Radio Station WSB

In the Matter of ATLANTA JOURNAL COMPANY D/B/A RADIO STATION WSB and ATLANTA LOCAL, AMERICAN FEDERATION OF RADIO ARTISTS Case No. 10-CA-154.-Decided April 7, 1949 DECISION AND ORDER On August 4,1948, Trial Examiner James R. Hemingway 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 Inter- mediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. There- after, the Union and the General Counsel filed exceptions to the Inter- mediate Report; the General Counsel filed a supporting brief. The General Counsel also requested oral argument, which is hereby denied, because the record, in our opinion, adequately reflects the issues and the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with the Decision and Order herein. 1. The Trial Examiner found, and we agree, that by questioning its employees concerning their choice of a representative and by suggest- ing that their pay would be adversely affected by permitting the Union to represent them, the Respondent interfered with, restrained, and ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [ Houston , Reynolds, and Murdock]. 82 N. L. R. B., No. 98. 832 ATLANTIC JOURNAL COMPANY 833 coerced its employees, in violation of Section 8 (1) of the Act and Section 8 (a) (1) of the Act, as amended. 2. The Trial Examiner found that the Respondent had not refused to bargain with the Union within the meaning of Section 8 (5) of the Act or Section 8 (a) (5) of the Act, as amended. We disagree. We agree with the Trial Examiner, for the reasons set forth by him, that the Union was at all times material herein the exclusive repre- sentative of the employees in the appropriate unit within the meaning of Section 9 (a) of the Act. The sole issue, therefore, in determining whether the Respondent has refused to bargain within the meaning of the Act is whether, in spite of the fact that the Union was the exclusive representative of the employees at all times, the Respondent's ulti- mate refusal to bargain until the Union proved its majority 2 was based on a good faith doubt of majority .3 The determination in cases of this type of the question whether an employer is acting in good or bad faith at the time of such refusal is, of course, a determination which of necessity must be made in the light of all the relevant facts in the case, including any unlawful conduct of the employer and the sequence of events 4 We now turn to a consideration of the relevant facts in this case. In June 1946, the Respondent violated the Act by interrogating employee Davis concerning his choice of a bargaining representative. In November 1946 and again in January 1947, the Respondent simi- larly questioned other employees .-9 Absent other circumstances, we might be inclined to agree with the Trial Examiner that these inquiries were merely intended to satisfy the Respondent that the Union still had a majority, and that the remoteness of these incidents to the time of the refusal to bargain in August 1947 makes them insufficient to color the Respondent's intent at that time. There are other circum- stances present however, whici_, in our opinion, not only lead to a different conclusion in these respects, but which also refute the Trial Examiner's finding that the Respondent bargained in good faith after these incidents of unlawful interrogation. Thus, the Respondent itself insists that from the time it resumed negotiations with the Union in October 1946, and throughout the entire period of negotiations that ensued thereafter until August 1947, there was a clear understanding between the parties that the Union would have to prove its majority before the Respondent would. s For the reasons hereinafter set forth, this is found to be August 12, 1947. a Matter o f E. A. Laboratories, Inc.. 80 N. L. R B 625. 4 Matter of Artcraft Hosiery Company, 78 N. L R. B 333. 6 The evidence clearly shows that employees Bridges, Davis, and Watson were the subject of this interrogation, and indicates that employee McCaskill was also interrogated at this time 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign a contract. If there was such an understanding, however, it necessarily follows that it was inconsistent with the action of the Respondent in attempting itself to inquire into the Union's majority status by querying its employees as to their union affiliation in Novem- ber 1946, and again in January 1947. An understanding that the Union would prove its majority as a condition precedent to the exe- cution of a contract certainly rendered such an inquiry for that pur- pose unnecessary. Moreover, it is extremely unlikely that the purpose of the interrogation was to assure the Respondent of the Union's majority status before resuming negotiations with the Union, because the Respondent did, in fact, proceed with negotiations at a time when, by its own admission, it had no such assurance.6 Under these circumstances, and also in view of the fact that the last in the series of interrogations carried with it an implied threat of loss of pay for union adherence, we are convinced that the Respondent's unlawful interrogation of its employees was not intended "merely to establish proof" of the Union's right to represent the employees, as found by the Trial Examiner, but was designed and calculated to undermine the Union and to dissipate its majority at the very time when the Union was seeking to reassert its statutory bargaining rights. The only logical inference that can be drawn from such cir- cumstances is that the Respondent employed during the period of interrogation the strategem of conditioning full recognition of the Union as bargaining representative upon proof of the Union's ma- jority when negotiations should be completed, while at the same time attempting by unlawful means, during the period of negotiations, to destroy that majority and thereby render the proof thereof impos- sible of fulfillment. It is clear, therefore, that from October 1946, until January 18, 1947, when the last of the interrogations took place, the Respondent, under its own version of the situation, engaged in a course of conduct which reflects a complete lack of good faith in its dealings with the Union. Nor, if we are to accept the Respondent's representation of the situ- ation, did the Respondent's rejection of the collective bargaining principle cease on January 18, 1947. As found by the Trial Ex- aminer, the Respondent never made any attempt to remove the coer- cive effect of its interrogations and threats of reprisal. Accordingly, this coercive effect continued until the unfair labor practices which e Thus, Outler, the Respondent's general manager, testified that he had knowledge of the union membership only of employees Watson, Bridges, and Batey in the latter part of 1946. The Respondent takes the position that there were seven employees in the unit at this time, while the Union contends that the number was six. In either case it is clear that the Re- spondent had not satisfied itself of the Union's majority at this time. ATLANTA JOURNAL COMPANY 835 produced it were remedied 7 The net result, of course, was that the Respondent's position after January 18, 1947, was the same, in effect, as it had been prior to that date when it was actually engaging in the coercion, viz., it was still in the position where its unlawful conduct, remaining unremedied as it did, could be effective in dissipating the very majority that it was insisting upon as a condition precedent to full recognition of the Union. Contrary to the finding of the Trial Examiner, therefore, we believe that the asserted conditional bar- gaining of the Respondent from January 18, 1947, to the cessation of bargaining in August 1947 was also grounded in bad faith, and, accordingly, that the Respondent's unfair labor practices in Novem- ber 1946 and January 1947, with their continuing effect, were suffi- cient to color the Respondent's intent in August 1947. Moreover, we find the position allegedly taken by the Respondent inconsistent by its very nature with any good faith doubt of majority at any time while the resumed negotiations were going on. Our experience shows, and it is common knowledge, that where an em- ployer sincerely doubts the majority status of a union that is claiming such status, the employer will normally refuse to bargain with the union until the status is proved." The obvious reason for this, from a purely practical viewpoint, is to foreclose the possibility of wasting time-consuming negotiations with a union that is not entitled to recognition. Here, however, in the face of an alleged preexisting and continuing doubt of majority, the Respondent nevertheless bar- gained with the Union frgm October 1946 until August 1947, a period ,of about 10 months. It is true that the bargaining was allegedly conditioned on a proof of majority when completed and prior to the execution of a contract, but this operated, in effect, as a condition subsequent to the bargaining rather than the usual condition prece- dent. The result, of course, was the very thing that the normal pro- cedure is designed to prevent, viz., when the Respondent in August 1947 finally insisted upon proof of majority and the Union failed to supply it, the negotiations broke off, with the resultant waste of 10 months of negotiations. We believe that such a result was rea- sonably foreseeable to the Respondent. The widespread use of the normal procedure and simple logic is testimony to that. We think it not unreasonable to conclude, therefore, particularly in view of the other circumstances here present, that if the Respondent had enter- tained a good faith doubt of majority at any time during the resumed v International Association of Machinists v. N. L. R . B., 311 U. S. 72, 82. The position usually taken by the employer , of course, is that the union prove its majority by a Board election as a condition to recognition. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations, it would have refused to bargain until such doubt was dispelled, and its failure to do so indicates that it did not entertain a good faith doubt of majority during the 10-month period. It is also significant that the Respondent, by its own admission,, had actual knowledge of the Union's majority in June 1947 and yet apparently did nothing to remove the claimed condition which ex- isted to full recognition." We do not find that this conduct, in and of itself, constituted an unfair labor practice on the part of the Respondent, but we do find it to be additional evidence of the bad faith of the Respondent in its over-all dealings with the Union. Moreover, the proximity of this circumstance to the ultimate refusal to bargain in August 1947 lends color to the Respondent's motive at, that time. Against such a background of unfair labor practices and continu- ous bad faith in its relations with the Union, it cannot be said that the Respondent, under its version of the situation, had a good faith doubt when it finally refused to bargain any further unless the Union proved its majority. Nor would we come to any different conclusion if we accepted the Union's understanding of the situation, viz, that its assurances of ma- jority had previously been accepted by the Respondent, and that the Respondent insisted upon proof of majority for the first time on August 12, 1947. The, bad faith implications of conditional bargain- ing during the period of resumed negotiations, as outlined above, would be removed, but the situation would still remain one which would be marked throughout with bad faith on the part of the Re- spondent. Thus, if the Respondent was satisfied that the Union had a majority prior to August 12, 1947, its unlawful interrogations in November 1946 and January 1947 must even more clearly be held to have been designed to dissipate the Union's majority, and not merely to satisfy itself on that score. And so too the coercive effect of this un- lawful conduct, in the absence of any attempt to remove it, must be held to have continued to August 12, 1947. Moreover, under this view of the case, it would be difficult to find an explanation consistent with good faith as to why a demand for proof of majority was adopted by the Respondent for the first time on that date. The discharge of employee Davis, who was a union member, on June 23, 1947, may have affected the Union's majority, but, as found by the Trial Examiner, this is not 6 Thus, Outler, the Respondent 's general manager, admitted that in June 1947 he had knowledge of the union membership of employees Watson, Parsons , Bridges, and Davis. This clearly constituted a majority for the Union , because, as indicated in fn 6, supra, the appropriate unit was comprised of seven employees at the most. ATLANTA JOURNAL COMPANY 837 clear 10 Furthermore, there is neither any evidence or assertion in the record that specifically assigns the discharge of Davis as a reason for the Respondent's later doubt of majority, or indeed, if that was the specific reason, why the Respondent waited almost 2 months after the discharge before using it as a basis for insisting on proof of majority. The only logical inference that can be drawn from the Union's version of the facts, therefore, is that the Respondent engaged in a plan and course of conduct to dissipate the Union's majority by unlawful con- duct, and when the purpose was thought to have been accomplished, used it as an excuse for refusing to grant further recognition to the Union. Such a sequence of events could lead only to the conclusion that the Respondent's ultimate refusal to bargain unless the Union proved its majority was not based on any good faith doubt of that majority. Indeed, we have repeatedly held that even if it were shown that the Union had actually lost its majority under such circumstances, such loss would be attributable to the Respondent's unfair labor prac- tices, and the Union would still be entitled to recognition.11 Finally, we note that after admittedly insisting on a proof of major- ity on August 12, 1947, as a condition to further recognition, the Re- spondent made itself available for the presentation of such proof by meeting with the Union again on August 18, 1947, but thereafter it appears to have been unavailable for such purpose for a period of about 2 months. As found by the Trial Examiner, Cooper, the Union's at- torney and negotiator, telephoned Rogers, the Respondent's counter- part, a number of times between August 18 and October 14, 1947, only to find him out, and although Cooper left his telephone number for Rogers to call back, the latter never did. This indicates that at least during this period the Respondent was making it extremely difficult, if not impossible, for the Union to furnish it with the proof of majority that it had demanded. That Cooper may have had a different pur- pose in attempting to communicate with Rogers during this period is immaterial in appraising Rogers' conduct, because Rogers could have no knowledge of the reason why Cooper was seeking to communicate with him. We believe that if Rogers was sincere in his implied agree- ment on August 12 to recognize the Union upon proof of majority, he would not have avoided meetings with Cooper at which submission of such proof might have been made during the ensuing 2 months, and 10 Thus, although it appears that the discharge of employee Davis, standing alone, may have lost the Union its majority at this time, there is no evidence as to the union status of employee Van Camp, who replaced him a few days later, or with respect to any belief.by the Respondent concerning Van Camp's status either one way or the other. ' See, e. g., Matter of Jones d Laughlin Steel Corporation, 72 N. L. R. B. 975; Matter of Hagy, Harrington & Marsh, 74 N. L. R. B. 1455. 838914-50-vol. 82-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that his failure to return Cooper's telephone calls is additional evi- dence of Rogers' bad faith on August 12, 1947. We find, therefore, contrary to the Trial Examiner, that, under either the Respondent's or the Union's version of the facts, the Re- spondent's demand for proof of the Union's majority was made in bad faith, and consequently that its claimed doubt of the majority cannot serve as a valid defense to the refusal to recognize and bargain with the Union.12 We find further that this refusal took place on August 12, 1947, and that the Respondent from that time on has refused to bargain within the meaning of Section 8 (5) of the Act and Section .8 (a) (5) of the Act, as amended.13 THE REMEDY We have found that the Respondent has engaged in unfair labor practices in violation of Section 8 (1) and 8 (5) of the Act and Section 8 (a) (1) and 8 (a) (5) of the Act, as amended. We also find that the commission of these unfair labor practices and the entire record disclose an intent on the part of the Respondent to defeat the rights guaranteed by Section 7 of the Act and the amended Act generally. 4 We shall, therefore, order the Respondent to cease and desist, not only from the unfair labor practices herein found, but also from in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and the Act, as amended,-15 and to take certain affirmative action designed to effectuate the policies of the Act, as amended. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) ,of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Atlanta Journal 12 Matter of Wilson i Co ., Inc., 77 N. L. R. B. 959. 1s It is clear that at its August 12 , 1947, meeting with the Union , the Respondent for the first time refused to proceed with any further bargaining until the Union proved its majority. It is true that when the Union claimed at this meeting that it still had a majoriy despite what it alleged to be the discriminatory discharge of employee Davis on June 23, the Respondent agreed to proceed with the bargaining, but this agreement was specifically made without prejudice to the Respondent 's claim of the Union 's lack of ma- jority. The Respondent cannot, therefore, be deemed to have receded at this time from its position of withholding recognition until majority was proved . Nor can it be held that such a recession took place at the August 18, 1947, meeting, because, so far as the record shows, this meeting was concerned solely with a statement of the Respondent 's position on the discharge of Davis. And it is clear that there was no recession thereafter. "Matter of R. J. Lovvorn, d/b/a Georgia Twine h Cordage Company, 76 N. L. R. B. 84; Matter of William Spencer, d/b/a Alliance Rubber Company, 76 N. L. R. B. 514. 15 N. L. R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Co. ,v. N. L. R. B., 326 U. S. 376. ATLANTA JOURNAL COMPANY 839 Company, d/b/a Radio Station WSB, Atlanta, Georgia, and its offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees or applicants for employment as to their union membership or choice of bargaining representatives; (b) Threatening its employees with reduction in salaries or loss of pay if they choose Atlanta Local, American Federation of Radio Artists, or any other labor organization, as their collective bargaining agent; (c) Refusing to bargain collectively with Atlanta Local, American Federation of Radio Artists, as the exclusive representative of all the Respondent's staff announcers, excluding the barn-dance announcer, the barn-dance master of ceremonies, temporary announcers, em- ployees in the positions occupied by employees Stagg, Cason, and McMillan in November 1944, and all supervisors; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Atlanta Local, American Federa- tion of Radio Artists, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activi- ties except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaran- teed by Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act and the Act, as amended : (a) Upon request, bargain collectively with Atlanta Local, Ameri- can Federation of Radio Artists, as the exclusive representative of all its employees in the above-described appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement; (b) Post at its studio in Atlanta, Georgia, copies of the notice at- tached hereto and marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be main- tained by it for sixty (60) consecutive days thereafter in conspicuous ie In the event that this Order is enforced by a decree of a Court of Appeals , there shall be inserted before the words, "A DECISION AND ORDER " the words, "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees or applicants for em- ployment as to their union membership or choice of bargaining representatives. WE WILL NOT threaten our employees with reduction in salaries or loss of pay if they choose ATLANTA LOCAL, AMERICAN FEDERA- TION OF RADIO ARTISTS, or any other labor organization, as their collective bargaining agent. WE WILL NOT refuse to bargain collectively with ATLANTA LOCAL, AMERICAN FEDERATION OF RADIO ARTISTS, as the exclusive repre- sentative of all employees in the appropriate unit described below. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist ATLANTA LOCAL, AMERICAN FEDERATION OF RADIO ARTISTS, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become, remain, or refrain from be- coming members of this union or any other labor organization except to the extent that the right to refrain may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL BARGAIN collectively, upon request, with ATLANTA LOCAL, AMERICAN FEDERATION OF RADIO ARTISTS, as the exclusive representative of all employees in the bargaining unit described ATLANTA JOURNAL COMPANY 841 herein with respect to rates of pay, wages, hours of employment, or other conditions of employment , and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All staff announcers , excluding the barn-dance announcer, the barn-dance master of ceremonies, temporary announcers, employees in the positions occupied by employees Stagg, Cason, and McMillan in November 1944, and all supervisors. ATLANTA JOURNAL COMPANY D/B/A RADIO STATION WSB, Employer. By --------------------------------- (Representative ) (Title) Dated ------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Shally 0. Wise, for the General Counsel. Mr. Ernest P. Rogers, of Atlanta, Ga., for the Respondent. Mr. Walter G. Cooper, of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon a third amended charge filed on March 30 , 1948, by Atlanta Local, American Federation of Radio Artists , herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board , by the Regional Director for the Tenth Region (Atlanta, Georgia ), issued a complaint dated March 30, 1948, against Atlanta Journal Company, doing business as Radio Station WSB, herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5 ) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and ( 5) and Section 2 (6) and (7 ) of the Labor Management Relations Act, 1947 , 61 Stat. 136, herein called the amended Act. Copies of the complaint , together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint alleges in substance that the Respondent by its officers, agents, representatives, and employees from June 1946 to the date of the complaint made statements discouraging mem- bership and activity in the Union and activity for the purposes of collective bargaining and other mutual aid and protection and from about August 12, 1947, failed and refused a request to bargain with the Union as the exclusive representative of its employees in an appropriate unit. The Respondent's answer, filed April . 9, 1948, denied the commission of the unfair labor practices. The answer affirmatively alleges in substance that the Union abandoned negotiations and for the 2 years last past has not even pur- ported to be the exclusive bargaining representative for any unit of the Re- spondent's employees ; that the Union did on August 12, 1947, request the 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent to bargain, that the Respondent requested a showing of majority by the Union, but the Union refused to furnish any evidence thereof. Pursuant to notice, a hearing was held from June 1 to 3, 1948, at Atlanta, Georgia, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining, to the issues was afforded all parties. At the opening of the hearing, counsel for the General Counsel, herein called G. C. counsel, moved to amend clause IV of the complaint to conform the description of the unit to that found appropriate in the Board's Decision and Direction of Election in 59 N. L. R. B. 673. The motion was granted. G. C. counsel then moved to amend clause VIII of the complaint (which made certain allegations of 8 (1) statements to and questioning of employees by the Re- spondent) by adding as paragraph (c) and (d) thereof allegations that the Respondent had granted wage increases unilaterally and had refused employees permission to play on the Respondent's soft ball team because of their union membership and activity. The motion was granted. The Respondent' s counsel then moved to strike the whole of clause VIII of the complaint on the ground that it was not based on any allegation in the charge. The motion was denied. At the close of the hearing, Respondent's counsel moved to strike [dismiss] subsection ( d) of clause VIII of the complaint as not based on a charge filed and served within 6 months of the occurrence of the alleged unfair labor practice. The motion was granted.' Respondent's counsel moved to strike the complaint on the ground that no charge was filed "by any individual or by any union as a basis for the issuance of the complaint which is the subject of the hearing." The motion was denied. G. C. counsel moved to conform the pleadings to the proof on matters not of substance. This motion was granted. Upon request of counsel, a date was set for the filing of briefs and/or pro- posed findings and conclusions. A brief was received from G. C. counsel only. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The Respondent is a Georgia corporation, having its principal office and place of business in Atlanta, Georgia, where it operates a 50,000 watt radio station 'The unfair labor practice was alleged to have been committed by the Respondent's commercial manager, Tom Downing, in the spring of 1945. The original charge was filed and served in December 1947, within 6 months of the effective date of the amended Act, but neither the charge nor any of the subsequent amendments thereto made any allegation which apprised the Respondent that this incident was involved . Even the complaint as originally drawn did not allege it. Not until the first day of the hearing was any allega- tion thereof made. There was some indication that the statement complained of may have been made in jest. Downing left the employ of the Respondent sometime in 1946, and it appeared to the undersigned that his whereabouts were unknown . In view of all this, the undersigned concluded that the catch-all phrase of the charge , "by other acts," should not be deemed sufficient to cover the particular unfair labor practice alleged, especially since it was remotely timed with reference to the bargaining period and would be of little value in resolving the principal issue-the Respondent s good faith in refusing to bargain. Cf. Matter of Artcraft Hosiery Company, 78 N. L. R. B. 333. The remaining allegations of clause VIII of the complaint, as revealed by the evidence, referred Lo matters which could affect the resolution of the principal issue. ATLANTA JOURNAL COMPANY 843 with the call letters WSB under license from the Federal Communications Com- mission. During the 12-month period preceding the issuance of the complaint, the Respondent has broadcasted programs supplied by local talent and by the National Broadcasting Company as part of a nation-wide hook-up from 10 to 13 hours daily, broadcasting programs originating from points outside the State of Georgia amounting to approximately 62 percent of the station's total broadcasting time. Its broadcasting in the area is embraced within a radius of approximately 100 miles of its transmitter station. On the foregoing facts alleged in the com- plaint and admitted in the answer, the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act and the amended Act.2 II. THE ORGANIZATION INVOLVED Atlanta Local, American Federation of Radio Artists, affiliated with the Asso- ciated Actors and Artistes of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act and amended Act, and it admits to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain; interference, restraint, and coercion 1. The appropriate unit In a representation case, involving the same parties, the Board on November 30, 1944, issued its Decision and Direction of Election. In that decision the Eoard found that the following was an appropriate unit for the purposes of bargaining within the meaning of Section 9 (b) of the Act : All staff announcers of the Company, excluding the barn-dance announcer, the barn-dance master of ceremonies, temporary announcers, Stagg, Cason, McMillan, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. Since the date of the certification, Stagg has left the employ of the Respondent and there is now no position like the one which she occupied. In the fall of 1946 McMillan ceased to be night manager and became a regular announcer during the daytime. Except for the fact that McMillan performs a lead part in a comedy skit, his functions are now, and since October 1947 have been, the same as any other announcer. Since the named persons were excluded merely because of the nature of their positions, the unit found by the Board continues at the present time to be an appropriate unit within the meaning of Section 9 (b) of the Act and amended Act.' The description of the upit will be clarified, however, by stating the description in the manner shown in the section entitled "Conclusions of Law" herein. 2. The majority Pursuant to the above-mentioned Decision and Direction of Election, an election was conducted on December 7, 1944, which the Union won by a vote of four to one. Thereafter, on December 15, 1944, the Board certified the Union as the 2 Matter of Los Angeles Broadcasting Co., Inc., 4 N. L. R. B. 443; Matter of Louis G. Baltimore, trading as Station WBRE, 57 N. L. R. B. 1611. $ There would still be excluded any persons in the positions occupied by Stagg, Cason, or McMillan in November 1944. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive bargaining representative of all the employees in the unit theretofore found appropriate. The Respondent took issue with the allegation of the Union's majority. The evidence establishes that in the latter part of 1946, when negotiations were re- sumed between the Union and the Respondent as hereinafter related, the Union still represented a majority of the employees in the appropriate unit. The Respondent adduced evidence to show that there had been a turnover in person- nel, but such evidence does not in itself establish a loss of majority.' The evi- ,dence does not clearly establish that, on August 12, 1947, the date of the alleged refusal to bargain, the Union had lost its majority. In view of the long lapse of time from the date of the certification, the presump- tion of majority would not be irrebuttable. The evidence, however, proves that the Union did represent a majority in the appropriate unit in December 1946 and June 1947. No clear and convincing evidence was adduced to prove that the Union thereafter lost this majority. Accordingly, it is found that on December 15, 1944, and at all times material herein, the Union was the exclusive representative of all the employees in the unit heretofore found appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. The refusal to bargain a. The bargaining history Shortly after the Union's certification, Thomas Maxwell, the Union's Repre- sentative, submitted a proposed contract to the Respondent's attorney, Steve Clay. At Clay's request a meeting thereon was postponed until after the first of the year 1945 The first meeting took place in Clay's office on about January 15, 1945. In addition to Maxwell and Clay there was present John Cutler, Jr., General Man- ager of the'Respondent's radio station, and another representative of the Union who was unidentified. At or just before this meeting the Respondent submitted its counterproposals to the Union. The principal differences between the Union's and the Respondent's proposals were that the Union wanted a union shop, whereas the Respondent offered what was in effect maintenance of membership; and the Union proposed that among other fees paid to an announcer in addition to his salary, there should be paid certain fees for local commercial programs even though they occurred on the announcer's regular staff stretch, while the Company omitted this proposal from its contract. Other differences existed in the two contracts, but none which appeared so important to the Union. The first meeting was consumed by an argument on the question of retroactivity. •Outler refused to agree to any retroactivity whatsoever. Between January 15, 1945 and March of that year, despite many postponements necessitated by the fact that Outler or Clay would be out of town, fifteen or sixteen meetings were held, but with little real progress being made. In March, the Union called in a Federal Conciliator. The Conciliator, after seeing that the number of participants was slowing up the resolution of differences, recommended that Maxwell meet alone with Clay. This was done and most of the minor differences were quickly settled. Clay was killed in an airplane accident in April 1945. After a period of delay requested by Outler, Maxwell met with Outler and the Respondent's present attorney, Ernest Rogers. The Respondent requested Maxwell to indicate the 4 Matter of Cheney California Lumber Co, 62 N L. R. B. 1208; Matter of Syncro Machine Company, Inc., 62 N. L. R. B. 985. ATLANTA JOURNAL COMPANY 845 points of agreement and disagreement existing at the time of Clay's death. Maxwell did so, but Outler, who frankly admitted on the witness stand that at that time, although not later, he was suspicious of Maxwell , refused to take Maxwell's word on many of the points on which he said that he and Clay were in agreement. As a consequence , the parties were obliged to start prac- tically from the beginning and work through the contract. The Respondent withdrew its offer of maintenance of membership , although it stated that it might be willing to consent thereto in the event the parties could agree on everything else. By July 1945, in addition to several minor differences, the parties were still in disagreement on the question of union shop and on the schedule of salaries and fees. In the latter part of July the Union expressed its desire to submit the matter to the War Labor Board and the Respondent said that it was agree- able to such a proposition. Around the end of July 1945, Maxwell submitted to a Conciliator a copy of the proposed agreement with notes on the points of agreement or disagreement , and was given to understand that the Conciliator would certify the matter to the War Labor Board. The evidence does not clearly disclose the course of the dispute before that Board. Apparently no hearings were ever held by the War Labor Board and no notice was ever received by the Respondent to indicate that the War Labor Board had taken jurisdiction of the dispute. The parties, however , assumed that the matter was before the War Labor Board. In the latter part of 1946, according to Maxwell , the Union "got word, or came to the understanding that the War Labor Board was not going to settle the dispute." The Union then requested a resumption of bargaining The Respondent asked the Union whether or not it still represented a majority of the employees and how it intended to prove it, and the Union replied that it still represented a majority and further that it relied upon its original certification. The Respondent continued to bargain with the Union, but apparently it was not satisfied with the Union's reply that it had a majority , because in about November 1946 and again in January 1947, Marcus Bartlett, the Program Di- rector for the Respondent made inquiries of three or four of the announcers as to whether or not they still desired the Union to represent them. The latter inquiry came on about January 18, 1947 , the day following a meeting at which the Union was attempting to get the Respondent to agree to a modified form the union-shop proposal. Bartlett's inquiry was suggested by Attorney Rogers, but Bartlett went beyond Rogers' suggestion , and when he received an affirmative reply from those whom he questioned , he asked if they would feel the same way about it even if it meant a reduction in pay. At the time of the interview of Frederick Davis for employment in June 1946, Davis told Bartlett that he was a member of the Union in New York but not in Atlanta. Bartlett asked him if he contemplated joining the Atlanta local. Davis replied that he did not, that there were good locals and bad locals and that he did not want to have anything to do with it if it was a bad one. On January 18, 1947, when Bartlett asked Davis , one of the three or four questioned, if he wanted the Union to represent him, Davis replied affirmatively. Bartlett asked why. Davis replied that he felt that the Union was the only way the announcers could get talent fees. Bartlett asked Davis if he had not said, when he was hired, that he was not a member of the Union . Davis reminded him of what he had said at the time. Bartlett asked if he would still want the Union to represent him if it meant less money to him. Davis asked what 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bartlett meant, and the latter replied, "Well, we don't have to pay you over- time. You don't have to work overtime." ° At the next meeting, about a week or so later, Maxwell told Rogers that he objected to the Respondent's intimidating the men by questioning them. Rogers said that he wanted to find out if the Union still represented them and that he had told Bartlett to ask them. Maxwell said that he had no objection to Rogers' questioning the men but he did object to threatening the men with loss of pay. Rogers then called Bartlett on the telephone and asked him about the latter point. Then he told Bartlett not to make any further inquiries in view of the objections of the Union. At one of the meetings at about this time Maxwell told the Respondent that the Union knew of individual pay raises which had been given to the men without consulting the Union and said that as long as the men were not drawn away from the Union, the latter would not consider it an unfair labor practice .0 In January 1947, the Union was doggedly pursuing its efforts to sell the Respond- ent on some form of union shop. The Respondent was unqualifiedly opposed to this. In April 1947, the Union retained Walter Cooper, an attorney to represent it in negotiations. By that time, union membership as a condition of employ- ment had been made illegal by Georgia statute.7 The Union then made efforts to include a paragraph permitting further negotiations in the event of a change in the law. The Respondent likewise refused to agree to this. The Union also wanted to include in the agreement a provision excluding from the unit the employees named in the Board's order of December 1944. The Respondent would not agree to this, apparently on the ground that they were excluded because of their positions and a change of their positions might entitle them to be in the unit. Despite these differences, progress was made. On about May 22, the Respondent submitted a draft proposal of minimum salaries and fees. The Union submitted its proposals on minimum salaries and fees in the latter part of July 1947. The Union's salary proposals were 100 percent higher than those of the Respondent. No contention was made, however, that by August 12, 1947, the parties had reached an impasse. At a meeting on August 12, 1947, Rogers questioned the Union's majority and refused to proceed with bargaining until the Union had proved its majority. Cooper said that he thought the Union still had a majority, that the certification was still in effect, that he believed the discharge of a certain employee who was terminated on June 23, 1947, was discriminatory, and that, counting the latter employee, there was an even greater majority. Rogers finally agreed to proceed with the bargaining without prejudice to the Respondent's claim of the Union's lack of majority. On August 18, 1947, the parties met, and the Respondent stated its position on the discharge of the above-mentioned employee. A number of times between August 18th and October 14th, Cooper telephoned Rogers to find him out of the office, and left his own telephone number for Rogers to call him back, but Rogers never did. 0 The foregoing findings are based on Davis' credited testimony. Bartlett did not deny it except to say that he thought that Davis had asked about the Union at the time of his employment interview in June 1946. Bartlett admitted that he had, at Rogers' request, asked several of the announcers about their choice of representative. In 1945 the Union had opposed the Respondent's bonus system but Maxwell finally agreed with Clay to accept it. Then the Respondent unilaterally abolished the bonus sys- tem and gave a flat increase. The Union apparently lodged no protest and, since it got what it had been after, the Respondent may well have supposed no further consultation would be necessary. Therefore, this is not found to constitute an unfair labor practice. 7 Act No. 140, L. 1947, approved March 27, 1947, 19 L. R. R. M. 3045. ATLANTA JOURNAL COMPANY 847 On December 3, 1947, Cooper wrote to Rogers and enclosed a new draft of an agreement.' The new proposed agreement contained nothing new in substance but spelled out in greater detail some of the provisions proposed in the earlier draft contract. On December 13, 1947, Rogers replied to Cooper 's letter , explain- ing that he had been out of town and had just seen his letter. In this reply, Rogers wrote : "You will recall that Mr. Outler of WSB and I told you and Mr. Maxwell many months ago that WSB had no reason to assume that either AFRA or the Atlanta Local was exclusive bargaining representative for its Staff Announcers. Nothing has occurred of which I am aware which would cause WSB to change its position in this respect." Some time within 30 days after the receipt of Rogers ' letter, Cooper requested assistance from the Mediation and Conciliation Service, but the latter was un- successful in getting the Respondent to resume negotiations. Concluding findings a. Respecting interference, restraint, and coercion With respect to the unilateral increases, Rogers testified that, in about May 1945, Maxwell, and later another representative of the Union , told him that the Union, composed of individuals who succeeded by their talents , believed in merit recognition , that all the Union was interested in was the minimum rate, that the Union never had to be consulted about individual increases , and that the maximum was left to management . The Union's first proposed agreement con- tained the following language : "The Company further agrees that nothing in this contract shall be deemed to prevent any staff announcer from negotiating for or obtaining better terms than the minimum terms provided for herein ." From the foregoing, the undersigned concludes that the Respondent was justified in believing that its conduct was approved by the Union and concludes that under the circumstances the Respondent has not, by such increases, interfered with, restrained, or coerced its employees. With respect to the questioning of announcers concerning their wishes to be represented or not by the Union , Bartlett testified that he was on a very friendly basis with the announcers, and that he never hesitated to talk about the Union or his views of it. He also testified that he had seen a copy of the Union's pro- posed salary scale and that he had erroneously concluded that the rates stated in it were maximum as well as minimum rates and that, knowing some of the men were receiving higher pay, he wondered if that would make any difference in their choice of representative . With due allowance for the friendly atmos- phere among the members of the staff, the undersigned concludes that Bartlett's conduct was not justified . Bartlett did not explain to the employees other than Davis the basis for his question , "Even if it means less pay?" Such a question carries with it an implication that the Respondent would not pay the announcers so well if they adhered to the Union . The explanation to Davis about less pay- "Well, we don't have to pay you overtime."-was not capable of being a miscon- ception on Bartlett's part of the meaning of any agreement proposed by the Union. Although Rogers told Bartlett to stop questioning the men, no attempt was made to remove the effects of the coercive influence . Maxwell's statement at the time he protested the questioning that he had no objection to Rogers' questioning the men but did object to intimidation of them does not prevent the questioning from being an unfair labor practice. The polling or questioning of 8 In this letter he wrote : "Presumably the salary rates will be filled in at a basis of 350/6 higher than they were in April, 1946." 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees regarding their choice of representative alone is per se coercive 9 It is aggravated when it is coupled with an additional question carrying an impli- cation of impending reduction of salary. Whether or not the questioning of the employees had a coercive effect on the individual employees questioned is unim- portant.10 Bartlett's inquiry of Davis, when the latter was being interviewed for employment, as to whether Davis contemplated joining the Union is in the same category as the other questioning. The undersigned therefore finds that by questioning the employees concerning their choice of representative and by suggesting that their pay would be adversely affected by their permitting the Union to represent them, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. b. Respecting the refusal to bargain It can not seriously be contended that before the submission of the dispute to- the War Labor Board in 1945, the Respondent did not bargain in good faith with the Union. The recession of the Respondent, after Clay's death, from certain of the terms which Maxwell testified that he and Clay had agreed on are not found to be evidence of bad faith because Outler was not sitting in on the latter conferences between Clay and Maxwell, Clay left no notes available for his suc- cessor, and Outler for a time was suspicious of Maxwell's assertions of the state of the negotiations. Under the circumstances the undersigned finds no adequate showing that the Respondent failed to bargain in good faith in 1945. If the facts of this case fall under the Allis-Chalmers doctrine,' the December 15, 1944, certification was in full force and effect when the parties resumed negotiations in the latter part of 1946 It is well settled that an employer is obliged to bargain with a certified union for a reasonable period of time, cus- tomarily stated to be 1 year, and that the submission of a dispute to the War Labor Board usually expands the period during which the certification is effective.' A serious question is raised in this case, however, as to whether the delay following submission of the dispute to the War Labor Board was a reasonable delay. All the evidence regarding the War Labor Board aspect of the case is extremely vague. Maxwell testified that shortly after July 23, 1945, he submitted to the Conciliation Service copies of the draft agreements showing points of disagreement, that he received notice from either the Conciliator or the War Labor Board that the case was certified to that Board within 10 days or 2 weeks thereafter, that he did not recall whether this was verbal or written notice, that he made inquiries about the status of the matter from time to time (but he did not state what information he received as a result thereof), and that he knew the War Labor Board did not rule on the matter because "it either went out of existence or changed their status ... [so] that stopped action before they settled it." No written evidence was offered to establish the fact that the War ' Matter of Rome Products Co , 77 N. L. R. B. 1217 ; Matter of Fontaine Converting Works, Inc., 77 N. L. R B. 1386; Matter of Coopersville Cooperative Elevator Co., 77 N. L. R B. 1083; Matter of Reeves-Ely Laboratories, Inc., 76 N. L. R. B 728, Matter of Differential Steel Car Company, 75 N. L. R. B. 714; Matter of Hagy, Harrington & Marsh, 74 N. L It. B. 1455. 10 Matter of The Ohio Public Service Company, 52 N. L. It. B. 725 ; Matter of Bausch & Lomb Optical Company, 69 N L R P 1101: Matter of Sewell Manufacturing Company, 72 N. L It. B. 85; Matter of The Pure Oil Company, 73 N. L. It. B. 1. 11 50 N. L. It. B. 306. 12 Matter of American Marsh Pumps, Inc., 62 N. L. R. B. 931. ATLANTA JOURNAL COMPANY 849 Labor Board had taken jurisdiction, the Respondent received no such notice." apparently no hearings were held, and no evidence was offered to show that the War Labor Board had issued any order or recommendation. The undersigned takes official notice that, by Executive Order 9672 on December 31, 1945, the War Labor Board was terminated and its functions were transferred to the Wage Stabilization Board. That order provided in part : "Any dispute cases on which final action may not have been taken by the National War Labor Board prior to its termination shall be returned to the parties." " It must be presumed here, then, that if this dispute ever reached the War Labor Board it was returned to the parties pursuant to this order. If the Union was entitled to believe that the dispute was before the War Labor Board before January 1946, it was not entitled to believe so afterward. Under the circumstances of the case, the undersigned concludes that the extent to which the reasonable period for which the certification may be relied on by the Union as conclusive proof of its majority is 1 year from date of the Union's certification as collective bargaining agent by the Board, excluding, at the most, the period between August 1945 and January 1946. To this extent the Allis- ,Chalmers doctrine might apply. Prior to submission of the dispute to the War Labor Board, the Union had had the benefit of about 7 months of bargaining. Even if time were excluded for delays requested by the Respondent, the Union had had 5 or 6 months in which to endeavor to reach a contract. Another 6 ,or 7 months in 1946 would extend only until June or July 1946. But the Union made no request to resume negotiations before "the latter part" of 1946. The failure to take any steps in 1946 until late in the year has the appearance of abandonment by the Union of its bargaining rights. Consequently, the under- signed finds that the Union was not entitled to stand on its 1944 certification in the latter part of 1946. Hence, when the Union requested a resumption of negotiations in the latter part of 1946 it stood in the position of an uncertified union requesting recogni- tion for the first time. The Respondent was justified, therefore, in asking proof of majority. But instead of refusing to bargain until the Union had given satisfactory proof of majority, the Respondent, although questioning majority, proceeded to bargain. The Union assumed from this that its assurance of majority had been accepted. The Respondent assumed that it was understood that the Union would give more tangible evidence of majority when and if the Tarties were able to reach an agreement. An examination of the negotiations gives no indication that the Respondent was not sincere in its efforts to reach agreement in the 1947 bargaining. Al- though it took an adamant position on some points , it yielded on others and it was not impossible that agreement might have been reached eventually. No very satisfactory explanation was given as to why a positive stand on majority was adopted by the Respondent for the first time in August 1947. The discharge of a member of the Union on June 23, 1947," may have affected the Union's majority, although this is not clear. The date of the replacement of the discharged employee is not in the record. Rogers testified that he was surprised that Maxwell and Cooper should fix the time of the Respondent's in- is Outler testified, however, that he was under the impression that the matter had been submitted to the War Labor Board. 141 Fed. Reg. 223 ( 1946). 11 The original charge alleged that Davis was discriminatorily discharged , but this was ,omitted in the third amended charge. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistence on proof of majority on a day certain and that he had thought it was understood all the time after negotiations had been resumed that the Respondent had expected the Union to give some proof of its majority ; and he testified that the 1947 bargaining had all been on the understanding that, before the Respondent signed a contract , the Union would have to prove its majority. Maxwell and Cooper did not, however, have such an understanding and traveled under the belief that the Respondent had recognized the Union as the majority representative. G. C. counsel argues in his brief that the Respondent gave conditional recog- nition, only, to the Union from the resumption of negotiations in the latter part of 1946, and consequently that it never bargained in good faith in the 1946- 1947 conferences . He also contends that the Respondent was stalling for time until the Union was thought to have lost its majority . While there is some cause to suspect that such might have been the case, the undersigned found Cutler and Rogers to be sincere in their testimony and credits it. Because of this and because the negotiations had every appearance of an attempt on both sides to resolve differences, the undersigned finds that the negotiations were carried on in good faith but under a misunderstanding as to whether or not the Union would prove its majority after agreement was reached. G. C. counsel argues that even if there was a genuine misunderstanding on the foregoing matter, "the circumstances call for an order requiring the Re- spondent to bargain collectively with the Union as the best means of effectuating the policies of the Act," citing Matter of Marshall and Bruce Company, 75 N. L. R. B. 90, and Matter of Karp Metal Products Company, Inc., 51 N. L. R. B. 621. Neither of these cases is similar to the one at hand. In finding that the Respondent has acted in good faith , the undersigned has not overlooked the questioning of employees by Bartlett in January 1947. Although this was plainly wrong , the inquiry as to choice of representative was apparently intended merely to establish what the Union failed and refused to give-proof of its authority . Bartlett's query about lower pay was not authorized by either Rogers or Outler, and they were the ones who continued to bargain with the Union . Because of the remoteness of the incident to the time of the refusal to continue negotiations , and because Bartlett's questioning did not stop the Respondent from thereafter bargaining in good faith , the under- signed believes that such violation is not in itself sufficient to color the Respondent's intent in August 1947. The Union had continually asserted its authority on the basis of its certifica- tion and on its unsupported statement that it had a majority . Since the certifica- tion had lost its effect, the Union could rest only on its current majority. The fact that the Union actually had a majority is not enough where the Respondent in good faith demands reasonable proof thereof , as it did here. Because the Union repeatedly refused to prove its majority , it is in no position to complain if the Respondent finally insists upon such proof before it will continue bargaining. Maxwell testified that, late in July 1947, he offered to bring the announcers in as part of the negotiating committee and that the Respondent refused although, according to Maxwell, this would have demonstrated that the Union had a majority . The Respondent could not have accepted this offer solely to satisfy itself of the Union's majority when that was not the purpose of the offer, and the Respondent had adequate reasons for not including the announcers in negotiations. ATLANTA JOURNAL COMPANY 851 It follows that the Respondent has not failed and refused to bargain within the meaning of Section 8 (5) of the Act, as reenacted in Section 8 (a) (5) of the amended Act. 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, above, have a close, intimate, and substantial relation to trade, traffic, and 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 It has been found that the Respondent has engaged in unfair labor practices in violation of Section 8 (1) of the Act, as reenacted in Section 8 (a) (1) of the amended Act. The undersigned will therefore recommend that the Re- spondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent did not refuse to bargain with the Union in violation of Section 8 (5) of the Act or Section 8 (a) (5) of the amended Act. The undersigned will therefore recommend that, as to the allega- tion in the complaint of refusal to bargain, the complaint be dismissed. 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. Atlanta Local, American Federation of Radio Artists, affiliated with the Associated Actors and Artistes of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act and the amended Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and amended Act, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 3. All staff announcers of the Respondent, excluding the barn-dance announcer, the barn-dance master of ceremonies, temporary announcers, persons in the posi- tions occupied by Stagg, Cason, and McMillan in November 1944, and all super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recommend such action, constitute an appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act and amended Act. 4. Atlanta Local, American Federation of Radio Artists, affiliated with the Associated Actors and Artistes of America, A. F. L., was on December 15,1944, and at all times material herein thereafter has been the exclusive representative of all employees in the aforesaid unit for purposes of collective bargaining, within the meaning of Section 9 (a) of the Act and amended Act. 5. The unfair labor practices herein found are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act and amended Act. 6. The Respondent has not refused to bargain with the Union within themean- ing of Section 8 (5) of the Act or Section 8 (a) (5) of the amended Act. .852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, the undersigned recommends that the Respondent, Atlanta Journal Company, doing business as Radio Station WSB, Atlanta, Georgia, its officers, agents, successors , and assigns , shall : 1. Cease and desist from : (a) Interrogating its employees or applicants for employment as to their ,union memberships or choice of bargaining representative ; (b) Threatening its employees with reduction in salaries or loss of pay if they -choose the Union as their collective bargaining agent; (c) In any similar manner interfering with, restraining , or coercing its em- ployees in the exercise of the rights to self-organization , to form labor organiza- tions, to join or assist Atlanta Local, American Federation of Radio Artists, affiliated with the Associated Actors and Artistes of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their -own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act and amended Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Post at its studio in Atlanta, Georgia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region ( Atlanta, Georgia ), shall, after being duly signed by the Respondent's representative be posted by the Respondent immediately upon receipt thereof and be maintained by him for at least sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing within twenty (20) days from the date of the receipt of this Inter- mediate Report of what steps the Respondent has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations , file with the Board , Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all mo- tions or objections ) as he relies upon , together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Im- mediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request ATLANTA JOURNAL COMPANY 853 therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. JAMES R. HEMINGWAY, Trial Examiner. Dated August 4, 1948. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist ATLANTA LOCAL, AMERICAN FEDERATION OF RADIO ARTISTS, AFFILIATED WITH ASSOCIATED ACTORS AND ARTISTS of AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our employees are free to become or remain members of this union, or any other labor organization. ATLANTA JOURNAL COMPANY D/B/A RADIO STATION WSB, Employer. Dated ------------------------ By --------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from .the date hereof , and must not be altered, defaced, or covered by any other material. 838914-50-vol. 82-55