Wxon-Tv, Inc.

WXON-TV WXON-TV, Inc. and National Association of Broadcast Employees and Technicians, AFL- CIO. Case 7-CA-25199 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On July 29, 1986, Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a brief, the Gener- al Counsel filed cross-exceptions and a brief, and the Respondent, the General Counsel, and the Charging Party filed answering briefs. 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, cross-exceptions, and briefs and has decided to affirm certain of the judge's rulings, findings, and conclusions and to re- verse others, as set forth below. 1. The Respondent operates a television broad- casting station. At the hearing the parties stipulated that about August 30, 1985, the Respondent elimi- nated unilaterally its production department with- out bargaining with the Union as bargaining repre- sentative of the employees 1 and that the decision to eliminate the department resulted in the layoff of three bargaining unit employees. The judge found that the failure to bargain over this decision violat- ed Section 8(a)(5) and (1) of the Act. The Re- spondent contends that the decision to eliminate the production department did not turn on labor costs within the meaning of Otis Elevator Co., 269 NLRB 891 (1984), and, therefore, there was no duty to bargain regarding this matter. We find merit in the Respondent's contention and find that the decision to eliminate the production department was not a mandatory subject of bargaining. In addition to its broadcasting of television pro- graming and the sale of commercial air time, the Respondent also maintained a production depart- ment that produced commercial and public affairs programing. In February 1985 the Respondent's general manager-vice president, Douglas Johnson, met with two of the three employees in the pro- duction department, Carl Scott and Robert Schade. According to Scott, Johnson indicated that the Re- spondent was concerned with the falling revenues of the production department. Johnson produced i The parties stipulated that on August 30, 1985, the Union was certi- fied as bargaining representative of all employees of the Respondent di- rectly involved in the production , presentation, and transmission of pro- grams 615 accounting ledgers to the employees and stated, ac- cording to Scott, that in 1984 production income had fallen to $6900 while production salaries had reached $184,000. Johnson pointed out that since 1982 production income had "gone way down" and production salaries had "gone way up." It is undisputed that production income formerly was in the range of $100,000 annually. Johnson asked Scott and Schade to survey the production rates that production companies and other television stations charged their clients. John- son also asked the production employees to work more closely with the Respondent's sales depart- ment in order to help generate more production income. Scott testified that Johnson advised them that unless the production department generated greater income, continuation of the production de- partment would be in jeopardy.2 The record shows, and the judge found, that the Respondent thereafter increased its efforts to obtain additional customer use of its production department and to increase commercial production. General Manager Johnson testified in this regard that many of the Respondent's competitors had special effects equip- ment that the Respondent did not possess, but that it was determined that obtaining such equipment was not economically justified. The uncontroverted testimony of General Man- ager Johnson establishes that 6 months after his February 1985 meeting with Scott and Schade, and despite the increased efforts to increase commercial business, production "did not increase one iota." Indeed, the judge found that the production de- partment was not economically viable.3 On August 30, 1985, the Respondent decided to eliminate the production department and did so without bargain- ing with the Union. The production department's three employees were terminated. In Otis Elevator Co., 269 NLRB 891 (1984), the Board held that management decisions that affect the basic direction or nature of the business are ex- cluded from the mandatory bargaining subjects de- scribed in Section 8(d). The critical factor, as iden- tified by the Board plurality, is whether the deci- sion turns upon a change in the nature or direction of the business, or turns upon labor costs. Id. at 892. In the instant case, the judge found summarily that "the primary factor appears to have been the production department salaries against revenues" 2 The judge concluded erroneously that there was no discussion at this time concerning the possibility of eliminating the production department 2 There is no contention that the decision to eliminate the production department was motivated by anything other than valid business reasons Accordingly, we disavow the judge's comments that the timing of the decision in relation to the employees' designation of the Union as their bargaining representative "suggests discrimination in the Respondent's August 30 decision " 289 NLRB No. 80 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that the decision, therefore, turned substantial- ly upon labor costs. Thus, the judge found that General Manager Johnson's express reference to salaries in relation to declining income at the Feb- ruary 1985 meeting with employees Scott and Schade established that the predominant reason for elimination of the production department was labor costs. We disagree. Contrary to the judge, we are unable to find under the circumstances of this case that the Re- spondent's decision turned upon labor costs simply by virtue of General Manager Johnson's reference to salaries at the February 1985 meeting. Thus, the evidence is clear that the production department had suffered a precipitous decline in revenues from approximately $100,000 to, at most, $6900.4 Gener- al Manager Johnson attempted to increase revenues thereafter through increased sales efforts to no effect. Further, it is uncontradicted that the Re- spondent's efforts to do so were limited by the ab- sence of certain special effects equipment that it de- cided was not cost effective to procure. After a 6- month effort, income generated by the production department remained unchanged. On these facts, we find that the essence of the decision to eliminate the production department was based on the failure of that department to gen- erate revenues sufficient to justify its continued ex- istence; that consequently it did not constitute a mandatory subject of bargaining because it turned on a fundamental change in the direction of its business.5 Thus, the Respondent was faced with a situation in which a department employing three employees and utilizing equipment at hand generat- ed income that was, beyond question, extremely low and essentially nominal in character. Although Johnson made specific reference at the February 1985 meeting to $184,000 in production department salaries, and perhaps this played a role in triggering an attempt to increase revenues , it does not follow that the decision, therefore, must have "turned upon" labor costs. Inland Steel Container Co., 275 NLRB 929, 937 (1985), enfd. sub nom. Steelworkers Local 2179 v. NLRB, 822 F.2d 559 (5th Cir. 1987). Rather, it appears that production revenues were so low that, in the absence of a substantial increase in income, the department was not economically viable irrespective of salary levels. In this context, the logical import of Johnson's reference to in- creasing salary levels, in relation to decreasing income, was to demonstrate the plight of the de- 4 Although employee Scott testified that Johnson described 1984 pro- duction income as $6900, Johnson testified that it was in the range of $4000-5000. 5 These findings are warranted under any of the views expressed in Otis Elevator Co, supra partment and to impress on the employees the need to increase revenues. This likelihood is supported by Johnson's contemporaneous instructions to co- ordinate matters with the Respondent's sales de- partment and by Johnson's comments that, unless the production department generated greater income, its future would be in jeopardy. Accord- ingly, we shall dismiss that portion of the com- plaint alleging that the Respondent unlawfully eliminated the production department without bar- gaining with the Union. 2. The judge also found that even if the decision to eliminate the production department was not a mandatory subject of bargaining, the Respondent still had the obligation to negotiate with the Union concerning the effects of that decision on wages, hours, and employment conditions of bargaining unit employees. The Respondent contends in its ex- ceptions that the complaint did not encompass any allegations that the Respondent failed to bargain over effects, as found by the judge. We find merit in the Respondent's exception. With regard to the elimination of the production department, the complaint alleged in its entirety that the Respondent violated Section 8(a)(5) and (1) when it "unilaterally eliminated the production department, resulting in the lay off of three em- ployees without bargaining with the Charging Party." As contended by the Respondent, the com- plaint does not allege a separate unlawful refusal to bargain over the effects of the elimination of the department on wages, hours, and employment con- ditions. More particularly, the allegedly unlawful conduct placed in issue by the General Counsel was the Respondent's failure to bargain over the decision to eliminate the production department, i.e., the unilateral discontinuance of the production department without first bargaining with the Union. Indeed, at the hearing the parties limited the factual issues to be litigated by stipulating that the Respondent took unilateral action without bar- gaining "over the decision to eliminate the depart- ment." Further, neither the General Counsel nor the Union contended at the hearing or in their posthearing briefs that the Respondent had not only failed to bargain over the decision to eliminate the production department but also separately failed to bargain in violation of the Act over the effects of that decision.6 Accordingly, we agree with the Respondent that the issues litigated did not encompass the effects-bargaining violation 6 We also note that although both the General Counsel and the Union filed answering briefs in response to the Respondent's exceptions, neither party took issue with the Respondent's contentions regarding the judge's allegedly erroneous findings as to effects bargaining. WXON-TV found by the judge, and we shall delete those find- ings from our Order.7 3. By letter dated November 11, 1985, the Union requested certain information from the Respondent pertaining to the following matters: the reasons for the termination of bargaining unit employees Joseph Pzenowagis, Robert Schade, and Carl Scott; accompanying documents referring to that decision; the status of in-house production work; the status of public service broadcasting spots; pro- duction service subcontracting; duties of the chief operator; and bargaining unit work being per- formed by supervisory personnel. That same day, November 11, 1985, the Union signed the unfair labor practice charge, officially filed on November 12, 1985, alleging that the Re- spondent violated Section 8(a)(1), (3), and (5) by unilaterally changing terms and conditions of em- ployment of bargaining unit employees, assigning quasi-supervisory duties to unit employees, termi- nating and discriminating against employees, and refusing to provide requested information. By letter dated December 4, 1985, the Respond- ent, through Labor Relations Director Shirley Moore, responded to the Union's information re- quest. The letter, noting that the request was filed only I day prior to the filing of the unfair labor practice charge, advised the Union that most of the requested information would be provided to the Board in the course of the investigation and that, as a result, the Respondent would not provide the in- formation directly to the Union. By letter of De- cember 6, 1985, the Union demanded that the re- quested information be supplied directly to the Union. On December 31, 1985, the Regional Direc- tor for Region 7 issued the complaint in this case. Thereafter, by letter of January 8, 1986, counsel for the Respondent provided the Union with a copy of its position statement submitted to the Region in connection with the investigation of this case. Counsel for the Respondent indicated in the letter that the Union should advise her in the event that additional questions remained unanswered and that 7 We find this case factually distinguishable from the Board's recent decision in Litton Business Systems, 286 NLRB 817 (1987). In that case, the Boatd found that an employer violated Sec. 8(aX5) and (1) by refus- ing to bargain over its decision to lay off unit employees as an effect of its decision to convert its plant machinery to a new process . In Litton, however, in contrast to the instant case , the complaint separately alleged an unlawful failure to bargain over "the decision to lay off employees," and effects bargaining issues were fully litigated Id. at fn. 7. Further, in Litton the General Counsel did not contend to the Board that the under- lying decision to convert the machinery was a mandatory subject of bar- gaining, thereby framing the issue to be decided , under the facts of that case, as pertaining to the decision to lay off employees Here, the issue litigated by the General Counsel was whether the unilateral decision to eliminate the department entirely was a mandatory subject of bargaining because it turned on labor costs; and, as noted, neither the General Coun- sel nor the Union made any specific contention regarding an effects bar- gaining violation 617 an attempt would be made to provide appropriate responses. The parties stipulated that there was no response to the January 8, 1986 letter. There is no evidence that the Union otherwise sought to bar- gain over the matters contained in the unfair labor practice charge and in the November 11, 1985 re- quest for information. The judge found that the Respondent violated Section 8(a)(5) and (1) by not providing the re- quested information. The Respondent excepts to that finding, contending that under the circum- stances presented in this case, the Union's request for information was not for the purpose of collec- tive bargaining but was for a purpose related to its unfair labor practice charge. We find merit to this contention and reverse the judge's finding of a vio- lation. It is axiomatic that a collective-bargaining repre- sentative is entitled to information relevant and necessary to the proper discharge of its duties as the collective-bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1955). In the instant case, however, it appears that the Union elected to pursue resolution of the matters sought in its No- vember 11, 1985 request for information through the Board's unfair labor practice procedures rather than through the collective-bargaining process. Thus, on the same day that it requested information from the Respondent, the Union signed, and by the next day had filed, an unfair labor practice charge raising virtually the identical matters sought in the information request-the unilateral elimination of the production department, the elimination of unit work by unilateral creation of a supervisory posi- tion, and the discriminatory termination of employ- ees because of their union activities. Indeed, the unfair labor practice charge alleges that the Re- spondent unlawfully failed to provide information, pertaining to the very matters contained in the in- formation request made on the same day that the charge was prepared. Thus, before the Respondent even had knowl- edge of the request for information, let alone an opportunity to respond, the Union was charging it with violating the Act by failing to provide the re- quested information. Further, apart from the infor- mation request itself, there is no evidence that the Union initiated any contact whatsoever with the Respondent in any bargaining context regarding the matters contained in the information request and the unfair labor practice charge. Thus, it is evi- dent that the Union chose to prosecute these mat- ters through the Board's unfair labor practice pro- cedures rather than to bargain with the Respond- ent. Its information request, therefore, under the facts of this case, was akin to a discovery device 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pertinent to its pursuit of the unfair labor practice charge rather than to its duties as collective-bar- gaining representative. Huck Mfg. Co., 254 NLRB 739, 755 (1981); American Oil Co., 171 NLRB 1180, 1188 (1968). Accordingly, we shall dismiss that portion of the complaint alleging that the Respond- ent violated Section 8(a)(5) and (1) by failing to provide information." 4. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) by refusing to rein- state employee JoAnn Thompson.9 In adopting the judge's findings, however, we note, in addition to the judge's analysis of the Respondent's defense,10 the following with respect to the evidence perti- nent to the Respondent's evidentiary burden under Wright Line, 251 NLRB 1083 (1980)-a burden which, like the judge, we find the Respondent has not carried. Thompson began her employment with the Re- spondent in 1983. On September 6, 1985, Thomp- son commenced an approved unpaid pregnancy leave of absence for the birth of her child. For sev- eral weeks prior to her leave of absence, she worked in the Respondent's traffic department as a traffic assistant preparing "facility sheets." The fa- cility sheets prepared by Thompson contain titles and segment times for commercials and instruct the station's engineers when commercials are to be aired. Commercials, however, are often not aired, and during each month the Respondent prepares "pre- emption forms" that contain information concern- ing each commercial that was not broadcast. Pre- emptions may occur in connection with an error in the preparation of facility sheets in the traffic de- partment or they may occur because of broadcast scheduling that does not permit the commercial 8 Further, to the extent the November 11, 1985 request pertained to the decision to eliminate the production department, it did not concern a mandatory subject of bargaining and, therefore , the Respondent was not obligated to provide requested information bearing on that decision. UOP Inc., 272 NLRB 999, 1000 (1984); Otis Elevator Co, supra at 894 In agreeing with his colleagues that the Respondent did not violate Sec. 8(a)(5) and (1) by failing to furnish the requested information, Member Johansen reties on the fact that there had been no refusal to the Union's sole request for the information when it filed its charge alleging such a refusal. 8 We adopt the judge's findings that the General Counsel met her burden under Wright Line to establish that Thompson 's union activities were a motivating factor in the failure to reinstate , noting Thompson's role as a union activist, the Respondent's knowledge of Thompson's role, and the disparate treatment directed toward Thompson in comparison to all other employees who took pregnancy leave, all of whom were rein- stated upon application 1° In rejecting the Respondent's defense for not reinstating Thompson, the judge concluded "that the Respondent's contention that Thompson was an incompetent employee was a pure fabrication " He deemed the evidence submitted to show her alleged incompetence to be "unpersua- sive" and "not credible " Although these conclusions of the judge sug- gest that he viewed the Respondent 's assertions as purely pretextual, he nevertheless appears to have considered the merits of those assertions on their own terms spot. It is clear, however, that they occur in the regular course of business. It is also clear that the airing of commercials provides the principal source of income for the Respondent, and that when a commercial is not broadcast, i.e., "preempted," the Respondent does not get paid for it. About November 1, 1985, Thompson sought to return to her traffic assistant position. Her request was denied. The Respondent, through General Manager Douglas Johnson, advised Thompson by letter of November 1, 1985, that she would not be reinstated because her job performance prior to the approval of her leave had been unsatisfactory. Johnson indicated further that Thompson's former position would be eliminated shortly and would be performed automatically by computer. 11 The Respondent contends that Thompson was not reinstated because of her unsatisfactory job per- formance in the preparation of facility sheets. More specifically, the Respondent asserts that it lost sub- stantial revenues from Thompson's errors in pre- paring facility sheets, as a result of which a number of commercials were preempted, and hence no pay- ment was received. Contrary to the Respondent, we find that the Respondent has failed to establish that Thompson would not have been reinstated, for the reason asserted by it, even without her union activities. At the outset, we note that, as the judge found, the amount of revenue loss caused by the failure to broadcast preempted commercials normally is in the range of approximately $3000 monthly. During Thompson's tenure in writing facility sheets, essen- tially around August 1985, the revenues lost be- cause of preempted commercials totaled $3630. Ac- cording to the preemption forms for that period, $2060 was attributed to facility sheets prepared by Thompson and $1570 to other sources. Critically, the Respondent presented no documentary evi- dence for any other monthly period detailing the usual monthly breakdown of revenue losses con- tained in its preemption forms, notwithstanding that the Respondent admittedly had in its posses- sion thousands of commercial contracts for a 12- month period, containing numerous preemption forms. 12 " The parties stipulated that about November 19, 1985, the Respond- ent unsuccessfully attempted to use a computer program to automate the "facility function" in the traffic department and that the department has operated subsequently in the same manner as it had prior to August 1985 i2 The judge noted that the Respondent "brought forth approximately nine boxes of materials representing contracts for about 6 months before and 6 months after the events of this matter which contained many of the preemption sheets " The only preemption sheets introduced into evi- dence, however, were the sheets placed in Thompson's file during the period she was employed in the traffic department. WXON-TV More particularly, the record contains no proba- tive documentary evidence concerning relative per- centage of revenue losses normally attributable to the errors in the traffic department, as distinguished from scheduling events, or the relative percentage of traffic department errors normally attributable to the employee occupying the position occupied by Thompson during her tenure in the traffic depart- ment.13 Further, the total amount of revenue lost during Thompson's traffic department tenure ($3630) is not disproportionate to the norm ("ap- proximately" $3000), and $1570 of the revenue losses during that period was attributable to other sources. Indeed, even if it is assumed that the total revenue losses during the period Thompson per- formed as a traffic assistant exceeded the monthly average by $630, that amount conceivably may have been wholly or primarily attributable to dis- proportionate losses from sources outside the traffic department during that period. In short, even assuming that revenue losses of $2060 were attributable to Thompson's preparation of facility sheets, the Respondent has not demon- strated that Thompson's job performance exceeded the usual range of preemption losses which the Re- spondent itself tolerated in the normal course of business.14 Accordingly, we adopt the judge's find- ing that the failure to reinstate Thompson violated Section 8(a)(3) and (1) of the Act. 5. We agree with the judge that the Respondent coercively interrogated employee Carl Scott in vio- lation of Section 8(a)(1). The record shows that several days before the Board-conducted election in August 1985, pursuant to which the Union was certified as bargaining representative, General Manager and Vice President Douglas Johnson called production department employee Carl Scott into a management office. This meeting was one of a series of meetings conducted by Johnson with in- dividual employees during the week preceding the election. At the outset of the meeting with Scott, Johnson indicated that he did not care one way or the other about the Union and that if it was time for the Union to come in or not, it did not make much difference. Johnson then asked Scott whether he was in favor of the Union. After Scott indicated he was not in favor of the Union, Johnson stated that Scott should not worry about their conversa- tion the previous February regarding the future of the production department. Johnson also stated, in reference to the Union, that "he wanted to squash 18 The traffic department is composed of a traffic manager, a traffic assistant, and another individual whose specific duties are not detailed in the record 14 We also note that apart from the absence of probative documentary evidence, the judge found that Traffic Manager Petrykowski's testimony regarding Thompson's job performance was not credible 619 this thing and squash it big." The judge also found that Johnson told Scott that voting the Union in was akin to a slap in the face to management. 1 s Applying Sunnyvale Medical Center, 277 NLRB 1217 (1985), we find that Johnson's interrogation of Scott under the circumstances reasonably tended to restrain, coerce, or interfere with Section 7 rights. First, we note that the inquiry was made by a high management official, Johnson, who occupied the positions of general manager and vice president and who, the previous February, had informed production employee Scott that the future of the production department was in jeopardy. Thus, at the time of the inquiry, Scott was aware that John- son essentially was reevaluating the future of Scott's job status. Indeed, Johnson's oblique refer- ence to their February conversation served to em- phasize this reality. Second, the inquiry took place in a one-to-one encounter in a management office only days before the representation election, and the nature of the information sought in this encoun- ter concerned Scott's preference in that election. Third, considering the encounter as a whole, the interrogation occurred in the context of Johnson's highly charged expressions of hostility toward the Union. Thus, Johnson indicated to Scott that he wanted to "squash" the Union and "squash it big" and expressed the view that a favorable vote for the Union would be a slap in the face to manage- ment. Although at the outset of the encounter Johnson expressed assurances of neutrality regard- ing the Union, these assurances were directly con- tradicted by his subsequent comments, and could not be taken at face value. In these circumstances, we agree with the judge that the interrogation vio- lated Section 8(a)(1) of the Act.16 REMEDY Having concluded that the Respondent has en- gaged in certain unfair labor practices, we shall order the Respondent to cease and desist and to ib In finding that an interrogation regarding Scott's union sympathies took place, it appears that the judge credited elements of both Scott's version of the conversation and elements of Johnson's version Thus, the judge found that Johnson stated that employees' voting for the Union would be considered a slap in the face of management , which is consist- ent with Johnson's version, whereas Scott's version is that Johnson indi- cated that if the employees voted in the Union , "it was just like the em- ployees saying, fuck you, management " Further, Scott testified , as found by the judge, that Johnson asked him whether he was for the Union, whereas Johnson testified that he did not ask Scott what his feelings were with regard to the Union and that Scott voluntanly indicated he was not for the Union None of the parties filed exceptions to the judge's resolu- tions of credibility 16 We find no ment to the Respondent's contention that the judge erred in not permitting the Respondent's counsel to question Scott re- garding whether he subjectively perceived himself to be coerced 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD take certain affirmative action designed to effectu- ate the policies of the Act.' 7 Having concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally creating a new supervisory position to include bar- gaining unit work, without bargaining with the Union,1' we shall order the Respondent, if the Union so desires, to rescind the position of assistant chief operator. Kendall College, 228 NLRB 1083 (1977). Having concluded that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to re- instate employee JoAnn Thompson to her former position, we shall order the Respondent to offer JoAnn Thompson immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to her seniority or any other rights or privi- leges previously enjoyed, and make her whole for any loss or earnings and other benefits she may have suffered in accordance with the provisions of F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded.' 9 ORDER The National Labor Relations Board orders that the Respondent, WXON-TV, Inc., Southfield, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Coercively interrogating employees concern- ing their interest or their activity on behalf of the Union. (b) Unilaterally creating a new supervisory posi- tion to include bargaining unit work without bar- gaining with the Union. (c) Refusing to reinstate an employee who took maternity leave of absence because of her interest in and activity on behalf of the Union. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) If the Union so desires, rescind the position of assistant chief operator, and accord recognition 17 Under the circumstances of this case , and given the nature of the violations found, we have substituted a narrow cease-and-desist order for that recommended by the judge We have also deleted the ,judge's recom- mended inclusion of a visitatorial clause . Cherokee Marine Terminal, 287 NLRB 1080 (1988). 18 No exceptions were filed to the judge's findings on the merits re- gardmg this allegation. 19 283 NLRB 1173 (1987). Interest will be computed at the "short- term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 to the Union as the collective-bargaining represent- ative of the former occupant of that position who was in the bargaining unit. (b) Offer JoAnn Thompson immediate and full reinstatement to her former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section above. (c) Remove from its files any reference to the unlawful refusal to reinstate JoAnn Thompson and notify her in writing that this has been done and that her alleged poor work performance will not be used against her in any way. (d) 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. (e) Post at its Southfield, Michigan facility copies of the attached notice marked "Appendix."20 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (t) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 20 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 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. WXON-TV WE WILL NOT coercively interrogate employees concerning their interest in or activity on behalf of National Association of Broadcast Employees and Technicians, AFL-CIO. WE WILL NOT unilaterally create a new supervi- sory position to include bargaining unit work with- out bargaining with the Union. WE WILL NOT refuse to reinstate an employee who took maternity leave of absence because of her interest in or activity on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, if the Union so desires, rescind the po- sition of assistant chief operator and WE WILL accord recognition to the Union as the collective- bargaining representative of the former occupant of that position who was in the bargaining unit. WE WILL offer reinstatement to JoAnn Thomp- son to her former job or, if that job no longer exists, to a substantially equivalent position of em- ployment and WE WILL make her whole for any loss of wages or other rights and benefits she may have suffered as the result of our discrimination against her, less any net earnings, plus interest. WXON-TV, INC. Mark D. Rubin, Esq., for the General Counsel. Elaine Grand Stulberg, Esq. (Sommers, Schwartz, Silver & Schwartz), of Southfield, Michigan, for the Respond- ent. Samuel C. McKnight, Esq. (Klimist, McKnight, Sale & McClow), of Southfield, Michigan, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at Detroit, Michigan, on 14 and 15 April 1986, on the General Counsel's complaint that alleged that the Respondent engaged in certain vio- lations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (29 U.S.C. § 151 et seq.)' In brief it is alleged that the Respondent unlawfully in- terrogated an employee, discriminated against an em- ployee by refusing to reinstate her following a maternity leave of absence, and breached its obligations to bargain in good faith by: unilaterally eliminating the production department (resulting in the layoff of three bargaining unit employees), unilaterally creating a supervisory posi- tion and vesting it with bargaining unit duties, unilateral- ly transferring bargaining unit work to supervisors, and 1 The charge was filed on 12 November 1985, and the complaint issued on 31 December 1985. 621 refusing to furnish the Charging Party certain requested information.2 The Respondent generally denied that it committed any unfair labor practices and affirmatively contends that JoAnn Foggie Thompson3 was not reinstated following her maternity leave of absence because of poor work performance. The Respondent contends that whether to eliminate the production department was not a mandato- ry subject of bargaining, and therefore its decision could be made unilaterally. The Respondent contends that during the course of the investigation of the charges it furnished the information requested by the Charging Party. The Respondent argues there was no change in the bargaining unit work done by supervisors; and final- ly, the Respondent denies that the interrogation of em- ployees was unlawful. On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is a Michigan corporation engaged in the operation of an independent UHF television broad- casting station. In this business, the Respondent annually has gross revenues in excess of $500,000, and broadcasts nationally advertised products the revenue from which exceeds $50,000, utilizes national news services for which it pays in excess of $ 10,000, and has purchased goods, products, and materials with value in excess of $50,000 directly from points outside the State of Michigan. The Respondent admits, and I find, that it is an employer en- gaged in interstate commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. National Association of Broadcast Employees and Technicians, AFL-CIO (the Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background Facts Douglas Johnson is the Respondent's vice president and general manager. A. J. Johnson, his father, is the chairman of the board of directors and president. In Feb- ruary 1985,4 Douglas Johnson called into his office Carl Scott and Bob Schade, two of the three production de- partment employees, and discussed with them the gener- al lack of productivity in that department. According to Scott's testimony, Johnson said that for 1984 the produc- tion department salaries were $184,000 while the depart- ment income was $6900. This compared unfavorably with the preceding years, but was consistent with the 2 Other allegations of 8(a)(5) violations were alleged in the complaint but either were withdrawn or no evidence was offered concerning them. Thus, the allegations summarized above were the only ones litigated 3 This spelling is from her signature on an exhibit. The transcript is in error and is corrected. 4 All dates are in 1985 unless otherwise indicated. 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trend. Revenues for the production department had been going down with the salaries going up. Notwithstanding these figures, there apparently was no discussion at that time between management and employ- ees concerning the possibility of eliminating the produc- tion department. Indeed, the Respondent's sales manager, Sandy Henry, testified that during the spring, the sales department was increased and sales efforts included pitching to potential customers the fact that the Re- spondent had its own production capability. Other than these two events, the record is devoid of any evidence concerning the status of the production de- partment from early 1985 until the Respondent deter- mined to eliminate it on 30 August. Sometime in 1985, the Union began an organizational campaign among the Respondent's employees. Active in this campaign was bargaining unit employee JoAnn Thompson. A representation hearing was held on 7 June at which she appeared as a witness on behalf of the Union. Although it is unclear from the record the dispo- sition of that hearing, an election was in fact held among the Employer's bargaining unit employees5 in which a majority voted in favor of representation by the Union. Thus, the parties stipulated that on 30 August the Union was certified as the employees' bargaining representative. On that date, as noted above, the Respondent eliminat- ed its production department and subsequently the three production department employees were terminated-Carl Scott and Robert Schade effective 13 September and Joe Dzenowagis effective 20 September. Prior to the election, which apparently was sometime in August, Douglas Johnson individually called into his office most, if not all, of the bargaining unit employees and asked them, according to his testimony, about their "concerns." Johnson's discussion with Scott along these lines is alleged to have been violative of Section 8(a)(1) of the Act. On 23 September, the Respondent created a new su- pervisory position of assistant chief operator, which job included supervisory responsibilities as well as duties pre- viously performed by the bargaining unit position of as- sistant chief operator. It is agreed that the Respondent gave no notice to the Union prior to creating this posi- tion. And in connection with this, Gary King was promoted from the bargaining unit position of assistant chief opera- tor to the supervisory position of chief operator but he continued to perform bargaining unit duties in addition to those supervisory duties of chief operator. The pro- motion and the continued performance of these duties by King was without notification to or bargaining with the Union. On 11 November, counsel for the Union wrote Doug- las Johnson asking to be furnished certain information S It is alleged and admitted that the appropriate bargaining unit within the meaning of Sec 9(b) of the Act is- All employees employed by WXON-TV, Inc., in Southfield, Michi- gan, who are directly involved in the production, presentation and transmission of programs, including on-air personnel , technicians, production technicians, maintenance technicians, film editors and the shipping and receiving clerk, but excluding clerical employees, sales- persons, guards and supervisors as defined in the Act with regard to the termination of the production depart- ment employees and the promotion of Gary King and another employee. This letter was answered on 4 De- cember by Shirley L. Moore, the Respondent's director of labor relations, who stated that as a result of the Union having filed a charge with the Board, the informa- tion requested would be furnished during the course of the investigation and "as a result, we will not be provid- ing the information directly to you." On 6 December, counsel for the Union replied to that letter stating that the Union demanded the information be furnished directly. On 8 January 1986, counsel for the Respondent sent to the Union a position statement that had been submitted to the Board in connection with the investigation of the instant matter. The Respondent con- tends that this position statement contains all the infor- mation requested by the Union to which it is entitled. JoAnn Thompson was hired as a film editor in 1983 and worked in that job until July 1985, at which time she was transferred to the traffic department, apparently as a result of reduced work available for film editors. In the traffic department Thompson, along with others, was re- sponsible for writing up "facility sheets." These are in- structions to the engineering department concerning the time when certain commercials are to be aired. Accord- ing to the Respondent, in this work Thompson made a "costly amount of errors," whereas for others with the same training "errors were few." On 16 August, Thompson wrote a memo to her super- visor stating that "as per company policy" (which she testified, uncontradictedly, she learned from A. J. John- son) she wished to take pregnancy leave for 90 days be- ginning with the date of her delivery, which was estimat- ed to be 28 August. She in fact left work on 6 Septem- ber. About 1 November she requested her job back effec- tive 4 November but was advised by letter of 1 Novem- ber from Douglas Johnson that she would not be rehired in the traffic department because "the work you were as- signed was not done properly and accurately." He went on to say that the job was going to be computerized, and thus there would be no work for her in that department in any event. He indicated that should a job come open for which she was qualified, she would be considered." B. Analysis and Concluding Findings 1. Interrogation Douglas Johnson testified in connection with his inter- rogation of Carl Scott, as well as the others, "that I was not concerned with how they voted. I wanted to make that perfectly clear at the outset, that I wasn't concerned about their feelings about the union." He went on to tes- tify, however, that he had set up these meetings individ- ually with the employees the week prior to the election Although Johnson in his letter refers to Thompson's job as being a "clerical position," which apparently would be one excluded from the bargaining unit, there is no contention that Thompson was not in fact a bargaining unit employee at the time she entered on maternity leave, nor that the position for which she sought reinstatement following her preg- nancy is a bargaining unit position WXON-TV in order to discuss "their individual needs and concerns," and "was the primary reason to find out if there were any common elements that in fact were taking place or in fact any individual concerns." Johnson further testified he told Scott, "that in fact if they voted in the Union, it could be construed as a slap in the face to management . That is what I said." According to Scott, Johnson called him into the chief engineer's office and asked if he was "in favor of the union coming in." Scott said, " no." Johnson then told Scott not to worry about what had happened in Febru- ary (apparently referring to the discussion concerning the production department) and, according to Scott, Johnson said, "He wanted to squash this thing and squash it big." Although the testimony of Scott and Johnson concern- ing this event differ in some minor respects, Johnson did not deny Scott's testimony that he said he wanted "to squash this thing and squash it big." That statement, along with Johnson's admission that a vote by employees for the Union would be considered "a slap in the face of management," clearly removes the interrogation from the type approved by the Board in Rossmore House, 269 NLRB 1176 (1984). The interrogation concerning an employee's union sympathies took place the week prior to an election during which the Company's chief operating officer stated that he wanted to squash the Union and that voting for the Union would be considered a slap in the face of management . Such aggressive comments imply more than innocent inquiry. Johnson's systematic interro- gation of employees was not the benign, trivial, or isolat- ed type of interrogation that sometimes the Board has concluded is not unlawful. Here, Johnson in fact interro- gated employees in an effort to assure them that their "concerns" were being considered , while at the same time suggesting to them how unhappy management would be were they to vote for the Union. I believe and conclude that Johnson's interrogation of Scott in July 1985 was violative of Section 8(a)(1) of the Act. 2. Elimination of production department The Respondent stipulated that it unilaterally terminat- ed the production department on 30 August, and that the three production department employees were discharged. The Respondent admits by stipulation that it did not bar- gain or attempt to bargain with the Union concerning this matter. The Respondent argues that its decision to eliminate the production department is not a mandatory subject of bargaining. Inasmuch as the decision involved a change in the course of its business, such was therefore not the type of matter about which it is required to bargain with the Union, citing First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and Otis Elevator Co., 269 NLRB 891 (1984). I disagree. At the outset it should be noted that whether the Re- spondent was economically justified in eliminating the production department is not an issue. Indeed, from the scanty facts of record, it appears that the production de- partment was not economically viable and that the Re- spondent could have its needs better met by outside pro- 623 duction. Nevertheless, the question is whether the Re- spondent's decision to eliminate three bargaining unit jobs was the type of thing about which it was obligated to bargain with the Union. Although the allegation on this issue involves the Re- spondent's alleged refusal to bargain in good faith, I note that the decision was made after the employees designat- ed the Union as their bargaining representative, even though the facts concerning the low productivity of the production department had been known for many months. Such suggests discrimination in the Respondent's 30 August decision. But discrimination in this respect was not alleged. There is scanty evidence concerning the basis of the Respondent's decision. The principal evidence is that the production department's revenues for some time had been less than the production department salaries. John- son testified that some of the equipment needed for pro- duction was not cost justified. Since the primary factor appears to have been the production department salaries against revenues, it is clear that the Respondent 's deci- sion from a business standpoint turned substantially on labor costs. Although there may have been other factors involved, on this record I conclude that labor costs were predominating. In Otis Elevator, the Board, in expanding on the ration- ale of the Supreme Court in First National Maintenance, stated that under certain circumstances a company's de- termination to change the course of its business, notwith- standing loss of bargaining unit jobs, was not a mandato- ry subject of bargaining. The Board noted that the "deci- sion did not turn upon labor costs," though such may have been a factor. Thus, the decision was not one that the company had an obligation under Section 8(a)(5) of the Act to negotiate with the union. Nevertheless, the employer had a duty to bargain over its effects. And in any event, even if the initial decision to elimi- nate the production department was not a mandatory subject of bargaining, the Respondent had the clear obli- gation under the Act to negotiate with the Union con- cerning the effects of the decision that in this case in- cluded the termination of three bargaining unit employ- ees. In no respect did the Respondent negotiate or even tell the Union of its plans to eliminate the production de- partment, nor give the Union an opportunity to negotiate concerning the effects of this decision on wages, hours, and employment conditions of bargaining unit employ- ees. Accordingly, I conclude that by failing to bargain with the Union concerning its decision of 30 August to eliminate the production department and its failure to bargain with the Union over the effects of this decision, the Respondent violated Section 8(a)(5) of the Act. I shall recommend an appropriate remedy. 3. Creating the supervisory position It is alleged in paragraph 12(c) of the complaint that about 23 September, the Respondent created a new su- pervisory position (assistant chief operator), the job duties of which included bargaining unit work. 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It is further alleged in paragraph 12(e) that about 30 August, the Respondent unilaterally transferred bargain- ing unit work to supervisory employees. At the outset of the hearing the parties stipulated: Two, on or about September 23, 1985, Respondent created a new supervisory position of Assistant Chief Operator, vesting the job with supervisory re- sponsibilities and with the work previously per- formed by the bargaining unit position of Assistant Chief Operator without prior notice to or bargain- ing with the Charging Party. At that time the assistant chief operator was Gary King. Although the only evidence concerning the allega- tion of paragraph 12(c) of the complaint is the stipula- tion, it is clear that the Respondent made Gary King's job as assistant chief operator a supervisory position where before it had been included in the bargaining unit. Presumptively then, and undeniably, following 23 Sep- tember, King was a supervisor but continued to perform some of the work (if not all the work) that he had per- formed while a member of the bargaining unit. It is therefore clear that as a result of the Respondent 's unilat- eral action, from and after 23 September the bargaining unit suffered a loss of work. The "loss of work is a change in the terms and condi- tions of employment which under Sec. 8(d) of the Act, the employer is obligated to bargain over with the union. Respondent's failure here to bargain over that change thus violates Sec. 8(a)(5)." Lutheran Homes, Inc., 264 NLRB 525 at fn. 2 (1982). Although the Respondent contends that to be a mandatory subject of bargaining such a loss of unit work would have to be "substantial," there is no evidence to rebut the reasonable presumption that in a small bargaining unit such as here, the loss of one job would not be substantial. Although the record is sparse on this issue, I do con- clude that the Respondent's decision to make the assist- ant chief operator a supervisor had the result of reducing the amount of work available to bargaining unit employ- ees by one job. Such therefore was the type of decision over which the Respondent had a mandatory obligation to bargain. By unilaterally creating the job of assistant chief operator as a supervisory position , the Respondent violated Section 8(a)(5) of the Act and an appropriate remedy will be recommended. About this time, the chief operator resigned and on 23 September King was promoted to that job. This is al- leged in paragraph 12(d) to have been a unilateral act on the part of the Respondent violative of Section 8(a)(5), again under the rationale of Lutheran Homes, supra. The parties stipulated: Number four, on or about September 23, 1985, Gary King was promoted from the bargaining unit position of Assistant Chief Operator to the supervi- sory position of Chief Operator. Following said promotion, King continued to perform his former duties and [sic] in addition the supervisory duties of Chief Operator. This took place without notification to or bargaining with the Union. It appears the General Counsel has alleged both (a) the assistant chief operator was removed from the bargaining unit and (b) when King was promoted he continued to do the work of assistant chief operator, which had been bargaining unit work. Thus, it appears that the very same work was lost to the bargaining unit twice on the same day. The two stipulations appear simply to be two ways of stating the same violative conduct engaged in by the Re- spondent. King, the assistant chief operator, who had been a bargaining unit employee, was taken out of the bargaining unit along with the work he was performing. Even if, as may be the case, on King's promotion Tom Bader was made assistant chief operator, there is still only one violation of the Act. The bargaining unit lost the work of the assistant chief operator. The chief opera- tor was always a supervisor . Though it is possible there was additional loss of work to the bargaining unit, this record does not reflect it. I conclude that the Respondent did, in fact , violate Section 8(a)(5) of the Act by unilaterally creating a su- pervisory position and including in the duties of that po- sition work that had previously been done by the bar- gaining unit.7 4. The request for information It is alleged that by letter of 11 November, referred to above, the Charging Party made a request for informa- tion relevant to the performance of its duties as the certi- fied representative of the bargaining unit employees, and that the Respondent's refusal to furnish such information was violative of Section 8(aX5). The parties stipulated to the general facts involved in this matter. The Respond- ent, however, takes the position that inasmuch as the Charging Party received this information during the course of this proceeding, specifically in the form of a copy of counsel's position statement to the Board, its ob- ligations under Section 8(a)(5) have been met. There can be little doubt of the Respondent's general obligation under the Act to furnish the Union informa- tion it requests that is relevant to performance of its obli- gations as the employees' bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), and NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The Respondent does not argue this proposition nor does the Respondent contend that the information re- quested by the Charging Party was not in fact relevant, except as to that relating to closure of the production de- partment. The Respondent contends that it ultimately furnished the information by giving a position statement to the Board, which later made its way to the Union. The Board has long held that the mere fact that the Union may have obtained the information subsequent to 7 It is alleged in par. 12(b) that the Respondent unilaterally subcon- tracted bargaining unit work, which paragraph of the complaint was withdrawn. Similarly, it was alleged in par. 12(d) that on 8 November the Respondent unilaterally changed bargaining unit positions from full time to part time thereby reducing bargaining unit work Neither the General Counsel nor the Charging Party offered any evidence to support this alle- gation Accordingly, it will be recommended that pars 12(b) and (d) be dismissed. WXON-TV its request does not militate against a finding that the em- ployer violated the Act in not being forthcoming when the information was requested. E.g., K & K Transporta- tion Corp., 254 NLRB 722 (1981). In addition, here the Respondent never in fact furnished the information to the Union . It maintains that the Union came on the infor- mation through other sources. Such is clearly not re- sponsive to the Employer's obligations under the Act. I therefore conclude that by failing to furnish the in- formation outlined in paragraph 12(f) of the complaint in a timely fashion, the Respondent violated Section 8(a)(5) of the Act. An appropriate remedy will be recommend- ed. 5. Refusal to reinstate JoAnn Thompson As outlined above, JoAnn Thompson was the princi- pal organizer of the union activity and appeared as a wit- ness on behalf of the Union at the representation hearing on 6 June. When the work of the film editing depart- ment, of which she was a member, substantially dissipat- ed, she was transferred to the traffic department in July, under the supervision of Kim Petrykowski. Thompson testified credibly and without contradiction that she talked to Company President A. J. Johnson who told her that she could have a 90-day leave of ab- sence without pay and to communicate this to the office manager, Garnet Bowden (stipulated to be a supervisor). Thompson wrote a memo to this effect and on 6 Septem- ber left work to have her baby. When she applied for re- instatement in November she was denied . Douglas John- son took the position, as he set forth in his letter, that she was an incompetent employee in the traffic depart- ment and that even if she could do the work, the Re- spondent intended to computerize that job and thus there would be no work for her.8 The evidence of Thompson's alleged incompetence is the testimony of Kim Petrykowski to the effect that during the month that Thompson worked in the traffic department she made more errors than other employees. Petrykowski, however, did testify that errors were made routinely. As best I can determine, employees in the traffic de- partment write instructions, on a "facility" sheet, to the engineering department as to when to put certain com- mercials on the air. The Respondent's principal, if not sole, source of income is from the airing of commercials, and if a commercial does not for some reason, the Re- spondent does not get paid. Commercials that do not make it on the air are considered to have been "preempt- ed." Thus, when a commercial has not been broadcast, a preemption sheet is attached to the commercial contract and where known, the reason for the preemption is stated. The preemption can be the result of an error in the traffic department (which the Respondent contends was the case regarding the preemptions for which Thompson was allegedly responsible) or because the 6 At the time, the Respondent intended to computerize the work Thompson and others had done in the traffic department but was unable to do so Since at least mid-November the work has been performed as it was prior to Thompson's leaving in September 625 commercial time was used for some other reason such as a speech by the President. In any event, at the end of each month, the traffic de- partment is furnished all the preemption sheets and for I or 2 days Petrykowski will go over these in the presence of all the traffic department employees while they are doing their regular duties, and critique them. Petry- kowski calls out to various employees their errors. Ac- cording to Petrykowski, Thompson was not the only em- ployee who committed errors. Indeed, the Respondent brought forth approximately nine boxes of materials rep- resenting contracts for about 6 months before and 6 months after the events in this matter, which contained many preemption sheets. No attempt was made to ana- lyze all the preemptions on all of these contracts, but suf- fice it that there were many preemptions of commercial spots. During Thompson's leave, Respondent put in her file 18 preemption sheets, which totaled $3630 of lost reve- nue. Douglas Johnson testified these preemption sheets cover the month Thompson was employed in the traffic department. Johnson testified that the station's revenue is approximately $700,000 per month. Of 18 preemption sheets in Thompson's file only 12 have her name. These 12 total revenue losses of $2060. The other six preemption sheets, showing revenue losses of $1570, do not contain any reference to Thompson, nor is there any indication from the testimony of Johnson or Petrykowski as to why these particular sheets were in Thompson's file. It appears, and I believe, that the Re- spondent placed in Thompson's personnel file all the pre- emption sheets for the month of July, regardless of whether the Respondent knew or had reason to believe that Thompson was responsible for the fact that the com- mercial did not run. Further, from Johnson's testimony it is unclear whether the preemption forms really establish revenue-losing mistakes, or if so, who, if anyone, was re- sponsible. The preemption sheets in Thompson's file simply do not prove, as contended by the Respondent, that she was a poor employee. Thompson was known by management personnel, in- cluding Kim Petrykowski and Douglas Johnson, as an activist on behalf of the Union. The Respondent har- bored animus against the Union, as demonstrated by its interrogation of Scott as well as its refusal to bargain with the Union subsequent to the 30 August certification. And Thompson was treated differently from all other employees who took pregnancy leave (the parties stipu- lated that every other employee who had asked for a leave of absence for pregnancy was in fact reinstated on application). From these facts I conclude that the Gener- al Counsel made out a prima facie case of discrimination against JoAnn Thompson. The burden therefore shifted to the Respondent to demonstrate that it would have refused to rehire Thomp- son even absent her having engaged in union activity. Wright Line, 251 NLRB 1083 (1980). I conclude that the Respondent failed to meet its burden. Indeed, I conclude that the Respondent's contention that Thompson was an incompetent employee was a pure fabrication. The al- 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leged evidence of incompetence was not only unpersua- sive but is not credible . The testimony of Petrykowski suggests that Thompson committed no more errors than other employees in the traffic department , if she in fact committed any errors . It is impossible to tell from the preemption forms whether in fact the spots did not run as a result of an error or for some other reason. In any event, it is clear that in the regular course of business commercial spots are preempted . Johnson testified that the amount of revenue loss averages in the range of $3000 a month, or about the amount totaled on the pre- emption sheets that were attached to Thompson's file. The point is, preemption is common and is not in and of itself an employment error. There is no persuasive evi- dence that Thompson committed any more employment errors than others and absent such , I find that Petry- kowski's testimony and her self-serving memo to John- son incredible. I believe that the Respondent refused to rehire the principal known activist on behalf of the Union follow- ing her pregnancy leave because of her union activity and because the employees had voted to select the Union as their bargaining representative . Accordingly, I con- clude that by failing to reinstate JoAnn Thompson on her request, effective 4 November, the Respondent vio- lated Section 8(a)(3) of the Act, and I shall recommend an appropriate remedy. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices found above, occurring in connection with the Respondent's business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having concluded that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, in- cluding offering immediate and full reinstatement to Carl Scott, Robert Schade, Joseph Dzenowagis, and JoAnn Thompson to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of em- ployment without loss of seniority, wages, or other rights and benefits and make them whole for any losses they may have suffered in accordance with the provi- sions of F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided for in Florida Steel Corp ., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Backpay for Scott and Schade is to com- mence 13 September, Dzenowagis 20 September, and Thompson 4 November. [Recommended Order omitted from publication.]