WHLW

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1206 (N.L.R.B. 1980)

1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norman Mesnikoff, Receiver in Bankruptcy for
Mid-State Broadcasting Co., d/b/a WHLW and
Joyce Renaud. Case 22-CA-9049
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 7, 1979, Administrative Law
Judge Max Rosenberg issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed a brief in support of the Decision.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(4) and (1) of
the Act by discharging employee Renaud because
she had filed charges and testified against Respon-
dent in a prior Board proceeding. He dismissed the
complaint. We disagree.
Renaud filed charges and testified against Re-
spondent in a prior proceeding alleging her unlaw-
ful discharge in violation of Section 8(a)(3). On
September 29, 1978, the Board found her discharge
to be unlawful and ordered reinstatement with
backpay. 238 NLRB No. 174
On November 27, 1978, Renaud met with Re-
spondent's general manager, Seymour Abramson.
They agreed that Renaud should return to work on
November 29. Renaud testified that she told
Abramson that she was taking her daughter on va-
cation February 9 thru 12, 1979; that her hotel de-
posit was not refundable; and that she was notify-
ing him well in advance in order to prevent any
scheduling problems. Abramson told her to see
Downs, the program director.' Abramson testified
that he was not told by Renaud, or anyone, about
her vacation until February 2, 1979.2
According to undisputed testimony, Renaud told
Downs, who thanked her for the early notification,
noted it on his calendar, and asked her to remind
i Downs was not employed by Respondent at the time of the hearing
and did not testify.
2 In light of this conflict we do not adopt the Administrative Law
Judge's findings that there was "no essential dispute" regarding the con-
versation nor that "every witness .. on both sides of the barricades
. makes it abundantly clear that neither Abramson nor his wife" knew
of the scheduled vacation until just before it was to begin.
248 NLRB No. 155
him at a later date. In December, Renaud asked
Giase, who was the news director as well as her
immediate supervisor, if Downs had told him of
her vacation. He said, "no," but wrote the dates on
the newsroom scheduling calendar and said he
would schedule replacements.3
On February 7, 1979, Renaud was told by Giase
that Abramson refused to let her go on vacation
because he could not afford to pay her. Renaud of-
fered to take the vacation without pay. Giase re-
layed this to Downs, who informed Abramson.
Downs returned and told Renaud that it was not
that Abramson did not want to pay her but that he
did not want her to go. That afternoon Renaud at-
tended a meeting called by Abramson.4 Also in at-
tendance was Abramson's wife, Ruth-who was
the station manager-Downs, and Giase. Abramson
stated that not only was money a problem but also
there were no adequate replacements and conse-
quently the "quality of the air" would suffer.
Renaud stated that her plans could not be changed
without financial loss and she intended to go on va-
cation as scheduled. Abramson said that if she left
she need not return. Renaud left and she did not
return until July 3, 1979, when she was voluntarily
reinstated by Respondent.
At the outset we note that it is not, nor could it
be, contended that Renaud failed to follow station
policy for scheduling vacations. Under any view of
the facts, she notified her supervisor in sufficient
time to select and schedule replacements and
indeed, as testified to by all parties, replacements
were scheduled. The procedure followed by
Renaud in this instance is no different from that
which she followed in December when she took 3
days off. In fact Respondent argues that because of
her vacation in December Abramson reaffirmed his
policy that he alone would have the final word re-
garding scheduling. However, this affirmation was
only conveyed to Downs and Giase and there is no
contention that Renaud was told Respondent was
reconsidering approval of her vacation.
Respondent's argument is that business required
denying Renaud her previously scheduled vacation
and that it was not motivated by her part in the
earlier case. This argument fails under close scruti-
ny.
Abramson testified that while the lack of money
was a reason it was not primary, and yet he failed
to explain why, if it was not at least the main
reason, it was the first reason to be set forth. At
the hearing there was a great deal of discussion re-
garding the quality, or lack thereof, of the individ-
3 Renaud is a newscaster who is on the air for 5 minutes every hour
from II am. until 5:30 p.m.
4 Abramson claimed the meeting was held on February 5, but the date
does not affect our decision
NORMAN MESNIKOFF, D/B/A WHLW 1207
uals scheduled as replacements. But individuals
were available. Obviously, Respondent had to have
someone to replace Renaud, if for no other reason
than to cover for her scheduled day off or in the
event of illness. By taking the course it did Re-
spondent in no way corrected its "problem."
The Administrative Law Judge found that while
Abramson might be devoid of "familial compas-
sion" and had presented Renaud with a choice of
"motherly concern or employment," the issue was
not whether Abramson was insensitive but whether
the Act had been violated. We do not disagree;
"thus we are not necessarily concerned when a
particular disciplinary action seems to us to be ex-
cessive, unfair, or unwise. However, when it is al-
leged that the reason assigned for the discipline is
pretextual, our attention must necesarily turn to the
reaction of the employer." American Thread Co.,
Sevier Plant, 242 NLRB No. 10 (1979). Here, upon
learning that his best newscaster was leaving on a
5-day vacation, which admittedly was scheduled
and approved well in advance, Abramson immedi-
ately refused to allow her to leave. Initially he re-
fused because of lack of funds and later because he
was unhappy with her replacements; replacements
which were selected by Respondent's own news di-
rector. He attempted no accommodation or inde-
pendent investigation of the availability of other in-
dividuals. We find this severe reaction and total in-
transigency to an alleged problem which at best
was precipitated by Respondent's own management
is clear evidence of pretext. Cf. N.L.R.B. v. Dayton
Tire & Rubber Company, 503 F.2d 759 (10th Cir.
1974).
Respondent's defenses are inconsistent and shift-
ing, leading to the inference, which we draw in
this instance, that the real reason for denying
Renaud her scheduled vacation was because she
filed charges against Respondent and testified
against it in a prior proceeding. Shattuck Denn
Mining Corporation (Iron King Branch) v. N.L R.B.,
362 F.2d 466 (9th Cir. 1966). Accordingly, we find,
contrary to the Administrative Law Judge, that
Respondent has failed to overcome the prima facie
violation made out by the General Counsel herein,
that a preponderance of the evidence sustains the
General Counsel's contention that the reason given
by Respondent for the discharge of Renaud was
pretextual, and that she was discharged in violation
of Section 8(a)(4) and (1) of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent violated Section 8(a)(4) and (1) of
the Act by discharging Joyce Renaud because she
filed charges against Respondent and had testified
contrary to Respondent's interest at a Board-con-
ducted hearing.
3. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(4) and (1) of the Act we shall order that Re-
spondent, although having previously reinstated
Joyce Renaud, insure that her reinstatement is
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and that it
make her whole for any loss of wages she may
have suffered as the result of Respondent's unlaw-
ful conduct, with interest, as set forth in F. W
Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977), 5
and expunge from her personnel record all refer-
ence to the discharge and/or suspension.
ORDER
The Respondent, Norman Mesnikoff, Receiver in
Bankruptcy for Mid-State Broadcasting Co., d/b/a
WHLW, Lakewood, New Jersey, its officers,
agents, successors and assigns, shall:
1. Cease and desist from:
(a) Discharging and/or suspending employees
because they file charges against Respondent or
testify contrary to Respondent's interest at a Board
conducted hearing.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make Joyce Renaud whole for any loss she
may have suffered as a result of the Respondent's
unlawful action in accordance with the section
above entitled "The Remedy."
(b) Expunge from the personnel record of Joyce
Renaud any reference to her discharge and/or sus-
pension on February 7, 1979.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
' See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its radio station in Lakewood, New
Jersey, copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 22, after
being duly signed by an authorized representative
of Respondent shall be posted by it, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 22,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
e In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
We intend to abide by the following:
WE WILL NOT discharge and/or suspend
employees because they file charges against us
or testify contrary to our interests at a Board-
conducted hearing.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL insure that Joyce Renaud's rein-
statement is without prejudice to her seniority
or any other rights or privileges previously en-
joyed and WE WILL make her whole for any
loss of wages she may have suffered as a result
of our unlawful conduct, with interest.
WE WILL expunge from Joyce Renaud's
personnel record all reference to the discharge
and/or suspension.
NORMAN MESNIKOFF, RECEIVER IN
BANKRUPTCY FOR MID-STATE
BROADCASTING Co., D/B/A WHLW
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: This
proceeding was heard by me in Newark, New Jersey, on
September 14, 1979, upon a complaint filed by the Gen-
eral Counsel of the National Labor Relations Board and
an answer submitted thereto by Norman Mesnikoff, Re-
ceiver in Bankruptcy for Mid-State Broadcasting Co., d/
b/a WHLW, herein called Respondent. I At issue is
whether Respondent violated Section 8(a)(4) of the Na-
tional Labor Relations Act, as amended, by discharging
Joyce Renaud on February 7, 1979. Briefs have been re-
ceived from the General Counsel and Respondent which
have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The parties stipulated that the facts upon which the
Board asserted jurisdiction in a prior proceeding involv-
ing this Respondent are viable and applicable to this liti-
gation.2 Based thereon, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II1. THE AI.LEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent dis-
charged Joyce Renaud on February 7, 1979, because she
had filed charges against it under the Act and had given
testimony antithetical to its interests in the prior proceed-
ing, and that it thereby violated Section 8(a)(4) of the
Act. Respondent denies that it committed any unfair
labor practices in its dealings with Renaud on that date.
Respondent operates a radio broadcasting station in
Lakewood, New Jersey. At the times material herein,
Seymour Abramson occupied the post of general man-
ager, his wife, Ruth, was the station manager, and Timo-
thy or Tim Downs and John Giase were employed as
the program director and news editor, respectively.
In the earlier proceeding, the National Labor Relations
Board adopted an Administrative Law Judge's finding,
inter alia, that Respondent had violated Section 8(a)(3) of
the Act by discharging Renaud on August 28, 1976, be-
cause she had shown an interest in labor organizations
and had otherwise engaged in protected, concerted ac-
' The complaint, which issed on April 30, 1979, is based upon a charge
which was filed and served on March 2, 1979.
2 Vorman Mesnikoff Receiver in Bankruptcy for Mid-State Broadcasting
Co. d/b/a WHLW, 238 NLRB No. 174 (1978)
NORMAN MESNIKOFF, D/B/A WHLW 1209
tivities. The facts in that case revealed that, in October
1975, Respondent went into bankruptcy and a receiver
was appointed by a Federal bankruptcy court. 3 Follow-
ing this happenstance, rumors circulated that Respondent
was to be purchased by a station WOBM. Beginning in
May 1976, Respondent's employees, including Joyce
Renaud, conducted meetings among themselves to con-
sider this prospect and, in July 1976, a consensus was
reached to investigate the possibility of collective repre-
sentation by a labor union. Michael Rashkow, another
employee whom the Board had found in the original
proceeding to have been discriminatorily discharged
along with Renaud, contacted two labor organizations
which represented employees in the industry. For an
amalgam of reasons, the employees were unable to enlist
this collective support.
In late July or early August 1976, Rashkow was sum-
moned to the office of then Station Manager Michael
Cantoni where the latter informed Rashko% that he was
aware of the employees' organizational attempts and that
he was opposed to this activity. Cantoni added that he
was sure that General Manager Seymour Abramson
would also look with disfavor upon these endeavors if he
became aware of them. On August 28, 1976, Cantoni
telephoned Rashkow at home and notified him that he
had been discharged on that day because he was in-
volved with several other employees, including Renaud,
in a conspiracy to undermine Cantoni's authority by in-
jecting a union into the station.
Renaud began her career with Respondent in February
1976 as a part-time newscaster. Shortly thereafter, she
was upgraded to perform this role on a full-time basis.
Within a few months, she was assigned to the more re-
sponsible positions of disc jockey and public affairs pro-
gramming because of management's high regard for her
broadcasting talents.
While at work on July 4, 1976, Renaud was surprised
to see Cantoni at the station on the holiday. When she
remarked that they both deserved compensatory leave
because of their holiday duty, Cantoni launched into a
diatribe against labor organizations in general and men-
tioned that Respondent would not tolerate any such enti-
ties at its facility. On August 28, 1976, Renaud also re-
ceived a telephone call at home from Cantoni who an-
nounced that she, too, had been terminated that day be-
cause she had attended the employees' sessions at which
the topic of unionization was explored.
Following their discharges, Rashkow filed charged
with the Board on behalf of himself and Renaud in Sep-
tember and October 1976. On July 28, 1977, Renaud
gave testimony before the Administrative Law Judge in
that earlier proceeding which ran counter to Respon-
dent's interests. On May 22, 1978, the Administrative
Law Judge issued his Decision in which he found, inter
alia, that Respondent had unlawfully terminated Renaud
and he ordered her reinstated with backpay. On Septem-
ber 29, 1978, the Board affirmed that ruling.
Sometime in November 1978, Renaud was notified by
Respondent's receiver in bankruptcy that, in compliance
a Respondent remained in bankruptcy status at all times material to this
proceeding
with the Board's reinstatement order, Respondent would
put her back to work in her former position. Upon re-
ceipt of this intelligence, Renaud visited the station on
November 27, 1978, and met with General Manager
Abramson. During her stay, it was agreed that she
would return to duty as a newscaster effective Novem-
ber 29. Renaud testified that, before the meeting ended,
she apprised Abramson that she had made financial ar-
rangements to take her daughter on a skiing vacation
from February 9-12, 1979, to celebrate the latter's birth-
day, and that she was affording him advance notice to
forestall any problems about the leave. Abramson in-
structed Renaud to clear the matter with Tim Downs,
the program director. Later that day, she spoke to
Downs about her intended vacation plans and he assured
her that the absence would pose no difficulties in sched-
uling a substitute newscaster during that period. Downs
thereupon made a note of the February 1979 dates on his
desk calendar. However, the program director cautioned
Renaud to remind him again about her request leave "be-
cause I might forget."
It is Renaud's testimony that, when she returned to
work on November 29, 1978, she had occasion to speak
with Downs regarding her job status, although Renaud
failed to disclose exactly what had triggered this dia-
logue. According to Renaud, Downs told her that
Abramson "had threatened to fire me," although she did
not pinpoint, in point of time, when this threat was
made. 4 In this connection, Renaud also remembered that,
sometime in December 1978, both Downs and News
Editor John Giase had finished work and left the station
and, having certain ideas in mind about programming,
she decided to present them to General Manager Abram-
son. Before she could fully proffer her suggestions to
him, Abramson cut her short with the comment that "he
wasn't interested in anything that I had to say and, in
fact, didn't want me there."
Renaud further testified that, just prior to Christmas of
1978, she entered into a discussion with Downs about the
holiday scheduling for the newsroom and once again
broached the subject of her February vacation. Downs
remarked that it was a good thing that she had brought
the matter to his attention because he had forgotten all
about it, and he promised to remind Giase because the
latter customarily arranged the monthly work schedules
for the newsroom in which Renaud broadcasted. At the
end of December 1978, Renaud approached Giase and
inquired whether Downs had told him of her intended
ski vacation. Giase replied that Downs had not and that
it was fortunate that Renaud had mentioned the subject
to him because he knew nothing about it. Giase asked for
the dates of the requested leave and when she gave them
to him, Giase wrote the information on his personal cal-
endar.
4 In her testimony, Renaud claimed that she had spoken to both
Downs and News Editor John Giase "on a couple of occasions" about
her job status. However. Giase, who was called as a witness on behalf of
the General Counsel, could not recall any instance in which either Sey-
mour Abramson or his wife, Ruth, had mentioned that they did not wish
Renaud to work at the station any more. In fact, Giase remembered that,
a few weeks after Renaud's recall to work, Ruth Abramson merely asked
how Renaud was getting along on the job and Giase replied that she was
doing fine
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with the procedures which Respon-
dent's employees were required to follow in requesting
leaves of absence, the record discloses and I find that
newsroom personnel first transmitted their requests to
their immediate supervisor, John Giase, who in turn sub-
mitted them to Tim Downs. Downs would then convey
the information to General Manager Abramson for final
approval or rejection. The reason for this line-of-com-
mand procedure was to facilitate the long-range schedul-
ing of personnel as well as to provide information for
payroll purposes. When the requests reached Abramson's
office, his wife Ruth, who occupied the post of station
manager at this time, was able to type out the monthly
broadcast schedules for the newsroom.
As the 1978 Christmas season approached, Renaud
spoke to Giase about taking 3 days off during the holi-
day period. Giase approved the request without clearing
it with Abramson. During her absence, Giase assigned
Kryn Westhoven to cover Renaud's air time. Westhoven
normally was utilized by the station as a "bleeper," by
which is meant that his broadcast duties were restricted
to uttering one-line comments. Because Westhoven was
incapable of adequately performing these newscasting
chores during Renaud's absence, the Abramsons sum-
moned Downs and Giase and expressed their displeasure
at this substitution as well as the failure of the supervi-
sors to clear Renaud's absence with them. The Abram-
sons reminded Downs and Giase that Respondent's es-
tablished policy mandated giving the owners ample noti-
fication before leaves of absence were approved. The su-
pervisors assured the Abramsons that they would
comply with this directive in the future. It is undisputed
and I find that, during this meeting, neither Downs nor
Giase informed the Abramsons of Renaud's request for
leave in February 1979.
During the first week in February 1979, Renaud dis-
covered that she had misinformed Giase as to the span of
her intended vacation. She thereupon contacted Giase
and advised him that the starting date of her leave
should be February 8 rather than 9. According to
Renaud, Giase responded that the choice of a substitute
to cover the air time was the only problem which he
could foresee.On February 7, 1979, the day before her
planned departure, Renaud reported for work at the sta-
tion. She testified that when she arrived she spoke to
Giase who reported that the Abramsons would not sanc-
tion her vacation plans and he advised Renaud to consult
with her lawyer, a reference to counsel for the General
Counsel. When Renaud inquired into the reason for the
refusal, Giase stated that the Abramsons claimed that
they had no money to pay for the absence. Renaud
thereupon telephoned counsel for the General Counsel,
who represented her in the original proceeding, and
chronicled the incident to him. After informing counsel
that she would volunteer to take the time off without
pay, she hung up and relayed this proposal to Giase. The
news editor then consulted with Downs who in turn pre-
sented the matter to the Abramsons. Upon his return,
Downs remarked that he felt bad about the prospect of
Renaud losing her vacation pay, and suggested that he
might find a part-time employee to substitute for her so
that she might receive the difference between their re-
spective salary scales. Downs again contacted the
Abramsons and returned with the information that "It's
not that they [the Abramsons] don't want to pay you;
they don't want you to go." Renaud testified that she
never inquired into the reason for the Abramsons' posi-
tion in this regard.
Renaud further testified that, on the afternoon of Feb-
ruary 7, 1979, she was summoned to a meeting in
Abramson's office. In the presence of Downs and Giase,
General Manager Abramson informed Renaud that Re-
spondent had no money to pay for her vacation time.
When Renaud volunteered to take leave without pay,
Abramson accused her of being unprofessional. After
denying the accusation, Renaud stated that she had al-
ready made reservations for her vacation and had given
money deposits which could not be recouped. Renaud fi-
nally insisted that, because of these considerations, she
would take her vacation as planned. Abramson replied,
"[I]f you go don't come back." Whereupon, Renaud left
for her vacation on February 8, 1979, thereby relinquish-
ing her employment.
While Renaud related on direct examination that the
only reason advanced by Abramson for refusing to give
her approval for the leave of absence was pegged to fi-
nancial considerations, she then admitted on cross-exami-
nation that Abramson also commented that "the sound of
the air would be heard if I went." Renaud explained
that, in the jargon of the trade, this meant that "there
was nobody good enough to replace me." According to
Renaud, she pointed out that Respondent had a number
of employees who were available to replace her, and she
mentioned the names of Jeff Rafter and Bob Gitlin in
this regard. However, in her testimony, Renaud con-
fessed that she had no knowledge as to whether either
Rafter or Gitlin, whose names were listed on a schedule
for February to substitute for her, had ever handled a
newscast shift such as hers. Renaud also acknowledged
that, on no occasion from the time of her reinstatement
on November 29, 1978, to her meeting with Abramson
on February 7, 1979, had she ever asked Downs or Giase
whether they had sought approval from the Abramsons
for her leave in February 1979, or whether that approval
had ever been granted.
Rounding out Renaud's testimony, she received letters
on July 3, 1979, from the station as well as its receiver in
bankruptcy offering her immediate reinstatement to the
former position with an agreement to accommodate
some leave which she wished to take, an offer which she
accepted. 5 Renaud further testified that, on September
13, 1979, the day prior to the hearing herein, she was on
duty in the newsroom when General Manager Abramson
entered and commenced peering at the walls in an appar-
ent attempt to locate a scheduling calendar which the
General Counsel had subpenaed in this proceeding.
Renaud became irritated by the smoke which Abramson
generated from his cigarettes and remarked that, if he
would apprise her of what he was searching for, she
' General Manager Abramson testified that he was advised by Respon-
dent's receiver in bankruptcy to summon Renaud back to work on advice
of a Federal Bankruptcy judge in order to toll any backpay in the event
that Renaud's termination was found to be violative of the Act in this
proceeding.
---
NORMAN MESNIKOFF, D/B/A WHLW 1211
might be able to help him out. Abramson retorted, "I
don't want your help; I don't even want you here."
As chronicled above, the General Counsel asserts that
Joyce Renaud was terminated by Respondent on Febru-
ary 7, 1979, in violation of Section 8(a)(4) of the Act. To
sustain this legal stance, he must show by a preponder-
ance of the evidence that the motivating reason for her
separation was because she had filed charges with the
Board against Respondent alleging violations of that stat-
ute and had given testimony against it in support of those
charges. On the record before me, I am not convinced
that the General Counsel has sustained that burden of
proof.
There is no essential dispute, and I readily find, that
when she was interviewed by General Manager Abram-
son on November 27, 1978, Renaud informed him that
she had financialy committed herself to a vacation pro-
gram commencing on February 9, 1979, and that the
purpose of this respite was to take a ski trip in celebra-
tion of her daughter's birthday. Abramson thereupon ad-
vised Renaud to take the matter up with his next-in-com-
mand, Program Director Downs. Renaud did so on the
same day, and again reminded both Downs and her im-
mediate supervisor, John Giase, at the end of December
1978 of her projected vacation. Despite these reminders,
the testimony of every witness who testified on both
sides of the barricades in this proceeding makes it abun-
dantly clear that neither Abramson nor his wife, Ruth,
ever learned of Renaud's vacation plans until shortly
before her leave was to commence. As heretofore found,
Respondent maintained a policy which required that re-
quests for leaves of absence be timely channeled through
supervisory personnel for Abramson's ultimate approval
or rejection. The purpose for this policy was to insure
that Respondent's programming of air time could be ac-
complished without sacrifice of quality or person power,
as well as for payroll reasons.
When the Abramsons learned of Renaud's request for
leave, either on February 2 or February 7, they opposed
it on the dual grounds, as Renaud testimonially reported,
that they could not financially afford the leave and that
"there was nobody good enough to replace" her. With
respect to Abramson's asserted plea of poverty, this
ground for the denial of time off gains persuasive plausi-
bility from the circumstance that Respondent's financial
affairs had been placed in the hands of a receiver in
bankruptcy who was discharging his duties under the
watchful eye of a Federal bankruptcy judge ever since
1975. With regard to Abramson's concern that qualified
personnel were not available to spell Renaud during her
extended absence for 5 days, this, too, gains credible
plausibility from the testimonial utterances of all the wit-
nesses who were called to the stand herein. Thus, Station
Manager Ruth Abramson testified that when she asked
Program Director Downs for the identity of Renaud's
replacement Downs mentioned a Bob Gitlin and a Jeff
Rafter. The station manager testified, and News Editor
Giase corroborated her testimony, that Gitlin was a full-
time university student who was simply a trainee at the
station and had never worked a regular newscast sched-
ule in the limited time that he had been employed by Re-
spondent. Giase also related, in conformity with Mrs.
Abramson's testimony, that Rafter, another college stu-
dent who first started to work for the station only a few
days before Renaud's anticipated vacation, had absolute-
ly no experience in performing the full-time air duties
which Renaud had attended to, and Giase candidly ac-
knowledged that neither of these candidates had the ex-
perience at newscasting which Renaud possessed.
Indeed, Renaud admitted that an experienced person in
the news broadcasting field, such as herself, had the ad-
vantage of "poise and presentation" over her less experi-
enced counterparts. Moreover, on the work schedule for
January 1979, neither Gitlin nor Rafter was assigned to
any air time for that month.
Nor am I persuaded that Renaud's recollection of
statements assertedly made to her by General Manager
Abramson in December 1978 and on September 13, 1979,
lend probative weight to the General Counsel's legal
claim that Respondent once again discharged her on
February 7, 1979, to punish her for having brought it to
bar in the original proceeding. With respect to the De-
cember incident, Renaud claimed that when she attempt-
ed to press upon Abramson her suggestions about pro-
gramming the general manager informed her that he was
not interested in her comments and "didn't want
[Renaud] there." When this equivocal statement is
viewed against the backdrop of Respondent's policy of
channeling personnel relations through its supervisory
hierarchy, Abramson's retort is plausibly susceptible of
the interpretation that the repository for Renaud's sug-
gestions lay in Downs' rather than Abramson's office.
Similarly, when Renaud attempted to assist Abramson in
his search for the subpenaed scheduling calendar in the
newsroom on September 13, Abramson rejected her
proffer and his comment that "I don't even want you
here" is equally susceptible of the interpretation that he
desired that she leave the smoke-filled room rather than
Respondent's employ.
To be sure, Abramson's refusal to allow Renaud to
take a paid-for, long-planned, and highly motivated vaca-
tion atop the snow-capped Pocono Mountains to cele-
brate her daughter's birthday may portray a man totally
devoid of familial compassion. Indeed, one may genuine-
ly share in Renaud's frustration when Abramson present-
ed her with a choice between motherly concern and con-
tinued employment. Unhappily, the question posed in
this litigation is not whether Abramson offended the
basic standards of human sensitivity, but, rather, whether
he violated the National Labor Relations Act. On the
evidence before me, I am not persuaded that the General
Counsel has sustained his burden of proof that Respon-
dent discharged Renaud on February 7, 1979, because
she had filed charges and gave testimony under the Act
and thereby violated Section 8(a)(4) of the Act. I shall
therefore dismiss the complaint in this proceeding.
[Recommended Order for dismissal omitted from pub-
lication.]