Kaye-Smith Enterprises

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1034 (N.L.R.B. 1974)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaye-Smith Enterprises and Seattle Local of the
American Federation of Television & Radio
Artists, AFL-CIO. Case 19-CA-6508
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On February 21, 1974, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel and the
Charging Party filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent, the operator of radio station KJR-AM in
Seattle , Washington, discharged morning newsman
Michael D. Sidewhite, also known as Mike White
(hereinafter referred to as White), on May 15, 1973,1
in violation of Section 8(a)(3) of the Act because of
his activities on behalf of the Seattle Local of the
American Federation of Television & Radio Artists,
AFL-CIO (hereinafter referred to as AFTRA).
Respondent hired White on December 13, 1972, as
its morning newscaster. During the first week in
March 1973, Respondent' s news director, Frank
Thompson, recommended to Station Manager Pat
O'Day that White be replaced because of dissatisfac-
tion with his manner and style of newscasting. The
Respondent thereafter diligently sought to find a
suitable replacement. In mid-March, White's job was
offered to Gary West, a newsman at another Seattle
radio station; West declined the offer because of the
job's early morning hours. About the first of April,
Respondent offered the job to another Seattle
newscaster , Ken Mattler, who also turned down the
position. Thereafter, Respondent discussed the job
with two other individuals and evaluated their
audition tapes although it did not make offers of
employment to them. Finally, on May 14, White's
I All dates hereinafter are 1973 unless otherwise specified.
2 About I week after accepting Respondent's offer, Jennings changed his
mind and decided against the position . Hanson continued to be the morning
newscaster until June 20 when Lester Parsons took over on a permanent
basis.
3 On April 23, AFTRA made a demand for recognition upon
Respondent for the KISW employees which Respondent rejected the next
job was offered to and accepted by Byron Jennings.
The next day, Thompson discharged White at the
end of his shift. Until Jennings could report for work,
disc jockey Rick Hanson temporarily filled in.2
Central to the Administrative Law Judge's conclu-
sion that Respondent discriminatorily discharged
White was his finding that in early March White
became active in AFTRA's attempt to organize the
employees of KISW-FM,3 an affiliated station with
studios in the same building and under the same
management as KJR, and that the Respondent
learned of White's activities about this time. Al-
though the record shows that White began organiz-
ing the KISW employees sometime in March, we
find that the evidence fails to establish any such
knowledge by Respondent until sometime in April in
the course of a conversation between White and
KISW Program Director Lee Michaels. It is clear
that this conversation occurred at least 2 weeks after
Respondent had decided to replace White and had
offered his job to Gary West. Consequently, in our
view the General Counsel failed to meet the burden
of proving that Respondent had knowledge of
White's organizing activities prior to its decision to
replace him.
The Administrative Law Judge additionally found
that White was discriminatorily discharged as a
result of his union stewardship at KJR.4 Union
Representative James Doyle testified that White had
been "unofficial steward" for some time prior to his
being formally designated steward on April 27. Yet,
Doyle also testified on cross-examination that he had
not informed the Respondent of White's status prior
to April 27. On this record, therefore, we can only
conclude that the decision to discharge White was
made before Respondent became aware that he was
the AFTRA steward.
In the light of our finding that the General Counsel
failed to show actual knowledge by Respondent of
White's union activities prior to offering his job to
other newsmen, it is necessary, in order to explore
whether there may be a basis for nevertheless
inferring such knowledge, to reexamine whether
Respondent's asserted reasons for discharging him
were transparently pretextual. The Respondent's
reasons included White's editorializing, inadequate
reaction and coverage of local news stories, use of
vague terms instead of specific identifications, failure
to maintain objective attitude and sound, and failure
to follow station format. In our view, these reasons,
day. On May 3, AFTRA filed a petition with the Board which was later
withdrawn.
4 Respondent and AFTRA had entered into a collective-bargaining
agreement covering all KJR on-air employees from March 1, 1969, until
February 28, 1972. At the time of the hearing, negotiations were in progress,
but no new agreement had been reached.
211 NLRB No. 151
KAYE-SMITH ENTERPRISES 1035
each of which involved evaluations which one would
reasonably expect station management to be con-
cerned with, although such judgments are in large
part subjective, were not shown to be so implausible
as to justify a finding that they were not the true
reasons for replacing White.5
The totality of the evidence makes clear that
Respondent had, indeed, become concerned about
these factors well before it had any knowledge of
White's union activity or his appointment as steward,
with this concern being plainly evidence by the fact
that during this preknowledge period it actively had
been recruiting a successor to White. When it was
successful in locating a newscaster who was satisfac-
tory to it and who had accepted its offer of the
position, it terminated White's services. The fact that
Respondent then assigned a disc jockey as a
temporary fill-in for White until the date when
White's replacement was expected to report for duty
has, in our view, not been shown to be so extraordi-
nary or unusual a procedure as to render improbable
or untrustworthy Respondent's evidence of its
legitimate business reasons for the course of action
followed in this matter.
Thus the only evidence in the record which casts
any cloud of doubt on the bona fides of the
termination here in issue are statements by News
Director Frank Thompson, made on White's first
day of employment in 1972 and 2 months later, to
the effect that White's predecessor had been termi-
nated because of his union activities. These state-
ments, as the Administrative Law Judge found, are
plainly violative of Section 8(a)(1), and are indicative
of union animus on the part of Respondent. But, in
the absence of substantial probative evidence that
Respondent knew of White's union activity at the
time the decision to terminate him was made, we are
of the view that these statements are insufficient to
justify a finding that White's union activity was
either the reason or even a reason for his termination,
particularly since we have also found Respondent's
version of the facts to be consistent with the record
evidence and consistent with a nondiscriminatory
course of conduct vis-a-vis White.
Thus, while this evidence of animus may create
some suspicion on our part as to Respondent's
motives, we do not think that these statements, rather
remote in time from the events surrounding White's
termination, can, when considered in the light of the
totality of the record herein, provide adequate
grounds for a finding that White's discharge was
discriminatorily motivated.
Accordingly, we do not adopt the Administrative
Law Judge's findings and recommendations with
respect to White's termination, and we shall dismiss
the allegations of the complaint with respect to the
termination of newscaster Mike White.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Kaye-Smith Enterprises, Seattle, Washington, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees by implying that other
employees were discharged for engaging in union
activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Seattle,
Washington, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 19,
after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
5 Nor are we persuaded that the evidence shows that there was a nexus
between White's discharge and his complaints to Office Manager Homer
Pope concerning the computation of his pay. In any event, these complaints
were individual in nature, and would not constitute concerted activity under
the Act.
6 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees by implying
that other employees were discharged for engag-
ing in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of the rights guaranteed them in Section
7 of the National Labor Relations Act, as
amended.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
It is alleged in the complaint , admitted in the answer,
KAYE-SMITH ENTERPRISES and I find that Respondent is a partnership consisting of
(Employer) Dena Pictures , Inc., a California corporation , and Alexan-
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
arice with its provisions may be directed to the
Board 's Office , 10th Floor, Republic Building, 1511
Third Avenue , Seattle , Washington 98101, Tele-
phone 206-442-4532.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This
proceeding was tried before me on November 28 and 29,
1973, at Seattle, Washington, upon the basis of a charge
filed on June 27, 1973,1 by American Federation of
Television & Radio Artists, AFL-CIO, herein called the
Union or Charging Party, against Kaye-Smith Enterprises,
herein called Respondent, and a complaint issued in behalf
of the General Counsel by the Regional Director for
Region 19 of the National Labor Relations Board, herein
called the Board, alleging that Respondent had engaged in
certain unfair labor practices in violation of Section 8(axl)
and (3) of the Act. Respondent in its answer, while
admitting certain allegations of the complaint, denied that
it had engaged in any unfair labor practices.
The chief issues litigated may be summarized as follows:
1. Did Respondent in December 1972, through its news
director, Frank Thompson, threaten Michael D. Sidewhite,
also known as Mike White and referred to in this
proceeding as Mike White or White, with reprisals if he
engaged in union or concerted activities?
2. Was White threatened with discharge by Thompson
in February should White become involved with the
Union?
3. Was White discharged by Respondent on May 15
because it knew, suspected, or believed that he was a
member of the Union or was engaging in union or other
concerted activities?
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after careful consideration
of the briefs filed by the parties, I make the following:
der Broadcasting Company, an Oregon corporation, which
operates nine radio stations at various locations, including
Station KJR in Seattle, Washington; that during the past
calendar year, Station KJR, involved in this proceeding,
did a gross volume of business in excess of $100,000 and
performed services for customers outside the State of
Washington in excess of $50,000; that Respondent was and
is an employer within the meaning of Section 2(2) of the
Act, engaged in commerce within the meaning of Section
2(6) and (7) of the Act. I further find that it would
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
At the outset of the hearing, the parties stipulated that a
labor agreement between the parties covering KJR
employees in Seattle was in effect from March 1, 1969,
until February 28, 1972. This agreement covered all
employees who performed before a microphone, including
White. It was further stipulated that at the time of the
hearing negotiations were in progress, but no new
agreement had been concluded.
B. The Supervisory Status of Homer Pope
Homer Pope at the time of the hearing was in retirement
after 45 years of service with Respondent. During the
entire time of White's employment, Pope had a private
office with his name on the door. Pat O'Day, manager of
KJR, testified concerning Pope's status as follows:
During the past two or three years, four years as a
matter of fact, Mr. Pope has been the administrative
assistant to myself and to the assistant manager. He
was in charge of the office papers, the books, the files,
and also in charge of our computer program which
deals with our billing and bookkeeping. Mr. Pope kept
those records. He did not have any supervisory
capacity over other people. Mr. Pope's hiring, the
extent of his hiring would be the two girls that work in
the computer program. He was our computer specialist.
He was in charge of hiring them. That would be the
extent of his hiring and firing.
At the conclusion of the foregoing statement, I stated:
Hereafter all dates refer to 1973 unless otherwise specified.
s The transcript is hereby corrected in certain particulars.
KAYE-SMITH ENTERPRISES 1037
"You have just made him a supervisor over his ......
whereupon Respondent's counsel interrupted saying "Let's
pursue that a little further." The following colloquy then
occurred:
Q. (By Mr. Treverton) Did you yourself or Mr.
Thompson or anybody else interview these people that
Mr. Pope hired?
A. Oh, yes, sir, always.
Q. You know of your own personal knowledge who
made the decision to hire the people when they were
hired?
A. Yes, sir, I do.
On cross-examination, O'Day admitted that in the
representation case involving KISW3 he testified as
follows:
Q. (By Mr. Green) "Question: Now, you say he is
the office manager, what does that entail?"
"Answer: That entails the supervision of the clerical
help, maintaining of certain office files. He would be
the custodian of the office files . He exercised a
supervisory role over the janitorial service and func-
tions such as that."
Do you recall that question and answer?
A. You have refreshed my recollection, I can see
that I testified to that, sir, yes.
JUDGE DAVIS: Is that true?
THE WITNESS: Yes, sir, most certainly.
O'Day's testimony that he, himself, made the final
decisions to hire the girls in the computer department is
not credited. I regard this statement as an attempt to
neutralize the effect of his previous testimony as quoted
above and the testimony he gave in the KISW representa-
tion case. It seems rather plain that, after my statement
that O'Day's testimony showed Pope to be a supervisor,
O'Day sought to undo the effect without retracting his
testimony. In addition, as will appear below, I find O'Day
to be an unreliable witness in other aspects of this case.
Accordingly, I find that Pope was a supervisor within the
meaning of the Act in that he had authority to hire and to
responsibly direct other employees and that he exercised
such authority.
C. The Evidence
White testified that he was employed by Respondent at
KJR on December 13, 1972, and that he was terminated on
May 15.
The undisputed evidence shows that KJR attempts to
reach a youthful audience by featuring a format known as
"Top Forty," which is principally rock music . It employs
disc jockeys4 and newsmen . A newsman , the capacity in
which White was employed , is responsible for the compila-
tion , the writing, editing and reporting of news.
3 KISW is an FM radio station affiliated with Respondent and under the
same management as KJR.
4 Disc jockeys play records and commercials, indulge in various ad lib
comments and give time and temperature.
5 It was stipulated that the Union filed a charge that Kelley's discharge
constituted an unfair labor practice . The charge was dismissed by the
White testified that when he first approached O'Day in
December 1972 about a position, he was told that there
were no vacancies at KJR but that an opening would be
open soon at an affiliate ABC Record and Tape Sales.
Later, after contacting ABC, he was told that O'Day
wanted to talk with him again-urgently. When he saw
O'Day again, he was asked if he would be interested in a
position with "Totem Broadcasting." When White ex-
pressed interest, O'Day told him that he had an immediate
problem at KJR in that they were going to replace their
morning newsman, saying that White could be the
replacement at KJR until the Totem job became a reality.
After several more discussions , White talked with Shannon
Sweatte, assistant manager of KJR, and Frank Thompson,
the news director. White testified that after he was hired he
was instructed to go to Thompson's apartment on the first
day of his employment. When he arrived, Thompson told
him that they had not yet discharged their current
newsman known as Jim Kelley, but would do so that day.
In the meantime, they were to listen to his newscast. They
listened to Kelley for about 3 hours from 6 to 9 a.m.
Thompson pointed out what he thought were some of
Kelley's deficiencies and stated that Kelley's worst sin was
that he was active in AFTRA.5 Thompson also told White
during this period that the best way to get on the wrong
side of O'Day was to become active in the Union.
White commenced broadcasting news for KJR on
December 13, 1972, taking the shift from 6 a.m. to 1 p.m.
During this time , there were three major newscasts of 5
minutes at 6:55 a.m., 7:55 a.m., and 8:55 a.m. In addition
there were 1-minute information reports about 6:20 a.m.,
7:20 a.m., and 8:20 a.m. and on the hour from 9 a.m. until
1 p.m. In describing his technique in gathering news, White
testified as follows:
Well, initially when I arrived in the morning I would
make approximately some 20 telephone calls to local
police, fire, sheriffs department, state patrol, to find out
anything that had happened overnight. I would use the
wire service, the Associated Press teletype and the
information that came over that. I had also the facilities
of ABC News that came in by telephone line.
Shortly after his employment at KJR, White in a
telephone conversation with James Doyle, executive
secretary of the Seattle local of the Union, apprised Doyle
of some of the things that were going on at KJR which, in
his opinion, constituted violations of the labor agreement;
that thereafter, about April 1, he mailed a list of these items
to Doyle. White testified that shortly after he commenced
his employment he went to Pope's office6 and asked him
for a copy of the union contract. White examined it and
mentioned several items which Respondent was underpay-
ing. Pope replied that O'Day interpreted the contract
differently. About 2 or 3 months later, White again talked
with Pope and discussed several matters which he
Regional Director and the dismissal was upheld by the General Counsel.
6 The conversation with Pope was admitted for "what it was worth." In
view of my finding, above, that Pope was a supervisor within the meaning of
the Act, White's uncontroverted and credited testimony concerning these
conversations assumes significance , especially in the light of O'Day's
testimony that he talked with Pope daily.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered to be violations of the labor agreement. Pope
again replied that O'Day had a different interpretation. A
third conversation between White and Pope on the
question of underpayments occurred on the date of White's
discharge , May 15.
White testified that sometime in February he was having
a discussion with Thompson concerning various items
involving the news department when Thompson men-
tioned that Kelley had been discharged because he had
"gotten on the bad side of Pat O'Day through his union
activities ." Thompson then again said that the easiest way
to get on the bad side of O'Day was to be active in
AFTRA.
White further testified that in March he distributed
union authorization cards to some of KISW announcers
and disc jockeys; that he discussed union organization with
one of these announcers , Joel Coburn, and received a
signed union authorization card from Coburn; that he also
discussed union organization with two other KISW
employees , Steve Nicholette and Lee Michaels; that
Michaels was the program director for KISW; 7 that he had
asked Michaels early in April if Michaels knew he was
trying to organize KISW ; that Michaels acknowledged
having heard it; that his discussions with Nicholette took
place on various occasions from March to May.8
White considered discussions and criticism between
announcers as an essential element leading to better
performance and that such discussions or "critiques" were
conducted by him with Thompson on a daily basis during
his employment at KJR. Describing the "critiques"
between Thompson and himself , he stated there occurred a
change in April until the time of his discharge in that
Thompson became more critical. White testified that on
one particular occasion Thompson said that White was not
following the format by saying "I am Mike White" instead
of "This is Mike White" and the following day Thompson
said that White was saying "This is KJR", therefore White
should say, "I am Mike White." On another occasion, he
told White he was speaking too slowly and on a later date
he told White he was speaking too fast. Thompson
subsequently would reverse himself by again saying that
White was speaking too slowly . On another occasion,
White spent several hours on unpaid overtime preparing a
story concerning a meeting of insurance companies in
Nevada, interviewing persons necessary to develop the
story. Thompson refused to put it on the air because it was
5 seconds longer than 1 minute even though White
characterized it as a "nation wide exclusive story."
On May 15, about 12:40 p.m., Thompson walked into
the newsroom and told White he was terminated. White
asked the reason and Thompson replied, "Well, it just
didn't work out. In the first place you kept saying 'I am
Mike White' instead of 'this is Mike White.' "
White replied that he knew it was coming and wondered
why it had taken so long.9 White then asked when it was
effective and Thompson replied, "Right now," adding,
r It was stipulated that Michaels was a supervisor within the meaning of
the Act.
8 It was stipulated that KISW is an affiliate of KJR and that both
stations are owned by Respondent and are managed by O'Day. It was
further stipulated that the Union filed a petition for representation on
behalf of the "on-air" performers of KISW on May 3 and that a demand for
"You will receive two weeks' pay." White talked with
Thompson on the telephone later that day and requested a
written explanation for his termination as provided in the
labor agreement . Thompson said he would take it up with
O'Day. When White called Thompson the next day, he was
informed that Thompson had turned the matter over to
O'Day who would take care of it. He inquired again a few
days later, asking if he could pick up the written reasons in
person. However , the requested written reasons were
mailed to him on May 24 or 25.10
On cross-examination, White conceded that his "cri-
tiques" with Thompson included some criticism of editori-
alizing by the wording of the script or by voice inflections.
He denied that he was criticized by Thompson for not
reacting more to local news stories except on one occasion
in January. In fact, according to White, it was Thompson
who reacted to a lesser extent to local news items. It was
common for White to call Thompson's attention to having
overlooked a local story. This was part of their daily
"critique." White also denied that the items listed in
General Counsel's Exhibit 3 were discussed with him by
Thompson on the day of his discharge. On redirect
examination , White stated that the discussion about
editorializing with Thompson occurred in February and
concerned aspects of the Watergate affair; that White told
Thompson he was not aware that he had been editorializ-
ing; that he would exercise more care; and that he was not
again criticized for editorializing. Asked to describe how he
would go about reporting a local news story, the following
interchange occurred:
A. Well, there were several ways. One, as I
mentioned earlier, I would make about 20 telephone
calls each morning and find out from the various
sources what had happened. I would record these, and
then use any actuality. An actuality like would be that
person's voice, use that on the air if such a thing were
available. This I would normally give precedent to
using actualities.
Q. An actuality is a recording on a cartridge or a
tape of the person in the news speaking to you over the
telephone?
A. That's correct. This would be similar to on
television, seeing President Nixon on TV, rather than
someone telling about what President Nixon had said.
You would have the personality.
The second source was going through the Associated
Press local news stories and finding something there
that had a local interest, or was of a local story and
locating a particular person or spokesman, for that
particular news story.
The third source was our local reports who was a
beat reporter, Mr. Ward Lucas. He would be at City
Hall or at the Police Department, and he would
telephone in various stories throughout the day.
Q. Would he, Mr. Lucas, prepare what you have
recognition was made on Respondent on April 23 which was declined on
April 24.
9 White explained that he made this statement because he had been
informed by a secretary some days earlier that Thompson had informed her
that White would not be employed very long at KJR.
10 G.C. Exh. 3.
KAYE-SMITH ENTERPRISES 1039
termed actuality, what you would phone in that you
could use?
A. Yes, he would normally do a complete report.
In other words, he would say something and have
someone else 's voice and then you would close that
particular report.
Q. I think by your testimony you identified for us
all of the employees of the news department, Mr.
Thompson, the news director, yourself, the morning
newsman . I take it Mr. Thompson was the afternoon
newsman?
A. Yes, he was.
Q. And Mr. Lucas was field reporter?
A. Yes.
James E. Doyle testified that he was executive secretary
of the AFTRA local; that he negotiated with stations,
adjusted disagreements, and filed arbitration requests; that
Kelley was the union shop steward at the time of his
discharge ; that after Kelley's termination there was no
shop steward for a short time; that White assumed the
duties of shop steward without official designation as such;
that he, Doyle, was reluctant to appoint a shop steward
because Kelley and the previous shop steward had been
discharged; that White did report to him a number of times
concerning conditions at KJR; that on April 27 he finally
wrote to O'Day informing him that White was the union
shop steward; that he wrote the letter because he had heard
that White was not long for the job; that by appointing
him as shop steward he hoped to provide White with some
protection . O'Day called Doyle a day or two later and told
Doyle that White was a temporary employee and would
not be retained for longer than 2 or 3 weeks more.
Thereafter, Doyle on May 3 wrote O'Day," saying that, if
White were terminated, an unfair labor practice charge
would be filed; and that, until O'Day's phone call, there
had never been any intimation that White was a temporary
employee. Doyle added that an announcer's capabilities
could be assessed during the first month of his employ-
ment . Questioned on cross-examination whether any
grievances were filed concerning the complaints made by
White, Doyle stated that most matters were adjusted after
he conferred with O'Day by telephone.
John Ellsworth, a witness called by the General Counsel,
testified that he was employed by Respondent at KJR
from August 1971 to August 1973 as assistant engineer;
that his duties were to maintain all equipment in the
building including electronic equipment needed to main-
tain KJR on the air; that in April, about 3 weeks prior to
White's termination , he overheard a conversation between
O'Day and Thompson while they were in the newsroom
and he was in the hall and the relay room; that he was on
the other side of a wall about 6 or 7 feet from where
Thompson was standing; that the wall had a glass window
which rose to a false ceiling ; 12 that O'Day started the
conversation with Thompson by saying that he had heard
11 G.C. Exh. 5.
12 The witness explained that a false ceiling is one suspended from the
concrete ceiling of the building and that this particular false ceiling was 4 to
5 feet from the concrete ceiling.
13 Recording commercials for broadcasting is commonly called pro-
duction work in the radio and television industry.
from Doyle and asked Thompson what he knew about
White's activity with regard to KISW union organization;
that he then moved over to the relay room and did not hear
anything further; that he told White the next day what he
had overheard. On cross-examination, Ellsworth explained
that although the newsroom was soundproofed to outside
noises , nevertheless conversational noises in the newsroom
are audible in the adjacent open areas because of the false
ceiling.
James Coburn, a witness called by the General Counsel,
testified he was employed as an announcer by Respondent
at Station KISW; that about April 18 he had talked with
White about joining the Union and had signed a union
authorization card shortly thereafter.
Lester Parsons, a witness called by the General Counsel,
testified that he commenced his employment with KJR in
1960. When he was hired he did some newscasts and also
production work recording commercials.13 About 5 years
ago, Parsons' duties were changed so that he did nothing
but production work. About 4 weeks after White's
discharge, O'Day invited Parsons to lunch. During the
lunch, O'Day told Parsons that, as there was no morning
newsman at the station, he was going to transfer Parsons to
the news department effective in about 2 weeks. Parsons
actively commenced his duties as morning newsman at
KJR about June 20 and continued to work in that capacity
at the time of the hearing. Parsons further testified that a
disc jockey, Rich Hanson, had been doing the newscasting
in place of White from the time of White's discharge until
Parsons took over. Parsons further testified that on
occasion he did hear a newscast by White which he felt
showed bias .14 During White's tenure at KJR , Parsons
stated that he heard White broadcast approximately 20
times and that he detected bias in possibly 3 or 4 of these
broadcasts in that the written material was slanted , not the
voice inflection. He remembered no specific language or
broadcast.
Pat O'Day, called by Respondent, testified that he was
the manager of Station KJR for the past 5-1/2 years; that
KJR has been the number one station in Seattle since 1960
both businesswise and moneywise; that station policy sets
a rigid format for each individual and position; that even
disc jockeys do not ad lib, they go by the script; that
newsmen write a script using information coming off the
teletype of the wire services and that of the American
Broadcasting Company; that newsmen are responsible for
providing lead-ins and write -ins on local stories;15 that
White contacted him about a position on several occasions
before he was hired; that he sent him to ABC16 to apply
for a job there; that an emergency situation developed at
KJR in that there was a need for a morning newsman; that
"Mike had had television news experience at Channel 7,
KIRO, and three or four other stations. So, at that time I
told Mike that we would give him the opportunity to try.
We did not have any reference to his news working in
radio, we really were short on information about Mike.
14 This answer was given to the following question by Respondent's
attorney : "Did you ever notice a bias , a slant, particularly with regard to
Nixon's stories on the air?"
15 As appears later, newsmen use independent judgment in exercising
their responsibilities in the selection of news items and in their presentation.
16 American Broadcasting Company with which KJR is affiliated.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But, he was unemployed and he did need a job and we had
a situation and it seemed right to let him try it and see if it
would work out." Continuing his testimonial account,
O'Day stated that he had insufficient information concern-
ing White's experience in radio and his capabilities and
therefore told White he was being hired on a trial basis.
O'Day then testified as follows:
A. I had one or two tape recordings, one contained
commercials that he had voiced. The other contained
some news and I can't recall where the news was
recorded but there was a news audition tape.
Q. Did you review this tape yourself?
A. Yes, sir, I did.
Q. Did you feel that the sound of that tape was
something that you could use at KJR? What was your
reaction to that tape?
A. I was unable to determine from that tape
whether he would fit on KJR. The tape was cut at a
different radio station under a different set of circum-
stances and I just was not able to determine whether he
was just right for us or not.
Q. Did you have any other people, as you recall, to
review that tape?
A. Yes, sir, I did. Frank Thompson, our news
director, heard the tape and Emperor Smith, our
morning disc jockey, I believe heard the tape, I played
it for him.17
Thereafter early in January, Thompson and O'Day
discussed White's performance; that sometime in January
he called White repeatedly on the telephone calling
attention to the omission of important news stories or
instructing him to remove a story that O'Day thought was
inappropriate; that after several discussions with Thomp-
son he told Thompson to discuss the situation with White
and to report back to him; that Thompson said that the
"attempts to solve the problem were just unsatisfactory";
that he allowed a period of time that he thought was a fair
trial and they decided about the first of March to replace
White as quickly as they could. O'Day stated that when he
received Doyle's letter 18 he was unaware of White's union
activities. Asked whether others complained about White's
performance, O'Day replied as follows:
Yes, sir; I mentioned that I tried to find a consensus
of feeling about the matter although it was my
responsibility. The complaints and the concern over
Mr. White's performance on the air was, I think it
would be fair to say, general throughout the station.
Our assistant manager who was our sales manager
reported to me that the salesmen were receiving many,
many complaints from the advertisers from around
town that he was not doing the kind of job that they
expected from KJR. The other disc jockeys who were
on the air at that time, namely Emperor Smith and
Lyon Roberts, would come to me on occasion and tell
me they felt his work was unsatisfactory.
About March 15 , an attempt was made to hire Gary
West, an announcer on another station which proved
unsuccessful . Another individual from that same station
likewise rejected an offer . Referring to General Counsel's
Exhibit 3 , O'Day testified that the first five points were
taken directly from a memorandum Thompson had
prepared following White's termination . White was termi-
nated on May 15, O'Day testified , because they had hired
one Byron Jennings as a replacement on May 14. One
week later, Jennings changed his mind.19
O'Day, on cross-examination , testified as follows:
Q. You indicated when Mr. White was hired it was
an emergency situation in the news room?
A. Yes, sir, that's right.
Q. What was the emergency situation in the news
room?
A. We had fired the previous newsman.
Q. You had fired him?
A. Yes, that's true.
Q. In other words, when you employed Michael
White , Mr. Kelley had already been discharged, is that
correct?
A. No, Mr. Kelley had not been discharged yet
when we employed Mr. White but Mr. Kelley was
going to be discharged the moment we employed Mr.
White.
O'Day quite flatly stated that on March 1 or shortly
thereafter that it had been decided to replace White.
Nevertheless, when White was discharged on May 15, quite
suddenly, a disc jockey, Rick Hanson, was transferred to
take White's place. Hanson remained as the morning
newsman until the end of June, when Parsons was placed
on the job. Questioned whether he had offered Gary West
a permanent position, O'Day testified as follows:
I cannot answer yes or no on that because many
radio positions are offered. We do not say this is
permanent, this is trial. I believe any new employee
comes to a station knowing that they are going to have
to fit their talents to that station. They know there is
going to be a certain period when management is going
to look to see if their talents do fit that station. We do
not use the expression "This is trial. This is perma-
nent," but we will say, "Let's try it, let's see how it
works out," expressions like that.
O'Day further testified that it was made even clearer to
White that he was being hired on a trial basis in that the
words used were "Let's give it a try and see if it works out."
I fail to see the distinction between this language and
O'Day's statement quoted above when he said, "We do not
use the expression `this is a trial,"this is permanent' we will
say, `Let's try it, let's see how it works out.' " Concluding
his testimony, O'Day stated that Jennings was offered
White's position on May 14 but rejected it because he was
frightened to go to work for KJR after talking with White
and a man named Hal Green.
lr 1 conclude from the foregoing that White was quite thoroughly tested
and considered for the position rather than hired on the basis of insufficient
information because an emergency situation existed.
is I assume the reference is to G.C. Exh. 4.
19 Jennings credibly testified that it was agreed he was to commence
June 15.
KAYE-SMITH ENTERPRISES
Frank Thompson testified that he has been news director
for KJR for about 3 years and had been in the employ of
KJR as a newsman for 4 years prior to becoming news
director; that he talked with White the day before he was
hired and made arrangements to meet him the next day for
an early breakfast at a restaurant; that after breakfast they
went to Thompson's apartment; that they listened to the
morning news on KJR as there was a delay in White's-
assumption of his position as KJR's morning newsman;
that this furnished an opportunity for instruction of White
with relation to the format, as well as discussion of the
technique of commercial placement; that he did not
discuss with White the reasons why Kelley was being
replaced nor threaten White with replacement should he
engage in union activity; that early in January he came to
the conclusion that White was not the man for the job; that
he thought White was deficient in his priorities in news
stories , the content, selection, and sequence of news, also
the style or interpretation of the news; that he had frequent
conversations with White sometimes on a daily basis; that
he engaged in constructive criticism of White and he was
unaware of White ever having criticized him. Thompson
referred to a news story prepared and broadcasted by
White on April 2,20 stating that he, in a discussion of this
broadcast with White the same day, had objected to the
opening line and to the extensive use of the source; that the
story was a rewrite of a column by Jack Anderson and it
was against the station's policy to rewrite articles of
columnists ' editorials. Shown a transcript of a broadcast by
White on March 8,21 Thompson said that the first part of
the story was unnecessary and that he felt the statements
were biased so as to lead the listener to react "a certain way
to the latter part of the story, and, so, editorializing."
Questioned on voir dire with regard to Respondent's
Exhibit 2, by counsel for the Charging Party as to the series
of dots between the sentences and one place where a series
of dots appeared between the lines, Thompson replied that
it was a "type of punctuation that is often used in
broadcast material , so I imagine that's what it is." He added
that where there were dots between two paragraphs in
some case there could have been an actuality; asked with
regard to the particular story (Resp. Exh. 2), Thompson
replied, "This story does not clearly indicate whether there
was an actuality." At this point, I asked:
JUDGE DAVIS: Take Exhibit No. 1, Respondent's
Exhibit No. 1, where right after-towards the end of
the page it says, "Sam Ervin," it mentions Sam Ervin,
wasn't there an actuality there?
A. Yes, there would have been an actuary there.
JUDGE DAVIS: O.K. Sam Ervin would be speaking on
a tape?
A. Yes, his voice could be heard.
Testifying further, Thompson stated that he talked with
O'Day early in March and recommended that White be
replaced. O'Day agreed, and thereafter Thompson spoke to
West in the middle of March when they had an evening
meal together in a restaurant. Thompson offered West a
20 Resp Exh. I It is noted that this broadcast occurred approximately I
month after Thompson and O'Day were supposed to have decided to
discharge White
1041
position, but West declined because of the hours. At the
end of March or early in April, Thompson discussed the
position with Kenneth Mattler, another broadcaster on a
local station. After a preliminary conversation, a meeting
was arranged in O'Day's office where Mattler was offered
the position and he declined. Thereafter, according to
Thompson, two others were contacted, but no offer of a
job was made until Jennings was offered the job on the
afternoon of May 14. Thompson stated that he "thought"
Jennings accepted at that time, but Jennings later called
him and declined the job for three reasons. Thompson's
testimony on this aspect was as follows:
Mr. Jennings gave three reasons. One was that he
felt, he said he felt-this is the best I can remember of
the conversation which occurred on the telephone
when he called me-he said he felt concern about the
situation, although he said it had not been directly
stated. He also mentioned his wife, but I don't recall
the details of his comments. He also said that he had
run into Mike White at a news director's or some type
of news conference in Portland and that a conversation
which he indicated was lengthy had occurred and that
he had subsequently talked to an attorney, Mr. Green,
and that he had decided that the situation was kind of
nervous. Again, I am paraphrasing. And he said that he
didn't want to take the job. He changed his mind.22
Thompson then testified with regard to the conversation he
had with White when he discharged him on May 15. Asked
what reasons he gave to White, Thompson stated that he
said, "It was largely because of his tendency to editorialize
and present bias in many of the stories on the air, also his
lack of detail to news format and his lack of reaction to
local happenings in some cases." Thereafter, according to
Thompson, on the same day he prepared a memo listing
the reasons for White's discharge. Thompson denied that
he had any knowledge of White's union activities at the
time of White's discharge. Thompson also stated he could
not hear conversations in the newsroom from the outside
corridor or vice versa.
On cross-examination, Thompson testified that he told
White when they were in his apartment on the morning of
December 12, 1972, that there had been a delay in Kelley's
termination and that was the reason they hadn't gone to
the station that day as originally planned. Thompson
admitted that he commented on Kelley's work so as to
provide a basis for instruction to White. Asked whether he
told White the reasons for Kelley's discharge, Thompson
replied, "I think I didn't provide any details on that. I
believe it was just that he was unsatisfactory." Pursuing
this line of questioning, counsel propounded the following
questions and elicited the following answers:
Q. Oh, but you did go that far? You said you were
going to have to discharge Kelly because he was
unsatisfactory?
A. I don't remember saying that he was unsatisfac-
tory, I don't remember having a conversation about
21 Resp . Exh. 2.
22 The three reasons were not further referred to.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, it was just obvious that that was what was going to
happen. I don't remember discussing it at all with Mr.
White.
Q. Now, when you say you don't remember, does
that mean you didn't say or you can't recall saying it
but it could have happened?
A. I am just sure that I didn't provide details about
Mr. Kelly.
On further examination, Thompson conceded that he
might have signed off on occasion with the line "I am
Frank Thompson" and that the manner of signing off was
not an important factor in White's discharge.23 Thompson
also conceded that the format of the station still requires
the newsman to use his own judgment for the selection of
the news items from the mass of information coming in
from various sources and that the same would be true of
the sequence of stories.
Thompson thereafter discussed and admitted that Kelley
was instructed and did adopt for a time a method of
delivery in imitation of "Paul Harvey." 24 Thompson
denied that it was at his instruction but "presumed" it was
at O'Day's instruction because that was his understanding.
Although pressed how he learned of this instruction or on
what he based his understanding, Thompson denied that
he had talked with O'Day or anyone else about this
matter.25 Thompson, testifying further, admitted that the
ABC network had directed KJR to cease using this type of
broadcast by Kelley after Kelley had employed some of
Harvey's material and voice inflections over a period of 3
or 4 months. However, Thompson denied having seen the
communication from ABC. Thompson said that he himself
had never spoken to Kelley about the matter nor criticized
Kelley until after it was discontinued.26 Continuing his
testimony, Thompson stated that he had talked to White
about editorializing from early in January about a "couple
of times a week"; that White appeared to offer compliance
but would continue to editorialize; that over the same
period of time and more than twice a week he spoke to
White about station policy in giving local stories priority.
Thompson particularly was disturbed by a story concern-
ing a local high school which he felt was not documented
and was handled in an inflammatory manner. This story
was broadcast on March 3 and according to Thompson
triggered his recommendation that White be dismissed. In
further cross-examination, Thompson conceded that Res-
pondent's Exhibits 1 and 2 did not encompass the
complete broadcast but consisted of excerpts that were
selected for attention in this proceeding; that he never told
White that by editorializing he was in danger of dismissal;
that during all of his criticism he at no time warned White
that he was in danger of dismissal or that he would
recommend that White be dismissed. Thompson conceded
23 Thompson explained as follows-
Yes, they were-just for a quick clarification, at the five-minute
news capsule part of Mr. White's tenure on the five-minute newscast,
when the newscast ended, there was a top-of-the-hour identification or
ID as we call it. The ID began with, "This is Radio Northwest," or
some other description , so rather than to have the redundency of Mr
White saying, "This is Mike White," ahead of this ID which said the
same thing, in order to tell who it was, we were instructed to say, to
standardize, to say, "I am," but in the other floating or constant-
information reports other than the five-minute ones, the instructions
that the Indian incident in Respondent's Exhibit 2 was the
top story of the day and that Watergate was also a top
story; that the high school story concerned a local story in
which 150 students were smoking marijuana during school
time; that an actuality by a witness to the incident was
included in this story; that the principal was contacted and
quoted later; that the fact that the story was a newsbeat by
KJR was not important. Charging Party's Exhibits 2 and 3
were introduced in evidence. The first being the KJR news
file of the news broadcasts on March 2, one for March 8,
and one for April 2.27
Joel L. Smith, called as a witness by and on behalf of
Respondent, testified that he was known as Emperor Smith
and has been employed by KJR for approximately 4 years
as an air personality; 28 that he is principally employed
during the time period from 5 to 9 in the morning, at a time
when White was also on the air at various times; that, prior
to the time White was hired by KJR, O'Day asked Smith to
listen to some tapes and give an opinion as to White's
ability; that O'Day played White's tape and at least one
other tape of another newsman ; that O'Day told Smith
referring to White, "This is the one with the strongest
credentials." Smith, after learning of White's credentials
said, "Well, we need somebody, you know, desperately. If
he is the only one you can come up with, I think, then, yes,
he is probably the one." Smith went on to say that he
suggested that O'Day look for somebody stronger as he did
not get the impression, from the tape he heard, that White
was the type of newsman that was needed to complement
the morning program. Continuing his testimonial account,
Smith said that he complained about White's broadcasting
about 6 or 8 weeks after White was employed saying to
O'Day, "I don't think Mike is making it as a newsman in
the morning." On cross-examination, Smith conceded that
his primary field was being a disc jockey; that he was paid
a much higher salary than the other announcers employed
by KJR because of his reputation; that he associates with
O'Day on a social basis at times, attending football games
and parties with O'Day. Asked what the desperate need
was at the time when White was hired, Smith replied that
the station was about to discharge their newsman, Kelley,
and someone was needed to replace him.
Byron Jennings testified that he was a newsman
employed by Station KXL in Seattle; that he had had
contacts at various times with O'Day and Thompson; that
he had indicated to them he would like to become a
newsman at KJR. About a week before May 14, Jennings
had a conversation with Thompson regarding employment
at KJR. A meeting was set up for May 14 with O'Day at
which time the morning news job was offered to Jennings
and he accepted with the understanding he was to go to
work on June 15. On May 19, Jennings met White in
Portland, Oregon, and had luncheon with him. During
were to sign off the other way
24 A well known national broadcaster whose style and delivery of "news"
is quite distinctive
25 His source of information remained a mystery.
26 While this episode is rather immatenal in this case , it heavily impinges
on Thompson's credibility and demonstrates his evasiveness.
27 Each of these exhibits consist of numerous pages which I have read
and reread.
28 Apparently, Smith is a disc jockey who has become quite popular and
therefore has attained the distinction of being an air personality.
KAYE-SMITH ENTERPRISES 1043
luncheon , White, according to Jennings , expressed "dis-
pleasure over his work at KJR, particularly his firing."
Asked whether this conversation was a factor in changing
his mind about going to work at KJR, Jennings replied as
follows:
No, it wasn't the total factor in my declining the job
because I had investigated his complaints as best I
could, and resolved them in my own mind.
Alfred Lee BenBeste , a witness called by the General
Counsel, testified that he was employed by the Associated
Press as a supervisor of the broadcast report and as the
shift supervisor of the day news; that he has been in Seattle
since February 5 and has been with the Associated Press
for 15 years; that he was acquainted with White from the
time he first arrived in Seattle ; that White called him
frequently two or three times a day with regard to regional
or local news items for the Associated Press; that
Associated Press did not use all of these stories; that
Thompson also called on occasion; that White supplied
him with more local news stories than Thompson and that
there was no complaint concerning the accuracy of White's
stories.
John T. Spencer, called by the General Counsel, testified
that he was the news director at KVI , a Seattle radio
station ; that he has been active in radio broadcasting for
16 years, the last six with KVI; that as news director he
continues to broadcast from time to time; that he has
known White for about 2 years; that he heard White
broadcast KJR news on a few occasions; that in his
opinion his delivery and voice were good.
White, when recalled in rebuttal, testified that he had
examined and counted station records which showed that
during his employment at KJR from January to May 15 he
had 643 local actualities in his broadcasts ; that Thompson
during the same period had 613.
Thomas G. Justice, called by the General Counsel,
testified that he was employed by KIRO , television of
Seattle ; that he was the 11 p .m. news anchorman and the
general assignment reporter. Justice then testified that in
his opinion Respondent's Exhibit 1 does not demonstrate
editorializing. With regard to Respondent's Exhibit 2,
Justice testified as follows:
I think the point that I would make to this particular
script is that, first of all, it's very well done in so far as
the illustrations of the historic perspective of Wounded
Knee in that an examination of Indian history, or every
anybody familiar with the very popular recent best
.selling book on that would know the historic signifi-
cance of the particular location of Wounded Knee.
When I first saw this at noon-again this is with no
prompting one way or the other, I have friends on both
sides of table here-I thought the script was very good
in that it did bring into perspective, and with probably
some degree of significance , the recent Indian demon-
stration at Wounded Knee for, if nothing else, its
geographical significance . I thought it was a very well
done script. I would say in fairness that to me a matter
of news bias , fairness in treatment of both sides,
because certainly this document, or this particular
script, with the actuality, obvious actuality, in there of
an Indian leader would show just one side of the
particular story.
However, I think in proper perspective it has to be
kept in mind that a degree of fairness or bias or unbias
in any journalist's work, whether it be in newspaper,
television or radio, is a matter of continuing coverage
in all one news program or one follow-up news
program or one one-minute news program or one 30-
minute news program, is no basis for judging whether
or not there is bias or unfair reporting because it's an
obligation, a continuing obligation, throughout.
I could say that if every script probably read just
exactly this way, presenting one side throughout the
long run, I would say that yes, maybe it could be cause
for alarm, but I think this is a very good report and it is
well done.
William J . Harriett , called by the General Counsel,
testified that he has been employed by KING television for
the past 2 years as anchorman and principal reporter with
a 5:30 p .m. hour-long show and a half hour show at I1
p.m.; that he has been broadcasting for 21 years in radio
and television including a 4-year stint with ABC covering
stories throughout the United States. Harriett stated that in
his opinion the basic reporting skills in TV and radio are
quite similar ; that he had examined Respondent Exhibit 1
and that in his opinion there was no editorializing. With
regard to Respondent Exhibit 2, Harriett testified as
follows:
I see no editorializing . I see, as Mr . Justice indicated,
historical perspective that brings this particular item, I
believe, into better focus which certainly historic
reference, geographic reference, would, in fact, anchor
in a listener's mind and, perhaps, I would think, add
that much more to this particular story and inform
them in an even more interesting way which, I would
hope, is what newscasting is all about.
Asked his opinion concerning General Counsel's Exhibit
11(a) through (e) Harriett testified as follows:
THE WrrrrEss: First of all, it's a sequence of stories. I
think the sequence is important because it's obvious
that this is a journalist at work who is going with the
information he has at the moment. We should explain
that radio, even more than television and more than
newspapers, is a deadline thing. You are talking about
minutes. Television you are talking about hours. Radio
you are talking about literally minutes.
A story like this develops usually over a matter of
time. Sometimes it might take all day to get down to the
crunch. Obviously, this is an example of a reporter who
has dug into the story and, as you go along, he quotes
news sources, including the principal, and there is
another problem here that we must realize, that part of
the problem we run against is the quoting of official
news stories is not enough . The officials are not going
to give you what happened. That has been proved by,
certainly , Watergate if nothing else.
So you can't rely on just the officials. You have to
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find somebody who was there also . It's obvious in this
that Mr. White talked to someone who was there, did
not necessarily take part in it , but certainly more than
one who was there.
JUDGE DAVIS : Let me ask you, is this the type of
news stories that could or would be broadcast on radio
and television in Seattle?
THE WrrmEss : Yes, sir, certainly the fact of 150 or 75
or 300, or whatever the figure , more than 75 students
are taking part in marijuana smoking in a local high
school, that is a story that should be brought to the
public.
JUDGE DAVIS : Based upon the circumstances as
indicated in that script, is that the type of thing that is
usable on radio and televisions?
THE Wm-ass : Certainly, and I would like to point
out there is a difference between an anonymous source
who didn't want to be named but whose name and
number the news man has , that's different from
stopping some stranger on the street and someone you
know nothing about and quoting that person. There is
a difference that I think should be pointed out, Mr.
White, as I understand , got the names and addresses
and phone number of several of the people.
JUDGE DAVIS : He so testified.
D. Analysis and Conclusions
Essentially , a decision in this case evolves around the
resolution of the credibility of the chief witnesses. I have
set out in considerable detail a good deal of the testimony
to demonstrate , in my opinion, the unreliability of the
testimonial accounts of O'Day and Thompson. Thompson,
an evasive witness, showed an inclination to depict White
as a complete incompetent from the very outset of his
employment . The evidence clearly demonstrates otherwise.
The fact of his retention for 4 months also belies
Thompson 's testimony in this regard.
O'Day, at the very outset, testified that Pope possessed
certain supervisory functions. When I called to his
attention that his testimony made Pope a supervisor,
O'Day attempted to min imize his testimonial account so as
to detract from his prior statements . However, when shown
that he had previously testified at the representation
proceeding involving KISW, to the same effect, he
acknowledged that his testimony in that case was true.
O'Day, as did Thompson, impaired his credibility by
indulging in gross exaggerations of White's deficiencies.
O'Day testified that station policy set a rigid format for
each individual and position, that even disc jockeys did not
ad lib but went by the script. Nevertheless , the evidence
shows and it was admitted by Thompson that newsmen are
expected to and do use independent judgment in exercising
their responsibilities in the writing, selection, and presenta-
tion of news items . O'Day, Thompson, and Smith insisted
that White had been hired on a temporary basis because of
an emergency situation. In addition, O'Day testified that
when he hired White he had insufficient information
concerning him. Nevertheless , his testimony shows that he
had two tape recordings by White and that he had
information concerning White's previous employment.
Moreover, the tapes were submitted to Thompson, the
news director, and to Smith, their disc jockey, before White
was hired . It seems fair to conclude therefore that the
decision to employ White was not a hasty one. O'Day
testified that when he employed an announcer he did not
use the expression, "This is a trial" or "This is permanent,"
but said , "Lets try it, lets see how it works out." As these
were the words he said he used when White was employed,
I conclude that there was no indication that White was
employed on a temporary basis and White had a right to
assume the job was permanent unless he performed poorly.
Clearly, as Doyle testified, 1 month of trial should be
sufficient to determine whether or not a newsman meets
the needs of the station and White was retained for 4
months . With regard to the emergency existing at the time
of White's employment, the facts show that when White
was hired the previous newsman , Kelley, had not been
discharged and no reason was shown why Kelley could not
have been retained for a longer period. Finally, O'Day, in
his testimony , tried to leave the impression that Jennings,
White's replacement, was scheduled to commence his
employment immediately after White's discharge on May
15. Jennings , however, credibly testified that when he
accepted employment on May 14, he agreed to report on
June 15, 1 month after White's discharge . I find therefore
there were other impelling reasons for White's sudden
discharge , especially when the evidence shows that
Respondent transferred a disc jockey with little experience
as a newsman to substitute for White for approximately 6
weeks after his discharge..
In contrast to O'Day and Thompson , I regard White as a
credible witness and credit his testimonial account where it
differs from O'Day's and Thompson's.
In the conversation with Thompson at the time of his
discharge on May 15, White testified that Thompson
placed much emphasis on White 's method of signing off by
saying "I'm Mike White." Initially, Thompson did not
dispute this, but when cross-examined further on this
aspect he minimized this reason as a cause for White's
discharge . He admitted that he , himself, had signed off by
saying "I'm Frank Thompson ." Indeed, Thompson stated
that this question was blown out of proportion . However,
the evidence shows that the "blowing up" was Thompson's
own doing. Moreover, it is listed as one of the reasons in
Respondent's Exhibit 3. I fully credit White's testimony
that as a conscientious newsman he believed in "critique"
and that he indulged in this technique on almost a daily
basis . Thompson , on the other hand, attempted to
convince me that these "critique" sessions were one-sided
affairs in which he adopted the role of critic and instructed
White . I find otherwise . The value of the "critique"
sessions as described by White was that both announcers
could indulge in friendly criticism in these sessions and
review various occurrences of the day in a constructive
manner. I also believe White's testimony that on only one
occasion was he criticized by Thompson for editorializing
and that he acknowledged this criticism by saying that he
would be more careful in the future ; and that thereafter he
was not again subjected to this type of criticism.
The evidence shows that White became active in the
attempt to organize the employees of KISW early in
March . I conclude that Respondent learned of this about
KAYE-SMITH ENTERPRISES
that time. The facts were made known to Michaels, an
admitted supervisor within the meaning of the Act, and he
acknowledged to White that he was aware of his union
activity. It is also admitted that Michaels had frequent
conversations with O'Day. Respondent, in its brief, asserts
that, inasmuch as General Counsel failed to call Michaels
as a witness to corroborate White's statement that he told
Michaels about his interest in organizing KISW employees,
the failure of Michaels to testify should weigh heavily
against the General Counsel. I disagree. As Michaels is an
admitted supervisor, the burden of calling Michaels to
rebut evidence of a conversation with him rested upon
Respondent. White, having testified to having discussed
with Michaels his union activity, the onus was on
Respondent to put on countervailing evidence if this were
untrue. As White's evidence now stands uncontroverted in
this record and, as I have noted above, I find White to be a
credible witness, I find that Michaels' knowledge that
White was participating in the attempted organization of
KISW employees is chargeable to Respondent.
Both O'Day and Thompson testified that the reasons
given to White at the time of his discharge by Thompson
also were embodied in Respondent's Exhibit 3 and that
this exhibit was written by Thompson following White's
discharge. In my view, this document is a self- serving
document prepared for the purposes of this hearing and the
six points enumerated in the memorandum are unsupport-
ed by the evidence. Respondent submitted two incomplete
broadcasts 29 by White to illustrate points 2 and 4 of this
memorandum. After 4 months of broadcasting, it seems
rather complimentary to White that Respondent selected
only these two examples of White's alleged shortcomings.
The first refers to Watergate and the second refers to the
incidents involving the Indians at Wounded Knee. Having
heard O'Day and Thompson's testimony and opinions with
regard to these two incidents, I fail to be impressed with
their reasons for being critical of the stories. I do not
regard Emperor Smith's testimony in his appraisal of
White's merit to be worthy of much weight. Smith has a
personal relationship with O'Day and holds a special
position of prestige at KJR. His testimony and demeanor
displayed a hostility to White demonstrating bias. In
addition, I believe that Smith's expertise with regard to
news broadcasting is quite minimal. On the other hand, I
was greatly impressed with the testimony of BenBeste,
Spencer, Justice, and Harriett. All of these men appear to
be outstanding newsmen with wide experience both in
television and radio. Justice and Harriett were particularly
impressive as they testified in a fair manner and gave
opinions which demonstrated consideration of conflicting
views. Their testimony confirms my own evaluation of
White's broadcasts together with my evaluation of General
Counsel's Exhibit 11(a) through (e), which satisfy me that
White is a competent newsman and that the reasons
advanced by Respondent as cause for his discharge are
pretextual and must be rejected. I consider the precipitate
nature of his discharge without prior warning at any time
29 Resp . Exhs. I and 2.
30 Under all the circumstances, a resolution of Ellsworth's testimony is
unnecessary, hence I do not credit nor discredit Ellsworth.
31 Ace Comb Company, 342 F.2d 841 (C.A. 8, 1965); see also Steel
1045
was due to his known activity on behalf of the Union in the
organization of KISW employees. This activity when
combined with his complaints to Pope about what he
thought were infractions of the union agreement were, in
my estimation, the moving causes for White's discharge.30
As I also credit White's account of the conversations
with Thompson on the day he was hired in which
Thompson stated that one of the reasons for Kelley's
discharge was due to the fact that he was too active in
union affairs and that Thompson told him on December 12
and again on a later date that one of the best ways to get in
wrong with O'Day was to become active in the Union, I
find that the latter statement violated Section 8(a)(1) of the
Act on each of these occasions in that the statement
conveys a threat designed to inhibit lawful union activity.
The applicable legal principles are well established. An
employer who discriminates among employees does not
violate Section 8(a)(3) unless the discrimination is based
upon union membership or other union-connected activi-
ties. Thus, an employer may discharge an employee with
impunity if the discharge is not motivated, at least in part,
by the employee's union activity.31
I fully appreciate that the burden of proving an improper
motivation for discharge is upon General Counsel. Howev-
er, as the Ninth Circuit Court stated in a recent decision: 32
Actual motive , a state of mind , being the question, it
is seldom that direct evidence will be available that is
not also self-serving. In such cases , the self-serving
declaration is not conclusive ; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book . Nor is the trier of fact-here the trial
examiner-required to be any more naif than is a
judge . If he finds that the stated motive for a discharge is
false, he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that the
employer desires to conceal-an unlawful motive-at least
where, as in this case, the surrounding facts tend to
reinforce that inference. [Emphasis supplied.]
Having the foregoing principles in mind and the
circumstances in this case, and particularly the complete
collapse of the stated reason for White's discharge, I regard
it quite apparent that White was discharged because of his
union activity.
As I have found above that the alleged shortcomings of
White were not the true reasons for his discharge but a
pretext to disguise the fact that Respondent had deter-
mined to rid itself of an outstanding adherent and
proponent of the Union, I conclude that Respondent by
reason of White's discharge violated Section 8(a)(3) and (1)
of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
Industries, Incorporated 325 F.2d 173 (C.A. 7, 1963), where the court said,
.. an employer has the right to discharge an employee for good reason,
bad reason or no reason, absent discrimination."
32 Shattuck Denn Mining Corporation, 362 F.2d 466 (C.A. 9, 1966).
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW take certain affirmative action designed to effectuate the
policies of the Act.
As I have found that Mike White on May 15, 1973, was
discriminatorily discharged and thereafter refused rein-
statement,: Ijshall ' recommend that Respondent'offer'him
immediate and full reinstatement to his former position or,
if that position no longer exists , to a substantially
equivalent position without prejudice to his seniority or
other rights or privileges and make him whole for any loss
of earnings that he may have suffered as a result of the
discrimination against him . Backpay is to be computed on
a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, with interest at
the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
As the unfair labor practices found herein strike at the
roots of employees ' rights safeguarded by the Act, it will be
recommended that Respondent cease and desist from
infringing in any manner upon the rights guaranteed them
in Section 7 of the Act.
[Recommended Order omitted from publication.]
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Homer Pope is a supervisor within the meaning of
Section 2(11) of the Act.
4. Respondent, by and through Thompson, violated
Section 8 (a)(1) of the Act by informing Mike White that
O'Day, manager of Station KJR, frowned upon employee
involvement in union activity.
5. By the discharge of Mike White on May 15, 1973,
Respondent violated Section 8(a)(3) and 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and 8(a)(3) of the Act, I shall recommend
that it be required to cease and desist therefrom and to