionally violative of Section 8(a)(5), according to the amended complaint, was the unilateral termination of the eight employees named above, and the conversion of Respondent's exist- ing programing system to a "totally automated program- ming system" resulting in the replacement of unit em- ployees, without any opportunity to bargain over the ef- fects of its decisions. The complaint concludes that Re- spondent's alleged violations preclude the holding of a fair election. A hearing was held before me on these matters in Tulsa, Oklahoma, during 11 days in September and Oc- tober 1982. On the basis of the entire record, including briefs filed by Respondent and the General Counsel, and my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The pleadings and stipulation of the parties establish that Respondent is an Oklahoma corporation engaged in the operation of Radio Station KTFX-FM in Tulsa, Oklahoma. During the 12-month period preceding issu- ance of the complaint, a representative period, Respond- ent had gross sales in excess of $100,000, of which amount at least $50,000 were received directly or indi- rectly from sources located outside the State of Oklaho- ma. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.5 II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and I fmd that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background KTFX primarily broadcasts what is known as "coun- try music." The Company's president and sole stockhold- er is William H. Payne. He purchased the station in 1977, and is obligated to make payments of $5000 monthly to the seller, and $7000 every quarter to a bank. By 1980 the remaining balance was about $200,000. In 1981 Payne borrowed $185,000 for a new tower and audio equip- ment. Up until about 1981, the station had no competi- tion in the country music field. However, in that year several of the station's top personnel resigned and formed a competitive station. One of Payne's interests was the subject of "automa- tion" of the station. Although this is an engineering term All regular full time and regular part time on-air announcers and news department personnel employed at Radio Station KTFX-FM in Tulsa, Oklahoma, excluding all other employees, guards, watchmen and supervisors as defined in the Act, as amended 5 WHLW, 238 NLRB 1236 (1978), Franklin Parish Broadcasting, 122 NLRB 90 (1958). 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completely explainable only in technical language, the gist of it according to the evidence is that varying types of complex equipment permit automatic programing in different degrees . The more automatic the equipment, the less the station needs announcers to operate it and to intersperse comments between the "tapes" or "cassettes." At the same time, the "live" sound of the station dimin- ishes as the automatic operation increases , i.e., there is more taped music and less live comment. Beginning about 1979, and extending into the begin- ning of 1982, Payne communicated with various individ- uals about the subject of automation of the station, and examined various types of automated equipment . Sales- men urged him to buy their products and cited various advantages. B. The Company's Financial Condition Respondent contends that the alleged discriminatory permanent layoffs in May 1982 were the result of auto- mation of the station, and that the latter was made neces- sary by the worsening economic condition of the busi- ness. The report of the Company's certified public ac- countant shows that it had net income of $22,929.02 for the 12-month period ending June 1981 (G.C. Exh. 34(i), p. 144). Following are the reports for the next 12 months, with the first figure on each line showing the profit or loss for the indicated period while the second figure is the cumulative profit or loss from the beginning of the 12-month period: 2 months ending 8/31/81 -$54,161.29; $54,161.29 (G.C. Exh. 34(1), p. 210). 2 months ending 10/31/81-$22,236.33; $76,397.62 (G. C. Exh. 34(n), p. 270). 1 month ending 11/30/81-$33,264.29; $43,133.33 (G.C. Exh. 34(p), p. 305). 1 month ending 12/31/81-$15,310.14; $58,443.47 (G.C. Exh. 34(q), p. 325). 1 month ending 1/31/82-$16,363.98; $42,079.49 (G.C. Exh. 34(r), p. 364). 1 month ending 2/28/82-$21,493.96; $20,585.53 (G.C. Exh. 34(s), p. 397). 1 month ending 3/31/82-$37,666.72; $58,252.25 (G.C. Exh. 34(t), p. 430). 1 month ending 4/30/82-$23,763.61; $34,488.64 (G.C. Exh. 34(u), p. 459). 1 month ending 5/31/82-$14,220.72; $48,709.36 (G.C. Exh. 34(v), p. 495). 1 month ending 6/30/82-$3693.33; $52,402.69 (G.C. Exh. 34(w), p. 530).6 The General Counsel argues in her brief that Respondent's own records do not show a loss for January. Although a loss of $16,363 98 appears in "the first column, the figure "$42,079.49" (without parentheses) appears in the second column " However, the second column figures represent cumulative totals beginning with July 1981 , and the $42,079 49 represents the net income through the month of January, just as the net income figure for the 12 months ending June 30, 1982, balances out monthly gains and losses during the entire 12-month period. Similar argu- ments by the General Counsel about the February and March figures are also without meet for the same reason However, the general tenor of the General Counsel 's argument is substantiated by the net 12-month re- sults, which show net income for the fiscal year ending June 1982 as more than double the amount for the prior year The accountant, Tim E. Kloehr, stated his opinion that the profit reported for March 1982 was a "fluke" caused by erroneous bookkeeping. This first became apparent to him, he said, in May when the April figures were being compiled, and he discussed the matter with Company President Payne at that time. If the bookkeeping errors had been corrected, the result would have been an ap- proximate $ 14,000 combined net income for March and April. Kloehr and Payne testified to financial difficulties during late 1981 and early 1982, including late payments on notes and accounts payable and to the Internal Reve- nue Service. Kloehr pointed to Payne's purchase of new equipment and to the competition from the new station. He also mentioned an increase in "programming" ex- penses, including announcers' salaries. In February Kloehr testified, he told Payne that the latter would "lose the station" if he did not "do something." The record contains numerous dunning letters from creditors, and the minutes of a board of directors' meeting in Feb- ruary shows that Payne was directed to investigate "au- tomation" (G.C. Exh. 67). C. The Hiring of the Alleged Discriminatees Almost all of the alleged discriminatees were hired or rehired in the first 4 months of 1982. James C. Mitchell testified that he was hired about January 16, 1982, and Company President Payne stated that he was a full-time announcer. I credit this evidence. 7 Rodney McNatt affirmed that he was hired about the second week of February as a part-time announcer and was made a full-time announcer about 3 weeks later. I accept this testimony.8 Bob W. Reavis II applied in late February for week- end employment as an announcer. His application was accepted by Program Director Doug MacKinnons on March 16 (G.C. Exh. 65). MacKinnon told Reavis that the station wanted people who would continue working "for quite a while," not individuals who would be "there one day and gone the next." The program director also said that he was "trying to build a decent sounding radio station." Reavis started working shortly thereafter as a part-time announcer. James C. Peters had been previously employed by Re- spondent and was rehired in mid -March as a part-time announcer. He became one of the leaders of the union movement. His exact date of hiring and Payne's where- abouts at that time are in dispute. The significance of the date is whether, as Payne asserted at the representation hearing, Peters was hired by MacKinnon without any "input" from Payne (R. Exh. 9, pp. 33-34). In a purport- 7 A summary prepared by Respondent indicates that Mitchell was hired February 1 (G C. Exh. 65) However, Respondent's payroll records are prepared bimonthly, and the record for the period ending February 1 shows that compensation was paid to Mitchell on that date , thus indicat- ing that he was hired during January (G C Exh. 33(c)) a Payne testified that McNatt was a part-time announcer. However, Respondent's payroll timesheets show that McNatt worked normal hours on February 14, 15, 20, 21, March 5, 6, and 7, and almost every day be- ginning March 11, thus corroborating McNatt's testimony (G C. Exhs 32(b)-(g)) 9 The pleadings establish that MacKinnon was a supervisor within the meaning of Sec 2(11) of the Act CENTRAL BROADCAST CO. 509 ed factual summary, Respondent contends that Peters was hired by MacKinnon on March 16 (G.C. Exh. 75, p. 3). MacKinnon corroborated this assertion. However, Respondent's payroll timesheets show that Peters worked on March 11, 12, and 14.10 Payne's summary states he was on a trip to "Red River" from March 11 through 14 to set up a "radio show" (G.C. Exh. 75). However, Mitchell testified that Payne left on a trip to Montserrat in the West Indies "about March 14," and that Peters started working a little before that time. Payne stated on cross-examination that he knew Peters was "going to be hired." He contended that he opposed it, but admitted doing nothing at the time. Joseph W. Findlay Jr. was hired by MacKinnon on March 26, while Payne was on vacation." Although Payne returned to the United States on March 30, he did not come back to Tulsa immediately, and the parties stip- ulated that he returned to work on April S. Fru Fru Reed was interviewed by MacKinnon in the last week of February and began work on April 4,12 1 day before Payne's return. Payne's trial notes assert that he was "sick" when he saw "all the people [MacKinnon] had hired" (G.C. Exh. 75). There were only two, Findlay and Reed, and MacKinnon asserted that it was his re- sponsibility to hire. Findlay was made "Production Di- rector" and Reed was assigned as an announcer on the midnight shift because, MacKinnon averred, one was needed. The next hiring was that of Jay T. Coomes on April 16. Respondent's records state that Coomes was hired on January 12 (G.C. Exh. 65). However, Coomes testified that he was interviewed by MacKinnon on April 13, and started work thereafter. This is corroborated in substance by Respondent's payroll records which show that Coomes fast put in 2 hours of work on April 16 (G.C. Exh. 55, p. 2). MacKinnon told Coomes that he was trying to create "a more live sound" at the station. Alleged discriminatee Barry Robb had been hired in August 1981 (G.C. Exh. 65). D. The Organizational Campaign Union organizational activity began shortly after Payne's return from Montserrat. Peters called Union President Nobles about April 7 and requested assistance in obtaining a bargaining agent to deal with management at the station. Nobles expressed his willingness to be of help. Peters spoke to Findlay about the matter, and the two of them met with Nobles and other union officials 10 G.C Exh 32(d). The timesheets are marked for the applicable month, and there are two rows of digits indicating the day of the month-the top row for the first 15 days, and the bottom row for the 16th through the 30th or 31st days Two sheets are thus used each month, and the inapplicable row of days is stricken on the timesheet Both such rows of dates are strtken on G C Exh 32(d), with the hand- written entry, "What's this? S A " I conclude that G C. Exh. 32(d) lists hours worked in the first half of March because the next sheet, G C Exh 32(e), clearly lists hours in the last half of the month Peters is listed by his radio pseudonym, "Moonshine McCloud " II This is established by Findlay's testimony and one of Respondent's documents (G.C. Exh. 65). Respondent contends that Findlay was a su- pervisor, an issue which is considered , infra. i2 This is evidenced by Reed's testimony and Respondent's payroll timesheet, whereon Reed appears under her radio pseudonym, "Robin E Lee" (G C. Exh 32(f)) on April 9. Peters expressed the concern of announcers and newsmen over low salaries, long hours of work, the lack of health insurance and sick pay, "rampant firing" of employees, and "inaccessibility of management" for discussion of these matters . Nobles testified that the em- ployees told him Payne was "erratic," had "some kind of seizure" before leaving the country, and had "threat- ened" employees with the prospect of firings, salary cuts, and automation. Nobles explained the ways of getting the Union recog- nized as the employees' bargaining representative, and gave union authorization cards to Peters . He suggested that Peters and Findlay attempt to get other employees to attend a union meeting. A meeting was held at the union hall on April 14, ac- cording to Nobles. Peters, Findlay, Mitchell, and possi- bly other employees were present. Nobles made his ex- planation of the means of getting union representation. A similar meeting was held on April 18, with attendance by Peters, Mitchell, Findlay, Reavis, Reed, and McNatt. Seven employees signed union authorization cards be- tween April 12 and 18,13 while an additional card was signed about April 20.14 Most of them were solicited by Peters. E. The Union's Majority Status 1. The appropriate unit As noted above, the complaint alleges the appropriate- ness of a unit composed of all regular full-time and regu- lar part-time on-air announcers and news department personnel, excluding all other employees (G.C. Exh. 1(g), p. 12). Respondent's answer as amended at the hearing admits the appropriateness of this unit . "' This is clearly correct. Hampton Roads Broadcasting Corp. (WGH), 100 NLRB 238 (1952). At the related representation hearing,16 the parties stipulated that Peters, Robb, Reavis, McNatt, Reed, Coomes, and James D. Kiehn were announcers who would be included in the agreed-on unit. The parties dis- agreed on the status of Findlay, whom the Petitioner (the Union) would have included, and whom the Em- ployer (Respondent) would have excluded. In addition, the Employer sought to include and the Petitioner to ex- clude Lisa Salley, Anita Seamon, Anne Payne, John For- rester, and Jim G . Beard (R. Exh. 9, p. 127, et seq.). At the instant hearing, Company President Payne added the names of Stephen Jones and Larry E. Mecom as alleged part-time announcers. The complaint also alleges and the answer denies that a majority of the employees in the unit signed union au- thorization cards between about April 2 and 16, and that Is The cards are dated as follows Barry Robb, April 12 (G.C. Exh. 26 (g)); James C. Peters, April 14 (G.C Exh 26(a)); James M. Mitchell Jr., April 14 (G.C Exh 36(c)), Rodney McNatt, April 15 (G.C Exh 36(b)), Joe Findlay, April 16 (G.C. Exh 36(d)), Bob W Reavis II, April 18 (G.C Exh 36(1)); and Fru Fin Reed, April 18 (G C Exh. 36(h)) 14 Jay T Coomes, G C. Exh. 36(e) 15 Respondent's answer contends that the unit is "not applicable under the present method of operation of the station" (G C Exh 1(i), p. 12) 11 I take judicial notice of the proceedings in Case 16-RC-8464 under established Board precedent 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since about the latter date the Union has been the exclu- sive representative of the employees in the unit for the purposes of collective bargaining. 2. Joseph W. Findlay Jr. a. Summary of the evidence Findlay had previously been employed by the station as "program director," from 1978 to 1980, and at that time apparently had supervisory status, including the au- thority to hire and fire. As indicated above, Findlay was rehired on March 26 as "production director." He denied that he retained the same authority. He was salaried and assisted in the preparation of an operations manual which described his position as one where the individual assigns production shifts to other employees, devises logging-in systems, and pinpoints problems areas. "Production" meant the production of commercials to the broadcast over the air. Advertisers presented copy to the salesman soliciting the ad , or the salesman presented his own ideas, and this went to a station copywriter or the "continuity department," which edited the material. Findlay received this and either prepared the ad himself, selecting the appropriate music to go with it, or "as- signed" its preparation to other individuals. The conflict in the evidence is over the nature of these "assignments." At the representation hearing, Company President Payne testified that Findlay could say that he "would like" a certain individual to do a commercial. He could even tell Program Director MacKinnon or Company President Payne to make one. Findlay had not hired or fired anybody. However, if he recommended a hiring, Payne would "listen" to him or "look at it pretty strong." As to a recommended firing, Payne asserted, "I would have to go along with his recommendation." Payne also said that Findlay was on the air as an an- nouncer about 18 hours out of a 40-hour week (R. Exh. 9, p. 40, et seq.). During the instant unfair labor practice hearing, Pro- gram Director MacKinnon said that he heard Findlay tell announcers to complete a commercial by a specific time. MacKinnon was uncertain about the number of times he had heard this . Some of the announcers did not share the same hours as Findlay, and the latter did not see him at all. MacKinnon could reject an assignment from Findlay, as could Payne. Other than the issue of the authority to assign commercials, Findlay did not have any of the indicia of supervisory authority, accord- ing to MacKinnon. Although he could recommend the hiring of an individual, so could other announcers. Asked whether he followed such recommendations, MacKinnon answered, "It depends." Findlay in fact made no recommendations of any kind. He was a "direc- tor," not a "supervisor," according to MacKinnon. At the representation hearing on April 29, Findlay was asked whether he "ordered" or "asked" other personnel to do commercials. "It's a combination," he answered. "I don't order anybody to do anything. That is not a way to get something done. I will ask a person to do a spot for me. There are occasions that they may not have enough time. . . . In that case I would have to ask somebody else to do it, or do it myself" (R. Exh. 9, pp. 150-151). Findlay also said that he was not asked to attend a meeting of supervisors held on April 20. At the instant hearing, Peters gave a more complete description of the process of making commercials at sta- tion KTFX-FM. A "production order" is a "packet of papers" handed to an individual to make a commercial. It includes the client's and salesman's ideas and material from the continuity department or the copywriter (Anita Seamon). Peters received these production orders from Seamon 40 to 50 percent of the time, 30 percent of the time from Findlay, and the rest of the orders Peters simply picked up from his box. Occasionally a salesman would hand him an order directly. Neither Seamon nor Findlay checked with Peters to determine whether the commercial had been produced- they simply listened to the tape. Findlay never ordered Peters to redo a commercial. They had a "working rela- tionship" in which they discussed methods of improving the product. Peters might suggest different music to Findlay, while the latter might advise that Peters "pick up the tempo." Occasionally they would disagree. Asked on cross-examination what he did in that case, Peters an- swered: "Listen to what he had to say, and if I agreed with him, I would do that, and if I didn't, I would do what I wanted to do." MacKinnon corroborated this, stating that announcers would reject a commercial be- cause it was not suitable for them. It was the customer, Peters insisted, who could order a change in a commer- cial if he did not like it. McNatt testified substantially to the same effect as Peters. He received production orders from Seamon in his box. Although Findlay redid one of the McNatt's commercials, the two employees rarely spoke about the subject of commercials. Findlay cor- roborated all of the foregoing testimony. He was not re- sponsible for the work of any other individual, and was merely assisted by them, including his own supervisors, in his primary function of producing commercials. b. Factual and legal analysis It is clear from MacKinnon's testimony alone that Findlay did not have any of the statutory indicia of su- pervisory status. I do not credit Payne's testimony that he would have to "go a long way" with a recommenda- tion from Findlay to fire an employee. According to MacKinnon, Findlay could not effectively recommend the hiring of anybody, and in fact made no recommenda- tion whatever during his brief tenure with the Company. Respondent argues that Findlay should be excluded from the unit as a "switcher director" on the authority of Miami Valley Broadcasting Corp., 70 NLRB 1015 (1946). No such employee classification is listed in that decision. Although the assistant musical director was ex- cluded because he was not on the air, the musical direc- tor was included because of his on-air activities. Payne established that Findlay was on the air as an announcer almost half of his working time. Findlay's "assignment" of commercials consisted in asking other individuals, including company supervisors, to make the commercial. If the supervisors did not want to do so, they rejected the assignments. If some other CENTRAL BROADCAST CO employee was too busy, Findlay did it himself. If Peters disagreed with Findlay, he simply ignored him. The Board has concluded that full-time directors were not supervisors because their authority was "more artis- tic than supervisory," 17 and that producer/directors were included in the unit because their direction consist- ed of "routine technical or aesthetically motivated com- mands" rather than true supervision.18 Findlay did not even have this authority, and I find that he is properly includible in the unit. 3. Larry W. Mecom and Stephen W. Jones Neither Mecom nor Jones was on Respondent's pay- roll from April 16 through 30, a period which included the Union's bargaining demand and Respondent's refusal. Respondent's list of employees shows that Mecom's last date of employment was March 16 (G.C. Exh. 65). The last date that his name appears on Respondent's payroll journal is April 1 (G.C. Exh. 33(g)). His name does not appear on the Company's "Input Sheet for Pay Period Beginning 5/01/82" (G.C. Exh. 55). Payne conceded that the names of all employees employed for the period from April 15 through 30 appeared on this document. Respondent's payroll timesheets show that Jones was employed April 1 and 2, and for no other days in April (G.C. Exhs. 32(f) and (g)). Nor does his name appear on the May 1 "Input Sheet" which, as indicated, contains the names of all employees employed from April 15 through 30 (G.C. Exh. 55). Respondent's list of employ- ees shows his "last day" of employment as April 2 (G.C. Exh. 65). In determining majority status, the Board has excluded employees hired after the demand date. Scott's IGA Food- liner, 223 NLRB 394, 409 (1976), enfd. 549 F.2d 805 (7th Cir. 1977). The same principle applied to employees whose employment terminated prior to the demand date. J. P. Stevens & Co., 247 NLRB 420, 481 (1980). Other- wise an employer with a history of employee turnover could always defeat a claim of majority status by pad- ding the unit with prior employees. The same principle applies to eligibility to vote in an election, since "the Board's test for employees entering and leaving the unit is the clear, objective fact of actual work on the eligibil- ity dates." Roy N. Lotspeich Publishing Co., 204 NLRB 517, 518 (1973). Accordingly, I exclude Mecom and Jones from the unit for the purpose of determining the Union's majority status at the time of the demand. 4. Jim G. Beard Beard is listed as a "Sales Rep" on Respondent 's list of employees (G.C. Exh. 65), and his employee classifica- tion number is "1 82 100," which, Payne testified, "desig- nates sales." He spends most of his time in this work, the Company's president stated at the representation hearing. However, Payne averred, Beard also does "remotes" and "rodeos." A remote is a program prepared outside the studio, and the last one in which Beard participated took place about 2 weeks before the representation hearing. It 17 Taft Broadcasting Co, 226 NLRB 540, 542 (1976) 18 Westinghouse Broadcasting Co, 216 NLRB 327, 329 (1975) 511 involved 16 minutes of airtime prepared at a place of business. Beard also broadcasts rodeos "whenever there is" one according to Payne, citing a certain rodeo sched- uled to appear in town. These are not broadcast in their entirety, but Beard gives short reports during the event. He also broadcasts rodeos elsewhere in the State, but does this for other radio stations. The company president stated at the representation hearing that Beard "used to be on salary," but "elected to go on commission. The reason he does-he gets paid on remotes for the work done. There's a talent fee paid on those." 1 e None of the regular on-air announcers is paid a commission, accord- ing to Payne . Sales Manager Jones gave similar testimo- ny about Beard. I conclude that Beard is a dual-function employee, and operates both as a sales representative and as an an- nouncer. The former function occupies most of his time. His announcing functions are not engaged in on a regular basis, either full time or part time, but, rather are sporad- ic and specialized in nature. Unlike other announcing duties, they are performed outside the studio, and I infer that they do not involve the same degree of contact which other announcers have with other studio employ- ees such as copywriters and the continuity department. Beard is paid on a commission basis, unlike other an- nouncers. Even though Beard performs less than 51 percent of his time in unit work, it would be possible under current Board law for him to have a sufficient community of in- terest with other unit employees to be included in the unit. Berea Publishing Co., 140 NLRB 516 (1963). The announcing work which he does perform is on an irregu- lar part-time basis, and thus does not fall within the agreed-on unit definition of regular part-time announcers. It is arguable whether the degree of irregularity is suffi- cient to exclude him from the unit.20 However, the dif- ferences between his announcing duties and those of the other announcers and the difference in their method of compensation are sufficient to warrant a finding that he has only minimal interests with other unit employees.21 Accordingly, I shall exclude him from the unit. 5. John W. Forrester Payne stated that Forrester, like Beard, is classified as a sales employee. Sales Manager Jones testified that For- 19 Beard's compensation according to Respondent's payroll journal shows a zero after the work "Commission " On the other hand, earnings for the period ending March 15 are the even amount of $750, while the amount for the period ending April 15 is $829 58, suggesting compensa- tion based on other than a flat salary . However, succeeding payroll amounts fluctuate between odd amounts-as low as $147 22-and a return to even amounts, including $750 (G C Exh 33) As the payroll journal is thus inclusive on the issue of Beard's compensation, I credit Payne's testimony. E0 Cf Grimaldi Buick-Opel, 202 NLRB 436, 440-442 (1973); WTAR Radio Corp, 100 NLRB 250 fn 16 (1952) 21 See, e g, the Board's exclusion of a bowling show host who paid a flat fee under contract , worked for other employers, was the only such employee, and did not share the same compensation with other employ- ees in that he was not eligible for fringe benefits Taft Broadcasting Co, supra, 226 NLRB at 5411 See also the Board's exclusion of an employee who spent 70-80 percent of his time on special assignments outside the plant Sumco Mfg Co, 251 NLRB 427, 440 (1980), enfd 678 F 2d 46 (6th Cir 1982) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rester was under his "direction from 8 in the morning until 5." He was paid a salary plus commission, unlike other announcers who do not receive commissions. In addition to his sales work, he was scheduled to do a sports broadcast for 1 minute and 40 seconds, according to Payne. Although Payne contended that Forrester ran over this time limit, he conceded that Forrester's total weekly on-air time was about 7 minutes. The company president at one point said that Forrester gave his sports broadcasts 5 days a week. However, he later said that they were performed "irregularly," and that there were three such broadcasts the week prior to the representa- tion hearing. Peters testified that Forrester was "highly irregular" in meeting his broadcasting schedules. Payne gave ambiguous testimony at the representation hearing suggesting that Forrester's broadcast was not prepared in the same area where other announcers pre- pare their broadcasts. Mitchell and Peters said that it was prepared in the salesroom. There is no indication that Forrester works together with copywriters or the conti- nuity department, as the other announcers do. I conclude that 7 minutes per week constitutes ex- tremely minimal time spent in unit work. For this reason and the other factors set forth above, I find that Forres- ter's community of interest with other announcers is at best fragmentary under the rationale described in the case of Beard, and I shall exclude him from the unit. 6. Lisa Salley Payne testified at the representation hearing that Salley is a university student, and applied for employ- ment in late 1981 "in news and agricultural program- ming." The company president asserted that he told her that he would "let her come in," and that the time would be sometime in May 1982. On the other hand, when Payne was asked on April 29 whether it was his intention to hire Salley, he replied that he had not "told her about this possibility." It was his intention that she would be working 2 hours per day, or less, doing a farm show. Payne did not know whether she would be return- ing to college. Respondent's list of employees shows that Salley was hired on June 1 as a "Farm Show Announc- er," and that her last day of employment was July 31 (G.C. Exh. 65). Her name appears on the payroll journal in June and July (G.C. Exh. 33). Because of the equivocal nature of Payne's testimony about Salley, it is questionable whether her employment had actually been agreed on prior to the date of the Union's demand. In any event, even if this were the case, "[i]t would obviously be unreasonable to make the Union's status on the demand date turn on authorization by [Salley] . . . who, so far as the record discloses, [was] totally unknown to the unit employees." WCAR, Inc., 203 NLRB 1235, 43 (1973).22 Accordingly, I shall ex- clude her from the unit. xs See also NLRB Y. Sanford Home for Adults, 669 F.2d 35 (2d Cir. 1981), enfg. 253 NLRB 1132 (1981) 7. Anne M. Payne Anne M. Payne is the daughter of William H. Payne, president and sole stockholder of Respondent. She was a full-time college student at the time of the Union's demand, living in another city, Stillwater. Payne said that she called in news reports to the station, but did not know how many she did per week. He also did not know whether she was paid on an hourly or salary basis. The company president was also uncertain whether his daughter appeared live on the air. She did not sign a program log. His daughter "quit" at one time, but Payne did not know the date, and she had not attended any recent meetings of announcers. Mitchell, the news an- nouncer, testified that Anne M. Payne had not called in news reports regularly, although she informed him 2 weeks before the representation hearing that she intend- ed to do so. Mitchell said that only one of Anne M. Payne's reports, 30 seconds in duration, had been broad- cast since January 1982. Mitchell was unaware that she had any duties whatever. Anne M. Payne is listed on Respondent's list of em- ployees as "Sec./traffic/billing/news/Disc Jockey," with a hiring date of May 30, 1980 (G.C. Exh. 65). The pay- roll journal shows that she received $525 monthly from Respondent for the first 5 months of 1982 (G.C. Exh. 33). Program Director MacKinnon said that Anne M. Payne probably reported to her father, and that he saw her 12-15 times between March 1 and May 15 at which times she was either typing or going through files, not announcing. However, Anne M. Payne's name does not appear at all on Respondent's employee payroll time- sheets for the first 4 months of 1982 (G.C. Exh. 32). I do not credit MacKinnon's testimony. Anne M. Payne's registration as a full-time college student in a city other than Tulsa, and the absence of her name from Respondent's payroll timesheets during the first 4 months of 1982 warrant an inference that she did little or no work at the station. In any event, she did no announcing work. In light of William H. Payne's lack of knowledge of the number of news reports that his daughter alleged- ly called in, I credit Mitchell's testimony on April 29 that he had broadcast only one 30-second report from her since January 1982. I infer that Anne M. Payne had a "special relation- ship" with Respondent based on the fact that her father was the president and sole stockholder, and that she did not perform work commensurate with her compensation. I exclude her from the unit because she did little or no unit work and because she was not a statutory employee within the meaning of Section 2(3) of the Act, having been an "individual employed by [her] parent." Scandia, 167 NLRB 623 (1967). 8. Anita Seamon Company President Payne stated at the representation hearing that Seamon began her employment with Re- spondent in mid-February 1982. She first appears on Re- CENTRAL BROADCAST CO. spondent's payroll journal for March 1 (G.C. Exh. 33).23 Asked at the representation hearing what work Seamon performed, Payne replied that "she writes commercials to be put on the air." He initially denied that she had regular air time, and agreed that she was "on the air ir- regularly." "Sometimes she even does some commercials, I guess." Peters testified that Seamon was a copywriter. Occasionally she substituted for announcers who were sick, but she did not have any regular announcing sched- ule. After his initial testimony Payne was asked by the Employer's (Respondent's) counsel: "Is it not true that she regularly does part time announcements?" "That's correct," Payne answered, "and she works more hours than many of our part-time people, at this point." Seamon was deceased at the time of the unfair labor practice hearing. Payne was an evasive witness throughout the hearing. Because of this fact, I do not credit his answer, in re- sponse to a leading question, that Seamon was a regular announcer on a part-time basis. Instead, as he testified initially, and as Peters indicated, she was on the air, at most, only on an irregular basis, doing commercials. Be- cause of this fact she was not properly includible in the unit. WCAR Radio Corp., supra. 9. Conclusions on majority status I therefore find that the appropriate unit includes Peters, Robb, Reavis, McNatt, Reed, Coomes, Findlay, and Kiehn, a total of eight employees. The fifth card, Findlay's was signed on April 16. Reed signed a card on April 18, and Coomes on April 20. The only unit em- ployee who did not sign a card was Kiehn. Respondent states in its brief that only two or, alterna- tively, three cards had been signed prior to the Union's demand letter on April 16 (infra). This argument is con- trary to the testimonial and documentary evidence. Respondent argues that Findlay's card was ineffective on April 16 because he signed it at home, and the Union had no knowledge of it. However, Union Business Rep- resentative Roberson testified that he obtained signatures from a majority of the employees in the unit prior to the Union's demand. I credit his testimony, and infer that Findlay's card, although signed at home, was delivered to the Union.24 Peters testified that he obtained Robb's signature on a card on April 12 (G.C. Exh. 36(g)). He affirmed that he told Robb that he had heard that management wanted to discharge him. Peters also testified that he heard a few days later that Robb had been fired. Respondent argues that Robb therefore was not on the payroll between April 1 and 15, citing General Counsel's Exhibit 33(a). This exhibit lists employees during the payroll period ending January 1, 1982. Robb is listed on the payroll for the period ending April 15 (G.C. Exh. 33(h)), and Re- spondent's compilation of its records shows him as an 23 Respondent's list of employees states that Seamon was a "Copy Writer/pt Disc Jockey," and was employed April 15, 1982 (G C Exh 65) In light of the payroll journal entries, the date of employment given on the list of employees is obviously incorrect 24 Roberson said that he received signatures from a majority of the employees between April 8 and 15 The correct dates are April 12 and 16 1 consider this to be inadvertent error on Roberson's part 513 employee from August 1981 to the date of the hearing without any break in employment (G.C. Exh. 65). I con- clude that Peters' report of Robb's discharge was errone- ous, and that Respondent's argument is without merit. I therefore find that the Union achieved majority status on April 16, the day that Findlay signed his card. F. The Representation Proceeding, the Bargaining Demand, and Respondent 's Reaction 1. The petition and the bargaining demand The Union filed the petition in Case 16-RC-8464 on April 15 (G.C. Exh. 3). The next day, April 16, Union Officials Roberson and Reynolds personally delivered a letter to Respondent's president Payne , informing him that the Union represented a majority of the unit em- ployees and requesting that he recognize it as such repre- sentative (G.C. Exh. 7). Payne thanked them, and said that he would check it out and would get back to them. He did not express any doubt at that time that the Union represented a majority of his employees, according to Roberson's credible testimony. As described above, an organizational meeting was held on April 18. At that meeting, Mitchell, McNatt, Reed, Peters, and Findlay signed a letter addressed to Payne advising him of their organizational activities (G.C. Exh. 8). The following day, April 19, Roberson and Reynolds personally delivered this letter to Payne in the lobby just as he got off the air. He asked the union officials what the letter was about. Reynolds replied that the persons who had signed were the union organizers. Payne then invited them into his office, and they were joined by Sales Manager Paul Jones.2 s Payne asked what was "going on," and Reynolds replied that the Union was or- ganizing a unit of on-air announcers and news personnel. He said that it represented a majority of such individuals and had made a demand for bargaining. Further, Reyn- olds explained, Payne could recognize the Union volun- tarily or wait for Board action on the representation peti- tion. Payne asked the reason that his employees were or- ganizing, and was told that the objective was better wages, hours, and working conditions. 2. Payne's April 20 speech On April 19 Payne advised administrative personnel that he had engaged an attorney at "considerable ex- pense," and that a meeting would be held the following day on the subject of the union movement (G.C. Exh. 9). The next day Payne made a speech to his employees. He described it as a "difficult meeting" occasioned by the union letter claiming to represent a majority of the unit employees. Payne said that he told the union organizer that he doubted in good faith that the Union represented a "true" majority, and that the Board should determine the matter by an election. Payne told his audience that his lawyer had advised him that 3 employees out of 5 voting in a unit of 10 "could legally bind this company 25 The pleadings establish and I find that Jones was a supervisor within the meaning of Sec 2(11) of the Act 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to deal with all the others, and if a strike were called and a picket line were used, the economic impact upon this station would prove disastrous." He referred to losses being suffered by airlines, some of which were "on the verge on going out of business." One airline was making a profit, Delta-it does not have a union, according to Payne. The company president noted a number of things that he was prohibited from doing during the election cam- paign,26 and discussed collective bargaining in great detail. Payne also referred to "unsurmountable [sic] fi- nancial problems" which he said, he had resolved by persuading creditors to allow him to "pay it out," by cutting programing hours, and by cutting salespeople that "weren't producing." "I look at our expenses today," Payne told his employees, "programming and sales and everything else compared to a year ago, even though it is not as good as I would like it to be, it's a whole lot better than it was" (G.C. Exh. 35(a)). 3. The Company's response to the Union's demand-the Union's April 23 letter On April 21, the day following his speech to employ- ees, Payne mailed a letter to the Union expressing his "honest doubt" that it represented an uncoerced majority of his employees, and requesting resolution of the matter as provided by law (G.C. Exh. 12). Two days later, on April 23, notice of the representation hearing was mailed to Respondent (G.C. Exh. 5). On the same day another letter identifying union organizers was personally deliv- ered to Payne. This letter was signed by Reavis and Coomes (G.C. Exh. 11). 4. Payne's April 23 letters On April 23 Payne wrote letters to Reavis and McNatt saying that "it was more than a little disappointing to ob- serve the attitude of a few who have taken on this union organizing campaign as a kind of excitement." I could not have come at a "worse time" for Payne, after the "act of disloyalty" of the individuals who left the station about a year before. The business could not "survive without sound economic and sensible attitudes." Payne said that he was not opposed to unions "as such," but that there were many instances where em- ployees were suffering from loss of jobs because of unions. Payne listed the automotive and airline industries as examples, and said that this was not the time to weaken the organization with strife and discontent. He compared the continuing salary of a union organizer with strife and discontent. He compared the continuing salary of a union organizer with the loss of salary of a striker. "I am not saying that we would be faced with a strike inevitably, but I have never heard of a strike in a non-union business," Payne wrote. The company presi- 26 The transcript of Payne's speech reads in part "Secondly, it is im- portant to interrogate, it is improper, I am sorry, it is improper to interro- gate. Want to make sure I rephrase that Secondly, it is improper to inter- rogate That is to say, to ask any employees if they belong to the Union or why they joined the Union or anything about their union activities that would tend to discourage the rights to organize or not to organize a Union" (G.C Exh 35(a), p 2) The General Counsel characterizes this as a "Freudian slip " dent said that a union could not change anything unless Payne agreed, and could not prevent discipline, dis- charge in times of economic distress, or a change of rules. It could, however, charge dues and fees, require that an employee be fired for failing to pay them, call a strike, and fine members who crossed the picket line. Payne referred to the "minority who really run the show" in unions, and advised his employees to preserve their personal freedom (G.C. Exhs. 14 and 15). Payne testified that he was in fact "strongly opposed" to unionization of his employees. The General Counsel argues that these letters constitute unlawful "brinkman- ship." Although not alleged as a violation, the General Counsel urges that a finding should be made because the letters were received without objection from Respond- ent. 5. MacKinnon's April conversations with Peters a. Testimonies of Peters and Jones Peters testified that Program Director MacKinnon in- vited him to go to lunch about April 20. They went to Denny's restaurant, and a conversation took place. MacKinnon told Peters that he had just attended a super- visory meeting with Company President Payne, General Manager Travis Reeves, Sales Manager Paul Jones, and Legal Counsel Charles Kothe. According to Peters, MacKinnon said to him the Payne and Kothe told the supervisors the Company had no intention of bargaining with the Union even if it won the election. Further, MacKinnon told Peters, Jones asked at the meeting, "Why don't we just fire them all? We don't need them." Kothe's answer to Jones, according to MacKinnon, was that "That would be stupid." Payne asked Kothe wheth- er he could proceed with "necessary job changes"-ac- cording to MacKinnon's report to Peters-and Kothe re- plied that Payne should not do so. Kothe then discussed his role in labor relations which ended with the com- ment, according to MacKinnon, that "the ugly head of ... Unionism had arisen and the station would have to do whatever was necessary . . . to solve the problem." About 2 days later, on April 22 according to Peters, MacKinnon again invited him to lunch at the same res- taurant. MacKinnon said that the "new equipment must be costing Payne a hundred thousand dollars," and that there would be "cutbacks in wages and staff." MacKin- non also told Peters that the station had a "loaded pay- roll," and that he was required "to approve paying Payne's daughter on [his] programming payroll even though they do no work for him." When MacKinnon told Payne that this was "a little unusual," the company president replied, "Well, go ahead and approve it for now. We'll have to figure out something for them to do."27 27 The status of Anne M Payne is discussed, supra, in sec E,7. The company president's other daughter was Kelly G. Payne. MacKinnon testified that he saw Kelly G Payne "very seldom" during the period between March 1 and May 15, "maybe four or five" times When he saw her she was "filing, walking around, talking." Respondent's payroll time- sheet$, which cover the period from January 1 through April 30, do not show any hours worked by Kelly G Payne (G C Exh. 32). The Compa- Continued CENTRAL BROADCAST CO. 515 By letter dated June 12 to the hearing officer in the representation proceeding Respondent's counsel asserted that the comment attributed to him about the "ugly head of unionism" was a "blatant lie" (G.C. Exh. 25). The parties stipulated that Payne, if recalled as a witness, would have denied that he made this statement.28 Jones testified about a supervisory meeting on April 20. He said that it concerned automation, and denied that union activity was considered as a basis for firing employees or proceeding with automation. b. Testimony of Doug MacKinnon On September 17 the General Counsel called Program Director MacKinnon as a witness under the provisions of Section 611(c) of the Federal Rules of Evidence. Mac- Kinnon testified that, about April 20, he had a conversa- tion with Company President Payne, Sales Manager Jones, General Manager Reeves, and Attorney Kothe. The meeting possibly lasted from an hour to an hour and a half. A "lot of things were said," according to Mac- Kinnon, but all that he could remember was that the su- pervisors were told "how to behave in a manner befit- ting management." MacKinnon also testified that Payne talked to him about the Union "a few times" between January 1and15. On October 20 Respondent's counsel stated that he had received an envelope addressed to "Mr. Charles Kothe and Jon Sargent, Personal." Inside the envelope was a letter on Respondent's stationery dated October 18, not addressed to anyone. It is clear from the record that it came from MacKinnon. The letter reads as fol- lows: In the interest of justice and the continued subter- fuge by Bill Payne at KTFX, enclosed are a few in- cidents of interest to both Mr. Kothe and the Union. I wish to be released from KTFX with the balance of my salary due me as per Bill Payne agreed to when he hired me, $24,000 per year. The balance is $7,173.36 after taxes. Unless I receive this money due me I shall contact Mr. Eckhardt, attor- ney for the Union [sic], and present these statements to him and will testify to the truthfulness of the statements contained within. I wish to leave the city immediately with the salary due me in order to ny's financial records show that she was paid $560 per month for the first 6 months of 1982 (G C Exhs 34(r), p 385, p 419, 34(s), p 419, 34(t), p 448; 34(u), p 485; 34(v), p 490; and 34(w), p 552) 28 During discussion of the stipulation, Respondent expressed concern about the evidence attributing certain statements to MacKinnon, and argued that "Payne should be able to say that it was or was not true with respect to Mr. Peters' statement concerning what Mr MacKinnon may have said " I rejected this interpretation as contrary to the agreement of the parties on the stipulation Payne was not present during the Peters- MacKinnon conversation on April 20, and thereafter had no direct knowledge of it Accordingly , the stipulation is limited to Payne's denial that he made the statements at the supervisory meeting which were at- tributed to him by MacKinnon during the latter's conversation with Peters at Denny's restaurant about April 20. For similar reasons, the denial of Respondent's counsel that he made the statements attributed to him by MacKinnon does not operate as a denial that MacKinnon made such attribution in his conversation with Peters regain the self respect and professionalism I have lost while working for Mr. Bill Payne.29 Neither party wished to recall MacKinnon after this disclosure. Respondent's counsel stated that he would not believe MacKinnon under oath. He asserted that MacKinnon suggested a polygraph test during the Com- pany's preparation of its case, and then failed to take it himself. The General Counsel said that MacKinnon was not a reliable witness. I recalled MacKinnon under Rule 614(a) of the Feder- al Rules of Evidence, and asked him whether he would like to change his prior testimony. He replied affirma- tively, saying that he talked with Company President Payne about the Union "many times," or 10 times be- tween May 15 and the date of the hearing, rather than "a few times" as he previously testified. He also said that there were eight additional pages to his letter to Re- spondent's counsel, and that they had something to do with his conversations with Payne about the Union. MacKinnon said that he had copies of these pages. Asked to supply them, he declined to do so without legal representation, saying that he feared "reprisals," that his job had gone "down the tube," that Payne owed him money, and that there was "another civil matter down the road." After an extended colloquy about money al- legedly due MacKinnon from Respondent, the former was asked whether, if this amount were paid, he would then fail to "disclose certain conversations . . . with Payne concerning the Union." "In essence, it arrives at that," MacKinnon replied.30 The witness was then advised of his rights under Sec- tion 8(a)(4) of the Act, the possible penalties in the event that the General Counsel sought judicial enforcement of the subpoena with which MacKinnon had been served, and was again urged to make a full disclosure of his con- versations with Payne about the Union. He declined to do so without legal counsel. Such counsel was thereafter obtained.31 On resumption of the hearing MacKinnon was asked whether, in response to questions concerning his conver- sations with Payne about the Union, he wished to invoke his constitutional privilege against self-incrimination. Through counsel he answered affirmatively. 32 I then stated that it would be in the "public interest" to have MacKinnon testify about additional conversa- tions with Payne about the Union, within the meaning of Section 102.31(c) of the Board's Rules and Regula- tions.33 However, none of the parties requested that I 29 The text of the letter appears as stated on the record by Respond- ent's counsel 30 Respondent's counsel denied that there was any explicit arrange- ment to this effect, and none appears from the record MacKinnon also denied that he had any improper "intention " 31 Stanley Monroe, Esq, of the Oklahoma bar 32 There was extended discussion of the subject of MacKinnon's im- munity from prosecution under applicable law if he were ordered to testi- fy, but the claim of privilege was not withdrawn 33 Sec 102 31(c) of the Board's Rules and Regulations reads as fol- lows (c) With the approval of the Attorney General of the United States, the Board may issue an order requiring any individual to give Continued 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommend that the Board issue an order requiring MacKinnon to testify' and, accordingly, he was dis- missed. c. Factual analysis If in fact Company President Payne, Sales Manager Jones, or Attorney Kothe made the statements attributed to them by MacKinnon, this would tend to establish union animus. However, the complaint does not allege statements by Payne, Jones, or Kothe on this issue. Rather, it alleges that MacKinnon said they had made the statements (G.C. Exh. 1(g), pars. 7(a) and (b)). Ac- cordingly, I limit my factual findings to these issues. Peters' testimony is uncontradicted . With respect to a credibility determination of his testimony, the question of whether there was a supervisory meeting and whether Payne, Jones, or Kothe made the statements to supervi- sors attributed to them by MacKinnon are collateral issues. If there were conflicting evidence on what Mac- Kinnon said to Peters, then resolution of the collateral issues might be helpful in determining the substantive issue, i.e., if in fact there had been no such supervisory meeting or, if neither Payne, Jones, nor Kothe had made the statements attributed to them, then it might be argued that it is improbable that MacKinnon would have told Peters that they did so. However, as noted, Peters' testimony was not contradicted. Respondent attacks the credibility of Peters , whom it terms "a professional actor and director [and] the star in this drama." The Company refers to a conversation which Peters had with Payne on May 4 concerning an asserted delay in Peters' receiving his paycheck. Peters had previously filled out a payroll timesheet , but Mac- Kinnon gave him a blank calendar and told him to trans- fer his hours from the timesheet to the calendar. The bookkeeper then told Peters that she needed his specific testimony or provide other information at any proceeding before the Board if, in the judgment of the Board, (1) the testimony or other information from such individual may be necessary to the public in- terest, and (2) such individual has refused or is likely to refuse to tes- tify or provide other information on the basis of his privilege against self-incrimination. Requests for the issuance of such an order by the Board may be made by any party Prior to hearing, and after transfer of the proceeding to the Board , such requests shall be made to the Board in Washington, D.C, and the Board shall take such action thereon as it deems appropriate. During the hearing, and thereafter while the proceeding is pending before the administrative law judge, such requests shall be made to the administrative law judge If the adminis- trative law judge denies the request, his ruling shall be subject to appeal to the Board in Washington , D.C, in the manner and to the extent provided in section 102.26 with respect to rulings and orders by an administrative law judge, except that requests for permission to appeal in this instance shall be filed within 24 hours of the admin- istrative law judge's ruling If no appeal is sought within such time, or the appeal is denied, the ruling of the administrative law judge shall become final and his denial shall become the ruling of the Board. If the administrative law judge deems the request appropriate, he shall recommend that the Board seek approval of the Attorney General for the issuance of the order, and the Board shall take such action on the administrative law judge's recommendation as it deems appropri- ate. Until the Board has issued the requested order no individual who claims the privilege against self-incrimination shall be required, or per- mitted to testify or to give other information respecting the subject matter of the claim [Emphasis added.] The parties agreed with my interpretation of the regulation that an administrative law judge's recommendation to the Board to issue an order must be initiated by a request from a party times in and out of the station-a new requirement. Peters told Payne that he wanted his check that day, and that he had "signed all the bullshit" he was going to sign. Some time later the same day, Payne asked Peters back to the office, and another conversation took place. Peters gave his version of it, and Respondent disagreed, submitting what it contended was a transcript of a tape of the conversation, which assertedly had been recorded without Peters' knowledge (R. Exh. 21(a)). When the General Counsel disputed the transcript, Respondent submitted the purported tape (R. Exh. 21(b)). I have lis- tened to the tape, and it has nothing to do with any con- versation between Peters and Payne . Instead, a female announcer is questioning KTFX listeners about their opinion of a horror show . Respondent also argues that MacKinnon, "an enigma," may have "colluded with Peters to warp the facts to fit" the Union's formula. There is no merit to any of this argument and nothing to affect Peters' credibility. His testimony as to what MacKinnon said was uncontradicted. Peters was a credi- ble witness, and I find that MacKinnon made the state- ments to Peters attributed to him by the latter. 6. The representation hearing and Payne's April 29 speech Mitchell and Findlay testified for the Petitioner at the hearing on April 29. Robb and Peters were also present. Union Representative Roberson affirmed that Payne frowned while Mitchell was testifying, and had a "stem look." Union Official Nobles characterized Payne's de- meanor as "a very hostile glare." When Findlay was tes- tifying, according to Nobles, Payne was "very agitated," and "made some reference that Findlay, who he thought was part of management would come in and testify at such a hearing." Payne also testified at the representation hearing. He described his conversations with various organizations selling automated equipment, characterizing them as "op- tions." He was asked several times whether he had made any decision about automation. The transcript in relevant places reads as follows: Q. Now, have you made a firm decision to make any technological changes at that station , as of this moment? A. I have made a decision to do something about the ecomonic condition the station is in. And if it takes doing that to cure the economic situation the station is in, yes, I would do it. There is at this point a good probability that I will do it [R. Exh. 9, p. 27]. Q. So you have not made a firm decision at this moment, as to what direction you will take at that station, is that correct? A. I think that would be a fair statement [id. at 28-29]. Q. Is there a possibility that you will continue the unannounced version [emphasis added]? A. I don't think so. Q. Is there a possibility that you would not make substantial technological changes at the station? CENTRAL BROADCAST CO. A. I'd say there was a possibility, not much prob- ability, but there's a possibility. Q. You really don't know right now, is that a safe statement? A. I don't know how to answer that, sir. A lot depends on the information that I get from this fourth source. Q. And who is the fourth source? A. ABC Super Radio [id. at 34-35]. Q. What, if any, single reason is there at this time, that prevents you from activating the change of the method of operation to a more automated style? A. There really isn't except that I wanted to take another look at this one other option before I made that decision [id. at 93].35 Payne also discussed the recent hirings of announcers, in the main attributing responsibility for this to Program Director MacKinnon. "I didn't even know we were going to hire anybody," he testified. "In fact, if I had been here, we probably wouldn't have lured anybody, because I knew the financial condition. And being, I guess I'm a poor manager, I'll just admit to that. I didn't, evidently, transmit that strong enough to our program director before I left" (for Montserrat). On the same day as the representation hearing, April 29, Payne made another speech to employees. "This morning we had a hearing downtown," he said, "and I was shocked almost to unbelief what I was exposed to. Four of our announcers showed up as witnesses for the Union. This was no surprise to me but what really blew me away was when Joe Findlay disclaimed his relation- ship as a managing director at this radio station." Payne referred to his "serious financial condition" and told his listeners that for "almost two years" he had been "looking at other options to how we could program this radio station." He said that he had "narrowed that down to four that I hadn't planned on discussing quite yet but was forced to because of this hearing this morning." Payne said that two companies wanted him "to hook up to [a] satellite," while three different tape automation systems had "great track records in much larger cities than Tulsa." The company president averred that he had been "going that direction over a year ago before I ever dreamed or heard of the union." He asked his listeners not to "panic," but said that he was "in business to make a profit and . . . to do whatever it takes to do that in- cluding going to pushing buttons ...." He called the meeting "quickly" because he did not "want the activists to tell [the employees] something that could cause [them] anxiety." "Here is how I understand the timetable, "Payne said. He then set forth the date for the filing of briefs in the representation hearing, and noted that a decision on the unit "should be reached by June 1." Thereafter there 35 At the representation hearing, the Employer moved to stay or dis- miss the proceeding in part on the ground that "arrangements are being made for technological change that would radically alter composition and size of the unit" The heanng officer referred this motion to the Re- gional Director for Region 16 (R. Exh 9, pp 9-10) 517 would be time for appeal, with an election probable in July or August. The company president said that he would do nothing to interfere with his employees' Sec- tion 7 rights, but stated that he was "prepared to stand up to it [the Union] all the way to the United States Su- preme Court, and, folks, that could take five to seven years" (G.C. Exh. 35(b)). 7. Reavis' April 29 conversations with Gail C. Payne and William H. Payne During late afternoon of April 29, the day of the rep- resentation hearing and Payne's second speech to em- ployees, William H. Payne's wife, Gail C. Payne, called Reavis and informed him that he was being laid off be- cause he "didn't have a license book." Reavis drove to the station immediately, said that he did have a license, and asked what was "going on." "I can't talk about it," Mrs. Payne replied. "About what?" asked Reavis. Mrs. Payne responded: "We have been advised by our attor- ney to use that as a reason to lay off anybody connected with the Union." Payne denied telling his wife to say this to Reavis, and denied saying it himself. Mrs. Payne did not testify, and I credit Reavis' uncontradicted testimony that this is what she said to him. He considered Gail C. Payne to be a "part of management" on the same level as William H. Payne.36 Payne walked in and Reavis repeated his statement that he did in fact have a license. Payne told Reavis to put it in the station book, according to Reavis. "You won't be laid off and everything will be just as it was before," the company president stated, according to Reavis' testimony. Payne acknowledged a conversation with Reavis about the latter's license. The company president said that his counsel had advised him that the Union would "turn him in to everybody" if he did not have the announcers' li- censes at the station. 8. The changes in working schedules Findlay credibly testified that in mid-April his working time was changed from 5 days weekly to 6. He com- plained about it to Program Director MacKinnon. On April 26 MacKinnon published a memorandum directing Peters, Findlay, Reed, and McNatt to adhere to a new working schedule to limit their time in production to specified hours for each of them, and to clear any over- time in advance (G.C. Exh. 37). Peters testified that this did not change his hours of announcing, but that it did change the amount of time he spent producing commer- cials. Previously, he had simply worked until the re- quired commercials were produced, engaging in over- time work if necessary. Findlay testified that the April 26 memorandum changed his schedule of hours worked. Mitchell was a full-time newsman and was salaried. Unlike hourly paid employees, he had not recorded his time. Payne noted the considerable time Mitchell was working in February. Mitchell responded that he did not like it, but that his duties required it. On April 29 at the 36 Gail C Payne was elected a director of the corporation on June 1, 1981 (G C Exh 61) 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation hearing, Mitchell testified that he worked 55 hours weekly (R. Exh. 9, p. 134). At 6:30 a.m. the next day, April 30, Payne walked into the newsroom and told Mitchell that the Company could get into "a lot of trouble with the Wage and hour Board people" because of Mitchell's hours of work. The company president also told Mitchell that he was being placed on a straight 40-hour week and handed him a memorandum. This document gave Mitchell working hours which were to be met "to the letter"-he was given a split shift, from 5:30 until 8:30 a.m . and from 3:30 to 5:30 p.m., as news shifts . Further, Mitchell was direct- ed to work 3 hours on May 3 preparing a typewritten format of his newscast . He testified that the split shift constituted a change in his working hours, and was ex- pensive in that it caused him to make an extra trip to and from work. The memorandum further said that Mitchell would be assigned another 3 hours of work daily. It di- rected him to clock in and out on a timeclock which was going to be installed, not to work without clocking in and out, and not to use the station for any personal busi- ness (G.C. Exh. 16). Mitchell further affirmed that one of his functions had been giving the news about gold and silver prices. This function was taken away from him at this time and was assumed by MacKinnon. The Company issued another memorandum dated the following day, which was posted on May 3. Findlay was given specific hours to work and was directed to prere- cord "station sells and immage [sic] one liners" for Mitchell to play. Findlay testified that this constituted a change from his previous live show to a prerecorded basis. The memorandum also directed Mitchell to "work the board" from 12 noon to 3 p.m., playing the tapes that Findlay gave him. Mitchell testified that he had never done this work before at KTFX, that it made him a radio operator instead of a newsman, and that it lowered his status from that of a newsman for which he had re- ceived college training. He received no reduction in pay, but did have to pay more in gasoline expenses because of increased travel. Peters was assigned to be on the air from 8 a.m. until noon, followed by production work only if work was re- quired. The memorandum also announced that a time- clock would be installed for "better business records and [to] maintain a discipline of accurate reporting" (G.C. Exh. 17). The amended complaint alleges these actions to be unilateral changes in the hours and working schedules of Respondent's employees which were violative of Sec- tion 8(a)(l) and (5) (G.C. Exh. 1(n)). 9. MacKinnon's characterization of Mitchell's changed status According to Mitchell, MacKinnon told him, outside Payne's presence, that the change constituted "harass- ment." "Your people ought to know about it so you had better make sure you tell them," the program director told Mitchell. "I think they are trying to frustrate you to the point that you will throw in the towel." A few min- utes later, in the control room, MacKinnon told Peters that the job change was "a way to force Jim [Mitchell] to quit," and said to the latter that it lowered his job status. "It looks to me like Payne is trying to force you out," the program director said to Mitchell . Mitchell's and Peters' testimonies are uncontradicted, and I credit them. The complaint alleges that MacKinnon's charac- terization of the change, as a reduction in Mitchell's "status" and an inducement to "quit," was unlawful (G.C. Exh. 1(g), par. 7(c)). 10. Reed's conversations May 13 and 14 with Payne a. Background Fru Fru Reeds? and James D. Kiehn As indicated above, Reed was interviewed and hired by MacKinnon in the last week of March and began work on April 4. She was an on-air announcer during the midnight to 6 a.m. shift. On April 14 she was given the additional responsibility of preparing a weather broadcast, which added somewhat to her working time. Reed was a union supporter, and a letter indicating her union sympathies and those of other employees was de- livered to Payne on April 19, as set forth above. On May 5 Respondent assigned her additional duties as a public service announcer. About 2 a.m. on April 6, as Reed was performing her announcer's duties, Kiehn came into the studio , sat down on a tall stool behind her, and, as Reed described it, "grabbed [her) from behind and put his arms in front higher than [her] waist." Reed made a "small squeal" on the air and turned off the microphone. Reed told Kiehn not to do this anymore, and testified that she was "quite nervous and shaky." Kiehn seemed upset and bowed his head. Reed had not previously been introduced to Kiehn. About 2 weeks later Reed went to work at 11:45 p.m. McNatt and Kiehn were in the station at that time. It was not Kiehn's shift to work. Reed had to enter the production room, but knocked on the door because it was closed and she could tell that some one was inside. Kiehn said, "Come on in," but Reed refused to open the door because she could see that the lights were out. Kiehn then opened the door, and could be seen from the lights coming off the program board. He had removed his shoes. Reed refused to enter, went to the coffeeroom, and returned, but Kiehn was still there. Reed then com- plained to McNatt, who told Kiehn to leave. Reed testi- fied that she saw Kiehn "stomp down the hall with his head bowed again, like he did about April 6." Reed then entered the production room, and saw Kiehn's shoes on the floor. About 12:30 a.m. on May 8, Reed was performing her announcing duties . She was the only one scheduled to be in the studio and was alone at the time. the glass front door was locked from the inside with the key in the door. Reed heard a tapping on the window, went to the door, and saw Kiehn. Through the glass door he asked to come in, and Reed demanded to know the reason. Kiehn then "jumped up and down and said, 'I have a right to be here. I work here."' Reed told him that he would have to get Payne's permission, and Kiehn "start- 97 Reed stated at the hearing that she was recently marned, and that her last name was "Partin " Her radio pseudonym was "Robin E. Lee." She was also known as "Sunny Ray, the Tulsa Weather Fox " She will be referred to herein as "Reed" for reasons of convenience CENTRAL BROADCAST CO. 519 ed getting mad again. He jumped up and down" and as- serted a right to be in the station . Reed returned to the announcers' room, only to hear a banging from the front office. She returned and saw Kiehn applying a hammer and a chisel to the corner of a window. Reed returned to the announcers' room and called a security service. She told the dispatcher that a fellow employee was coming through the window . Reed was crying at this time. She let the tape which was on the air run out, and the station became silent . Reed then saw Kiehn inside the station. The security dispatcher said that she was calling the Tulsa police , and advised Reed to bar the door to the announcers' room and get a weapon. Police officers then arrived, and demanded that Kiehn either let them in or let Reed out . Kiehn replied, "I'm going to teach her a lesson. This is all because of the Union. I have a right to be here. I work here." He was "screaming," Reed testified. He finally let the police in, and repeated his former statements about the Union and about teaching Reed a lesson. He was accompanied by a girl dressed in a "dirty T-shirt, dirty blue jeans [and with] dirty hair," according to Reed. After interrogation of Kiehn and the girl by the police, Payne arrived. Reed described the events of the evening and Kiehn admitted them. He told Payne and the police that he had come through the window . Payne asked Kiehn what he was doing, and the latter replied that he and the girl had to do a tape for a wedding the next day. Payne told the police to leave , and Reed's mother then arrived. She asked Payne whether he was going to fire Kiehn. Payne replied that he would have to talk it over with his lawyer. A few minutes later, in the announcers' room, Payne told Reed and her mother that he had pre- viously fired Kiehn because he had been "messed up in drugs," had left an establishment without paying a lunch- eon and bar bill, and had engaged in other erratic behav- ior. Reed's mother asked Payne why he rehired Kiehn, and the company president replied, in effect, because Kiehn had had a religious experience. b. "Project Early Settlement" and Reed's conversations with Payne Reed reported to a hospital on the morning after the incident with Kiehn at the station, and was thereafter an outpatient. On the morning of her admission , her mother called Payne and reported that she was in the emergency room and that the hospital authorities requested that she remain away from work. Nobody from the station told her that her absence from work was not excused . During the last week of April, Reed was asked to bring her FCC license to the station . About the end of the first week of May, she was required to fill out an employment applica- tion, approximately 6 weeks after she had been hired. About May 9 Reed initiated proceedings against the Company under local law, and elected a mediation pro- cedure called "Project Early Settlement." A letter was sent to Payne requesting his presence at a meeting, and this took place in the Tulsa City Hall on May 13. Reed, her mother, Payne, and a mediator were present. Reed repeated the events that had taken place, and asked Payne what he was going to do about it. He replied that he was checking into the matter to determine who was really at fault . At the unfair labor practice hearing Payne testified: "My study revealed that I am not sure that he was all that guilty about the whole thing ." He contended that Kiehn had a right to be at the station anytime to "do production." Reed asked Payne why he did not fire Kiehn, and the company president replied : "Why should I fire my only possible `No' vote against the Union, when I may need him in the future?" Payne said that he felt sorry for Kiehn because the employees favoring the Union were "cold" toward him. The company president also averred that Kiehn told him "this whole thing was because of the Union." Reed, her mother, and the mediator had a meeting with Kiehn at City Hall the next day, May 14. Reed asked Kiehn to stop bothering her, and the mediator asked Kiehn to describe what had happened . Kiehn relat- ed events similar to those described above. The mediator asked for an explanation, and Kiehn replied that it was "because of the Union." he spelled the word out-"U-N- I-O-N." "Don't you know," Kiehn asked Reed's mother, "that there have been murders because of unions?" Ac- cording to Reed's uncontradicted testimony, Kiehn ad- mitted that he had "bothered" her, but refused to agree to stay away from her. As the problem was unresolved, at the mediator's sug- gestion Reed, her mother, Kiehn, and the mediator went to a meeting with Payne at the station on the evening of May 14. After a wait of about 2 hours, Payne saw them. The mediator attempted to persuade Payne to resolve the dispute. Reed told Payne that she wanted some form of "security" before returning to work. She testified that she was expecting Payne to fire Kiehn, since he had done so previously . If not, Reed indicated that she would have been satisfied with a transfer to daytime hours, or a security system with an alarm. Payne said that he had been "thinking about different ways to put security into the station," but did not offer a specific plan. He admitted that he knew Reed was dissatisfied, and considered it possible that she would seek union as- sistance. Payne suspended Kiehn on May 10 for 2 weeks. However, as described hereinafter, the suspension was lifted and Kiehn did not lose any working time. The complaint alleges that Payne told an employee that he saw no reason to terminate another employee be- cause the latter was Payne's only "No" vote with the Union, and Payne might need him in the future (G.C. Exh. 1(g), par. 7(d)). The credible evidence supports this allegation. 11. MacKinnon's May 13 conversation with Peters and Findlay MacKinnon approached Peters on May 13 and said that they "had better meet for lunch ." Findlay joined Peters, and the two of them met MacKinnon at Denny's. According to Peters, MacKinnon said, "Well, boys, it looks like the automation is imminent. It is a reality. It could come as early as this weekend . As a matter of fact I think the equipment is coming in Sunday, and he [Payne] wants to fire everybody before that." MacKin- 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD non added that Payne "wanted the firing to coincide with the close of the pay period on May 15th." "Well, that is his plan," Peters replied . "He is going to fight us with automation." "No, it is not a plan," Mac- Kinnon rejoined. "Now this is a reality. This is not theory. The equipment is coming up from Dallas Sunday." MacKinnon said that Payne and Richard Hardy, a station engineer, had gone to Dallas a few days before to check out the equipment. MacKinnon told Peters and Findlay "to do some- thing." "What about this Union?" he asked . Peters in- quired whether Payne was still serious about not negoti- ating with the Union. The program director replied, "Well, yeah, see today he told me he doesn 't care if the Union wins because there won't be any employees left and nothing to negotiate about." Jones said, according to MacKinnon, that everybody in the Union would have been fired if Jones had his way. "How strong and tough is this Union of yours?" MacKinnon asked. "It is pretty tough ," Peters answered. MacKinnon said that he had overheard Payne on the phone remarking that "a couple of more radio stations in the Tulsa area [were] targeted for unionization," and that he was "going to show them how to deal with this union business." MacKinnon told Peters and Findlay that Payne was an "expert" and that he was planning to write a book on how "to fight the unions." Peters and Findlay asked MacKinnon whether Payne was going to pay sick leave to Fru Fru Reed. MacKin- non replied that Payne did not intend to do so, and did not "care how long she lays out." The employees then asked whether Kiehn was suspended . "MacKinnon kind of shook his head," according to Peters and replied "Well, yeah, he is suspended." "Some suspension," Peters rejoined, "[H]e hasn't missed one of his Sunday shifts yet." MacKinnon then stated , "Well, see, he is not ever going to be fired because he is Payne's only 'No' vote." Peters' version of these statements by MacKinnon was corroborated by Findlay, and was not contradicted. Peters also testified that MacKinnon said that Sales Manager Jones "had been egging Payne" to fire all the employees in the bargaining unit . MacKinnon also stated according to Peters that Jones approached MacKinnon and asked what it would take to get the employees to drop the Union. Jones suggested that Peters be given back his morning show and be granted "a little raise." MacKinnon replied that it was "a little late for that now."a s Jones denied telling Payne or MacKinnon that if he had his way everybody in the Union would be fired, and the parties stipulated that Payne, if recalled as a witness, would have denied that he made most of the statements attributed to him by MacKinnon. However, the relevant complaint paragraphs allege, as unlawful, statments made by Program Director MacKinnon to employees, not as Peters asked MacKinnon during this conversation whether he would tell the truth under oath. The program director replied affirma- tively, but said that it would take a five -page letter, or that he would "write a book," according to Peters The reference to the morning show reflects a conflict between Payne and Peters over the latter's assignment to the company president's show when he was in Montserrat, and the later withdrawal of this assignment statements made by Payne or Jones to supervisors (G.C. Exh. 1(g), pars. 7(e), (f) and (h)). As in the case of MacKinnon's statements to Peters about the supervisory meeting on April 20 Peters' testimony, in this instance corroborated by Findlay, is uncontradicted. both Peters and Findlay were truthful witnesses, and I credit their testimonies. 12. Findlay's May 13 conversations with Payne and Jones Findlay described conversations with Payne and Jones on May 13. About 3:45 p.m. the company president told him that he was going to receive an offer from another radio station, saying, "If I were you, I would consider it." "Does this mean I am being fired?" Findlay asked, and Payne denied it. A few minutes later Findlay re- ceived such an offer. A few minutes after that Sales Manager Jones approached Findlay and asked, "What will it take to get everything around here back to normal? Is it a matter of more money? Is it a matter of wanting to express your creativity? Is it you want your ego satisfied? Is it self-satisfaction? What is it?" When Findlay replied that he was in poor financial circum- stances, Jones said that Findlay was worth more money, and that he wished Findlay and Payne could "get to- gether on this deal." Findlay replied that if Payne wanted to talk to him, he should make the approach to do so. Jones acknowledged having a conversation with Find- lay about this time. It took place in his office, and the sales manager told Findlay that the latter had not been doing as good a job on commercials as he had previously done. Findlay pointed out that he had been assigned an air shift. Jones recognized this additional assignment, and asked, "What else can it be?" "Getting along with Bill Payne," Findlay replied. Jones then told Findlay to go to Payne and have "a heart to heart." Jones admitted that he said something about "getting back to normal," but denied that the Union was mentioned, or that Findlay's union activities had anything to do with Jones' request that he improve his performance. He did not deny asking Findlay whether it was a "matter of more money," or telling him that he was "worth more money." Jones' version of this conversation fails to deny any aspect of Findlay's account. It is so close in detail to the latter's averments as to amount to virtual corroboration. Accordingly, I credit Findlay's version. Jones' account seeks to explain his "getting back to normal remark" as a reference to Findlay's alleged decline in quality of com- mercials. This is artificial. In light of the offer to Findlay from another station obviously created by Payne, the evidence of Payne's hostility to the union movement, and his demeanor and statements when Findlay was testify- ing at the representation hearing, it is more likely that Jones' "getting back to normal" question referred to ces- sation of Findlay's union activities. The complaint alleges that Jones asked an employee what would be required to terminate his support for the Union (d.C. Exh. 1(g), par. 7(g)). The totality of the evi- dence, including Jones' "getting back to normal" remark, his inquiry about "more money," and his comment on CENTRAL BROADCAST CO. 521 "getting together on this deal," supports the complaint allegation. G. Respondent's Notice to the Union Respondent's counsel wrote a letter to the Union dated May It. According to Union Business Representa- tive Roberson, it was received on May 15 and the enve- lope in which it came was postmarked May 13 or 14. The letter is datestamped by the Union as received on May 15 (G.C. Exh. 18). Roberson testified that local de- liveries of mail in the Tulsa metropolitan area take I to 2 days. The letter reads as follows: As you know, at the hearing in Case No. 16-RC- 8464 on April 29, 1982, Mr. William H. Payne, owner of all of the stock of the Company, testified about his investigation which commenced approxi- mately one year ago with respect to the acquisition of automated equipment to operate the radio station. The arrangements for the installation of such equipment have been completed. There will be no need for operators after May 15, 1982. Although the law does not require it, and even though your Union has not been designated as the bargaining representative, it seemed to me proper that you be informed of the finalization of the long- pending plans. The Management will make [any] reasonable effort to assist all those who are displaced in getting work elsewhere. In some instances an opportunity may be available for engaging in sales work for the Station on a straight commission basis [G.C. Exh. 18]. Roberson testified that there was no opportunity for the Union to bargain over these matters , since the termi- nations had already taken place , and the Union had no notice that Respondent intended to automate its station or terminate its announcers. H. Interviews of New Applicants for Employment Peters and Findlay credibly testified that they saw var- ious individuals at the station for the first time on May 14. They were interviewed by Payne, and several told Findlay that they had been offered announcing jobs. Payne testified that he interviewed applicants for em- ployment at this time, two of whom, Jim Chase and Mike Rose, were hired . Other individuals were also em- ployed. 1. The Permanent Layoffs All of the employees who had signed union cards were permanently laid off between May 14 and 17. Mitchell was terminated by MacKinnon on May 14 after Mitchell's last newscast. The program director stated that he had been told by Payne to inform Mitchell that his services were no longer needed . No reason was given. "You're kidding," Mitchell said, and MacKinnon replied that he was sorry. Mitchell was given a letter of recommendation. The remaining card signers were permanently laid off by almost identical letters, signed by Payne and MacKin- non, reading in most instances as follows: This is to advise you that you have been perma- nently laid off at KTFX. Thank you very much for your past services. I want you to know that management is willing to make [any] reasonable effort to assist you in get- ting back to work elsewhere. In some instances an opportunity may be available for engaging in sales work for us on a straight commission basis. While your presence is no longer required, please feel free to call us for any assistance desired. Peters was given his letter by MacKinnon at noon on May 15 (G.C. Exh. 19), Findlay at 4 p.m. (G.C. Exh. 44), Reavis at 6 p.m. (G.C. Exh. 49), and McNatt at 9 p.m. (G.C. Exh. 56). Reed received her letter from MacKinnon on Monday morning, May 17 (G.C. Exh. 60), Coomes shortly before midnight on May 17 (G.C. Exh. 48), while Robb's was apparently mailed to him (G.C. Exh. 71). Coomes' letter was withdrawn by Payne as described below. With the exceptions noted herein- after, no explanation was given for the layoffs. Reavis testified that, as he was about to leave the sta- tion after receiving his notice, Payne stopped him and said that he was sorry to see him go, but that Payne had to lay off his staff on the advice of his attorney "because of the Union." Payne denied making this statement. Re- spondent attacks Reavis' testimony, asserting that it is in- credible that Payne would say this. However, Payne did not deny having an exit interview with Reavis, and his testimony on this issue is limited to a flat denial. The record discloses that Payne was a garrulous individual, as well as a rambling and evasive witness. He displayed a proclivity for spontaneous statements on a wide variety of subjects, and it is therefore not unlikely that he made some attempt to explain Reavis' layoff. The latter was an honest and forthright witness, and I credit his testimony that Payne told him on May 15 that he had to lay off his staff on the advice of his attorney because of the Union. As previously related, Reed and others had met with Payne on the evening of May 14 in a fruitless effort to resolve the dispute about Kiehn. Reed and her mother arrived at the station the following Monday morning, May 17, to get her paycheck. MacKinnon gave her the letter. Payne then asked Reed and her mother into his office and said that the Company's action "really didn't have anything to do" with Reed. It was something Payne "had to do." He said that he was going to keep "trying to get security" for Reed, and touted the advan- tages of sales work for her. J. The Allegedly Erased Tapes-the Smoking Issue 1. Summary of the evidence McNatt was relieved at midnight on May 15 by Jay T. Coomes. The latter testified that he tried to play a carpet commercial, and noted that it had been "erased." The station contained equipment which eradicated recorded material from tapes and, according to McNatt, it was 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to do so regularly in order to record new ma- terial. Coomes noted the erasure in the "log." On the evening of May 16, he received a call from Payne assert- ing that 87 tapes containing the voices of Peters or Find- lay had been erased. After a brief episode during which the alleged erasures were said to have taken place during Coomes' shift, the latter established that the erased com- mercial had been played during the prior shift conducted by McNatt. Payne asserted that "80 carts" were erased containing the names of Findlay, Peters, and McNatt. He contended that, on the afternoon of May 15, he saw McNatt "in a very suspicious manner jump into his car" and follow Peters. "They went off somewhere and connived up .. . the erasure of the tapes that night when Mr. McNatt was on the air." Payne averred that McNatt had committed "sabotage." MacKinnon testified that the entire evidence against McNatt, Peters, and Findlay consisted of the fact that one commercial which McNatt had logged as having been played was found by Coomes, on the next shift, as having been erased. McNatt denied that he erased any tapes maliciously, denied having received any charge that he had improper- ly erased tapes, and asserted that he first heard it from Peters during the week following the layoff. McNatt laughed and told Peters that it was "crazy." Peters testi- fied that McKinnon called him on May 17 and said that Payne had called in the police and the FBI about some erased tapes, and that the detective was taking finger- prints. MacKinnon added that "they know whom to sus- pect." Peters stated that he knew nothing about the matter. His last tape erasures had taken place on May 14, and all were in the ordinary course of business to pre- pare the tapes for new material . Peters testified that he felt "threatened" by MacKinnon's statement. The pro- gram director did not ask Peters specifically whether he had maliciously erased any tapes. Findlay denied having erased any tapes or having been accused of doing so. The first time that charges were made , according to Peters, took place during a settlement discussion a few days before the beginning of the unfair labor practice hearing. The General Counsel introduced a letter to Payne dated May 15, purportedly signed by Reavis, Findlay, Mitchell, Reed, Peters, and McNatt. The letter asserts that the layoffs were not made in "good faith," and re- fuses to authorize the use of the prerecorded voices of the signatures for any future transmission by KTFX (G.C. Exh. 20). Payne also advanced smoking in the control room by Findlay and McNatt as additional misconduct on their part. Peters testified that there was a company rule against smoking, drinking, or eating in the control room, and that it was uniformly violated by announcers includ- ing Program Director MacKinnon , who smoked. 2. Factual analysis Respondent's contention that 80 or 87 tapes had been erased is grounded entirely on Payne's testimony. He was not a reliable witness . The possibility that the era- sures took place in the ordinary course of business, or never took place at all, is very real. There is a variation between the report Payne gave at the hearing and the one he gave Coomes, concerning the question of McNatt's voice as having been one that was erased. In addition, no charges were made by Payne against the three employees until just before the beginning of the hearing. Only MacKinnon spoke to Peters, whereas Payne spoke only to Coomes. All that MacKinnon knew was what Payne told him, plus the fact that Coomes had discovered one erased tape. It is unlikely that the em- ployees would have lawfully protested the continued use of their voices on tape, and at the same time would have destroyed them unlawfully. This evidence is far too flimsy on which to base a finding that McNatt, Findlay, or Peters engaged in any misconduct. I credit their denials and find that they did not engage in any. I also find that Respondent did not have any belief, mistaken or otherwise, that they had done so. Payne's assertion about smoking is an obvious pretextual afterthought. K. Respondent's Telegraphic Offers ofEmployment On May 19 the Company sent telegrams to all of the terminated employees except McNatt, Peters, and Find- lay, reading as follows : "There is an opening for routine work and sales available now at minimum wage. Re- quires acceptance within 24 hours." Mitchell testified that he called MacKinnon after receiving the telegram, and that the program director stated that the only work available was in sales at minimum wage. Mitchell replied that he had no training in sales, and rejected the offer. McNatt and Reed testified that they declined the offer for similar reasons. Reed noted that her profession was that of an announcer not a salesperson. Respondent contended that no offers were sent to McNatt, Peters, or Findlay because of their alleged mis- conduct concerning erased tapes and , in the cases of Findlay and McNatt, because of smoking in the control room. L. Barry Robb The only employee who accepted Payne's offer was Robb. Although Robb had signed a union card, his name did not appear on either of the two letters containing the names of union sympathizers , which the Union gave to Payne. One of the Union's charges alleged that Respond- ent discriminated against Robb because he gave testimo- ny under the Act (G.C. Exh. 1(e)). Although Robb ap- peared at the representation proceeding , he did not testi- fy, and there is no 8(a)(4) allegation with respect to him in the complaint. At the instant hearing Payne testified that he "knew that [Robb] had signed a card." He gave a variety of reasons for his knowledge-that Robb's name appeared on one of the two union letters (which was not true), that he saw Robb at the representation hearing and assumed that the employee had signed a card, and that Robb told him so prior to the unfair labor practice hear- ing. Despite the limited nature of the telegraphic offer, Robb was actually continued in employment as an an- nouncer and was thereafter promoted to production di- rector, as is shown hereinafter. CENTRAL BROADCAST CO. 523 M. A Change in Station Programing 1. Payne's purchase of and negotiations for new equipment in 1982 Respondent was operating with old broadcasting equipment, and ordered new equipment from Control Technology, Inc. in February (R. Exh. 11). It was in- stalled in March. MacKinnon and Payne said that it im- proved the sound of the station. Payne asked Findlay his opinion of it in early April, after Payne's return from Montserrat, and Findlay expressed approval. Payne told Findlay that it cost about $125,000, that Payne would have it paid off by mid-July, and that he could charge half his competitors' price for a commercial, give em- ployees a raise, "and still take home $20,000 a month." Payne said that the new equipment gave him the option of being "live" or "recorded." Findlay testified that he had a conversation about May 12 with Richard Hardy, the engineer who had installed the equipment. Findlay asked Hardy whether this equip- ment was "needed for automation." According to Find- lay, Hardy gave a negative answer, saying that it was de- signed for "hands-on use" by "Audiotronics, the people who designed the board." Hardy, a witness called by Re- spondent, testified initially that the equipment was "capa- ble of being automated." However, he acknowledged the conversation with Findlay, giving a slightly different version of it. Hardy grouped the various items which had been purchased as "production room" and "control room" equipment, and said that, had he been making the decision, he would have purchased the production room equipment "because you still have to produce commer- cials even in automation." However, "as a businessman," he probably would not have purchased the control room equipment if an automated system was being contemplat- ed. "But if I was going to automate and be live together, work them back and forth," Hardy testified, "then you would need the console." Payne said that he disagreed. In attempting to establish the purchase as evidence of a decision to automate, Payne said that the automation might "go out," and he would then have to fall back on the board in the control room. The new equipment worked well according to Hardy. Peters testified that the equipment had little to do with automation. Corroborat- ing Hardy, he said that the control board equipment was not necessary for automation. As indicated above, Payne returned from his trip to Montserrat about March 30. He attended a radio station convention in Dallas during the first week in April before returning to Tulsa, and discussed the "ABC Super Radio" concept with Frank R. Call. According to Call, a witness for Respondent, he met Payne in Dallas on April 5 and explained the "Super Radio" system as a 24-hour national radio signal transmitted by satellite stations throughout the country. Payne signed a "binder" for this system, which gave him an option or "first right of refus- al" to have an ABC Super Radio franchise for the Tulsa area. he paid $1 for the option. About a month and a half later, when Call was in California, he received a call from Payne stating that the latter was ready to sign a contract. About May 15, Call met Payne in Tulsa and an agree- ment was executed, subject to approval by Payne's attor- ney. Payne expressed concern about initial outlays. The contract substantially reduced the usual charge for $15,000 in equipment (much of which Payne already had), and ABC waived the first three monthly service fees estimated to be about $2500 each. Since ABC Super Radio featured rock music, implementation for the agree- ment would have meant a change from Respondent's format of country music. Respondent's attorney and member of the board of directors, Paul Kessler, testified that he opposed the change in format and that the board of directors did not approve it. According to Call, he thereafter requested that Payne sign a new contract removing the contingency (requiring attorney approval), and ABC Super Radio paid Payne's expenses for a trip to New York for this purpose. During this trip, Payne asked Call whether the Super Radio equipment was "compatible" with automation. Accord- ing to Payne, ABC Super Radio "pulled the plug" and canceled the entire project. This took place June 17, ac- cording to Payne. He had not signed a new contract. About May 10 Payne and station engineer Hardy went to Dallas to examine a "Shaeffer" automation machine being sold by a firm called "Century 21." It was a used machine, but functioned well in Dallas. Century 21 al- lowed Payne the free use of the equipment for several months, and Payne accepted. It was shipped to Tulsa almost immediately, and Hardy assisted the Century 21 representative in installing it on May 15. Both the func- tioning of the machine and its operation caused prob- lems, however. The Century 21 representative was unable to correct its technical deficiencies within the first few days after its arrival, while inexperienced operation resulted in "overlaps." Hardy stated that some of these problems could have been avoided if the station had taken about 1 week to learn the new machine. According to Coomes, who operated it, the automation device was programed incorrectly by Anita Seamon with Payne's as- sistance. After about 3 days, on May 18, Payne ordered the Shaeffer machine returned to Century 21. Peters tes- tified that he had previously worked with a Shaeffer system, and that it was normally tested I to 2 weeks before operation. A few days later, Respondent received a "sequencer" from Control Technology, Inc. This item had been part of the station's February order with that firm, was not then available, and had been back-ordered. It was to be used in conjunction with the equipment ordered from Control Technology. Station engineer Hardy described the Shaeffer system and the sequencer as "brains," the former being a "smart brain," and the latter a "dumb brain." The Shaeffer ma- chine included "a microprocessor control system. It is a software system and it has the ability to an extent to think for itself, make decisions at any point in time with- out the aid of a human being." The sequencer on the other hand can do "basic switching functions and basic decision functions but it does not have the ability to think for itself." The Shaeffer system cost about $10,000, and the sequencer about $2500, according to Hardy. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coomes, who had had prior experience with automa- tion machines, described the station operation prior to May 15. There were three reel-to-reel playback units and six tape cartridge machines. The announcer-operator on duty had to push a button every 2 to 3 minutes to start the next song or commercial announcement. With re- spect to weather forecasts, public service announce- ments, and other "live" broadcasting, the announcer-op- erator would either speak into the microphone or play a prerecorded tape by "pushing a button." A Shaeffer system, if programed correctly, operates automatically without human intervention for 6 hours. (Payne said that the Shaeffer system was designed to run a station by itself for an entire weekend.) During Coomes' prior ex- perience with a machine similar to Shaeffer at another station, "on the air" people were still required. They uti- lized their time to produce commercial and other prere- corded announcements which were then inserted into the machine. With the sequencer, however, the commercial or other recorded announcement would have to be changed manually as needed. The number of such oper- ations depended on the station format, and at KTFX it was about five or six times per hour, or once every 10 to 12 minutes. Payne said that the sequencer would run "from up to 15 minutes at a time to as much as 2 hours, depending on how we figure the stuff." Payne testified that it was his intention to use the Shaeffer system only until the sequencer became avail- able, and then to use the latter to "fire" the ABC Super Radio satellite. Payne did not relate his plans to Century 21 when it gave him the Shaeffer machine. He asked Control Technology in mid-March about the back-or- dered sequencer, but did not press for delivery. The se- quencer "was not essential to operating the way we were operating at that time (i.e., mid-March). I wasn't real concerned about it," Payne testified. He was asked on cross-examination whether he wanted "a fully automated system" between May 19 (when the Shaeffer machine was shipped back to Dallas) and June 17 (when he learned that the ABC satellite would be unavailable). Payne's answer was "No." He explained that the se- quencer was simpler to operate, and that it worked. 2. Operation of the station after May 15-the new employees None of the employees, including those newly hired in 1982, had received advance notice that Payne intended to automate the station. Payne explained that it was im- portant not to make this disclosure, otherwise employees would tend to leave before automation allegedly became operative. Payne testified that he did not rehire the laid-off em- ployees after the Shaeffer system was returned to Dallas because he only needed "someone at minimum wage to sit at our board and punch buttons and not announce as was the previous way of doing things." Respondent's counsel argued at the hearing : "Today they may make some tapes that somebody pushes in a[nd] pushes a button, but there is no one there and hasn't been since May 15th that does so-called on the air." These statements are not accurate. Prior to May 15 the "announcers" actually performed a variety of functions. They "announced live" into a microphone which simul- taneously projected their voices over the airwaves, and they prerecorded their voices for later transmission. Payne denied this latter function, but his testimony is untrue. The controversy over the unit placement of Findlay involves the prerecording of announcers' voices on commercials for later transmission . Payne admitted that Mitchell's newscasts were prerecorded just before the layoffs, and Peters testified that they had been rou- tinely prerecorded. Payne at one point conceded that the laid-off announcers prerecorded part of their work prod- uct. He first contended that the unit asserted as appropri- ate by the Union, including "on-air" announcers, meant only announcers whose voices were heard live at the time of transmission, but admitted at the hearing that the unit also included announcers whose voices had been prerecorded. The announcers also operated the machinery which caused the taped musical numbers to be played, occa- sionally interjecting an introduction (intro) between num- bers, or making other "live" announcements. A more ac- curate job title would be "announcer-operator ," since they both announced and operated the machinery which played the musical numbers. Payne agreed that part of their duties consisted of the pushing of buttons. Prior to receipt of the sequencer, they had to operate the machin- ery about once every 2 to 3 minutes, and I credit Coomes' testimony that the sequencer at KTFX was pro- gramed to require human intervention every 10 to 12 minutes. Payne said that he went to a "three-in-a-row" format. In explanation, the company president averred that this provided for the playing of three musical numbers in a row without the sound of a human voice. He explained that it increased the amount of music and decreased the amount of talk on the air, thus arguably decreasing the need for announcers. However, Peters testified that the three-in-a-row format already existed at the time he began working for the station in April. He had had a prior conversation in February with former Program Di- rector Dwayne Helt, during which the new format had been explained. Peters described the meeting with Helt in detail, and I credit his testimony. It follows that the "three-in-a-row" format, which was instituted prior to the hiring of the alleged discriminatees herein, could not have been a reason for their layoffs. The announcers on occasion performed entire "Live" shows or programs before May 15, either inside or out- side the studio (a "remote"). Payne insisted that pro- grams, as distinguished from commercials, were "live." Commercials were customarily prerecorded in a separate room, since this involved a blending of the script with appropriate music or other sounds and the use of dis- criminating taste. McNatt testified that the taping of a commercial constituted an attempt by the announcer to use the tone of his voice to persuade his listeners to buy a product. The production of commercials was called "production," and employees such as Findlay had pri- mary responsibility for making them. After production they were played on the air by the "announcer-operator" CENTRAL BROADCAST CO. 525 on duty in accordance with a log which gave him in- structions. What Respondent did after May 15 essentially was to continue most of these functions unchanged, but to alter the assignment of them and to hire new employees to perform some of them. Thus, new employee Jim Chase was hired about the time of the layoffs as "production director" and performed work which was "similar" to that performed by Findlay, according to Company Presi- dent Payne and Respondent's records (G.C. Exh. 65). Lisa Salley was hired about the same time to do farm and ranch reporter work and to produce an agriculture show. Payne agreed on cross-examination that Mitchell had done some of that work. Anita Seamon, a copywrit- er, became "assistant production director" according to Payne, and recorded and "dubbed" commercials and voice tracks which had been Findlay's work. Seamon and Payne also recorded news programs, work which Mitchell had done. Although Payne attempted to distin- guish Mitchell's work from Seamon's on the ground that the former's newscasts were longer and "live," he agreed that Mitchell recorded his programs "toward the end," and that Dennis Mitchell's and Seamon's news programs were then "substantially alike." Seamon also played recorded commercials on the air, according to Payne. Mike Rose, a former employee, was again retained and was utilized to prerecord announce- ments and commercials.S9 Payne explained a May 20 work schedule published by the Company with various individuals designated as "On the Air Personalities" (G.C. Exh. 24). This refers to an individual whose voice appears on the airwaves either live or prerecorded, ac- cording to Payne. The schedule lists Anita Seamon and new employees Mike Rose, Ralph Emery, Jim Chase, as ,.on the air personalities."40 Coomes testified that Chase's voice was broadcast both live and prerecorded. The schedule also lists three supervisors-MacKinnon, Jones, and Payne. Sales Manager Jones testified that he did prerecorded announcing. The company president conceded that he and MacKinnon announced "live," and Coomes testified that Payne increased his production of commercials after the layoffs. Payne denied this, but I credit Coomes. Other employees listed on the May 20 working sched- ule had their voices broadcast by the station. The sched- ule lists Dave Kiehn, who assertedly had been suspended by Payne because of the events in connection with Fru Fru Reed. Although the schedule indicates that Kiehn had only board and telephone button-pushing responsibil- ity, it is clear that he appeared on the air. Coomes testi- fied that Kiehn performed announcing duties. Peters said that Kiehn never missed a shift. The schedule lists Kiehn's time as 6 a.m. until 12 noon on Sundays-the se According to Payne, Rose was a former employee who had been absent because of treatment in an alcoholic and drug rehabilitation center, and left soon after returning to the station in May Payne insisted that Rose, who is listed as "Rose Productions" on the May 20 working sched- ule, was actually an independent contractor I find it unnecessary to re- solve this issue because the relevant fact is that Rose spoke into a micro- phone, and his voice was transmitted over the air 40 Although the schedule lists Lisa Salley as having only board and telephone responsibility , this is clearly inaccurate because her voice was heard on the agriculture show. same time as that scheduled for the "Country Gospel Show." Payne admitted that Kiehn ran this show, and that there was no change in his duties. The company president explained his lifting of Kiehn's suspension by the fact that Reed had not returned to duty, and that therefore he would be justified in bringing Kiehn back. However, he never gave Reed a chance to return. The latter testified that she heard Kiehn on the air Sunday morning, May 16. This was less than 48 hours after her Friday evening meeting with Payne in an attempt to re- solve the Kiehn problem in which Payne had promised to try to find adequate security for her. Instead, on May 17, the day after Kiehn's appearance on the Country Gospel Show, Reed was laid off as described above. Payne testified that Robb was laid off on May 16 and rehired a few days later after responding to the company telegram. The company president insisted that Robb only "pushed buttons" at minimum wage when he returned. However, Respondent's payroll records for the period ending June 1 show that he was retained at his prior wage of $5.50 hourly (G.C. Exhs. 33(i) and (j)). Con- fronted with his records, Payne said that they were in error, and that his subordinates had failed to follow his instructions regarding Robb's compensation . However, he was unable to explain why his books show that Robb continued at the same rate through the next three payroll periods (G.C. Exhs. 33(k), (1), and (m)). Regarding Robb's alleged "button-pushing" duties, the May 20 work schedule lists him as having only "board and tele- phone responsibility" from 12 noon until 7 p.m. on Sun- days (G.C. Exh. 24). However, the schedule also lists the "Country Countdown Show" from 12 noon until 4 p.m. on Sundays without any designated "personality" to con- duct it. Coomes testified that Robb performed announc- ing duties and MacKinnon said that he made commer- cials. I consider the partial simultaneity of the Country Countdown Show with Robb's working hours, Coomes' and MacKinnon's testimonies, and the payroll records as having greater weight than Payne's testimony. Accord- ingly, I find that after Robb was rehired his voice was broadcast either live or on a prerecorded basis. New em- ployee Jim Chase left the station in July, and Robb was then promoted to production director and given a raise to $6.25 hourly (G.C. Exh. 33(h)). Asked to specify the unit work that survived after May 15, Payne answered: "The image liners, the station sells, the song intros, the weather, the time, the tempera- ture, the public service announcements, the commercials, the public affairs programming, the religious program- ming, the Ralph Emery [S]how, [the] Country Music Countdown, the Farm Show or a facsimile of same, the news." The only difference that a listener to KTFX would perceive was most music "back-to-back." Accord- ing to Payne, the product that went over the air was "substantially similar." Payne testified: The programming complement on May 20 was also similar. It consisted of 12 individuals, including three supervisors. Ten of these individuals per- 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed announcing duties.41 Their voices were transmitted over the airwaves, either "live" or as the result of prerecorded taping. Two of them, one- sixth of the programming complement, operated machinery and did not speak into a microphone.42 Although numerous "button pushers" were hired after May 15, there was rapid turnover, and Payne testified that the May 20 schedule continued to be the basic schedule. The Company's compilation of its records shows that it hired 10 "telephone attendants" beginning July 31,45 that 6 had departed by the middle of August,44 while 4 assertedly remained at the time of the hearing (G.C. Exh. 65).45 Respondent's counsel stated that the Company's compilation of its records was not entirely accurate. MacKinnon mentioned only bookkeep- er Tammy Bowman as a button-pusher. Payne identified a "Shaundai Kaye (Bowen?)" as a "receptionist and ma- chine watcher-programmer," but later admitted that she recorded "the Louisiana Downs," i.e., spoke into a microphone. The company president stated at the time of the hearing that he had "two minimum wagers during the week and part-timers on the week-end." They also performed duties other than button-pushing. I consider the evidence of employee duties subsequent to May 20 to be too fragmentary to rebut the presumption that the same one-sixth fraction of button -pushers did not in- crease after May 20, and that they also engaged in func- tions other than programing. In summary, MacKinnon and Payne continued to broadcast "live," and eight other announcers did so on a prerecorded basis. The Company hired a few new em- ployees whose job was to run the sequencer by pushing buttons which initiated taped projections of music or human voices, but this work was combined with nonpro- graming duties . "Button-pushing" had been one of the duties of the pre-May 15 announcers on older equipment. After May 15 there was a somewhat greater amount of prerecording rather than "live" transmission of human voices, and somewhat more "button-pushing," However, the number of employees engaged exclusively in "button- pushing" was small, while the 10 individuals engaged in either direct or taped-voice transmission were 2 more than the 8 employees in the pre-May 15 unit of announc- ers. 3. Economic effect of the new procedures The effect of the sequencer and the new procedure is relevant in light of Payne's assertions that the changes were dictated by requirements of economy. As noted above, Respondent's accountant Kloehr in February had pointed to Payne's purchase of new equipment and an in- crease in "programming" costs. The Company's monthly 4 1 Company President Payne, Sales Manager Jones , Program Director MacKinnon, Anita Seamon, Dave Kiehn , Barry Robb , and new employ- ees Ralph Emery, Jun Chase, Mike Rose, and Lisa Salley 42 New employee Derrick Henry and office clerical Cindy Lopez 43 Derrick Henry, Steve Radley, Kathy Hale, Steve Chaney, Debi Irons, Pat Callis, Shaundai Bowen , Vince Outline, Brad Causey, and Valerie Ellison (G C Exh. 65) 44 Henry, Radley, Hale, Chaney, Callie, and Ellison (G.C Exh 65) 45 Irons, Bowen , Guthrie, and Causey (G C. Exh 65) financial records, prepared by Kloehr, show that total programing expense was about $9500 in January (G.C. Exh. 34(r), p. 365). The figures for February and March are inconclusive because of the bookkeeping errors. In April total programing costs were about $16,750 (G.C. Exh. 34(u), p. 458). They dropped to about $10,000 in May, June, and July, but rose to over $15,500 in August (G.C. Exhs. 34(v), p. 494; 34(w), p. 529; 34(x), p. 565; and 34(y) p. 600). As set forth above, after losses for January and Febru- ary, the station had a combined net profit of about $14,000 for March and April, which increased to over $14,000 in May. However, the June profit dropped to below $4000, and Payne admitted that profits declined after installation of the new equipment. N. Jay T Coomes Coomes was a college student majoring in telecom- munications. On April 13 he applied for part-time work as an announcer at KTFX, and had an interview with Program Director MacKinnon . During that interview MacKinnon told Coomes that he was trying to create "a more live sound at the station." Coomes also applied for part-time announcing work at another station. As indicat- ed above, he was hired by KTFX on April 16. About 3 days later, on April 19, he received notice of his accept- ance by the other station as a part-time announcer, and began work there shortly thereafter. On April 20 he signed a union card, and Respondent received written notice of his support of the Union the next day, as relat- ed above. Coomes approached Sales Manager Jones about April 28, and requested sales work during the summer in addi- tion to part-time announcing. Jones replied that this would be possible, with the sales work on a commission basis, plus continued announcing duties. On May 15 Payne told Coomes that KTFX was going to make layoffs because it was installing "automation equipment" the following day, and that Coomes' last shift would be on May 17. As indicated previously, Coomes worked Fru Fru Reed's shift on Sunday morn- ing, May 16. The Shaeffer machine had arrived, and Coomes operated it. MacKinnon told Coomes to come in and work the evening of Monday, May 17. However, on that day Coomes received a permanent layoff notice from Payne. The notice listed Payne's "understanding" that Coomes had arranged to engage in sales work on "a straight commission basis" (G.C. Exh 48). Coomes called Payne on the evening of May 17, and asked him what was "going on," and whether Payne wanted him to work that night. The company president replied affirma- tively, and added that he would check with his attorney to see whether he was supposed to have given Coomes the notice. Payne repeated this statement to Coomes the next day, May 18, but asked Coomes to return the layoff notice, and the latter did so. The complaint alleges that Coomes was discriminatorily discharged on May 15. Coomes worked the midnight to 6 a.m. shift on May 21, and was relieved by Payne. The company president asked Coomes whether he told Peters that the "automa- tion machine" had been taken out, and Coomes gave a CENTRAL BROADCAST CO. negative answer. According to Coomes, Payne then said that "those guys" (referring to the laid-off employees)46 .,were only hurting themselves," and that Payne wished someone "would get the message through to them that they should get other jobs." Coomes' testimony is uncon- tradicted, and I credit it. The complaint alleges that Payne's statement was unlawful (G.C. Exh. 1(g), par. 7(j)). On May 21 Coomes saw Respondent's posted schedule of work, and observed that his name did not appear on it (G.C. Exh. 24). About 3 days later, on May 24, Coomes asked Payne about his status as an employee. The com- pany president replied that Coomes was in sales. Coomes said that the only way he could talk about sales work would be in conjunction with "a couple of air shifts" so that he could stay "on the air." Payne replied that if he put Coomes back "on the air" he would only be "punch- ing buttons at minimum wage," and Coomes said he was not interested in that. The amended complaint alleges that this constituted a unilateral change in an employee's working hours and schedules violative of Section 8(a)(1) and (5) (G.C. Exh. 1(n), par. 16(d)). According to Coomes, he told Payne on May 24 that he would be working as a full-time announcer for the other station beginning about June 4, but wanted to con- tinue doing part-time sales work for KTFX thereafter. Payne voiced no disagreement with this arrangement. In the meantime, between May 24 and about June 4, Coomes agreed to do sales work, and requested continu- ation of part-time announcing duties. He offered to do an advertising show on the air for straight commission, but Payne made no definite response. It was agreed that Coomes would not be reporting to the office on a regu- lar basis. In another conversation on May 24, Payne told Coomes that he would fight "this union thing" if it "took five, ten or how many years," and that none of "those guys," referring to the laid-off employees, "would ever come back to work for him again." Payne denied saying this, but he was a less reliable witness than Coomes, whom I credit. The complaint alleges that Payne's state- ment on this occasion was unlawful (G.C. Exh. 1(g), par. 7(k)). On June 3 Payne called Coomes and, during the course of a conversation, told him that he had never been "any good" at KTFX. Coomes had made some sales, but had been unable to get his advertisements broadcast over the air to his satisfaction. He went to the station on June 4 intending to resign because of this reason, but did not see Payne or Jones, the sales manag- er. Coomes saw MacKinnon, and told him the impor- tance of his communicating with Payne or Jones. The program director said he would get one of them to call Coomes, but the latter heard nothing further. On June 7 he started working full time for the other radio station. Coomes thereafter made several attempts to reach Payne or Jones on the phone, without success. 16 Coomes on cross-examination insisted that "those guys" referred to the laid-off employees, even though one of them was a female (Reed), rather than to the three male employees who did not receive telegrams to work in sales 527 On August 23 Payne wrote Coomes a letter stating that he was "astonished" and "disappointed" to learn that Coomes claimed to have been discharged. Payne ob- served in his letter that the layoff notice had been with- drawn, that Coomes had continued to work at KTFX and the other station, and that Payne thought he was "still actively working until [he] ceased to show up" (G.C. Exh. 26). In his testimony Payne gave a different version of Coomes' duties after May 15. He did both announcing and sales work, then quit announcing but did some sales work, and finally failed to show up. I credit Coomes' version, and find that his name did not appear on the May 20 work schedule (G.C. Exh. 24), that he thereafter asked Payne about his status, and that the latter replied that if he went back on the air he would be punching buttons at minimum wage. I also find that Coomes re- fused to accept this and continued to request announcing work without agreement from Payne. He nonetheless made sales, but was unable to get his work on the air as he had sold it. Coomes intended to resign because of this, but was unable to get return calls from Payne or Jones and therefore never communicated a resignation. 0. Additional Conversations Between Peters and MacKinnon Peters testified that MacKinnon called him at home on the morning of May 18 and asked, "Well, when are you going to hit me with an injunction?" Peters replied that such matters "take a little time." He and MacKinnon had previously discussed injunctions in labor management disputes. MacKinnon called again on June 6, according tp Peters, and said that there was a new hiring policy- an applicant for employment would have to agree not to become involved in union activity prior to being hired. Peters' testimony is uncontradicted and I credit it. Both of these statements by MacKinnon are alleged to have been unlawful (G.C. Exh. 1(g), pars 7(i), (1)). P. Respondent's Defense 1. The alleged independent 8(a)(1) violations With respect to the allegations of violations of Section 8(a)(1), Respondent either denies that the alleged state- ments were made or actions took place, or denies that they were unlawful. As proof of its allegedly neutral po- sition toward the Union, the Company points to a notice which it posted on April 22 disavowing an alleged offer of an employee to pay sums of money to other employ- ees for voting against the Union (G.C. Exh . 13). Payne testified that the employee who did this was Kiehn. 2. The alleged 8(a)(3) violations a. The "decision to automate" (1) Summary of the evidence As described above, Respondent contends that its fi- nancial condition justified and caused its "decision to automate," which led in turn to the terminations of the 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announcers. Payne had various conversations about auto- mation in 1981 and early 1982, heretofore described. The "decision to automate" was made on April 2, ac- cording to Payne. He testified that he decided to "cut down on personnel and cut down on expense ." Payne's notes assert that he returned from Montserrat on March 30, and met that day and the next in Arlington with "T. J. Donnelly," with whom he discussed his "financial plight and the possibility of automating/satellite" (G.C. Exh. 75, p. 3). For the next 3 days, April 1-3, Payne was in Fort Worth, according to his notes, participating in an "Idea Bank Convention." He talked with "Dave Gif- ford" and "Bill Quigg," and, on April 2, called Sales Manager Jones in Tulsa. Payne's notes of this conversa- tion read as follows: On this day I called Paul Jones from Ft. Worth ... and told him I had been racking my brain on exact- ly what to do and that I had decided to automate but I was also going over and look at the ABC Su- peradio thing at the NAB on Sun. Jones was some- what disappointed in us going away from personali- ty radio but I told him it was the only way out for us. HERE IS THE KEY TO WHY? A UNION ... I believe Findlay probably or Peters over- heard my conversation with Paul [Jones] and decid- ed to go the Union route thinking that would save their job [sic] since I told him on the phone that day that we wouldn't need a newsman with the new automation and wouldn't need all the expen- sive DJ's. (Later, we found out how they could listen in on our calls without being detected.) [id.] Jones corroborated Payne on the issue of the asserted April 2 telephone call, and his general veracity is there- fore in issue. He testified that he was employed by Re- spondent in December 1981, and became sales manager the first week of January 1982. Jones asserted that he ter- minated about half the sales force in January and Febru- ary because of nonproduction. Asked on cross-examina- tion to recall some of those individuals, Jones named "Brian Burdette, Sue Goad, Rich Proper, and Marilyn Burch." No such names appear on Respondent's payroll journal for January or February, nor on its list of em- ployees beginning with those hired in 1980 and terminat- ed in 1982 (G.C. Exhs. 33 and 65). I conclude that Jones manufactured this testimony out of whole cloth. Jones asserted that Payne called him from Dallas on April 2, and said that his father had suggested that he sell the radio station. Payne refused to do so, and stated to Jones that various individuals at the Idea Bank had advised him to automate the radio station immediately. Payne told Jones that he was doubtful whether he would use a Shaeffer unit or the ABC Super Radio satellite system. Jones voiced concern about the latter, since it had a rock and roll format whereas the station played country music. Jones averred that Payne told him that he planned to automate the station "immediately." Jones agreed to do what was required , according to his testi- mony.47 David Gifford, general manager of a radio station in Erie, testified that he met Payne at an "Idea Bank Con- vention" in Dallas during April, and that they talked about "a lot of things" including automation, which Gif- ford's station had instituted. Gifford said that Payne told him that he had made a decision to automate, and then asked Gifford whether he had made the right decision. Gifford responded with a discussion of malfunctioning of equipment and different sales techniques. Donald C. Schiel, a sales coordinator in the radio business, testified that Payne called him "the week of April 12" and said that he had decided to automate. William Quigg, president of a group of radio stations in Indiana and Ohio, testified that he met Payne at an Idea Bank Convention in Fort Worth between April 1 and 3. They discussed automation systems and econom- ics. Payne expressed an interest in satellite programs, but there was no specific discussion of a Shaeffer system. Asked whether Payne said that he had decided to install an automation system, Quigg replied: "I don't know that he had specifically made up his mind. He had told me he had thoroughly investigated automation systems and the concept." Respondent elicited other evidence on the date of the "decision to automate." Thus, Cecil Powell, who was in the food and advertising business, testified about a con- versation he had with Payne on April 8. In response to a leading question, Powell testified that this concerned "automating" the station. He later testified that he could not give the conversation verbatim, but that his "impres- sion" was that Payne told him the latter was going to have "the most fully automated, most powerful signal in the Tulsa market." Respondent also called James C. Hiner, who promoted rodeos and did business with KTFX. Hiner asserted that he had a conversation with Payne on April 6. The wit- ness "had heard that Payne was going to automate (or) had automated that station," and was concerned about its impact on business relationships. According to Hiner, Payne informed him that Payne had automated his sta- tion and would not need "as many disc jockies [sic] be- cause it would be all done by machines." The parties stipulated that various other individuals, if called, would testify that Payne told them about April 6 that he was going to automate his station. In contrast to Respondent's evidence, during Coomes' employment interview on April 13, Program Director MacKinnon said that he was trying to "create a more live sound at the station." Findlay testified that he had a conversation on May 18 with Bob Backman, whom Findlay identified as a former general manager of KTFX. Backman asserted to Findlay that Payne on 49 Jones, following up Payne's assertion of eavesdropping during the asserted April 2 conversation, testified that-on another occasion when Payne was on the telephone back in Tulsa-the company president thought someone was listening on the line . Jones contended that he found Findlay in another room listening to the phone with a tape recorder play- ing CENTRAL BROADCAST CO. 529 many occasions had said that he was "totally against au- tomation as an operating philosophy for a radio station." (2) Factual analysis The credible evidence does not support a conclusion that Respondent's financial condition warranted full au- tomation of the station, or that any such decision was made prior to the filing of the representation petition or, indeed, that if made it was ever implemented. As to Respondent's finances, the reports of its certified public accountant show that it had more than twice as much net income for the 12-month period ending June 1982 as it had for the prior period . Although the Compa- ny had 3 months of losses in the 8 months ending Febru- ary 1982, it still had a cumulative profit of over $20,000 for those 8 months, almost equal to its entire profit for the last fiscal year. The last monthly report of which Payne had any knowledge prior to the filing of the rep- resentation petition (in April) was the report for March, which showed a substantial profit of $37,666.72. Al- though accountant Kloehr testified that this was a "fluke," and that the March "profit" balanced out with the April "loss" for an approximate combined $ 14,000 profit for both months, he did not give this opinion to Payne until May. Accordingly, Payne's actions in April and the first part of May were engaged in at a time when he had reason to believe that his figures for March showed the largest profit of any month for the fiscal year, and when his 9-month profit ending March 1982 was more than 2-1/2 times his entire profit for the pre- ceding fiscal year. Payne told his employees in his speech to them on April 20, "1 look at our expenses today, programming and sales and everything else com- pared to a year ago, even though it is not as good as I would like it to be, it's a whole lot better than it was." Nonetheless, he insisted on tinkering with his program- ming format, and ended up with total programming ex- penses about $6000 higher in August that they were in January. In evaluating Payne's decisional processes regarding programing changes, it is important to distinguish what he actually did from what he said he was going to do, and from what others advised him to do . Thus, after as- serted financial troubles in late 1981 and early 1982, ac- countant Kloehr gave Payne a gloomy picture of the sta- tion's financial situation , and protested an increase in pro- graming expenses. Nonetheless, seven of the eight al- leged discriminatees in this proceeding-all announcers- were hired beginning in late January 1982-one during that period (Mitchell), one in February (McNatt ), three in March (Peters, Findlay, and Reavis), and two in April (Reed and Coomes). Respondent hired another announc- er, Salley, in June. These actions are inconsistent with the station's allegedly poor financial structure and with Payne's asserted interest in automation. The company president sought to attribute responsibility for the hirings to MacKinnon, said that most of them took place while he was in Montserrat, and called himself a "poor manag- er" for not giving MacKinnon adequate instructions. These statements are factually incorrect . Only two of the new announcers-Findlay and Reed-were hired while Payne was on vacation . The other five were hired when he was present, and he retains responsibility for failing to tell MacKinnon, before leaving on vacation, about his professed plans to cut expenses by reducing announcers' salaries. Although Payne professed dissatisfaction with the hiring of Peters and Findlay, he did not terminate them until after he had received knowledge of the union cam- paign and the representation proceeding. Although he claimed that he decided to cut down on personnel on April 2, Reed, Seamon, Coomes, and Salley were hired after that date (G.C. Exh. 65). Another oddity is the fact that none of the new an- nouncers was told during the hiring process about the imminent demise of the new jobs because of automation. MacKinnon told Reavis during the latter's employment interview that he wanted people who would be there quite a while, and that he wanted to build a "decent- sounding" station. Payne, however, to explain his nondis- closure of the alleged plans for automation, said that it would be "all over town" if he had made his plans known, and that he would have lost advertising business. "So you don't tell anybody anything until you get ready to do it in our business. You spring it on them. That is how you are successful in this business." According to Payne, this is the reason he did not make a full disclosure at the representation hearing of his allegedly existing in- tention to automate-it would have been against his busi- ness interests. However, I do not credit Payne's testimo- ny at the unfair labor practice hearing that he was dis- simulating at the representation hearing. I infer that he became more sophisticated about Board law during the period between two hearings, and, by the time of the latter, had learned the importance of establishing a "deci- sion to automate" prior to the union movement. The company president did, however, tell Sales Man- ager Jones about his plans, according to their testimo- nies. Nonetheless, he failed to tell Program Director MacKinnon, who had the responsibility of hiring an- nouncers. Payne gave no reason for this distinction. Granted the ambivalent nature of MacKinnon's personal- ity, this did not emerge until the hearing, and Payne had no reason to doubt his loyalty during the events being litigated. It is incredible that Payne would have allowed MacKinnon to add to the Company's allegedly overbur- dened cost of operations, by hiring more announcers, if he had a way to avoid it. The fact that Payne said noth- ing to MacKinnon about automation until mid-May casts doubt on the evidence that he said anything to Jones before that time. Respondent points to two actions that Payne took prior to the filing of the representation petition (April 15) to support its postion that he "decided to automate" on April 2. The first is the fact that he ordered the se- quencer from Control Technology in February, and thereafter had it on back-order. There is no validity to this reasoning. The sequencer was never envisaged by Payne as an automation device-it emerged as an after- thought only after the Shaeffer project collapsed. The Control Technology purchase order included both the sequencer and control room equipment. The latter, ac- cording to station engineer Hardy, was intended for 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "hands-on" operation, and would not have been an eco- nomical purchase if an automated system had been con- templated. It is inconceivable that a company in Re- spondent's professed financial straits would have wasted thousands of dollars on equipment for which it had no need. Finally, although Payne acknowledged talking to Control Technology in mid-March about the back-or- dered sequencer, he admittedly did not press for delivery because "it was not essential to operating the way we were at that time." And yet, in 2 short weeks between mid-March and April 2, Payne somehow, almost mysti- cally, became converted to automation as the only way to save his station. The rapidity of this professed change of opinion and the lack of any objective data to support it make it incredible. The second action that Respondent relies on is Payne's signing of the ABC Super Radio binder . This reasoning is also erroneous. In the first place, it took place on April 5, 3 days after April 2, the alleged "date of decision." All that Payne committed himself to by this action was the payment of $1 for an option to get the ABC Super Radio franchise. It was not until a month to a month and a half later, i.e., subsequent to the filing of the represen- tation petition on April 15, that Payne phoned Call in California and said that he was ready to sign a contract. Even when he did so on May 15 in Tulsa, the agreement was still subject to his attorney's approval. It was not until Payne's mid-June visit to New York, for the pur- pose of signing a new contract without any condition, that he asked Call whether the Super Radio equipment was "compatible" with automation. These events do not support a finding that Payne decided to automate his sta- tion on April 2. On the contrary, Payne's failure to do anything specif- ic about automation until May 10, when he went to Dallas, suggests that his decision was made after the filing of the representation petition. Asked to explain the delay, Payne said that he had to "sell" automation to MacKinnon. The program director, however, denied that Payne ever discussed the matter with him. The fact that the Shaeffer machine was shipped to Tulsa without prior notice to the employees who would be operating it, and with no provision for a training period for so complicated a piece of equipment, suggests that Payne was motivated by other than usual business considerations. His action, in fact, was unduly hasty from a normal business point of view, as was his termination of almost all the announcers before the Shaeffer machine was even in place, much less tested. Payne's indecisiveness about automation as late as April 29 is clearly portrayed in his testimony at the rep- resentation hearing on that date. There was only a "pos- sibility, but not much probability," that he would be making substantial technological changes. Respondent's evidence of various "conversations" al- legedly manifesting Payne's intention to "automate" has less probative weight than the foregoing considerations. According to Respondent's evidence , Payne made the statements about his "intentions" in early April. This is inconsistent with Payne's other testimony stressing the great need for secrecy in such matters. The conversation with Gifford suggests that Payne questioned his stated decision. Quigg's testimony shows that Payne had inves- tigated automation, but had not yet made a decision. Jones' testimony-that Payne said the individuals at the Idea Bank Convention had told Payne to automate im- mediately-does not accurately reflect what those indi- viduals said. Either Payne was falsifying to Jones, Jones was distorting what Payne said, or there was no such telephone conversation. Powell's testimony is vague, and Hiner's is probably false-it is unlikely that Payne told Hiner on April 6 that he had already automated the sta- tion. "Automation," it appears, is really a matter of fine gra- dations between human and machine functioning. I con- clude that immediately prior to the filing of the represen- tation petition, Payne had decided to do no more than the previously ordered Control Technology equipment, including the sequencer, could be expected to do-pri- marily improve the "sound" of the station. The purchase of the control room equipment shows that Payne intend- ed to continue the use of announcers operating the equipment and doing live and recorded announcing, while the sequencer was intended to reduce the number of manual operations from one about every 2 or 3 min- utes to one every 10 to 12 minutes. Even the 6 hours of transmission possible without human intervention under the Shaeffer system still requires prior production and in- sertion of human voice tapes, or music, into its program- ing. Payne installed the system hastily, and discarded it under circumstances wherein its malfunctions were prob- ably as much the fault of human error as they were me- chanical defects . This was not a very firm decision to change to "full automation." The General Counsel argues that the Shaeffer episode was a "charade" which Payne engaged in to justify dismissal of the union activ- ists. (b) The individual cases (1) Fru Fru Reed Respondent contends that Reed voluntarily quit for reasons which had nothing to do with union activity. Nonetheless, Payne sent her a telegram offering her work "hoping that she would not think that [he] had laid her off because of the Union. Because [he] just knew that if [he] were in her shoes, he would perhaps feel that way." The telegram, according to Payne, included "part- time work along with sales." To the extent that this testi- mony suggests that Payne offered Reed part-time an- nouncing work "along with sales," it is patently false. Payne sent Reed the standard telegram offering only the possibility of "sales work on a straight commission basis" (G.C. Exh. 60). (2) Jay T. Coomes Respondent contends that Coomes was never terminat- ed, since the May 15 notice of termination was recalled by Payne. Instead, Coomes decided to resign on June 3, and "voluntarily resigned when he accepted employment at another radio station." CENTRAL BROADCAST CO. 531 (3) Barry E. Robb Robb was the only employee to accept Payne's tele- graphic offer. According to Respondent's brief, "he re- turned as a button pusher and not as an on-air announc- er." He was terminated because he was "not needed," a reason which had nothing to do with union activity. He accepted Payne's offer to come back to another job, and a reinstatement order "would be illogical and redun- dant." (4) Bob W. Reavis II Noting that Reavis regularly worked as a painter con- tractor, and was an announcer only on weekends, Re- spondent argues that "it would not be so [sic) sensible to require KTFX to cease operating the business with the new equipment which eliminates the need for weekend announcers to provide this painting contractor with a weekend job as a disc jockey when there is no need for disc jockeys." (5) James C. Mitchell Payne testified that the station's news programs were "much shorter" than they had been previously. A con- sultant told him he should not have so much news, and the station "does not have the manpower to be able to put out that much news anyway." Accordingly, Mitchell should not be reinstated. His reduction in hours was not more onerous, but, rather, made the job easier. (6) Rodney McNatt McNatt was given the usual notice of termination, dated May 15, which stated the possibility of "sales work on a straight commission basis." He made no inquiry concerning this, and should not be reinstated in any event because of the discovery, after his layoff, that he had engaged in the misconduct of erasing 87 tapes. (7) Joseph W. Findlay Jr. Respondent continues its argument that Findlay was a supervisor. In any event, he should not be reinstated be- cause of a recording which he placed on the air. He was asked to appraise the quality of the Bill Payne Show and, in response, played a recording of the sound of a flushing toilet. (Findlay admitted doing this.) (8) James C. Peters According to Respondent's brief, Peters "is strongly suspicioned [sic] for potential involvement in the sabo- tage of the tapes carrying his voice," and he would "be a dangerous person to be reinstated." 3. The alleged 8(a)(5) violations Respondent contends that only three authorization cards had been signed by April 16, the date of the Union's demand. This is incorrect, since the facts clearly show that the fifth card (Findlay 's) in a unit of eight was signed on April 16. Respondent argues the inclusion of employees whom I have excluded for reasons given above. The Company also contends that the Union never of- fered to prove its claim of majority status. However, the Union handed Payne a letter on April 19 signed by five announcers, stating that they were organizing on behalf of the Union, and another such letter on April 23 signed by two more announcers-seven out of the eight em- ployees in the unit. Payne never questioned the authen- ticity of the signatures. In response to the allegation of unilateral changes in hours and working time, Respondent argues that there were no regular hours or schedules. It also contends that requiring employees to adhere to new working schedules was justified by a "need for order where there had been indifference to responsibility to the public and for care of the new equipment." "Asking the employees to record their time required no consultation with the Union. That is the law!" Q. Legal Analysis and Conclusions 1. The alleged independent 8(a)(1) violations (a) Summarizing the facts seriatim as they are alleged in the complaint, Program Director MacKinnon, a super- visor, told employee Peters on April 20 that Respond- ent's counsel said that the ugly head of unionism had arisen and that the station would have to do whatever was necessary to solve the problem. In context with Re- spondent's other unlawful conduct which I find herein, and which I conclude evidences massive union animus on the part of Respondent, the statement attributed to counsel can only have meant that the Company's "solu- tion" of the "ugly" problem would be adverse to the progress of unionism at KTFX. In fact, its only logical meaning is that Respondent would cause the union movement to fail by "whatever" means were "neces- sary." The statement therefore tended to create a sense of futility in the minds of employees engaged in union activities and was unlawful under established law. Under another rationale, it conveyed to employees Respond- ent's displeasure with their union activities, and therefore tended to interfere with such activities.48 It is well estab- lished that an employer's attorney of record is the em- ployer's agent within the meaning of the Act, and the fact that a statement was attributed to him by a supervi- sor, rather than having been made to employees directly, does not eliminate its coercive effect. Laredo Coca Cola Bottling Co., 241 NLRB 167, 171 (1979), enfd. 613 F.2d 1338 (5th Cir. 1980). I therefore find that MacKinnon's statement violated Section 8(a)(1). (b) In the same conversation on April 20, MacKinnon quoted Sales Manager Jones as having recommended the firing of all the announcers, most of whom were engaged in union activities. This remark, repeated by another su- pervisor, was patently coercive. Also attributed by MacKinnon to Company President Payne and Respond- ent's counsel were statements to the effect that the Com- pany had no intention of bargaining with the Union even if it won an election. The Board has held such statements 48 Gossen Co, 254 NLRB 339 (1981), PPG Industries, 251 NLRB 1146, 1147 (1980) 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be unlawful, with judicial approval.49 With respect to threats to refuse to negotiate, the Board has recently stated: The Board and the Courts have long held that pre- dictions of the effects of unionization on a Company must be accompanied by supporting objective con- siderations that substantiate such predictions. This concept was enunciated by the Supreme Court in Gissel,50 which noted (250 NLRB at 1345): If there is any implication that an employer may or may not take action solely on his own initia- tive for reasons urelated to economic necessities and known only to him the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepre- sentation and coercion, and as such without the protection of the First amendment. The Board therefore concluded that the threat to refuse to negotiate with the Union violated Section 8(a)(1), and I reach the same conclusion herein . Coca-Cola Bottling Co. of Bloomington, Indiana, 250 NLRB 1341, 1345 (1980). (c) As described more fully above, on April 30 and May 3 Respondent reduced Mitchell's hours, gave him a split shift, and required him to work 3 hours daily play- ing the prerecorded tapes of another employee-work which Mitchell had not done as a newsman. Program Director MacKinnon told Mitchell that this constituted "harassment," a lowering of his status , and an induce- ment to cause him to "throw in the towel," or quit. Mitchell was a union supporter and a witness for the Union at the representation hearing on April 29, the day before Respondent started changing his hours . Because of Respondent's obvious union animus and the fact that its action against Mitchell was taken immediately after his testimony at the hearing, I infer that the change was made because of that testimony and his union sympa- thies. MacKinnon's statement constituted a solicitation of Mitchell to quit. The Board has concluded with judicial approval that such solicitation constitutes a violation of Section 8(aXl) of the Act, and I make the same finding in this case. M & B Contracting Corp., 245 NLRB 1215, 1228, 1231 (1979), enfd. 653 F.2d 245 (6th Cir. 1981). (d) After Kiehn broke into the station on May 8, he told the police and Reed that it was all because of the Union, and that he was going to teach her a lesson. Kiehn repeated this statement to the mediator , Reed, and her mother at the Tulsa City Hall. He went further and stated that there had been murders because of unions. When Reed asked Payne whether he was going to fire Kiehn, the company president answered with a question: "Why should I fire my only possible 'No' vote against the Union, when I may well need him in the future?" This statement and Payne's concomitant failure or refusal to provide security for Reed revealed Respondent's will- ingness to subject her to Kiehn's conduct because of her 49 Delchamps. Inc, 244 NLRB 366 (1979), enfd. 653 F.2d 225 (5th Cir 1981); Laredo Coca-Cola Bottling Co, supra. 10 NLRB Y. Gissel Packing Co, 395 U S 575 (1969) support of the Union. The statement was therefore coer- cive and violative of Section 8(a)(1). Kiehn's actions were outrageous by any civilized code of behavior. Respondent did not call him to dispute Reed's version of the events. Instead, Payne testified that his "study" revealed that Kiehn was not "all that guilty." I reject as a complete fabrication Payne's explanation that Kiehn had a right to be in the station in the middle of a Sunday night to do a "production"-Kiehn said re- peatedly that the break-in was because of the Union. Payne had fired Kiehn previously for erratic behavior. The company president's failure to administer any effec- tive discipline on this occasion, except for the meaning- less "suspension," demonstrates his willingness to tolerate unacceptable behavior by employees if it strengthened his opposition to the union movement. This manifests ethical insensitivity of significant dimensions, which can only be explained on this record as evidence of massive union animus. (e) On the same day that Payne and Reed were talking at the Tulsa City Hall, May 13, MacKinnon set forth Payne's position in his conversation with Peters and Findlay-Payne would never fire Kiehn because he was the Company's only "No" vote. The statement was coer- cive for the reasons given above. The evidence also shows that MacKinnon quoted Payne as saying that he was going to "show Tulsa how to handle unions," and that he did not care if the Union won because there would not be any employees left and "nothing to negoti- ate about." This constituted a threat to eliminate employ- ees as a method of dealing with the Union, and was therefore coercive and violative of the Act. Garry Mfg. Co., 242 NLRB 539 (1979), enfd. as modified 630 F.2d 934 (3d Cir. 1980). (1) MacKinnon also quoted Sales Manager Jones as recommending to Payne that all bargaining unit employ- ees be fired-an obviously coercive statement repeated by MacKinnon to other employees. MacKinnon also told Peters that Jones had recommended that Peters be given his morning show back, and "a little raise," to which MacKinnon replied that it was "a little late for that now." Jones' obvious meaning was that Peters should be offered the indicated benefits in return for ending his support of the union movement . Such inducements are unlawful under established Board law, and MacKinnon's repetition of Jones' statement constituted a tacit repeti- tion of the inducement-all that Peters had to do was deny that it was a "little late," and accept the offer. I find that MacKinnon's statement violated Section 8(a)(1). (g) The record also contains evidence of direct induce- ment by Jones. Thus, the sales manager asked Findlay what it would take to get everything "back to normal." Among other things Jones asked whether it was a "matter of more money," and suggested that Findlay and Payne "get together on this deal." These statements also constituted an unlawful offer of benefits in return for abandonment of union activities. (h) The complaint alleges unlawful interrogation, and MacKinnon, in a discussion of pending automation which Payne intended to use to fire everybody, asked Peters: "How strong and tough is this Union of yours?" CENTRAL BROADCAST CO. 533 In effect this question asked Peters what the Union could do for the announcers in the face of the imminent threat to their jobs. The Board has held that asking an employ- ee what a union could do for him is coercive. Gossen Co., supra, fn. 49. A similar fording is warranted herein. (i) On the morning of May 18, MacKinnon called Peters and asked: "When are you going to hit me with an injunction?" This was an impermissible inquiry into the internal affairs of the Union, including its strategy in the unfolding events, and therefore violated Section 8(a)(l). The fact that Peters had just been terminated is irrelevant, since he was still an "employee " within the meaning of Section 2(3) of the Act and entitled to its protection. Clark & Hinojosa, 247 NLRB 710, 715-716 (1980). (j) On May 21 Payne told Coomes that "those guys," referring to the terminated announcers, were only hurt- ing themselves and that Payne wished someone would get the word to them that they should get other jobs. The Board has found that similar suggestions by other employers, that their employees ford work elsewhere, were unlawful.5 i Payne's statement is additionally un- lawful here, because it is obvious that he was suggesting that Coomes be the "someone" to carry the message to "those guys." (k) Three days later, on May 24, Payne told Coomes that none of "those guys" would ever come back to work for him again, and that he would fight "this union thing if it took five, ten, or how many years." It is clear that this constituted a threat not to reinstate the an- nouncers, and that it was caused by their union activities. The Board has concluded that telling an employee that he would not be reinstated, because of his activities pur- suant to a collective-bargaining agreement, violated Sec- tion 8(a)(1) of the Act. Allstate Specialties Co., 240 NLRB 977 (1979). The same reasoning warrants a find that Re- spondent's threat herein was unlawful. (1) On June 6 MacKinnon called Peters and told him that Respondent had a new hiring policy, and that appli- cants for employment would be required to agree not to become involved in union activities. This statement was obviously coercive and violative of Section 8(a)(1). (in) Payne's letters to Reavis and McNatt-Payne's speech on April 20: As noted above, the General Counsel alleges that Payne's letters to Reavis and McNatt con- tained unlawful statements, and that an appropriate find- ing should be made even though there is no complaint allegation to this effect. The General Counsel' s reasoning is that introduction of the letters was not opposed by Re- spondent, and that the issues were therefore "fully liti- gated." The same might be said of Payne's speech to em- ployees on April 20, since the record shows that the transcript of that speech, introduced by the General Counsel, was supplied to him by Respondent (G.C. Exh. 35(a)). The Board and the courts on numerous occasions have concluded that a finding was warranted on issues which were not alleged in the complaint, on the ground that they were fully litigated. The rationale is that the ab- 61 Rolligon Corp, 254 NLRB 22 (1981), Olympic Villas, 241 NLRB 358 (1979) sence of formal notice in the complaint has in effect been waived by the party's litigation of the issue. Another ra- tionale is that the matters not alleged in the complaint were closely related to those that were alleged. I con- clude in this case that Respondent's failure to object to introduction of the letters, which it might have done on the ground that they were not alleged, is equivalent to waiver of notice. The same result follows a fortiori in the case of Payne's April 20 speech, a copy of which was supplied to the General Counsel by Respondent. It would be absurd to conclude that a party had been denied due process of law on an issue as to which it had voluntarily supplied the evidence. As set forth above, in Payne's April 20 speech he told employees that, if a strike were called and a picket line set up, the economic impact on the station could be dis- astrous. He referred to airlines on the verge of going out of business, and compared them with one making a profit-it did not have a union. The same subtle connec- tion of unionization with loss of job security is contained in Payne's April 23 letters. The business could not "sur- vive" without "sound and sensible attitudes," i.e., rejec- tion of unionism. There were instances where employees were suffering from loss of jobs as the result of unions, and this was not the time to weaken KTFX with strife and discontent. Although Payne said that he was not predicting a strike "inevitably," he noted that had never heard of a strike in a nonunion company, and compared the continuing income of the union organizer with the loss of income of the strikers. He stressed the inability of unions to prevent discharge of employees in times of economic distress. I conclude that the net effect of these various state- ments, made in context with Respondent's other unfair labor practices, was to convey to employees the message that "unionization would threaten continued employment and job security .. ." Garry Mfg. Co., supra, 242 NLRB at 539.52 I therefore find that they violated Section 8(a)(1). Payne's statements in his speech of April 20 about re- specting certain ground rules in the organizational cam- paign and his April 22 bulletin announcing that he would respect employee rights were mere gestures designed to cloak his intense hostility to the union movement and his plans to defeat it. 2. The alleged 8(a)(3) and (4) violations The General Counsel has established an extremely strong prima facie case that the permanent layoffs were motivated by the employees' union activities and sympa- thies. The full record shows union animus on the part of Payne which reached extraordinary proportions. The layoffs took place soon after the advent of the organiza- tional campaign and the representation hearing. Only em- ployees who had signed union cards were terminated, and none of the employees who were retained had en- gaged in any union activity. 58 See also Taylor-Dunn Mfg Co, 252 NLRB 799 (1980), enfd mem 679 F 2d 900 (9th Cu. 1982), Kolmar Laboratories, 159 NLRB 805, 807- 810 (1966), enfd 387 F 2d 833 (7th Cir 1967), Surprenant Mfg Co., 144 NLRB 507 (1963), enfd as modified 341 F 2d 756 (6th Cir 1965) 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons set forth above, Respondent has not established that the employees would have been termi- nated in the absence of their union activity. Its financial condition, although not of the best, was not bad enough to warrant a major change in programing to "full auto- mation." Although such a change had been contemplat- ed, no "decision" to do so was made prior to the advent of the union movement . And, when finally made, it was abandoned within a few days and the station returned to a modified version of its previous format, actually with more announcers than it had used previously. The Com- pany's defense is an elaborate pretext couched in techni- cal and engineering terminology, and it has not rebutted the General Counsel's case. I therefore conclude that the eight terminations violated Section 8(a)(3) of the Act. Wright Line, 251 NLRB 1083 (1980). Respondent's contention that Fru Fru Reed quit is without merit. Reed was on sick leave without objection from Respondent, and was negotiating with Payne for security protection against Kiehn at the time she was ter- minated. Even without the notice of permanent layoff, Respondent already constructively discharged her by subjecting her to intolerable working conditions. The Company's argument about Coomes has no basis in fact. Coomes received his notice of layoff on May 17. The fact that Payne thereafter recalled it does not alter the fact that a discriminatory layoff took place. Payne's motive may be inferred from the circum- stances at the time. The Shaeffer system had arrived on May 15, and Coomes had worked on it. It failed to func- tion properly however, and all the regular announcers had been dismissed. With his programing in disarray, Payne decided to recall Coomes because he needed him. However, the sequencer arrived a few days later, and Coomes became dispensable. On May 20 his name was omitted from the work schedule. Coomes inquired, and Payne told him that he was in sales. When Coomes pro- tested that his work in sales could only be in conjunction with announcing work-in accordance with prior discus- sions-Payne retorted by saying that the only announc- ing work for Coomes was "punching buttons at mini- mum wage." At that time Respondent had announcing work available, both "live" and prerecorded, and I infer that same unlawful motive behind Respondent's mass layoffs also was the factor causing it to deny traditional announcing work to Coomes. By thus changing the nature of his announcing work to button-pushing and by reducing his compensation for an unlawful reason, Re- spondent constructively discharged him as an announc- er.53 Although Coomes did sales work after May 20, he did not acquiesce in his exclusion from announcing work, and continued to request it without success. Indeed, it is doubtful that Coomes was actually offered bona fide sales work, because of his difficulty in getting his sales on the air as broadcast advertisements. He never re- signed, because his intention to do so was never commu- nicated to Respondent. Although he began work on June as NLRB v. Cable Vision, 660 F 2d I (Ist Cir 1981), enfg 249 NLRB 412 (1980); Firmat Mfg. Corp., 255 NLRB 1213 ( 1981), enfd. 681 F.2d 807(3d Cir 1982), K & S Circuits, 255 NLRB 1270 (1981) 7 as a full-time announcer at another station, Payne had agreed that Coomes could continue thereafter in part- time sales work for KTFX. Coomes did not report to the station on a regular basis, by prior agreement. On June 3 Payne told Coomes that he had never been any good. When Coomes went to the station on June 4 to protest its failure to produce his sales, Payne and Jones failed or refused to meet with him, and thereafter failed or refused to return his telephone calls. I infer that they did so be- cause of Respondent's continuing animus against the Union, and find that, by such refusal to communicate with Coomes, and by failing to produce his sales, the Company constructively discharged him from the part- time sales work to which it had previously agreed. Al- though this is not alleged precisely in the complaint, it is closely related to the allegation concerning Coomes and was fully litigated. The Company's arguments about the layoffs of Reavis, Mitchell, McNatt, Findlay, and Peters are so devoid of merit as to require no comment. Although Robb re- turned to announcing work rather than to "routine work and sales available at minimum wage" described in the telegrams, there is a hiatus of 3 days between his layoff letter and the telegraphic offer, and the record is unclear as to whether he missed any work because of the layoff (G.C. Exhs. 71 and 72). The telegraphic offers themselves were mere window dressing, and Payne had good reason to believe that the discriminatees would not work at a level below their professional capacities at a reduction in pay. He was so confident of this, in fact, that he interviewed replace- ments for the announcers on May 14, before he laid them off. The original complaint alleges a discriminatory change in Mitchell's working conditions to more onerous and less desirable conditions (G.C. Exh. 1(g)).54 Respondent points out that Mitchell's hours were actually reduced, and that he suffered no reduction in pay. The Company argues therefore that the change was not an onerous one. However, Mitchell was a salaried newsman, and was willing to work the hours which, he felt, were necessary. He was given a split shift which caused him increased travel expenses, and was assigned part-time work as a "button-pusher." Company Supervisor MacKinnon char- acterized the change as an attempt to get Mitchell to "throw in the towel," and I find that the change in schedule was discriminatorily motivated and violative of Section 8(a)(3).65 It is significant that the change took place immediately after Mitchell and Findlay testified at the representation hearing. Findlay was directed to prerecord part of his show, so that Mitchell could play it. It is clear that Payne was retaliating against these two employees be- cause of their participation in the hearing. The complaint alleges that the change in Mitchell's working conditions b* The amended complaint also alleges, as violative of Sec. 8(aX5), a unilateral change in the working hours and schedules of Respondent's employees (G C. Exh 1(n), par 16(d)) 86 Joe & Dodre's Tavern, 254 NLRB 401 ( 1981), enfd. 666 F.2d 383 (9th Cit. 1982), Bucyrus Foodland, 247 NLRB 284 (1980), enfd as modified 655 F 2d 88 (6th Cir 1981). CENTRAL BROADCAST CO. 535 and the layoffs of Mitchell and Findlay were- caused by their testimonies at the representation hearing as well as their union activities in general , in violation of Section 8(aX3) and (4). The record supports these allegations. 3. The alleged 8(a)(5) violations Since the Union had majority status in an appropriate unit when it demanded recognition and bargaining on April 16, and the Respondent refused to honor this re- quest, the latter thereby engaged in a refusal to bargain which was unlawful under Section 8(a)(5). The Compa- ny's letter to the Union asserting a good-faith doubt of the Union's majority status was a misrepresentation. Al- though the Union did not present the cards themselves, it presented letters signed by seven out of eight employees in the unit the authenticity of which was not questioned by Respondent. The Company's May 11 letter to the Union about the forthcoming arrival of automated equip- ment constitutes a tacit admission of the Union 's repre- sentative status despite the disclaimer of such admission. If Respondent did not recognize the Union's status, why did it send the letter in the first place? Although the General Counsel requests a bargaining order based on Gissel,56 the complaint alleges a violation of Section 8(aX5), and an affirmative fording on this allegation is warranted by the evidence. Twin County Trucking, 259 NLRB 576, 586 ( 198 1).57 As described above, the amended complaint also al- leges, as violative of Section 8(a)(5), Respondent's unilat- eral changes of working hours and requirements on vari- ous dates, including May 20. Respondent's defense, that there were no regular working hours or schedules, is pa- tently absurd, since there is abundant evidence that the announcers worked according to a schedule, while the May 20 schedule itself is in evidence (G.C. Exh. 24). As described more fully above, the regular hours and working schedules of the employees were changed. The method of accomplishing work was also altered, i.e., Findlay was directed to prerecord his show rather than do it live. New duties were assigned to Mitchell. Peters' altercation with Payne over a delayed check concerned Respondent's new requirement that its employees pro- vide the Company with precise details on hours worked each day. An entire new schedule was announced on May 20. All of these changes were effected without notice to or consultation with the Union. I conclude that Respondent thereby violated Section 8(a)(5). Technical Careers Institutes, 259 NLRB 283 (1981). Finally, the amended complaint alleges that Respond- ent unilaterally laid off the eight announcers, and con- verted its existing programing system to a totally auto- mated programing system "through the acquisition and installation of automated equipment . . . resulting in the replacement of all of its regular full-time and regular part-time announcers and news department personnel" (G.C. Exh. 2). Respondent argues in its brief that it did give notice of its intention to automate, first in Payne's testimony on April 29 at the representation hearing, and again in its letter to the Union on May 11 telling the 68 NLRB Y. Gissel Packing Co, supra, fn 50 Union of its "acquisition of automated equipment to op- erate the radio station" (G.C. Exh. 18). Starting first with Respondent's position, Payne's testi- mony at the representation hearing, portions of which are quoted above, gave no explicit notice of a manage- ment decision to automate. The matter was merely under consideration. Payne testified at the unfair labor practice hearing that he concealed his decision during the repre- sentation hearing in order to take the market (and his an- nouncers) by surprise. As indicated above, I do not credit his later testimony, since it was intended to con- ceal the fact that he had not made a decision as late as April 29. The Company's May 11 letter was not effective notice, because the employees were already being laid off on the date the Union received the letter. One of them, Mitchell, was terminated the day before the Union received it. The letter took an undue amount of time to arrive, and the evidence suggests that it was predated. As described more fully above, Payne decided on the Shaeffer system about May 10, but then discarded it when it did not work properly. Thereafter, instead of re- placing the terminated announcers with automated equip- ment, as alleged in the amended complaint, he replaced them with supervisors, existing employees who had pre- viously done little or no announcing, and new employ- ees. The station actually ended up with two more an- nouncers than it had prior to the terminations. Only slight differences in programing were effected by the change. The small increase in prerecorded announc- ing did not alter the appropriateness of the unit described in the petition. This had been part of "announcing" before the change. The prerecording of a human voice for later transmission constitutes unit work in the same manner as live transmissions. It is true that there is an in- tervening electronic step-the recording process-but an individual's voice is ultimately projected over the air. Broadcasting is an electronic process, and the taping device merely adds another element leading to the same result-the projection of a human voice (or music) over large geographic areas. In Hampton Roads Broadcasting Corp., supra, the Board's rationale in determining the ap- propriateness of a unit of announcers referred to "[v]oice, diction, personality, the ability to persuade through the spoken word-these are the tests by which announcers are judged, and these are qualifications wholly unrelated to the jobs performed by . . . others. These special and highly individualistic qualifications necessarily serve to distinguish (those who appear before the microphone) from other employees .. ." (100 NLRB at 239). The same criteria apply to prerecorded announc- ing. I credit McNatt's testimony that the taping of a commercial involves the same characteristics, and find both live and prerecorded announcing to be unit work. Another slight difference effected by the new format was the assignment of button-pushing to a few individ- uals, usually in conjunction with clerical or other non- unit work. I exclude these individuals from the unit be- cause they do not speak into a microphone for immediate or later transmission over the airwaves, and therefore do not have the special characteristics of announcers. Fur- 58 See also Accurate Die & Mfg. Corp, 242 NLRB 280 (1979) ther, they usually have other nonprograming duties and 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD little community of interest with announcers. There was some shortening of the length of the news programs, but this actually took place prior to the permanent layoffs. The amended complaint is therefore technically incor- rect in its allegation that Respondent replaced the an- nouncers with automated equipment. However, the Company did unilaterally lay off the eight announcers purportedly because of automation, in the face of an obli- gation to bargain with the Union, and I find that by so doing it violated Section 8(a)(5). Central Virginia Corp., 254 NLRB 417 (1981). In accordance with my findings above, I make the fol- lowing CONCLUSIONS OF LAW 1. Central Broadcast Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Union, Local 73R, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct , Respondent committed unfair labor practices in violation of Section 8(a)(1) of the Act: (a) Telling employees that Respondent 's attorney said that the ugly head of unionism had arisen and that the station would have to do whatever was necessary to solve the problem. (b) Telling employees that a supervisor had recom- mended firing all the announcers, and that the company president and company attorney had said that Respond- ent had no intention of bargaining with the Union even if it won an election. (c) Telling an employee that his hours had been cut in order to cause him to quit, because of his support of the Union. (d) Telling an employee that another employee who had engaged in misconduct would not be terminated be- cause he was Respondent's only "No" vote in an elec- tion, and telling other employees that the company presi- dent, for the same reason, would not discharge the of- fending employee. (e) Telling employees that the company president said he was "going to show Tulsa how to handle unions," and that there would not be any employees and "nothing to negotiate about." (f) Offering an employee economic and other benefits in return for his abandonment of union activities, and telling employees that a supervisor had suggested such an offer. (g) Coercively interrogating employees about how "strong and tough" the Union was, and when it was "going to hit the Company with an injunction." (h) Telling an employee that employees who had been terminated because of their union activities were "only hurting themselves," and expressing the wish that "some- one" would tell them to find work elsewhere. (i) Telling an employee that other employees who had been terminated because of their union activities would never be rehired. (j) Telling an employee that new applicants for em- ployment would be required, as a condition of employ- ment, to agree not to become involved in union activi- ties. (k) Writing letters and making a speech to employees which conveyed the impression that unionization would threaten their employment and job security. 4. By engaging in the following conduct, Respondeent committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act: (a) Permanently laying off employees James C . Mitch- ell, James C. Peters, Joseph W. Findlay Jr., Barry Robb, Fru Fru Reed, Bob Reavis II, Rodney McNatt, and Jay T. Coomes about May 15 , 1982, because of their union activities and sympathies. (b) After voiding its layoff of Jay T. Coomes, con- structively discharging him as a part -time announcer on May 20, 1982, and constructively discharging him as a part-time salesman on June 4, 1982, because of his union activities and sympathies. 5. By requiring James C. Mitchell to engage in work which he had not done previously, which was less skilled than his regular position as a professional news- man, by assigning him a split shift which caused him an increase in travel expenses, and by terminating him and Joseph W. Findlay Jr., because of their testimonies at a representation hearing conducted by the Board, Re- spondent thereby violated section 8(a)(4) and (1) of the Act. 6. The following unit is now and has been at all times material herein an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time on- air an- nouncers and news department personnel employed by Respondent at its radio station KTFX-FM in Tulsa, Oklahoma, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. 7. Beginning about April 12, 1982, employees in the unit described above began designating the Union as their representative for the purposes of collective bar- gaining, and by April 16, 1982, and continuing thereafter, a majority of the employees in such unit had designated the Union as such representative. 8. At all times since April 16, 1982, the Union has been and is the exclusive representative of the employees in the unit described above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 9. By engaging in the following conduct, Respondent committed unfair labor practices in violation of Section 8(a)(5) and (1) of the Act: (a) About April 16, 1982, and thereafter, refusing the Union's demand to recognize and bargain with it as the exclusive representative of the employees in the unit de- scribed above. (b) Beginning in late April 1982 and thereafter unilat- erally changing the regular hours, duties, and working conditions of its employees, assigning new duties, chang- ing the method whereby work was to be accomplished, CENTRAL BROADCAST CO. limiting certain work to specified hours of the day, re- quiring that overtime work first be cleared with manage- ment, and requiring employees to specify the exact hours worked in each day-all without notice to or opportuni- ty for consultation with the Union. (c) About May 15, 1982, unilaterally laying off the eight employees listed above, in a purported attempt to replace them with an automated system of broadcasting, without notice to or opportunity to consult with the Union. (d) Unilaterally installing a sequencer at its radio sta- tion, without giving the Union notice thereof and an op- portunity to bargain over the effects of the installation. 10. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not violated the Act except as specified herein. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Because of the pervasive nature of Respondent's unfair labor practices, I shall recommend issuance of a broad order. Hickmott Foods, 242 NLRB 1357 (1979). It having been found that Respondent unlawfully laid off James C. Mitchell, James Peters, Joseph W. Findlay Jr., Barry Robb, Fru Fru Reed, Bob Reavis II, Rodney McNatt, and Jay T. Coomes about May 15, 1982, that it immediately recalled Coomes but constructively dis- charged him as a part-time announcer on May 20, 1982, and as a part-time salesman on June 4, 1982, and that it reinstated Barry Robb about 3 days after terminating him, it is recommended that Respondent be ordered to offer Jim Mitchell, Jim Peters, Joseph W. Findlay Jr., Fru Fru Reed, Rodney McNatt, and Jay T. Coomes im- mediate and full reinstatement to their former posi- tions,58 or, if any such positions no longer exist, to sub- stantially equivalent positions , dismissing if necessary any employee hired to fill the position, and to make each of them including Robb, whole for any loss of earnings he or she may have suffered by reason of Respondent's un- lawful conduct, by paying each of them a sum of money equal to the amount he or she would have earned from the date of his or her unlawful layoff to the date of an offer of reinstatement or, in the case of Robb, to the date of his reinstatement, less net earnings during such period, with interest thereon to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).b9 Respondent argues in its brief that a reinstatement order "might cause chaos." These asserted fears are groundless, and are based on Respond- ent's dislike of union adherents in its station . A reinstate- ment order would merely place the discriminatees back in the existing jobs from they were removed. 58 The offer to Coomes shall include both part-time announcing and part-time sales work. 59 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 537 It also having been found that Respondent unlawfully required James C. Mitchell to work in a capacity of lesser skill than his regular work as a newsman, and as- signed him a split shift which caused him greater travel expenses, it is recommended that Respondent be ordered to assign him on reinstatement to his former work, dis- missing if necessary any employee hired to perform such work. If such work does not exist in an amount equal to the previous work, to the extent of such deficiency Re- spondent shall assign Mitchell to substantially equivalent work, in which category I include announcing work and from which category I exclude button-pushing. It is also recommended that Respondent be ordered to make Mitchell whole for his additional travel expenses, with interest thereon computed as described above. Respondent's argument that Findlay, Peters, and McNatt should not be reinstated because of alleged era- sure of 87 tapes is without merit. The credited evidence shows that tape erasures were routine at the station, and that none was destroyed maliciously by the employees. One carpet commercial apparently was erased under cir- cumstances which are not explained, but this isolated in- cident hardly justifies the magnitude of Payne's accusa- tions. The only accusation at the time was made to Peters by MacKinnon, quoting Payne, who was silent until settlement discussions shortly before the hearing, except for a telephone call to Coomes. I conclude that Payne manufactured the accusation and did not believe in the alleged misconduct. The smoking and eating in control room accusation was also fallacious-MacKinnon was in violation of the rule. Findlay's describing the "Bill Payne Show" with the sound of a flushing toilet was not objected to at the time, has not been shown to be out of character with other humor on the station, and serves further to illustrate the extent to which Respond- ent has dredged up isolated afterthoughts to justify denial of reinstatement. With respect to Respondent's violations of Section 8(a)(5) and the outstanding representation petition, the Supreme Court pointed out in Gissel, supra, that the Board's traditional remedies may be ineffective in some cases and a bargaining order may be warranted in lieu of an election. Thus, in cases marked by "outrageous" and "pervasive" unfair labor practices such nature that their coercive effect cannot be eliminated by traditional reme- dies, a bargaining order may be appropriate even in the absence of union majority status. The same remedy may also be needed in "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes," where the Union had a majority at one point. If the Board finds that the possibility of eras- ing the past unfair labor practices and of ensuring a fair election by traditional remedies is slight, then reliance upon employee sentiment as expressed in the cards, and a bargaining order, may be required. A third category of minor and less extensive labor practices will not sustain a bargaining order (Gissel, supra). I conclude that the facts in this case place it in the first category of cases marked by "outrageous" and "perva- sive" unfair labor practices. Respondent, by threatening 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the announcers with loss of employment and by perma- nently laying off all the union adherents, committed what the Board has termed "hallmark" violations with- out any mitigating circumstances, thus justifying issuance of a bargaining order. Highland Plastics, 256 NLRB 146, 147 (1981). The Board's issuance of bargaining orders in cases similar to this one has been sustained by at least six different circuit courts of appeal.80 The fact that there has been a turnover of employees to the extent that the original employee complement is no longer in the unit is no deterrent to issuance of a bar- gaining order. Indeed, the absence of such employees is the direct result of Respondent's unfair labor practices which warrant such an order. "The Board has consist- ently held that the validity of a bargaining order depends on an evaluation of the situation as of the time the unfair labor practices were committed and, therefore, to delete such an order on the basis of employee turnover would reward, rather than deter, an employer who engaged in unlawful conduct during an organizational campaign." Highland Plastics, 256 NLRB at 147. As described above, the Union's demand was made on April 16, the date achieved majority status. Respondent's unlawful conduct began on April 20, the date of Payne's first speech which I have found to contain unlawful statements. The General Counsel urges April 20 as the date Respondent's bargaining obligation began. In dis- agreement, I fmd that April 16, when the Union made its demand, was the beginning date of the bargaining obliga- tion. Hasbro Industries, 254 NLRB 587, 588 fn. 5 (1981), enfd. as modified 672 F.2d 978 (1st Cir. 1982). The order should also include a requirement that Re- spondent negotiate with the Union over its unilateral changes in the working hours, schedules, and conditions of its employees, its alterations in the method by which work is to be accomplished, the new duties assigned to employees, the requirement that overtime work be first cleared with management, and the requirement that em- ployees provide management with details on exact hours worked each day. Finally, Respondent should be required to bargain with the Union over its permanent layoff of the announc- ers, purportedly because of the installation of automated equipment. With respect to the equipment itself, little would be gained by requiring Respondent to bargain over the Shaeffer system, since it was in place only a few days. Nor is it appropriate to require the Company to bargain over the decision to purchase the sequencer, since that decision antedated the advent of the union 60 NLRB v Hasbro Industries, 672 F.2d 978 (1st Or 1982), enfg as modified 254 NLRB 587 (1981), NLRB v. Daybreak Lodge Nursing Home, 585 F 2d 79 (3d Cir 1978), enfg 230 NLRB 800 (1977); NLRB v Robin American Corp, 654 F.2d 1022 (5th Cir 1981), enfg as modified 245 NLRB 822 (1979); Chromaloy Mining & Minerals v. NLRB, 620 F.2d 1120 (5th Or. 1980), enfg. as modified 238 NLRB 688 (1978), NLRB v. C & E Stores, 611 F.2d 654 (6th Cu 1979), enfg 229 NLRB 1250 (1977); NLRB Y. Digital Paging Systems of Toledo, 659 F 2d 725 (6th Cir 1981), enfg. 249 NLRB 112 (1980), NLRB v. Suburban Ford, 646 F 2d 1244 (8th Or 1981), enfg as modified 248 NLRB 364 (1980), Tipton Electric Co. v. NLRB, 621 F.2d 890 (8th Cit. 1980), enfg. 242 NLRB 202 (1979), NLRB v. Bighorn Beverage, 614 F.2d 1238 (9th Cir 1980), enfg as modified 236 NLRB 736 (1978), Pay 'N Save Corp v NLRB, 641 F 2d 697 (9th Cir 1981), enfg 247 NLRB 1346 (1980) movement. However, it is appropriate to require Re- spondent to bargain over the effect of the installation of the sequencer. Further, because of Respondent's clearly demonstrated proclivity to use sophisticated broadcasting equipment as a pretext for discrimination against its em- ployees, the order should include a requirement that the Company bargain with the Union over any future deci- sion to purchase equipment affecting its employees, and the effect of the installation of any such equipment. The General Counsel goes further and argues that the Company should be required to bargain over the effect of its decision to convert "its existing programming system to a totally automated programming system," that the order should include restoration of the status quo ante, a return to the conditions of work preceding instal- lation of the new equipment, a discontinuance of the new equipment, and reinstallation of the equipment in oper- ation immediately prior to May 15, 1982. The General Counsel's position goes too far, essential- ly because Respondent did not, as alleged, install a total- ly automated programing system. Total automation is really impossible as long as the Employer utilizes human voices, even though he prerecords them for later trans- mission, since the prerecording constitutes nonautomated unit work. Even with the Shaeffer or other so-called fully automated systems, there must be some prerecord- ing of human voices, in commercials, "intro's," complete shows, etc., and this is nonautomated unit work. It is theoretically possible that a local station could operate without announcers by hooking up to a satellite system, such as the abortive ABC Super Radio program, operat- ed by another employer under contract with the station owner. However, this did not take place in this case. After all Payne's multiplicity of deals, what he ended up with was new equipment in March plus a sequencer which he had back-ordered prior to the union move- ment, and which he installed after the Union had achieved representative status. It is unnecessary to re- quire the Company to discontinue its use or that of the other new equipment because a complete remedy can be provided by requiring Respondent to bargain over the effect of the installation of the sequencer, the purchase of future equipment, the layoffs of the announcers, the other unilateral changes in working conditions described above, and to reinstate the discriminatees to the announc- ing jobs which, despite the new equipment, are still available. Most of the new equipment was delivered in March, prior to the advent of the union movement, and was intended to improve the sound of the station. The record discloses no employee objection to that equip- ment. To require discontinuance of its use "would be unduly burdensome and . . . unnecessary to effectuate the policies of the Act." Great Chinese American Sewing Co., 227 NLRB 1670 (1977). It is also recommended that Respondent be required to post appropriate notices to remove from its personnel records all references to its unlawful conduct toward its employees, and to notify each of them in writing that this action has been taken and that evidence of the un- lawful discipline imposed on them will not be used as a basis for future personnel actions against them. [Recommended Order omitted from publication.]