Greater New York Broadcasting Corp.

In the Matter of GREATER NEW YORK BROADCASTING CORPORATION and I AMERICAN COMMUNICATIONS ASSOCIATION, LOCAL 16 Case No. C-2174.-Decided March 30, 1943 Jurisdiction : radio broadcasting industry. Unfair Labor Practices Intel Terence, Restraint, and Coercion: securing signatures to application blanks; unilateral change of lunch hour practice and requiring individuals to indicate by their signatures that they had read a statement containing the respondent's position on the lunch hour matter; conducting meeting during period of negotiating with the employees' representative urging them to take a position different from that being taken by their representative; threatening employees with reprisals if they engaged in the concerted activity of striking ; attempts to secure union information from known employee, to have him use his influence to promote the respondent's position, and impliedly suggesting his withdrawal from the union; attempts to get employees to desert strike action ; failure to answer an employee's request for a letter of recommendation; refusal to permit striking employee's use of facilities for free lance announcing as employees of independent contractors; allegation that respondent misrepresented that Board had no jurisdiction with respect to the issue of the appropriate unit or that respondent offered inducements to its employees to form an unaffiliated union, dismissed. Discrimination: tactical discharge of certain strikes found not discriminatory; refusal to reinstate striking employees by: reinstating those whom it chose; failing to give reinstated strikers substantially equivalent employment by: requiring them to sign new applications containing objectionable clauses and treating them as new, employees; certain reinstated strikers who were subse- quently released found not to have been discharged when contrary to Trial Examiner's finding that "but for deprivation of seniority rights . . ." they would have been retained, there was no evidence that they were entitled to seniority rights or that a system of seniority was followed in releasing the employees ; striking non-union employee found not to have been discrimina- torily denied reinstatement when no application was made by him or bn his behalf ; alleged misconduct found not to excuse respondent's failure to reinstate certain of the strikers. Collective Bargaining: majority established by signed authorizations ; respond- ent's refusal to bargain with the union until the union submitted proof that it represented a majority of the new group which it sought to represent for the first time, found to have been made in good faith and not to constitute a refusal to bargain ; majority status not dissipated by the hiring of new employees after strike was prolonged by respondent's unfair labor practices- refusal to bargain collectively during strike : individual dealing with pro- longing the stake ; attempts to get strikers to deal directly with the respondent; refusal to bargain concerning the reinstatement of the strikers ; duty to bargain not suspended by fact that strike may have been unwise and accompanied by wrongful acts. 48 N. L. R. B, No. 91. 718 GREATER NEW YORK BROADCASTING CORPORATION 719 Remedial Orders : respondent ordered to bargain collectively; reinstatement and back-pay awarded : striking employees who were not given substantially equivalent employment to be compensated for loss incurred by respondent's failure to accord them the rights and privileges they would have enjoyed upon full reinstatement; reinstated striking employees awarded back-pay to date their employment was non-discriminatorily terminated ; striking-super- visory-employee who engaged in deceptive conduct inconsistent with his duty to respondent not ordered reinstated or made whole for any losses he may have suffered. Unit Appropriate for Collective Bargaining : three groups formerly under con- tract, the technicians, announcers and sound effects men, constituted along with certain miscellaneous employees a single appropriate unit, although predominant form of organization in the radio field had been on a craft basis, when among other reasons the organization had shifted its organizational approach to an industrial basis, the consolidation of the groups constituted a logical development in self organization, and the groups, although varied as to skill and pay rates, were interdependent. DECISION AND ORDER On April 25, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Intermediate Report annexed hereto. Exceptions to the Intermediate Report and briefs were thereafter filed by the respondent and A. C. A. Oral argument ,was held before the Board on November 5, 1942, in which the respond- ent and A. C. A. participated. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The re- spondent has filed a motion to reopen the record for the purpose of introducing additional evidence. Since the respondent had ample opportunity to adduce such evidence at the hearing, and has advanced no reason why it failed to do so, the motion is hereby denied. The Board has considered the - Intermediate Report, the exceptions and briefs and the entire record, and hereby adopts the findings, con- clusions, and recommendations of'the Trial Examiner,, except in the respects noted below. 1. The Trial Examiner found that the respondent refused to bar- gain with A. C. A. on and after November 4, 1940. We agree with this finding and make the following additional findings in connection with the respondent's refusals to bargain on November 4: Cohen denied that he knew on November 4 that Largay or Kerr spoke to him at the request of A. C. A. He further denied that he knew on November 4 that A. C. A. desired to negotiate. He admitted, however, that Kerr 720 DIECISIONS OF NATIOaNAL ,LABOR' RELATIONS BOARD indicated to him that she had spoken to a representative of A. C. A. prior to her request. of Cohen to attend a conference between the respondent and A. C. A. Upon all the evidence, including the events of the preceding clay and Cohen's replies' to-the requests of Largay and Kerr that Cohen meet with A. ,C. A., we do not credit Cohen's denials. We find that the respondent knew on November 4 that Largay and Kerr were acting at the request of A. C. A., and that A. C. A. desired to negotiate with the respondent. 2. The Trial Examiner found that the respondent discriminatorily discharged Frances Hopkins and Rosalind Suchin on February 8, 1941. He based his finding upon the ground that "deprivation of the protection of seniority rights must also be assumed to have operated detrimentally to Hopkins and Suchin when they were discharged on February 8,1941." However, there is no evidence that these employees were entitled to such "seniority rights," or that any system of seniority was followed by the respondent in releasing various employees on February 8. Upon the entire record, we find that the evidence does not support the allegations ^of the complaint that the respondent discrimi- nated in regard to the hire or tenure of employment of Hopkins and Suchin on February 8, 1941. Our Order will not provide for their reinstatement, but 'ill provide that the respondent make them whole for any losses of pay they may have suffered prior to February 8, 1941. 3. The Trial Examiner found that the respondent discriminatorily 'refused to reinstate Otto Janowitz. However, no application for reinstatement was made -by Janowitz or in his behalf. We find that the evidence does not support the allegation of the complaint that. the respondent discriminatorily refused to reinstate Janowitz. Our Order will not provide for back pay in his case, but will provide that, the respondent offer him reinstatement, since he ceased work because, of the respondent's unfair labor practices. 4. The Trial Examiner recommended that the respondent rein- state Richard Norman with back pay. Norman's employment was terminated on May 10, 1941. The complaint does not allege and, the evidence does not show that Norman was discriminatorily dis-. charged on May 10, 1941. Our Order will not provide,for his re- instatement, but will provide that the respondent make him whole- for any loss of pay lie may have suffered prior to May 10, 1941. 5. The Trial Examiner recommended that the respondent rein- state Robert E. Study with back pay. Study was the chief engineer in charge of all technical operations and technical personnel at sta- tion WOV. His supervisory powers included the power to recom- mend the hiring and discharge of employees. Furthermore, since much of the respondent's technical apparatus was not of standard, type and had peculiarities known only to engineers familiar there- with, the position of chief engineer was one in,which management was entitled to have a person of complete reliability. Yet, although GREATER "NEW.Z ORK ' BROADCASTING: CORPORATION 721, J Stiidy .at first led K y to believe that lie would assist in returning the station to.the• air, he subsequently refused to do so, thereby en-: gagun'g in deceptive , conduct inconsistent with his duty to•respondent as chief engineer . Under these circumstances , we find that it would. not effectuate the policies of the Act to order the respondent to re-, instate Study or to make him whole for any losses of pay lie may have suffered. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations. Board hereby orders that the respondent , Greater New York Broad- castnng Corporation , New York City, and its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from: (a) Refusing to bargain collectively with American Communica- tions.Association , Local 16, affiliated with the Congress of Industrial' Organizations , as the exclusive representative of all announcers, in- cluding the program director ; technicians , including the chief en- gineer ; sound-effects men; and miscellaneous employees , the said miscellaneous employees comprising stenographers , typists, clerks, switchboard . operators , bookkeepers, censor, page boys , copyrighter, watchman , and translators employed by the respondent at its studios and its transmitter , but not including salesmen , musicians, publicity men, station manager, executives and officers; '(b) Discouraging membership in American Communications As-, sociatnon , Local 16, affiliated with the Congress of Industrial Or- ganizations , or any other labor organization of its employees, by refusing to reinstate any of its employees or in any other manner, discriminating in regard to their hire or tenure of employment or any terms or conditions of their employment; (c) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right of self-organization, to forin, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con- certed activities for the purpose of collective bargaining of 'other mutual aid or protection , as guaranteed in Section 7 of the National Labor Relations Act. - 2. Take the following affirmative action, which the Board -finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with American Communi- catioiis Associations, Local 16, affiliated with the Congress of Industrial Organizations; as the exclusive representative of all announcers; incliul- ing the program director; technicians, including the chief engineer; sound-effects men; and miscellaneous employees, the said miscellaneous 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARID employees comprising stenographers, typists, clerks, switchboard oper. ators, bookkeepers, censor, page boys, copyrighter, watchman, and translators employed by the respondent at its studios and its trans- mitter, but not including, the salesmen, musicians, publicity men, station manager, executives and officers, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to the employees whose names appear in Appendix A, , and to Otto Janowitz, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority or other rights and privileges, in the manner set forth in the section of the Intermediate Report titled "The remedy"; and place those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter in said manner, offer them employment as it becomes available; - J . (c) Make whole the employees whose names appear in Appendix A, and Rosalind Suchin, Frances Hopkins, and Richard Norman, for any loss of pay they have suffered by reason of the respondent's discrim- ination in regard to hire and,tenure of employment, by payment to each of them of a sum of money equal to that which he or she would normally have earned as wages and/or received as fees during the period from the date of the application for reinstatement on December 5, 1940, to the date of the respondent's offer of full reinstatement or placement on the preferential list as set forth in the section of the Intermediate Report titled "The remedy," less his or her net earnings 1 during such period; provided, however; that as to Rosalind Suchin and Frances Hopkins, said period shall not run beyond February 8, 1941, and that as to Richard Norman, said period shall not run beyond May 10, 1941; (d) Post immediately in conspicuous places inits studios and its transmitter, and maintain for a period of at least sixty (60) consecu- tive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order ; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of American Communications Association, Local 16, affiliated with the Congress of Industrial. Organizations, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of the receipt of tliis Order what steps the respondent has taken to comply herewith. 1 See Intermediate Report , footnote 100. 521247-43-vol. 48-45 GREATER, NEW YORK BROADCASTING _ CORPORATION ,,723 -IT; IS. FURTHER ORDERED that the_ complaint be, and it hereby is, dis- missed, insofar,as-it alleges that the respondent: (1) discharged any of its employees on or about November 3 and 4,1940; (2) discriminated in- regard to''the'hire or tenure of employment of Frances Hopkins and Rosalind Slichin on February 8, 1941; and (3)' discriminated in regard to the hire or ' tenure of employment of Otto Janowitz, by refusing to reinstate him: - MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order: APPENDIX A Sanford Alper Ann Murtaugh Joseph Zappulla Gaetano Ferri Arthur Olsen Olga Steinberg Maurice Kamke Alan Stratton Gilbert McDonald Vivian Murgia Robert Dickens Samuel Sokal Eric Potts Ellis C. Jones' Joseph Garafalo David Tanzman ' Solomon Lowenbraun Lena Corrado Charles Berry Karl Neuwirth Joseph Boley Walter, Graham Frank Polimeni Kennedy Ludlam Frank Kearney William Wegge INTERMEDIATE REPORT Mr. Millard L. Midonick, for the Board. Mr. Sanford H. Cohen and Mr. Henry H. Silverman, of New York, N. Y., for the` respondent. - Boudin, Cohn & Glickstein, by Mr. Leonard B. Boudin, of New York, N. Y., for A. C. A. STATEMENT OF THE CASE Upon an amended charge duly filed by American Communications Association, Local 16, herein called A. C A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York, New York) issued its complaint, dated August 13, 1941, against Greater New York Broadcasting Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the accompanying notice of hearing were, duly served upon,the respondent and A. C. A. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance: '(1) that on or about September 28, 1940, and at all times thereafter, the respondent refused to bargain collectively with A. C. -A., although A. C. A. had been at all times since 'September 14, 1940, the duly desig- nated representative of a majority of the respondent's employees at both its New York City offices and studios and its Kearny, New Jersey, transmitter in an appropriate unit comprising "all announcers, including the program director ; technicians, including the chief engineer : `sound-effects men ; and miscellaneous 521247-43-vol. 48-47 1724 DECJSIONS OF NATIONAL LABOR RELATIONS BOARD ,employees, the said miscellaneous employees comprising stenographers, typists, clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watch- man, and translators ..., but not- including salesmen, musicians, publicity men, station manager, executives and officers"; (2) that the respondent's employees went on, strike on or about November 3 and 4, 1940, because of the respondent's unfair labor practices and that said strike was prolonged by the respondent's unfair labor practices; (3) that on or about November 3 and 4, 1940, the respond- ent discharged 34 named employees and thereafter refused to reinstate them because they joined and assisted A. C. A. and engaged in a strike and in other con- certed activities, except that the respondent reinstated 12 of the strikers at various times during November and December 1940 and January 1941, and except that two of the 12 so reinstated were subsequently discriminatorily discharged in February 1941;'1 (4) that from about September 1, 1939, to January 3, 1941, the respondent's predecessor, International Broadcasting Corporation, herein called International_ and from about January 3, 1941, to date, the respondent urged, persuaded, warned, and offered inducements to its ^ employees to refrain from aiding, sympathizing with, becoming, or remaining members of A. C. A. or any .other bona fide labor organization; threatened said-employees with, and notified them of, discharge, demotion, and other reprisals if they should aid A. C. A. or members thereof or engage in concerted activities, and offered inducements to refrain from such activities ; notified employees of and inaugurated conditions of employment inconsistent with the provisions of existing contracts with A. C. A. in order to discredit A. C. A.; requested and required employees to sign docu- ments stating that the signer was to have no employment contract and could be discharged for any cause without notice ; urged and offered inducements to employees to"form, aid, and join an unaffiliated labor organization confined to the respondent's employees, and urged that employees negotiate directly with the respondent ; misrepresented to employees that the Board had no jurisdiction with respect to an issue concerning the appropriate' unit ; refused to discuss grievances with X. C. A. in, behalf of its members ; interrogated employees -concerning their concerted, activities and activities on behalf of A. C. A. and I The spelling of the names of the 34 complainants and the dates set out in this footnote have been conformed to the proof in accordance with motions granted at the hearing. Except where a complainant testified, the spelling of his name is based upon pay-roll records, as are the dates. An analysis of the pleadings thus conformed shows that The following 21 complainants never resumed work : Sanford Alper Walter Graham Ellis C. Jones Gaetano Ferri Frank Kearney Solomon Lowenbraun Maurice Kamke Ann Mur\taugh Karl Neuwirth Vivian Murgia Arthur Olsen Frank Polimeni Eric Potts Alan Stratton Robert E Study David Tanzman Otto Janowitz William Wegge Charles Berry Robert Dickens Joseph Zappulla The following 13 complainants did not resume work until the dates set after their names : James Capozucchi, Nov. 5, 1940 Samuel Sokal, Dec. 20, 1940 Leandro Forno, Dec. 2, 1940 Joseph Garafalo, Dec. 23, 1940 John C Schramm, Dec 3, 1940 Lena Corrado, Dec 23, 1940 Richard Norman, Dec. 12, 1940 Frances Hopkins, Dec. 30, 1940 Rosalind Suchin, Dec. 17, 1940, Joseph Boley, Jan 20, 1941 Olga Steinberg, Dec 17, 1940 Kennedy Ludlam, Jan. 20, 1941 Gilbert McDonald, Dec. 18, 1940 Of the above 13, Suchin and Hopkins worked only until February 8, 1941; the complaint alleged they were then again discharged and thereafter refused reinstatement. Two others of the above, Schramm and Norman, worked only until April 19 and May 10, 1941, respec- tively, but the complaint contained no allegation as to a second discharge as to either of them. As to McDonald, the complaint alleged he was not reinstated, the Board's position being that when he returned it was to ,a less desirable position. Thus, the complaint alleged that only 12 were "reinstated," while the answer alleged that 13 were "re-employed." GREATER NEW YORK BROADCASTING CORPORATION 725 with respect to differences between A. C. A. and the respondent ; discriminatorily declined to give references to employees and attempted to black-list and otherwise prevent employment with other employers ; and discriminatorily refused to permit A. C. A.' adherents the use of the respondent's facilities as employees of .an independent contractor which contracted for the use of its radio time and facilities - (6) and That the respondent, by all of the foregoing acts and each of them, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's answer, as amended at the hearing,' denied that the respond- ent had engaged in any unfair labor practices or that the unit alleged in the com- plaint was appropriate, and alleged that A. C. A. had gone on strike "while negotiations were proceeding. .. in good faith under -an agreement . . . that the question of the appropriate unit and majority representation would be deter- mined by the National Labor Relations Board." It further alleged, in effect, that 15 named employees 3 had been discharged on or about November 3 or 4, 1940, and that all but one of them thereafter had been refused reinstatement because they had committed, aided, abetted, assisted, permitted, or failed to prevent, the com- mission of acts of sabotage ; had breached reasonable rules relating to the use of the respondent's property and premises and persons permitted access thereto ; had signed'off the respondent's radio station without authority prior to its usual signing-off time; had barred the respondent from access to portions of its preen- , ises ; had used or permitted the use of the respondent's facilities to publicize a strike then in progress and the activities of A. C. A.; had interfered with the normal operation of the respondent's business ; and had committed other acts "in violation of the duties which such persons owed the respondent in their capacities as employees " The amended answer further alleged that 13 named individuals, 12 of whom had "voluntarily left the employ of the respondent" about November 3 or 4, 1940, had been "re-employed" upon certain specified dates,` and that Hopkins and Suchin had been discharged on February 8, 1941, for "good and sufficient cause." As to ,the remaining seven employees,' who were neither among those named as discharged,or those who resumed employment, the amended answer alleged that some of them requested "re-employment" but failed to receive it because the positions which they had formerly occupied had been filled by persons who had been promised permanent employment. Pursuant to notice, a hearing was held in New York City from September 18 to November 20, 1941, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and A. C. A. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case the respondent moved to dismiss the complaint. Ruling was reserved on the motion when made and when renewed at the close of the hearing. The motion is hereby denied. During the course of the hearing several motions were granted, without 2 The answer was filed at the opening of the hearing on September 18, 1941, the time for filing having been extended by the Regional Director. On September 30, pursuant to a request by the undersigned that its defense be made more specific, the respondent filed an amended answer. B The 15 employees allegedly discharged were Study, Alper, Ferri,'Kamke, Potts, Berry, Graham, Kearney, Olsen, Stratton, Dickens, Neuwirth, Pohmeni, Wegge, and Boley. Of these, Boley was later "voluntarily re-employed " I The 13 persons so "re-employed" and the dates upon which each resumed work appear in footnote 1. ' These seven were Zappulla , Murgia, Tanzman, Murtaugh, Janowitz, Jones, and Lowenbraun. 726 DECISIONS OF NA'TIO AL L^ABOiR RELATIONS BOARD objection, amending the complaint' and thd-answer in certain minor respects. Motions were also granted without objection conforming the complaint and the answer to the proof in regard to such matters as dates and the spelling of names. At the close of the hearing'the parties were afforded an opportunity to argue orally before the undersigned and'to file briefs. No oral argument was held. Briefs have been filed by the respondent and by A. C. A. Upon the entire record in the case and from his observation of the witnesses, - the undersigned makes the following : - FINDINGS OF FAGr l 1. THE BUSINESS OF THE RESPONDENT The respondent, Greater New York Broadcasting Corporations is a New York corporation with its principal office and broadcasting studios in New York City and its transmitting plant in Kearny, New Jersey. The respondent is engaged in the transmission by radio through, radio station WOV of entertainment, adver- tising, and intelligence into and through the State_ of New York and into and through the State of New Jersey. While the respondent's transmitter is intended to\cover the Greater New York Metropolitan Area, programs from WOV have been received at.points in the United States as far away as California and in foreign countries as far away as Australia. Programs are also transmitted by direct telephone line between WOV and radio station WPEN in Philadelphia and, upon occasion, WOV is hooked up with some New England radio stations to form a small network. The respondent's operations are conducted under a license granted by the Federal Communications Commission, herein called the F. C. C. The respondent admits for the purposes of this proceeding that it is engaged in commerce among the several States. On January 3, 194t1, the respondent, which was organized about July 1938, took over the business enterprise conducted through the medium of radio station WOV from International, which had operated WOV from about 1927. The same individual, Arde Bulova, owned the majority of the stock in and served as presi- dent of both International and the respondent. In taking over WOV,e the respond- ent continued to operate with the same general manager and staff, and to give • effect to the then existing labor agreements:' The undersigned finds that, for all purposes material in the instant matter, the respondent is the successor of International. II. THE ORGANIZATION INVOLVED American Communications Association, Local 16, is a labor organization affil- iated with the Congress of Industrial Organizations. A. C. A. admits to mem- bership employees of the respondent and was formerly known as American Radio Telegraphists Association, herein called A. R. T. A. 9 At the same time, the respondent combined WOV's schedule and facilities with those of WBIL Prior to January 3, 1940, International had operated both WOV and WBIL as part-time stations, using the same staff and studios but separate 'transmitters. After January 3, WOV was operated as a full-time station, broadcasting from 7 a. in. to midnight programs in English and Italian. 7 The contracts involved are described below. The general manager who was thus con- tinued was Hyla Kiczales. She was known at the station as Miss Kay and is herein called Kay. Most employees so continued had been on the staff for substantial periods. Of those involved herein, l'had started working at WOV in 1930; 2 in 1931; 1 in 1932; 3 in 1934 ; 4 in 1935,; 4 in 1936 ; 10 in 1937 ; 3 in 1938 ; and 5 in, 1939. GREATER ,-NEW YORK BROADCASTING CORPORATION 727 e - ' ,III THE UNFAIR LABOR PRACTICES A. Chronological statement of the facts 1. The development of self-organization and contractural relations The beginning of the development of labor relations at WOV antedates the respondent's acquisition of that station and was similar to that at radio station WPEN in Philadelphia in which Bulova secured majority stock ownership on August 24, 1939, and which Bulova has since continued to control. From the latter part of 1937 to about October 1939, Kay served as general manager and Robert E- Study as chief engineer at both WOV and WPEN. During that period, self-organization took place among the technicians and the announcers at each station along craft lines .8 The technicians were organized by A R. T. A. and the announcers by American Guild of Radio Announcers and Producers, herein called A. G. R. A. P. From November 1, 1937, to March 1, 1938, Kay entered into or renewed 4 closed-shop contracts, two for employees at each station., Thus, by the spring of 1938 Kay had signed two contracts with a craft organization, A. G. R. A. P., covering the announcers in WPEN and WOV, respectively. She had also signed two contracts wtih A R. T. A., a craft organization, thus covering the technicians at each station. The self-organization at WOV had followed and paralleled that at WPEN. During 1938, A. C A. became the successor of A. R. T. A. In the latter part of that year a constitution was adopted which changed the basis of organization from craft to industrial. While under A. R. T. A. effort had been'made to organize only radio technicians, the emphasis thereafter shifted under A. C. A. .so that all employees of radio stations except musicians and artists were included. On November 1, 1938, A. C. A. secured a contract covering announcers and miscellaneous employees at WPEN which was renewed twice after Bulova secured control of the station, first on November 20, 1939, and again on November 20, 1940. Among the miscellaneous employees covered were telephone operators, building maintenance employees, secretaries, stenographers, a bookkeeper,' and a music and record librarian ' During this same period the technicians at WPEN also were under contract with A. C. A. by virtue of the automatic renewal of a technicians' agreement signed March 1, 1938, to which A. C. A. had become the successor. Thus, since November 1, 1938, A. C. A. has had substantially all of the employees at WPEN under contract in what has been, in effect, an industrial unit. Turning now to the,employees at WOV, the coverage of the technicians and announcers under agreements' with A C. A., as A. R. T. A.'s successor, and A. G. R. A. P , respectively, continued without substantial changes, by virtue of' renewals, until the fall of 1939. On October 1, 1939, Kay, general manager of WOV, for International, and Leonard Oh], international vice president, for A. C. A., signed two closed-shop agreements. One covered for the first time ,two sound-effects men who had shortly prior thereto begun devoting their time to such work. The other covered the technicians, including the chief engineer. Both contracts were similar in their general provisions and were to run for a year. Some 4 months after the above development a further change took place. Ab9ut February 1, 1940, shortly after the respondent took over WOV, all of the an- , 8 The first contract covering technicians at WPEN was entered into in 1936, and A. R. T. A. first organized the technicians at WOV late in 1937. At both stations the technicians were organized, before the announcers. . " 8 The term, bookkeeper, was first used in the contract of November 20, 1940. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nouncers then employed shifted their affiliation to A. C. A. Thereafter, on March 16, a closed-shop agreement was signed by Kay for.the respondent, and Sidney Adler, chairman of the Atlantic Branch of the Broadcast Division of A. C. A., covering the announcers, including the program director. Its expiration date, like that of the technicians' contract and the sound-effects contract, was October 1, 1940. Thus, by the spring of 1940 self-organization at WOV had evolved to the point where A. C. A. had three contracts which were to expire as of even date covering, respectively, technicians, sound-effects men, and announcers. 2. The rise of friction in labor relations It was during the latter half of 1939 that friction arose between International and the unions, A. C. A.,and A. G. R. A. P., which then represented employees of WOV. During June and thereafter, without taking the matter up with repre- sentatives of either union or explaining the reason for so requesting,10 Kay in- sisted that employees sign printed application blanks. Those blanks contained the following statement just above the place for signature: I understand that I am to have no employment contract, that I am hired for no specific period of time ; that I can leave or be dismissed at any time for any cause without notice. During the summer of 1939, at least nine employees signed such applications. Some struck out the clauses to which objection was made. All had been employed for some time prior to their signing. About the first of September, Kay asked Study, chief engineer of the respondent, to sign such an application. A. C. A. had instructed its members not to sign. Study objected to the above clauses and told Kay that the men under his jurisdiction would not sign. Kay told Study that Bulova insisted that the applica- tions be signed. A G. R. A. P. also protested its members signing those applica- tions On September 26, 1939, the national president wrote that A G. It. A. P. could not allow its members to sign since the statement was contrary to its contract with International, and that any coercion upon the announcers to get them to sign would be "illegal and contrary to the spirit and letter of the Wagner Act." The contract in effect between International and A. G It. A. P. during the period of the above controversy provided that International could not discharge an announcer for union activity ; that 2 weeks' notice in writing of intention to dis- charge should be given ; that during such 2 weeks the matter should be subject to negotiation between International and the grievance committee; and that in event of disagreement as to the justification for discharge, the matter should be referred to an impartial arbitrator. A. C. A.'s contracts covering the technicians and the sound-effects men, respectively, contained similar provisions. There is no evidence that International then, or the respondent thereafter, made any attempt to reach an understanding with either union concerning such applications. These applications continued to be used. On May 20, 1940, without previously having taken the matter up with any representative of A. C. A, the respondent instituted a change which required that technicians and announcers take their lunch hour outside of the 8-hour work day., This change secured one additional hour's work per day from each employee involved. thus enabling the respondent to dispense with the services of two i0 The respondent adduced testimony to show that International 's reason for making the request was that a former employee was suing, claiming that he had an oral contract with the respondent. The respondent also contended that such blanks had -been used by companies controlled by Bulova for some period of time. Cohen testified that he told gay that the clauses objected to could be stricken. GREATER NEW YORK BROADCASTING CORPORATION 729. announcers and two technicians. Prior to the respondent's action, the practice had been to give technicians and announcers a 1-hour lunch period during the 8-hour working day, thus making the time actually worked 7 hours. The contracts then in effect covering technicians and announcers each specified the working day as 8 "consecutive hours," and each provided, "one lunch or rest period of sixty (60) minutes per day will be given." The above change led to protracted friction and was eventually arbitrated. The arbitrator's award was handed down on August.6. The respondent was required to reinstate the four employees ; to pay them amounts equal to earnings lost ; to give,, a week's vacation, with pay to one employee ; and to revoke its rule for the period of the effectiveness of the contracts. The arbitrator based the award on the express wording of the identical lan- guage of the contracts, and upon the previous practice at the station. He also pointed out that the respondent had failed to seek any change in the wording of the announcers' contract which had been signed shortly before the respondent had instituted the change, although it had had the idea of changing in mind for some 2 or 3 months before that contract was signed. At the arbitration pro- ceedings it was not questioned that the respondent's desire for increased profits was its motive for changing the lunch hour practice." The respondent did not comply with the award of the arbitrator but continued to keep.its lunch hour rule in effect. Thus, the enforcement of the award became a matter of litigation with which the activities of the parties discussed below' pertaining to the expiring contracts were interlaced 12 3. The developments in the fall of 1940 On September 1, Sanford H. Cohen, general counsel and treasurer of the respondent and general counsel of International, who has been associated with Bulova for over 20 years, wrote A. C. A. abrogating the announcers' agreement which was to expire October 1, 1940. The letter contained only a notice of abrogation. Thereafter A. C. A. began signing up miscellaneous employees, of which there were 17, one of whom had already signed in May when he had been working as a sound-effects man. On September 10, a second miscellaneous employee signed, and on September 11, two more. One. additional miscellaneous employee signed on September 13, another on September 17, and another on September 18. Thus, by September 18, A. C. A. had signed up seven of the 17 miscellaneous employees. On September 14, while the miscellaneous employees were being signed up, Adler`'' wrote Kay acknowledging the notice of abrogation which had been sent by Cohen,. ,and asked as "the sole and exclusive bargaining agency for the men concerned" in the abrogated announcers' agreement for a meeting "at your earliest convenience to discuss terms of a new agreement representing these men." On September 18, Cohen sent two more letters to A. C. A. One was. identical with the letter of September 1 except that it bore the seal of the respondent after Cohen's signature. The other letter contained only a brief "Likewise, at the hearing in the instant matter the Board did not seek to establish that the respondent was motivated by other than economic reasons in making the change. Rather it was the way in which the matter was handled which was put in question. "A. C. A. filed in the Supreme Court of the State of New York its motion , dated Septem- ber 12, 1940, for a confirmation of the arbitrator's award, and thereafter the respondent filed its cross-motion to vacate. It was not until November 2 , the day preceding the strike, that the court handed down an opinion confirming the arbitrator's award. "Adler v.as the representative of A. C. A. during the arbitration matter and during the negotiations before the strike. . 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - notice of abrogation of the technicians' agreement and was signed by' Cohen on behalf of International, with that corporation's seal and on behalf of the respondent with its seal On September 19, Adler wrote Kay acknowledging Cohen's abrogation of the' technicians' agreement and giving notice of the abrogation of the sound- effects agreement. He requested an early meeting to negotiate "terms of a new agreement representing the men covered in these departments." On Sep- tember 21, Cohen answered Adler's letter of September 14,1 requesting that Adler phone at his earliest convenience to arrange for a meeting. On Sep- tember 23, Cohen acknowledged the above letter of September 19, and indi- cated that he was awaiting a call. On September 28, pursuant to arrangement, Adler and a small committee of WOV employees covered by the expiring contracts met` Cohen at his offi ce .14 Adler presented Cohen with a- partial agreement which set forth conditions of employment for technicians and announcers and which, sought recognition as the sole and exclusive bargaining representative for the radio technicians, announcers, sound-effects technicians, chief engineer, censors, program director, page boys, telephone operators, translators, copyrighters, stenographers, book- keepers, and the transmitter watchman." The meeting of September 28 was the first occasion upon which A. C. A. had sought to represent the so-called miscellaneous employees. Cohen raised no question as to the right of A. C. A. to represent the 10 technicians, 10 announcers, and 2 sound-effects men then covered by closed-shop contracts. There is no evidence that he objected to their being grouped together in a'single contract. But he told Adler that A. C. A. had not represented the miscellaneous employees before and that-the request for their inclusion was absurd. He also asked to see proof of such representation. While Adler claimed to have sufficient proof, he said it was not the policy of A. C A to show it 19 Adler told Cohen that he could appeal to the Board, and Cohen said that if he did the Board would show him the proof. He insisted that he was not going to bargain for the miscellane- ous employees until he was showii'proof that A C. A. represented them. Cohen also emphasized that the respondent would insist that the lunch hour provision, to be negotiated be clearly worded so as to.exclude the lunch hour from the 8-hour work day,17 told Adler that he was going to send a notice concerning the lunch hour to the employees ; but did not indicate what the wording of the notice would be. Adler took no position concerning the sending of a notice on this matter. On September 30, the day before the contracts were to expire, all 22 announcers, technicians, and sound-effects men were asked to sign, and did sign individually, statements to the effect that' each had read and received a copy of a letter stating that the contracts were expiring ; that the respondent was bargaining collectively on wages and hours; and that pending such bargaining "you are at liberty to continue in your employment with the company until further notice at the rate of wages under which you have been working, and the hours are to I 14 Cohen's office was a few blocks away from the studios and offices of the respondent, which were then located at 123 West 43rd Street. ' " While some of the terms used vary from these used in the allegation as to the appro- priate unit in the complaint , the parties understood what employees were involved. 1e At that time A. C. A. actually had authorizations from 10 technicians, 6 announcers, and 2 sound-effects men . In addition it had 7 authorizations from miscellaneous employees, of whom there were 17, making a total of 25 designations out of the 39 employees in the unit sought. 17 Cohen testified that Adler admitted to him at one time that A. C. A. had no other contract in which the lunch hour was given as a part of the 8-hour day . At the hearing, Adler was unable to cite any instance where A. C. A . had secured such a concession. GREATER NEW YORK BROADCASTING CORPORATION 731 be S working hours per day exclusive of the lunch hour which lunch hour shall not be computed within the 8 working hours." Between October 2 and 'October 9, during which period Jewish religious holi- days occurred, Adler made several unsuccessful attempts to reach Cohen by tele- phone. About October 9, Adler finally did reach Cohen and asked him why he had been neglecting to meet to bargain Cohen stated that he had had other commitments which had made it impossible for him to meet Adler personally, and again asked about the miscellaneous employees. Adler said that A. 'C. A. was still determined to bargain for them. Also on October 9, Adler sent Cohen' a copy of a proposed contract which covered the same employees in one unit which had been included in the partial contract presented September 28, but in addition setting out proposed terms for the sound-effects man and the miscellaneous employees. Adler and Cohen next met on October 11 at Cohen's office Several employees were also present.18 Adler wanted to bargain for all of the' employees named in the.proposed agreement, but Cohen would not bargain for the miscellaneous employees without proof that A. C. A. represented them. The proof was refused. Cohen then said he would bargain for the other employees, but Adler would bargain only ,if the miscellaneous employees were included too. There is no evidence that any question as to separate contracts was raised. Adler asked Cohen if he wanted to go to the Board about the matter, and Cohen indicated that he did. That day, after the above conference with Cohen, Adler went to the Second Regional Office of the Board, herein called the Regional Office, and filed a representation petition. The unit asked for therein was the "entire staff," each category included in the proposed contract being set forth. The petition alleged that A C. A. represented "at least 75%" of the approximately 40 employees in the single unit, and that the question arose because the respondent contested A. C A 's majority of such employees and asked for an election. No meeting took place between the respondent and A. C. A. during the two weeks between October 11 and October 23. On October 17, the rest of the announcers signed A. C. A. designations, and on October 18, two more miscel- laneous employees signed, making a total of 9 out of 17 miscellaneous employees. Thus, by October 18, 31 employees out of 39 in the inclusive unit sought had desig- nated A. C. A. During this period, sometime about the middle of October, it was unanimously decided at a meeting of A. C. A. to take strike action in the event that the respondent refused to bargain. On October 23, representatives of the parties met at the Regional Office with Field Examiner Edna T. Kerr.19 A. C. A.'s position was that all four groups of employees should be bargained for as one unit and that it would probably strike the next day unless the respondent bargained on that basis. Cohen con- tended that each of the three groups formerly under contract constituted a separate unit,,thus leaving the matter of the miscellaneous group to be worked out. He was unwilling to commit the respondent to accepting the miscellaneous group even as a separate appropriate unit. During the meeting Adler presented 9 applications signed by miscellaneous employees to Kerr and indicated that in the event of any check of cards A C. A. did not want the miscellaneous group treated separately but desired a check of the unit as a'whole. The meeting ended inconclusively.20 21 No employee from the miscellaneous group was present at any meeting with the re- spondent prior to the strike. 19 The findings concerning the meeting of October 23 are based upon a memorandum made by Kerr, as interpreted in the light of the testimony of Adler, Berry, Cohen, and Kerr. 20 The Regional ,Office was later informed that the parties were negotiating on the' basis of four separate agreements , as is subsequently discussed herein. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 10 a. m. the next day, Lafount, the respondent's vice-president, told Study that a strike was scheduled for 11 that morning, and said to him, "Of course you will be included also." Study replied that he believed he would be and told Lafount that he would call Adler and ask him to come to the station so that they could discuss the situation. Adler arrived shortly before 11 o'clock. Upon his arrival, a conference took place which was attended by Lafount, Adler, and a small group of employees, including Study. Adler told Lafount that the negotiations had been making practically no progress and that he and the men felt that Cohen should be replaced by Kay, who knew the problems at the station and had negotiated previous contracts Lafount stated that Cohen should never have started the negotiations because he was too busy and did not know the conditions. Lafount also said that he would take steps to see that Kay con- tinued the negotiations. Later that daycKay called Adler and told him that, pursuant to Lafount's instructions, she was willing to meet. Upon Adler's insistence that they meet that day, Kay, who wanted to meet later, agreed to meet the evening of October 24. That evening, Adler, accompanied by a committee of 'employees including Study, met with Kay. Adler asked Kay to bargain for the single unit included in the proposed agreement which had been mailed to Cohen on October 9. Kay indicated that she would not bargain for the miscellaneous employees, and Adler insisted that A. C. A. was resolved to negotiate "for everybody included in the contract with no exceptions." 'Kay asked to be shown the cards of the mis- cellaneous employees. Adler told her that it was not ink accordance with their policy. He also indicated that such questions as unit and majority representa- tion could be determined by the Board. There is no evidence that Kay asked for any such determinations. Terms in the proposed contract were not discussed. It was agreed that Adler would telephone the next morning to find out what Kay would do regarding the miscellaneous group. About 10 o'clock the next day, October 25, Kay told Adler when he called that she was trying to get in touch with Bulova, who would "have to give his per- mission" before she could bargain for the single unit. She had not said anything the previous evening about having to go to Bulova for such permission. Adler indicated that they had been waiting "a very long time" and were anxious to get together as soon as possible ; that they did not believe the respondent was showing good faith in entering into collective bargaining ; and that since the employees were exasperated by such conduct, A C. A. could not go on tolerating it. Kay again asked for time in which to communicate with Bulova. Adler agreed to give her another hour, indicating that he would consider that hour a deadline after which A. C A. would take whatever further action it deemed necessary. By his last remark Adler intended to imply a threat of strike. Later that morning, after the lapse of more than an hour,, Kay called Adler and said that she had not been able to locate Bulova, and did not know when she could get him, but was going to keep trying throughout the day. Adler indicated that no more time could be given and that Kay could expect A. C. A. to take any action it deemed advisable. Kay replied, "Go ahead and do as you please" There is no evidence that Kay made any effort to contact Adler later that day, or in fact until arrangements were made several days later through Study, as described below 21 a Adler testified that gay gave him no time limit within which she was going to get Bulova and that her statement made him "feel she might not have even been trying." Fur- thermore , Cohen testified that early in October the officers of the respondent decided that they would not recede from their position on the lunch hour or on the unit. There is also evidence which indicates that during this period the respondent was anticipating a strike. Hillis W. Holt, who had for many years been closely associated with Lafount and had GREATER NEW YORK BROADCASTING CORPORATION, 733 That same day, October 25, Kay called a group of technicians, sound-effects men, and announcers into her office and discussed the situation with them. Shortly thereafter, nine of those employees signed a statement setting forth the' following account of what Kay told them : Now you know as well as I do what we are here for. You know about the difficulties between the station and your union. Now I've called you in here to discuss this matter with you in your own interest; You all have families to support, obligations to meet, some of you live from week to week. Most of us here have gotten along very well together for years. The union has acted in a very arbitrary manner insisting that page boys, secre- taries, and the like, be included in the same contract. The station is willing to negotiate separate contracts for the Announcers, Engineers, and Sound Effects men. If I want to fire a page boy why should you men be sacrificed? You know about the turnover among the page boys and others. I'm not threatening, you,. mind you, I'm just discussing this matter with you. But, remember the musicians' union situation. We see no reason why a contract can't be negotiated for you and an election will decide the position of the other groups. If necessary I can call Mr. Bulova to come over here to talk with you. Mr. Bulova is a very powerful man, he has plenty of money, and this can become a very tough situation . By the way, through an oversight,-due to all this pressure, the pay check wasn't signed, you won't be paid today but will be paid tomorrow. Remember the Labor Board has nothing to do with this issue. In describing the meeting, Charles Berry, an announcer, testified that con- cerning the musicians' strike, which had taken place about a year previously among the musicians at WOV and WPEN, Kay said, "Look what happened in the musicians' strike and if you lose your jobs you will not be re-hired." Berry was hazy as to his understanding of what Kay meant by her closing statement about the Board. At first he testified that he supposed "she,meant that the Labor Board would intervene in some.way." Later he testified that the state- ment "seemed to indicate a desire on Miss Kay's part to avoid red tape in the Labor Board perhaps." Berry also testified that John , Schramm 22 told Kay during the meeting that the employees had designated representatives to discuss matters for them and could not speak for themselves. Gilbert McDonald, a technician who signed the above statement, testified that Kay asked him personally whether he had enough money to be out on strike for several months, and that he replied that he did not. McDonald also testified that Kay tried to convince them that a strike would be futile ; -that they should go against A. C. A. in the "matter of insisting on a vertical con- tract"; and that Schramm indicated that he could not speak for the group. When asked about Berry's testimony that Kay warned that if they went out on strike they would lose their jobs, McDonald insisted that Kay made such served as traveling-consulting engineer among the several stations in which Bulova and Lafount are interested, testified that about the middle of October, after Lafount had taken Study into another room for a talk, Lafount told him that there might be a strike at WOV. Holt also testified that very near to the time of the strike he and Lafount, in a conversation at which he was not sure whether Study was present, decided that Study would operate the transmitter and he the studios in case of a• strike. According to Holt's estimate, such operation could have continued over a period of about a month on an 18 hour a day basis, with food brought in to hun and Study. 22 Schramm was the program director, and wasa member of A. C. A. covered by contract. He signed the above statement. - 734 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD- a remark and,that he thought she said, "If you go out on strike you won't get your jobs back." It is clear from the testimony of McDonald, a credible witness, that he be- lieved that Kay's talk constituted a threat. Concerning this point, toward. the end of his cross-examination by counsel for the respondent McDonald testi- fied as follows : Q. What was the specific threat that you understood she was making? State it for the record in your own words. A. By the nature of her statement, I took it to mean that Bulova had enough money, if we 'went on strike, to break us, and that the Labor Board would not be able to help us. And I took that as being an insinuation. Q. You mean, you understood the threat to be that if you went out on strike, Mr. Bulova had sufficient money so that he wouldn't have to ca- pituate to the demands of the union about a single unit ; is that correct? A. No, that he would break the strike and-that we would lose our jobs as a result of it. Kay did not testify. On the basis of the above-quoted statement signed by nine employees, the above supplementary testimony of McDonald and Berry, and the record, as a whole, the undersigned is convinced and finds that on October 25 Kay talked -with a. group of announcers, technicians, and sound- effects men without representatives of A. C. A. being present, and that she tried to persuade them that the position of A. C. A. as to a single unit was an arbitrary one which was standing in the way of the negotiation of separate contracts to their advantage ; that they should not sacrifice themselves for the, miscellaneous employees whose desires could be determined later by an election ; that she was willing-to call Bulova over to talk with them ; that to go on strike would cost then-their jobs because Bulova was sufficiently powerful and had suf- ficient money to break a strike ; and that the Board was not involved' in the issue. - On October 25, Kay gave Study a typewritten paper which she asked him to get the technicians to sign. The statement thereon was to, the effect that those signing would agree to negotiate with the respondent. Study did not attempt to secure signatures as requested. From Study's testimony, the only evidence on the matter, as the paper was not produced, it would appear that Kay was requesting Study to secure signatures to a statement requesting direct bargaining. However, while the matter is not without doubt, from the record as a whole the undersigned believes and finds that Kay was rather seeking Study's aid in getting the technicians behind a plan for immediate bargaining for the groups formerly under contract along the lines of her talk that day. Also about this same time,' Kay asked Study to find out just which of the miscellaneous employees were members of A. C. A. There is no evidence that he gave Kay such information. On October 25, Ralph Nardella, the respondent's sales manager, had a talk with Joseph Zappulla, a translator who was receiving $25 a week. Nardella told Zappulla that in a few days there would be a strike at WOV, and advised him to go to Kay and ask her for a job as an announcer. Nardella told 28 while no representative of A. C. A. was present it should be noted that it was cus- tomary, however, for whatever employees were free at a given time to serve as an employee committee during conferences with the respondent. 24 Study placed the request as being made the last week before the strike. i GREATER, NEW YORK BROADCASTING CORPORATION 735 ;Zappulla this would be to his advantage because he would get at least $35 a week.` ,- On the afternoon of October 25, Adler met at A. C. A.'s office with some of the WOV employees. They decided that Kay was half expecting a strike and did not, care if one took place and that they would make a further effort to bargain'. 4. The arrangement to proceed with negotiations The following day,'October 26, Joseph Kehoe, head organizer for the national office of A. C. A., telephoned Bulova and explained to him in some detail A. C. A.'s belief that the representatives of the respondent up to that point had made no effort to enter into collective bargaining. Kehoe tried to prevail upon Bulova to get someone representing the respondent to enter into collective bargaining. Bulova agreed that the respondent and A. C. A. ought to get together and he told Kehoe that he would communicate with him on Monday, October 28, the next 'business day. No such comunication on October 28, was received from anyone connected with the respondent However, on the morning of October 29, Kay called Study into her office and told him that it would be a good idea for Study to go to Cohen's office to discuss the negotiations to see if some method could be found-of helping the negotiations along since she felt they "were not progressing very fast." SB Kay instructed Study that he was to let Cohen believe that the 'idea had come from him and not from her. After the above conversation, and before he went to see Cohen, Study got in 'touch with Adler and told him that Kay thought it was advisable to see Cohen. Adler said that he felt that nothing could be lost by doing so. About noon Study had a conference with Cohen at the latter's office. At the outset Cohen wanted to know why such persons as page boys should be included in-the same unit with the chief engineer. Study indicated that he did not object to his problems being associated with those of a,page boy. Cohen then indicated that the respondent did not wish the chief engineer to be a member of A. C. A., as the respondent wanted to be free to put in anyone it desired. After further discussion, Cohen and Study reached an understanding that bargaining would proceed on terms and conditions of employment regardless of the unit question. It was understood that the terms for announcers , technicians, sound-effects men , and miscellaneous em- ployees were to be discussed, and that after,agreeing on all of the terms for all groups,'the understanding. on terms, when reached, was to be embodied in four separate contracts, all of which were to be signed. An election was then to be held 'to determine whether A. C. A. represented the miscellaneous group. If 25 These findings are made upon uncontradicted testimony of Zappulla which the under- signed credits . Zappulla was' one of the miscellaneous employees who had designated A. C. A. in September 1940. The respondent did not call Nardella , contending that be was not. authorized to represent the respondent. That Nardella was the respondent's sales manager is shown by his designation as such in the, "Radio Annual," an authoritative com- pendium of information concerning the radio industry. Nardella 's designation as sales manager therein was based on information furnished by Kay. From pay-roll records in evidence, it is evident that Nardella 's income frequently was in excess of that of Kay and Lafount. Under the conditions herein, the above remarks of Nardella to Zappulla are chargeable to the respondent. . 26 Study testified that he believed that Kay wanted him to assist her with the negotiations to strengthen her own position and help her make a good impression , inasmuch as he then understood that her term of employment would soon end., Kay's connection with the station did terminate the following January. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. C. A. failed to secure a majority designation of miscellaneous employees, that contract was to be torn up and the other three were to remain in effect 2T That same day, shortly after his talk with Cohen, Study telephoned Adler and explained the understanding to him. Adler thought it was a good idea and that they should proceed along those lines. Thereafter Adler called. Kay and asked for a meeting that night. Kay said that she was busy, but arrangements were made for a meeting the following night. 5. The negotiations-preceding the strike Pursuant to the foregoing arrangements, meetings were held between Kay and representatives of A. C. A. at Kay's office on October 30 and 31, and November 1 and 3.0 The first three were evening meetings which lasted several-hours. The fourth meeting was on Sunday and lasted from about noon to approximately 2: 15, at which time Kay left to keep an appointment with her physician. The four meetings were in effect a continuation of one another and are so treated herein. The only intervening event of significance was the opinion of Judge Steuer on November 2, confirming the arbitration award. Upon Kay's insistence, terms for technicians were considered first although A. C. A. desired to start with the miscellaneous employees. Thereafter, terms for the miscellaneous group, the sound-effectsmen, and the announcers were all discussed. During the first three meetings the discussions proceeded upon the basis of the integrated single contract previously presented, the parties going through that document and segregating the clauses pertaining to the particular group under discussion at the time. Prior to the last'meeting, Adler had four separate contracts typed up; Kay had insisted that this be done. When Adler handed Kay the four separate documents at the outset of the November 3 meeting, he told,her that by so doing A. C. A. was not abandoning its contention as to the single unit. That last meeting, which started about an hour late because Adler was delayed in getting the separate contracts typed, was devoted largely to a discussion of terms for announcers, and to a recapitulation covering all the groups, using the separate contracts as a basis _ for that recapitulation. At the end of the recapitulation, which Adler insisted upon in spite of Kay's desire to get away, the parties were aware of each other's contentions 2B Just before she left, Kay indicated that she would be willing to meet again on Tuesday, November 5, which was election day. Adler said he would let her know if A. C. A. desired to meet. During the course of the above negotiations, many of the proposed provisions covering technicians, announcers, and sound-effectsmen, which were in effect con- tinuations of former contractual provisions, were not objected to by, Kay. How- ever, several- requests for improved conditions, such as more favorable sick leave provisions, the fixing of a maximum period to be worked without relief, the 27 According to Study's testimony , the four separate contracts were agreed upon in order to facilitate an election in the miscellaneous group. It should be noted that there is some conflict in the evidence which it is not necessary to resolve as to whether or not the con- tracts were - actually to be signed before the election and as to whether the election was to be conducted by the Board or by the parties. 28 The findings covering the four meetings are based upon documents and upon testimony of Adler, Ohl, and Study , which the undersigned credits. Adler attended all four meetings and Ohl, the last three. Various • employees were also present, Study attending the first three. 2D From Adler 's annotations on his four copies of the proposed contracts , it is ' evident that on the matter of fire and theft insurance on technicians ' cars used on business for the respondent , Kay was going to make a further check as to the provisions in policies then being carried . The status of censor, bookkeeper and watchman was being held for further consideration, also. ,GREATER NEW YORK BROADCASTING CORPORATION 737 establishing of a minimum pay period, when overtime was required, and the setting of maximum elapsed time between work periods, were met with refusals. Salary increases were agreed to for two supervisors, whose differential was in- creased from $2.50 a week to $5.00, A. C. A. having asked a $10.00 a week differen- tial. In respect to salaries, Kay objected to any improvements in basic scales for technicians, • announcers, or sound-effectsmen, and to any improvement in the scale of fees paid announcers , on commercial programs." Kay , objected to a number of other provisions, among them one that the chief engineer not stand a regular watch. It had not been the practice for him to do so. Concerning the miscellaneous employees,. there were many disagreements. Kay contended that the bookkeeper, censor, and transmitter watchman, whom A. C. A. sought to include, should not be included in the miscellaneous group agreement. Key claimed that the watchman, whose duties in that capacity 3i were merely those of night watchman at the transmitter, was a confidential employee. She claimed that the censor, whose position had been included in an earlier contract with A. G. R. A. P., did work of such nature that, according to a government official, he could not be included. Kay also contended that the position of bookkeeper was confidential and should be excluded, and that Olga Steinberg, who was in fact doing the work of the bookkeeper, had been hired in March, 1939, to take the place of the former bookkeeper, and was carried on the pay roll as,a bookkeeper, was scarcely even an assistant bookkeeper. While A. C. A. asked a $21 minimum for bookkeepers, Kay would agree to no increase over the $19 a week being paid Steinberg.32 In the cases of most of the miscellaneous employees the small pay increases asked were not acceptable. However, in a few cases increases were agreed to. For instance, A. C. A. asked $40 for translators, and contended that Zappulla, then receiving $25 a week, and Lena Corrado, then receiving $17, were trans- lators. Kay considered Zappulla a translator and agreed to $30 a week for him. She was undecided whether Corrado, who was devoting most of her time to translating, should be considered a translator and given $25 a week or a secretary and given $24. It should be noted also that in exceptional cases, such as those of two secretaries, Sandbank and Murgia, who were already receiving $35 and $30 a week, respectively, the rates then being paid were substantially higher than any rates set out in A. C. A.'s proposals, which contained no secre- tarial classification but provided rather for stenographers at $24 a week. While the picture of the negotiations concerning the miscellaneous employees is far from clear,' the undersigned is of the opinion and finds that some of the dif- ficulties encountered in considering the miscellaneous employees arose from 30 At one point Kay did indicate that she would consider giving a $40 floor for technicians, but she told Study privately that she had -no intention of granting any increase above the $37 50 floor then existing A. C. A. was asking a $45 floor for technicians . In an agree- ment later given directly to technicians in July, 1941 , a floor of $50 was set for technicians, except that those with no previous broadcast experience were required to serve a proba. tionary period of not longer than 3 month at $40. 31 The watchman also did some maintenance work on the transmitter building. 32 While it is difficult to be sure from the somewhat confusing evidence on these negotia- tions, it is possible that Kay contended that her secretary , Mildred Rosenberg , usually called Miss Sandbank , was the bookkeeper whose position was confidential . Sandbank was responsible for making up the payroll, and had general supervision over the work performed by Steinberg. 33 This lack of clarity is due, among other things , to lack of any testimony by Kay, the uncertainty as to the chronological developments of the discussions, and the inconsistency between some of the testimony , unidentified as to chronological position in the sequence of ,events, and the specific annotations made by Adler on November 3 on the four contracts, which documents themselves were not discovered until after most of the voluminous testi- mony on the negotiations had been given. 738 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD such honest differences as- frequently complicate negotiations concerning em- ployees being included in bargaining relations for the first time. • During those four meetings, no objection was raised at any time to the closed shop. Kay repeatedly refused to consider A. C.^ A.'s• contention as to the lunch- hour matter, and rejected the clauses in the respective agreements intended to reserve previous rights and privileges . Contrary to previous practice , she refused • to agree to make the contracts retroactive to the expiration date of the former ones. There is no evidence that any economic reason was advanced for failure to. grant even the small increases asked in several categories , and it was known that-the respondent was then engaged in the expenditure of large sums for•new equipment and facilities . Kay did not explain her reason for many of the positions which she took during these meetings" 6. The initial period of the strike After Kay left the last of the abovermeetings about 2: 15 p . m. on November Adler and Ohl remained at the station . Both of them were convinced that Kay had- not been bargaining in good faith and both had had previous experience bargaining with her in drawing up earlier contracts. Adler and Ohl then held an informal conference in the program department with some of the men. Those men also felt that Kay was giving them the "dust off." After considering developments, the group decided that the only remaining course left for A. C A. was to go ahead with strike action in an, attempt to get the respondent to bar- gain in good faith. Accordingly, without any further notice to the respondent, plans were made to take the station off the air. In preparation for the strike , Ohl went to the transmitter at Kearny. Upon arriving, he informed those in the control room , where Adler was remaining, of his arrival.'' It was agreed that the transmitter would not be shut down until after an announcement signing the station off at the conclusion , about 3: 30, of the program then in progress . Accordingly, after that program had been com- pleted, Berry, the announcer then on duty , gave the regulation sign-off as required . by the, rules and regulations of the F C C. and added, by way of explanation of the unusual hour of the sign-off, that the station was going off the air due to labor trouble 38 Following Berry's announcement , the equipment at the studios and at the transmitter was shut down in'the customary way." "The above finding is based on the following testimony of Ohl, a highly credible tcrt- ness, who as vice president of the International of A. C. A. had had considerable experience during the previous year negotiating contracts: , The Witness. Well, if you asked her for a particular item and she would say no, you would say, "Why Miss Kay?" Then she would say, "Well, because." And that is as far as you got. 35 Communication between the transmitter and the control room at the studios was by telegraph key, operated by WOV technicians 30 Explanations of the reasons for interruption of service and for a sign-off at other than the usual time are a usual practice. Such explanations violate the rules of neither the F C. C nor the respondent. Berry had previously made explanations when situations arose which in his opinion required some explanation. In such cases, he had never attempted to consult either Schramm or Kay before making announcements , There is no dispute that Berry's explanation was merely that the station was going off the air "due to labor trouble " - He made no attempt to explain the nature of the labor trouble or to state the position of A.- C. A. - 37 Chief Engineer Study was not present *hen the station was taken off the air, nor were Neuwirth- or McDonald, transmitter supervisor and control room supervisor, respectively. Program Director Schramm was'not present,either. ` GREATER NEW YORK BROADCASTING CORPORATION 739 After the shut-down, Ohl remained at the transmitter, with a few technicians and Adler remained in the control room with several members of the staff as They were awaiting the arrival of representatives of the respondent, and were holding the staff in(readiness to put the station on the air if the respondent should demonstrate a willingness to show what they considered good faith in collective 'bargaining. About 4:30 that afternoon, Kay arrived at the studios accompanied by Samuel Kolin, the respondent's accountant- Upoh finding the control room door locked, Kay went to her office to get her keys.s0 Returning with her keys, she opened the control room door without knocking first. When Kay saw Adler 'and the group of employees in the control room, she was highly indignant,and ordered them'all to "get out" and to'give her their keys. As the employees left the control room, they turned in their keys to Kay. When they were all pro- ceeding down the hall toward the elevators, Kolin, after a whispered conversation with Kay, asked Adler to come into Kay's office while she remained outside in her secretary's office. From all the testimony the undersigned believes and finds that the door between the two offices was left open and that Kay could have overheard the ensuing discussion.4° 'Kolin attempted to persuade Adler to put the station back on the air, but Adler insisted that A. C. A. would not do so until the respondent demonstrated a willingness to show good faith in bargaining. Adler emphasized that A. C A. did not want "whole hog" and was willing to give and take if Kolin could get Kay to enter into discussions in that spirit. Kolin stressed A. C. A's lack of sportsmanship in striking and the size of the respondent's investment in the station. He insisted that bargaining was such a time consuming process that the respondent would not enter into discussions unless A. C ^A. put the station back on the air first. When it became evident that the respondent would not continue discussions unless the strike was first discontinued, Adler indicated that A. C. A. would have to stand upon its strike action. Thereupon, about 5 o'clock, Adler and the employees left. Under the, eircumstances,'tile undersigned believes and finds that Kolin, in spite of his testimony to the contrary, spoke with Kay's approval and hence acted as a representative of the respondent during the above discussion. Around •5 o'clock Kay telephoned Holt at his home near New York City and asked him to come in to put the station on the air. A little earlier she had talked with Study and was expecting him to come in also to assist in starting operations. 'Sometime after 6 o'clock Cohen arrived, and upon his arrival Kolin left. About 7 o'clock Holt, who was not familiar with the old type of equipment in use at WOV,41 and who in fact had never even visited the trans- - 38It was the usual practice at WOV and other stations for representatives of A. C. A. to visit members at their places of duty, including control rooms , when union business required . Such visits had been made repeatedly in the past without any objection from Kay 3° When this door was shut, as it usually was , it latched in 'such a way that it could be opened from the outside only , with a key. The finding as to Kay's going for her key is based upon,Kolin 's testimony . He also testified that he did not think that Kay knocked . on the control room door before entering. 4u The findings concerning this discussion and the events immediately preceding it are made upon testimony of Adler, Kamke and Alper which the undersigned believes . Accord- ing to Kohn, Adler repeatedly demanded that ,four contracts which he held in his hand be signed before the station would be put back on the air. While A. C. A. undoubtedly wanted to get contracts signed as quickly as possible , the undersigned does not believe that Adler made any such flat demand upon Kay since there were some matters not fully resolved, as Adler s own notations on those contracts show. Kohn further testified that Kay's position throughout was that the men should put the station on the air and resume negotia- tions on Tuesday as she said they had agreed to do. 41 Much of the equipment was not of standard type. In fact some of it had been built under the supervision of Study and Neuwirth in the transmitter workshop. 521247-43-vol , 48-48 I 740 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitter, arrived at the studios. Pending • Study's arrival, Holt began an in- spection of the equipment there. Study did not come to the studios that night as he was expected to do. Instead he telephoned,42 talking with Kay, Cohen and Holt. Cohen chided Study for not coming in as he had led Kay to believe he would do. Holt asked Study about the power supply and Study suggested that Holt,check the fuses. Study also told Holt, in response to the latter's question, that the power supply for the control room came from the same fuse,panel as the supply for-the lights. When Holt asked Study about the patch cords which were used in connecting up various pieces of equipment, Study informed Holt that he could not tell him where to place 24 patch cords. About midnight, after Holt was satisfied that he was able to operate the .studios, those at the studios left for the night. Shortly after 7 o'clock on the morning of November 4, Kay, accompanied by Holt and Samuel Lavit, went to the transmitter, for the first time after the beginning of the strike. There they found transmitter supervisor Neu- wirth and a technician, Frank Kearney. The strikers had not been previously asked to leave the transmitter, and the night before they had arranged among themselves to keep two men stationed there. Kay asked Neuwirth and Kearney to turn on the transmitter to see if it would operate. The men refused on the ground that to do so would be to engage in strike-breaking activity. Kay then told them to get out and they thereupon went outside the transmitter building.43 While Neuwirth ' and Kearney were outside the building shortly after the above incident, Lavit came out and talked with them. He urged them to go inside and turn on the equipment ; reminded them of what had happened- to the musicians during their strike and told them that they would lose their jobs ; and exhorted them to go back to work. They told Lavit they would not ,act as strike-breakers. Lavit went back into the building. Kay then came out and instructed Neuwirth and Kearney to leave the property altogether." The evidence shows that during the strike Lavit was frequently on the prem- ises of the respondent. He also talked with other strikers, as is discussed more fully below. He had been a client of Cohen's for some three years and was formerly a labor leader in an A. F. L. union. Concerning his relations with Lavit during the strike, Cohen testified, "I said in connection with the strike I consulted with him and he advised me in connection with matters then arising." Cohen admitted that he might have talked with Lavit about the situation before November 4, and that Lavit "advised" with him for about 3 weeks after No- 42 Study placed this telephone call about midnight while Cohen and Holt testified 'that the call came about 10: 30. 43 The above findings are based upon testimony of Neuwirth which the undersigned credits. Holt testified that after the,men had refused to turn on the equipment and Kay had told them to get out, one of them said as they we're leaving, "We will not be responsible for, any, damage that' is done to the equipment if anybody' else turns It-on ." -Neuwirth did not remember any remark other than their refusal to start the equipment because it would constitute strike-breaking activity. Only Neuwirth and Holt testified concerning this inci- dent. From Holt's testimony and the record as a whole the undersigned is of the opinion that even if such a remark were made, it does not create any presumption that Neuwirth or 'Kearney had knowledge of sabotage , especially since the equipment then in use was old equipment with the peculiarities of which only technicians who had operated it could be expected to be familiar. "The above findings are made on the uncontradicted testimony of Neuwirth which is credited. Neuwirth also testified, without contradiction as Lavit was never called, that about a week later while he and another striker were picketing outside the transmitter, Lavit came up in a police car with a policeman and, in the presence of the officer, -told them they were blocking traffic ; their cars were actually parked two blocks away . Further- more, according to Neuwirth, Lavit showed him into Kay's office when he went to the studios about two weeks after the strike started to collect some expense money due him. 'GREATER NEW.YORK BROADCASTING CORPORATION 741 vember 4. From the record as a whole the undersigned is convinced and finds that during the period of the strike Lavit was acting on behalf of the respondent with its knowledge and approval. About'7 : 30,the morning of November 4, Sokal, who had been serving as a'' 'page boy, received a telephone-call from Kay's secretary, who asked him to hurry down to the studios. When Sokal reached the studios he found Cohen using Kay's office. Cohen asked him what his job was and Sokal explained how, he had formerly done sound-effects work but had been demoted to page boy. Cohen explained that a strike had been called during the course of negotiations, and that Kay had had to leave the meeting Sunday to see her doctor. Cohen -told Sokal it was up to him what organization he cared to be loyal to, and that Sokal could have his sound-effects job back. Sokal considered the matter and' refused ; Cohen then told Sokal, "You are through," and opened the door. - During that same morning Cohen interviewed privately in Kay's office at least 11 miscellaneous employees, including Sokal.'' He had such a talk with Zappulla. After explaining to him the suddenness with which the strike had been called, Cohen asked, "Are you going to side with the union, with then people who are out, or with the company? If you are loyal to the company you will be well protected, but if you side with the strikers you will never be taken back." Zappulla indicated that he felt his choice was on the side of the strikers because, his salary was involved. Thereupon Cohen informed him that they had decided during the negotiations to increase his salary so that there was no reason for his going on strike. Zappulla decided to leave the matter up to A. C. A. As he was leaving ',the office, Cohen asked Leipzig, director of the WOV Artists' Bureau, which was also owned by Bulova, to see if he could persuade Zappulla not to go on strike. Leipzig then told Zappulla that he was doing a "foolish thing" and that he should stay because he did not know what was going to happen. However, Zappulla. decided to go on strike. Cohen also talked with Steinberg, whose status as a bookkeeper had caused considerable discussion during the negotiations. In that conversation the fol- lowing took place, as narrated by Steinberg : He [Cohen] 'asked me whether I would be loyal to the station or loyal to the union. He told me then if I was loyal to the station I would have nothing to worry about, and he also asked me what sort of work I did. I said I was a bookkeeper. He said he would not press me whether I wanted to stay or go out, because they could get a million bookkeepers. Cohen also told Steinberg if there had been any question as to an increase in her salary that he, was sure she-could have got an'increase-if she had "gone to anyone in the company." Steinberg, who had previously designated A. C. A. as her bargaining agent, decided to join the strike. Among those with whom Cohen had similar talks that morning were Murgia, Corrado and Murtaugh, each of whom informed Cohen that she chose to go on '5 Cohen admitted that he had such private talks , and from a list containing the miscel- laneous employees he selected only 6 employed at the station with whom he believed be did not have such a talk . The findings in the body of the report concerning the, several con- versations are based upon the testimony 'of the respective employees named. The under- signed 'is convinced that those employees understood,' and that Cohen intended them to understand,- that if they did not remain loyal to the respondent they were going to lose their jobs.' It is not clear that A. C. A. was then asking the miscellaneous employees to go out on strike, but in any event, Cohen , in spite 'of the respondent's previous position on the appropriate= unit, proceeded to require 11 miscellaneous employees to`decide whether to go on strike ; of those, 9 decided to strike. 1 742 DECISIONS OF: NATIONAL' LABOR RELATIONS BOARD strike.4i During his talk with Murgia, Cohen gave her the choice of remaining "loyal" to the firm or going out and losing her job.' In talking with Corrado, Cohen expressed himself so forcefully that she understood when she left that she was being fired because she decided to go on strike.47 When Murtaugh, during her talk with Cohen, informed him that she figured that the men were right, he 'told her that she was through. In addition to his conversations with miscellaneous employees, Cohen had a conversation shortly before 9 o'clock with Study who had come in to see Kay. She was at the transmitter and Study met Cohen. He was in a very perturbed state and told Study, in effect, that sabotage had been committed, mentioning fuses and scotch tape. He showed Study an open envelope which he closed before Study had a chance to see what was in it. Just before Cohen turned and walked away he told Study, "All you people who refuse to come back to work are through." 4 Sometime during the day, on November 4, James Largay, supervising mediator of the New York State Board of Mediation, telephoned Cohen after he had been L, requested by A. C. A. to intervene in the strike. Largay asked Cohen to attend a conference with himself and representatives of A. C A. in an effort to iron out the differences existing between the parties. Cohen stated that the re- spondent would not confer at that time, claiming that A. C. A. had violated its agreement to wait two days for a further conference, and that "certain sabotage had been 'committed." Within a few days following, Largay twice again called Cohen who continued to refuse to meet.45 On the same day; Adler called Field Examiner Kerr, explained that A. C. A. had struck, and said that Cohen was urging the "clerks" to quit A. C. A. and come back to work or they were through. He asked Kerr to prevent this. Adler explained that they had met with Kay and that she had given them only a few "crumbs" and had wanted to cancel certain things in former contracts. Adler said A C. A. was "tabling" its petition and that they would not go back to work until there was a signed contract for everyone," thus leaving "no reason now for any election." Following the foregoing conversation, A. C. A. called' 4e As of November 4, following Cohen's conversations, there were 34 out of 39 employees on strike The 5 non-strikers were all in the miscellaneous group One of those 5 was Way's secretary. Another, a relative of Kay's, was a telephone operator. The remaining three were respectively the censor, another secretary, and a page boy. 47 On cross-examination Carrado was not sure that Cohen had used the word "fired", but she was sure that he had given her that impression. 48 The above findings are based upon testimony of Study which the undersigned believes. Because of the choice which Cohen that morning was giving miscellaneous employees, and from his statement that afternoon to Kerr, set out hereinafter, the undersigned finds that the above statement of Cohen to Study constituted a threat to the strikers that-if they did not abandon the strike they would lose their jobs, and that it did not constitute a notifica- tion of discharge of all who were at the studios or transmitter during the time sabotage was allegedly committed The undersigned does not believe, in view of all of the circum- stances, that at the time of his talk with Study, Cohen had formulated in his mind any definite idea of just which 15 employees, the number the respondent later set, were present at the studios and the transmitter. The question • of the alleged sabotage referred to by Cohen is further considered in a subsequent division of this report. 49 The above findings are based on the testimony of Largay who testified from official memoranda The findings concerning telephone conversations between Kerr and others,in the succeeding paragraph are based on official memoranda , as interpreted in the light of Kerr's testimony concerning her memoranda. w Due consideration of the above statement , and of Cohen's statement to Kerr . set out below, has been given by, the undersigned in weighing the evidence concerning ,,the meeting with Bolin the day before It is plain that conditions had changed subsequent to that meeting , The respondent had accused A. C. A of. sabotage and had offered employees the alternative between coming back to work or losing their Jobs Also while A. C. A. was seeking the aid of governmental agencies in working things out , the respondent was not willing to cooperate. • ' GREATER-, NEW 'YORK ' BROADCASTING CORPORATION'- 743 again and asked Kerr to arrange a joint conference with the respondent at the Board 's office for that day. Later on November-4, Kerr talked with Cohen by telephone and asked for a joint conference between the respondent and A. C. A. at the Board's office for that afternoon. Cohen said the respondent would meet only if the men returned to work first. He said the "engineers" had carried on extensive sabotage amount- ing to "thousands of dollars" ; that fuses were blocked and gone ; and that the respondent would take proper steps and that engineers might lose their licenses. He said one of the engineers 51 had tipped them off- as to sabotage and that engineers at the transmitter had said that if the company tried' to start up the transmitter it would never start. In discussing the bargaining relations, Cohen told Kerr, among other things, that clerical workers had been discussed and issues had arisen which Kay had to discuss with the owner ; that Kay had agreed to meet on November 5 and Adler had said he would let her know ; that although the company had submitted its ideas regarding announcers, A. C. A. had not, and there had not yet been any negotiations concerning announcers ; that there was no reason for the strike as there were no issues which could not have been settled ; and that when Kay went to the station after it was taken off the air, Adler presented her with four contracts which he said had to be signed before the men would go back. Concerning the "clerical workers," Cohen told Kerr that as they came in that morning he spoke to each one, saying that he was not interested in whether they were in A. C. A. but that the respondent had to know what they wished to do; that there was a strike on and each one was free to go, on working or to go on strike ; that each one should decide and should be loyal to his commitments; and that those staying out would necessarily be replaced. At the close of the conversation, Cohen again indicated to Kerr that there would be no joint meeting until the strikers returned and explained the sabotage and told where the respondent's property was.5a Kerr then called Adler, who denied that any sabotage had been committed and stated he would not put the strikers back to work. ` On November 4, pursuant to instructions by telephone from Cohen, a Washing- ton law firm wrote the F. C. C. that WOV had gone off the air at 3: 30 Sunday afternoon, November 3, "because of labor difficulties, and it has not been possible to go back on the air because of certain damage caused to the technical equipment." The letter stated it was expected the station would be back in operation within a few hours and that the inspector in charge of the district had been notified. Later the same day a follow-up letter was written, stating that the station had gone back on the air about 4: 15 that afternoon. The second letter closed with the following paragraph : 51 During the hearing, the terms "engineers" and "technicians " were used interchange- ably Sz Concerning the above, certain things should be noted. Contrary to Cohen's prediction, no technician ever lost his license nor did the respondent ever institute any proceedings looking to that end before the F. C. C. In fact, two technicians, Study and Neuwirth, both of whose connections with the WOV strike were known to the F. C. C., later received tele- grams from the secretary of the F. C. C. inquiring whether they would be interested in positions as assistant monitoring officers at $2600 per year for the duration of "national defense." Even if Holt's testimony concerning sabotage were accepted as true, the alleged sabotage involved, at most, only a few dollars' worth of damage rather than the "thousands ° of dollars" mentioned by Cohen. It is significant that Cohen attributed Kay's desire for further delay to her having to take up certain matters with the "owner," and that Cohen did not say that Adler had agreed to meet on November 5, but rather that he would let Kay know. Cohen's statement that terms for announcers had not yet been taken up and that the respondent had submitted its ideas but A. C. A had not is contrary to all of the evidence in the record. In fact, in its brief the respondent bases its contention concerning the bargaining conferences , in part, on the fact that the parties "had discussed every clause of the proposed contracts." 1 744 DECPSIONS OF NATIONAL LABOR RELATIONS' BOARD An investigation is being conducted into the circumstances surrounding, the damage to the technical equipment of the-station, and a complete report will be submitted to the Commission within a-short"time. Admittedly no one representing the respondent ever submitted a written report- to the F. C C. of the respondent's investigation of the alleged sabotage. However, Holt testified as to two conversations by telephone with representatives of the F. C. C. According to Holt, he was called at his home the evening of November 4, by a representative of the F C. C., Bannister, who told him that he was at the transmitter making an inspection of the equipment, and asked what the men had done. Holt testified that he told Bannister what they had done and that they "had not taken an axe and broken anything up but that they had definitely messed up the equipment with the intent of keeping it off the air." Holt also testified that Bannister explained to him that the transmitter was then operating at reduced power which could be raised without undue damage. Holt further' testified that on the morning of November. 5,-he telephoned the New -York office of the F. C. C. at Lafount's request and talked with one," Batchellor, telling him' "exactly what had happened" and expressing again the opinion that while no one had taken an ax and broken things up the equipment had been tampered with to keep it off the air. Other than a telephone inquiry to A: C. A.'s office about November 6, by Bannister concerning three matters which were explained by striking technicians, there is no evidence that the F C. C. took any further action. While Study and one or two others were questioned about November 7 by local authorities, there is no evidence that the respondent had made any formal charges. No striker was ever brought to trial in any court or to hearing before the F. C. C. in connection with the alleged sabotage. 7. The developments during the strike After returning to the air about 4: 15 Monday afternoon, November 4, WOV continued to operate throughout the strike with a makeshift staff, including borrowed and part-time employees, a large ainount of overtime, and a high labor turnover. Leipzig, the director of the-Artists' Bureau, was used for 4 weeks as acting program director, and then for 3 additional weeks as an assistant in the program department. Two of the station's salesmen took over the sound-effects work for about 2 months. Holt, who served himself as chief engineer, secured the services of four out of town' technicians whose work together during their periods off from their own stations equalled approxi- mately the services of one full time technician. Some of the technicians first employed had had little experience and were on the pay roll for only a few days. Others came from other stations in which Bulova and Lafount were interested. With one exception they were all secured from outside the New York City Metropolitan Area. ' For several weeks the technicians operating the transmitter lived there and were given their meals. The amount of over- time paid technicians was very high, especially at the transmitter. For in- stance" one transmitter technician whose rate was $55 per week received as his total pay for the 4 weeks in November, $649.54 and for the 4 weeks in De- cember, $590.34.. A second transmitter technician who would have received $200 in November and December respectively upon the, basis of his $50 weekly rate, actually received, with his overtime included, $552.93 in November and '$537.84 in December. Of the studio technicians, the only two aside from Holt who worked 4 full weeks in November received, instead of $200 on the basis ss For the sake"of simplification , all figures given ignore social security\deductions and Christmas presents. GREATER NEW YORK BROADCASTING CORPORATION 745, of their $50 rate, the sums, $466 73 and $387.05, respectively. In December, the three studio technicians who worked 4 weeks at the $50 rate received, re- spectively, with their overtime, $463.29, $411.23, and $434.70. In the other departments, overtime during the remainder of 1940 was also high. The two salesien who took over sound-effects work at a base pay of $25 a week received $195.94 and $203.02 in November, respectively. In De- cember, during the last week of which neither worked any overtime, they re- ceived $184.20 and $17920 respectively. Leipzig, whose rate was $65 a week, ' received $467.83 in November and $377.03 in December. Substantial amounts in overtime were also received by the censor and the two secretaries who had not gone on strike. The respondent's records show that at one time or another during the first week of the strike 34 individuals were listed on the pay roll for work per- formed in the four groups comprising the inclusive unit. Holt was listed as chief' engineer, Leipzig as the acting program director, and the 2 salesmen as sound effects men. 'Three e men who were listed as watchmen each received twice the salary during that week which' the one watchman had' previously received. Three technicians, who started on November 4, left on November 5. The only striker to return that week was James Capozucchi, an announcer, who returned to work November 5 after convincing Cohen that he had not desired to "go on strike.54 After Capozucchi abandoned the strike, 33 employees re- mained on strike. Since, assuming' all of the foregoing to be properly classed as employees, the total number of persons employed at any one time during the week ending November 9 was never greater than 31,65 during that first week the number of strikers at' all times exceeded the number of persons working On November 6, Adler filed A. C. A.'s original charge in the instant matter, alleging that the respondent had refused to bargain collectively ; that it had attempted to bargain individually with employees ; and that the respondent had offered to reinstate certain strikers provided they would resign from A. C. A. That afternoon Adler wrote Kay a letter which was sent about 2 o'clock, registered special delivery. The contents of that letter read as follows : We are again asking for a meeting to negotiate a contract for the em- ployees that we rightfully represent. We are willing to meet with you at any time to bargain collectively for our members so that an equitable contract might be consummated. We are asking for your immediate consideration of this matter in view of the present circumstances. On November 7, Kerr advised the respondent by telegram of A. C. A's charge, and asked for a conference on November 8. Also on November 7, Kay 58 wrote a registered special delivery letter to Adler which read as follows : I am in receipt of your letter of November 6th. Early last week we agreed upon a procedure for negotiation for wages and hours for our,employees. This arrangement included a vote at the conclusion 51 However on November 4 Capozucchi had attended a meeting of another union and had made a speech urging that union to support the strike. , 65 The recoi ds show ,that four persons were working on November 3; 23 on) November 4; 28 on' November' 5, 8 having started that day while 3 left ; 30 on November 6; and on November 7 to 9, a total of 31. It was not until November 12 that the number of "employees" exceeded the number of strikers even on the basis of the respondent's revised figures. 55 At the hearing Cohen stated that of the letters written after the strike those signed by Kay had been written by himself with Kay's assistance ; those signed by himself, he had written ; and those signed by Bulova were written by Bulova with Cohen's assistance. While the names of the persons signing the'letters are sometimes used herein, the letters were from the respondent and A. C. A., respectively. 746 DECIISIO\S OF NATIONAL 'LABO'R RELATIONS BOARD, of the negotiations by those whom you did not represent in the past. We met in accordance with this arrangement on Wednesday evening, October 30th and commenced these negotiations. We met again on Thursday, the next evening, and when we had not reached, discussion as to the announcers, we adjourned until Sunday, November 2nd at 11 a. in. On Sunday you did not appear until 12: 15 when in the course of this discussion you submitted new requests on salaries that had already been submitted, discussed and 'completed the previous Thursday evening. At 2 p. in we had not completed our discussion and you still had not discussed your, suggestions for wages and hours as to the announcers. You agreed to meet with me on Tuesday, November 5th (Election day) at 10 a. in. to complete these discussions with the, understanding_ that you would confirm this meeting the following day, Monday. Shortly after this meeting on Sunday, I left the office to keep an appoint- ment with my physician. At about 4 o'clock that afternoon, upon reaching my home, I learned that the radio station had been taken off the air at,3: 30 p. in. This was without notice or warning of any nature or description to me or to any officers of the company. When an attempt was made to reinstate, service at the station and trans- mitter, it was found that this could not be done without the making of repairs because of acts of omission and commission which evidently occurred at about the time the station was taken off the air. Incidentally, when I came' to the station from my home, I found that you were apparently in full command of the property of the company and, it was at that time that you gave me an ultimatum that the employees who were then in and about the station would return to work if I signed four contracts which you presented to me. This was in violation of the agree- ment you made with me before you entered into the conferences above related and of your agreement to meet with me on Tuesday, November 5th for further negotiations. It was you who broke off negotiations That decision was yours and not ours. Those employees who were present when the decision was made to ,take the station off the air thereupon retired and left bur employ. Many of our employees did not know of the situation because on Monday morning they reported for work and were surprised at what•had happened. I was surprised at the disorder and damage which I found at the radio station that Sunday evening. The responsibility for these acts must be established and to which I feel that under the circumstances you should lend your assistance. I wish to state again that negotiations were discontinued by you and the employees who left their employment. Therefore, since we did not refuse to negotiate, I do not understand why you write asking for a meeting to negotiate when we had been doing that at the time you caused the "present circumstances". About the time of the above exchange of correspondence, Lavit had further discussions with some of the strikers. On' the morning of November, 6, Lavit saw Sokal on the picket line and told him, "You boys are foolish. Why don't some of you get together and come up and see Dir. Bulova." Sokal said he would have to wait to,see Adler. Lavit then said "Oh, no, get a couple of you together without the Union officials." Sokal agreed but indicated be desired to wait. About that time, one of the technicians came up and warned Sokal against Lavit. That afternoon Sokal reported Lavit's conversation at a meeting of A. C., A. The following day Lavit saw Sokal and told him he was ready to take him up J GREATER NEW YORK BROADCASTING CORPORATION 747 in a cab to see Bulova. Sokal said he had spoken to A. C. A. officials and would not go. On November 8, McDonald also had a conversation with Lavit which took place on the street not far from the studios. Lavit told McDonald that in his experience if a strike lasted over 2 weeks it was usually a long drawn out affair like' the musicians' strike He told McDonald, "The thing for you boys to do is for a few of you [to] get together and go up and see Mr. Bulova, but don't bring 'Mr. Adler with you or anyone from the Union, go up alone" Lavit said that Bulova was "a peach of a fellow" and that he had just come from his office. He also said, "I am sure he will take care of you." McDonald told Lavit that if they had wanted to go back without A. C. A. they would not have "gone out on strike to start with " McDonald also reported his conversation with Lavit at a meeting of A. C A 67 On November 8, Cohen and representatives of A C. A. met with Kerr in her office pursuant to her request ! Cohen took the position that the men had had no, right to take the station off the air; that Berry had had no right to make the announcement which he did ; and that because the station had been signed off and sabotage had been committed, those responsible would not be taken back. Cohen referred to A. C. A.'s letter of November 6 as "nonsensical" and took in effect the position, when asked if he would bargain with A. C. A., that until he was satisfied who was responsible for "destruction of company property, he would not consider entering into collective bargaining." The assistance of A. C. A. was not sought in fixing such responsibility." About the middle of November, the parties again became involved in the arbitration matter, submitting proposed orders and objections to proposed orders, pursuant to Judge Steuer's opinion of November 2. On November 20, an order was issued in which, among other things, the respondent was ordered to revoke its lunch-hour rule for the period of the effectiveness of the contracts. Upon resettlement, the final order and decree of the Supreme Court of the State of New York was entered on December 19, 1940 - On November 20, Cohen wrote Kerr a letter quoting excerpts from the Federal Communications Act to the effect that the F. C. C. had authority to suspend the license of ,any licensee upon sufficient proof that it had "wilfully damaged or permitted radio apparatus or installations to be damaged." The letter also pointed out that during the first 2 days of the strike, the station had failed to comply with the minimum regular operating schedule required by the F. C. C. This letter closed with the following paragraph : This taking of the station off the air could not be considered beyond our control. Engineers were available to reinstate service but it was the damage and manipulation to the apparatus at the New York City studio and control room and at the transmitter which caused this, for which we have a respon- sibility, as our then employees were in possession and control bf the equipment. Also on November 20, the Bulova controlled station WPEN, renewed an agree- ment continuing for a year A C. A.'s coverage of its announcers and miscellaneous employees. That same day Kehoe, A. C A.'s head organizer, who had telephoned Bulova on October 26, wrote Bulova a letter on behalf of the WOV employees. After reviewing the situation extensively, the letter ended with a plea that Bulova "'The above findings are based upon uncontradicted testimony of McDonald and Sokal which the undersigned believes. 68 The findings above are based upon an analysis of the testimony of Adler, Berry and Cohen, considered in the light of the entire record. Kerr did not 'testify concerning the conference of November 8. ' 748 DECISIONS OF NATIOINAL LABOR RELATIONS BOARD consider the problem "with an open mind" and "in the light of similar requests granted by other stations to their employees". On November 23, Bulova answered Kehoe's letter. The following are excerpts from Bulova's reply : It was felt by the management that the employees in insisting that the lunch hour was to be included as part of the working hours were taking an unfair advantage because of the fact that there were no other radio stations in the City of New York, under the jurisdiction of your union, functioning on this basis. ... Miss Kiczales did not refuse to engage in bona fide collective bargaining, but was actually in the midst of such bargaining when, as you stated "the strike was called " It was in her absence, and without notice to the manage- ment, that the station was taken off the air, which was a violation of the Federal Communications Act and its rules. You understand that the station operates under a license and the management is responsible for the act of its employees. In addition, the studio and transmitter equipment was found to have been tampered with, making it impossible to reinstate service for a period of 25 hours ' This matter is still under investigation to fix the individual responsibility therefor. All the above acts warrant the discharge of those who committed or permitted the'commission of these acts. I am sure you will agree with me that acts of this kind are difficult to condone and can only be committed by irresponsible people. I have had negotiations and business relationships with various labor organi- zations, but have never had an experience of this kind. I am happy to say that such conditions never existed in any of the enterprises in which I have been interested. I have been a practical mechanic and worked at the bench myself, and feel that I have a pretty good understanding of labor and its important relationship to successful management. In conclusion, as I stated at the beginning of this letter, the facts indicate actual collective bargaining, which was terminated by the men and not by the management. On November 27, Cohen held a telephone conversation with Boudin in which he took a position relative to continuing negotiations substantially like that taken in a letter which Cohen wrote the next day to Kerr. The body of Cohen's letter of November' 28 to Kerr follows : Following our talks yesterday and today in.which you suggested that I meet with the attorney for the Union and continue negotiations, without prejudice to the position heretofore asserted by my client, I have discussed your suggestion with my client and can advise you as follows : My client is willing to have me meet with the attorney for the Union to continue negotiations with respect to such of the employees as are represented se It should be noted that the 25 hours was elapsed time from 3: 30 p. in November 3 to 4: 15 p in. November 4 The station was not scheduled to operate from midnight to 7 a. in, and the respondent's own evidence shows that no technician was working on the equipment either at the studios or at the transmitter during the period from midnight to 7 a. in., although test, maintenance, and repair work was customarily done during those hours when ,the station was not scheduled to be on the air. Also while it would have taken at least two technicians to reinstate service, one at the studios and one at the transmitter,' there is no evidence that any technician other than Holt was available to the respondent until the morning of November 4. 1 GREATER NEW YORK BROADCASTING CORPORATTON 749 by the Union, upon the express condition that the Union first recognize that the employees whom we regard as responsible for the acts of sabotage, of which you have already been informed, will not under any circumstances be permitted to return to the employ of the station. As I have previously stated to you, because of the public nature of the business of my client and its responsibility to the Federal Communications Commission and the public in general, it cannot place itself in a position of rendering possible a repetition of the acts of sabotage which were committed on November 3, 1040. Those acts, as you know, kept the station off the air for twenty-five hours, thereby subjecting, my client to possible criticism and charges by the Federal Communications Commission which conceivably might result in a revocation of the license under the Federal Communications Act and its rules. Under the circumstances, and considering the seriousness of such possible consequences, my client will not bargain with the Union in respect to the employees whom it regards as responsible for those acts and who were properly and justifiably discharged for such cause. With such express understanding my client is quite agreeable to continue negotiations with the Union in respect to any other employees whom the Union may be authorized to represent. This, too, would be expressly without prejudice to any rights or remedies of my client since you will understand that thus far no evidence has been submitted to my client by the Union to establish that it represents a majority of the employees in the various units as to which it seeks to continue negotiations. If such an arrangement is satisfactory to the Union I shall be pleased to meet with its attorney at any time mutually convenient. On November 30, at Cohen's request and in consultation with Cohen, Holt prepared a four-page statement concerning the alleged. sabotage. The statement was never submitted to any representative of any board, commission, or govern- ment department or to A. C. A 80 It was put in Cohen's desk and first used at the hearing as a basis for the respondent's examination of Holt. Concerning his reason for asking Holt to prepare the statement, admittedly the only written statement ever prepared concerning the alleged sabotage, Cohen testified in part, "I was getting a statement that a lawyer usually does from a witness." On December 2, Allen S. Haywood, Director of Organization for the Congress of Industrial Organizations, wrote Bulova from Washington to the effect that he had tried to reach him by telephone to arrange a conference. The letter con-, eluded with the following paragraph: I take this opportunity of suggesting to you that you meet with our Regional Director in New York in a bona fide effort to,arrive at a mutually satisfactory solution of the pending dispute. On December 2, a second striker, Leandro Forno, returned to work. Like Capozucchi, the first striker to return, Forno was also an Italian announcer. On December 3, a third striker, Program Director Schramm, returned to work after a personal talk with Cohen. 8. The events surrounding A. C. A.'s request that the strikers be reinstated On December 5, A. C: A., over the signature of Adler, wrote the respondent a letter addressed to Kay which opened as follows: 41 A few days later, Holt made an oral statement concerning the matter to Kerr. 750' DECISIONS OF' NATIONAL,-LAB OR ,IRELATIONS1 BOARD' On behalf of the employees of'Radio Station-WOV, presently on strike, we request that the following employees be immediately reinstated to their regular positions : The rest of the letter consisted of 31 names. All of the 31 persons named except one are complainants herein. Conversely , all of the 34 complainants herein, set forth in footnote 1 above, were named with the exception of the three strikers who had already returned, Capozucchi, Forno, and Schramm, and the one striker who had not designated A. C. A., Otto Janowitz. On December 6, the respondent, over the signature of Kay, replied to A. C. A.'s request for reinstatement. ,The contents of that reply follow in full : This will acknowledge receipt of your,letter of the 5th inst. in which you request that we immediately reinstate 31 individuals whom you characterize as our "employees". In reply thereto we herewith state our position in regard to that request and our reasons therefor, much of, which you, are already familiar with from our prior correspondence to your Union,, to the Labor'Board and various, conferences. On October 30, 1940, after certain preliminary talks, we met with you and commenced negotiations with-respect to terms and conditions of employment of the employees whom, you claimed to represent.- These discussions were continued on October 31st and again on Sunday, November 3rd when, at 2 P. M., discussions were adjourned to continue the following Tuesday, November 5th at 10 A. M., . During all of the discussions we acted in absolute good faith with a bona- fide intention of bringing the discussions to a satisfactory conclusion, to be embodied in formal contracts. To that end we acceded, during the negotia- tions, to numerous requests made by you with relation to the terms of the contract In other words, we were actually bargaining in good faith. Notwithstanding that and at about 3: 30 P. Al. on Sunday, November 3rd, without previous notice to us of any kind and without our knowledge and consent our station was taken off the air. Investigation disclosed that certain of the employees were responsible for this and, among other things, had seized control of our property, locked themselves, together with a Union representative, in the Control Room, barred us from access thereto and also to other rooms at the Station and committed physical acts of sabotage both at the Studio and Transmitter which kept the Station off the air for twenty-five (25) consecutive hours.' During that period requests on our part to the employees, who were under the duty to put and keep the station on the air, to do so, were refused. . The occurrences and the situation at the Station on that day. were set forth in our letter to your Mr Adler on November 7th ; and the National Labor Relations Board has similarly been advised. Needless to say those whom we regarded as having been guilty of or having participated in or aided and abetted in the aforesaid illegal acts were forth- with discharged. Included in this category were 9 radio eligineers, 5 Eng- lish announcers and one sound-effects man.81 This much our investigation up 61 It should be noted that no names were given by the respondent until about two weeks later when only 12 names were conveyed to A C A. through Kerr. At the time the above letter was written , there were only 5 English announcers still on strike , Berry, • Stratton, Norman , Boley, and Ludlam When the above paragraph is read in conjunction with the fourth paragraph following it, it is evident that two Italian announcers, Polimeni and Ferri , were the ones considered reemployable by the respondent since the English announcer who had returned was Schramm and the two Italian announcers who had returned were Capozucchi aid Forno . Furthermore it should be noted that Italian programs were not broadcast after noon on Sundays , and that the strike started at 3: 30 on Sunday afternoon. Hence presumably Polimeni and Ferri had left the station before the strike started. i GREATER,NEW YORK,, BROADCASTING C'O'RPORATION 751 to the present time has disclosed. Further investigation may increase or decrease that number. In addition to the 15 employees thus discharged one additional engineer, one additional English announcer, 4 Italian announcers, one additional, sound effects man, and 12 general employees left our, employ. We immediately supplied ourselves with a new staff of employees, to all of whom we have given assurances of permanent employment, and who =are now presently 'employed by us. Some of these employees, assisted in restoring service ,to the radio station, which service had been stopped for 25 hours as above set forth. You are no doubt aware that the interrup- tion of such service was fraught with the gravest consequences to the Station in view of the rigid rules and regulations of the Federal Com- munications Commission and our duty to the public. 'In this situation our position is that the 15 employees above described who were guilty, directly or indirectly, of the illegal acts committed at the Station and Transmitter on November 3rd were justly and properly discharged for cause and are no longer our employees. We will not re- employ them. With respect to the other employees who left our employ, as we under- stand it in response to a strike call by the'Union, our position is that since the alleged strike was not the result of any unfair labor practice on our part and since it was called at a time when we were actually negotiating and bargaining with the Union in good faith, we had every right to fill the positions left by,them with others who accepted the same upon our assurances of permanent employment. We do not recognize that we are now under any duty, legal, equitable or moral, to discharge those persons in order to re-employ those who saw fit to voluntarily leave under the circumstances stated, or to create new or additional places for them. However, we advise you that one English announcer and two Italian announcers who were not included in the above category of discharged em- ployees, subsequent to November 3rd, requested us to re-employ them and we did so and they are now included in our present staff. Moreover, we desire to inform you that at the present time our staff is slightly smaller- than it was on November 3rd and that a few positions are therefore available which we would be willing to fill by re-employing some of our former employees who left our employ and who were com- pletely innocent of any of the illegal acts above described. We would be willing to do so provided that those few to be re-employed from that group be selected in some fair, impartial and equitable manner satisfactory to the National Labor Relations Board. We make this statement upon the express understanding that it is not a waiver and is without prejudice to our po- sition above stated, namely, that we are under no duty to re-employ the former employees discharged for the causes above stated, ^ or those who left our employ and were replaced by others under the aforesaid assur- ances of permanent employment. If there is a disposition on the part of any of our former employees in the category abovementioned to' accept reemployment to the few available positions, please advise and we would be willing to discuss with the Na- tional Labor Relations Board the method of choice. On December 9, Bulova answered Haywood's above mentioned letter of De- cember 2, in which Haywood had suggested a meeting., The body of Bulova's reply follows : I am in receipt of your letter of December 2, 1940. , According to the information given to me by the management and the attorney for radio station WOV,' the American Communications Associa- 752 DECISIONS OF" NATIONAL LABOR - RELATIONS BOARD tion is in error in stating to you that unfair labor practices have been or are being committed by the Station WOV,- and that the management re- fused to bargain collectively. On the other hand, certain illegal acts were committed by former em- ployees, which are a matter of record, and the facts of which I trust were communicated to you along with the other, information which you received.' All these matters are in the hands of the National Labor Relations Board. In fact, the latter and the American Communications Association have been advised of all the facts in writing and orally. At the time that the employees, took the radio station off the air, the management was in the midst of bona-fide collective bargaining with them, and has never refused then or thereafter to negotiate or bargain collectively. On Tuesday, December 10, a week-end having intervened following its letter'- of December 6, the respondent over the signature of Kay wrote A. C. A. a second letter, the contents of which are set forth in full below : Reference is made to our letter to you of December 6, 1940, to which we have not received a reply. In view of your failure to reply please be advised that we intend at once to fill vacancies in our staff by re-employing any of our former employees who left our employ on November 3, 1940 and who may apply to us for re-employment and who, in our opinion, were in- nocent of any of the illegal acts referred to in the' letter above mentioned, or from any other sources which are available to us. Our position, as expressed in our previous letters, remains unchanged in all respects. Our re-employment of any of our former employees we regard purely as a voluntary act on our part. However, we are advising you of the above so that you will know, and in turn may advise any of our former employees in the above category, that applicants will be considered in the order of their respective applications and that those who were our former employees and all other applicants will be considered by us on, a parity in relation to the filling of the few remaining vacancies. We had hoped that in behalf of those of our former employees whom you claim to represent that you would have availed yourself of our offer to permit the National Labor Board to indicate some other equitable method for the filling of the remaining vacancies, but in view of your failure to do so we have no other alternative but to proceed in the manner above stated. On December 11, A. C. A. answered the above letters of the respondent. The body of that answer is set forth in full below : We are in receipt of your letters of December 6th and 10th rejecting our request for the reinstatement of your striking employees. We note your claims to having bargained in good faith and to the alleged commission of acts by your employees which you characterize generally as "sabotage". Both these statements, as well as numerous others appearing in your letters are untrue and are known by you to be untrue. s Although Bulova did not define the "certain illegal acts", from his earlier letter to Kehoe quoted above, it is evident that Bulova considered among them, that the "station was taken off the air" and "equipment was found to have been tampered with." As is pointed out above, the only written record ever made of the alleged tampering with equipment was that prepared on November 30 by Holt, which was admittedly never shown to anyone until the time of the hearing. Ohl, A. C. A's former international vice-president, whose testimony the undersigned believes, testified that he had never heard even indirectly of most of the alleged tampering included in Holt's "report" and testimony. GREATER NEW YORK BROADCASTING CORPORATION 753 ` We have been advised -by counsel that your letter and your acts described therein constitute additional violations of the National Labor, Relations Act. We have instructed our counsel to call the National Labor Relations Board's attention to your letters and the, admissions contained in them, so that appropriate action may be taken by-the Board. In neither of the two letters mentioned above have you answered the ques- tions propounded in our letter of December 5th. We therefore should like specific answers to the following : 1: How many and what type positions do you consider to be at present available? 2: What are the names of-the individuals whom you have placed in the category of re-employables? 3: What'are the names of the individuals whom you have placed in the category of those discharged and therefore not re-employable? 4: What factors will govern which of the re-employables will be placed in the various positions which you consider remaining available? We should apreciate a prompt reply. The respondent did not reply to A. C. A.'s above letter of December 11 until 10 days later. That reply is set forth below after the discussion of the several events which transpired in the meantime. On December 12, Richard Norman, an English announcer , returned to work. On the basis of the respondent's letter of December 6, presumably it considered that it had discharged Norman for sabotage. The undersigned is not impressed with Cohen's description of the alleged several, "errors" in the letter of December 6 as an explanation of the inconsistencies between the respondent 's corre- spondence and the respondent's subsequent actions: While at one, point in his testimony, Cohen'denied that he knew until about a month later that Norman had been at the studios on November 3, at another point he testified that Kay told him on November 3 that Norman was among those there. Cohen also testi- fied that in a conversation he had with Norman on December 12, Norman con- vinced him that although he had been at the studios on November 3, he was free from guilt in relation to sabotage. Whatever Norman may have told Cohen, in taking Norman back, Cohen rehired a striker known to have been at the studios on November 3, and presumably one of the 15 characterized as discharged for illegal acts in the letter of December 6. On December 13, one of the strikers, Sanford Alper,6' received an official NOTICE OP EXTENDED WAITING PERIOD for the Division of Placement and-unemployment Insurance of the Department of Labor of the State of New York, herein called the Division. That notice informed Alper that he would be required to serve a 10-week waiting period before receiving unemployment insur- ance benefits because information had been received that his loss of employment reported in his claim filed December 3 was due to "Strike, lock-out, or other industrial controversy." The space on the notice provided to indicate the reason, "Misconduct," was unmarked. Subsequently other strikers among those alleg- edly discharged for misconduct received similar official notices marked in like manner." 3 Alper was the secretary-treasurer of A. C. A 's Local 16 from about September 1940 to the time of the hearing. Cohen testified that he considered Alper to be the only one of the strikers who had been involved in the ' arbitration proceedings . Prior to the strike, Alper had worked in the record room where the fuse box was located in which Holt, on the evening of November 3, allegedly found two fuses tipped with scotch tape in such a way as to block the flow of electric current. 04 Berry received such a notice on December 28, pursuant to his claim filed on December 10 Study also received such a notice on March 14 , 1941, pursuant to a claim filed December 17. 754 DECISIOATS OF NATIONAL LABOR RELATIONS BOARD At the hearing the respondent presented no evidence to rebut the presumption arising from the foregoing official notices, and contended that it had no record of any reasons furnished - the Division . The Division would not supply informa- tion on .the matter without a written waiver from the respondent , but the re- spondent did not execute such a waiver. The undersigned finds that the respond- ent'reported to the Division that the strike rather than discharge for misconduct was the reason for the unemployment of the strikers. About December 14, A. C. A. ceased picketing the respondent's premises. Thereafter , from about December 14 to 18, pursuant to instructions from A. 'C. A., most of the strikers called individually at Kay's office where each was interviewed by -Kay and Cohen, jointly . Each filled out and signed , an application blank containing the clauses which had caused the dispute during 1939. In the course of those interviews, the persons applying, other than the miscellaneous employees, were asked as to their own whereabouts during the initial period of the strike and were queried by Cohen as to their knowledge as to what other persons were at the studios and transmitter and as to what knowledge they had of the com- mission of alleged acts of sabotage . For instance, Cohen asked Berry who had been present in the control room and Berry named Adler and three WOV tech- nicians and explained that he had left the station almost immediately after his sign off At one point Berry said he would be very glad to sift with Cohen any information Cohen had , to test its value, but Cohen thought it would not be advisable to do that . When Graham, who had shut down the transmitter on November 3, applied he told Cohen and Kay how he had shut down the trans- mitter, in the normal fashion, and also explained why he had placed a clip lead on the transmission line.' { When Study was interviewed on December 16, he was told that most of the positions were filled. Cohen asked Study to account for his whereabouts and actions on November 3; Study did. Cohen questioned Study about alleged acts of sabotage. Upon • Cohen's inquiry, Study explained that he had given the only explanation possible to Holt by telephone on the night of November 3, when Holt had asked about the source of the power in the control room.' Cohen also asked Study to name all of those who had been at the transmitter No- vember 3, and Study did so. During the above ex parte investigations about the middle of December, the respondent admittedly got no admission of guilt of sabotage from anyone, nor did it learn of any individuals `who were responsible for any acts of sabotage. According to Cohen's testimony, he learned from interviews with Ludlam and Boley, two English announcers who were later reemployed on January 20, that they were both at the studios on November 3. Furthermore, according to 63 Holt had found that clip lead on November 4, and had reported it to 'the respondent and to the representative of the F C. C. who in turn had inquired of A C. A about the clip,load . The explanation given the F. C C representative about November '6, that given the respondent in mid-December by Graham , andathat given at the hearing were the same ; namely that for some weeks prior to the strike the placing of the clip lead upon the transmission line had been normal shut-down procedure , upon transmitter supervisor Neu- wirth's instructions , in order to ground the transmission line completely , since workmen, a ho were then remodeling the transmitter and who were often working at night, had complained of shocks received from' the some 60 volts in the line when it was not so grounded Upon consideration of all the evidence the undersigned accepts the foregoing explanation 86 What was said during that conversation is set forth above. According to Holt's and Cohen's testimony, it was pursuant to that telephone conversation that Holt had found two fuses in the fuse box in the record room , where Alper worked, tipped with scotch tape in such a way as to block the flow of current to the control room. Cohen maintained at the hearing that he was convinced that Study 's explanation had constituted a tip-that sabotage had been committed. GREATER NEW YORK BROADCASTING CORPORATION 755 Cohen, Ludlam, who became program director several months later, told him on December .17 of the presence at the studios on November 3 of two Italian announcers, Ferri and Polimeni, neither of whom was later reemployed. On the record as a whole, the undersigned is convinced and finds that it was during its ei paste investigations that the respondent first learned much of what it professed, at the hearing to have known early in November as to the where- ab&uts of the various strikers on November 3 and 4; that the respondent made electrical transcriptions of the abpve interviews; °T and that the respondent refused to produce those transcriptions at the hearing because they contained' evidence adverse to the respondent. On December 17, pursuant to his application of December 16, the respondent wrote Gilbert McDonald, who had been control room supervisor at $55 a week 'before the strike, that his application had been approved; that as stated in his' application he understood he was to have no employment contract, was hired for no specific period of time, and, could leave or be discharged "at any time for any cause without notice" ; and that upon receipt of the letter he was to contact Holt. McDonald saw Holt on December 18, and they had a short talk. Holt told McDonald that certain damage had been done to the facilities at the station, but that the respondent was convinced that he had had no part in it. , Holt then asked McDonald about a so-called "master mixer" which appeared to be missing. When McDonald explained the system of, switching which had been used, Holt signified that he then understood. Holt had not been familiar with, that system and had not been able to figure out how they had selected studios without some additional equipment ; there had been no such "master mixer" in use. Holt told McDonald to try to get along with the other men and to report to De Laurentis,' saying that he did not know what fuither arrangements were going to be made.68 About the time of McDonald's return, some miscellaneous employees also returned. Suchin, a clerical worker, and Steinberg, the bookkeeper, started to work the morning of December 17.60 About December 21, Sokal returned as a page boy. Then on December 23, Corrado started work as a clerical worker, and Garafalo as "page boy and sound effects." i0 In connection with their return, 61 The finding as to the transcriptions is based upon testimony of McDonald and Study which the undersigned credits and upon the respondent's refusal to deny that it had such transcriptions McDonald testified that Holt told him that such transcriptions had been made; and Holt did not deny making such a statement to McDonald McDonald also testified that as he entered the room'for the interview he heard the characteristic hissing sound of the transcribing machine, a sound with which he was familiar McDonald further testified that when he returned to work, he saw a can of approximately 50 discs of the type used on the transcribing machine and that he had not•seen more than 25 or 30 such discs during his previous 31/2 years at the station Study testified that he had pre- viously installed the machine and knew that it had been used in the past for the purpose of recoidmg conversations without the knowledge of some of the participants Study also testified that a radio supply dealer had informed him that the respondent had about the time of the-interviews purchased unusually large supplies of the discs used on the ma- chine The respondent repeatedly refused to admit or deny the existence of such ' transcrip- tions and refused to produce them at the hearing both in answer to a subpoena and upon the repeated requests of the undersigned . Also Cohen , when called as a witness, upon advice of counsel, refused to answer questions concerning the transcriptions w De Laurentis , who was later released on March 15, 1941, in a staff reduction because he was considered one of the poorest technicians , was receiving $50 a week while McDonald was receiving $55 a week °D The pay roll listed Selina Elman as "bookkeeper," and Steinberg as "assistant book- keeper" Prior to the strike the listing of Steinberg had been "bookkeeper " 70 Before the strike Garafalo had been a page boy. Sokal had done sound -effects work in the spring of 1940 for a while prior to the change in lunch hour, after which he was a page boy. Prior to the time of the strike, only two miscellaneous employees, Alper and Tanzman, neither of whom was ever reemployed, were listed as sound-effects men The respondent's letter of December 6 listed only one sound man as discharged for sabotage. 521247-43-vol 48-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steinberg, Corrado and Sokal, at least, received letters 'with references to tenure similar to those quoted above from McDonald's letter. Subsequent to the above-described interviews and the arrangements for em- ployees to return to work, and after-the resettled order and decree of December 19 in the arbitration matter, the respondent, on December 21, finally answered A. C. A's above-quoted letter of December 11 The contents of the respondent's reply which was signed by Kay were as follows : This is in reply to your letter of the 11th instant and is also intended to advise you as to the status of the Station with respect to positions available. We give you the following information only because of your claim that you represent certain of our present employees as well as certain of our former employees In so doing you will understand that we in no way depart from our former position as set forth in our previous letters to you and to which we still adhere.' In the first place, we do not wish to enter .into a protracted dispute with you with respect to the circumstances under which you called the alleged strike on November 3rd, 1940 We merely wish to report that in that re- gard every statement made by us in our previous letters to you was true and accurate and would not have been made if it were otherwise. Nothwithstand ing that you stated in your letter of'December 11th, 1940 that you intend to prefer charges against us before the NLRB, which ordi- narily we would regard as sufficient reason to deny you the information requested, nevertheless, since we are confident that all of our acts as well as our attitude are entirely proper and justified, we do not hesitate-to in-, form you of the following : On November 3rd, 1940, we had on our staff, one Chief Engineer and nine (9) additional Engineers employed at both the studio and the trans- mitter On the calling of the alleged strike on November 3rd, 1940, under the circumstances stated in our previous letters to you, all of these positions became vacant. As previously advised you in our letter of December 6th, 1D40; a new staff has been employed but on that date there were' still three (3) positions available. Since then, we have accepted the application for re-employment of Gilbert McDonald who, according to our investigation, was wholly innocent of any of the illegal acts described in our previous letters. This leaves two (2) vacancies which does not permit of the filling by any of the other Engineers formerly"employed by us, and who likewise have filed applications with us, because of our investigation which is still continuing as to their possible participation in the illegal acts heretofore described. With respect to these two ( 2) existing vacancies, your Union may be as good as any other source for the obtaining of such applicants, and we would be,willing to entertain applications of qualified Engineers whom you may send to us for these positions other than those mentioned in the last para- graph. In doing so however, it is distinctly understood that we do not acknowledge that we are under any duty or obligation to call -upon you for such Engineers, but we make this request as we would to any source of supply. Furthermore, Tanzman had left the studios before 3 • 30 the afternoon of November 3. After Sokal and Garafalo returned on December 23, they took over the sound-effects work gradually and the two salesmen were shifted back to sales work Eventually Garafalo was returned to work as a page boy early in February and on February 10, Francis Mellow, who had first been hired on November 11, 1940; was transferred to the sound-effects pav roll Thereafter be and Sokal were the only two persons carried on the sound-effects pay roll to the time of the hearing GREATER NEW YORK BROADCASTING CORPORATION 757 With respect to the English announcers, Italian announcers, -and sound effects men, all positions were filled under the circumstances stated in our letter of December 6th, 1940,, and there are now no vacancies. Applications filed,by any of our former employees in these categories (and who were not involved in any of the illegal acts referred to) will be retained by us and such will probably be given preference P1 in the event that any new positions become available. With respect to general employees vacancies which arose on November 3rd, 1940, under the circumstances stated, are being filled from, the appli- cations of our former employees. To date, Roslyn Suchin, Olga Steinberg and Sam Sokal have commenced their employment, and Mrs. Ann Murtaugh, Lena Corrado and Joseph Garafalo have been requested to report on Monday,, December 23rd, 1940. The last paragraph of the above letter states that Murtaugh lead been requested to report for work. When she had been interviewed Murtaugh had been offered the night operator's job. The relief telephone operator before the strike was then doing Murtaugh's former work as day operator Murtaugh had received $20 a week as day operator and had worked from 9 a. m. to 5: 30 p m. from Monday to Friday and on Saturday from 9 a. in to 1 p in. The night operator worked from 5: 30 p m to 10 p in. on 4 week day evenings including Saturday and from about 9: 30 a. m to 7 p. in. on Sunday and received only $17 a week. Murtaugh refused to accept the position as night operator because it was not her former position and because it belonged to one of the other strikers, Frances Hopkins. Murtaugh was never offered her position as day operator and she never returned to work.°L The respondent thereafter offered the night position to Hopkins who started to work as night operator on December 30. The first list of names ever presented A. C. A. of the employees allegedly dis- charged because of alleged acts at the time of the strike was a list of 12 employees contained in identical letters, dated December 23, 1940, which were sent by Field Examiner Kerr to Alper and to Boudin, respectively. ^ The contents of those identical letters were as follows : The company has advised us that the following list of employees are those whom they consider discharged because of the alleged acts which occurred at the time of the strike November 3rd: Study Barry - Graham Olson Alper Dickens Wegge Polomini Nieworth Kamke Potts Kearney The company advised us further that all other employees are eligible for, reinstatement as there are openings. We would be glad to confer further with the above listed employees indi- vidually and suggest that you clear with me the time for all appointment when they may come in. Cohen testified that he had given a list of names to Kerr by telephone-' on December 21, pointing out that some names were misspelled in her ' letters 71 It should be noted that all three of the recently expired contracts had provided that seniority rights 'should be observed in all relationships 72 Murtaugh-had started to work for the respondent in June 1939, Hopkins in October 1939 and Ruth Kiczales, the relief operator before the strike, in Januaiy 1940 Cohen admitted that at no time prior to his telephone conversation with Kerr on De- cember 21 had the respondent furnished anyone, either verbally or in writing, any list of names of individuals allegedly discharged for tlie^alleged sabotage. 758 DECISION'S OF NATIONAL ' LABOR RELATIONS BOARD Cohen also testified that the names of Stratton, Ferri, and Boley, which were not included in Kerr's letters, had been included in the list he had given Kerr. Of those three, Stratton and Ferri were never reinstated. However Boley, whom Cohen testified had cleared himself to the respondent's satisfaction of guilt of sabotage during his interview in mid-December was reinstated on January 20 along with Ludlam, another English announcer. As is stated above, the under- signed does not credit Cohen's-attempt to explain away the inconsistency between the 15 employees referred to anonymously in the letter of December 6 and the 12 names in Kerr's letters of December 2;3. The undersigned finds that on December 21 Cohen gave Kerr only the 12 names which are set forth above. 9 The developments during the following year On January 15, 1941, the respondent moved to its new studios at 730 Fifth Avenue About that time several changes were made in the staff. In the first place, Kay ceased to be the general manager. She was succeeded for a brief period by Naylor Rogers, who ' was in turn succeeded in February by Arthur Simon, the general manager of WPEN, who was brought in for 2 or 3 months to reorganize WOV. Siinon was succeeded by Paul Girard who served for approxi- mately the month of May. Girard then was succeeded by General Manager Dailey, who continued to be the general manager thereafter. In addition to the change in January in general manager, Stuart Buchanan took over the position of program director for almost all of January, during which time Schramm served as assistant program director. Schramm returned to his work as program director when Buchanan left on February 1. However, Schramm later left the staff of WOV on April 19, 1941. Also in January, Holt returned to his regular work as traveling consulting engineer among the Bulova-Lafount stations when Whitman N. Hall was employed on January 13 to serve ,as chief engineer. On January 20, William Murtaugh, who first started working for the respondent on January 15 at the transmitter, was transferred to the studios and made the control room supervisor. During January three of the strikers with longest service records at WOV contacted the respondent again. Study, who had started working at WOV in 1931, wrote on January 15 asking for a letter of recommendation "stating the period of service, the position held and other pertinent facts" regarding his -em- ployment. Study further requested a statement to use in connection with his F. C. C license, that from October 19, 1938, the date of his last license renewal, he had been chief engineer of WOV, in complete charge of the operations and maintenance of the station While he asked that the matter be given "early attention," Study never received a reply to his letter. During this period, Vivian Murgia again attempted to secure reinstatement. In point of service Murgia was the oldest of the miscellaneous employees, having started to work in July 1931. She had filled out an application blank individually on December 14, after having been included in A. C. A's group application. About January 15, Murgia had a talk at the new studios with Program Director Buchanan. He asked Murgia if she "had been a bad girl", She said she had not; not*to her knowledge! Buchanan indicated he thought it was a shame that she had not got her position back inasmuch as Schramm had got his. He then stated that there were two positions open for which Murgia might qualify, but that he could do nothing until he spoke to Cohen about it. Buchanan then took Murgia to Concetta Porreca who was serving as secretary to Rogers, the new general manager. She had Murgia fill out another application blank. Murgia applied for a secretarial position in the program department, and made it clear to Buchanan that she was willing to take any available position with duties and salary similar to her former position which had paid $30 a week. GREATER NEW YORK BROADCASTING CORPORATPON 759 On January 19, before she had heard anything further from the respondent, Murgia saw an advertisement in the classified section of a New York news- paper. The advertisement, placed by an employment agency, listed two radio positions, both requiring radio experience, one as a secretary at $30 a week and the other as a receptionist. Murgia was,qualified to fill either one. The following morning, Monday, January 20, Margin contacted the agency. She was told they were not interviewing anyone at the moment but to contact them after 1 that afternoon. About 1 o'clock Murgia telephoned the agency again and asked if the position was still available She was told that it was and was asked whether she could go right out for an interview. Murgia was given the address of the WOV studios and told to go to WOV. Murgia then called up WOV and talked-with Porreca, asking her whether or not there was any 'work on the application she bad filled out. Porreca told Murgia that she was sorry but there were no openings at that time. The respondent's pay roll shows that two new employees were hired that day to fill the two positions involved. Berry was the third employee with a substantial service record who con- tacted the respondent about this time. He had started to work at WOV in 1035 and part of the time he had been assistant program director. Ong Decem- ber 31, Berry wrote Lafount that his family was suffering as a result of the situation and asked for an "off the record" chat with him. He described his 5 years of service with WOV, pointing out that he had not been merely a chief announcer but had written continuity and created programs and publicity. Berry assured Lafount of his best efforts in efficient production, novel presenta- tion and, aggressiveness and imagination in getting results, attaching to his let- ter a description of his approximately 10 years of experience in radio, dramatics, publicity and journalism . On January 2, 1941, Lafount wrote Berry that the matter of employing "former members of the WOV staff" had been left entirely to Cohen, and that he would be more than pleased to take the matter up with Cohen that day. < On January 18, having received no further word from Lafount since Lafount's letter of January 2, Berry telephoned Lafount and told Lafount he would like to have a talk with him.. Lafount said that if it pertained to his reinstate- ment he could not discuss it with Berry but would be glad to talk with him about anything else. Lafount also said, "We can -go no further than the Labor Board and our attorneys will permit us, on this matter." Thereafter toward the end of January, Berry had two conversations with Cohen at his office. During the first conversation,, Berry told Cohen of the tragic condition of some of the strikers and asked if there was not some way to clear up the situation so that 'employees of long standing might be restored to their positions. Cohen was pleasant but said that since the Board, case existed at that time he did not know of anything that could be done " A day or so later when Berry again saw Cohen, a second discussion took place along the same lines during which Berry asked Cohen if an avenue for reinstatement would be open if no Labor Board case existed Cohen smiled and said that he would not say that. It should be noted that it was during this period ,when Berry was being refused consideration that the respondent, on January 20, returned Boley and Ludlam to the WOV staff as announcers . Both admittedly were known to have been on -the premises on November 3, and both had first started working at WOV in 1937. Furthermore, during the months of March, April and May, each of two new announcers was given the designation, "Master of Ceremonies," a title 44 On January 10, A C A. had filed its amended charge upon which the complaint herein was issued. 0 760 DECISIONS OF NATIONAL LABOR RELAT'IONS' BOARD not used before the strike. During this same 3 months the number of an- nouncers, including everyone from the program director down, ranged from 16 to 18, averaging 17. Before the strike there had been only 10 announcers, including the program director. On February 8, as a part of the reorganizing job which Cohen testified Gen- eral Manager Simon of WPEN had been brought to WOV to do, Hopkins and Suchin, two of the returned strikers, "left" along with 11 other employees, 10 of whom were miscellaneous employees. The eleventh, a salesman who was still being carried on the sound-effects pay roll, went to WPEN. The respond- ent's only explanation of any of those changes was the following testimony of Cohen'who indicated he had received his information from Simon who did not testify : The reasons were in some instances a desire to change and in others a question of competence to do the job as required by the management. Of the 10 miscellaneous employees, other than Hopkins and Suchia, who "left" on February 8, 6 had been hired after the strike started, and 2 had been among the 5 miscellaneous employees who had not gone out on strike. One of those,, Stanley Weisenfield, had started as a page boy in October 1940 and the other, Ruth Kiczales, had started as relief telephone operator in January 1940. Of the miscellaneous employees retained, three were returned strikers, Steinberg, Garafalo' and Corrado, all of whom continued on the staff until the time of the hearing. The pay-roll records show that preceding and following the above separa tion of 12 miscellaneous employees on February 8, a number of new miscellaneous employees were added to the staff. The preceding week six new miscellaneous employees had been added, and the week before that three new miscellaneous employees had started. The week following February 8, six new miscellane- ous employees were added to the staff, the succeeding second week one was added, and the third succeeding week two more. Thus while the total number of mis- cellaneous employees during the week of January 18 was only 15, the total during the week 'of March 8 had increased to 19. Furthermore, during the above-period three new clerical workers were taken on and two new telephone operators. Suchin, a clerical worker, first went to -work at WOV in September 1940 and, Hopkins, a telephone operator, started in October 1939. The pay rolls show that in the period following Simon's reorganization in February, the labor turnover was relatively low and the number of employees relatively constant. Thus during the 6 months following, the average was apps oximately 50, being 49 during the first p'ay-roll week of March, 50 during the first pay-roll week of June, and 52 for the first pay-roll week of September, the foregoing figures being for the four groups asked by A. C. A. as one appro- priate unit. There was thus an increase during this period of approximately 25 per cent over the number of employees at WOV preceding the strike. While the increase was largest among the announcers, there was also some increase among technicians and miscellaneous employees. However the number of sound-effects men continued to remain at two. On February 25, pursuant to a telephone request from Pastene & Company that he do so, Berry called at Pastene's office for an interview. He had an- nounced a commercial program for them over WOV prior to the strike. Berry was told that if WOV would permit it that Pastene would like very much to have him announce its programs over WOV as a free-lance announcer on the pay roll of Pastene. Berry agreed that he would contact the station, saying that he did not believe the prejudice against him was "still so burning" that they would prevent him from trying to earn that much livelihood. GREATER NEW YORK BROADCASTING CORPORATION 761 Later that day, Berry called Lafount•and explained Pastene's request. Berry said he did not think there should be any objection, pointing out the fact that free-lance announcing was an accepted practice in radio. Lafount said that he did not think there would be any objection, but before agreeing indicated that he wanted to check with Cohen and asked Berry to call back in half an hour. Berry later called Lafount who said that he was very-sorry but that Cohen objected on the ground that "it was not, advisable for an announcer who was suing the station'to appear over its air."" Berry then told Lafount, as he later also wrote him, that he thought this denial, which prevented him from practicing his profession, was a violation of the respondent's public responsi- bility under its F. C. C. license. On February 28, Berry had- a talk with Cohen at the latter's office.. He told Cohen that he wanted to discuss the matter of free-lance announcing as he thought the position Cohen had taken was unfair. Cohen told Berry he thought Berry had "unmitigated gall" to expect to be permitted to announce over the facilities of WOV at a time when he was suing WOV: Cohen asked Berry if he thought he would retain in his employ one of his clerks if the clerk sued him. Berry replied that he did not, but pointed out that as a free-lance an' nouncer he would not be in the employ of WOV but would be employed by a third party. Berry pointed out that it was accepted radio practice for a spon- sor to employ an announcer of its choice. He told Cohen that he did not feel the respondent could make it a condition of employment by a third party that Berry remove any rights which he might have under any suit which he might be engaged in at the moment, pointing out that litigation with the telephone company would not,result in denial of the use of the telephone. Berry said he considered a radio station a public service Cohen admitted it was a quasi- public service, but maintained his position denying Berry the right to free- lance over WOV. Berry thereupon left Cohen's office and mailed a letter to La- fount which he had previously written, setting forth the unfairness of the re- spondent's position as Berry -saw it. That letter was never answered. On February 28, the respectne attorneys for the respondent and A. C. A., signed a stipulation discontinuing the action started in the City Court of the City of New York on behalf of Frank Pohmeni, who, like Berry, was one of the 17 plaintiffs in the back-pay suit growing out of the arbitration. Thereafter Poli- meni was permitted the privilege of acting as a free-lance announcer over WOV's facilities. During the first week in May, McDonald had a talk with Chief Engineer Hall and told him that for some time he had been intending to ask General Manager Girard about reinstatement to his former job as control room supervisor, but that he felt he did not want to go over Hall's head. Hall told McDonald that he had never fully understood the situation and had assumed there was a "general clean-out." During the conversation, Hall told McDonald that he had no doubt that McDonald was capable of holding the job of, control room supervisor and said that he considered him "an unfortunate victim of circumstances " That same evening, Hall having arranged for McDonald to see Girard, McDon- ald explained to Girard that he had been given no reason why he had not again been made control room supervisor after the strike. Girard told McDonald he considered him the most capable technician on the staff and Murtaugh about the worst, giving illustrations of Murtaugh's incompetence. Girard told Me- t 75 It was stipulated that at that time two proceedings were pending, one arising from the charge filed with the Board, and the other growing out of the arbitration proceedings. The second involved the attempt to secure wages for the employees who had worked during the lunch hour prior to the expiration of the contracts It was a civil suit in the City Court of the City of New York on behalf of 17 employees as plaintiffs -- 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donald to "sit tight" ; ^ that he would investigate the situation and was sure that at some future date it could be straightened out to McDonald's satisfaction. However, before Girard was able to do anything about McDonald's request, he "lost his job" as general manager. About July 23, McDonald had a talk with Vice-President Lafount. He told Lafount that he thought he had received a "dirty deal" and asked Lafount if it was within his power to straighten out the matter. Lafount indicated he had very little to do with WOV except signing pay rolls and checks, but. promised to take the matter up with "the powers that be." About 2 days later, Hall told McDonald that Lafount was taking the matter up with Cohen. Sometime dur- ing this period McDonald had a talk with Murtaugh concerning his vacation for that summer. It had been the practice of the station, and continued to be through the summer of 1941, to give 1 week's vacation to employees with service of less than 1 year and to give 2 weeks' vacation to those' with service of over a year. McDonald had first started working at WOV in August 1937. - Soon after talking with Murtaugh, McDonald had a further talk with Hall who told McDonald that he was very sorry but that Lafount had informed, him that Cohen took the position that McDonald was not entitled to 2 weeks' vacation inasmuch as he'was a new employee beginning as of December 18, 1940, and that for the same reason McDonald was not entitled to the position of control room supervisor. At the time of the hearing, McDonald was still a technician at $55 a week while Murtaugh's salary had been advanced from $50 a week to $60 a week about the middle of August. In connection with the foregoing treatment of McDonald, it should be noted that even on the basis of seniority after the strike, McDonald was entitled to the position because he had returned to work almost a month before Murtaugh first started to work for the respondent. Furthermore, while Cohen testified that all of the returned strikers had been treated as new employees, he also 'testified that McDonald, whom he had seen picketing during the strike, had never been discharged for "alleged misconduct" or for any other reason. Finally, it is highly significant that during the week of July 11, Ludlam, one of the English announcers who was taken back after the strike on January 20, took over the duties of program director and continued to serve in that capacity thereafter. On the basis of the seniority policy which the respondent allegedly applied in denying McDonald reinstatement to his position as control room supervisor, there were clearly a substantial number of announcers whose claim to the position of program director outranked that of Ludlam. Under the date of July 29, 1941, 10 WOV technicians "respectfully submitted" a "proposed working contract for the engineers . . . as agreed upon by their authorized representatives after conversations held with the various engineers." The list of 10 who signed the "contract" was headed by 3 individuals after whose respective names appeared in parenthesis the word "representative." The name, Gilbert McDonald, headed the list., The agreement was "accepted, by" Harold A. Lafount on behalf of WOV The chief engineer was excluded from the agree- ment which contained some provisions similar to those previously included in A. C. A.'s contract for technicians. However, many matters formerly covered by A. C. A.'s agreement were not included In respect to the minimum wage scale, the $50 floor was $5 higher than that being asked by A. C. A. at the time of the strike and $12.50 higher than that which had formerly been included in A. C. A's agreement. Furthermore the document signed on July 29 clearly placed the sole judgment on matters of employment and lay-offs within the dis- cretion of the respondent. In fact, the opening clauses of the document com- prised six specific "rules," failure to comply with any one of which would be penalized by discharge. \ GREATER NEW YORK BROADCAST1'ING CORPORATION B. Conclusions concerning the unfair labor practices 1. The refusal to bargain collectively 763 a. The appropriate unit The complaint alleged and the answer denied that the appropriate unit'embraces all announcers, including the program director ; technicians including the chief engineer ; sound-effects men ; and miscellaneous employees, the said miscellaneous employees comprising stenographers, typists, clerks, switchboard operators, book- keepers, censor, page boys, copyrighter, watchman, and translators employed by the respondent at its studios and its transmitter, but not including salesmen,- musicians, publicity men, station manager, executives and officers. , The substantial issue involved is whether or not the three groups formerly un- der contract, the technicians, announcers and sound-effects men, constitute along with the miscellaneous employees a single appropriate unit. It should be noted first that no othei labor organization was claiming to represent any of the em- ployees involved. While the record establishes that the predominant form of or- ganization in the radio field was on a craft basis, it is clear that A. C. A. in the latter part of 1938 shifted its organizational approach to an industrial basis. Furthermore, it is clear that A C A. Mad organized WPEN on an industrial basis similar to that sought at WOV, and that Bulova had owned that station and dealt on that basis for over a year prior to A C. A 's request for any industrial unit at WOV. While there had been separate contracts at WOV covering three separate groups on a craft basis, those contracts were expiring as of even date. Further, such contracts had only recently been held by one single labor organization. The sound-effects men had been under contract with A. C. A. only a year and the announcers about 6 months. While skills and pay rates varied, the four groups of'employees were interdependent in the actual work of broadcasting radio .programs and in a few.cases employees had passed from one group into another." Finally the record reveals that A. C. A. was making increasing progress in organizing the miscellaneous employees Thus by September 18, 1940, 7 of the 17 miscellaneous employees had designated A. C A. By October 18, 1940, the number who had designated A. C. A. was nine. The tenth miscellaneous employee signed on November 4 and the eleventh on November 5 Furthermore, on November 4 and thereafter in the face of the warning given by Cohen, 12, of the 17 miscel- laneous employees went on strike. In view of A. C. A.'s substantial organization of the miscellaneous employees," and since the desire of the only labor organiza- tion involved to include those employees along with others formerly under separate contracts 'constituted a logical development in self-organization, the undersigned is of the opinion and finds that such a consolidation of employees represented by a single labor organization into a single unit is appropriate under the conditions of this case. Under the conditions herein, the exclusions sought are appropriate. , The musicians had been for some time under contract with an A. F. L union 76 This is particularly, illustrated by the case of Alper, although the record contains other examples Alper was first employed in April 1936 as a page boy. Toward the end of 1937 he started doing miscellaneous clerical work for the chief engineer. During 1038 Alper started doing some sound-effects work. He continued in sound-effects work until January 1940, when he became a control room technician. Alper held that position until June 1940, when be went back to sound-effects work. 77 Since it is not found below that a refusal to bargain occurred prior to November 4 by which time A. C. A clearly represented a majority of the miscellaneous employees, it is not necessary to determine herein the extent to which a labor organization is required to repre- sent employees among a group which it is seeking for the first time to repiesent in combina- tion with other groups which it has previously represented. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD/ and neither the respondent nor AA. C A. ever sought to include them Nor was any desire expressed during negotiations by either the respondent or A. C. A. to include salesmen, publicity men, the station manager, executives and officers. As to the inclusions, at no time did either party object to the inclusion of the program director who had been included in previous contracts. While the program director had broad responsibilities for planning and executing radio programs, supervising personnel, and recommending hiring and discharging, his inclusion in an industrial unit is appropriate under the conditions herein, al- though such closeness to management functions is frequently the basis for exclusion. Similarly, the responsibilities of the chief engineer, which involved management functions paralleling those of the program director, would make his exclusion appropriate under some circumstances. However, the chief en- gineer had been included in all previous agreements covering technicians, and Kay did not object to his inclusion in the technicians' contract during the nego- tiations preceding the strike. Under the conditions it is appropriate to include the chief engineer in an industrial unit. As to the bookkeeper, censor, and copyrighter, Kay did object to their inclusion during the negotiations. The censor worked under the program director and was responsible for seeing that programs conformed to certain standards of permissibility. The watchman worked under the chief engineer ; his duties were those of night watchman at the transmitter. The bookkeeper worked under the general direction of Kay's private secretary, doing work -ordinarily assigned to a bookkeeper. In view of the inclusion of persons of such responsibility as the program director and the chief engineer and since there was no other labor organization advancing con- flicting contentions, there appears to be no reason for excluding the bookkeeper, censor and watchman from an industrial unit. The undersigned finds that all announcers, including the program director ; technicians, including the chief engineer; sound-effects men; and miscellaneous employees, the said in scellaneous employees comprising stenographers, typists, clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watchman, and translators employed by the respondent at its studios and its transmitter, but not including salesmen, musicians, publicity men, station man- ager, executives and officers, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment and that said unit insures to employees of the respondent the full benefit of their rights to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. b Representation by A. C. A. of a majority in the appropriate unit The right of A. C A. to represent the 10 technicians, 10 announcers, and 2 sound-effects men, covered by the respective closed-shop contracts which ex- pired on October 1 was never (questioned On October 18, 1940, A. C. A. had signed authorizations from all 10 technicians, all 10 announcers, the 2 sound-' effects men, and from 9 of the 17 miscellaneous employees, making a total of 31 of the 39 employees in the unit above held to be appropriate Thus by October 18, A. C. A. had secured a majority in each of the four groups separately and a majority,in the unit considered as a whole. The undersigned finds that on and at all times after October 18, 1940,78 A. C. A. was the duly designated representative of a majority of the 78 The date, October 18, 1940, is selected rather than an earlier date because by that date there is no debatable question as to the appropriateness of the unit on the basis of the extent of A C. A.'s organization of the miscellaneous employees, ,and because no earlier date is material in view of the findings hereinbelow. GREATER NEW YYORK BROADCASTING CORPORAT'PON 765 employees in the aforesaid appropriate unit,'and that, by virtue of Section 9 (a) of the Act, A. C. A at all such times was and at all times material herein was and is the exclusive representative of all the employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of em= ployment, or other conditions of employment. c. The refusal to bargain In considering the question of whether the respondent refused to bargain, it is necessary to keep in mind the interrelated developments described hereinabove. While there is a History of contractual relations, tension had developed to a marked degree before the expiration of the three closed-shop contracts on October 1, 1940 This tension arose largely because of the lunch hour matter which had been brought to arbitration. A. C. A believed that the respondent had been arbitrary, while the respondent felt that A. C A had unfairly insisted upon an advantageous interpretation of its contracts out of line with 2nytbing which, had been secured at any other radio station. The tension and suspicion generated by this dispute and the continuing court activity associated therewith complicated all of the ensuing negotiations. It was the arbitration matter which had brought Cohen into the picture. Previously Kay had handled the negotia- tions leading to contracts. However, Cohen wrote the letters abrogating the announcers' and the technicians' agreements, and it was with Cohen that A. C. A. held •its first meetings in spite of the fact that A. C. A. answered Cohen's letters by addressing letters to Kay. That Cohen was less well equipped to negotiate- than Kay was later, recognized by the respondent itself when Kay replaced Cohen as the 'negotiator upon the request of A. C. A. The first meeting itself did not occur until September 28, just 3 days before the expiration of the con- tracts. While the delay was unfortunate, it does not appear to be ascribable to either party alone. Also during September both parties were squaring away for court action on the lunch hour matter which was a factor entering into the abrogation of contracts and must have been anticipated as a major bone of contention during negotiations. In fact, at the first meeting-on September 28, Cohen notified Adler that the respondent would insist that the lunch hour not be given as a part of the 8-hour workday. In addition to the lunch hour matter, a second factor arose at the meeting on September 28-to plague negotiations. This was the respondent's demand that A. C. A. demonstrate its right to represent the miscellaneous employees at WOV. When A C. A. for the first time sought to include those employees in its pro- posed contract submitted that day, Cohen asked for proof of representation of them Adler refused to submit it In view of the circumstances involved, Cohen's request for a demonstration that A. C. A. had organized the new group which it sought for the first time to represent was not an unreasonable one, especially since there is no evidence that he made any objection to the single contract. There appears to be nothing in the Board's policy in administering the Act which would require an employer to bargain for an additional group of employees sought to be bargained for for the first time, either separately or as a part of a larger unit, without a showing of organization among such employees." 71 The situation here involved is different from that in which a labor organization orig inally seeks to represent several groups of employees in a single unit. Under those condi- tions a showing of representation in any one group alone would naturally not be required, if the unit as a whole were first either held by the Board or conceded by the parties to be appropriate . On the other hand , where a labor organization , as here , as the result of the evolution of its own self-organization, is seeking to include an additional group of em- 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the record as' a whole the undersigned is convinced and finds that at the outset the only substantial obstacle to the initiation of bargaining on the basis of the single proposed contract was the doubt of the respondent that A. C A. had organized the miscellaneous employees. In spite of inferences which can be drawn to the contrary, and upon consideration of all the factors in the case, the undersigned further finds that arguments, which were later advanced con- cerning the appropriateness of separate units were afterthoughts, and that the ,respondent did not have any substantial objection which it could advance in good faith to treating with A. C. A. for the employees in the proposed contract except its reasonable doubt that A. C., A. actually represented the miscellaneous employees. I Several factors lead to, the foregoing conclusions. That the respondent was familiar with the industrial type of unit wherein miscellaneous employees were grouped with workers more highly skilled and paid is clearly shown by Kay's experience as manager of WPEN when the industrial unit was developing at that station, and by the almost simultaneous negotiations without question for, that industrial/ unit at WPEN which was then owned by Bulova80 `Yet, instead of bargaining at WOV on the basis of the single proposed contract, the respondent insisted on a demonstration of A. C. A.'s majority in the miscellaneous group. A. C. A. just as persistently refused such a demonstration; in fact it did not have such- a majority until October 18. Thus at the second meeting on October 11 Cohen again asked proof of A C A.'s Vajority among the miscellaneous em- ployees and the proof was refused. Cohen then indicated a willingness to bar- gain for the other employees in the proposed contract, but A. C. A. insisted on bargaining for the miscellaneous employees also. Even at the Regional Office on October 23; A. C. A. forestalled any possibility of a determination of its repre- sentation in- the miscellaneous group by an informal check, although it gave nine cards for miscellaneous employees to the field examiner. It insisted that in the event of any check, the miscellaneous employees should not be checked separately.' Before Kay took over the negotiations, no arrangement had been made to resolve the question of A. C. A.'s majority among the miscellaneous employees. That question emerggd again at the outset of the first meeting with Kay on October 24; she asked to see proof th<tt A C A represented the miscellaneous employees and the proof was refused. However, when Adler told Kay that such questions as unit and majority representation could be determined by the Board, Kay did not ask for' any such determinations. Rather she told Adler to call her the next. day about the miscellaneous employees. Thus on October 25 it was again the question of the miscellaneous employees which was the subject of telephone con- versations between Kay and Adler. Kay contended that she was trying to con- tact Bulo 'a to find out what to do about those employees. Later that day, Kay overstepped the bounds of permissible activity in talking directly to the employees formerly under contract. But her purpose 81 was to get those employees to agree ployees in bargaining relations for the first time, some demonstration of organization among the group newly sought to be included must be required to preclude the possibility of labor organizations annexing from time to time minority groups in which they have substan- tially no membership by engulfing such groups into an expanded unit already dominated by. a highly organized majority. 80 That the negotiations at WPEN were going on simultaneously is a reasonable inference from the record as a whole Furthermore, in its brief, the respondent refers to the nego- tiations at. WPEN as "similar negotiations" going on "at the very time" of the WOV negotiations in a station "likewise controlled by Arde Bulova " 81 Some of Kay's statements at the October 25 meeting raise questions as to "good faith In view of her own experience at WPEN, it is doubtful if .she believed there was such an objection to including miscellaneous employees with other employees as she expiess2d that day. Furthermore, it should be noted that Kay told the employees she was willing to call Bulova over to talk to them while at the same time she was telling Adler that she was unable to reach Bulova. GREATER NEW YORK BROADCASTING CORPORATION 767 to go forward with negotiations, while leaving the determination of A..C. A.'s majority in the miscellaneous group to an election. That the core of the respondent's position was its demand for a demonstra- tion of A. C. A.'s majority among the miscellaneous employees is further shown by the events leading up to the compromise agreement upon the basis of which negotiations took place before the strike. Not only did Kay talk to employees directly on October 25, but about that time she, asked Study to find out which miscellaneous employees belonged to A C. A. She also asked Study to get the technicians to sign •a statement asking for immediate bargaining along the lines of her talk to the employees. It is clear that Kay, instead of asking that any question concerning representation or unit be determined by the Board, took the position that the Board was not involved, and met the direct pressure of A. C A.'s threatened strike with pressure on A. C. A. through its members to accept a compromise. While Kay's procedure constituted a violation of the Act, as is found below, from all of the evidence, the undersigned infers and finds that this pressure on A. C. A. was a major factor in bringing about the compromise accepted on October 29 by the respondent and A. C A as a basis for proceeding with a discussion of terms. A. C. A. and the respondent each contend that the' other abandoned its position on the appropriate unit by that agreement to proceed with negotiations for all of the employees claimed by A. C. A. upon the,basis of four separate contracts. The undersigned believes and finds that these conten- tions are afterthoughts, and that the real-purpose of the agreement which both parties accepted was to circumvent the stumbling block to the initiation of nego- tiations by assuring the respondent .of an eventual determination of A. C. A.'s majority among,the miscellaneous employees.82 Further, under the face-saving procedure agreed to by the parties, the matter of appropriate unit became largely academic, since the procedure of signing four separate contracts between one employer and one labor organization as the result of bargaining conducted in one series of conferences between the same negotiators for all of the employees in- volved had in its elements which could be interpreted as establishing either a single unit of separate units. The negotiations conducted on the basis of the compromise agreement were not' free from complications and misunderstandings. Throughout the conferences no progress was made on clauses involving the lunch hour matter. The respondent's position had previously been made known to A. C. A. and Kay was not authorized to abandon that position. Yet there is no evidence that A. C. A. was willing to compromise on that point. On other matters, while Kay did not give very much, she made a few concessions and most of the provisions in the former contracts, where changes were not asked and the lunch hour matter was not involved, were accepted While by the end of the negotiations on November 3 all of the pro- posals had been gone over and recapitulated, on a few matters Kay wanted further time. Since negotiations had been going forward in compact style and since -a number of new, matters had been injected by the discussion of miscel- laneous employees,'it cannot be said that Kay's request for an additional meeting constituted stalling. On the other hand, some of Kay's positions taken during the negotiations, raise doubts as to the respondent's good faith, and on the whole record, the undersigned is convinced and finds that A. C. A_ really believed that Kay was not dealing in good faith, and that there were elements in the negotia- tions uppn which such a belief could reasonably have been based. However, because of the existing tension and suspicion, it is possible that A. C A. 82 while the evidence is in conflict as to whether the election was to be conducted by the parties or the Board, it is clear that no amended petition was filed 'and that the matter ,of an election in the miscellaneous group was not taken up with the Board. 768 DECISIONS OF NATIONAL LABOR REILATIOMS BOARD may have mistaken close bargaining for bad faith. While the matter is not with- out doubt, in view of the series of meetings held, Kay's willingness to meet again within 2 days; and the minor concessions given, the undersigned is not convinced and does not find that the respondent participated in those negotiations prior to the strike in bad faith. It is clear that the respondent at no time unconditionally recognized A. C. A. or bargained with it as the sole collective bargaining agent for the employees. in the appropriate unit. Since the unit sought was appropriate on and after October 18, the respondent was technically in violation of the Act thereafter .in refusing unconditionally to recognize and bargain with A. C. A. in the single unit However, the undersigned has found that the respondent questioned in good faith whether A C. A. had organized the miscellaneous group; that such organization of the miscellaneous employees had a bearing upon the appropri- ateness of the single unit; and that A. C. A at first refused a showing of its organization of the miscellaneous employees and later accepted a compromise which involved making such a showing eventually. Thus under the conditions of this case, the -undersigned finds that so long as A. C. A's representation of the miscellaneous group remained unestablished , the respondent was relying upon a reasonable ground for questioning the propriety of including the miscel- laneous employees in the appropriate unit. Accordingly the undersigned 'does not find herein that the respondent refused to bargain within the meaning of the Act prior to the resolution of the .respondent's doubt as to A. C. A.'s repre- sentation of the miscellaneous employees."' On the morning of November 4, the day after the strike started, the re- spondent itself removed any reasonable doubt it may have had as to A. C. A.'s strength among the miscellaneous employees by conducting what was in effect its own poll. This choice between loyalty to the respondent and to A. C. A. was given some 11 miscellaneous employees of whom 9 chose to go on strike.' All told, 12 of the miscellaneous employees went on strike that day. Following the foregoing conclusive demonstration of the adherence of, the miscellaneous employees to A. C A , r the respondent at no time raised any question as to the appropriate unit. On November 4, after 'its attempt to get employees to abandon the strike,84 the respondent' refused twice to meet with A. C. A. Those refusals were made to representatives of two governmental agencies to which A. 'C. A. had appealed. The refusal made to the representative of the Board was a• conditional refusal, the condition being in effect the same as that stated the day before,85 that the strike be abandoned . It should be noted that in these refusals on November 4 83 The undersigned is not unmindful of evidence in the record which tends to support the inference that the respondent 's basis for questioning the appropriateness of the unit was broader than its doubt as to A. C. A.'s majority,in the miscellaneous group and the further inference that the respondent ' s position was not taken in good faith. While the matter is not without doubt, on all of the evidence the undersigned believes and finds that the question of the majority in the miscellaneous group was actually the heart of the whole matter and that the respondent 's doubt on this point constituted the only basis for excusing the respondent 's refusal to bargain prior to the resolution of that question . Furthermore, it should be noted that after the respondent ' s own illegal resolution of that doubt on November 4, it at no time advanced as its reason for not continuing negotiations any doubt as to the unit s' Not only did this violation of the Act on the morning of November 4 apprise the _ i espondent of the adherence of the miscellaneous employees to A. C A but it, along with Cohen's statement that morning to Study and Lavit's statement to the men at the trans- mitter, constituted coercion to get employees to abandon the strike, thus contributing to the prolongation thereof ,s In refusing on November 3 to continue negotiations unless the strike was abandoned, the respondent raised no question as to majority or unit. GREATER NEW YORK BROADCASTING CORPORATION 769 the respondent raised no-question as to unit or majority. In addition on Novem- ber 4 the respondent also discussed individually with at least two miscellaneous employees matters which were subjects of collective bargaining. It informed Zappulla that there was no reason for his going on strike since the respondent - had agreed to an increase in his salary. Steinberg was told that if there had been any question as to an increase in her salary she could have got an increase if she had gone to "anyone in the company." From the record as a whole the undersigned is convinced and finds that from the beginning of the strike the respondent closed the door to any further deal- ings with A. .C. A. unless it abandoned the strike, and that this position of the respondent was the basic cause of the prolongation of the strike. It is plain from the respondent's several letters following the strike that the' question of unit had dropped out of the picture and that the respondent believed that the calling of the strike while it was still willing to meet had relieved it of any 'further obligation to deal with A. C. A. and had placed the strikers themselves in the position of having "retired and left" its employ. The respondent was in error in those assumptions. The act of striking did not constitute an abandon- ment of his employment by the individual striker, nor a negation of bargaining agency. But for the respondent's erroneous position, a way might well have been -found through continued negotiations, with or without the assistance of a gov- ernmental agency; to reach a solution of all difficulties In fact, Cohen told Kerr on November 4, when he refused to meet unless the strike was abandoned, that the strike was unnecessary because there were no issues which could not have been settled. In closing its brief, the respondent' uses the following sig- nificant language : ' The evidence in this case discloses a very unfortunate situation. In our view the strike called on November 3rd was ill-advised Nevertheless, it is not beyond the realm of probability that the parties would have resolved their bargaining differences, notwithstanding the strike, if someone had not conceived the reprehensible idea of committing sabotage . . . The - sabotage rendered impossible any compromise; and was the direct cause of the unhappy situation . . .86 When the respondent, on the morning of November 4 resolved its doubt as to the adherence of the miscellaneous employees to A. C. A., the respondent removed the only basis upon which the undersigned believes it can be excused from failure to bargain with A. C A. in the unit found appropriate herein. Further- more, since the respondent at no time after the strike advanced any doubt as to unit among its voluminously stated reasons for refusing to deal further with A. C. A, it cannot now be held that the respondent was then motivated by any such doubt. Moreover, since the question of the unit upon which A. C. A. wished to continue negotiations after the strike was not raised by either party and did not become an issue which had to be resolved before negotiations could continue, it cannot be assumed that if negotiations had continued the nego- tiations would have deadlocked on that issue since from the record as a whole it is clear that the reasons advanced by the respondent for refusing to continue 84 Concerning the above contention that it was sabotage that deadlocked matters, it should be' pointed out here that, whatever the respondent may have believed about sabotage, a charge that sabotage had been committed could not operate to deprive A C. A. of its status as the duly designated bargaining agent of the respondent's employees in the absence of loss of majority status by virtue of valid discharges of specific individuals for the sabotage . In a subsequent section of this Intermediate Report , it is found that the respondent made no discharges during this period, but rather only threats. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations could not have been met by any position which A. C. A. might have been willing to take upon the question of unit Accordingly, the undersigned finds that negotiations were not resumed on November 4 because ,of the respond- ent's flat refusal to meet with A. C. A. unless' the strike was first abandoned. The undersigned further finds that, by its thus refusing to meet in conjunction with its activities on November 4 set forth elsewhere herein, and by its sub- sequent conduct discussed below, the respondent refused to bargain with A. C. A. on November 4 and at all times thereafter and thereby prolonged the strike. Since on November 4 and thereafter the strike was prolonged by the respond- ent's unfair labor practices, the clear and substantial majority which A. C. A. had, both in the appropriate unit found above and also in each of the separate units alleged appropriate by the respondent, was never thereafter dissipated by the subsequent hiring of new employees. However, as is pointed out above, the number of persons working, even including borrowed and part-time em- ployees, did not exceed the number of strikers until November 12. Hence, as- suming arguendo, the inclusion of all new employees, A. C. A's majority in the, appropriate unit continued both on November 7' and on November 8; upon- which dates the respondent again clearly refused to bargain. The respondent's letter on November 7, set out above, in reply to A. C.. A.'s letter of November 6 requesting an opportunity "at any time to bargain col- lectively," constituted a clear continuance of the refusal to bargain, and must be considered in the light of the activities of Lavit on November 6, 7, and S, in attempting to get strikers to go directly to Bulova without any representa- tive of A. C A. Likewise, the position which Cohen took at the conference at the Regional Office on November 8 constituted a further continuation of the refusal, since Cohen would not even consider bargaining until he was satisfied who was responsible for the alleged sabotage. Yet at the time of the hearing a year later Cohen had not established such responsibility. From the record as a whole, the undersigned is convinced and finds that the respondent used its allegation of sabotage as a subterfuge in an attempt to rid itself of A. C. A. as a bargaining agent for all groups of its employees. In the face of so serious an allegation not even the number of employees involved was set until December 6 when the number 15 was given. The respondent's position that sabotage had been committed and that individuals responsible for its commission would not be taken back constituted a matter of para- mount importance to A., C. A. and to any, of its members who might be sus- pected. Yet the labor organization and the individuals thus stigmatized were never confronted until the'time of the hearing almost a year later with the specific conditions which the respondent alleged it had believed constituted sabotage. The respondent could not thus set aside to await its pleasure a labor organization which had for a substantial period been the contractual agent for all of the striking employees allegedly under suspicion and which was then their, duly designated representative in whatever unit or units the respond- ent may then have believed appropriate The respondent's attitude on sabo- tage was but another outcropping of the tendency to unilateral action which had caused difficulties and tension in both the fall of 1939 and the spring of 1940. Such a "take it or leave it attitude" on the part of an employer is clearly not compatable with the spirit of collective bargaining as contemplated by the Act. On November 23 Bulova wrote a' letter which is 'set out in part above. That letter constituted a refusal to meet because there had previously been, to use Bulova's own phraseology, "actual collective bargaining,. which was terminated by the men and not by the management." Bulova's letter of November 23 constituted an additional refusal to bargain. ' From November 3 and 4, when the respondent had conditioned further'meet- inzs upon the return of the strikers to work- until November, 27 and 2R. there GREATER` NEW YORK BROADCASTING C'OiRP'O'RATTON 771 had not been expressed even a conditional willingness to continue negotiations. On November 27, in a telephone conversation with Boudin, and on November 28, in a letter to Kerr, Cohen indicated that the respondent was willing to con- tinue negotiations "upon the express, condition" that A. C. A. first recognize that the employees, as yet unidentified as to name or even number, considered by the respondent to have been responsible for alleged sabotage would under no circumstances be permitted to return to work. This conditioning of negotia- tions upon A. C. A.'s first making such a blanket concession constituted a fur- ther refusal to bargain. Bulova's letter of December 9, set out hereinabove, answered a request from a high official of the C I O. for a meeting with a reiteration of the respondent's position that A. C. A had no right to ask for any fur they meetings, since the respondent had been engaging in bona fide collective bargaining when the strike had been called. Thus while the labor organization involved was willing to approach the matter anew through a higher official, the owner of WOV was un- willing even to meet to explore the question. This constituted an additional refusal to bargain. The respondent refused to bargain with A. C. A. by its course of conduct following A. C. A.'s request of December 5 for reinstatement' of the strikers. That request was met with a long letter again recapitulating events prior to -the strike That the respondent erroneously believed that the strike had absolved it from any further duty to A. C. A. and the strikers is again apparent from that letter For instance, concerning the period before the station re- turned to the air, the respondent wrote that employees "who were under the duty to put and keep the station on the air" refused the respondent's requests that they do so. Nor does the respondent's statement in that letter of its willingness to let the Board determine "some fair, impartial, and equitable manner" for filling the "few positions" available excuse the respondent under the conditions of this case. An acceptance of that proposition would have amounted to a tacit acceptance by A. C. A of the respondent's' position concern= ing the majority of the positions which the respondent contended either could not be filled by any of the 15 unnamed employees because of alleged sabotage, or had already been filled by permanent new employees.."' The respondent's' failure to deal directly and forthrightly with A. C. A. concerning the 'reinstate- ment of the strikers is further shown by its procedure after A. C. A. wiote on December 11 asking for specific answers to certain questions Instead of provid- ing A. C A with forthright immediate answers, the respondent made no re- spouse for about 10 days. In the meantime it had proceeded to require the strikers to sign individual applications as new employees and had interrogated them individually as to activities during the "strike. It'had arranged for the return of such strikers as it wished Thereupon, in its letter of December 21, the respondent confronted A. C. A with an accomplished fact. Bitsically the situation after the strike resolves itself into a question of whether or not a believe on the part-of the respondent that the strike was unjustifiably called during negotiations and was accompanied by illegal acts could opeiate to deprive A C A of its right to represent the respondent's employees The undersigned is convinced that it could not. A C. A's right of representation was a right conferred by the Act, and respondent's duty to bar- 87 The undersigned does not believe that the respondent then looked upon its staff as a normal or permanent staff The staff was admittedly not complete , high amounts of over- time were being paid, the staff was later reorganized m February of 1941, and the employees who had been taken on had been required to sign slips stating in effect that they were to have no permanency of tenure. 521247-43-vol 48--50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD" gain arises out of the same Act. The fact that a strike intervened, even though it may have been unwise and accompanied by wrongful acts, does not absolve the respondent from its duty nor suspend the right so conferred. In Matter of Reed & Prince Manufacturing Convpaliay " the Board rejected a similar con- tention that a strike had excused the respondent from its obligation to bargain under section 8 (5) of the Act, and said: . Nothing in. the language of the Act affords any support for such a proposition. Nor' would such a construction of the Act tend to effectuate its spirit or purposes The objective of the Act is to substitute collective bargaining for industrial warfare by requiring that an employer shall bargain collectively with the freely chosen representatives of his employees. If this objective is to be achieved it is fully as important that the bar- gaining process be as available during, the course of a strike as prior to or subsequent to a strike. Arid the fact that the strike may be. tortious or enjoinable does not alter the situation. Were the respondent's argument to be accepted it would mean that, at the very'point when an individual controversy becomes most bitter and when the collective bargaining pro- visions of the Act should provide- a peaceful means of settlement, those provisions -are cast aside and the employer is permitted to engage in unrestricted violation thereof. The same considerations are equally applicable in the present case. While the matter is not without doubt, the undersigned for reasons stated above has not found that the respondent refused to bargain prior to the strike. However, on the basis of the record as a whole, and the findings hereinabove set forth, the undersigned hereby concludes and finds that the respondent on November 4, prior to the resumption of operations, and at all times thereafter, has refused to bargain collectively with A. C. A. as the exclusive representative of its employees in an appropriate unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The treatment accorded the 34 strikers 9 - On November 3 and 4 the 34 complainants went on strike and ceased to be carried on the respondent's pay roll. The Board and A. C. A. contend that these 34 persons were discharged at that time because they went on strike and engaged in concerted activities in behalf of A. C. A. The respondent contends that on or about November 3 or 4, 19 of the complainants "voluntarily left the employ of the respondent" and that the other, 15 were discharged at that time for miscon- duct. There is no dispute that 13 of the 34 complainants were later returned to the respondent's pay roll and that thereafter 4 of the 13 so returned ceased to be employed 90 As to reinstatement, the complaint as clarified at the_ hearing alleged that because they went on strike and assisted A. C. A., 21 of the 34 strikers were denied reinstatement altogether; that one, McDonald, was reinstated in an infe- rior position; that 3 ' were reinstated upon their respective applications upon 88 Matter of Reed cC Prince Manufacturing Company and Steel Workers Organizing Com- mittee of the C I O , 12 N L R B. 944, enf'd as mod in N L. R. B v. Reed of Prince Mfg. Co., 118 F. ( 2d) 874 (C. C. A. 1), cert. den, 313 U. S 595. 19 The names of the 34 complainants, classified as to the contentions concerning them and the dates of subsequent employment with the respondent, ate set out above in footnotes 1, 3, and 5 90 The names of those 13 complainants , along with the dates and circumstances sum- rounding their subsequent employment , are set out in the lower half of footnote 1. GREATER NEW YORK BROADCASTING CORPO'RATTION 773 certain dates ; s' that 9 were refused reinstatement until certain dates ; and that 2 of, the 9, Hopkins and Sbchin, were subsequently 'discharged. The position of the respondent in its answer was that 14 of the 34 complainants were refused reemployment because they had been discharged for misconduct, that one, Boley, who also had Fbeen so discharged, was subsequently "voluntarily re-employed"; that 12 of the 19 who "voluntarily left the employ of the respondent" were "re- employed"; that 2 of those, Hopkins and Suchin, were later discharged for cause on February 8, 1941; and that the remaining 7 who had voluntarily left their employment had at no time been "re-employed" because their positions had been filled.02 _ Upon consideration of all the evidence, the undersigned is convinced and finds that the respondent did not actually discharge any of the strikers on November 3 and 4, but rather used threats of loss of employee status in an attempt to break the strike and later used the contention that it had discharged employees for sabotage as a subterfuge to avoid bargaining with A. C. A. Several elements in the picture lead to the foregoing conclusions. On October 25 the respondent, under threat of strike' action, warned the employees formerly under contract that if tney went on strike they would lose their jobs. On November 4 the respondent informed two technicians that they Would lose their jobs by striking when they refused to put the transmitter in operation. That same morning Study was told that all who refused to come. back to work were through. Furthermore on November 4 several miscel- laneous employees were given the choice between remaining loyal to the -re- spondent or losing their jobs. Viewed in the light of the entire record, none of the foregoing constituted actual discharges of employees. For instance, realistically, considered, Cohen was not discharging miscellaneous employees on the morning of November 4. Rather he was trying to force them to abandon A C. A. on the pain of not getting their jobs back if they went on strike. Thus Cohen told Zappulla that if he sided with the strikers he would "never be taken back." When Zappulla still indicated his intention to strike, Cohen enlisted the aid of Leipzig in attempting to get Zappulla to stay. Again, Cohen offered Sokal a better position, and broadly hinted to Steinberg a possible ad- vance in pay. True, Cohen made it clear that to remain loyal to A. C. A was to forfeit one's job, but that was part of the respondent's effort to break the strike just as Kay's talk on October 25 was an effort to scare employees into abandoning a threatened strike It should be borne in mind that at the beginning of the strike Lavit was encouraging strikers to visit Bulova, and that the respondent at once, took back Capozucchi when he abandoned the strike on November 5. In the same way, the persons allegedly discharged for sabotage were not in fact discharged at all. They were rather threatened. Lavit's action on Novem- ber 4 was an attempt to, scare two technicians into returning to work to avoid losing their jobs as some musicians had done in a previous strike. ' Cohen's statement to Study that same morning was a general threat of loss of em- ployment to those who would not return to work. That the respondent did not then consider it had discharged anyone is shown by Cohen's statement later that day to Kerr, setting as one of the conditions of a meeting with A. C. A. that 93 Those were the first three to resume employment , Capozucchi , Forno , and Schramm. They all returned prior to A . C. A 's letter of December 5 requesting reinstatement of the strikers . The complaint differentiated those three from the others who resumed employment in that it did not allege refusal to reinstate them 92 The names of those-seven persons -are set out in '-footnote 5 During the course of the hearing, upon request by the undersigned that the'respondent Clarify its position as to them, the respondent took the position that the job of each had been filled and furthermore that two of the seven, Janowitz and Lowenbraun, had not applied for reinstatement. Losenbraun was included in A. C A.' s letter of December 5, but Janowitz was not. p P 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strikers return. It is significant' that in reporting to the Division the reason for the unemployment of at least three of the strikers included in the respondent's eventually submitted list of 12 purportedly discharged for sabo- tage, the respondent did not report their loss of employment as due to mis- conduct but rather as due to thellabor dispute then current. Finally, it is noteworthy that neither A. C. A. nor the respondent contempo- raneously appraised the events in terms of discharges Thus Adler did not complain of discharges to Kerr on November 4, but rather asked that Cohen be prevented from telling the miscellaneous employees that they were through if they did not quit A C. A and come back to work. In A. C. A.'s charge of November 6, there was no'allegation of discharges, but rather of offers of rein- statement provided employees would resign' from A. C. A. Likewise the re- spondent's own letters show that it was uncertain as to whom it,contended were among the group it purportedly suspected of sabotage and that its "in- vestigation" was continuing during the first several weeks of the strike. The respondent's letter of November 7 did not contain any mention of discharges, but referred rather to persons who "retired and left our employ" Bulova's letter of November 23 referred to the matter as "still under investigation to fix the individual responsibility," and lumped together taking the station off the air and tampering- with equipment. ' Toward the end of November; Cohen placed as a condition for continuing negotiations that A. C. A. first recognize that unnamed and unnumbered employees whom the respondent regarded as respon- sible for acts.of sabotage were discharged and would "not under any circum- stances be permitted to return." It was the letter of December 6 which set 15 as the figure but still gave no names. However, the respondent's later letter of December 21, written subsequently to the interrogation of individual strikers, referred to "our investigation which is still continuing as to their possible participation in the illegal acts." , That the list of 12 names finally furnished A. C. A on, December 23 through the Regional Office, and the respondent's actions in returning certain employees to work, embodied inconsistencies with the respondent's earlier positions is shown by the facts set out hereinbefore On December 5 A. C. A. made an unconditional application for reinstate- ment of all the strikers except the three who had already returned and Jano- witz Since the respondent's unfair labor practices had made vulnerable its normal freedom in selecting its employees, the fact that new employees had been hired during the strike could not bar the strikers from reinstatement upon application to their former or substantially equivalent positions without sacri- fice' of their seniority or other rights and privileges. Yet the respondent re- fused to deal with A. C. A. in a forthright manner concerning reinstatement of the strikers. The employees who subsequently were returned were required to sign new applications containing objectionable 'clauses, and were treated as new employees. The respondent took back whom it chose, and refused to produce at the hearing the best evidence of the basis of its choice, the transcrip- tions made of the nnd-December interviews with the individual strikers. On the whole, the respondent's treatment of the strikers, especially of its oldest and most experienced employees, can be explained only as due to its hostility toward them because they persisted in the strike in spite of the respondent's warnings. From Kerr's letter of December 23, the respondent's position was that em- ployees other than the 12 named therein were "eligible for reinstatement as there were openings." Yet .the record reveals several examples of discrimina- tory treatment even on that basis. Thus while the staff was being increased by 25 per cent, no positions were offered to several of the strikers who were'not 1IREATE-R NEW YORK -BROADCASTING CORP'0'RATPON 775- among those allegedly discharged for misconduct . For instance , neither sound- effects man was ever offered reinstatement although only one was named as discharged, and Murgia was not offered either of two positions which her long experience qualified her to fill. On all the evidence,"the undersigned is of the opinion and finds that the respondent never offered to or gave substantially equivalent employment to any of the strikers named in A. C. A.'s letter on December 5. Cohen testified, that all of the returned strikers were treated as new employees. McDonald unquestionably would have been entitled to his position as control room super- visor on and after January 20, 1941,\ and to 2 weeks' vacation in the summer of 1941 if he' had been given full reinstatement. The respondent's failure to accord the foregoing to McDonald illustrates the way in which failure to restore to the returned strikers their seniority rights operated to their detri-- meat. Without such rights, the employment of the returned strikers cannot be considered to constitute the substantially equivalent employment to which they were entitled As in McDonald's case, deprivation of the protection of seniority rights must also be assumed to have operated detrimentally to Hopkins and Suchin when they were discharged on February 8, 1941. Many new employees were being taken on during that period, but Hopkins and Suchin presumedly would have been retained on the basis ' of their seniority. In the absence of any con- vincing specific evidence by the respondent that Hopkins and Suchin were discharged on February 8 for cause, which evidence, if it existed, was par- ticularly within the knowledge of the respondent, the undersigned infers and finds that their discharges were in fact the result of the respondent's previous unfair labor practice in failing to give them full reinstatement upon due appli- cation following the strike. Accordingly, no further, finding is made as to their second discharges which are considered hereinafter as constituting a phase of respondent's refusal to accord them full reinstatement °' Even aside from other considerations, the offer of the night telephone opera-' tor's position to Murtaugh, whose position had been that of day telephone opera- tor, was not an offer 'of substantially equivalent employment in view- of the less desirable hours and smaller pay. Under the circumstances, Janowitz was also entitled to reinstatement at the time A. C A. requested the reinstatement of the strikers, although he was not included in the request, nor was he a member of the A. C. A. While he did not testify, the complaint alleged that Janowitz was refused such reinstatement. There is no evidence contrary to the respondent's contention that he, like Lowen- braun, filed no application individually.' However, Cohen 'admitted having a conversation with Janowitz substantially like the conversations held with other miscellaneous employees on November 4 Those'conversations, as the undersigned has found above, involved threats that those who went on strike would lose their jobs by°so doing. Since Janowitz went on strike in the face of such an illegal -threat made to him individually, it was incumbent upon the respondent to rectify 93 A. C. A. in its brief contends that , like Hopkins and Suchin , Norman was also dis- charged in violation of his seniority There is no allegation In the complaint of a second discharge of Norman , who returned to work on December 12 after his inclusion • in A C A 's letter of December 5. No specific consideration is being given herein to Norman 's separa- tion on May 10, 1941, as such However, since Norman is one of the strikers who is hereinbelow recommended to be reinstated without prejudice to his seniority or other rights, if the respondent in fact did , disregard at the time of Norman 's separation on May 10 such -seniority rights as would have accompanied full reinstatement , such disregard is but a phase of the failure to give full reinstatement to Norman. 04 The failure of any striker who was included in A. C. A.' s letter of December 5, as was Lowenbraun , to make an individual application thereafter is immaterial 776 DECDSION'S OF 1\TATIONAL I ABOR REII^ATIONS BOARD` its prior unfair labor practice by notifying Janowitz, that,' in view of A C. A:'s unconditional willingness to have the strikers return, his position was open to him. The cases of complainants Capozucchi, Forno, and Schramm rest upon a dif- ferent basis. There is no allegation in the complaint that the respondent ever refused to reinstate them. In fact, they were all taken back before A. C. A.'s group letter of application. In view of the, pleadings, and the finding that no employees were discharged on November 3 or 4, the undersigned does not find any violation of Section 8 (3) of the Act as to Capozuechi, Forno, and Schramm. Consideration must now be given to the alleged sabotage. Since, as is found above, no employees were discharged at the time the sabotage was allegedly committed, and since the list of names of persons allegedly discharged for sabotage was not submitted until after A. C. A's request for reinstatement of the strikers, the problem arises as to whether the evidence concerning sabotage warrants a holding that the respondent justifiably refused certain employees reinstatement for the reason that it genuinely believed them to have been im- plicated in the commission of sabotage, assuming, argueudo, that the respondent's long delay in specifying such individuals was excusable because time was re- quired to conduct its investigation. Several findings made hereinabove relate to the foregoing problem. As to the 'alleged sabotage itself, the respondent's evidence consisted almost entirely of Holt's testimony. Holt described approxi- mately 20 conditions which he testified he had found on November 3 and 4 and which he believed were deliberately produced to keep the station from operating. A- few of the conditions which Holt described were satisfactorily explained at the hearing, and had previously been explained to a representative of the F. C. C. and to the respondent, as resulting from normal procedure. Admittedly` the conditions, both explained and unexplained, could have been brought about, if in fact they all existed, by a single individual in a relatively short time. Several strikers allegedly suspected of sabotage made credible denials at the hearing that they had committed acts other than those explained as usual procedure. There was no proof adduced that any striker had actually com- mitted an act of sabotage or had ever admitted to anyone that he-had. Nor was anyone ever brought to trial or to hearing before the F. C. C on any charge of sabotage On the contrary, two individuals known to the F. C. C. to have been among those accused of sabotage were queried by the F. C. C. as to their willingness to accept responsible government positions. However, since some of the equipment used at WOV was not standard and was not being kept in peifect, repair ^ pending 'its displacement with new equip-' ment ; since the technicians who undertook to operate that equipment were, unfamiliar with its peculiarities ; and since the respondent highly resented A. C. A.'s striking the station and believed that its employees had no right to, take the station off the air; it is possible that the respondent's anger might have magnified things which were reported to it into a seemingly plausible basis for charging sabotage. But whatever the respondent's suspicions may have been,- they were not sufficiently strong or enduring to result in any written report to the F. C C. on the nature of the alleged sabotage, although its responsibility to the F.' C: C. was repeatedly stressed in the respondent's correspondence following the strike. No purpose -would be served in analyzing all of the voluminous evidence concerning conditions which Holt testified that he found. Clearly Holt's inter- pretation of some of the conditions which he actually did find was due to his lack of familiarity with the equipment and,with practices at the station. The problem of the "missing mixer," the presence of the clip lead on the transmis- GREATEfR' NEW YORK BROADCASTING 61ORP'0RArZ10N , - 777'. sion line, the absence of patch cords in the jack panels, and the failure to under- stand abbreviations on labels on some of the equipment, are all cases in point Other conditions found were undoubtedly due to the fact that the transmitter building wad being remodeled and that certain minor repairs were not being made on the old traismitter as time was required for preparations for the in- stallation of new transmitter equipment For instance, Holt testified that he found two defective tubes in the audio monitor. The audio monitor involved was one method of enabling the transmitter technicians to hear the programs going out over the air It had not been used for some weeks prior to the strike because of the difficulty involved in keeping it hooked up while electricians were rewiring the transmitter building The same result was being accomplished during that period with less bother by using a portable radio set. In some cases the significance of the conditions claimed to have been found was exaggerated. Thus, if Holt did find that no current was being supplied to the ovens controlling the temperature of the crystals,' the undersigned is con- vinced on all the, evidence that the conditions were not due to any act of the strikers and that it did not materially delay the return of the station to the air since the crystals were low temperature coefficient crystals which could have been put in use at once tinder the ambient temperature then prevailing without putting the transmitter outside of its permitted frequency tolerance. Furthermore, an outside check which was customarily used in starting, up a transmitter was readily available to Holt in determining if the transmitter was operating on frequency. The respondent's contention that it found sabotage at the studios the evening of November 3 does not square with its failure to visit the transmitter until after 7 a in on November 4 and its failure to ask the strikers to leave the trans- mitter until that time. Furthermore, on the whole, Holt's testimony was not clear as to the sequence of his activities in discovering the alleged sabotage, and' was unconvincing. Take for example Holt's alleged removal early in the eve- ning of November 3 at the studios of the door to the record room in which the fuse panel was located. Holt testified that he found that door locked; that he "took the hinge pins out and pried the door oven" after Kay had told him that she did not have the keys and that he "would have to break down th. door" ; that there had been "somewhere between five minutes and a half hour" of "discussion as to the advisability of breaking down the door" ; and that he was not sure whether or not he had asked Kay whether there was another door to the record room. As to what transpired prior to Holt's removing the door, Cohen testified, "Miss Kay tried some keys and they didn't work. She tried her own, she-said some master key, and the door wouldn't open " Any general. office key which would have opened the door from the outer hall into the inner hall which led to the various- offices, including Kay's, would have opened the record room door which Holt allegedly removed That record room door also could have been opened by a master key such as Kay carried Furthermore, , upon their leaving the studios a few hours before, the striking employees, in- cluding Alper, who worked in that room, had turned in their keys to Kay The undersigned is convinced and finds that on the evening of November 3, Kay, 95 Each radio station has two crystals which are contained in electrically heated ovens. Those crystals are used alternately . It is the oscillation of the one in use which controls the frequency of each radio station, which frequency is assigned by the F C. C. From its frequency, each station is permitted only a restricted deviation Holt testified that the ciystals were cold on November 4, the main power switch having been shut off contrary to usual station procedure , and that that ha,^ materially delayed getting the station back on the air. 778 DECISIONS OF NATIONAL .LABOiR R.ELA'rIONS BOARD who did not testify, had a key which would have opened the record room door. As the above findings show, the respondent, on the evening of November 3, as expecting Study to assist in breaking the strike. This he failed to do. However, it was Study's telephone call that night, according to Holt and Cohen, which led to the discovery of scotch tape on the tips of two fuses in the fuse panel in the record room. According to Holt's testimony, prior to the removal about 10: 30 p. m. of those two circular pieces of scotch tape each smaller than a dime, he had been, able to get power in the control rack in the control room only by a temporary circuit made by connecting the control rack to a base plug ,in the control room, and had been operating equipment for several hours by means of power furnished through that temporary connection. According to McDonald, whose testimony thereon the undesigned believes,D6 there was no base plug on a separate circuit in the control room but only an ordinary outlet on the main circuit, which circuit also supplied power to the control rack. From McDonald's testimony it is clear that no such temporary hook-up, as Holt testified he had been using for some time prior to Study's telephone call, could have been wired up the way Holt described ' it since if the control rack was not receiving power the base plug which was on the same circuit could not have been receiving power either. Clearly, it would contravene sound public policy to condone sabotage or the illegal seizure, of property. On the other hand, it would be contrary to the declared public policy of ,the Act to permit such charges to be used as a smoke screen for the commission of unfair labor practices. Upon the record as a whole, as interpreted in the light of the undersigned's inspection of equipment and premises in the company of all counsel, the undersigned concludes and finds that the record does not establish that A. C. A. or the strikers individually partici- pated in or had knowledge of the commission of sabotage, if in fact any was committed. From all of the evidence the undersigned further concludes and finds that nothing in the way the strike was called and conducted constituted seizure of or misuse of the respondent's property or any substantial violation of the rules of the respondent or of the F. C. C. The undersigned also finds, everything considered, that any belief which the respondent may have enter- tained concerning any conditions which may have been found was secondary in determining the respondent's course of conduct to its primary determination to make good' its threat to the strikers of loss of employment and to avoid dealing with A. C A for any group of its employees. Accordingly, the alleged com- mission of sabotage, the'alleged seizure of property, and the alleged violation of rules cannot excuse the respondent's failure to reinstate any of the strikers or stand as a- bar to the Board's ordering them reinstated. In accordance with the foregoing, the undersigned finds that the respondent, by its failure to accord full reinstatement to them, has discriminated in regard to hire and tenure of employment of the 31 individuals whose names appear in Appendix A of this Intermediate Report, thereby discouraging membership in A C. A. and interfering with, restraining and coercing its employees in the, exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that the respondent did not discharge any of its employees on or about November 3 or 4, 1940. 66 McDonald, the former control room supervisor, was asked on cross-examination by the respondent on October 10, 1941, about the circuit in the control. Holt's testimony that he made a temporary connection as above described was not given until October 29. It should be noted that according to Holt's testimony he did not find the scotch tape when he first inspected the fuse, early in the evening after he removed the record room door. 0 GREATER NEW YORK BR'OADCASTIN'G COR'F0'RATTON 779 3. Interference, restraint, and coercion International's securing of signatures to the application blanks above. de- scribed during the latter half of 1939 was violative of the Act because of the way it was done and some of the wording on the blanks. There is no showing that International discussed the question with representatives of the two contracting unions involved in an attempt to reach an understanding on a matter which af- fected substantial , rights of 'the members. of those unions. Furthermore, the phrase, "I am to have no employment contract," does not distinguish, between a collective bargaining contract and an individual contract against a claim of which protection was allegedly being sought. In addition, the phrase, "I can leave or be dismissed at any time for any cause without notice," is repugnant to the Act which proscribes discharge to encourage or, discourage membership in any labor organization. Moreover, the contracts then in effect provided for pro- cedures in relation to discharges which included notice and negotiations thereon In view of the foregoing, and the respondent's continued use of applications containing the offensive clauses, the undersigned finds that the use of such applications by International and by the respondent interfered with self-organiza- tion in violation of the Act. In a similar way, the respondent's change of the lunch hour practice in the spring of 1940 was a violation of the Act, in view of the way the change was made. The respondent's action involved a change in an established practice, which practice was also covered by contracts. - Since the change was not taken up with A. C. A., although all of the employees affected were covered by its con- tracts, the respondent's unilateral action,' however legitimate its motive of economy may have been, tended to discourage self-organization, in that it made insecure the fruits of self-organization by undermining the stability of duly negotiated collective bargaining agreements and the procedures therein for the adjustment of differences. On September 30, 1940, by having individuals indicate by their signatures that they had read a statement containing the respondent's position on the lunch hour_matter,'the respondent again violated the Act. While the respondent had a right to.negotiate for a change in the terms of new contracts, there was no warrant for its stressing its position on a matter to be negotiated directly to its employees at the outset of the negotiations. In several respects the meeting of October 25, 1940, with employees covered by the then recently expired contracts was a violation of the Act. The meeting was held at a time when Kay was negotiating with Adler, whom she knew to be A. C. A's representative. Hence the holding of the meeting is not mitigated by the fact that various of the employees had served from time to time on the bar- gaining committee. Nor does the respondent's contention in its brief that A. C. A. was then refusing to bargain for those employees have any merit. At that meet- ing Kay urged employees to take a position different from that being taken by their duly designated bargaining agent and threatened them with reprisals if they engaged in the concerted activity of striking. However, the record does not establish that the respondent misrepresented that the Board had no juris- diction with respect to the issue of the appropriate bargaining unit, or that the respondent urged and offered inducements to its employees to form an unaffiliated labor organization, as alleged in the complaint. The respondent also violated the Act in relation to Study in several respects. Obviously Study owed the respondent certain duties as a supervisor in charge of the technicians and the technical equipment, and had to work closely with Kay in exercising management functions at the station. But Study was, and had been from the beginning, a member of the A. C. A. covered by the several 0 780 DECISION'S OF NATIONAL LABOR RELATIONS BOARD technicians' contracts. Kay's request about October 25 that Study try to get technicians to sign a statement, assuming the statement to have involved only a petition in line with Kay's proposal at the October 25 meeting and even though Study did not comply with the request, overstepped the permissible be- cause it was an attempt to use the influence of Study, a known member of A. C. A., to promote the respondent's position in contrast with A. C. A.'s position. Moreover, Kay's request that Study ascertain which miscellaneous employees were in A. C. A. constituted a violation of the Act, although there is no evi- dence that Study complied with the request, because in so doing Kay was ask- ing a known union man to supply her with union information which the re- spondent had been unable to secure from A. C. A.'s accredited representative. It is, not found herein that Lafount's remark to Study on October 24, that he assumed Study would be included in any strike, constituted a violation of the Act. However, Cohen's statement to Study on October 29 was of a different order. The respondent already knew that Study was to be included in a strike if one was called. Therefore, since the respondent was later counting on Study to help break the strike and since Cohen chided Study on November 3 for not coming in, the undersigned believes and finds that Cohen's insistence that the respondent did not want the chief engineer to be a member of A. C. A. constituted interference with the right to self-organization and as such was proscribed by the Act. Similarly, the respondent interfered with the rights of its employees to self- organization when, about October 25, through its sales manager, Nardella, it sought to get Zappulla to go to Kay to arrange for a better position in the event of his willingness to continue working during a strike. In like manner, Kay's and Cohen's attempt to get Study to assist in putting the station on the air November 3 was an attempt repugnant to the Act to get a member of the A. C. A. to desert strike action by his organization. Cohen's statement to Study the morning of November 4 that those who did not return were through was clearly coercion to get employees to abandon the strike, and further involved a thinly veiled threat that they would be accused of sabotage if they did not. The action of Lavit the morning of November -4 at the transmitter, in trying to persuade Neuwirth and Kearney to abandon the strike under threat of job loss, was a further attempt to break the strike, as were his attempts on November 6, 7 and 8, to get Sokal and McDonald to go directly to see Bulova. The foregoing were all proscribed by the Act. Cohen's activity in respect to the miscellaneous employees on November 4 was plainly violative of the Act and was tantamount to an ex parte election in that group. While Cohen is not found herein to have discharged those em- ployees, the choice with which he confronted them clearly constituted a high degree of coercion. The respondent again violated the Act during its interviews with employees individually about the middle of December. This violation was three-fold in nature As strikers they continued to be employees and, since the strike had been prolonged by the -respondent's unfair labor practices, they were all entitled to full reinstatement to their former positions on the basis of A. C A's previ- ously made application of December 5. Yet the respondent required each to sign an application as a new employee. In the second place, the application used contained language clearly repugnant to the Act, for the employees had a right to look forward to a collective employment contract and to a recognition of their legal right of security against discharge for concerted activities. Finally, the respondent used those interviews to apprise itself of the activities during the initial period of the strike not only of the individuals being interviewed at the time but of other strikers. Under the conditions of this case, the under- signed is convinced and finds that, in so questioning those individuals, the re- GREATER NEW YORK BROADCASTING CORP ORATION 781 spondent was not conducting a permissible investigation of alleged sabotage or any other matter within its domain, but rather was using what was ostensibly -offered as an opportunity to apply for work as an opening to-conduct a fishing expedition into the activities of A. C. A.'s membership during the strike, in the hope of obtaining information which could be used to justify the position which the respondent had taken. The respondent's failure to answer Study's letter of January 15 was violative of the Act. Study asked for a letter of recommendation covering matters usu- ally included in such a letter, and' stated that he also needed a letter specifying his duties and period of service in connection with a renewal of his F. C C. license. The respondent never answered Its defense that it could not truthfully have, written a letter that would not do Study more harm than good is not impressive It is obvious from the wording of Study's letter that he desired the requested letters sent to him. If such letters had not appeared usable to Study, he could have refrained from using them. Furthermore, the letter re- quested for use in connection with renewal of his F. C. C. license required no recommendation, but merely a recital of dates and duties. The respondent's indignation at Study's failure to assist in putting the station in operation on November 3 and Cohen's admitted feeling that Study had greater responsibility to the respondent during the strike than other strikers, when considered in the light of the record as a whole, leads the undersigned to conclude and find that the respondent's real reason for ignoring Study's letter was its resentment at Study for having identified himself with the strikers rather than with the respondent.97 The refusal during 1941 to permit announcers, including Berry, who were members of A. C. A. the use of the respondent's facilities for free lance an- nouncing as employees of.-independent contractors, under the conditions in the instant matter, constituted a further violation of the Act.9B Free lance an- nouncing is a recognized practice in radio broadcasting. Berry and other strik- ing announcers were entitled to the customary privilege of free lance announcing in the employ of independent contractors such as Pastene. Cohen's claimed fear at the bearing that Berry might make another unauthorized announcement over WOV was not stated at the time of the respondent's refusal to permit Berry to use its facilities, and is not persuasive. Furthermore, it is clear that the reason Cohen and Lafount did give Berry for the refusal, the pending suit against the station, cannot operate as a justification for the respondent's action. ,One does not forfeit his protection under,the Act, or his customary privileges in his field of work, by joining with other members of a labor organization to obtain what he believes to be his rights under a collective bargaining agreement. The undersigned finds that, by the acts described in this section of this Inter- mediate Report, the respondent has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.9B 97 While actions such as the above, and the respondent's general charge of sabotage de- tracted from the chances of the strikers to secure employment elsewhere, the evidence does not warrant a finding that the respondent attempted to blacklist strikers and otherwise prevent their securing employment with other employers, as alleged in the complaint 98 The issue was tried out on the basis of Berry's case , but at least in the case of one other announcer , Polimeni , a similar situation'arose. t Analysis of the above found violations, in terms of the violations alleged in paragraph 19 of the complaint, shows a violation of each of the several types alleged in said paragraph 19, except that the evidence does not establish that the respondent urged and offered in- ducements to its employees to form an unaftihated labor organization ; did not misrepresent to its employees that the Board had no jurisdiction to determine an issue concerning the appropriate unit ; and did not attempt to blacklist strikers and prevent their securing em- ployment with other employers Accordingly, it is recommended below that the foregoing allegations of the complaint be dismissed. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I elation - to trade, traffic and above, have 'a close, intimate, and substantial' relation-to' commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain, affirmative action designed to effectuate the policies of the Act.' It has been found that the respondent has refused to bargain collectively with A. C. A. as the representative of a majority of the employees in an appropriate unit. It will therefore be recommended that the respondent upon, request bargain collectively with A. C. A. It has been further found that the strike was prolonged by the respondent's. unfair labor practices and that the respondent thereafter discriminated against the strikers whose names are set out in Appendix A in regard to their hire and tenure of employment. In order to effectuate the policies of the Act, it will be recommended that the respondent offer those employees full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Such reinstatement shall be ef- fectuated in the following manner. All employees hired by the 'respondent on and after November 4, 1940, the day upon which the strike became prolonged' by the respondent's unfair labor practices, shall, if necessary to provide,, em- ployment for those to be offered reinstatement, be dismissed. If, thereafter, despite such reduction in force, there is not sufficient employment available for the employees to be offered reinstatement, all available positions shall be distributed among the remaining employees, including those to be offered reinstatement, without discrimination against any employee because of his union affiliation or activities, following such system of seniority or other prac- tice to such extent as heretofore has been applied in the conduct of the respond- ent's business. 'Those employees,' if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list and offered employment to their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by such system of seniority or other practice as has heretofore been followed by the. respondent. It will be further recommended that the respondent make whole the striking employees *hose' names are set out in Appendix A for any loss of pay they may have suffered by reason of respondent's refusal to accord to them full reinstatement, by payment to each of them of a sum equal to the amount which he normally would have earned as wages and fees from the date of the application for reinstatement on December 5, 1940, to the date of the respond- ent's offer of full reinstatement or placement upon 1the preferential list above described, less his net earnings,100 during said period. 100 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v N L R B., 311 U S. 7. GREATER NEW YORK BR'OADCAST'ING, COIRP'ORATTON 783 In the above section concerning the treatment accorded the strikers it has been found that the employees taken back after December 5 were not accorded' full reinstatement since they were considered to be and were treated as new employees and were thus deprived of their seniority and other rights. To accord the full reinstatement which is recommended herein and to make whole the employees set out in Appendix A for lack of such full reinstatement will require,that the respondent compensate each individual for any loss which he may have incurred due to the respondent's failure to accord him the rights and privileges which he would have enjoyed upon full reinstatement. The above findings set out situations of this nature which must be remedied. For instance, full reinstatement would have entitled McDonald to his position as control room supervisor on January 20, 1941 and to two weeks' vacation instead of one during the summer of 1941. Accordingly, McDonald must be reinstated to his former position as controlling supervisor and made whole for such differ- ence in pay as may have existed between that position and his present posi- tion. McDonald must further be accorded an additional week's vacation or a week's pay in lieu thereof. As to Hopkins, Suchin and Norman, the full reinstatement to which they were entitled' required ' such protection to each of them in any subsequent lay-offs or reorganization of staff as the respond- ent's seniority practices `involved, and they must be made whole for any losses they may have suffered because of any departure therefrom. The record shows that it was the regular practice at WOV for announcers to receive fees in addition to their regular salaries, for announcing, writing' and servicing commercial programs. Hence,' announcers must be made whole not only for loss of salary, but also for any loss of fees,which would have been received in connection with commercial programs which they had regularly serviced.10i ' Upon the basis of the above findings of 'fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1 American Communications Association, Local 16, affiliated with the Con- gress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2' All announcers, including the program director ; technicians, including the chief engineer ; sound-effects men ; and miscellaneous employees, the said mis- cellaneous employees comprising stenographers, typists, clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watchman and trans lators employed by the, respondent at its studios and its transmitter, but not including salesmen, musicians, publicity men, station manager, executives and officers, at all times material herein constituted' and now constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. American Communications Association, Local 16, affiliated with the Con- gress of Industrial Organizations, is and at all times since October 18, 1940, has been the exclusive representative of all the employees in the above unit, for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 301 That the payment of such fees to announcers in addition to their regular staff salaries was an established practice is shown by the fact that the matter was covered in the announcers' contract which expired on October 1, 1940 , and by similar provisions for the payment of such fees in the announcers ' agreement being negotiated at the time of the strike, such provisions not being objected to by the respondent except insofar as the,scale proposed by A. C. A. was higher than the former scale. J ,784 DECISIONS OF,NATIO\AL LABOR RELATIONS BOARD " 4 By refusing on November 4, 1940, and at all times 'thereafter, to bargain-, collectively with American Communications Association, Local 16, affiliated with the Congress of Industrial Organizations, as the exclusive representative of its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act , 5. By discriminating in regard to the hire and tenure of employment of the striking ,employees listed in Appendix A of this Intermediate Report, thereby discouraging membership in American Communications Association, Local 16, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in, the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not engaged in unfair labor practices by discharging employees on or about November 3 and 4; by urging and offering inducements to4its employees to form, aid, become and remain members of an unaffiliated labor organization confined to the employees of the respondent ; by misrepre- senting to its employees that the National Labor Relations, Board has no jurisdiction with respect to an issue concerning an appropriate bargaining unit among the said employees; and by attempting to blacklist and otherwise to prevent employees from securing employment with other employers. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the, undersigned recommends that the respondent, its officers, agents, successors and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with American Communications Asso- ciation, Local 16, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all announcers, including the program director ; technicians, including the chief engineer ; sound-effects men ; and miscellaneous employees, the said miscellaneous employees comprising stenographers, typists, clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watchman and translators employed by the respondent at its studios and its transmitter, but not including salesmen, musicians, publicity men, station man- ager, executives and officers ; (b) Discouraging membership in American Communications Association, Local 16, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employ- ment or any terms or conditions of their employment ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bar-- gaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : GREATER NEW YORK BROADCASTING C'OIR'PORA'TTON 785 (a) Upon request, bargain collectively with American Communications Asso- ciation, Local 16, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all announcers, including the program director ; technicians, including the chief engineer ; sound-effects men ; and miscellaneous employees, the said miscellaneous employees comprising stenographers, typists, clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watchman and translators employed by the respondent at its studios and its transmitter, but not including,the'salesrnen, musicians, publicity men, station manager, executives and officers, in respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Offer to the employees, whose names appear in Appendix A of this Inter- mediate Report, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section titled "The remedy" above; and place these employees for whom, employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter in said manner, offer them employment as it becomes available ; (c) Make whole the employees, whose names appear in Appendix A of this Intermediate Report, for any loss of pay they have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment Ito each of them of a sum of money equal to that which he would normally have earned as wages and/or received as fees during the period'from the date of the application for reinstatement on December 5, 1940, to the date of the respondent's offer of full reinstatement or placement on the preferential list as set forth in the 'section titled "The remedy" above, less his net earnings 102 during such period ; (d) Post immediately in conspicuous places in its studios and its transmitter, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from whieh it is recommended that it cease and desist in paragraphs 1 (a), (b) and (c) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b) and (c) bf these recommendations; and, (3) that the respondent's employees are free to become or remain' members of American Communications Association, Local 16, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (e) Notify the Regional Director for the Second Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith It is further recommended that unless on or before twenty (20) days from date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. And it is further recommended that the complaint be dismissed insofar as it alleges that the respondent: (1) discharged any of its employees on or about November 3 and 4, 1940; (2) urged and offered inducements to its employees to form, aid, become and remain members of an unaffiliated organization confined to the employees of the respondent; `(3) misrepresented to its employees that the National Labor, Relations Board has no jurisdiction with respect to an issue concerning an appropriate bargaining unit among the said employees ; and ioa See footnote 100, supra. 786 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD (4) has attempted to blacklist and otherwise to prevent its employees from securing employment with other employers. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty ( 30) days from the date of the entry 'of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Ruhh-s and Regulations, file with the Board, Shoreham Building, Washington , D C, an original and four copies of a statement in writing setting forth such exceptions to the Interme- diate Report or to any other part of the record or proceedings ( including, rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board , request therefor must be made in writing `to the Board within twenty (20) days after the (late of the order transferring the case to the Board. EARL S. BELLMAN, Trial Examiner. 'Dated April 25, 1942 (APPENDIX A ,The thirty-one employees referred to in Sanford Alper Gaetano Ferri Maurice Kamke Vivian Murgia Eric Potts David Tanzman Charles Berry Walter Graham ,Frank Kearney Ann Murtaugh Arthur Olsen Alan Stratton Otto Janowitz Robert Dickens Ellis C. Jones Solomon Lowenbraun this report are: Karl Neuwirth Frank Polimeni Robert E. Study William Wegge Joseph Zappulla Richard Norman Rosalind Suchin Olga Steinberg Gilbert McDonald Samuel Sokal Joseph Garafalo Lena Corrado Frances Hopkins Joseph Boley Kennedy Ludlam