RJR Communications, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1980

248 N.L.R.B. 920 (N.L.R.B. 1980)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RJR Communications, Inc. and General Drivers,
Warehousemen, Helpers and Inside Employees
Union Local 346, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 18-18-
CA-5965
April 2, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.LO, AND
TRUESDALE
On November 14, 1979, Administrative Law
Judge William F. Jacobs issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions to the Administrative Law Judge's
Decision and a brief in support thereof.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.3
The Administrative Law Judge found. it "abun-
dantly clear" that Respondent unlawfully attempt-
ed to influence the outcome of the union election,
and that during the campaign it made contingency
plans to eliminate its 6 o'clock newscast and to dis-
charge employees James Malmberg, Lee Wall,
Roger Berry, and Barbara Hill if the Union won
the representation election. The Administrative
Law Judge further found that Respondent violated
Section 8(a)(3) and (1) when, after the union elec-
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequa ely present tile
issues and the positions of the parties.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect t credi-
bility unless the clear preponderance of all (lf the relevant evidence col-
vinces us that the resolutions are incorrect Standard Dry Wall Prodiwts,
Inc., 91 NLRH 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find lno basis for reversing his findings.
3 Respondent contends that the Board has no power to order reilistate-
ment of its 6 o'clock newscast, because to do s infringes its first amend-
ment rights. We find no merit in Respondent's argument We note that
Respondent did not eliminate its 6 o'clock newscast on first amtndmell nt
grounds. Rather, it purported to discontinue its newscasl and discharge
four individuals for bona fide business reasons. The Adntiistrative Law
Judge found that Respondent discontinued the newscast for purely dis-
criminatory reasons Since this is a case of unlawful discrimination,l and
since the media "has no special privilege to invade the rights and liberties
of others." Branzbrg v. Havyes, 408 U.S. 665, 683 (1972), quoting Issocat
ed Press v. NL.R.B., 301 U.S. 103, 132-133 (1937), we do not believe
that, merely by restoring the status quo ante to remedy Respondent's n-
lawful discrimination, we infringe its first amendment rights.
We also agree with the Administrative Lasw Judge, Ior the reasons
stated in Ilicknlotr Ioods, Inc., 242 NLRB No. 177 (197'1), that a broad
cease-and-desist order is warranted.
248 NLRB No. 124
tion victory, it discontinued the 6 o'clock news and
discharged these four employees. Respondent has
excepted, inter alia, to this finding, contending that
the timing of the elimination of its 6 o'clock news-
cast and the discharges was solely the product of a
bona fide business decision made after receipt of
the July Nielsen ratings and a survey conducted
for Respondent by a private consultant service. Re-
spondent also asserts that the Administrative Law
Judge erroneously relied on hearsay testimony in
finding that an unfair labor practice had been com-
mitted. Contrary to Respondent's assertions, we
find, in agreement with the Administrative Law
Judge, that the discharges were unlawful. We fur-
ther find that the evidence in question was proper-
ly admitted by the Administrative Law Judge, al-
though we do not adopt his rationale for doing so.
Respondent is engaged in the operation of a tele-
vision station in Duluth, Minnesota. The station,
one of three serving the Duluth-Superior area, has
ranked lowest among the three in the Nielsen rat-
ings for at least the last 10 years.
In early June 1978, 4 following some incidents
employees characterized as verbal harrassment by
management, certain employees contacted the
Union. On June 12, the Union simultaneously de-
manded recognition from the Employer and filed a
petition with the Board. On July 27, the Board
conducted a representation election which the
Union won.
Between the time it learned of the employees'
union activities and the election date, Respondent
gave substantial pay increases to several individ-
uals. We agree with the Administrative Law
Judge's finding that Respondent failed to explain
the timing of the increases, and his conclusion that
the increases were intended to influence the em-
ployees' votes.
Respondent's treatment of James Malmberg, a
potential "superstar" newscaster and a union activ-
ist, illuminates its antiunion strategy. Malmberg re-
ceived a $400-a-month increase about the same
time he was summarily removed from the coan-
chor position on the 6 o'clock newscast and forced
to share the anchor position on the 10 o'clock
newscast. Respondent explained at the hearing that
it removed him from the 6 o'clock newscast to free
him to attend business meetings in order to increase
his recognition factor. That attending business
meetings would increase his exposure more than air
time on television is dubious at best. Furthermore,
Respondent's inconsistent explanation for similar
actions arouses suspicion. While explaining that
Malmberg's air time was reduced in order to im-
4 All dates hereinafter refer to the year 1978, unless otherwise indicat-
ed.
RJR COMMUNICATIONS, INC. 921
prove his exposure, Respondent testified that an-
other person's air time was increased, by adding her
as coanchor to the 10 o'clock newscast, in order to
give her more exposure.
Nor does Respondent's claim that poor Nielsen
ratings justified Malmberg's demotion withstand
scrutiny. An employee whose work justifies demo-
tion ordinarily is not granted an unprecedentedly
large pay increase. Furthermore, the timing of the
change, occurring in the middle of the rating
period, severely limited the value of the ratings for
that period, since the ratings would be based on a
pastiche of personalities in that time period.
Consequently, we reject Respondent's claim that
the increases granted to Malmberg and others were
unrelated to union activities. We find, in agreement
with the Administrative Law Judge, that the
timing of the increases and Malmberg's demotion
signaled a warning to employees that not even a
"superstar" was indispensable and that loyalty
would be rewarded.
Subsequent to the election Respondent's antiun-
ion animus, and its plans, were telegraphed to the
employees. Thus, on July 27, shortly after the elec-
tion, News Director Gottschald told employee
Wall that he would negotiate the Union into a
corner and that they would go nowhere. He then
asserted that, as a result of the employees' choosing
union representation, the 6 o'clock newscast would
be canceled and the staff would be trimmed-
events which Respondent claimed were not consid-
ered until mid-August. On the day following the
election, Assistant News Director Skorich said to
employee Hill that the employees had upset the
station owner, and that they "would probably all
be out in the street." And, a few days later, Robert
Rich, Respondent's chief owner and general man-
ager, discussing with Wall the reasons the employ-
ees had organized, stated "that he [Rich] felt
strongly that this wasn't the thing that he wanted
in his station, and that he felt that he couldn't ne-
gotiate with [the Union], and that he would do
what he could do to beat this thing."
Other evidence makes implausible Respondent's
claim that it did not decide to eliminate its 6
o'clock newscast and discharge certain employees
until August 21. As noted above, Gottschald stated
his belief as early as July 27 that the 6 o'clock
newscast would be eliminated. Also, on August 18,
Assistant News Director Skorich prematurely noti-
fied Rochelle Ogershok that she was dismissed, and
he testified that he knew at that time that Berry
was going to be fired.
The timing of the pay increases and Malmberg's
demotion, management's prediction of future dis-
charges and change in operations as a reprisal for
the union election victory, and Respondent's
threats never to negotiate with the Union and to
"beat" it compel us to agree with the Administra-
tive Law Judge that Respondent's decision "to ter-
minate the union activists was made weeks before
the July Nielsen survey was received [on August
21], and that the survey was quite obviously and
necessarily a pretext to be utilized as an excuse for
terminating these people." We are convinced that
Respondent's actions were motivated by its desire
to avoid unionization of its newsroom staff and
that, once the Union won the election, Respondent
implemented its strategy to combat the Union by
eliminating the 6 o'clock newscast and discharging
four employees.5
At the hearing, the Administrative Law Judge
admitted testimony concerning statements made to
employees by Robert Rich's son. In a conversation
with employee Hill and other employees prior to
the election, according to Hill, James Rich stated
"that his father was very upset with what was
going on and had a lawyer working with him . . .
trying to figure out ways ... to get the Union out;
that [his father] already had a tentative dismissal
[list] written up," on which appeared the names of
Wall, Malmberg, Berry, Hill, and Ogershok. And,
shortly after the election, according to employee
Barta, James Rich stated to her, in a telephone
conversation, that his father would not put up with
the Union, and that he was going to cut the staff
and cancel the 6 o'clock newscast. Respondent ex-
cepts to the admission of this testimony, arguing
that "James Rich's statements clearly are hearsay
and inadmissible under any of the hearsay excep-
tions."
Courts have long recognized that hearsay evi-
dence is admissible before administrative agencies,
if rationally probative in force and if corroborated
by something more than the slightest amount of
other evidence. N.L.R.B. v. Imparato Stevedoring
Corporation, 250 F.2d 297 (3d Cir. 1957). The
Board jealously guards its discretion to rely on
hearsay testimony in the proper circumstance.
Georgetown Associates, d/b/a Georgetown Holiday
Inn, 235 NLRB 485, fn. 1 (1978). See, generally,
Alvin J. Bart and Co., Inc., 236 NLRB 242 (1978).
In the instant case we believe that, although the
testimony may be hearsay, the statements were ad-
missible. Of course, we do not rely on the state-
ments, standing alone, to find that Respondent's
conduct was violative. As stated herein, we find
that other evidence clearly establishes that Respon-
dent engaged in unlawful conduct. Moreover, we
find that James Rich's statements corroborate the
' We alsl agree with the Administrative I.aw Judge's reasons for re-
jecting Respondent's separate arguments for dismissal of each individual.
RJR COMMUNICATIONS, INC
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other evidence and make it more probable, that Re-
spondent's conduct was unlawful. Accordingly, we
find, in agreement with the Administrative Law
Judge, that Respondent by discharging certain em-
ployees and by eliminating its 6 o'clock newscast
violated Section 8(a)(3) and (1) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, RJR Communi-
cations, Inc., Duluth, Minnesota, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on February 14 and 15, 1979,
at Duluth, Minnesota. The charge was filed on Septem-
ber 5, 1978 by General Drivers, Warehousemen, Helpers
and Inside Employees Union Local 346, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union. The complaint issued November 22, 1978, al-
leging that RJR Communications, Inc., herein called Re-
spondent, violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended. More particular-
ly, the complaint alleges that Respondent violated Sec-
tion 8(a)(1) by increasing employees' wages n order to
discourage employees' support of the Union, threatening
an employee with elimination of the 6 o'clock newscast,
shutting down of the film processor, and staff cuts be-
cause employees had chosen to be represented by the
Union, threatening that it would stop the Union and
would not negotiate with the Union, in spite of the fact
that the employees had voted to be represented by the
Union, threatening an employee with discharge because
employees had chosen to be represented by the Union,
and eliminating its 6 o'clock newscast and shutting down
its film processor in retaliation against employees who
had chosen to be represented by the Union. The com-
plaint alleges further that Respondent violated Section
8(a)(l) and (3) of the Act by discharging its employees
Donald J. Malmberg, Barbara Hill, Lee Wall, and Roger
Berry because they engaged in activities or and on
behalf of the Union. Finally, the complaint alleges that
Respondent violated Section 8(a)(l) and (5) by refusing
to bargain collectively with the Union as the exclusive
bargaining representative of its employees in that it uni-
laterally assigned work previously performed by employ-
ees in the unit to employees not within the unit and to
supervisory personnel, unilaterally granted wage in-
creases to unit employees, and unilaterally eliminated the
talent fee system previously in effect. Respondent, in its
answer, denied the commission of any unfair labor prac-
tices.
All parties were represented at the hearing and were
afforded full opportunity to be heard and to present evi-
dence and argument. General Counsel, Respondent, and
Charging Party all filed briefs. Upon the entire record
and my observation of the demeanor of the witnesses,
and after giving due consideration to the briefs, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Minnesota corporation which maintains
it principal office and place of business in Duluth, is en-
gaged in the operation of a television station with the
call letters KBJR-TV. During the year ending Decem-
ber 31, 1977, a representative period, Respondent, in the
course and conduct of its business operations derived
gross revenues in excess of $500,000 and performed ser-
vices valued in excess of $50,000 in and for enterprises
located in States other than the State of Minnesota. The
complaint alleges, the answer admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Background
The sole business of Respondent is the operation of
station KBJR-TV, Duluth, previously WDSM Televi-
sion. The station was purchased about October 1974
when it was known as WDSM by its then general man-
ager, Robert Rich, who became its chief stockholder and
continued on as its general manager, thereafter changing
the call letters to KBJR-TV. KBJR-TV is one of three
television stations serving the Duluth-Superior area and
according to Rich, who has served as its general man-
ager for some 20 years, it has at least for the past 10
years ranked lowest among the three in the Nielsen rat-
ings, a situation which Rich intended to improve at the
time of purchase but about which little could be done
immediately because of the station's financial condition.
In 1976, following the receipt of the February Niel-
sen 2 ratings which indicated that Respondent's local
news rating was a distant third behind the other two sta-
tions, Rich decided to attempt to improve the station's
position in the market with regard to its news operation.
Among the steps decided on at this time was to hire a
new news director and give him the authority to enlarge
the staff as required, to adopt electronic newsgathering
i Stipulations concerning pars. 4, 7, 8, and 9 of the complaint were re-
ceived at the hearing.
2 Nielsen is a service which issues periodic reports indicating the per-
centage of viewers and potential viewers watching a particular program
within a given market area.
RJR COMMUNICATIONS, INC. 923
procedures using videotape instead of film, to acquire a
mobile unit in order to be able to do live, on-the-spot
telecasts, and to commit whatever funds were necessary
to upgrade the department.
In July or August 1976 Respondent hired the new
news director as planned, one Ralph Doty, who advised
Rich that he would need at least 2 years before he could
make KBJR's news competitive with the other stations,
and that he would want a 2-year contract with commit-
ments for increased operational expenses and an expand-
ed staff during that period. He also insisted that the con-
tract should be subject to unilateral cancellation on his
part. Respondent agreed. According to Rich, the invest-
ment was a long-range program to upgrade the news-
casting department.
When Doty was hired as news director he was also
hired as the major anchorperson 3 for both the 6 p.m. and
the 10 p.m. news. Under his directorship, the station
more than doubled the number of personnel in its news
department,4 purchased expensive new equipment in-
cluding mobile units, and quadrupled its use of film. Ap-
parently, as a result of the changes brought about under
Doty's guidance from July 1976 through July 1977, there
was a considerable improvement in the station's Nielsen
ratings, both with respect to the 6 p.m. and the 10 p.m.
news. Sometime between July and September 1977, how-
ever, Doty exercised his contractual option and left the
employ of Respondent.
About the same time that Doty gave Respondent
notice that he was leaving, the weatherman similarly ad-
vised Respondent that he was also leaving. Consequent-
ly, Respondent had to replace these employees on both
the 6 p.m. and the 10 p.m. news. Karen Barta, a new em-
ployee, hired in part 5 specifically for the purpose, joined
Doty a month or two before he left, as his co-anchor on
the 6 p.m. news. James Malmberg, an individual with re-
porting experience, and hired for this purpose sometime
before Doty left, was given the job of anchoring the 10
o'clock news, 6 his first assignment as a prime anchorper-
son.
To replace Doty as news director, Respondent hired
Richard Gottschald, taking care to do so prior to losing
Doty's services. As news director, Gottschald was ex-
pected to supervise the newsroom, the gathering and
editing of news, and the producing of the newscasts
which were scheduled. When Doty actually left, Malm-
berg was also assigned the 6 o'clock news slot in order
to replace Doty as co-anchor with Barta,7 while still re-
taining the 10 o'clock anchorman's job. The Nielsen rat-
ings for November 1977 which reflected the situation
during the period August through October, a period
which included programs anchored by Doty and Barta
3 An anchorperson on a half hour news broadcast occupies about 10
minutes of the broadcast time.
4 Rich testified that the number of personnel in the news department
was increased from 7 to 16.
Barta was also hired as the nighttime reporter.
6 Malmberg previously had done morning updates, the Saturday 6
o'clock news, and the Sunday 10 o'clock news. He took over anchoring
the 10 o'clock news in April 1977.
' Barta, who had previously been considered a part-time employee was
given full-time employee status and changed from being hourly paid to
salaried in October 1977.
as well as Malmberg and Barta, in the 6 p.m. slot, indi-
cated a 2-percent increase in the rating. The Nielsen
rating for the same period for the 10 p.m. slot indicated a
decrease of 2 percent in the rating s and a 5-percent de-
crease in the share." This period, as noted, includes times
both before and after Malmberg was anchoring the 10
p.m. news.
In November 1977 Respondent hired Dushan Skorich,
Jr., as a reporter. Skorich had worked previously at
other TV stations in the area where Donald Wall and
Barbara Hill had also been employed and where, accord-
ing to Skorich, himself, relations between him and them
had been strained. When he joined Respondent's station
the strained character of their previous relationship con-
tinued.
In February 1978 the Nielsen report indicated that,
since its previous report in November, the rating of the 6
p.m. news dropped from 12 percent to 11 percent and its
share had dropped from 18 percent to 16 percent.
During this period the 6 p.m. news was anchored by
Barta and Malmberg. During the same period, the rating
of the 10 p.m. news increased from 13 percent to 14 per-
cent while the share remained at a constant 22 percent.
In the fall of 1977 Rich was contacted by Selection
Research, Inc. (SRI), a firm which offered to do a pro-
file of KBJR newscasters and other newscasters in order
to identify "recommended" and "highly recommended"
newscasters operating in the KBJR market area. Since
the Barta/Malmberg duo was new at the time, and Rich
wanted to determine their acceptability to the public, he
did not immediately contract for the SRI service. When
Rich received the Nielsen ratings for February, however,
and found them disappointing, he contacted SRI and re-
quested that it investigate the situation with regard to
why KBJR was receiving such low ratings compared to
the other two commercial television stations and make
recommendations as to how to improve its ratings. Rich
testified that he felt that, with the low ratings the station
was receiving at the time, it would be impossible to
obtain sufficient revenue to support its newscasting oper-
ations as they were then being conducted, despite the 2-
year commitment made when Doty was hired, to im-
prove the situation.
In early 1978, Skorich was promoted to assistant news
director, an appointment which probably was not too
popular with Malmberg or Barta, because of the history
of strained relations between them. After being appoint-
ed assistant news director, Skorich held several meetings
with the staff during which he discussed with them their
job performances, criticizing their techniques of shoot-
ing, their efforts in the field, and insisting on improve-
ment. He told the employees present that they were not
doing their jobs, not only because he honestly felt that to
be the case, but because on at least one occasion he was
instructed to do so by his superiors, Gottschald and
Rich.' ° He advised the employees that unless they and
R Rating reflects the percentage of potential viewers as determined by
the number of TV sets in the area
a Share reflects the percentage of actual viewers.
'O Skorich testified that he had conversations with the staff about their
duties and performance long before being directed to do so by the admin-
Con tin ued
RIR COMMUNICATIONS, INC.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he started to improve the operations of the newsroom as
far as performance was concerned they and he were all
in jeopardy of being dismissed because the employees
were not performing to the extent of their capabilities
and were not putting forth sufficient effort.
Roger Berry, one of the alleged discriminatees sup-
ported Skorich's testimony when he recalled that a
couple of times during the months' or weeks prior to
his discharge he and the other members of the news de-
partment had been told that they had "two weeks in
which to straighten up" or else there might be "some
people losing their jobs." On one occasion Berry recalled
being told along with several other employees 2 that
they were being given 2 weeks to learn how to run a
film camera, and if they did not learn to do so within
that period of time so that they "could do not only re-
porting, but photography and the whole ball of wax,
they might be looking for other employment." Although
Berry could not recall precisely when this statement was
made he testified:
It was during the period that Skorich, Duke Skor-
ich, was named assistant news director.... Weel,
it had to be sometime like in June-it had to be like
in June because that was one of the reasons that the
union organization was started, because of Duke
and the way he was handling things.... It was
sometime after he was named assistant news direc-
tor when he was trying to improve ratings, improve
our news department, our overall operation.
The following testimony was also adduced:
Q. Mr. Berry, would it be fair to state that prior
to the time that the employees contacted the Team-
sters' Union that there had been a number of discus-
sions with Mr. Skorich about the fact that things in
the news room were going to have to improve or
people were going to be losing their jobs?
A. I believe that is correct.
Q. Would it be fair to state those discussions had
taken place, really, during a period of March, April
and May of 1978?
A. I guess that is assuming right.
Q. (By Mr. Vogt) Do you remember Mr. Skorich
making statements to the effect that he was really
unhappy with the way the news room was perform-
ing?
istration. He testified also that he could not recall when it was that he
was instructed to talk to the employees but when pressed stated that it
was at the time he took over as assistant news director. Thus, it would
appear that Skorich was criticizing the other employees before he had
any authority to do so, but since he also testified that he and Gottschald
had conversations about the performance of other employees ever since
Skorich first obtained employment at the station, this may well have been
the case.
" Berry was extremely vague as to when this statement was made.
l2 Karen Barta and Becky McRae were specifically named Karen
Barta testified, but not on this subject. McRae was not called
A. With certain cases, yes. Such as, our produc-
tion was very bad and by production, I am talking
about the way things were put on the air.
Our people can write the best stories in the
world, they may not, but they could and they could
go out and shoot the greatest films in the world,
bring it back and try to put it on the air and some-
where between the news room's editing and putting
together the story and the control room putting that
on the air, a lot of things could happen and it was
happening where we would do such things as fade
black where you wouldn't have any picture at all
and it is not television, it is not a news operation.
You know, if you can't put it on the air and it looks
bad and that doesn't help matters either.
Q. Let's go back to this question, any statements
Mr. Skorich made before there was any attempt to
contact the Union. He did say, did he not, that
things were going to have to improve or people
were going to be losing jobs, including himself?
A. Oh, yeah, he included himself, yes. Every-
body, you know, he was included, too, for sure.
Thus, it would appear that prior to any union activity,
certainly before any communications between Respon-
dent's employees and the Union, Respondent's employees
had been advised that their performance was less than
adequate and that, unless there was a change for the
better, they could expect that terminations would result.
More importantly, it appears that the criticism of man-
agement prompted the employees to contact the Union.
About the time that Skorich was advising the employ-
ees of the possible repercussions of poor performance
among news personnel, Rich and Gottschald, according
to Rich, were discussing the economic effect on the sta-
tion of the increased expenses of the station which had
been brought about under Doty's 2-year plan for im-
provement and the concomitant problems connected
with maintaining that level of expenditure. Rich testified
that he questioned how long the situation as it existed
could be continued and suggested that an alternative plan
to cut back on expenses be considered. Cutbacks in staff,
reduction in film usage, and the possibility of going to
tapes were among the topics under discussion at the
time,' ~ but the record does not indicate that any decision
was reached with regard to actually implementing any of
these steps. Gottchald testified that he and Skorich dis-
cussed the possibility of staff cuts, just in case they even-
tually had to be made, but these discussions apparently
were not undertaken with any definite plan in mind but
were more in the nature of mere conversation.
Selection Research Incorporated issued its report in
May, and it was in late May or early June when the
report was received. When the SRI report was received,
it was reviewed by Rich. As it was explained to Rich by
the consultant, the report contained two separate evalua-
3 Gottschald, under cross-examination, could not recall whether or
not elimination of the 6 o'clock news happened to be one of the possible
alternatives considered at the time.
RJR COMMUNICATIONS, INC. 925
tions. One evaluation was made by a group of about 100
individuals who did not live in the Duluth area and who
were not familiar with Duluth's local television. These
individuals were provided with tapes of local Duluth
television personalities to study and evaluate. The people
doing the evaluating did so on the basis of applying to
the personalities studied certain specific adjectives and
assigning a numerical weight to each: neat or messy,
boring or interesting, definite or uncertain, etc. The
second evaluation was conducted by sending field re-
porters into the Duluth marketing area to interview
people who were familiar with the stations and presum-
ably with the subjects of the evaluation, and to obtain
from them their personal opinion of how each newscast-
er should be rated. Newscasters who were subjects of
the report included not only KBJR personnel but major
on-air personalities of the other two stations in the area.
It is Respondent's position that it was as a direct result
of its analysis of this report, together with consideration
given to previous and subsequent Nielsen reports, that it
decided to restructure the station's news department with
the consequent changes in program format and the layoff
of certain of its employees, the alleged discriminatees
herein. General Counsel, of course, rejects this conten-
tion and alleges that these changes in format and resul-
tant terminations were discriminatorily motivated.
A. Union Activity
During the first week in June, after some incidents of
what employee Barbara Hill characterized as verbal ha-
rassment of employees by Skorich, Hill was advised of
the belated cancellation by Respondent of another em-
ployee's vacation after she had made arrangements to
leave in just a week. The treatment of this other employ-
ee angered Hill and, according to Hill, other employees
as well were all quite upset over the matter. Hill angrily
suggested aloud, "1 think what we need around here is a
union." The statement was made in the newsroom in the
presence of four other members of the news staff, News
Director Gottschald, and Assistant News Director Skor-
ich, both conceded to be supervisors within the meaning
of the Act. 14 Gottschald was within 10 feet and Skorich
within 5 feet of Hill when she made this statement. The
record indicates no reaction to Hill's statement on the
part of anyone present at the time. A while later, howev-
er, employee Lee Wall walked up to Hill and asked if
she were serious about a union. She acknowledged that
she was and he suggested that they talk about it. After
doing so, they decided that Wall should contact the
Teamsters and get back to Hill later.
Wall went to the union hall and talked to the business
agent, then reported back to Hill that he had contacted
the Union and had been asked if he thought he could
obtain the support of a majority of employees. Together,
Wall and Hill decided that they would approach the
other employees, each talking to half, to determine how
much support they could obtain.
14 As stipulated at the hearing
On Sunday, June 11, eight of Respondent's employees
attended a meeting at the union hall.' At the meeting
Business Agent Roy Niemi explained to those present the
purpose of the Union after which there was a lengthy
discussion and numerous questions. After this portion of
the meeting, the business agent left the employees alone
to debate whether or not to go forward with the orga-
nizing. Roger Berry, one of the alleged discriminatees
herein, initially declined to attend the meeting though he
had been made aware that it had been scheduled. He was
called, however, and belatedly decided to attend, appar-
ently arriving late. Once there, he participated in the dis-
cussion and told the others that "if they were going to
form a union they could all be in jeopardy of losing their
jobs." He recounted how he had worked at another sta-
tion where there had been a strike and that he had
crossed the picket line to go to work. He noted that
"some of those people that went on strike there, lost
their jobs, and people like me took their jobs." He also
stated that "if they were going to do any union move-
ment, there was a very good possibility that in some way
or another, the employer would find ways to get rid of
them."' 6 The record is silent as to anything said by
anyone else present at this meeting. After the debate, the
employees advised the business agent that they had de-
cided to go forward with the organizational drive and,
according to Niemi, all signed cards for that purpose.
There is no affirmative evidence in the record that the
organizing efforts of Wall and Hill were known to man-
agement prior to the June II meeting at the union hall
except for Hill's statement concerning the need for a
union made in Gottschald's and Skorich's presence.
On June 12 the Union sent a letter to Respondent de-
manding recognition and simultaneously filed a petition
with the National Labor Relations Board. Respondent's
attorney on June 14 replied to Niemi, refusing recogni-
tion and declining to bargain until the Union were certi-
fied as the collective-bargaining representative of Re-
spondent's employees.
B. Wage Increases
Paragraph 5(a) of the complaint alleges that Respon-
dent violated Section 8(a)( ) of the Act by increasing
employees' wages between July I and August I in order
to discourage employees' support of the Union. Respon-
dent admits that it granted certain wage increases as al-
leged but denies that they were granted in order to dis-
courage employees' support of the Union. Respondent
urges that all wage increases granted were in keeping
with established policy of granting such increases inter-
mittently on a merit basis.
On June 12, the day after the union meeting, Mark
Fryklund, one of those in attendance, was advised by
Skorich that he would be receiving a wage increase.
Subsequently, on June 15, he was converted from a part-
time to a full-time employee along with two other part-
's C J. Beutien, Rochelle Ogershok, Mary Fryklund, Donald Malm-
berg, Barbara Hill, Lee Wall, Ernest "Ted" Pellman, and Roger Berry.
' The record is not clear as to whether, despite Berry's doubts, he
ultimately came out in favor of the Union, but Niemi's statement that all
who were present signed cards indicates he did.
RJR COMMUNICATIONS, INC. 5
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time employees.' 7 The payroll records indicate that em-
ployees hired as part-timers in the past were frequently
converted to full-timers after a trial period ranging be-
tween 1 and 4 months. The conversion of the three part-
time, hourly paid employees to full-time, salaried em-
ployees in June was not alleged in the complaint as a
violation.
In July, Malmberg, Barta, and Gentry received wage
increases. Of the three, Malmberg had attended the
union meeting, but neither Barta nor Gentry had attend-
ed the meeting. Malmberg received his raise on July 1
and the others on July 15. Barta and Gentry received
$50-per-month raises, while Malmberg received an
almost $400-per-month increase, an unprecedented
amount insofar as the Company's records reflect. Al-
though Richard Rich took the stand and testified at
length on many facets of the case, he did not satisfactori-
ly, in my opinion, explain why three employees were
given substantial raises during the critical period just
prior to the election. Gentry did not testify and there is
nothing in the record to indicate why he was granted his
wage increase. Barta testified and the company records
reflect that she was given her raise about the time, July
15, that she first became co-anchor with Malmberg on
the 10 o'clock news. This may or may not have! been the
reason for her wage increase. Malmberg, on the other
hand, had been anchoring the 10 o'clock news by himself
until mid-July, just before the election at which time he
lost his position as anchorman and had to share that time
slot as co-anchor with Barta. Whereas Barta arguably
could have been given the $50 wage increase in compen-
sation for the additional duty of co-anchoring the 10
o'clock news, Malmberg was given a $400 wage increase
to placate him upon his demotion from sole anchor to
co-anchor. Although Rich testified that Malimberg was
given the wage increase because of his potential and be-
cause he did not want to lose his services, it is difficult
to believe why, given the economic problems generated
by the poor showing of the news department, Rich
would compensate Malmberg with a $400 wage increase
though reducing his time on the air. Rich further testi-
fied that the consultant's report indicated that Malmberg
had the potential to be a superstar, and that all he needed
was recognition. I personally fail to see how cutting
Malmberg's air time in half would further his recognition
or ensure that his potential would be realized. 8 Rich's
testimony with regard to Malmberg's $400 raise z' that
"we did not want him to go at this particular time," is of
particular interest when it is considered that the increase
was granted just prior to the union election and, as will
be discussed infra, Malmberg was terminated just after
the Union's victory at the polls.
Prior to July 17, Malmberg had not only anchored the
10 o'clock news but had co-anchored the 6 o'clock news
17 The other two employees were Flynn and Pellman. Pellnman had at-
tended the union meeting with Fryklund; Flynn had not. Flynn had been
employed part time for just under 3 months. Pellman, hired the previous
October, had received a wage increase in January, after 3 months.
IN About the same time, during a meeting with employees, Rich stated
that Barta also had superstar potential and so he was milking her co-
anchor on the 10 o'clock news. Yet, he only gave her a S50iO raise to, in
part, replace Malmberg.
'I In part, the $400 reflected compensation for lost talent fees.
with Barta. About the same time his 10 o'clock duties
were changed, he was replaced on the 6 o'clock news as
Barta's co-anchor by Skorich. Again, Respondent saw fit
to decrease Malmberg's duties while increasing his
salary. At the time that Malmberg was advised of the de-
crease in his duties and the increase in his salary, he was
also told by Rich that thereafter he would be going out
with Rich, Rick Pearson, the general manager, the head
of the sales department, or one of the salesmen, to attend
various business meetings in order to increase his expo-
sure to the public. 20 Once again it is difficult to con-
clude that Respondent honestly felt it could increase
Malmberg's exposure to the public by taking him off the
6 o'clock news' and sending him out to attend an occa-
sional banquet or business meeting. As it turned out
Malmberg only attended one such function before he
was terminated shortly after the election which the
Union won.
In short, Respondent's key witness, Rich, testified that
Malmberg, a union adherent, was removed from his job
in July as sole anchorman on the 10 o'clock news and
from his position as co-anchorman on the 6 o'clock news
shortly before the election and replaced with Barta, one
of the few employees not involved with the Union, and
with Skorich, a member of management, because Re-
spondent had to make changes in its program format
based on a consultant's report received late the previous
May or early the previous June. Rich further testified
that these changes were made because both Skorich and
Barta ranked higher with the public in familiarity in the
local survey than did Malmberg whose potential in the
long run was, along with Barta's, greater than that of
Skorich. Respondent, according to Rich, opted for the
short-range improvement in ratings by choosing the
more familiar personalities than for the long-range im-
provement represented by potential, and this was so be-
cause the station, and its news department, was in eco-
nomic difficulty and could not wait for Malmberg's po-
tential to come to fruition. Since the bottom line, howev-
er, was economics, it is difficult to understand how Rich
can justify granting Malmberg a substantial wage in-
crease along with increases to Barta and Gentry while
cutting Malmberg's air time to less than half. I therefore
reject Respondent's connection that the wage increases
granted in July were unrelated to the union organization-
al campaign. Moreover, if Respondent was anxious to
compare the ratings of the 6 o'clock Malmberg/Barta
team to the ratings of the 6 o'clock Barta/Skorich team,
and likewise compare the 10 o'clock Malmberg-anchored
show to the 10 o'clock Malmberg/Barta show, it would
have made its move to change the format at the end of
the Nielsen rating period rather than in the middle of
one. As it was, changing the format in the middle of a
rating period would make the ratings worthless since its
findings would include a veritable melange of personal-
ities in each broadcasting slot. Thus, it would appear that
20 Malmberg testified credibly on this matter.
21 When Rich removed Malmberg from the 6 p.m. news 10 days
before the representation election, he told him that he did not know how
long his removal from the 6 p.m. news slot would last but that as soon as
his recognition in the Range area increased, he would again replace Skor-
ich because of his long-range potential.
RJR COMMUNICATIONS, INC. 927
not only did Rich fail totally to indicate any reasonable
basis for making the changes and granting the wage in-
creases just prior to the July 27 election, but the illogica-
lity of his having done so at that particular time would
itself call into question Respondent's position that the
July wage increases had nothing to do with the forth-
coming union representation election.
Respondent, in its brief, correctly states that: "Board
case law is clear that an employer must grant employ-
ment benefits during a pre-election organization cam-
paign if such benefits would have been granted absent
the union's campaign." Respondent further states in its
brief and, once again correctly, that "during an organiza-
tional campaign, an employer must decide whether or
not to grant improvements in wages and benefits in the
same manner as it would absent the presence of the
union."
2 2 Respondent argues that had it frozen all merit
increases during the pendency of the union campaign
and in the postelection period, Respondent would have
violated Section 8(a)(1) of the Act.
2 3 However, although
Respondent, in support of this contention, could point
out that the wage increases granted in July to three of its
employees were merely a continuation of its past policy
of granting merit increases periodically, and that similar
group wage increases had been granted to three employ-
ees the previous April and to four employees the previ-
ous December, it did not offer any valid economic justi-
fication for the timing of the July raises which occurred
within a few weeks of the then forthcoming election.
Thus, the mere fact that an employer can show that a
prerepresentation election wage increase was in confor-
mance with past practice or with company policy, is in-
sufficient to overcome the presumption that the preelec-
tion wage increase is motivated by consideration related
to the forthcoming election unless an economic justifica-
tion for the timing of the wage increases during the criti-
cal period is offered. Honolulu Sporting Goods Co., Ltd., a
Subsidiary of Zale Corporation, 239 NLRB No. 173
(1979). As stated by the court in N.L.R.B. v. Styletek, Di-
vision of Pandel-Bradford, Inc., 520 F.2d 275 (st Cir.
1975),24 "To proceed during an election campaign as if
the union were not on the scene is obviously perilous
unless the employer can support with very specific facts the
reasons for granting benefits just then," for "granting bene-
fits during the pendency of a representation election has
been treated as making out a prima facie case of inten-
tional interference with employees' Section 7 rights." As
in the cited case, Respondent here chose to grant wage
increases during the critical period between the filing of
the representation petition and the election. It was, of
course, as the court noted herein, entitled to try to ex-
" Citing Jeffco Manufacturing Co., 211 NLRB 787 (1974), enforcement
denied 512 F.2d 1248 (4th Cir. 1973).
as Citing G. C Murphy Company, 223 NLRB 604 (1976). G. C
Murphy, however, dealt with a situation where an employer had already
determined to grant certain wage increases, based on an established peri-
odic review program and had, in fact, promised the wage increases, then
canceled the requisitions for wage increases and discontinued the entire
program because of the advent of the union on the scene. That case, on
the facts, is clearly distinguishable from the instant case where Respon-
dent has offered no evidence which would indicate that the July wages
were either of a periodic nature, promised or in any other way pre-
planned for July, because of valid economic considerations.
24 Affirming 214 NLRB 736 (1974).
plain why the particular date chosen to grant the wage
increases was selected, and the Board is entitled to be-
lieve or reject the explanation."
2 5 "But when the event
(the granting of the wage increases) occurred within this
critical period of time, the burden was very much on the
company to satisfy the Board." This it did not do, and
the presumption that benefits conferred during this
period were intended to interfere with employees' rights
remains unrebutted.
6 I find, therefore, that the wage in-
creases granted employees during the critical preelection
period in July were in violation of Section 8(a)(l) of the
Act.
C. The James Rich-Barbara Hill Preelection
Con versation
James Rich is the son of Robert Rich, the owner of
the station. He was, during the relevant period, a college
student who spent a part of the previous two summers
2 7
working in Respondent's news department. He worked
as a rank-and-file employee, as a trainee, not as a
member of management and not in any supervisory ca-
pacity. He held no stock in the Company.
Just prior to the election of July 27, according to em-
ployee Barbara Hill, James Rich joined her and certain
other employees
2 at the Red Lion Bar and Lounge to
have a beer after work. During the conversation which
took place on this occasion James Rich stated "that his
father was very upset with what was going on and had a
lawyer working with him, at nights, trying to figure out
ways for us [the Respondent] to get the Union out; that
he [Robert Rich] already had a tentative dismissal [list]
written up, a firing one." James Rich then named Lee
Wall, Barbara Hill, Jim Malmberg, Rochelle Ogershok,
and Roger Berry as being on the list.
2 9
N L. R. B. v. Stylerek, supra .
26 Ibid.
27 Robert Rich testified that his son worked only for about 6 weeks
during the summer of 1978. When asked, under cross-examination, exact-
ly when those 6 weeks were, Robert Rich was vague in his reply. Al-
though he testified that he thought that his son had left the employ of the
station prior to July 27, the date of the representation election, and that
he could check the records, he never did check the records and none
were offered to show precisely when James Rich was employed at the
station. Robert Rich, through this testimony, implied that certain conver-
sations which General Counsel's witnesses alleged to have taken place
between James Rich and themselves after the election, could not have
taken place as they testified, because James Rich had already left. Since
Respondent failed to offer records which were admittedly available to
support Robert Rich's testimony concerning the dates his son was em-
ployed during the summer of 1978, 1 find, by inference, that, if such re-
cords had been produced at the hearing, they would not have supported
Robert Rich's testimony. Northern Staes Beef Inc., 234 NLRB 921
(1978), modified as to other issues 575 F.2d 658 (8th Cir.).
28 C. J. Beutien, Roger Berry, and possibly others.
29 Barbara Hill's testimony concerning this incident is fully credited.
No one else allegedly present either supported or denied that it occurred
or disputed anything she said. . C. Beutien did not testify at all and
though Roger Berry testified, as witness for General Counsel, as to other
matters, he did not do so with regard to this incident. James Rich did not
appear at the hearing at all Respondent, in its brief, argued that it was
incumbent on General Counsel to call James Rich to the stand to testify
concerning the matter, but since the purpose of adducing testimony con-
cerning the fact that James Rich made these statements was to show that
he did, in fact, make the statements and was not for the purpose of
having the content of the statements credited, it would serve as well to
have the hearer testify as the speaker. Barbara Hill testified credibly that
Continued
RJR i CO M NI A IO S tNC. patc lr9ae c oen t rntte
w g
928 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The incidens of July 27
On July 27 the National Labor Relations Board con-
ducted the representation election, which was won by
the Union. Rich testified that he was not particularly
pleased with the outcome since he anticipated that the
Union's victory could possibly result in costly negotia-
tions and attorney's fees. Despite the preference of Re-
spondent's chief officer that its employees remain unre-
presented, its campaign had been relatively subdued.
During one of two meetings which Rich held with the
employees, he told them that he wanted everybody to
vote and, although he was not in favor of the Union, if it
was voted in, he could live with it. He also noted that he
had lived peacefully with the IBEW, the engineers'
union for 20 years. News Director Gottschald, in a pri-
vate conversation with Wall on one occasion after the
filing of the petition but before the election, also voiced
opposition to the Union when he stated that he felt that
the Union would be counterproductive to the station
noting that "it couldn't work with the restrictions that
would be slapped on by the Union." He indicated that he
"was very disappointed that it had happened and was
against it."
On July 27, immediately following the election, em-
ployee Wall left the conference room where the election
had been held and went to the newsroom. Other employ-
ees as well as Skorich were already there. Wall an-
nounced, "We won." Shortly thereafter, Roy Niemi, the
union business agent, came in, patted Wall on the back,
and shook his hand. Wall at that point turned around to
find Skorich sitting at his desk apparently watching what
was going on. According to Wall, Skorich gave him "a
dirty look." From this incident, as described in Wall's
testimony, it is clear that management was aware of his
prounion sympathies.
On the evening of July 27 as Wall was passing the
company lunchroom he noticed Gottschald standing
there appearing, as Wall testified, dejected. Assuming
that it was the outcome of the election which appeared
to have caused Gottschald's dejection, he said, "Dick,
I'm sorry." Gottschald then said, "Come here a second, I
want to talk about this." Since Wall and Gottschald had
been friends, Wall felt that Gottschald was entitled to an
explanation. He then explained why the employees had
she heard James Rich make the statements ascribed to him and I find that
he did. If General Counsel, by virtue of the circumstances, determined
that it would rely on Hill's testimony and refrain from calling the
owner's son, as a matter of trial tactics, I will draw no infixerence as to
what the owner's son might have testified, if called. Conversely, once
Hill testified concerning the content of James Rich's conversation with
her, Respondent was free to call James Rich to deny that the conversa-
tion ever took place, or to dispute Hill's description of its content. Re-
spondent chose not to call James Rich. Under the circumstances, based
on the very credible impression that Hill made, I credit her testimony en-
tirely and find that James Rich made the statements attributed to him by
her on this occasion.
Respondent objected on the record and in its brief to the admissibility
of Hill's testimony on the grounds that it was hearsay. However, the tes-
timony was not admitted as a matter of proof of the facts asserted there-
in, but rather for the purpose of showing that James Rich did, in fact,
make the statements ascribed to him on or about the time he allegedly
made them. Thus, the fact that the statements were made, when they
were made, was received as possible circumstantial evidence. N.L.R.B. v.
Custom Excavating, Inc., 575 F.2d 102 (7th Cir. 1978) enf. 22f NLRB 285
(1977).
sought and voted for union representation, how it had
happened so fast, and why Gottschald had not heard any
rumors about it. He advised Gottschald that the real
problem was with Skorich, not Gottschald. Gottschald
was not receptive to Wall's explanation. He told Wall
that he felt the employees' actions reflected a loss of con-
fidence in him, that it was an affront and that he was
upset about the outcome of the election. He added that
Rich too was hurt. Changing the subject somewhat,
Gottschald began to discuss future events. He told Wall
that he would negotiate the Union's bargaining commit-
tee into a corner, and when he sat across the bargaining
table from them, they would go nowhere. He said that
they would have to make a career out of filing griev-
ances. Gottschald then went on to say that he did not
feel that the station could compete with other stations
with all of the work restrictions that the Union would
arbitrarily slap on, and felt that because the employees
chose union representation there would be severe eco-
nomic repercussions. Specifically, Gottschald forecasted
that perhaps the 6 o'clock newscast would be dropped,
that the staff would be trimmed sizably, and that the op-
eration would decay rapidly. Gottschald then added that,
if Wall repeated the conversation, he would deny having
said it. 30
General Counsel contends that the incident occurred
just as Wall testified and that Gottschald, by making the
various statements enumerated above, acted as Respon-
dent's agent in threatening and coercing its employees
within the meaning of Section 8(a)(1) of the Act. I agree.
More specifically, I find that Gottschald's statement that
he was upset by the outcome of the election, that he
considered the employees' decision to vote for represen-
tation as reflecting a loss of confidence in him, and that
their decision was an affront to him all implied, under
the circumstances, and in light of his other remarks, that
Respondent would take some adverse action against
them because of their voting for the Union. Montgomery
Ward & Co., Incorporated, 234 NLRB 13 (1978). I further
find that when Gottschald stated that he would negotiate
the employees or bargaining committee into a corner,
that, when he sat across from them at the bargaining
table, they would go nowhere, and that they would have
to make a career out of filing grievances, he was in
effect stating that Respondent would embark on a pro-
gram of surface bargaining, would not sign a contract
and, if signed, would not live up to its provisions. I find
such statements violative of Section 8(a)(l) of the Act.
30 The conversation appears as credibly testified to by Wall. Gotts-
chald admitted that he took the results of the election as a personal af-
front and told Wall as much during this conversation. He also told Wall
that Rich was personally hurt as well. Gottschald admitted further that
he made reference to some difficulties which he had encountered in the
past because of working rules imposed by certain unions. When Wall ex-
plained to Gottschald that it was because of Skorich not Gottschald that
the employees chose unionization, Gottschald simply stated that Skorich
had been carrying out his orders. Gottschald, although agreeing in part
with Wall's description of the conversation, specifically denied stating
that he or the station would negotiate the employees into a corner, that
they could make a career out of filing grievances, that there would be
severe economic repercussions as a result of the union vote, that the 6
o'clock news staff would be cut, that the operations would decay, and/or
that, if Wall repeated what he said, he would deny it. Where Wall's ver-
sion of this conversation is in conflict with Gottschald's, Wall is credited.
x
-\}
RJR COMMUNICATIONS, INC. 929
Columbia Building Materials, Inc., 239 NLRB No. 201
(1978); Gary Maughan and Michael Walsh et al., a Cali-
fornia Limited Partnership, d/b/a The Holding Company,
231 NLRB 383 (1977); Champagne Color, Inc., 234
NLRB 82 (1978). Finally, when Gottschald advised Wall
that the Union's victory would eventuate in severe eco-
nomic repercussions including the possibility that the 6
o'clock newscast would be dropped, that the staff would
be trimmed sizably, and that the operation would decay
rapidly, he was threatening Wall and other employees in
order to undermine their support of the Union in viola-
tion of Section 8(a)(1). Capitol Foods, Inc., d/b/a
Schulte's IGA Foodliner, 241 NLRB No. 142 (1979).
E. The Rich-Wall Conversation
Several days after the election Wall decided to talk
with Rich as he had done with Gottschald to advise him
as to why the employees had sought union representa-
tion. According to Wall, he felt that Rich, as the owner
of the station, was entitled to an explanation. To this
purpose Wall went to Rich's office. During the conver-
sation which ensued, Wall explained once again that
Gottschald had nothing to do with the organization cam-
paign and knew nothing about it. He further advised
Rich that the decision to organize was not meant as an
attack on Rich but was the only means left open to em-
ployees to counter the activities of Skorich in the news-
room, to which employees strongly objected. Rich re-
plied that he understood what Wall had told him. He
then said that he felt strongly that what had happened,
namely, the union victory, was not what he wanted for
his station.31 He added that he felt that he could not ne-
gotiate with the Union and that he would do whatever
he could "to beat this thing." 3 2 I find these statements of
Rich, like those of Gottschald, violative of Section
8(a)(l) of the Act for to say that he could not negotiate
with the Union and would beat the Union is tantamount
to saying that he would not negotiate a contract. For an
employer to state to an employee that he would not ne-
gotiate or would not sign a contract with the employees'
representative has been found violative of Section
8(a)(1). Hedstrom Company, a subsidiary of Brown Group,
Inc., 235 NLRB 1193 (1978).
F. Threats by Skorich
Barbara Hill testified that on July 28,33 the day fol-
lowing the election, she had a conversation with Skorich
a~ According to Rich, he told Wall that he did not like the results of
the election, and that it would be very costly to him because he was
going to have to go through a long negotiation period, during which he
would have to hire attorneys
a2 Rich specifically denied stating that he "would not negotiate with
the Union," or that he was going to do what he could "to beat this
thing" [the Union]. Once again, on the basis of the demeanor of the wit-
nesses, I credit Wall over Rich wherever the testimony of the two are in
conflict.
a Skorich acknowledged having a conversation with Hill or someone
else on or about July 28 but initially denied that the Union was discussed.
He then testified that he overheard someone ask, on this occassion, what
was going to happen to raises and he commented, in reply, that in his
"experience with unions, in any negotiating process, it was his under-
standing that all raises were put on hold until the negotiating process was
complete." He also testified that "there may have been something in ref-
erence to a time frame in that negotiations [with] the Union take approxi-
during which Skorich said, "You guys have really gone
and done it this time.... The old man is really upset."
Skorich, according to Hill, also told her that the employ-
ees "would probably all be out on the street," that
"raises would be a long time in coming," and that the
only raise that they would get would be up to street
level."3 4 These statements, which boil down to threats,
violative of Section 8(a)(l), that employees would prob-
ably be terminated3 5 and would not receive raises or, if
they did, said raises would be a long time in coming, 3s
were clearly made because of the employees having
voted in favor of union representation the previous day.
The violation is patent.3 7
G. The James Rich-Karen Barta Postelection
Con versation
Shortly after the representation election employee
Karen Barta received a telephone call at her home from
James Rich. During the conversation which ensued,
James Rich told Barta that the newsroom was crazy to
have voted in the Union because his father would not
put up with the Union in the newsroom. He stated that
his father wanted to run the station himself and that the
"ax was going to fall." He then said that her father was
going to cut the newsroom staff in half and cancel the 6
o'clock news. He specifically mentioned Malmberg as
one of the newsroom staff who would be fired.
Later that week, Barta and James Rich went together
during dinner break to a restaurant. During the conversa-
tion at dinner, James Rich once again brought up the
subject of the Union. He informed Barta that his father
had an attorney over every night trying to figure out
how they could possibly get the Union out. He stated
that his father would do anything he could to get rid of
it. He then advised Barta once again that the 6 o'clock
news would be canceled. 3 8 Following these discussions,
Barta repeated James Rich's statements to employee
Ogershok and to others.39 Within a few days the infor-
mately a year to complete." I do not doubt that Skorich's testimony with
regard to these matters is accurate. However. Skorich specifically denied
making the statements attributed to him by Hill; i.e: "You guys have
gone and done it this time. We'll probably all be out on the street," and
"The old man is really upset." I do not credit Skorich's denials. however.
and find that, although he said that which he testified to having said on
or about July 28, he also made the statements attributed to him by Hill.
34 The newsroom is located below street level.
a5 Capitol Food. Inc., supra.
3 Boatel Alaska, Inc., 236 NLRB 1458 (1978).
7 Although the violation alleged in par. 5(d) as having occurred on
August 18 appears to cover the incident herein discussed, the evidence
indicates that it occurred on or about July 28. Inasmuch as the matter
was fully litigated at the hearing in light of General Counsel's motion
which was granted at the hearing to conform the pleadings to the proof,
I will find that the allegation has been proven despite the date discrepan-
cy
38 The content of these conversations appears as credibly testified to
by Barta As noted earlier, James Rich did not testify Barta' testrimon)
concerning these conversations, like the earlier conversations between
Hill and James Rich, was admitted not for the truth of the matters dis-
cussed by James Rich, but rather for the fact that James Rich made the
statements attributed to him by Barta See 2 Wigmore. Evidencc §266t:
McCormick on Evidence, §249. p. 591
39 Although Barta could not recall the names of employees, other than
Ogershok, with whom she discussed James Rich's remarks. Lee Wall tes-
Continued
RIR COMMUNICATIONS, INC.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mation concerning the expected terminations and the
cancellation of the 6 o'clock news was, according to
Barta, common knowledge. Shortly thereafter, it was de-
cided that James Rich should take a vacation. It is not
clear from his father's testimony precisely which of the
two determined that James was in need of a vacation at
this time but in any event James' employment at the sta-
tion came to a precipitous end.
These conversations between James Rich and Hill and
Barta, which occurred immediately after the election,
and in which he forecasted the termination of five spe-
cifically named employees and the cancellation. of the 6
o'clock news accurately reflected in advance occur-
rences which eventually happened. James Rich then is
either Nostradamus reincarnated or, by virtue of his
being the son of Respondent's president and principal
stockholder, an individual who was privy to the plans
and objectives of management. I find the latter probabil-
ity more likely and deduce that if James Rich could
state, as fact, as indeed he did, immediately before and
after the representation election, that Respondent, in
order to get rid of the Union, would cancel the 6 o'clock
news and terminate five specifically named employees,
that these measures were clearly a part of management's
program to undermine the Union's position as representa-
tive of Respondent's employees and to rid itself of the
Union and of its known or suspected supporters. For, if
James Rich could accurately forecast with such precision
the eventual steps taken by management, the inference is
unavoidable that management had at least tentatively de-
cided on those measures, at the time or prior to the time
that James Rich announced his prognosis, weeks before
those measures were implemented.
H. The Threat to Discharge Ogershok
On Friday, August 18, about 1:30 p.m., while both As-
sistant News Director Skorich and employee Ogershok
were in the newsroom, Skorich asked Ogershok into the
ENG room and asked here if she planned on taking an-
other job as news director at a local radio station. 40
Ogershok replied that she had been considering it but
her heart was really in television news reporting and she
really did not think she would take the radio job. Skor-
ich then said, "I don't know how to tell you this but
you're being let go." Ogershok then asked if her termina-
tion had anything to do with her abilities to which Skor-
ich replied negatively and added that the station was just
cutting down the staff and she was being let go. After
being told by Skorich that she was to be terminated,
Ogershok decided to discuss the matter with Rich, but
when she went to his office to speak with him she found
that he was at a meeting. She therefore left and started
back toward the newsroom but then stopped to talk with
News Director Gottschald in his office. She told Gottts-
chald that she understood that she was being fired.
Gottschald replied that he did not know what to say,
then, according to Ogershok, vaguely referred to "some
kind of door-to-door survey" having been taken which
tified that he had heard from Karen Barta 2 weeks before his discharge
that five employees would be terminated.
40 Ogershok had been offered a radio job 3 or 4 days previously.
indicated that Ogershok was less well known than some
of the reporters who had been employed by the station
for a shorter period of time. Ogershok received the im-
pression that Gottschald was telling her that the survey
had something to do with the situation. While Gotts-
chald and Ogershok were discussing Ogershok's termina-
tion, Skorich walked into the office and announced,
"Hold everything. You're not being fired. Mr. Rich says
that you can stay until you find another job." At that
point the telephone rang and it was Rich who said that
he wanted to speak to Gottschald and Ogershok. When
they arrived at Rich's office, Rich said, "I understand
there is a problem or something downstairs." Ogershok
replied, "Well, I just learned I'm being fired." When
Rich asked, "Who told you that?" Ogershok retorted,
"Duke Skorich." Rich then stated, "Well, you're not
being fired, O.K.?" He then went on to explain that he
had understood that Ogershok had been looking for an-
other job, and thought that she might be interested in
working at her new job full time and still work part time
at KBJR. He stated that he was just trying to help.
Ogershok stated that she liked television news implying
that she wished to stay.
From the totality of events, particularly the conversa-
tions between Ogershok, Skorich, and Gottschald it ap-
pears that Robert Rich had, as James Rich reported ear-
lier, decided long ago to terminate Ogershok, Malmberg,
Wall, Hill, and Berry. Rich did not, however, discuss
this plan with either Skorich or Gottschald until the
morning of Friday, August 18, when at a breakfast meet-
ing he told them both, not only of the results of his dis-
cussion with the consultant the afternoon before, and of
the content of the notes taken during his meeting with
the consultant,4 but also of the plan to terminate the
five named individuals. Skorich, not understanding the
importance of keeping the intended terminations quiet
until the July Nielsen report came out, promptly told
Ogershok of her impending discharge. Within minutes of
Skorich advising her that she was being terminated, and
Gottschald confirming Skorich's statement, however,
Skorich apparently advised Rich that he had prematurely
divulged the news and was instructed to undo the harm
done. He therefore immediately went back to Ogershok
to advise her that she was not being discharged after all.
Later that day, Rich, too, confirmed that she could stay
until she found another job.
I. The August 21-22 Elimination of the 6 O'Clock
News, Shutdown of Film Processor; and Termination
of Employees
On Monday, August 21, at 11 a.m. Rich called a staff
meeting. The entire news staff except for employee
Roger Berry, who was on vacation, attended. Rich an-
nounced that he had received the Nielsen ratings for
July and that both newscasts had gone down in popular-
ity. He also stated the he had invested a lot of money
and could not afford to continue to lose money any
4 Rich testified to having a breakfast meeting with Skorich and Gotts-
chald on the morning of Friday, August 18, during which he, for the first
time, advised them of his tentative plans as contained in the August 17
notes. He did not admit. however, to having advised them of the pending
discharges.
RJR COMMUNICATIONS, INC. 931
longer. He advised those present that he was going to
have to make changes, and that he was thinking of can-
celing the 6 o'clock news and replacing it with network
news and a 5:55 p.m. update. He then stated that fewer
people would be needed. Someone asked Rich which
employees would be terminated, but he replied that he
could not say at that time, that he would first have to
talk individually with each person. He said there would
be a scheduled meeting with each member of the news
staff to see what their reaction would be to be his an-
nouncement and to determine whether or not they
wanted to continue working at the station or not. Ac-
cording to Rich, up until this time he had made no pre-
liminary decision as to which of his employees would be
retained if all, during their individual interviews, indicat-
ed that they wished to stay. He testified:
There are all kinds of decisions, all kinds of
routes to go. I had some preliminary thoughts about
what I wanted to do with who, but I held them in
abeyance until the ratings came and until I talked to
the individuals, with one or two exceptions. 4 2
Q. If everyone had indicated that they wished to
remain with KBJR, what would you have done?
A. Then I would have had to make some deci-
sions on my own as to who was going to go and
who was going to stay. I was trying to make it easy
for them.
Thus, it is clear from the evidence that, although
weeks before Respondent had determined to terminate
five specific employees, Rich nevertheless, as he testified
at the hearing, as of August 21 had not yet made a deci-
sion as to which employees should be discharged.4 3
On the afternoon of the staff meeting and on the fol-
lowing day Rich and his business manager, Bill Buesgen,
interviewed each employee, 4 4 sometimes in the presence
of Gottschald. Malmberg was one of the employees so
interviewed. He had, since the election, continued his ac-
tivity on behalf of the Union, attending meetings, fur-
nishing input during these meetings with regard to possi-
ble future contract proposals. When Malmberg was
called into Rich's office for his interview later, Gotts-
chald and the station's business manager, Bill Buesgen,
were also present. It was about 3 p.m., just a few hours
after the meeting with the news department employees.
When Malmberg entered Rich's office he was told that
he was "free to leave." Malmberg, still believing he had
a newscast to do that afternoon at 6 p.m., 46 asked,
"What do you mean I'm free to leave?" Rich replied,
"You can go any time." Malmberg, concluding that he
was being summarily dismissed, asked Rich if he thought
that he had done a poor job. Rich replied negatively and
42 When pressed on the subject, under cross-examination, Rich did not
name anyone as having been determined as a definite termination, al-
though he did testify vaguely that "if we are going to eliminate the pro-
cessing, Mr. Wall's job would be no longer existent"
4' According to Malmberg, Rich stated during the meeting that, al-
though he knew some of the employees whom he intended to terminate,
the fate of others was still in question.
4 Roger Berry was still on vacation and was not interviewed that
afternoon.
4s Rich had not said during the earlier meeting that cancellation of the
6 p.m. news would take place immediately.
stated that it was the ratings. 4 6 Malmberg then asked to
have his dismissal put in writing. Rich asked, "Don't you
trust me?" Malmberg replied that he would feel more
secure if he had it in writing. He was then told that the
secretary was out, but Malmberg insisted that he had
time, that when the secretary returned she could type up
his dismissal and he would pick it up later. Eventually,
Malmberg received a brief letter of dismissal which
stated that he was being laid off due to a reduction in the
news program which, in turn, made it necessary to
reduce the size of the news department. 4 7
About 2 weeks prior to August 21, Lee Wall was in-
formed by Karen Barta that he, Hill, Malmberg, Berry,
and Ogershok were going to be terminated so that on
August 22 about noon, when he was called into Rich's
office, he was not entirely surprised at what followed.
While waiting in Rich's outer office, Wall told Gotts-
chald that "he felt bad that it was going to have to end
this way," and shook his hand. Gottschald had told Wall
on an earlier occasion that as long as he, Gottschald,
worked at the station, Wall would have a job there.
When called into Rich's office, Wall said, "Well, I
know why I'm here, so why don't we get on with it."
Rich then told Wall that the station was no longer going
to use film so the film processor would not be utilized in
the future and Wall's job was being eliminated. Rich
then asked Wall what he wanted to do. Wall replied,
"Well, I would like to work here but other than that, I
suppose another television station in town or the newspa-
per." Rich then asked Wall if he had applied yet at other
stations or intended to do so. Wall replied that he had
not given it a lot of thought but would consider it. Rich
then asked if Wall would consider going into the film
processing business and contracting that service with the
stations in town. When Wall replied that he would be
willing to discuss it, Rich said that maybe they could dis-
cuss it sometime and something could be worked out.
When Wall suggested that he would like to work for the
newspaper in town, Rich noted that Buesgen had once
worked there and he would have him look into it. At
this point Rich pulled from an envelope what apparently
was a notice of layoff but then said, "No, this won't do.
I'll have another notice typed up for you, and you can
pick it up later today." Rich then gave Wall the option
of working to the end of the week or going home right
then. Wall left at the end of the day. He, like the other
terminated employees, was advised that he would re-
ceive severance pay through October 15. Later that day
Wall picked up his termination notice.
Since the election, Wall, like Malmberg, had continued
to be active in union affairs, attending union meetings,
4' Rich also testified that during this interview he told Malmberg that
he was also being laid off due to the recommendations of the consultant
and because Malmberg had previously indicated dissatisfaction with his
salary and had been seeking other employment. Malmberg denied that
Rich, at this meeting, again brought up the subject of the consultant's
findings, that Skorich had more "present identification." and that Skorich
and Barta were to be retained as anchorpersons. He did recall this subject
being discussed previously, and, as noted above, Rich had made these
statements back in July when Malmberg was replaced on the 6 p.m. news
by Skorich and Barta.
4 Identical letters, all dated August 22, were received by the other
employees terminated.
RJR COMMUNICATIONS, I C.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and discussing possible contract proposals. Following the
union victory at the polls on July 27, meetings were held
on Sunday evenings. Besides discussing possible contract
proposals, elections were held to determine which of the
employees would serve in the various official capacities.
Wall had some very definite opinions with regard to
what the union contract proposals should contain and
voiced these opinions during the union meetings. At the
meeting held August 9, he was elected as the employee
representative to sit on the bargaining committee.
On the evening of August 1, the Friday before the lay-
offs were announced, Skorich and Roger Berry, the sta-
tion's full-time sportscaster, employed since August 1977,
were getting ready for the 6 o'clock newscast. Skorich at
one point told Berry, who was about to go on vacation,
to be at home on the following Monday at a specific
time.4 8 When Berry asked why he should be home at
that time, Skorich replied, "I can't tell you but you
better be there. We may have to give you a call." Berry
then said, "So you decided to fire us all, huh?" Skorich
repeated, "I can't tell you anything. Be there." 49
On Sunday, August 20, while Berry was on vacation
in Lansing, Michigan, he received a call from Buesgen
who told him that he was sorry to have to tell him but
that the station had decided to eliminate the 6 o'clock
news and no longer needed a full-time sportsperson,
which was Berry's job. Buesgen said that the station was
trying to cut expenses for one thing, and the ratings had
been very bad. Buesgen did not offer Berry any position
doing sports. Later, though Berry tried to contact Rich
concerning his termination on two or three occasions, he
was told that Rich was too busy and did not have time
to talk with him. After Berry's termination on August
20, an employee named David Jensch was assigned
Berry's job, doing the 6 p.m. and 10 p.m. sportscast for
just that week on a temporary basis until a rew person
could be hired to take over that function on a permanent
basis. Though other employees 0 were hired to do
sportscasting after Berry's termination there is no testi-
mony as to why Berry was not offered this work.
Berry, since the July 27 representation election, had
attended the Sunday night union meetings along with the
others. Although it does not appear that he was as out-
spoken generally as Wall and Hill, when it came to such
things as talent fees and working conditions, according
to Wall, Berry had quite a few things to say on those
subjects. Though other employees"5 besides Malmberg,
Wall, Berry, and Hill attended the regular Sunday even-
ing union meetings, they do not appear to have been as
outspokenly active as these employees.
Late on August 21 or August 22, Barbara Hill report-
ed to work. She had already been advised that Malm-
4s According to Berry, either I p.m. or 2 p.m. was specified.
41 Skorich testified that after some preliminary discussior among mem-
bers of management it had been decided to call Berry on Monday after-
noon to advise him of the Monday morning meeting and about its con-
tent.
50 There was no further testimony as to who replaced Jensch as
sportscaster on a permanent basis although one Mike Foley was hired on
a contract basis to do one 10 o'clock sportscast and one Cal Sabbantini
was thereafter hired on the same basis to do sports after Foley became
news director.
5' E.g.: McRae, Stickney, Pellman, and Fryklund.
berg, Wall, and Berry had been laid off. She went to
Rich's office in accordance with the schedule previously
distributed by Rich at the staff meeting. After some dis-
cussion concerning how Hill liked working at the station
and what improvements she thought could be made, he
explained that it was not economically feasible to run
both a 6 and a 10 o'clock newscast and that he was
going to ask employees to take voluntary layoffs. Hill
asked if she would continue to work with Skorich if she
stayed. Rich did not answer her question. After some ad-
ditional discussion concerning the operation of the sta-
tion, Rich once again asked if Hill would take a volun-
tary layoff, to which she replied, "If I have to work with
Duke, I guess I don't have much of a choice." S2 When
Rich asked her if she would finish out the week, she de-
clined.
In November Buesgen offered Hill reinstatement as a
reporter-photographer. She declined the offer because
she had not been a reporter before but a photographer.
Meanwhile, Respondent hired two other individuals, one
as a photographer, another as a reporter-photographer.
So far as the record reflects, Hill was not offered the
photographer's job.
Since the election Hill, too, had continued to be active
for the Union. She, like Malmberg, Wall, Berry, and
others, attended the Sunday night union meetings. She
along with Wall was most vociferous in expressing her
opinions at these meetings, and making known the goals
which she felt should be the aims of the negotiating com-
mittee. At the meeting at which Wall was elected to the
bargaining committee, Hill was elected shop steward.
On Tuesday, August 22, Ogershok was called into
Rich's office for her interview. Rich asked her what
would be her preference with respect to staying on or
looking for another position. Ogershok indicated that she
would prefer to stay on in her position as reporter. Rich
told her he would let her know after the other inter-
views were completed. Later that day she was informed
that she could stay.
Ogershok, like Malmberg, Wall, Hill, Berry, and
others attended one or more union meetings before the
election but, as far as the record reveals, did not attend
meetings thereafter, and apparently was inactive.
With the termination of Malmberg on August 21,
Skorich took over as co-anchor on the 10 p.m. news
with Barta. Barta became producer of the 5:55 p.m.
update and of the 10 o'clock news and remained co-
anchor on the 10 o'clock news. Neither Barta nor Skor-
52 In explaining what she meant by this statement, Hill testified:
He Skorich] was openly attacking all of us down there and he
made it very clear that it was not going to let up. I just didn't feel
like I wanted to work in that type of circumstances. I had worked
many, many days of overtime and not been paid for lunch hours and
he was demanding we worked our lunch hours and he wouldn't sign
our overtime slips for this. It was just a lot of open harassment like
that, from him. I decided that it more than I really felt like I had to
tolerate.
Elsewhere Hill testified that when she made this statement she was
"fishing to see if Duke was in amongst the layoffs or not."
According to Rich, Hill added that she did not want to work with
Skorich, she was afraid of him and she did not want to stay there as long
as he was there. Rich's testimony, undenied by Hill, is credited
RJR COMMUNICATIONS, INC. 933
ich was active in the Union either before or after the
representation election.
J. General Counsel's Position Concerning the Changes
in Operations and the Terminations
General Counsel contends that Respondent, upon
learning that the Union was organizing its news depart-
ment personnel, sought through the granting of wage in-
creases to buy their votes and, when on July 27 the
Union won the election, punished those union activists
by terminating them in retribution for their support of
the Union. General Counsel relies heavily on the timing
of the raises which occurred following the initiation of
the union campaign and filing of the petition for election
and the election itself which resulted in the Union's vic-
tory; the timing of the terminations immediately follow-
ing the Union's victory; and the inconsistencies inherent
in Respondent's actions and in Respondent's explanation
for its taking said actions as revealed by the discrepan-
cies in the record evidence on which it relies.
K. Respondent's Defenses
Respondent contends that the discharge of Malmberg,
Wall, Berry, and Hill had nothing to do with union
animus but was solely the result of a good-faith business
decision to restructure its news department following the
receipt of the Nielsen ratings in August. The history of
Respondent's early attempts to upgrade its news pro-
grams over a 2-year period are, as shown above, well
documented. Rich testified that when he received the
February 1978 Nielsen ratings he concluded that the
popularity of both the 6 p.m. and 10 p.m. news was de-
creasing. An analysis of the Nielsen figures, however, re-
flects that the station was not doing nearly as badly as
Rich stated and from a long-range view had in fact im-
proved its position.5 3 At any rate, the station certainly
warranted no major change in operations at that time
and none was made. Rich did, however, as noted above,
subscribe to a consultant's service to try to improve the
station's ratings.
The consultant's report issued in May contained two
parts and, again as discussed above, indicated that Karen
Barta and Jim Malmberg, in laboratory testing,54 were
53 Without making too much of an issue of Rich's analysis, it is quite
apparent that the Nielsen ratings for February 1978 were not nearly so
bad as to require drastic changes in the operation of the station, for, al-
though the 6 p.m. news lost I percent in rating and 2 percent in share as
compared with the previous rating in November 1977, the 10 p.m. rating
actually gained I percent in rating and stayed even in share compared
with the previous November's rating. More mportantly, from the long-
range view, the station appears to have done rather well over the previ-
ous year, for the February 1978 Nielsen ratings reflect that the 6 p.m.
news was 2 percent above February 1977 in both ratings and share and 4
percent and 5 percent above February 1976 in ratings and share, respec-
tively. Similarly, the February 1978 Nielsen ratings reflect that the 10
p.m. news was 6 percent above February 1977 in rating and 8 percent in
share. Looked at from another viewpoint, although total percentage loss
for both newscasts between November 1977 and February 1978 amount-
ed to 2 percent, for the comparable period the previous year, November
1976 to February 1977, the Nielsen ratings reflected a disastrous 10-per-
cent drop in both ratings and share. The figures would thus reflect that
far from losing ground, the station seems to have improved its positions
vis-a-vis previous years.
'4 This test involved showing viewers, outside the Duluth/Superior
telecasting area and totally unfamiliar with the TV personalities, short
considered far superior than any other KBJR personal-
ity. This indicated, as testified to by Rich, that Barta and
Malmberg had more potential than any of the other
KBJR-TV personalities tested including Skorich. 55
Barta and Malmberg were, in fact, considered potential
superstars. The second part of the report, however, con-
sisted of interviews of residents of Duluth/Superior and
surrounding areas. The object of this study was to deter-
mine the degree of familiarity enjoyed by the various TV
personalities among the local populace. This test indicat-
ed that 40 percent of the males and 52 percent of the fe-
males were not familiar with Malmberg; 32 percent of
the males and 31 percent of the females were not familiar
with Barta; while 14 percent of males and 15 percent of
females were not familiar with Skorich. Of those familiar
with these personalities, Malmberg was judged good or
excellent by 35 percent of the males and 33 percent of
the females; Barta was judged good or excellent by 41
percent of the males and 51 percent of the females, and
Skorich was judged good or excellent by 62 percent of
the males and 74 percent of the females.
The May Nielsen reports came out in June and
showed that the rating percentages for the 6 p.m. news
for May had dropped 1 percent but that the share per-
centage had increased 4 percent which reflected that
somewhat fewer people were watching television in the
spring than in the winter and therefore fewer were
watching KBJR but, of those who were viewing TV at 6
p.m., KBJR's percentage increased by 25 percent. In
comparison, the report indicated that the number of
people watching TV at 10 p.m. decreased 2 percent
though KBJR's percentage of the viewers remained
steady at 22 percent. These figures compared favorably
with May 1977 and May 1976 when the 6 p.m. news
drew 19-percent and 11-percent share, respectively, and
the 10 p.m. news drew 21-percent and 17-percent share
respectively.
Rich testified that based on the Nielsen ratings of Feb-
ruary and May, as well as the consultant's report, he de-
cided to make some changes in format and did so on
July 17. On that date, according to Rich, Skorich, who
was most familiar to the public, was put on with Barta to
co-anchor the 6 p.m. news thus displacing Malmberg
from that slot. Respondent also moved Barta to co-
anchor the 10 p.m. news which Malmberg previously an-
chored alone. Respondent argues tht this step was taken
because the ratings showed that KBJR was doing poorly
and that Skorich was needed because he was more famil-
iar to the public. However, it appears to me that the
Nielsen ratings show that KBJR had increased its popu-
larity considerably over the previous 2 years during
which Malmberg anchored the 10 p.m. news and co-an-
chored the 6 p.m. news. From May 1976 to May 1978, it
doubled its share of the audience from 10 percent to 20
percent and increased its 10 p.m. audience to 22 percent
tapes of their work. The viewers then graded each personality in 20 cate-
gories. The results were that Karen Barta and Jim Malmberg were con-
sidered far superior in just about every category than any other individ-
ual employed at KBJR.
an Others tested besides Barta and Malmberg were, in order of overall
scores, C. J. Beutin (left Respondent's employ July 26-the day before
the election), Skorich, Berry, McRae, Jensch, Ogershok, Gentry, and
Gottschald.
RJR COMMUNICATIONS, INC.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from 19 percent during the same period.5 6 Moreover,
the consultant's study indicated that Malmberg's poten-
tial was far and away greater than Skorich's and if Rich
was interested in gaining an audience at the expense of
competing TV stations, the individuals with the potential
rather than individuals who were merely familiar faces
would obviously be the means to attain that goal. Rich
recognized that and even told Malmberg that he was a
potential superstar. But Rich did not just pay compli-
ments to Malmberg but a salary far in excess of that paid
to any other rank-and-file employee with frequent wage
increases indicating satisfaction. It is obvious that until
Malmberg got involved with the Union he was consid-
ered by Respondent to be one of its most valued employ-
ees.
The question then is why would Respondent reduce
Malmberg's visibility when he was quite apparently in
large part responsible for the increased popularity of the
6 p.m. news and was acknowledged as a budding super-
star. Rich's explanation is rejected as implausible. Rather,
the timing of Malmberg's reduction in houri together
with the substantial increase in his salary and the salary
of other employees immediately following the filing of
the representation petition clearly reflects a classic case
of an employer utilizing "the fist inside the velvet
glove" 57 to gain its ends in the face of a union represen-
tational campaign. In the instant case, however, the fist
was all too apparent, for by removing Malmberg from
the 6 p.m. news and reducing his responsibility on the 10
p.m. news Respondent made it patently clear that it was
perfectly capable of doing without Malmberg's services,
and by increasing his salary and those of the other em-
ployees, it demonstrated that loyalty would be rewarded.
In the face of Respondent's stated economic difficulties
there can be no other explanation for reducing an em-
ployee's hours while granting him a substantial wage in-
crease, particularly where that employee is heavily en-
gaged in union organizational activity, than to conclude
that the actions taken were motivated by unicn activity.
But the Respondent's actions were more sophisticated
than would immediately be apparent upon superficial ex-
amination for they were made at a critical timne shortly
before the representation election and, by virtue of them,
Respondent placed itself in a position whereby, if the
Union lost, it could retain the valuable services of its key
employee Malmberg and put him back as co-anchor on
the 6 p.m. news and anchor on the 10 p.m. news, and if
the Union won it would be far easier at that time to dis-
pose of him than it would have been had he retained his
previous positions as sole anchor for the 10 p.m. news
and co-anchor on the 6 p.m. news. This eventually
proved to be the case.
Respondent maintains and Rich testified that he met
with the consultant again on August 17 to discuss further
possible changes in operations at the station and prepared
a series of notes concerning what Respondent would do
b6 Rich admitted that as far as ratings are concerned audiences fluctu-
ate seasonally.
67 N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964).
if the Nielsen ratings58 for July did not improve. The
tentative decisions allegedly arrived at jointly by Rich
and the consultant on this date included replacing the
local 6 p.m. news with network national news to com-
pete with other stations' local news. The notes prepared
by Rich and the consultant, offered and received in evi-
dence, call for, among other things: having Skorich and
Barta co-anchor the 10 p.m. news, replacing the 6 p.m.
local news with network news, instituting a 5:55 p.m.
update, hiring a new "sports guy," keeping Becky
McCrae (Hinton) and David Jensch. Of 15 "KBJR
Moves to Greatness" 5 9 number 12 is "cut staff." Rich
testified that as of his August 17 meeting with the con-
sultant he had not, despite his decision to discontinue the
6 p.m. news, and remove Malmberg from the 10 p.m.
news, decided which members of his staff he would cut.
It seems strange that, discontinuing the 6 p.m. news, the
most important change being considered should be so far
down the list and have such a low priority for consider-
ation. Moreover, how could it be decided to hire a new
"sports guy" if it had not previously been determined to
terminate Berry, "the old sports guy." Further, how
could it be decided, as the notes reflect that Respondent
would "Keep Becky" and "Keep Jensch" two newly
hired employees before giving any consideration to the
older more valued (as reflected by salary) employees.
Notable by the absence of their names are the employees
who just a few days later were terminated. Though Re-
spondent contends that no decision had been made as of
the August 17 meeting with regard to the termination or
retention of Malmberg, Hill, Berry, Ogershok, and Wall,
and that that is the reason that their names do not appear
on the August 17 notes, one might just as easily conclude
from an analysis of these notes that the decision to termi-
nate these employees had already been made weeks
before and it was for that reason that their names were
not mentioned; that "staff cut" was of such a low prior-
ity on the list; that Skorich and Barta could be assigned
to the 10 p.m. slot; and that Respondent was already
looking for "a new sports guy." Inasmuch as I have al-
ready determined that Rich's son had announced just
after the election that Malmberg, Wall, Hill, Berry, and
Ogershok would be terminated and that the only way he
could know this was through his father, the absence of
their names from the August 17 notes more likely re-
flects that they were no longer in the picture than that
no decision had yet been made concerning their retention
or separation. The August 17 list then reflects only what
additional moves were being considered long after the
decision to terminate those prounion activists had been
made.
Rich testified that on the morning of Friday, August
18, at a breakfast meeting, he first advised Skorich and
Gottschald of the results of his meeting with the consul-
tant the previous day and of their tentative decision to
restructure the news department if the forthcoming Niel-
s The Nielsen report was received the following Monday, although
some advance information was received Friday, August 18.
" The notes were so entitled.
RJR COMMUNICATIONS, INC. 935
sen ratings did not show an improvement in the station's
relative standing. This, according to Rich, was the first
time they were advised of Rich's decision. It was after
this meeting, however, that Friday afternoon, that Skor-
ich went to Ogershok and told her that she was being
discharged. Skorich could not possibly know that Oger-
shok was scheduled for discharge unless he had been
told of it by Rich. Yet the August 17 notes of the consul-
tant bear no mention of Ogershok or the other alleged
discriminatees. Clearly, not only the content of the con-
sultant's notes were discussed at the breakfast meeting
that morning but also the plan to terminate certain em-
ployees. Unaware that the planned terminations were not
to be revealed until after the receipt of the Nielsen
report, Skorich "spilled the beans" by telling Ogershok
that she was scheduled for termination. Later, when he
told Rich that he had prematurely divulged the planned
termination of Ogershok, he was immediately instructed
to repudiate his earlier statement. Rich, himself, told
Ogershok later that she was not being terminated.
Thus, Skorich's statement to Ogershok on August 18
that she was going to be terminated is further evidence
that the decision to terminate her, Malmberg, Wall, Hill,
and Berry had already been made and that the forthcom-
ing Nielsen ratings were intended merely to be used as a
pretext.
Respondent, in its brief, argues that the timing of the
decision with regard to the reorganization of the news-
room negates any inference of union animus in Rich's ac-
tions. More specifically, it is urged that though the con-
sultant's report was received late in May 1978, and some
immediate changes were made with respect to the talent
lineup on the 6 p.m. and 10 p.m. news reports, Rich did
not make any radical reorganizational changes until he
had received the next available set of Nielsen ratings on
August 21, 1978. the facts reveal, however, that Rich's
decision to terminate the union activists was made weeks
before the July Nielsen survey was received, and that
the survey was quite obviously and necessarily a pretext
to be utilized as an excuse for terminating these people.
If timing is a convincing argument in this case, which I
find it is, then the timing of the reduction in Malmberg's
hours and the granting of salary increases just prior to
the election, and the termination of the key union activ-
ists immediately after the Union's victory, when consid-
ered in light of Respondent's admitted antiunion position,
is most telling.
With regard to the layoff of each specific individual,
Respondent, in its brief, offered separate arguments. Con-
cerning Malmberg, Respondent argues that once it decid-
ed to eliminate the 6 o'clock news, it then had three an-
chorpersons to cover one 30-minute and one 5-minute
newscast, which was one too many, and it decided to get
rid of Malmberg because he had the lowest "familiar-
ity" 6 ° index of the three. Rich testified: "After 2 years
Mr. Malmberg should have had more familiarity in the
market than he was able to accomplish. He had a very
60 The "familiarity" comparison is inherently unfair since Skorich had
worked at all three Duluth TV stations and theoretically could have been
seen by all viewers while Malmberg only worked at KBJR, the station
with the smallest audience. The record is not clear on how much air time
each had.
low rating in familiarity in the field. We needed something
to do immediately. After 2 years of effort and trial and
failure, there is no way that I am going to go with some-
one alone, who has potential but will not bring me some
immediate response. Now, whether I made the right de-
cision or not is questionable, 0. K.?"
But if it were Skorich who had been the rank-and-file
prounion activist rather than Malmberg, Rich could have
stated with greater credibility that he was keeping Malm-
berg and Barta because of their greater potential since
his object all along was building for the future. But hy-
potheticals aside, Rich's statement as it stands cannot
successfully withstand scrutiny. If immediacy was para-
mount, why was it that Rich did not initiate the radical
restructuring of the news department back in early June
when he first received the consultant's report upon
which the "restructuring" was allegedly based. More-
over, if immediate restructuring was required by virtue
of economic considerations, "to recoup some of the in-
vestments, some of the loss," as Rich testified, why did
Respondent grant wage increases to certain of its em-
ployees upon the advent of the Union, and why above
all did it give Malmberg a substantial salary increase
while at the same time removing him from the 6 p.m.
news and decreasing his time on the 10 p.m. news. Rich
testified that he gave him the salary increase to placate
him because he did not want to lose him "at that time."
However, just a very few weeks later he dismissed him
summarily. Why? Nothing occurred between July 1
when Malmberg's salary increase became effective and
August 21 when he was terminated except one thing;
namely, the representation election. For although Rich
testified that his decision to terminate Malmberg was not
made until he received the July Nielsen report on or
about August 21, the record is replete with evidence that
Malmberg and the others were marked for discharge
long before the July Nielsen report was received. The
timing of the entire congeries of events makes it abun-
dantly clear that Respondent, upon learning of the
Union's organizational efforts and of the filing of the rep-
resentation petition, showed its fist by demoting Malm-
berg and displayed the velvet glove by granting to him
and to others substantial salary increases, all for the pur-
pose of influencing their votes in the forthcoming elec-
tion. Confident in the outcome thereof, Rich kept Malm-
berg at increased expense and decreased production, in
order to put him back on the air once the Union was de-
feated. When the Union won, however, Rich cleaned
house by terminating Malmberg and the other prounion
activists. It is evident that Respondent was aware from
early in the campaign which of its employees were most
active on behalf of the Union for they were specifically
fingered for termination by Rich's son, though certainly
an unwitting amanuensis.
With regard to Wall, Respondent contends that it de-
termined to go entirely with electronic newsgathering
equipment, eliminating all uses of 16 millimeter film.
This, according to Respondent, would result in the elimi-
nation of the processor, chemicals, and "a great deal of
Wall's job functions." Rich advised Wall on August 22
that, due to these changes, his job was being eliminated.
RJR COMMUNICATIONS, INC.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision to terminate Wall, according to Respon-
dent's brief, was strictly a matter of reducing expenses.
Since Respondent had determined to eliminate many of
Wall's functions by switching from film to ENG, it made
business sense to eliminate Wall's job entirely.
The record reveals that Wall was Respondent's oldest
employee in terms of seniority, 6 ' therefore the most ex-
perienced6 2 and highest paid photographer. Since he was
the highest paid photographer, it may be assumed that
his services were valued accordingly. If so, then why
would Respondent terminate him while keeping other far
less experienced photographers. Though Respondent
urges that Wall was let go in order to save money be-
cause he did the film processing and that work was no
longer required, the record indicates that the vast major-
ity of Wall's time, two-thirds to three-quarters of his
time, was taken up with shooting and editing news
film.63 Thus, the fact that Wall spent a small proportion
of his time processing film is not nearly as significant as
Respondent would have us believe. Moreover, Dawn
Stickney, an employee hired as a part-time processor in
1976 and working at an hourly wage of $2.6'5 in 1978
was retained after Wall was laid off, and she thereafter
continued for some time to do the processing. 64 In fact,
Respondent continued to shoot and process film through
January 1979.65 Similarly, an analysis of Respondent's
payroll records indicates that whereas during the pay pe-
riods July 31 and August 15, overtime paid to photogra-
phers equaled 7 and 7-1/2 hours, respectively, during the
periods August 31 and September 15 and 30 overtime
paid to photographers increased to 12.5, 43, and 46.5
hours, respectively, thus indicating that Wall's discharge
on August 22 was not reflective of a lack of need for
photographers. 6 6 Pellman testified that the station, after
the layoffs, was working with short crews. Later, to alle-
viate the situation, Respondent converted to full-time re-
porter-photographer an employee hired September 23 as
a part-time switchboard operator. This was on Novem-
ber 20. Still later, in January 1979, another photographer
was hired.6 7
Thus, it would appear that Respondent not only termi-
nated its oldest, most experienced and valued photogra-
pher when it let Wall go on August 22, but did it at a
time when it needed his services. As far as the laim that
the termination made business sense, I fail to see how
terminating Wall who would have received $3.75 per
hour straight time and replacing him with Fryklund and
"I Wall was hired in 1973, left in 1974, and returned in April 1976. All
other news department employees were hired in 1976 or later.
52 Two photographer employees hired in early 1978 and retained after
Wall's discharge were trained by Wall, Hill, and other experienced pho-
tographers.
'a On this point Wall is credited over Rich who did not appear certain
of his testimony. Gottschald merely testified that film processing was one
of Wall's main responsibilities.
'4 After Stickney stopped processing film, it was sent to KDAL for
processing.
"' Since January 1979 use of videotape has been increased to 90 per-
cent and processing discontinued.
as The exhibit reflecting overtime hours bears the stipulated note that
photographers working overtime performed duties other than photogra-
phy as well as photography during this period.
"I Employee Fryklund testified that, after August, Respordent also cut
down on its out-of-town assignments.
Pellman working overtime at in excess of $4.10 per hour
makes good business sense. Since the reasons given for
Wall's termination are clearly fabrication, I must assume
that his termination shortly after the Union's victory at
the polls was a direct result of his union activity just as
forecasted weeks before by Rich's son.
Hill, like Wall, was an experienced news photographer
and next to Wall was Respondent's highest paid photog-
rapher. She, like Wall, was utilized to train the newly
hired photographer employees and worked evenings
alone when only the more experienced photographers
were permitted to work. As in the case with Wall, Re-
spondent's decision to terminate Hill while retaining the
services of far less experienced personnel at overtime
wages makes very little business sense except when
viewed in the light of Wall's and Hill's union activity
throughout the campaign which resulted in the victory
for the Union at the polls. The termination, having been
accurately forecasted long before it occurred, was timed
to take place shortly after the Union won the election,
and as a result thereof.
Respondent argues that Hill was not discharged but
quit her job on August 21. However, the record does not
reflect a situation where an employee suddenly decides
that he no longer likes his job, walks into the office of
the boss, and submits his resignation. In this case, Hill
had already been informed that three other individuals,
all active in the Union, had just been terminated and she
was scheduled to go to Rich's office next. Having been
made aware weeks before that she along with the three
terminated employees would be discharged because of
their union activities, Hill was under an inordinate
amount of pressure. When asked if whe would take a
voluntary layoff, she at first indicated her desire to stay
by stating that she "very much enjoyed working in
Duluth." When the discussion turned to whether Hill
would have to work with Skorich and Rich did not
answer directly, Rich then asked Hill a second time if
she would take a voluntary layoff. She then replied, "I
guess I don't have much of a choice."
Under all of these circumstances, I do not feel that
Hill voluntarily quit her job. She had been told weeks
before by Rich's son that she and four other named indi-
viduals were scheduled for discharge because of their ac-
tivities on behalf of the Union. On August 21 she was
advised that three of the five had been terminated that
day and she was scheduled to be interviewed next. When
offered the chance to take a voluntary layoff at a time
when it appeared that if she did not accept the voluntary
layoff she would likely be discharged as were the others,
her decision can hardly be considered uncoerced. She
was at no time advised that if she did not voluntarily
quit, as Rich urged, that she would be retained. I find
then that Hill's termination was forced on her because of
her activities on behalf of the Union and was, like the
terminations of Malmberg and Wall, violative of Section
8(a)(3) of the Act. Though Hill was called several
months later, and offered a job as a reporter-photogra-
pher, I find this not to be a valid offer of reinstatement
since Hill had never been a reporter and had no training
for that position. It is noteworthy that still later when
Respondent decided to hire another full-time photogra-
RJR COMMUNICATIONS, INC. 937
pher in January 1979, neither Wall nor Hill was offered
the position.
With regard to the termination of Roger Berry, Re-
spondent contends that his termination was the result of
its cancellation of the 6 p.m. news which in turn made it
unnecessary to employ a full-time sportscaster. However,
the record is silent as to any dissatisfaction with regard
to Berry's work. On the contrary, he was scheduled for
a raise in salary as of August 1.68 He did not, however,
receive this increase very probably because, just a few
days before, the Union had won the election and it had
long since been decided that if that should occur the five
employees scheduled for termination would be dis-
charged and Berry, being one of them, would of course
be precluded from being granted a wage increase imme-
diately before his termination. When Berry was terminat-
ed, employee Jensch filled in as sportscaster for a short
period after which Rich hired Mike Foley, an employee
of another station, to do the 10 p.m. sports. Later when
Foley became news director, Respondent hired one Cal
Sabbantini to do sports. Respondent contends that Berry
was terminated and replaced by Jensch, then Foley, then
Sabbantini to reduce costs. No figures were offered to
substantiate this point, however, and I do not credit Re-
spondent's claim.
Respondent made no offer to Berry to permit him to
continue handling the 10 p.m. sports. This I consider
strange, for why would Respondent wish to replace a
perfectly capable experienced sportscaster rated by the
consultant's report as above average, and highly recom-
mended by that report, summarily discharge him, and re-
place him with Jensch who was rated below average by
the same consultant with the notation "Borderline."
Later, when it was decided to replace Jensch, Respon-
dent still did not contact Berry but went outside the sta-
tion to hire someone new and unfamiliar with Respon-
dent's operation. Berry had attempted to contact Rich on
three separate occasions so it must have been clear that
Berry was still interested in working. If that were not
sufficient notice to Respondent that Berry was still inter-
ested in working at KBJR, then the filing of the charge
on September 5 naming Berry as having been discrimina-
torily discharged must certainly have given Respondent
notice that Berry was still interested in working there.
The illogical termination of Berry, an experienced,
highly recommended employee in favor of retaining
Jensch and later hiring two outsiders to continue in
Berry's place clearly indicates that Respondent was more
interested in getting rid of Berry than it was in maintain-
ing quality of performance. 69 The motive in terminating
Berry is obvious. Just as with the others, Respondent de-
termined to get rid of the five most active union activ-
ists, but also determined to do so only if it lost the elec-
tion since these were all experienced employees neces-
sary to the successful operation of the station. If the
'6 As reflected by company payroll records
69 Rich testified that Berry was terminated at the suggestion of the
consultant who felt that Berry was "not the greatest " I find this state-
ment incredible in light of the fact that Berry was replaced by Jensch
whom Rich and the consultant both decided to keep, and whom the con-
sultant had graded "Borderline" while grading Berry "Highly Recom-
mended."
Union lost, there would be no reason to make drastic
changes in the format and the operation of the station
could continue as it had before the advent of the Union.
If, however, the Union won, the five union activists
would be terminated thus necessitating drastic restructur-
ing of the programing format including cancellation of
the 6 p.m. news. This was necessary for, as indicated by
management personnel, Respondent felt it could not op-
erate with a Union. Thus, Respondent, in an effort to
scuttle the Union and defeat the concept and practice of
collective bargaining before it could even get underway,
chose rather to fire its most valued TV personality,
Malmberg, the employees' bargaining committeeman; its
two most experienced photographers, Wall and Hill, the
latter a steward, both being initiators of the union orga-
nizing effort; and its sports director, Berry, an outspoken
supporter of the Union. That Respondent changed its
mind after advising Ogershok, through Skorich, that she
was fired may or may not be attributable to the fact that
whereas Ogershok was initially interested in the Union,
participated in union activities, and attended union meet-
ings before the election, she was notably absent from the
August 9 union meeting where Hill was elected steward,
Wall was elected as negotiating committeeman, and
where contract proposals were worked out.
In summary, the above sequence of events clearly indi-
cates that once Respondent was informed that its em-
ployees were being organized it undertook a campaign of
its own to undermine their efforts by drawing up a list of
prounion adherents, the names on that list being revealed
by James Rich. Respondent then attempted to influence
the employees with regard to their choices in the forth-
coming election by demonstrating to them its complete
and total power over them by granting wage increases to
some of them, thus indicating its power to reward their
loyalty, and by removing Malmberg from the 6 p.m.
news thus indicating that he and others were not indis-
pensable and could be gotten rid of if they voted in
favor of representation. Respondent chose to keep all of
its employees right up until the election. Once the Union
won the election and Respondent was faced with the re-
ality of having to enter into bargaining negotiations, a
distasteful prospect, it decided to carry out its threat, and
terminated those on the discharge list. I find the various
reasons proffered by Respondent for the discharge of the
alleged discriminatees unworthy of credit and that
Malmberg, Hill, Wall, and Berry were discharged be-
cause of their union activities70 in violation of Section
8(a)(3) and (1) of the Act.
L. The Alleged Unilateral Assignment of Unit Work
to Nonunit Employees and Supervisory Personnel
The complaint alleges and General Counsel contends
that since August 21 unit work has been assigned to non-
unit employees and supervisors. While he conceded that
7" After the discharge of the four named individuals, in October Skor-
ich demonstrated management's continued concern about employees'
union activity by accusing employee Pellman of having conversations
with Wall on the telephone during working hours about union matters
Pellman denied it, but Skorich stated that he did not believe him, said
that somebody had told him about it and warned Pellman not to let it
happen again
RJR COMMUNICATIONS, INC.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the efficient and prompt gathering of news sometimes re-
quires that supervisory personnel sometimes must per-
form unit work in emergency situations, and that Gotts-
chald and Skorich and employees from other depart-
ments sometimes on special occasions performed unit
work, nevertheless, following certification of the Union
these supervisors and nonunit employees performed a
much larger volume of unit work than they had done
previously. General Counsel argues in particular in his
brief that Skorich did both filming and editing after
August 21 and that this type of work had not been done
on a regular basis before, and that nonunit employees
Dolon and Pearson did photographic field work of
normal news events after August 21, work which they
had not done prior to the advent of the Union. General
Counsel contends that this work in part was excess bar-
gaining unit work generated as a result of the discharges
of employees on August 21 and 22, and that rather than
simply assigning it to nonunit employees and supervisors,
Respondent was obligated to bargain over the assign-
ments at the bargaining table.7 ' Its failure to do so was,
General Counsel urges, violative of Section 8(a)(5) of the
Act.
Respondent admits that both nonunit rank-and-file em-
ployees and supervisory employees are performing unit
work but maintains that this had always been the case,
long before August 21. More specifically, Respondent
points out that Skorich, prior to August 21, functioned
both as the assistant news director as well as anchorman
on the 10 p.m. news and also did other unit work. Simi-
larly, Respondent claims Gottshcald, and Doty before
him, also appeared as anchormen, reporters, and occa-
sionally did photography work. In sum, Respondent
argues that there was no unilateral change but rather
merely a continuation of the practice of permitting non-
unit employees to do news department unit work just as
had been done frequently in the past.
As far as the record is concerned regarding past prac-
tices at the station, Lee Wall testified that Doty, Respon-
dent's news director, and a supervisor under the Act,
also served as anchorman and regularly appeared before
the camera. Similarly, Wall testified that Skorich, Re-
spondent's assistant news director, and a upervisor
under the Act, also appeared regularly before the
camera, and acted as reporter on special assignment7 2
but that Doty only rarely went out and did a story.
Gottschald, who took Doty's place as news director,
also, according to Wall, would appear periodically
before the camera. It was rare that the news director or
his assistant would do photography work, but they did
some in spot news situations.73 With regard to nonunit
rank-and-file employees doing unit work, Wall testified
that prior to August 22 Doug Pearson, an employee in
the promotion department, did some photography work.
This would occur sporadically, when he would work 4
71 According to the Union's bargaining representative, the subject was
discussed at negotiations and the Union's position made clear
72 General Counsel would draw a distinction between special assign-
ments and routine assignments.
73 Skorich did photography work, according to Wall, a couple of
times a month.
days out of the week then would not work in photogra-
phy for several months.
Fryklund, in support of Wall's testimony, stated that
both Skorich and Gottschald did photographic work
before August 22, that Gottschald "usually carried a
camera with him at all times" and would go out at night
on spot news jobs. 7 4
Pellman testified that before August 22 the photogra-
phy work was done by himself, Wall, Hill, and Peino-
vitch 7 5 and that the processing was done by Wall, Hill,
and Stickney. He further testified that, after Skorich
became assistant news director, he nevertheless contin-
ued to act as a reporter, as an anchorman, and as a pho-
tographer and editor, though seldom. Pellman also sup-
ported Wall's testimony when he noted that Pearson
would, on occasion, go out and cover a story in the
morning as a photographer with a reporter though he
was not an employee in the news department. As testi-
fied to by Wall, Pellman also stated that photographic
work done by Pearson prior to August 22 was not done
on a regular basis. In fact, Pellman testified to knowing
of just one occasion between January and August when
Pearson worked as a photographer.
Skorich testified that as assistant news director his
duties included overseeing some of the operations of the
newsroom, producing newscasts, reporting, writing sto-
ries for newscasts, assigning employees to news stories,
and generally supervising the newsroom. As far as news
department unit work is concerned Skorich testified that
he did general reporting, the writing of news stories, and
the producing of newscasts. He also shot film.
From the totality of evidence adduced at the hearing,
it is clear that supervisory employees and at least one
nonunit, nonsupervisory employee did unit work prior to
August 22.
With regard to unit work done by nonunit employees
after August 22, Wall testified that he witnessed Skorich
shooting news film at the Ely Dog Races in January
197976 and at Park Point Manor in the early winter. He
also testified that he saw Pearson shooting film for Re-
spondent in Minneapolis during the President's visit there
sometime after August 22 and before the hearing.
Fryklund testified that after August 22 he, Pellman,
and Stickney performed the jobs of photographing and
editing. He also testified, however, that both Gottschald
and Skorich did photographic work after August 22 as
well, particularly the latter if he were also the rporter.
When Skorich did the camera work on his own stories,
he likewise did the editing.
Pellman testified, as did Fryklund, that after August 23
he, Fryklund, and Stickney did the photographic work
for Respondent. Skorich, however, also did some photo-
graphing, reporting, and editing 7 7 after August 22, ac-
cording to Pellman, and continued to act as anchorman.
74 Fryklund estimated that Gottschald shot between 100 and 200 feet
of film per week.
5 Pienovitch left the employ of Respondent in June 1978.
7' Presumably December 1978 or January 1979.
" Pellman testified that, although there was no substantial difference
between the type and amount of unit work done by Skorich before
August 22 and at the time of the hearing, there was a period of time just
after August 22 when Skorich did more editing than either before or
afterwards.
RJR COMMUNICATIONS, INC. 939
Pellman characterized Skorich's photography work both
before and after August 22 as rare. In addition to unit
work being done by news department supervisors, non-
news department employees Pearson and Dolan did
some unit work after August 22, according to Pellman's
testimony. Pearson, he said, went out between three and
five times after August 22 to cover stories with report-
ers, Pearson doing the camera work. Pellman testified
that this was more often than before August 22. Dolan,
identified by Pellman as a director in another depart-
ment, was asked on occasion to help with the editing
when the news department personnel were suddenly
called out to cover stories.
Skorich testified that, just as he did unit work prior to
August 22, he continued to do unit work still, with no
change in amount.
To summarize the evidence it would appear that both
prior to and after August 21 Respondent assigned its su-
pervisors and certain nonunit rank-and-file employees to
do unit work. Although there may have been some small
increase in the amount of unit work done, there was ap-
parently no change in the type of unit work performed
by nonunit people and an insufficient increase, if any, in
the amount of unit work performed to warrant the con-
clusion that Respondent unilaterally assigned work previ-
ously performed by employees in the unit to nonunit and
supervisory employees in violation of Section 8(a)(5) of
the Act. It has been held that, pending negotiations with
a union for a contract, an employer may continue exist-
ing terms and conditions of employment and exercise the
normal prerogatives of management. That is all Respon-
dent did when it continued occasionally to use nonunit
personnel to do some unit jobs on a sporadic basis. I
shall recommend that this allegation be dismissed. Engi-
neered Building Products, Inc., 163 NLRB 649 (1976).
M. The Alleged Unilateral Granting of Wage
Increases to Unit Employees and Elimination of
Talent Fee System
The Union won the July 27 election and by virtue of
the certification which issued August 3, 1978, became the
exclusive collective-bargaining representative of the em-
ployees in Respondent's news department. On August 9
the employees met, worked out contract proposals, and
elected a committeeman to participate in the forthcoming
negotiations with Respondent. The contract proposals
were later included in a proposed agreement which the
Union sent to Respondent on August 23 together with a
request to bargain. On September I Respondent's attor-
ney replied stating that he would be calling to schedule
an appropriate time and date to begin negotiations. On
September 6 Respondent's attorney contacted the Union
and a meeting was scheduled for September 15.
Despite the fact that Respondent acknowledged by
virtue of its attorney's communication to the Union and
subsequent bargaining negotiations with it that the Union
was its news department employees' collective-bargain-
ing representative, Respondent unilaterally and without
notice to or consultation with the Union undertook to
make important drastic changes in the working condi-
tions of those employees. Thus, on September 1, Rich
called a meeting of the entire staff of the news depart-
ment and announced that henceforth talent fees78 would
no longer be paid as was previously the case. Rather,
talent fees were to be included in the salaries of each em-
ployee. 79 The immediate result of this change on the em-
ployees affected was as follows (the first figure repre-
sents the employees old salary; the second figure repre-
sents the new salary):
Ogershok
Barta
Gentry
$600-$930
$600-$930
$700-$ 1,037.50
Respondent argues that the change was merely technical.
However, Ogershok credibly testified that whereas prior
to September I she had been doing updates 5 days per
week and was compensated for 5 days through the pay-
ment of talent fees, after September 1 she was required
only to do two updates, yet received the full increase in
salary just as had the other employees who were affected
by the elimination of the talent fee system. Clearly, this
change in working conditions amounted to a substantial
salary increase. At the same time that Ogershok received
the salary increase, employee Becky McRea (Hinton)
was given two of Ogershok's days to do updates. She,
however, remained on the talent fee system and thus re-
ceived additional compensation also.80 But even if one
were to credit Rich as to the reason for the change in
the system of remuneration, the effect of said change,
namely, to have employees paid their talent fees in the
form of straight salary while they are on vacation, remu-
neration which they previously had not received or had
not chosen to take, the change was something more than
technical. For there was a definite increase in the com-
pensation paid to employees as a result of the unilateral
changes made on September 1, and not a small one.
Thus, if an employee who received a $7.50 talent fee per
appearance did two such appearances per day, then that
is $15 per day that employee would receive under the
new system while on vacation. If the vacation were 2
weeks, that is $150. The record is not all that clear as to
whether employees did earn two $7.50 talent fees per
day but if they did not, then why did Gentry receive a
$300-per-month increase in lieu thereof? The amounts
appear to jibe. The increases awarded to employees by
virtue of the elimination of the talent fee system were
quite obviously substantial, not merely technical. Re-
spondent admits that these changes in working condi-
tions were implemented without notification to or con-
sultation with the Union. The subject of talent fees was
discussed at negotiations only after the filing of unfair
labor practice charges on September 5," long after the
"I Compensations paid to employees for each appearance before the
camera are termed talent fees.
79 By including talent fees in salary, employees were enabled to re-
ceive compensation for days they did not work because they were ill or
because they were on vacation. This was the reason given by Rich for
eliminating the talent fee system; namely, because employees would not
take vacations for the fear of losing talent fees.
s A notation on McRae's (Hinton's) payroll card indicates that on
April , 1979, her talent fees would be included in her salary.
8l Subsequent to the filing of the charge, Respondent offered to go
back to the old system or keep the new one. This belated offer does not,
however, change the unilateral nature of the original act, nor cure the
Continued
RJR COMMUNICATIONS, INC.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
damage was done to the Union's position as exclusive
bargaining agent for the employees. For it is patently
clear that next to wiping out the bargaining unit by ter-
minating its strongest supporters, as I have found oc-
curred in the instant case, the most effective way of un-
dermining a union's strength is to totally ignore its status
as representative by unilaterally granting wage increases,
changing conditions of employment and otherwise acting
as though it does not exist. That is what Respondent did
in September 1978, and that is what is so destructive of
the Section 7 rights of its employees. Respondent was
aware, after the certification of the Union, that it was
bound under the law to negotiate any changes in em-
ployee working conditions contemplated, for it had had
a bargaining relationship with the IBEW for 20 years
covering its engineers. Nevertheless it chose wilfully to
ignore its obligation to negotiate with the bargaining rep-
resentative of its news department employees, flagrantly
flouting the requirements of good-faith bargaining as set
forth in Section 8(a)(5) of the Act by failing to give even
a condescending nod to acknowledge the presence of the
Union before instituting its own program of changes in
working conditions.8 2 I find the changes instituted on
September 1 to be unilateral in nature and therefore vio-
lative of the Act. N.L.R.B. v. Benne Katz d/b/a Wil-
liamsburg Steel Products, 369 U.S. 736 (1962).
Similarly, without notice to or consultation with the
Union, Respondent on September I awarded both Karen
Barta and Rochelle Ogershok a clothing allowance of
$200 each. No such allowance had ever been granted to
any employees before, not at least so far as the record
indicates. The unilateral institution of such benefits at the
time when Respondent was fully aware of the Union's
desire to negotiate salary increases and fringe benefits
clearly manifests bad faith N.L.R.B. v. Katz, supra.
On September 15 the Union and Respondent met at
the first bargaining session.8 3 The Union's proposal of
August 23 was gone through thoroughly, including the
salary proposal contained therein. The Union's represen-
tative, Roy Niemi, at this meeting and at subsequent
meetings 84 requested that Respondent make a salary
offer but Respondent's representative refused to do so,
taking the position that language would first have to be
worked out with monetary matters being saved until last.
At a later meeting on February 1, 1979, monetary mat-
ters were discussed and some agreement reached on
fringes. 8 5
Even as Respondent opened negotiations with the
Union at their initial meeting on September 15, it did not
cease making unilateral changes in the working condi-
tions of unit employees, the outstanding charge based on
similar acts notwithstanding. For on September 15 Re-
spondent granted employee Mark Fryklund a $31 per
violation. Southern Tours, Inc., 167 NLRB 363 (1967) enfd. 401 F.2d 629
(5th Cir. 1968).
82 The Union had in its August 23 contract proposal raised the ques-
tion of salary increases as well as increases in talent fees thus manifesting
its interest in the subject matter.
83 The charge in the instant case had, in the meantime, been filed.
84 Subsequent meetings were held on October 31 and December 8.
1978, and February 1, 1979.
85 Tentative agreement had been reached on certain economic issues at
the December 8 meeting.
month salary increase and employee Earnest Pellman a
$25-per-month increase. David Jensch received salary in-
creases of $30 per month on January 1, 1979, and $130
per month on January 29, 1979. All of these salary in-
creases were awarded while negotiations were in pro-
gress but without notification or consultation with the
Union. It is axiomatic that such acts are violative of Sec-
tion 8(a)(5) as inherently destructive of the collective-
bargaining process. Allen W. Bird II, receiver for Caravelle
Boat Company, a Corporation, and Caravelle Boat Compa-
ny, 227 NLRB 1355 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By increasing employees' salaries in order to dis-
courage their support of the Union; threatening an em-
ployee with elimination of the 6 o'clock newscast, shut-
ting off its film processor, and cutting its staff because
employees had chosen to be represented by the Union;
threatening to stop the Union and not negotiate with it
despite the fact that its employees had voted to be repre-
sented by the Union; threatening an employee with dis-
charge because employees had chosen to be represented
by the Union; and eliminating its 6 o'clock newscast and
shutting down its film processor in retaliation against em-
ployees for having chosen to be represented by the
Union, Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights as guar-
anteed in Section 7 of the Act and has thereby violated
Section 8(a)(1).
4. By discharging employees Donald J. Malmberg,
Barbara Hill, Lee Wall, and Roger Berry and failing and
refusing thereafter to reinstate them because said employ-
ees engaged in activities for and on behalf of the Union,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. All full-time and regular part-time reporters, an-
nouncers and photographers employed by Respondent in
its news, sports, and weather departments of KBJR-TV;
excluding office clerical employees, managerial employ-
ees, professional employees, confidential employees,
casual employees, guards and supervisors as defined in
the Act, and all other employees, constitute a unit appro-
priate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
6. Since July 27, 1978, the above-named labor organi-
zation has been, and is now, the exclusive representative
for all of the employees in the aforesaid appropriate unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
7. By unilaterally granting salary increases and in-
creases in fringe benefits and eliminating the talent fee
system, as said conditions of employment affect the em-
ployees in the aforesaid appropriate unit, all without
notice to or consultation with the Union, Respondent has
refused to bargain collectively in good faith with the
Union, in violation of Section 8(a)(5) and (1) of the Act.
RJR COMMUNICATIONS, INC. 941
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom, and to take certain affirma-
tive action s8 designed to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8 7
The Respondent, RJR Communications, Inc., Duluth,
Minnesota, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Increasing employees' salaries in order to discour-
age their support of the Union; threatening employees
with elimination of available work and with staff cuts be-
cause they have choosen to be represented by the Union;
threatening to stop the Union and not negotiate with it
despite the fact that its employees have voted to be rep-
resented by the Union; threatening employees with dis-
charge because they have chosen to be represented by
the Union; and eliminating available jobs in retaliation
against employees for having chosen to be represented
by the Union.
(b) Discouraging membership in General Drivers,
Warehousemen, Helpers and Inside Employees Union,
Local 346, affiliated with International Brotherhood of
" I shall recommend, among other things, that Respondent he ordered
to reinstate the p.m. news Contrary to Respondent's contention I have
found that the 6 p m news was discontinued for purely discriminalory
reasons and was an economically viable part of Respondent's operations
It would therefore be no great financial burden to reinstate the 6 p.m
news thus providing for resumption of the operational status quo ante.
Richboro Community Mental Health Council Inc., 228 NLRB 1198 (19771
All of the facilities remain intact and such a remedy cannot therefore be
considered punitively burdensome. Cf Great Chinese American Sewing
Company; Esprit De Corp.. 227 NLRB 1670 (1977), enfd. 578 F2d 251
(9th Cir 1978); Capitol Chrysler-Plymouth of Montgomer. 242 NLRB No
178 (1979) I grant that this case is somewhat different from nmost others
in that the discontinued operation was replaced h another, the final
product of which is quite different from that of the orginal operatio.
For one cannot presume that a report of a traffic accident on Main Street
in Duluth as rendered by Donald Malmberg and a discussion of Sino-
Soviet relations as interpreted by David Brinkley arc arguahls fungible.
Yet I see no hardship in reinstituting the local 6 p mn news as it was on
this ground either, for if network news has proven successful, both pro-
grams could be aired svrialim as is done in most major cities [ni any case.
it was Respondent's unfair labor practices which created the problem and
it is far niore reasonable to expect Respondent to cure the ill than for its
victims to contilnue to suffer thereby R & I Masonrr Suppv. Inc , 238
Nl.RH No 149 (1978) Respondent should he ordered to reinstate the
local news i order for the discriminatees ho worked in hroadcastilng o
have jobs to return to. Sunflower Nov/lrty Bag, Inc, 225 NLRB 1331
(1976)
n8 In the event no exceptiols are filed as providled hby Sec 102 46 of
the Rules and Regulations of the National Ilabor Relatiotns Board, the
findings, conclusions. and recommended Order herein shall, as proided
in Sec 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waised for all purposes
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discharging
or otherwise discriminating against any employee in
regard to the hire or tenure of his employment or any
term or condition of employment.
(c) Unilaterally granting salary increases and increases
in fringe benefits88 or changing the system of remunera-
tion or other terms or conditions of employment of em-
ployees represented by the above-named organization in
the following unit:
All full-time and regular part-time reporters, an-
nouncers, and photographers employed by the Re-
spondent in its news, sports, and weather depart-
ments of KBJR-TV; excluding office clerical em-
ployees, managerial employees, professional em-
ployees, confidential employees, casual employees,
guards and supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
(d) In any similar or related manner refusing to bar-
gain collectively with said labor organization.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer Donald J. Malmberg, Barbara Hill, Lee Wall,
and Roger Berry immediate and full reinstatement to
their former jobs or, if their jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of pay or other benefits. Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
as set forth in Isi Plumbing & Heating Co, 138 NLRB
716 (1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
(b) Upon request of the Union reinstate the prior talent
fee system of remuneration.
(c) Resume broadcasting the 6 p.m. local news.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Upon request, bargain in good faith with General
Drivers, Warehousemen, Helpers and Inside Employees
Union, Local 346, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of
the employees in the above-named unit and embody in a
signed agreement any understanding reached.
(f) Post at at its place of business at Duluth, Minneso-
ta, copies of the attached notice marked "Appendix." 8 9
" This directi e is not to he construed as a requirement that such in-
creases as were granted he rescinded
o, In the esent that this O)rder is enforced by a Judgmnent of a United
Stales Court of Appeals, the words in the notice reading "Posted by
Continued
RJR COMMUNICATIONS, INC
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, on forms provided by the Regional
Director for Region 18, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
Order of the National Labor Relations Board" shall read 'Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
WE WILL NOT increase employees' wages in
order to discourage their support for the Union.
WE WILL NOT threaten employees with elimina-
tion of available work and with staff cuts because
they have chosen to be represented by the Union.
WE WILL NOT threaten to stop the Union and to
refuse to negotiate with it.
WE WILL NOT threaten employees with discharge
because they have chosen to be represented by the
Union.
WE WILL NOT eliminate available jobs in retali-
ation against employees for having chosen to be
represented by the Union.
WE WILL NOT discourage membership in General
Drivers, Warehousemen, Helpers and Inside Em-
ployees Union, Local 346, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization, by discharging or otherwise dis-
criminating against any employee in regard to hire
or tenure of his employment or any term or condi-
tion of employment.
WE WILL NOT unilaterally grant salary increases
or increases in fringe benfits or change the system
of remuneration or other terms or conditions of em-
ployment of employees represented by the above-
named labor organization in the appropriate unit.
WE WILL NOT in any similar or related manner
refuse to bargain collectively with said labor organi-
zation.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the Act.
WE WILL offer Donald Malmberg, Barbara Hill,
Lee Wall, and Roger Berry immediate and full rein-
statement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
pay or other benefits.
WE WILL, upon request of the Union, reinstitute
the prior talent fee system of remuneration.
WE WILL resume broadcasting the 6 p.m. local
news.
WE WILL, upon request, bargain in good faith
with the above-named labor organization as exclu-
sive representative of the employees in the appro-
priate bargaining unit.
RJR COMMUNICATIONS INC.