Metro Networks

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 63 (N.L.R.B. 2001)

METRO NETWORKS 63
Metro Networks, Inc. and American Federation of
Radio and Television Artists, Philadelphia Lo-
cal, AFL–CIO. Cases 4–CA–26812 and 4–CA–
27207
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On April 8, 1999, Administrative Law Judge James L.
Rose issued the attached decision. The General Counsel,
the Respondent, and the Charging Party filed exceptions
and supporting briefs. The Respondent and the General
Counsel filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt his recommended Order as modified and set
forth in full below.2
The Respondent provides reports on traffic, news,
weather, and business to affiliated radio and television
stations in 79 U.S. cities. At the Philadelphia facility3 at
issue, the Respondent employs between 55 and 65 em-
ployees, including reporters and producers, in a variety
of classifications, most of whom are full-time, salaried
employees.
In about late November 1997, the Respondent’s em-
ployees in Philadelphia received a letter from the Re-
spondent’s chairman and CEO, David Saperstein. The
letter stated that the Respondent was disappointed that its
employees in San Francisco had voted for union repre-
sentation, that most employees believe that the Respon-
dent is responsive to their ideas and needs, and that the
employees should feel free to call him or President
Chuck Bortnick if their questions and complaints are not
being addressed.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We adopt the judge’s findings, for the reasons set forth in his deci-
sion, that the Respondent violated Sec. 8(a)(1) by soliciting complaints
and grievances; promising to improve wages and other conditions of
employment; and interrogating and directing an employee to report on
the union activity of other employees. We shall modify the judge’s
recommended Order in accordance with our recent decision in Fergu-
son Electric Co., 335 NLRB 142 (2001). We shall also modify the
judge’s recommended Order in accordance with our decision in Indian
Hills Care Center, 321 NLRB 144 (1996).
3 This case involves only the Philadelphia location.
Within a few days, in December 1997, employee and
union member Mary Colleen Zoltowski accepted the
invitation and spoke with Bortnick by telephone, inform-
ing him that the news department employees in Philadel-
phia had contacted the Union. She complained that part-
time employees, including herself, were paid too little;
Bortnick responded that she would receive a raise from
$12 to $15 an hour. In a later telephone conversation
with Bortnick and Mark Shields, the Respondent’s Phila-
delphia branch manager, Shields, told Zoltowski that
there would be a new operations manager and “major
changes.” He asked Zoltowski to keep him informed.
Subsequently, in a meeting the same month with Zol-
towski, Shields asked her what was going on with the
Union and again asked her to keep him informed. The
judge found that Bortnick’s solicitation of grievances and
promise of a wage increase and Shields’s promise of
improved working conditions, interrogations of Zol-
towski, and direction that she report on the union activity
of other employees violated Section 8(a)(1). On January
10, 1998,4 Zoltowski learned that she did not receive the
raise that she had discussed with Bortnick. Shields told
her that the budget already had been set.5
Zoltowski called 55 employees to discuss the Union
between January 12 and 16 and, on January 16, called
Shields to postpone her scheduled performance review
meeting because of a work conflict. During their conver-
sation, Shields asked her what was going on with the
Union and whether they had majority support yet. Zol-
towski replied that she did not think they had a majority.
Shields said she should keep him “informed about what’s
going on.” The judge found that by these comments the
Respondent unlawfully interrogated Zoltowski in viola-
tion of Section 8(a)(1). On January 17, Zoltowski dis-
tributed union literature to about eight employees outside
the Respondent’s building.
Dennis Brocklehurst began talking to fellow employ-
ees about the Union after Thanksgiving and contacted the
Union on December 18 or 19, 1997. On the morning of
January 19, he openly passed out union literature to 9 or
10 employees at the Respondent’s studio while manage-
ment personnel were present at the facility.6 That after-
4 All the following dates are in 1998 unless otherwise noted.
5 Zoltowski, who was credited by the judge, testified that Shields
told her that the budget had been set in October 1997 and, in response
to her question, said that the Respondent was doing well financially
because of its contract with Bell Atlantic.
6 The physical layout of the studio facilitates managers’ observation
of employee activity in the studio. As Brocklehurst testified, he passed
out the union materials in the operations area, which consists of an
open “pit” surrounded by a chest high counter.
336 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64
noon, the Respondent discharged Brocklehurst, effective
immediately, and gave him a severance agreement for his
review and signature.7 We find below that this conduct
violated Section 8(a)(4) and (1) of the Act.
Later the same day, the Union faxed a letter (drafted
on January 16) to Shields stating that Brocklehurst, Zol-
towski, and two other employees had formed an organiz-
ing committee and were requesting voluntary recognition
of the Union. As Zoltowski testified, Shields called her
the following day, January 20, to tell her that she and
Brocklehurst were to be terminated because their jobs
had been eliminated due to budget cuts. Shields said that
he had received the Union’s letter and asked why she
was involved. She said she was a strong believer in the
Union and had been a member for 15 years. Shields
asked who else among the employees was a union mem-
ber.8 The judge found that Shields’ comments consti-
tuted unlawful interrogation. Shields called her again
that evening and said he had a termination package for
her to sign. Zoltowski replied that she would not sign
any termination paper and, apparently as a result, she
was not given the proposed severance agreement.
The judge found pretextual the Respondent’s asser-
tions that it laid off the employees for budgetary reasons
and that it chose Zoltowski and Brocklehurst for the lay-
off for legitimate business reasons. With respect to Zol-
towski, the Respondent offered no reason for her selec-
tion other than budget cuts. With respect to Brockle-
hurst’s selection for layoff, News Bureau Chief Paul Per-
rello, who was involved in the layoff decision, testified at
the hearing that 65 percent of the reason Brocklehurst
was selected for layoff was his poor performance and 35
percent of the reason was the Respondent’s arrangements
for the exclusive use of reporters with certain affiliates.
In contrast, Shields testified that Perrello did not tell him
that Brocklehurst’s poor performance was a reason and
that he did not consider that an issue. The judge noted
that Brocklehurst’s last performance evaluation on Janu-
ary 24 was almost perfect. The judge found that Per-
rello’s testimony about Brocklehurst’s performance was
exaggerated and not believable and that the Respondent’s
argument concerning the exclusivity arrangement was
“disingenuous.” The judge also found that the budget
savings suggested by the Respondent’s witnesses were
not supported by the evidence and that the pretextual
nature of the Respondent’s reasons is further indicated by
its failure to offer Brocklehurst or Zoltowski an opportu-

7 Brocklehurst testified that Shields told him that he was being ter-
minated “for budgetary reasons.”
8 Zoltowski testified that Shields also told her during that same con-
versation that she “was not to go” to the Respondent’s two meetings in
which the Union would be discussed.

nity to fill any of the vacancies occurring after their ter-
minations.9 In sum, the judge found that the Respondent
unlawfully discharged Brocklehurst and Zoltowski be-
cause of their union activity. However, as noted below,
the judge found that the Respondent did not violate Sec-
tion 8(a)(4) with regard to its conduct vis-a-vis severance
agreements prepared for Brocklehurst and Zoltowski.
The severance agreement given to Brocklehurst pro-
vided that he would receive a payment equivalent to his
monthly base salary prorated from the day after his dis-
charge through March 19, 1998. Paragraph 4 of the
agreement provided that, in exchange for the payment,
Brocklehurst would release the Respondent from all

suits, actions, causes of action, judgments, damages,
expenses, claims or demands, in law or equity, which
you ever had, now have, or which may arise in the fu-
ture regarding any matter arising on or before the date
of execution of this Agreement, including but not lim-
ited to all claims (whether known or unknown) regard-
ing your employment at or termination of employment
from Metro . . . which could arise under . . . the Na-
tional Labor Relations Act.

The nonassistance provision of the agreement in paragraph
6 provided that

you agree, not to sue or file a charge . . . in any forum
or assist or otherwise participate, except as may be re-
quired by law, in any claim, arbitration, suit, action, in-
vestigation or other proceeding of any kind which re-
lates to any matter that involves Metro . . . and that oc-
curred on or before your execution of this Agreement.

The nondisclosure provision in paragraph 8 provided that

[y]ou understand and agree that neither you nor anyone
acting on your behalf will publish, publicize, dissemi-
nate, communicate or cause to be published, publi-
cized, disseminated or communicated to any entity or
persons whatsoever, directly or indirectly, information
concerning your employment with Metro, the existence
of this Agreement or the terms described herein except
to your immediate family, attorneys, accountants or tax
advisors.

Brocklehurst did not sign the draft severance agreement.
1. The discharges
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) by discharging Brocklehurst and
Zoltowski for engaging in union activity. In evaluating
9 The judge also found that natural attrition would have solved any
problem regarding “minor payroll excesses.”
METRO NETWORKS 65
8(a)(3) allegations, the Board applies the analysis set
forth in Wright Line,10 under which the General Counsel
is required to show by a preponderance of the evidence

(1) that the employee was engaged in protected activ-
ity, (2) that the employer was aware of the activity, and
(3) that the activity was a substantial or motivating rea-
son for the employer’s action. Motive may be demon-
strated by circumstantial evidence as well as direct evi-
dence and is a factual issue which the expertise of the
Board is peculiarly suited to determine.

FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th
Cir. 1995) (citations omitted). Once this showing has
been made, the burden shifts to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct. Wright Line,
251 NLRB at 1089; and Naomi Knitting Plant, 328
NLRB 1279, 1281–1283 (1999) (discussing requirements
for meeting burden).
We agree with the judge that the General Counsel has
made the showing that Zoltowski and Brocklehurst en-
gaged in protected activity;11 that the Respondent was
aware of the activity, as discussed further below; and that
the union activity was a motivating reason for their dis-
charges. Motive and antiunion animus are demonstrated
by the Respondent’s statements of opposition to the un-
ion contained in Saperstein’s letter in November 1997
and independently by its violations of Section 8(a)(1),
including its unlawful solicitations and promises, inter-
rogations, and direction of Zoltowski to report on the
union activity of other employees. We also agree with
the judge that the Respondent has failed to rebut the
General Counsel’s showing.
With respect to knowledge, as the judge found, the Re-
spondent had direct knowledge of Zoltowski’s union
activity based on conversations with management that
included the unlawful statements previously recounted.
We further infer that it also gained knowledge of Brock-
lehurst’s union activity because of its contemporaneous
8(a)(1) violations; its general awareness of union activ-
ity; and because Brocklehurst and Zoltowski were the
only employees who openly espoused support for the
Union prior to the discharges and Brocklehurst circulated
flyers in the operations area of the studio, which facili-
tated easy observation by the Respondent’s managers.
We also infer knowledge from the timing of the dis-

10 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 989 (1982), overruled in part on other
grounds, Director, Office of Workers Compensation Programs v.
Greenwich Collieries, 512 U.S. 267, 276–278 (1994).
11 The Respondent does not contest this fact.
charges (on the same day that Brocklehurst circulated
union material and on the heels of Zoltowski’s organiz-
ing activity and expressions of union sympathy) and
from the pretextual nature of the reasons advanced by the
Respondent for the discharges, i.e., budgetary considera-
tions, Brocklehurst’s poor performance, and exclusivity
arrangements. See Medtech Security, Inc., 329 NLRB
926, 929–930 (1999) (circumstantial evidence, including
timing, general knowledge of union activity and pretext,
supported finding of employer knowledge), citing Dar-
bar Indian Restaurant, 288 NLRB 545 (1988) (finding of
knowledge based on employer’s general knowledge of
union activity, the timing of the discharge, the 8(a)(1)
violations found, and pretext given); and Montgomery
Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem.
97 F.3d 1448 (4th Cir. 1996) (Board may infer knowl-
edge from circumstantial evidence including timing,
general knowledge of union activity, animus, and dispa-
rate treatment). See also American Chain Link Fence
Co., 255 NLRB 692, 693 (1981), enfd. in relevant part
NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236,
1245 (1st Cir. 1982) (termination of only two open union
supporters and opportunity of management to observe
employees engaged in union activity among factors re-
lied on to find knowledge).
2. The releases
The judge concluded that the Respondent did not vio-
late Section 8(a)(4) and (1) by offering the dischargees,
Brocklehurst and Zoltowski, severance pay in considera-
tion for signing the releases. He found that it is “a
stretch that any reasonable person reading them would
conclude that the signatory would be prohibited from
cooperating with the Board in its investigation or litiga-
tion of unfair labor practice charges.” The judge noted
that, although the language of the release is “comprehen-
sive,” the Board is mentioned only in one paragraph that
contains language the Board has found acceptable.12
Regarding paragraphs 6 and 8 of the agreement, the non-
assistance and nondisclosure clauses quoted above, the
judge found these provisions not sufficiently specific to
preclude cooperation with the Board.13
In their exceptions, the General Counsel and Charging
Party argue that the Respondent violated Section 8(a)(4)
12 First National Supermarkets, 302 NLRB 727 (1991) (release of
claims arising out of individual’s “total employment” lawful because,
in circumstances of case, provision understood as referring to matters
such as the individual’s claim for vacation pay arising out of his past
employment and relating to the settled discharge).
13 In this regard, the judge contrasts EEOC v. Astro USA, 94 F.3d
738 (1st Cir. 1996), in which the court found that releases specifically
prohibiting employees from filing charges with the EEOC or assisting
in its investigations were void as against public policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
and (1) by conditioning severance payments on the non-
assistance and nondisclosure provisions of the agree-
ment. We find merit to these exceptions. Contrary to the
judge, we agree that the Respondent has violated Section
8(a)(4) and (1) with regard to paragraphs 6 and 8 of the
severance agreement it offered and gave to Brockle-
hurst.14
Section 8(a)(4) provides that it shall be an unfair labor
practice for an employer “to discharge or otherwise dis-
criminate against an employee because he has filed
charges or given testimony under this Act.” The Board’s
approach to this provision “has been a liberal one in or-
der to fully effectuate the section’s remedial purpose.”
General Services, 229 NLRB 940, 941 (1977), relying on
NLRB v. Scrivener, 405 U.S. 117, 124 (1972). Such an
approach is consistent with the Court’s acknowledge-
ment that the initiation of a Board proceeding effectuates
public policy and, therefore, through Section 8(a)(4),
“Congress has made it clear that it wishes all persons
with information about [unfair labor] practices to be
completely free from coercion against reporting them to
the Board.” Nash v. Florida Industrial Commission, 389
U.S. 235, 238 (1967).
As the Court noted in Scrivener, 405 U.S. at 122,
“[t]his complete freedom is necessary . . . to prevent the
Board’s channels of information from being dried up by
employer intimidation of prospective complainants and
witnesses” (quoting John Hancock Mutual Life Insur-
ance v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951)).
Moreover, the Court observed, it is consistent with the
fact that “the Board does not initiate its own proceedings;
implementation is dependent ‘upon the initiative of indi-
vidual persons.’” 405 U.S. at 122 (quoting Nash v. Flor-
ida Industrial Commission, 389 U.S. at 238). Section
8(a)(4), an essential aspect of the statutory scheme, is
designed to “safeguard the integrity of the Board’s proc-
esses.” Filmation Associates, 227 NLRB 1721 (1977) (it
provides a “fundamental guarantee” to those invoking
the procedures of the Act; and the duty to preserve
Board’s process from abuse is a function of the Board
and may not be delegated to the parties or an arbitrator).
Mindful of these principles and practical concerns, the
Board and courts have found that Section 8(a)(4) is not
limited to protecting an employee who has filed charges
and testified on his or her own behalf. For example, the
Court in Scrivener rejected an appeal for a narrow inter-
pretation of Section 8(a)(4) and found that it extends to
the protection of employees who provide information

14 We find that the Respondent did not unlawfully offer Zoltowski
the severance agreement because it neither showed her the severance
agreement nor told her about the nonassistance and nondisclosure pro-
visions in pars. 6 and 8.
through affidavits gathered during investigations or ap-
pear at Board hearings pursuant to subpoenas without
testifying. 389 U.S. at 123–125.15 It also protects an
employee who provides information to the Board that
assists another employee. E.g., National Surface Clean-
ing, Inc. v. NLRB, 54 F.3d 35 (1st Cir. 1995) (Board
properly found that the employer unlawfully discharged
four employees for supporting a coworker’s filing of
charges). See also NLRB v. Retail Wholesale Union Lo-
cal 876, 570 F.2d 586, 590–591 (1978), cert. denied 439
U.S. 819 (employer may not retaliate against employee
for refusing to testify on the employer’s behalf in Board
proceedings).16
Likewise, an employer may not coercively condition
an individual’s return to employment on withdrawal of
charges and forbearance from future charges and con-
certed activity because “future rights of employees as
well as the rights of the public may not be traded away in
this manner.” Mandel Security Bureau, Inc., 202 NLRB
117, 119 (1973). Indeed, in Clark & Hinojosa, 247
NLRB 710 fn. 1 (1980), the Board found that the em-
ployer violated Section 8(a)(4) when it refused to provide
severance pay it had previously promised to a former
employee after she threatened to complain to the Board
about her discharge, even though the Board did not ad-
dress the question of whether the discharge was unlaw-
ful.17
15 In this regard, the Court stated that it would
make less than complete sense to protect the employee because
he participates in the formal inception of the process (by filing a
charge) or in the final formal presentation, but not to protect his
participation in the important developmental stages that fall be-
tween these two points in time.
405 U.S. at 124.
16 Nor does Sec. 8(a)(4) prohibit discrimination only after the filing
of a charge or because an employee has appeared at a hearing. For
example, it prohibits an employer from discriminating against an em-
ployee for announcing an intention to file a charge with the Board.
Grand Rapids Die Casting Corp. v. NLRB, 831 F.2d 112 (6th Cir.
1987), citing First National Bank & Trust Co., 209 NLRB 95 (1974),
enfd. 505 F.2d 729 (3d Cir. 1974) (employer prohibited from discrimi-
nating against employee based on belief that individual had or would
file a charge). The court noted that it had previously followed a more
restrictive, literal interpretation of Sec. 8(a)(4), but declined to do so in
this case based on the Supreme Court’s intervening pronouncements in
Scrivener, supra. Grand Rapids Die Casting Corp., 831 F.2d at 116 fn.
2.
17 The Board may approve non-Board settlement agreements where
appropriate. The Board determines “in its own discretion, ‘whether
under the circumstances of the case, it will effectuate the purposes and
policies of the Act to give effect to any waiver or settlement of charges
of unfair labor practices.’” Independent Stave Co., 287 NLRB 740, 741
(1987) (quoting National Biscuit Co., 83 NLRB 79, 80 (1949)). De-
spite its commitment to settlements, the Board “will refuse to be bound
by any settlement that is at odds with the Act or the Board’s policies.”
Id. See also Beverly California Corp. v. NLRB, 253 F.3d 291 (7th Cir.
2001) (upholding Board’s refusal to honor settlement agreement, which
METRO NETWORKS 67
Contrary to the judge, and consistent with precedent, we
find that the plain language of the severance agreement
would prohibit Brocklehurst from cooperating with the
Board in important aspects of the investigation and litiga-
tion of unfair labor practices charges. Paragraph 6 would
forbid Brocklehurst from assisting with regard to any
claim filed by another individual except as “required by
law,” and paragraph 8 would prohibit him from communi-
cating with anyone about his employment with the Re-
spondent. The terms of these provisions are comprehen-
sive and include voluntarily giving information to the
Board or participating in any claim filed by any individ-
ual.18 Moreover, even assuming that the language of sec-
tion 4 in the agreement releasing the Respondent from any
suits brought by the signatory itself may not violate Sec-
tion 8(a)(4) of the Act, it does not in any way limit or ne-
gate the prohibitive nature of the nonassistance and nodis-
closure provisions of paragraphs 6 and 8.19
We further find, contrary to the judge, that the narrow
exception in paragraph 6 allowing participation “required
by law” does not render the agreement lawful. As noted
above, it is well established that “[t]he Board’s ability to
secure vindication of rights protected by the Act depends
in large measure upon the ability of its agents to investi-
gate charges fully to obtain relevant information and
supporting statements from individuals.” Certain-Teed
Products, 147 NLRB 1517, 1519–1520 (1964) (em-
ployer’s statements that employees need not voluntarily
cooperate with Board investigation violated Sec. 8(a)(1)).
As recognized by the Supreme Court in Scrivener, 405
U.S. at 122, such investigations often rely heavily on the
voluntary assistance of individuals in providing informa-
tion. An individual’s refusal voluntarily to provide in-
formation in an investigation may result in an otherwise
meritorious charge being dismissed and, therefore, no
subpoena to testify would be forthcoming. In this case,
the Respondent’s use of the nonassistance and nondisclo-
sure provisions could have prevented Brocklehurst, a
former employee it unlawfully discharged for union ac-
tivity, from providing information to the Board concern-
ing its unlawful interference with the statutory rights of
all the employees. Such conduct unlawfully chills the
Section 7 rights of all the employees. In short, we find
unlawful the Respondent’s offer of a severance agree-

covered NLRB charges in its settling of civil rights claims, considering
the General Counsel’s opposition and its lack of reasonableness).
18 We find no merit in the Respondent’s assertion that par. 8 relates
only to the confidentiality of the agreement because that paragraph also
prohibits, in disjunctive language, his communication of information
concerning his employment to any entity or person.
19 Cf. First National Supermarkets, supra, fn. 9 (release restricted to
matters arising out of an employee’s past employment and discharge
lawful).
ment prohibiting Brocklehurst from assisting other em-
ployees with regard to any matter arising under the Na-
tional Labor Relations Act and/or disclosing any infor-
mation to the Board with regard to any and all investiga-
tions and proceedings.20
ORDER
The National Labor Relations Board orders that the
Respondent, Metro Networks, Inc., Philadelphia, Penn-
sylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting complaints and grievances and promising
improved wages and working conditions.
(b) Interrogating employees concerning the union ac-
tivities of other employees.
(c) Directing employees to report the union activities
of other employees.
(d) Discharging or otherwise discriminating against
employees because they engage in union or other con-
certed activity protected by the National Labor Relations
Act.
(e) Offering former employees a severance agreement
prohibiting assisting other employees with regard to any
20 We find no merit in the Respondent’s assertion that its proffer of
the severance agreement was lawful because Brocklehurst did not sign
it. The Respondent’s proffer of the severance agreement, with pars. 6
and 8, constitutes an attempt to deter Brocklehurst from assisting the
Board in the process. Brocklehurst’s conduct in not signing the agree-
ment does not render the Respondent’s conduct lawful.
We also find no merit in the Respondent’s assertion, in essence, that
its offer was lawful because Brocklehurst was not entitled to any sever-
ance pay. The offer is unlawful because the Respondent sought to
prevent him from communicating and providing information to the
Board. See Clark & Hinojosa, supra, 247 NLRB at 718–719 (although
employer not required to offer severance pay, it may not withhold
severance pay discriminatorily). In contrast to the remedy in Clark &
Hinojosa, however, we do not order the Respondent to offer Brockle-
hurst the settlement agreement without the unlawful provisions because
we find that his discharge was unlawful. In Clark & Hinojosa, supra at
723, the Board did not find the underlying discharge unlawful and
therefore such a remedy was appropriate.
Chairman Hurtgen concurs in the finding of a violation, but does so
on limited grounds. If the proposed severance agreement had simply
precluded Brocklehurst from filing or assisting in regard to his own
claims, it may well have been lawful. However, the proposed agree-
ment precluded him from assisting or otherwise participating in any
proceeding of any kind “which relates to any matter that involved
Metro.” Thus, for example, Brocklehurst would be forbidden from
assisting other employees in any charge that they might file against
Metro. To this extent, it was unlawful.
Chairman Hurtgen recognizes that there is an exception for assis-
tance which is “required by law.” But, this does not obviate the point
that Brocklehurst would not be able to exercise his Sec. 7 right to vol-
untarily assist others. In sum, in the Chairman’s view, severance pay
was conditioned upon the waiver of Brocklehurst’s right to assist other
employees. Since the waiver was not confined to claims that Brockle-
hurst might have, Chairman Hurtgen concurs in the violation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
matter arising under the National Labor Relations Act
and/or disclosing any information to the National Labor
Relations Board with regard to any investigation or pro-
ceeding.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the is Order, offer
Dennis Brocklehurst and Mary Colleen Zoltowski
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Dennis Brocklehurst and Mary Colleen Zol-
towski whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, rescind
the severance agreement offered to Dennis Brocklehurst
and notify him in writing that this has been done.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and within 3 days thereafter notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility copies of the attached notice marked “Appen-
dix.”21 Copies of the notice, on forms provided by the
Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,

21 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed its facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since the date of this Or-
der.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT solicit complaints and grievances
from our employees and promise to improve wages and
other conditions of employment.
WE WILL NOT interrogate our employees concerning
the union activity of other employees.
WE WILL NOT direct our employees to report on the
union activity of other employees.
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in union or other
concerted activity protected by the Act.
WE WILL NOT offer former employees a severance
agreement prohibiting assisting other employees with
regard to any matter arising under the National Labor
Relations Act and/or disclosing any information to the
National Labor Relations Board with regard to any inves-
tigation or proceeding.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Dennis Brocklehurst and Mary Colleen Zoltowski
METRO NETWORKS 69
immediate and full reinstatement to their former jobs, or
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Dennis Brockelhurst and Mary
Coleen Zoltowski whole for any wages or other benefits
that they may have suffered as a result of our discrimina-
tion against them, with interest.
WE WILL, within 14 days from the date of this Order,
rescind the severance agreement offered to Dennis
Brockelhurst and notify him in writing that this has been
done.
WE WILL, within 14 days from the date of this Order,
remove from its files any reference to the unlawful dis-
charges and within 3 days thereafter notify the employ-
ees in writing that this has been done and that the dis-
charges will not be used against them in any way.
METRO NETWORKS, INC.

Peter C. Verrochi, Esq., for the General Counsel.
Douglas S. Zucker, Esq., of Morristown, New Jersey, for the Respondent.
Jonathan K. Walters and Mary Locke, Esqs., of Philadelphia, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at Philadel-
phia, Pennsylvania, on January 12, 13, and 29, 1999, upon the General Counsel’s consolidated
complaints1 which alleged that the Respondent discharged two employees in violation of
Section 8(a)(3) of the National Labor Relations Act. It is also alleged that the Respondent
violated Section 8(a)(1) and (4) of the Act.
The Respondent generally denied that it committed any violations of the Act, and contends
the discharges were based on economic necessity and were not caused by any union activity.
On the record as a whole,2 including my observation of the witnesses, briefs and arguments
of counsel, I make the following findings of fact, conclusions of law, and recommended Order
I. JURISDICTION
The Respondent is a Delaware corporation with facilities throughout the United States en-
gaged in the business of providing traffic, news, and weather reports to radio and television
stations. At its Philadelphia facility, the Respondent annually derives gross revenues in excess
of $100,000 and annually purchases and receives goods valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania. I therefore conclude that the Respon-
dent is an employer engaged in interstate commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Radio and Television Artists, Philadelphia Local, AFL–CIO
(Union) is admitted to be, and I find is, a labor organization within the meaning of Section 2(5)
of the Act.

1 At the hearing, counsel for the General Counsel’s motion to con-
solidate was granted.
2 Counsel for the General Counsel’s motion to correct transcript is
granted, and is included in GC Exh. 1. A list of terminations at the
Respondent’s Philadelphia branch between December 1997 and De-
cember 1998 submitted after the hearing is received in evidence as GC
Exh. 38.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent operates in 79 cities throughout the United States, providing to affiliate
radio and television stations traffic, news, weather, business, and informational reports. At the
Philadelphia facility the Respondent has 55 to 65 employees in such classifications as: anchor,
producer, airborne reporter, airborne anchor, producer, mobile reporter, and reporter. Most are
full-time, salaried employees, however, there are a few who work on a part-time, hourly basis.
Dennis Brocklehurst (sometimes in the record Randy Brock, his on-the-air name) was a full-
time reporter, who worked about 10 weeks a year as a news anchor. Mary Zoltowski (Zol-
towski) was a part-time producer, who also did fill-in work.
Organizational activity among employees of the Respondent began rather casually in De-
cember 1997, following their receipt of a letter dated November 24 from David Saperstein, the
Respondent’s chairman and CEO, to the effect that employees at San Francisco had voted for a
union and the company was “disappointed.” Thus Brocklehurst testified that he contacted the
Union on December 18 or 19, and between Thanksgiving and his termination, he talked to 8 or
10 employees about the Union. And, on the morning of January 19, before reporting for work,
he passed out union literature to 9 or 10 employees at the Respondent’s studio.
Mary Zoltowski was a longtime member of the Union. She testified that on receiving the
letter, she accepted the invitation to call Saperstein. Charles Bortnick, the Respondent’s
president, called her back and they discussed certain problems at Philadelphia. She told him
that employees were considering going to the Union, and in fact the news department employ-
ees had contacted the Union. During this conversation, according to Zoltowski’s credible
testimony, among the problems she raised was the pay for part-time employees such as herself.
She was being paid $12 per hour. Bortnick told her that in January she would be raised to $15.
Mark Shields, the branch manager at Philadelphia, and Bortnick called her back later and
again they discussed the Philadelphia situation, which Shields saying that they were going to
get a new operations manager and there would be major changes. Shields asked Zoltowski to
keep him informed.
Subsequently in December she met with Shields. He asked her what was going on with the
Union. And he asked her to keep him informed. On January 10, she did not get the promised
raise and Shields told her that the budget had been set. Between January 12 and 16 she called
55 employees and on January 17 distributed union literature to about 8 employees.
On Friday January 16, Brocklehurst, Zoltowski, and two other employees met with union
representatives. A letter was drafted to Shields stating that the four had formed an employee
organizing committee and requesting voluntary recognition. The letter was sent by fax shortly
after Brocklehurst was discharged on Monday, January 19. Zoltowski was notified of her
discharge on January 20.
Each was to receive severance pay on the signing of a five-page comprehensive release
which contained the following provisions:

4. In consideration of the payments described in Sec-
tion 2 and for other good and valuable consideration you
. . . hereby release and forever discharge, Metro . . . from
all . . . suits, actions, causes of action, judgments, dam-
ages, expenses, claims or demands, in law or in equity,
which you ever had, now have, or which may arise in the
future regarding any matter arising on or before the date of
execution of this Agreement, including but not limited to
all claims (whether known or unknown) regarding your
employment at or termination of employment from Metro
. . . which could arise under . . . the National Labor Rela-
tions Act.

. . . .

6. [Y]ou agree not to sue . . . in any forum or assist or
otherwise participate, except as may be required by law, in
any claim.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
. . . .

8. You understand and agree that neither you nor any-
one acting on your behalf will publish . . . communicate
. . . to any entity. . . information concerning your em-
ployment with Metro, the existence of this Agreement or
the terms described herein except to your immediate fam-
ily, attorneys, accountants or tax advisors.
B. Analysis and Concluding Findings
1. The alleged 8(a)(1) activity
It is alleged that Shields committed violations of Section 8(a)(1) in November, December,
and on two dates in January. Specifically, it is alleged that in late November, Shields and
Bortnick solicited complaints and grievances from an employee and promised increased wages
and improved terms and conditions of employment in order to discourage employees from
selecting the Union as their bargaining representative. I credit Zoltowski’s testimony over the
denials of Shields and Bortnick. I conclude that the interrogation along with solicitation of
grievances and the promise of a wage increase and “major changes” was necessarily coercive
and violative of Section 8(a)(1) of the Act. E.g., Hertz Corp., 316 NLRB 672 (1995).
Similarly, in paragraph 5(b) it is alleged that at the end of December, Shields interrogated
an employee about the union activity of other employees and directed that employee to report
such activity. In support of this allegation is again the testimony of Zoltowski.
Zoltowski testified that in a conversation initiated by Shields, he spoke of a union coming
in at the last place he worked, and “made me feel that he believed that the Union was okay by
the conversation. And then he asked what was going on with the Union in Philadelphia.” She
told him that the producers were talking to her about the Union and she stated that she had been
a member for 15 years. After some discussion, “he said let me know what’s going on with the
Union, keep me informed.”
Shields denied that he had any conversation with Zoltowski in December “in regard to the
Union,” or that he interrogated any employee about the Union or asked any employee to report
union activity.
Although Shields was reasonably credible in general, on this specific matter he was not.
Zoltowski, on the other hand, was credible concerning her account of the November and
December conversations. I therefore find and conclude that Shields did interrogate an em-
ployee about the union activity of others and directed that she keep him informed about other
employees’ union activity. In these respects, the Respondent violated Section 8(a)(1) of the
Act. Tony Silva Painting Co., 322 NLRB 989 (1997).
On January 16, Zoltowski called Shields to tell him that because of a work assignment in
New York, she would not be available for a performance review to be held on January 23 and
she would like to have it rescheduled. He told her that would not be a problem and they would
set it for a later date. Then, according to her testimony, “he asked me what was going on with
the Union, if we had a majority of people for the Union yet. I said no, I didn't think we had a
majority.” And he said, “[W]ell keep me informed about what’s going on.”
Shields testified that Zoltowski called him on January 16 to say that she wanted her annual
review to be rescheduled because “she was going to be in New York, I think. And I said fine,
just let me know when you want to come in.” He denied asking her anything about the Union
or employees’ support for the Union.
Again, as to the material elements of this conversation, I credit Zoltowski and discredit
Shields. I therefore conclude that as alleged in paragraph 5(c), the Respondent coercively
interrogated an employee about employees union activity in violation of Section 8(a)(1).
Shields contacted Zoltowski by phone on January 20 to tell her that she and Brocklehurst
were be terminated—that their jobs had been eliminated due to budget cuts. He told her he had
received the Union’s letter and asked why she was involved. She told him that she was “a
strong believer in the Union,” and had been a member for 15 years. Shields asked who else
among employees was a member.
The testimony of Shields about this phone call was limited to his telling Zoltowski that she
was being laid off. He neither confirmed nor denied that he asked about her involvement with
the organizing campaign or asked her who else among employees was a member.
Zoltowski’s testimony was credible and consistent, I conclude that the call of January 20
occurred generally as she testified and that the Respondent violated Section 8(a)(1) as alleged
in paragraph 5(d).
2. The terminations
On Monday, January 19, Brocklehurst was notified of his termination. On January 20, Zol-
towski was notified of hers. The General Counsel alleges that these terminations were the
result of employees’ union activity, and were meant to discourage such. Therefore the Respon-
dent violated Section 8(a)(3) of the Act. The Respondent contends that the embryonic organiz-
ing campaign was not a factor—that economics was the sole reason Brocklehurst and Zol-
towski were terminated. I find it much more plausible that the terminations resulted from union
activity than solely from budget considerations. I conclude that the General Counsel estab-
lished a prima facie showing that the terminations were violative of the Act and that the Re-
spondent did not meet its burden that they would have been terminated irrespective of any
union activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
These terminations occurred just as the organizing campaign was becoming active. Thus,
when Zoltowski called Shields on Friday, January 16, to request her evaluation be rescheduled,
and he agreed (indicating no intent to terminate her at that time), he asked how the union
campaign was progressing and whether they had a majority. She told him she did not believe
there was a majority yet for the Union, but that more employees were going to the union office.
I discredit Shields’ testimony that he determined to terminate Zoltowski on January 16.
Such a decision is inconsistent with his agreement to reschedule her evaluation. Rather, I
conclude that on talking with her, he became aware of increased union activity, which carried
on through Monday, January 19. Thus Zoltowski passed out literature on Saturday and Brock-
lehurst did the same Monday morning.
Although animus in this case is not overwhelming, the letter of November 24 to all employ-
ees nationwide demonstrates that the Respondent is steadfastly opposed to unions organizing its
employees. Beyond this is Shields unlawful interrogation of Zoltowski on several occasions,
the promises of benefits, and on January 20, two meetings of Philadelphia employees attended
by three high-level management officials who spoke against the Union. This conclusion is
based on the credible testimony of Deborah Byrne, who was not included in the bargaining unit
and who has no apparent stake in the outcome of this matter.
Finally, the Respondent’s contention that it was motivated only by economic considerations
is not supported by credible evidence. Indeed, I believe the economic defense was developed in
order to hide the Respondent’s true motive, from which I can, and do, infer that the Respondent
was motivated by the employees’ union activity. Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966).
Of the approximately 52 rank-and-file employees, three were designated full-time, salaried
reporters—Brocklehurst, Ralph Fox, and Thomas MacDonald. Brocklehurst was hired on April
1, 1996; Fox on April 16, 1997, and MacDonald May 16, 1996. Of those in the classification
which the Respondent contends it determined to downsize, Brocklehurst was the senior person.
In selecting which employee to be laid off for economic reasons, employers are not required to
pick by seniority. However, it is so common to do so, and so accepted as the fair way to choose
those selected for economic layoff, all other factors being equal, where an employer fails to
follow seniority that fact is some evidence that the asserted motive is false.
The Respondent argues that Brocklehurst was selected because two affiliate stations re-
quested that Fox and MacDonald be exclusive to them. Where a reporter is exclusive to an
affiliate, that individual cannot give on the air reports broadcast by other stations. The Respon-
dent’s argument that exclusiveness required it to keep Fox and MacDonald, I conclude, is
disingenuous. Exclusiveness for Fox and MacDonald limited their use, and rather than being a
reason to lay off Brocklehurst, was a reason to keep him. The Respondent did not attempt to
explain why this was not so.
The Respondent also offered, through the testimony of News Bureau Chief Paul Perrello,
that 65 percent of the reason Brocklehurst was selected for layoff was his poor performance and
the exclusivity agreements 35 percent. (Shields, however, testified that Perrello did not give
this as a reason for recommending Brocklehurst be terminated rather than one of the others and
that “This wasn’t a performance issue in my mind.”) The evidence that Brocklehurst was a
METRO NETWORKS 71
poor performer is vague and highly suspect, given that his most recent performance review
dated January 24, 1997, was almost perfect. Employees are given one of three ratings (“needs
improvement,” “good,” “very good”) in 10 categories. Brocklehurst had nine “very good” and
one “good.” Though I accept, as Perrello testified, that Brocklehurst failed once to respond to a
page, it is clear that Perrello’s testimony about Brocklehurst’s performance was exaggerated
and not believable.
I have no trouble believing that the Respondent continually sought ways to reduce ex-
penses. However, I do not believe that terminating the two most active employees in the
organizing drive was motivated by budget considerations. For instance, the Respondent hired
one full-time and seven part-time employees between September 1997 and May 1998. In
December and January, 11 employees voluntarily quit. Of the 39 employees terminated
between December 1997 and December 1998, only Brocklehurst and Zoltowski and one other
were involuntary. The Respondent’s records show that there is a regular and substantial
turnover of the employee complement, which indicates that laying off employees is not some-
thing which would be mandated by the budget, even if the Respondent sought to reduce ex-
penses. Natural attrition would solve these relatively minor payroll excesses, if in fact such
excesses existed.
Further, the savings suggested by the Respondent’s witnesses were not supported by the
evidence. Thus Shields testified that by laying off Zoltowski, the Respondent saved $10,000
per year. She was an hourly employee regularly scheduled 1 day a week at an approximate
annual salary of $5200. Any additional earnings were as a fill-in, work which presumably
would have be done by someone else if Zoltowski was not available. Since she was offered a
severance of $2600, the actual savings to the Respondent for the year by eliminating her job
was $2600, not $10,000.
Brocklehurst and Zoltowski were experienced and, according to their most recent evalua-
tions, capable and valued employees. Yet neither was offered the opportunity to fill one of the
many vacancies which occurred after their terminations. For this reason, if no other, the budget
motive must be found a pretext.
The Respondent argues that it had no knowledge of Brocklehurst’s union activity until after
his termination; therefore, union activity could not have played a role. I discount this argument.
Even Shields admits that he knew of union activity in general prior to terminating Brocklehurst.
On the morning of January 19, the day he was terminated, Brocklehurst distributed union
literature at the Respondent’s facility at a time when management personnel were present.
While there is no direct evidence that this was observed by management, given the small
number of employees it is reasonable to infer that Brocklehurst’s activity was known. Hospital
San Pablo, Inc., 327 NLRB 300 (1998). I further discount Shield’s testimony that the termina-
tion decision was made on January 16. Zoltowski called him that day to reschedule her annual
performance review. Rather than telling her of his alleged determination to terminate her, he
agreed to reschedule it.
I conclude that Shields decided to terminate Brocklehurst and Zoltowski on January 19 af-
ter learning that the union activity was increasing. I conclude that the Respondent violated
Section 8(a)(3) by terminating Brocklehurst and Zoltowski.
3. The release
On terminating Brocklehurst and Zoltowski, the Respondent offered each severance pay in
consideration for signing a comprehensive release which contained the above-quoted language.
Though severance pay (and a release) were not given to involuntarily terminated employees as
a matter of course, such was not unusual. The releases signed by others from facilities
throughout the United States contain substantially identical language.
The General Counsel argues that by requiring acceptance of this language as a condition for
receiving severance, the Respondent violated Section 8(a)(4). The General Counsel does not
argue that a release waiving an employee’s right to file a charge based on events predating the
release is unlawful. Rather, it is argued, this case “presents a novel issue, i.e., whether Respon-
dent may lawfully condition severance payments on the execution of broad non-assistance and
non-disclosures clauses.” The General Counsel cites EEOC v. Astro USA, 94 F.3d 738 (1st Cir.
1996), wherein it was held that settlement agreements prohibiting employees from filing
charges with the EEOC or assisting the EEOC in its investigation of any charges were void as
against public policy.
In Astro, the releases specifically bound the settling employee not to file or assist anyone
who files any kind of action arising out of the employment including any suit under the Civil
Rights Act of 1991 or Title VII of the Civil Rights Act of 1964.
By contrast, the releases here were not so specific, though they were indeed comprehensive.
Nevertheless, I believe it a stretch that any reasonable person reading them would conclude that
the signatory would be prohibited from cooperating with the Board in its investigation or
litigation of unfair labor practice charges. The only mention of the NLRB, is in paragraph 4, a
release of the type found acceptable by the Board. First National Supermarkets, 302 NLRB
727 (1991). The so-called nondisclosure and nonassistance clauses do not mention cooperating
with enforcement actions of the national labor laws by the Board, which the clauses in Astro
did. I therefore conclude that a violation of Section 8(a)(4) under these facts has not been
proven and I shall recommend that the allegations in Case 4–CA–27207 be dismissed.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I conclude
that it should be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including offering Dennis Brocklehurst and Mary Colleen
Zoltowski reinstatement and make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]