Brown Radio Service and Laboratory

III the Matter of GORDON P. BROWN, AN INDIVIDUAL DOING BUSINESS UNDER THE TRADE NAME AND STYLE OF BROWN RADIO SERVICE AND LABORATORY and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS & TECHNICIANS Case No. 3-C-810.-Decided August 26, 1946 Mr. Cyril W. O'Gorman, for the Board. Mr. Jacob Ark, of Rochester, N. Y., for the Respondent. Mr. A. T. Powley, of Brooklyn, N. Y., and Mr. Charles Snyder, of Rochester, N. Y., for the Union. Mr. James Zett, of counsel to the Board. DECISION AND ORDER On May 9, 1946, Trial Examiner Irving Rogosin issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had engaged in and-was engaging in certain unfair labor practices and recommending that the respondent cease and desist there- from, and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, on June 3, 1946, the respondent filed exception's to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no - prejudicial error was committed. The rulings 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 as hereinafter modified. 1. The Trial Examiner found that the strike beginning August 12, 1945, was caused by the respondent's unfair labor practices and not, as claimed by the respondent, by the employees' desire to compel the respondent to comply with a Directive Order of the War Labor Board. It is to be noted in this connection that an unfair labor practice strike does not lose its character as such merely because economic reasons may 70 N. L. R. B., No. 38. 476 BROWN RADIO SERVICE AND LABORATORY 477 have contributed to or even precipitated the work stoppage.' In the present case, it appears that the respondent had been unwilling at the very outset to engage in the good faith bargaining required under the Act for, as the Trial Examiner found, the respondent originally delayed bargaining with the Union and finally acceded to the Union's request to negotiate with it only after the Union threatened to file strike notices. Thereafter, the respondent, in disregard of his obli- gation to the statutory representative, unilaterally made changes in work schedules and gave individual wage increases to employees within the bargaining unit represented by the Union. Also during this period the respondent engaged in other illegal conduct, as set forth in the Intermediate Report. Moreover, on the day preceding the strike, one of the employees complained to the union representative that the respondent had made the third unilateral change in the work schedule. Thereupon, the union representative made three unsuccess- ful attempts to contact the respondent. Although advised of these calls by his secretary, the respondent made no attempt to communicate with the Union; instead,-he directed his secretary to call a meeting of his employees to discuss the Union on August 13, to which meeting he failed to invite the union representative. Later in the day the Union filed a 30-day strike notice pursuant to the War Labor Disputes Act. During the afternoon of the same day the respondent kept the Union's activities under surveillance and on that evening the employees held their strike meeting. % The real causes of a strike are to be found "in the whole sequence, of events" 2 preceding it, and this motivation is to be determined "in the light of the cumulative effect of [the employer's] prior tainted labor practices." 3 Upon the entire record in this case, we conclude that,the afore-mentioned strike was caused by the respondent's unfair labor practices and' we, therefore, affirm the Trial E'xaminer's findings thereon 4 IN. L R. B. v. Remington Rand, Inc , 94 F. (2d) 862, 871-872 (C. C. A. 2), cert. denied 304 U S 576 ; N. L R. B. v Stackpole Carbon Co , 105 F. ( 2d) 167,175-'176 ( C. C. A 3), cert. denied 308 U. S . 605 , Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472, 478 (C C. A. 3), cert. denied except as to other provisions 309 U. S. 684. 2 N. L. R B. v. Barrett Co., 135 F. ( 2d) 959, 961-962 (C. C A. 7). B Great Southern Trucking Co. v. N. L. R . B, 127 F. ( 2d) 180, 186 (C C. A. 4 ), cert. denied 317 U. S. 652. 4 Employee Christ 's testimony concerning the strike meeting lends further support to our conclusion herein well, we said that we couldn 't go to the meeting because we didn't have Union representation , and we * * * didn't feel we would be wise in going to it. Besides that, about 2 weeks previously we had received a new schedule which we feel was pretty tough , besides the fact that Mr. Snyder had not been consulted on that too * * * and we had received remarks from - other operators that were not in the Union and other operators that were in the Union who talked with Mr. Brown and we thought Brown would carry this thing out for years. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner also found that the record did not support the respondent's contention that some of the striking employees had engaged in the wrongdoing allegedly committed at the commencement of the strike, and the Trial Examiner therefore rejected the respond- ent's contention that the strikers should be denied reinstatement for that reason. We affirm this finding. In so concluding, however, the Trial Examiner further stated that he would have reached a similar result "even if the evidence were sufficient to establish that the control room failure was clearly attributable to the strikers." On the con- trary, we do not condone the alleged wrongdoing and we would have considered such misconduct as sufficient justification for discharge of an employee who had been clearly and unmistakably identified as a participant therein.5 We find, however, that the record does not identify any of the striking employees as having engaged in the mis- conduct alleged, and in the absence of such showing we will not, for that reason, deny reinstatement to any of the employees herein. 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, Gordon P. Brown, doing business as Brown Radio Service and Laboratory, Rochester, New York, and his agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with National Association of Broadcast Engineers & Technicians as the exclusive representa- tive of all his employees within the appropriate unit described in paragraph 2 (a) of this Order, and from taking unilateral action, without prior consultation with the Union, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment affecting the said employees ; (b) Discouraging membership in National Association of Broad- cast Engineers & Technicians or in any other labor organization of his employees, by discharging or refusing to reinstate any of his employees, or in any manner discriminating in regard to their hire or tenure of employment or any term or condition of employment; (c) Interrogating any of his employees, orally, or by meazis of employment applications or any like or similar devices, with regard' to their union membership or affiliations or their sentiments regard- ing unions; (d) Engaging in any surveillance of the union activities of his employees ; 6 Matter of Mt. Clemens Pottery Company, et al and S. S. Kresge Company, 46 N. L. R. B. 714, 715-761, 765, enf'd as modified 147 F. (2d) 262 (C. C. A. 6). BROWN RADIO SERVICE AND LABORATORY 479 (e) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist National Association of Broad- cast Engineers & Technicians or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bar- gaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds, will effectuate the policies of the Act : (a) Upon request, bargain collectively with National Association of Broadcast Engineers & Technicians as the exclusive representa- tive of all of his employees performing the duties of radio operator and studio operator, excluding the chief engineer and assistant chief engineer, at the respondent's studio and transmitter plant, and ex- cluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, in regard to rates of pay, wages, hours of employment, or other conditions of employment; (b) Offer the employees whose names are set forth in Appendix A of the Intermediate Report attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, dis- missing, if necessary, any employees who were hired to replace the said employees subsequent to August 12, 1945, without prejudice to their seniority and other rights and privileges; (c) Make whole the said employees whose names are set forth in Appendix A of the Intermediate Report attached hereto, for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned as wages from November 10, 1945, the date on which, after they uncon- ditionally offered to return to work, they were discriminatorily re- fused reinstatement, to the date of the offer of reinstatement, less the net earnings of each during said period; (d) Post at his broadcasting studio in Rochester, New York, and his transmitter plant in Brighton, New York, copies of the notice at- tached to the Intermediate Report marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the respondent, be posted by the respondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. 6 This notice, however , shall he, and it hereby is, amended by striking from the first paragraph thereof the words "RECOMMENDATIONS Or A TRIAL EXAMINER" and substituting in lieu thereof the words "A DECISION AND ORDER " 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. MR. GERARD D. REILLY, concurring in part dissenting in part: I concur in this decision, except with respect to the finding that the employees who participated in the strike are entitled to affirmative relief under the Act. From the record it appears that the strike notice required under the War Labor Disputes Act was filed on August 11, 1945, and that the employees went out on strike the following day without observing the 30-day waiting period required under that Act. I would therefore deny reinstatement and back pay to these employees for the reasons set forth in my dissenting opinion in Matter of Republic Steel Corpora- tion, 62 N. L. R. B. 1008 (in which I discussed the legislative history of the War Labor Disputes Act) . INTERMEDIATE REPORT Mr. Cyril W. O'Gorman, for the Board. Mr. Jacob Ark, of Rochester, N. Y., for the respondent. Mr. A. T. Powley, of Brooklyn, N. Y., and Mr. Charles Snyder, of Rochester, N. Y., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by National Association of Broadcast Engineers & Technicians, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Third Region (Buffalo, New York), issued its complaint dated March 25, 1946, against Gordon P. Brown, an individual, doing business under the trade name and style of Brown Radio Service and Laboratory, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices af- fecting 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 accompanied by notice of hearing were duly served upon the respondent and the Union. - With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent: (1) since on or about January 30, 1945 has vilified, dis- paraged, and expressed disapproval of the Union ; interrogated his employees concerning their union affiliations ; urged, persuaded and warned them against membership in, or assistance to the Union ; threatened them with discharge or other' reprisals if they joined or assisted the Union , for the purpose of discourag- ing membership in or assistance to. the Union, granted a wage increase to some of his employees on or about April 10, 1945; and from on or about January 30, 1945, to date, has kept under surveillance the union activities of his employees;' (2) on or about November 10, 1945, refused and has since continued to refuse 1 As amended during the hearing, over the objection of the respondent , to allege surveillance. BROWN RADIO SERVICE AND LABORATORY 481 to reinstate certain of his employees who had concertedly ceased work and gone on strike on or about August 11, 1945, as a result'of the respondent's unfair labor practices and who thereafter, on or about November 8, 1945, had applied for re- instatement, thereby discriminating in regard to the hire or tenure or terms or conditions of employment of the said employees, and thereby discouraging mem- bership in the Union; 2 (3) since on or about November 20, 1944, and at all times thereafter, has failed and refused to bargain collectively with the Union notwith- standing that the Union had at all times since October 18, 1944, been the rep- resentative of a majority of the employees in an appropriate unit, and has, on or about December 23, 1944, and thereafter, bargained directly and individually with his employees within the appropriate unit concerning rates of pay, wages, hours of employment and other conditions of employment, and granted wage increases to such employees; and (4) by the foregoing acts, has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent, in his answer filed April 9, 1946, admitted the allegations concerning the nature and extent of his operations, and the designation of the Union on or about October 18, 1944, as the exclusive representative of the employees in the appropriate unit, but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Rochester, New York, on April 9 and 10, 1946, before Irving Rogosin, the Trial Examiner duly designated by the Chief Trial Examiner The Board and the respondent were represented by counmel, and the Union by its iepresentatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues: At the close of the Board's case, the respondent moved to dismiss the complaint. The motion was denied., Motions to conform the pleadings to the proof with respect to formal matters not affecting the substantive issues were granted without objection at the close of the evidence Counsel for the Board and for the respondent availed themselves of the opportunity afforded all parties to argue orally upon the record. Although afforded an opportunity to do so, none of the parties has filed a brief. Upon the entire record in the case, from his observation of the witnesses, and upon the basis of a view of the respondent's broadcasting studio -taken before the close of the hearing, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Gordon P. Brown, an individual doing business under the trade name and style of Brown Radio Service and Laboratory, maintaining his principal' office and radio broadcasting station under the call letters WSAY, at Rochester, New York, and operating a transmitting plant in conjunction therewith in the Town- ship of Brighton, County of Monroe, State of New York, has been engaged since 1936 in the transmission by radio of entertainment, advertising, and intelligence under license granted by the Federal Communications Commission, into and through the State of New York and into and through states of the United States other than the State of New York. The radio programs transmitted by Station 2 The employees involved are Joseph Durante Clara Weston Helen Christ Prank Ciccoiicco Beryl Shay 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WSAY are heard in States of the United States other than the State of New York. Programs are also transmitted by direct telephone wire from points located in the States of California, Illinois, Florida, and other States of the United States to radio Station WSAY in Rochester and then transmitted by Station WSAY over the air. The station serves almost daily as an outlet for the Mutual Broadcasting System and the American Broadcasting Company System as part of the so-called Mutual and ABC networks. Approximately 75 percent of the radio time of Station WSAY is devoted to sustaining and com- mercial programs of national origin, originating from points outside the State of New York. Programs transmitted over the air from this station are re- ceived in states outside the State of New York. The respondent concedes that he is engaged in commerce within the meaning of the Act i II. THE ORGANIZATION INVOLVED National Association of Broadcast Engineers & Technicians is an unaffiliated labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein The respondent conceded at the hearing, as he had in his answer, that the unit alleged in the complaint to be appropriate constitutes an appropriate unit for the purposes of collective bargaining within the meaning of the Act; and that a majority of the employees in the said unit designated the Union as their exclusive bargaining representative on or about October 18, 1944, as established by a cross-check conducted under the supervision of the Regional Director of the Third Region of the Board.' The undersigned finds, accordingly, that all employees of the respondent per- forming the duties of radio operator and studio operator, excluding the chief engineer and assistant chief engineer, at the respondent's studio and transmitter plant, and excluding all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The undersigned further finds that at all times since October 18, 1944, the Union has been the duly designated representative of a majority of the employees in the said appropriate unit, and that by virtue of Section 9 (a) of the Act was, on October 18, 1944, and has since been, at all times material herein, the exclusive representatives of all the employees in the said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 2. The refusal to bargain (a) Sequence of events Early in November 1944, following notification by the Regional Director to the parties of the selection of the Union, Allan T. Powley, president of the Union, The findings in this section are based upon the allegations in the complaint and the respondent's answer thereto, the testimony of the respondent, Gordon P. Brown, and the concession of counsel for the respondent at the hearing. There were five employees in the unit, all of whom designated the Union as their collective bargaining representative. BROWN RADIO SERVICE AND LABORATORY 483 attempted to communicate with the respondent to commence negotiations for a contract. Powley telephoned the studio daily over a period of 4 to 6 days, while he was in Rochester negotiating with other local radio stations, identified himself to the switchboard operator, as well as to the respondent's assistant and personal secretary, and, after stating the nature of his business, requested that the respondent communicate with him at his hotel in Rochester. At no time during Powley's stay in Rochester did the respondent communicate with him Later that month Powley, accompanied by Charles F. Snyder, chairman of the Roches- ter chapter of the Union, after having attempted without success to reach Brown at his transmitter plant in Brighton, New York, drove to his home He was informed that Brown was not in, but when Powley announced that "a man from Washington [was] looking for him," he was finally ushered into Brown's office at his home. Snyder did not accompany him into the house, but remained in the car. Powley submitted a proposed contract to Brown and requested that a date be set for a conference. Brown asked for an opportunity to consider the contract, informed Powley that he intended to be in Washington on December 1 and suggested a meeting at the Hamilton Hotels Brown was not in Washington on or about that date, nor did he communicate with Powley at the time. Shortly afterward, Snyder called on Brown at his transmitter station and requested him to set a elate for a conference, suggesting that he submit a -counter- proposal. Brown stated that he would be unable to meet with the union repre- sentatives until the beginning of the year or until such time as he had com- pleted the construction of a new transmitter which he was then installing. Snyder rejected this as unsatisfactory. On December 11, 1944, Powley wrote the respondent that the Union had been endeavoring to initiate contract negotiations since it had been "certified," and complained of the respondent's failure to keep the appointment of December 1, as well as of the futile attempts of Snyder to reach the respondent. The letter further stated that unless the respondent communicated with Snyder by December 15, and informed him that he was prepared to begin negotiations, a 30-day strike notice would be filed. Brown replied by telephone requesting that Powley delay the filing of a strike notice for 10 days. Powley agreed to wait until December 23, and advised him that if he failed to confer with Snyder in the meantime he would proceed with the strike notice. Soon afterward, on or about December 14, Snyder learned from the employees that the respondent had inaugurated a change in the hours of work in the operators' schedule. Snyder notified Powley in Washington and was advised that he would request the services of a Conciliator. Powley thereupon instructed the attorney for the Union to arrange for a con- ciliator to confer with Snyder and the respondent in Rochester.' At the conference held at the office of the respondent on December 18, 1944, attended by Snyder, Brown, and the Conciliator, the change in the working Although there is a conflict in the testimony as to whether a definite appointment was made on this occasion , or whether , as contended by Brown, he merely stated that he anticipated being in Washington at about that time and suggested that Powley communi- cate with him at the hotel where he usually stayed, the undersigned finds, upon the basis of Powley's credible testimony that he subsequently telephoned the hotel on November 30 and on the next 2 days to ascertain whether Brown had registered there, that Brown did in fact make a definite appointment which he failed to keep without notifying Powley. Some support for this conclusion is found in a letter from Powley to Brown, dated December 11, 1944, received in evidence, in which Powley referred to Brown's failure to keep that appointment. Although the respondent testified that it was he who called in the Conciliator, the undersigned does not credit his testimony as against Snyd'er's and Powley's, upon the basis of which the above finding is made. 712344-47-vol. 70-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schedule was discussed with the union representative for the first time It was agreed that the employees would continue working in accordance with the new schedule, which was to have become effective the day before, for a trial period of 1 or 2 weeks, upon the respondent's assurance that he would provide the employees with some relief. A further conference was held at the respondent's office between Snyder and Brown on December 23, 1944, at which, Brown submitted his counterproposal. Snyder examined it and stated that he would submit it to' the members of the Union employed by the respondent and would communicate with him after they had considered it. The parties were unable to reach agreement upon most of the substantive provisions of a contract, and again enlisted the services of the Conciliator. On January 11, 1945, after a conference participated in by the Con- ciliator, a memorandum was prepared indicating the issues upon which the parties had reached agreement, as well as those upon which the parties were in dispute, and the matter was submitted to the Regional War Labor Board. On July 10, 1945, following hearings held on March 0 and 13, 1945, that agency issued its Directive Order." On or about July 18, 1945, Howard B. Mouatt, secretary-treasurer of the Rochester chapter of the Union, telephoned Brown and requested a meeting for the purpose of embodying the terms of the Directive in a collective bargaining agreement Brown inquired as to the date of the "dead line" and, when Mouatt referred him to the Directive, Brown stated that there would be a "slight delay," inasmuch as he intended to file a petition for review A petition for reconsidera- tion filed by the respondent was denied by the Regional War Labor Board on August 9, 1945, the Industry members dissenting, and the respondent thereupon appealed to the National War Labor Board. On the morning of August 12, 1945, the radio and studio operators of the respondent concertedly remained away from work, and went on strike under circumstances related hereinafter. They have not since been reinstated. (b) The respondent's unilateral action following the designation of the Union 1. The change in the operators' work schedule As has already been indicated, the respondent, shortly before December 17, 1944, changed the operators' work schedule without previously consulting with the Union. Although Brown himself, in his testimony, was not certain whether the change was made before or after the conference held on December 18 at which Snyder and the Conciliator were present, he admitted that the schedule had been prepared "just prior" to the conference. The schedule itself indicates upon its face that it was to have become effective on December 17, the day before the .conference with the Conciliator. In any event, there was no showing that the respondent had consulted with the Union before posting the new schedule about a week prior to its effective date. At the close of the conference, according to Brown's' testimony, the employees threatened to strike if required to work in accordance with that schedule. Defending his right to change the work schedule, the respondent contended at the hearing that the new schedules were similar to those which had formerly been in use from the time the radio station was first operated until the outbreak of the war Thereafter, due to the manpower shortage among operators, the re- spondent contended he employed more operators than were actually required for the operation of the station. Thus, the change in schedule, according to him, G No evidence was adduced at the hearing in the instant proceeding as to the provisions of the Directive. - BROWN RADIO SERVICE AND LABORATORY 485 was not actually a change, but a return to the schedule which had formerly been in effect. A further change in the schedule was inaugurated by the respondent, effective March 28, 1945. This, according to him, was for the purpose of releasing em- ployee Durante from his duties as a control room operator to assist the respondent in the construction of his new transmitter station. A subsequent change in the operators' schedule a week or two before August 12, culminated in the strike on that date. Whatever the necessity, from the respondent's standpoint, for the change in working schedule, the question is whether the respondent instituted a change in the hours of work after the designation of the Union without prior consultation with it, and in derogation of its righfs as exclusive collective bargaining repre- sentative. It is clear, upon the record, that this must be answered in the affirmative. 2. The granting of individual wage increases On or about April 10, 1945, while the dispute between the respondent and the Union was pending before the War Labor Board, the respondent granted Beryl Shay, a control and transmitter operator, a weekly wage increase of $10. There is a square conflict as to whether the respondent did so without first communicat- ing with the Union. Both Brown and his assistant and personal secretary, Jeri Sanders, testified that Brown telephoned Union Representative Snyder before acceding to Shay's demand. Snyder categorically denied that he had ever been notified by the respondent of his intention to grant the wage increase. Brown's testimony, that on the occasion when he informed Snyder that he proposed to grant the wage increase, Snyder adopted a "lackadaisical" attitude and stated, "It's okay with me," is inherently improbable. Brown conceded at the hearing that, during the entire period when Snyder was meeting with him, Snyder was attempting to obtain a general wage increase for all the employees who were members of the Union, and that Snyder was vigorous in presenting his demands for a general wage increase, both before the War Labor Board and at conferences at which the Conciliator was present. Brown further testified that on the occasion when he informed Snyder of the proposed increase to Shay, Snyder' made no demand for a wage increase in behalf of any of the other employees in the unit, but acquiesced in the granting of the $10 weekly wage increase to Shay. It is illogical to believe that the Union would have consented to the respondent's granting of a wage in- ,crease to an individual member at a time when it was attempting to negotiate a general increase for all the members whom it represented. The undersigned does not credit Brown's testimony that he notified the Union prior to granting the wage increase, and that the Union acquiesced in the respondent's action, but finds, on the contrary, that Brown did not communicate with the Union prior to grant- ing the wage increase, and did in fact grant it without prior consultation with it, notwithstanding that the Union was then, and had been, the exclusive bargaining representative of the employees in the unit, and had been attempting to bargain with the respondent at the time involved. On May 22, 1945, the respondent filed a Form 10 application with the War Labor Board for an increase of $7.50 weekly to two technicians, one of whom was Shay, effective April 15, 1945. Although the application disclosed that the Union was the "duly recognized" labor organization representing the employees involved in the application, the respondent did not request the Union to join in the application, nor did it submit the same to the Union for its approval. The only explanation for the absence of the Union's participation in the application was that when the respondent submitted it to the War Labor Board, and was informed that the Union would be required to join in the application, Brown 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested that agency to forward a copy to Union Representative Snyder. Snyder did in fact receive a copy of this application from the War Labor Board, and learned for the first time of the wage increase to Beryl Shay. Shay continued to receive the $10 increase until about the first of June, 1945, when, s&era1 days after her return from her vacation, the respondent withdrew the increase, informing her that it was because of the Union's objection, and remarking, "That's your Union for you." Shay replied that if the Union was opposed to her increase, "evidently there was a reason" for it, and that she was content to await War Labor Board action.' Brown commented that the War Labor Board had no authority to enforce its directives ; that it could no more enforce them against him than it had been able to in the Montgomery Ward case; that he would litigate the case through the courts ; and that Shay would be "old and gray" before she received any benefit from the War Labor Board's directives. She rejoined, "that would be all right, when I got too old and too tired of fighting, I would quit With respect to a wage increase also granted to Salvatore Tomaselli, a radio operator in the appropriate unit on or about February 7, 1945, the respondent conceded that he granted it without prior consultation with the Union. It is clear from the foregoing, and the undersigned finds, that on at least the two occasions herein referred to, the respondent granted unilateral wage increases to employees in the appropriate unit, after the designation of the Union as the exclusive collective bargaining representative, without prior consultation with the said Union. B. The unfair labor practice strike On Saturday, August 11, 1945, Snyder learned from some of the employees at the radio station that the work schedule had again been changed and that the hours of work were unsatisfactory. Snyder thereupon telephoned the station, but was unable to reach the respondent He did, however, speak to Jeri Sanders, the respondent's assistant and personal secretary, on three occasions during that day, and informed her that it was very urgent that he reach the respondent. Sanders was unable to reach Brown, but telephoned his attorney, Jacob Ark, who in turn communicated with Snyder. Snyder inquired whether Brown intended to do anything regarding the prevailing conditions at the studio and the War Labor Board Directive. When informed that Ark had been unable to reach Brown but that, as far as Ark knew, Brown did not intend to comply, Snyder stated that he would file a 30-day strike notice. Ark suggested that he do so, and in the event Brown changed his decision, the strike notice could then be withdrawn. Snyder later notified Sanders of his intention to file the strike notice. Later that day, when Sanders informed Brown that Snyder was filing the strike notice, Brown instructed her to notify the employees that there would be a,meeting of the employees on the following Monday. Sanders prepared the following inter-office communication which was posted in the control room : To: Operators Date AUGUST 11, 1945 Re: From : Jeri Sanders Monday, August 13, at 2: 00 P. M there will be a meeting in Mr. Brown's office for all, operators regarding the Union. JERI SANDERS. 'Although the respondent denied the statements attributed to hint by Shay, the under- signed does not credit his denials. BROWN RADIO SERVICE AND LABORATORY 487 Helen Christ, when informed of the meeting, after conferring with other em- ployees, told Sanders that the employees could not meet with Brown unless a union representative was present. Sanders made some ambiguous comment, remarking that she did not know what to do about it, but told Christ to notify all the employees about the meeting When Christ informed her that "Steve, Frank and Louette," not otherwise identified in the record, would be working, Sanders replied "Oh, they won't come, but be sure that Joe [Durante] * * * Beryl [Shay] * * * [Christ] and Clara [Weston] [are] there" According to Sanders' testimony, Brown instructed her to notify Snyder of the contem- plated meeting, but she informed him that Snyder had already been advised of the meeting by one of the union members.' At the hearing, Brown testified that he was unable to recall the purpose of the meeting. During the course of the day. Snyder, who had been in communication with Helen Christ, learned from her of the meeting He advised her to instruct the employees not to attend since he had not been invited to be present. The meeting was not held. Later that day Snyder served written notice upon the respondent, copies of which were sent to the Board and the Secretary of Labor, that the respondent's broadcast technicians would exercise their right to strike under the Smith-Connally Act 30 days from that date because of the respondent's failure to comply with the War Labor Board Directive and to negotiate a contract in good faith. The same day all the employees, except Shay, who was absent from the city, met and agreed to strike. On the next morning, Sunday, August 12, none of the operators reported for work. Elmer J. Walz, manager in charge of station operations, testified, without contradiction, that as a result of telephonic advice from the Mutual Broadcasting System the previous day, he had instructed em- ployee Clara Weston, the last operator on duty that evening, to notify the operator who was scheduled to open the station the following morning, to report for work at 7 o'clock, 1 hour earlier than usual, because of an important an- nouncement expected from Washington in connection with V-J Day. The following morning, Walz arrived at the studio at 6: 30. When it became ap- parent that none of the operators were reporting, Walz, after ascertaining that none of the operators had reported at the transmitter site, notified the respondent. Brown himself went to the transmitter and instructed Walz to send for Assistant Engineer Johnson to have him "put the control room on the air " When Johnson arrived and attempted to do so, he discovered that the control room failed to function. An investigation revealed that tubes had been removed from the circuits, plugs_ connecting microphones in the studios had been removed from the sockets, and other measures taken to render the control room inoperative. The station was "off the air" for about an hour. At about 9 o'clock in the morn- ing operating facilities had been restored and broadcasting was resumed. At about 12:30 in the morning of August 14, 1945, the Union, through its counsel, Thomas X. Dunn, telegraphed the respondent that it had notified the National War Labor Board of the respondent's refusal to comply with its directive, and offered unconditionally to return to work "providing you comply with order of Board." An immediate reply was requested.10 Apparently none was sent, but on August 16 the respondent wrote to the "Chairman of NLRB" informing him of the "walkout perpetrated in violation of NWLB rules and 0 The circumstances under which Sanders learned that Snyder had been informed of the scheduled meeting are discussed hereinafter in connection with the allegations of surveil- lance. 10 The telegram was datelined , Washington, D. C. August 13, 1945, 12 : 31 P. M. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure," enclosing photostatic copies of the respondent's petition for review of the Board's Directive Order, petition for reconsideration, notice of denial of the petition for reconsideration, and the strike notice by Snyder, dated August 11. The letter, after deploring the action of the employees and the Union in concertedly ceasing work on "the day most important to radio station's (sic) because of V-J Day news," continued, In creating the walkout on one of WSAY'S most important days of its existence (sic) in violation. of the no strike clause and notification Exhibit #411 as well as violation of WLB Rules and Procedure which calls for no strike while actions are still pending before the board, the Union employees have in the eyes of WSAY left its employ permanently As a result of this walkout which the Union Members thought would cripple WSAY on one of its most important days of its whole existence WSAY wants no further negotiations with its former employees who, themselves terminated their employment with WSAY. The employees remained on strike until November 8, 1945. On that date, the Union's counsel wired the respondent as follows : On behalf of your employees make unconditional and unqualified offer to return to work please reply immediately. The respondent replied by wire on November 10, 1945, that he would be pleased to discuss with the Union's local representative the reemployment of his "former NABET employees." - The respondent had in the meantime replaced the striking employees with operators who subsequently became members of the Union' A conference was thereupon held between Brown and Snyder at the respondent's station at which several of the striking employees were present. The evidence is conflicting as to what occurred at this meeting, Brown testifying that the strik- ing employees, through their union representative, offered to return to work provided he signed a contract in accordance with the War Labor Board Directive; Snyder and the employees who were present at the conference, testifying that Brown offered to reinstate the strikers provided the Union executed the contract which he had proposed on December 23, 1944, and agreed to a no-strike clause. In view of Brown's testimony that he considered it imperative that he receive assurances that the employees would not engage in further strikes, and thus prevent him from fulfilling his obligation to the Federal Communications Com- mission to maintain uninterrupted broadcasting facilities ; his uncompromising position with respect to collective bargaining except upon relatively minor matters ; his disregard of the Union in dealing with his employees upon matters which were appropriate and essential subjects of collective bargaining ; his position at the very outset, following the strike, that he considered that the strikers had lost their status as employees, as evidenced in his letter addressed to the Chairman of the Board ; and especially in view of the Union's telegraphic unconditional offer to return to work in behalf of the employees, as contrasted with the earlier offer to return upon condition that the respondent comply with the War Labor Board Directive, which the Union subsequently abandoned, the undersigned concludes and finds, upon the basis of the foregoing, as well as the credible testimony of Board witnesses, that the strikers, through their designated representative, unconditionally offered to return to work on November 8, 1945, u Reference here was to the 30-day strike notice, dated August 11, one of the enclosures. An aggregate of 20 employees were hired to replace the striking employees from the date of the strike to the time of the hearing. All of the striking employees had been replaced prior to-the unconditional application for reinstatement. BROWN RADIO SERVICE AND LABORATORY 489 but that the respondent rejected that offer, and countered with the proposal that he would reinstate those employees provided they signed his original counter- proposal and agreed to a no-strike provision. Early in December 1945, following the filing of the original charge herein, Snyder, together with Board agents of the Regional office, again conferred with the respondent . Snyder, in an attempt to resume contract negotiations, asked Brown which, if any, of the disputed issues he was willing to concede under the War Labor Directive, but Brown was adamant , and would make no concession. Snyder again requested the reinstatement of the striking employees, but Brown adhered to his former position, namely, that he would not reinstate the employees, unless they signed the contract which he had originally presented, and agreed to a no-strike provision. ° C Interference, restraint, and coercion When Helen Christ entered the employ of the respondent on or about January 31, 1945, she was interviewed by Brown. In questioning her as to her attitude about unions, he mentioned the Montgomery Ward case, remarking that "the Government wasn't telling them what to do and [that] he didn't feel the Govern- ment should tell him what to do either."" Later that evening, he presented her with a statement for her signature, and asked her whether she wanted to join ,the Union. The statement, after reciting that she certified that she was the holder of the requisite operator' s license , and expressing her desire to accept employment at a stated hourly rate, continued, It is my understanding that I may or may not join a union. And whether or not I join a union my status as an operator will not be effected (sic), and that I will not be forced to join a union to maintain my position with WSAY' unless I so desire. In view of the above it is my desire to join the union not to join the union. She stated that she would not join the Union and, according to her credible testimony, Brown thereupon deleted the words "to join the union," in the state- ment." Several weeks later, while Christ was in the control room with Brown, he suggested to her that another vote be taken among the employees "to see whether there was a majority of Union members in the control room," stating that "he would count [Assistant Chief Engineer] Johnson and Marion Stillman and [Helen Christ] as not joining the Union . . . Miss Christ told him that she had not yet decided whether she would join." She subsequently joined the Union, and participated in the strike. Francis Ciccoricco, who was employed by the respondent on July 19, 1945, was not asked to sign a statement similar to that signed by Helen Christ"" He 11 It will be recalled that Brown made statements of a similar nature to Beryl Shay following the withdrawal of her wage increase. In view of this, and the general credi- bility of Helen Chiist 's testimony the undersigned rejects Brown 's denial. 14 A similar statement was signed by employee Dewitt F Bogart on May 5, 1945, to the effect that he did not desire to join the Union. Bogart, however, unlike Helen Christ, did not subsequently become a member of the Union The statement signed by Bogart contained the following concluding paragraph : It is understood however that if at anytime my union status is changed , that I will immediately notify WSAY lb This finding is based upon the credible and undenied testimony of Helen Christ. The respondent testified that it had been his practice to require all applicants for employment to sign such a statement and, that although it should have been required in every instance , he was unable to state that it had been. No explanation was offered for the failure to present Ciccoricco with a statement for his signature Later, however, follow- ing a conference at the Regional office, regarding the original charge, when he was in- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was, however, informed by Brown that Brown was aware that the War Labor Board had issued its Directive, but that he was "not going to worry about it " Brown also advised him that "every thing [would] he all right" if he did not join the Union, and work[ed] along with [Dewitt] Bogart," a non-union trans- mitter operator. Ciccoricco, nevertheless, joined the Union several days later. At about that time, while he was on his way to the studio, Brown told him not to talk to any of the operators, and reiterated that if he did not join the Union, "everything [would] be all right with [him]." 17 About May 23, 1945, after the respondent's new transmitter station "went on the air," Beryl Shay visited the transmitter in the company of an employee who was leaving the respondent's employ. Shay, who had the iequired license, and had been anxious to work at the transmitter station, asked Brown why she could not work there 19 Brown stated that inasmuch as she was a member of the Union, it would not be a "very good spot" for her to be -in, in the event the Union should call a strike. Although Brown denied the remarks attributed to him on this occasion, the undersigned does not credit his denial.19 On another occasion at or about this time, Shay mentioned to Brown that she had received "a ticket" for illegal parking, and "wondered if [she would have to] go to jail." Brown commented that "it would be a good idea becauso." it would prevent her from being "so active in the Union." Brown admitted that he had had the conversation adverted to by Shay, and that he had said, "You will probably get locked up," but denied any reference to her union mem- bership. Although the undersigned credits Shay's version of the incident, espe- cially in view of his demonstrated antipathy toward the Union, it is apparent that the conversation was carried on in a somewhat bantering vein. Neverthe- less, it serves as a further manifestation of the respondent's intent to discour- age membership in the Union. The surveillance of.the employees' union activity On August 11, 1945, according to the testimony of Jeri Sanders, the respond- ent's assistant and personal secretary, she was unintentionally "cut in" by the switchboard operator on a telephone conversation between Helen Christ and Union Representative Snyder, in which Snyder was identified, and overheard Christ inform him of the meeting in regard to the Union scheduled by the respond- ent for the following Monday morning. Although the undersigned accepts her testimony that she was unintentionally "cut in" on this telephone call, no expla- nation was given for the fact that she listened in on the conversation after dis- covering that the line was engaged. During the course of the same day, however, while Sanders was relieving the regular switchboard operator, she was observed by former Chief Announcer Paul Robinson deliberately listening in on a line from formed that the use of the statement might constitute an unfair labor practice, he discontinued the practice. 17 Although Brown denied the statements attributed to him by Ciccoricco, the under- signed does not credit his denials. 18 According to Shay's uncontradicted testimony , which the undersigned credits, the regulations of the Federal Communications Commission require a first-class radio operator to operate a radio transmitter for a certain length of time during each 5-year period to qualify for renewal of the license. 19 Shay testified , without contradiction , that when she was first employed, Brown dis- cussed with her the transmitter station which he then contemplated erecting. Shay remarked that it would be pleasant working at the site, and that she might garden there. (Note: The transcript of the testimony at page 158, lines 7-8, erroneously quotes Shay as saying,' "That would be nice working out there, I could guard it . . The record is hereby corrected to substitute "garden it" for "guard it.") Brown agreed that "the air would be fine," from which she inferred that he would permit her to work there. BROWN RADIO SERVICE AND LABORATORY 491 the control room in which Helen Christ was on duty. According to Robinson's credible and uncontradicted testimony, he reported to Christ several days later that Sanders had been listening in at the switchboard on the control room line while Christ was on the telephone. He also informed Christ that when he ap- proached Sanders for information, while she was at the switchboard, with the listening key adjusted to intercept calls to and from the control room, Sanders "motioned [him] away from the [switch] board, saying, `I want to hear what is going on here.' " As has already been stated, Christ had telephoned Snyder from the control room several times during the course of that day 2° In view of the fact that this incident occurred on the day before the strike, when Snyder was attempting to reach the respondent and had threatened to file a 30-day strike notice ; the fact that Sanders had communicated to Brown the information she had acquired as a result of having overheard a telephone conversation between a union member and the union representative; Sanders' admission that she had listened in on a conversation between those persons that day ; the respondent's general attitude of antipathy toward the Union ; and Sanders' failure to deny the statements and conduct attributed to her in this connection, the undersigned finds that the respondent, through its agent, by the foregoing conduct kept the union activities of his employees under surveillance. Respondent's contentions ; concluding findings A. The refusal to bargain An analysis of the events which transpired reveals that from early in November 1944, when the Union first undertook to' bargain , the respondent avoided meeting with the union representatives , failed to keep an appointment, and delayed and postponed meeting with them until threatened , on December 11, with the filing of a strike notice While the respondent contended that he was engaged during this period and the ensuing months in the construction of a new transmitter which, according to him, he was erecting practically single- handed, and was faced with the necessity of meeting a "deadline " imposed by the Federal Communications Commission , the record indicates that he re- quested and received several extensions, the last of which expired on May 15, 1945, a day after the actual completion of the construction . It is difficult to believe that this project prevented him from effectively negotiating with the Union during that period , if he were acting in good faith . This excuse, how- ever, might appear more reasonable , were it not for the fact that the respond- ent had attempted at the very threshold of the negotiations to postpone col- lective bargaining until the completion of the transmitter, which, as it turned out, was not completed until approximately 6 months after the Union 's demand 20 Helen Christ testified that on the day in question she observed Sanders at the switch- board, listening in on her telephone conversations with Snyder. Although she testified that she could actually observe the keys and their position on the switchboard in the outer room, from a standing position , through the window of the closed door of the control room, experiments conducted by the undersigned as well as by the parties or their counsel, at a view taken for the purpose, demonstrated that, although it was impossible to see the switchboard keys from the position in which she testified she was standing at the time, it would, however, have been possible to observe the person seated at the switchboard. The undersigned finds, both on the basis of the testimony of Helen Christ , as well as Paul Robinson, that Christ did in fact observe Sanders at the switchboard on the occasion in question, although she could not, and did not, observe the keys on the switchboard It is apparent that Christ was mistaken in her testimony in this respect and that she probably concluded, from what Robinson later told her, that she had personally observed the position of keys. The undersigned does not consider that her credibility has been affected by the fact that she was mistaken in this regard. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - for collective bargaining . Moreover, the respondent 's subsequent conduct indi- cates a deliberate design to ignore and circumvent the Union as the collective bargaining representative Thus, the respondent , on about December 14, 1944, again in March 1945 , and finally late in July or early in August 1945 , unilater- ally, and without prior consulation with the Union , changed the hours of work in the operators ' work schedule . Whether or not the change was neces- sitated by the exigencies of the respondent 's operations is not here material. Again , the respondent , on February 7, 1945, and April 10, 1945 , unilaterally granted individual wage increases to employees , ww bile the Union was attempting to negotiate a contract and obtain a general wage increase for all the employees whom it represented , and at a time when the dispute between the respondent and the Union was pending before the War Labor Board This conduct mani- fests a deliberate and flagrant disregard of the fundamental concept of col- lective bargaining, and has the necessary effect of discrediting and, undermining the bargaining representative in the eyes of the employees It has been re- peatedly held by the Board and the courts to constitute the unfair labor prac- tice of refusal to bargain. This principle has been so well established in the realm of industrial relations as to permit of no further doubt.21 Moreover, with respect to the wage increase granted to Beryl Shay, the respondent, while ostensibly resorting to' the procedure of the War Labor Board by filing an ap- plication for approval , after having already granted it without prior con- sultation with the Union , ignored the Union by failing to invite it to join in the application, despite the fact that he not only then knew that the Union had been selected as representative , but so stated in the application The excuse advanced for thus by-passing the Union, namely , that lie relied upon the War Labor Board to notify the Union, is not convincing , and certainly provides no justification for disregarding the collective bargaining representative at the outset. Furthermore, the respondent 's attempt to place the onus, for the fail- ure to obtain approval upon the Union , indicates a deliberate intent to discredit the Union with the employees. With respect to the so -called bargaining conferences which occurred between December iS, 1944, when the Conciliator first entered the negotiations , and-which finally resulted in the submission of the dispute to the War Labor Board, the record discloses that , although the respondent submitted a counterproposal on December 23, 1944 , he evinced slight disposition to make any concession on the more important basic issues. Considered in the light of his subsequent conduct, following the submission of the dispute to the War Labor Board , when lie pe- titioned that'Board for reconsideration and, after its denial, appealed to the National War Labor Board , it is apparent that the respondent was. not engaging in that bona fide collective bargaining envisioned by the Act , especially when it is recalled that during this period he was engaging in a course of unilateral conduct designed to discredit and undermine the Union . This is not to suggest that an employer may not be entitled to exhaust such remedies as are available to him before the War Labor Board , without being charged . with a refusal to bargain. The record here , however, amply establishes that the respondent re- sorted to the appellate procedure of the War Labor Board as a dilatory tactic to hinder and delay the Union in fulfilling its function as collective bargaining representative., Thus, it will be recalled that the respondent had stated to employees that the War Labor Board lacked authority to enforce its directives; 21 See Matter of Sullivan Dry Dock it Repair Corporation, 67 N. L R B . 627, for a collection of authorities on this point. See also Majority Rule in Collective Bargaining, Ruth Weyand , Columbia Law Review, Vol. XLV, 556, 579 et seq for a discussion and rationale ' on The Power of a Statutory Representative to Bar Unilateral Changes by Employer. BROWN RADIO SERVICE AND LABORATORY 493 threatened to litigate the dispute through the courts; advised one employee that she would be "old and gray" before she received any benefit from its directives ; and, about a week after the War Labor Board had issued its di- rective, after inquiring of the union representative, who had communicated with him to arrange a meeting to embody the terms of the directive in a con- tract, what the "dead line" was, announced that there would be a "slight delay," as he intended to file a petition for review. It is clear from the foregoing, and the undersigned finds on the basis thereof and the entire record, that, by' the foregoing course of conduct, including the failure to bargain in good faith, the unilateral action, both with respect to the change in the hours of work and the granting of individual -wage increases, and the resort to the machinery of the War Labor Board as a means of hindering and delaying the Union in fulfilling its role as statutory representative, the respondent has, from on or about November 1944, and at all times thereafter, failed and refused to bargain with the Union as the exclusive representative of its employees within the appropriate unit with respect to rates of pay, wages, hours, and other conditions of employment, in violation of Section 8 (5) of the Act, thereby interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. The unfair labor practice strike Against this setting, the racho operators, after meeting to consider their problem, went on strike on August 12, 1945. It will be recalled that the respond- ent's petition for reconsideration had been denied by the Regional War Labor Board 3 days earlier, on August 9; that the respondent had already indicated that lie intended to resort to all the dilatory means available to postpone, if not to frustrate, genuine collective bargaining, that when lie learned that the Union intended to file the strike notice, he forthwith scheduled a meeting of his employees to be held several clays later, to discuss the Union and, through his secretary, urged the union members in particular to attend, while declining to accede to the employees' request to permit a union representative to be present. When these factors are considered in connection with the respond ent's unilateral conduct, his attempts to discredit and undermine the Union, to alienate the members from their representative by suggesting that a poll be taken to ascertain whether the Union still had a majority, indicating what employees lie believed could be relied upon to dissipate the Union's majority, and his other acts of interference related above, and hereinafter found, there can be little doubt that the strike was caused by the unfair labor practices of the re- spondent, and the undersigned so finds. The undersigned further finds that the strike was prolonged as a result of the said unfair labor practices, as more fully set forth below. The respondent contends, however, that by failing to comply with the provisions of the War Labor Disputes Act, prior to concertedly ceasing work and going on strike, the employees forfeited their status as employees and are not entitled to the relief and protection afforded by the Act. It may be assumed, for the purpose of this case, that the War Labor Disputes Act is equally violated whether the employees fail to give the required notice altogether, or whether, having given such notice, they fail to comply therewith. , Clearly, then, it must be found that the employees violated the provisions of the War Labor Disputes Act in striking before the expiration of the 30-day period. The contention raised here is, how- ever, by no means novel, and was urged before the Board in the Republic Steel case, where, after comprehensive analysis, examination of the legislative history of that Act, and articulation of its rationale, the Board concluded that "the 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress did not intend.specifically, or,generally as part of its legislative policy, that the right of employees, . . . under the National Labor Relations Act be affected by the War Labor Disputes Act." 22 The case is decisive upon this issue in the instant case, and the undersigned, therefore, finds, that the employees herein did not forfeit their rights as employees under the Act by failing to comply with the provisions of the War Labor Disputes Act. It follows as a corollary that the employees may not be denied the protection of the Act because they went on strike, contrary to the policy of that agency, while the dispute was pending, on appeal by the respondent, before the War Labor Board. The instant case is clearly distinguishable from the American News case 28 in which the employees resorted to a strike to compel the employer to grant a wage in- crease without awaiting prior approval of the War Labor Board. There is no showing here that the purpose of the strike was illegal, except with regard to the contention already disposed of, that the employees failed to comply with the War Labor Disputes Act. If any conclusion is to be drawn, in connection with the relation of the pendency of the proceedings before the War Labor Board to the strike, it is that the employees resorted to the strike to compel obedience to, rather than disregard of, the War Labor Board's directives. A further defense, not specifically urged at the hearing as a ground for the refusal to reinstate, but which is regarded by the undersigned as having been raised, inasmuch as evidence was offered bearing upon it, is that relating to the evidence regarding the failure of the control room to function' on the morning of the strike. The undersigned is apparently asked to infer from the facts which have been detailed above, that the interruption of service, lasting 1 hour on the morning of the strike, according to the respondent's letter to the Chairman of the Board, was attributable to the strikers. The evidence, at best, is circum- stantial, establishing merely that one of the union members was the last operator on duty prior to the failure of operations, and while it creates a suspicion that the alleged acts may have been committed by one or more of the strikers, there was no showing which, if any, of the strikers actually engaged in the alleged mis- conduct. However, even if the evidence were sufficient to establish that the control room failure was clearly attributable to the strikers, the evidence of misconduct in connection with the strike' is too insubstantial, especially where no actual damage was done, to warrant the application of the principles enun- ciated in the Fansteel and Southern Steamship cases,24 so as to deny the strikers the benefits of the Act because,of any alleged illegal conduct in connection with the strike. Moreover, it is especially significant that the respondent , following the strikers' unconditional offer to return to work, at no time advanced their alleged misconduct as a ground for refusing to reinstate them. Under these cir- cumstances, it may be concluded that the respondent did not consider the conduct of such gravity as to afford a ground for refusal to reinstate, or, if he did so consider it at the time, condoned the said alleged conduct. The undersigned finds, upon the basis of the foregoing and the entire record, that the strikers have not been deprived of the protection of the Act upon any of the foregoing, grounds, and further finds that the respondent discriminatorily refused them reinstatement on November 10, 1945, after they had unconditionally n Matter of Republic Steel Corporation (98" Strip Hill), 62 N. L. R. B. 1008, 1026. See also Matter of Fairmont Creamery Company, 64 N. L R. B 824; Matter of Kalamazoo Stationery Company, Division of Western Tablet and Stationery Corp.. 66 N. L. R. B. 930; Matter of Bolin Aluminum and Brass Corporation , 67 N. L. R. B. 847. 23 Matter of American News Company, Inc., 55 N. L. R. B. 1302 ; see, however, Matter of Rockwood Stove Works, 63 N. L. R. B. 1297. 24 N L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240; N. L. R. B. v. Souther Steamship Co., 316 U. S. 31. BROWN RADIO SERVICE AND LABORATORY 495 offered to return to work, and again in December 1945, because of their union membership and activity, and because they had resorted to a strike, thereby dis criminating against them in regard to the hire and tenure and terms or condi- tions of employment, and discouraging membership in the Union ; and by the foregoing conduct, has interfered with, restrained, and coerced his employees within the meaning of Section 7 of the Act. It is further found, upon the basis of the foregoing, and the entire record, that by the statements of the respondent, Brown, to employee Helen Christ on or about January 31, 1945; to employee Beryl Shay at the respondent's transmitter station on or about May 23, 1945, and in connection with the withdrawal of her wage increase early -in June 1945, to employee Ciccoricco in July 1945; by inter- rogating his employees to ascertain their union sentiment ; by requiring employees by means of employment applications, to disclose their intention and preference with respect to joining the Union; by engaging in surveillance of the union activ- ities of its employees on August 11, 1945, by intercepting telephone calls; by refusing to bargain with the Union as the exclusive representative of the em- ployees; by discriminatorily refusing to reinstate the striking employees-after they had unconditionally offered to return to work ; and by the totality of his conduct, all as more fully related above, the respondent has interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the 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 having been found that the respondent has engaged in certain unfair labor practices, it will be recommended that the respondent 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 the Union as the exclusive representative of his employees in an appropriate unit. It will, accordingly, be recommended that the respondent bargain collec- tively with the said Union upon request. It has been further found that the respondent has discriminated in regard to the hire and tenure of employment of the employees whose names are set forth in Appendix A to this report and who had gone on strike on August 12, 1945, as a result of the respondent's unfair labor practices, by refusing to reinstate them after they had unconditionally offered to return to work. It will, therefore, be recommended that the respondent offer the said employees immediate and full reinstatement to their former positions if they are available, otherwise to sub- stantially equivalent positions, dismissing, if necessary, any employees who were hired to replace the said employees subsequent to August 12, 1945, without preju- dice to their seniority or other rights and privileges; and that the respondent make the said employees whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned from November 10, 1945, the date on which they unconditionally offered to return to work and were discriminatorily refused reinstatement, to the date of the offer of reinstate- 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, less the net earnings 26 of each during the said period In view of the extensive and pervasive nature of the unfair labor practices engaged in by the respondent, manifesting an attitude of opposition to the purposes of the Act, it will also be recommended, in order to protect the rights of the employees gen- erally, that the respondent be required to cease and desist from in any manner interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed under the Act R6 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. National Association of Broadcast Engineers & Technicians is an unaffiliated labor organization within the meaning of Section 2 (5) of the Act. 2 All employees of the respondent performing the duties of radio operator and studio operator, excluding the chief engineer and assistant chief engineer, at the respondent's studio and transmitter plant, and excluding all supervisory employ- ees with- authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 3. National Association of Broadcast Engineers & Technicians was, on October 18, 1944, and has, at all times thereafter been, the exclusive representative of all the employees in the aforesaid unit, for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4 By refusing in November 1944, and at all times thereafter, to bargain collec- tively with National Association of Broadcast Engineers & Technicians as the exclusive representative of his employees in the aforesaid 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 employees whose names are set forth in Appendix A of the report, thereby discour- aging membership in a labor organization, 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 exercise 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 com- merce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned hereby recommends that the respondent, his agents, successors, and assigns shall : zs 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 uglawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, S 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 wG See N L R B. v Express Publishing Company, 312 U. S. 426 ; May Department Stoics v N. L R B, 326 U S 376 BROWN RADIO SERVICE AND LABORATORY 497 f Cease and desist from : (a) Refusing to bargain collectively with National Association of Broadcast Engineers & Technicians as the exclusive representative of all its employees within the aforesaid appropriate unit, and from taking unilateral action, without prior consultation with the Union, with respect to rates of pay, wages, hours, and other conditions of employment affecting the said employees; (b) Discouraging membership in National Association of Broadcast Engineers & Technicians by discharging or refusing to reinstate any of his employees, or in any other manner discriminating in regard to their hire and tenure of, employment, or any term or condition of employment; (c) Interrogating any of his employees, orally, or by means of employment applications or any like or similar devices, with regard to their union member- ship, affiliations, or sentiment regarding union; 27 (d) Engaging in any surveillance of the union activities of his employees; (e) In any other manner interfering with, restraining or coercing his employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist National Association of Broadcast Engineers & Technicians, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with National Association of Broad- cast Engineers & Technicians as the exclusive representative of all his em- ployees within' the aforesaid appropriate unit in regard to any terms and conditions of employment affecting the said employees ; (b) Offer the employees whose names are 'set forth in Appendix A of this report, immediate and full reinstatement to their former positions if they are available, otherwise to substantially equivalent positions, dismissing, if necessary, any.employees who were hired to replace the said employees subse- quent to August 12, 1945, without prejudice to their seniority and other rights and privileges ; (c) Make whole the said employees whose names are set forth in Appendix A of this report, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which each would normally have earned as wages from November 10, 1945, the date on which after they unconditionally offered to return to work they were discruninatorily refused reinstatement, to the date of the offer of reinstatement, less the net earnings 28 of each during said period ; (d) Post at his broadcasting studio in Rochester, New York, and at his trans- mitter plant in Brighton, New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Third Region, shall, after being duly signed by the respondent, be posted by the respondent immediately upon receipt thereof and maintained by ,hire for sixty (60) consecutive days thereafter in conspicuous places, including all 27 Although the record indicates that the respondent has, since being informed by agents of the Board that the use of the application might constitute an unfair labor practice, abandoned the practice, in view of the pervasiveness of the respondent's unfair labor practices, and the likelihood that he may resume the practice unless required to cease and desist therefrom by a Board order, the undersigned is persuaded that the policies of the Act will be best effectuated by ancorder that lie be required to do so 28 See footnote 25, supra. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ; (e) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this -Intermediate Report, the respondent notifies said Regional Director in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) 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 Rules and, Regulations, file with the Board, Rochambeau Building, Washington 25, D C, an original and four 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 motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in slid Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the0 Dated May 9, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES IRVING ROGOSIN, Triad Examiner Pursuant to 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 employees in the exercise of their right to self-organization, to form labor organizations, to join or assist National Association of Broadcast Engineers & Technicians or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will not interrogate any of our employees, orally, by means of employment applications or any like or similar devices, with regard to their union membership, affiliations, or sentiment regarding unions. We will not engage in any surveillance of the union activities of our employees. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a' result of the discrimination. We will bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit BROWN RADIO SERVICE AND LABORATORY 499 described herein with respect to rates of pay, 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 employees of the respondent performing the duties of radio operator and studio operator, excluding the chief engineer and assistant chief engineer at the respondent's studio and transmitter plant and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. We will not take any unilateral action, without prior consultation with the Union, with respect to rates of pay, wages, hours, and other conditions of employment, affecting the employees in the aforesaid unit. The employees referred to above are : Joseph Durante Clara Weston Helen Christ Frank Ciccoricco Beryl Shay All our employees are free to become or remain members of the'above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. GORDON P. BROWN, an individual, doing business under the trade name and style of BROWN RADIO SERVICE AND LABORATORY, Employer. By ------------------------------------------ (Representative ) ( Title) Dated-------------------- NoTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 712344-47-vol. 70-33