Harding College

HARDING COLLEGE 957 The Petitioner seeks an election in a unit of employees at the Em- ployer's Hudson Falls, New York, plant. The United Electrical, Radio and Machine Workers of America (UE) and its Local 332, herein called the Intervenors, contend that the U. E.'s national agree- ment with the Employer, which is terminable upon 90 days' notice prior to September 15, 1952, is a bar to an election in this case. The Petitioner and the Employer contend, however, that the agreement contains specific provisions rendering the contract inoperative as a bar to elections during its term. The Board has considered these conflicting contentions in another case" decided this day, which involved the same contract, Employer, and Unions. As we stated in that case, we find nothing in the pro- visions relied upon by the Employer and the Petitioner which would justify a construction of those provisions as a general waiver of the Board's contract bar doctrine. We believe those provisions can more reasonably be construed as relieving the Employer of contractual liability in the event that the Board should find, upon application of its own contract bar principles, that the contract was rendered inoperative as a bar and another union certified. Accordingly, in the absence of a provision containing clear and unmistakable language to the effect that the parties waive the application of the Board's contract bar doctrine to the filing of a rival petition, we find that the Inter- venors' contract with the Employer is a bar to an election in this case, and we shall dismiss the petition filed herein. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. CHAIRMAN H.ERZOG and MEMBER STYLES took no part in the con- sideration of the above Decision and Order. General Electric Company, 99 NLRB 155. HARDING COLLEGE 1 and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL . Case No. 32-CA-159. June 26,1952 Decision and Order On December 4, 1951, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor I The name of the Respondent is hereby amended to conform to our findings within. X99 NLRB No. 148. 958 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD 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. Thereafter, the Respondent filed • exceptions to the' Intermediate Report and a supporting brief. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds tha£ no prejudicial error was committed. The Trial Examiner's rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addi- tions and modifications : 1. We agree with the Trial Examiner that the motion of the Re- spondent to dismiss the complaint for lack of service of the charge and other process in this case upon a "person" within the meaning of the amended Act should be denied. We do not, however, agree with the Trial Examiner's conclusion that there are two employers in this case, one of which is WHBQ Radio Station and the other Harding College. The facts, which are not in dispute, reveal that Harding College is a general welfare corporation organized by virtue of and existing-under the laws of the State of Arkansas with its principal office and educational institution located at Searcy, White County, Arkansas. Since about December 9, 1946, when a corporation named Broadcasting Station WHBQ, Inc., surrendered its charter to the State of Tennessee, Harding College has been authorized by the Fed- eral Communications Commission to own and operate a radio station in Memphis, Tennessee, under the call letters WHBQ. This radio station, as the Trial Examiner found, has no separate legal existence. It may best be described as a business venture of Harding College operated by that corporation's trustees and under the immediate con- trol and supervision of a duly authorized general manager. We find that Harding College is the Employer of the employees involved herein and the only Respondent in this case. The charge, amended charge, and complaint in this case named the Respondent as "WHBQ Radio Station Owned and Operated by Harding College." Service of process, including the original charge, was directed to the Respond- ent under this name at its place of business in Memphis, Tennessee. Although the Respondent answered the complaint, using the name "WHBQ Radio Station" and giving as its post office address the Hotel Gayoso, Memphis, Tennessee, the location of its broadcasting station, it now contends that it was never adequately served with process and that there is no party with legal capacity to sue or be sued before the Board. Like the Trial Examiner, we find no merit in these conten- 2 Pursuant to -the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston , Murdock, and Styles]. HARDING COLLEGE .959 tions. The Respondent participated fully in every stage of this pro- ceeding, including its answer to the complaint, its general appearance and participation in the hearing, and its argument to the Board. It does not deny that the formal documents in this case were brought to its attention nor does it contend that it has been prejudiced in any manner by the misnomer. Whatever the effect of the designation of WHBQ Radio Station as an integral part of the named Respondent, it is clear that Harding College, named in these documents as the owner and operator of that station, was sufficiently identified as the Respondent in this case. We find that service of process herein by registered mail directed to WHBQ Radio Station, the place of Hard- ing College's broadcasting business in Memphis, Tennessee, was ade- quate service upon the Respondent, Harding College, within the mean- ing of Section 11 (4) of the amended Act and Section 102.80 of the Board's Rules and Regulations, and provided adequate notice to the Respondent as required by Section 10 (b) of the amended Act.' 2. We find, as did the Trial Examiner, that the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act by interrogating them concerning their union activities and promising them benefits to refrain from such activities as a means of discouraging collective bar- gaining. Specifically, we find that the following _ conduct of the Respondent, derived from credited and uncontradicted testimony in the record, constituted independent violations of Section 8, (a) (1) of the Act : (1) The interrogation in General Manager Cleghorn's office either by Cleghorn or a cointerviewer for the, Respondent of James H. Warren, an applicant for employment,' concerning his views on unions shortly before the latter was hired as a radio announcer in September 1950; (2) the interrogation of employee Frank T. Edwards in Cleghorn's office on October 30, 1950, by Cleghorn at which time Cleghorn asked Edwards, "How do you feel about unions?"; (3) the interrogation of employee Norman Dye by Chief Engineer Roy at the transmitter station on November 1, 1950, at which time Roy asked Dye 10 • written questions concerning union activities at the station and including, in conjunction therewith, the question whether Dye be- lieved Edwards to be a "double-crosser" or "something like that"; (4) Roy's statement to employee James T. Harbison shortly after the latter was rehired on October 31, 19501 that the advent of a union would adversely affect a profit-sharing plan on which Cleghorn was work- ing; 5 (5) Cleghorn's statement to the employees at the transmitter $ Deluxe Motor stages, 93 NLRB 1425 ; Fairchild Cafeteria, 92 NLRB 809. ' It is well settled that the definition of "employee" in Section 2 (3) of the Act covers an applicant for employment . Moore Drydock Co., 81 NLRB 1108 ; Briggs Manufacturing Company, 75 NLRB 569. We regard this statement of Roy's as a threat of economic reprisal by the Respondent in the form of withholding a potential benefit from the employees if they persisted in engaging in union activities. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD station when he met with them in September 1950, shortly after the union began its organizational campaign, that he had been working for some time on a pension plan similar to the one at Harding Col- lege; 6 (6) Cleghorn's offer to the employees of the services of the Respondent's attorney without a fee after the discharge of Edwards and the collapse of the union's organizational campaign during a discussion with the employees in which Dye expressed the thought that the union would hold against him the fact that he had talked to Roy and had withdrawn from the union.7 3. We agree with the Trial Examiner that employee Frank T. Edwards was discriminatorily discharged by the Respondent because of his membership in and activity on behalf of the Union. We do not, however, adopt the Trial Examiner's statement that "To find otherwise, it would be necessary to disregard the equities of the situ- ation and the past and present demonstrated efforts and intent of the Respondent to discourage the self-organization of its employees." Our finding that the Respondent discriminatorily discharged Edwards is based upon the following evidence contained in the record : Vdwaids was a key figure in the Union's organizational campaign. He was the first of the Respondent's engineers to sign a union-authori- zation card in September 1950. Subsequently, he influenced other engineers to join the Union. Union Organizer Blair testified that he told Chief Engineer Roy sometime during the middle of October 1950, about his organizing efforts among the Respondent's employees, and that Roy had suggested, "I guess you found Mr. Edwards at our station very much interested?" As found above, on October 30, 1950, 2 days before his discharge, Edwards was interrogated by Respond- ent's general manager , John C. Cleghorn, concerning Edwards' atti- tude toward unions. On the morning of November 1, 1950, employee Norman Dye was interrogated in considerable detail by Roy with regard to the activities of Edwards and the progress of the union's membership campaign. As a result of this conversation the Respond- ent had full and specific knowledge on this date of Edwards' efforts in behalf of the union, including the fact that Dye had been influenced by Edwards to join the union. The same morning Roy informed Cleghorn of his interview with Dye and it was at that time, according to Cleghorn's testimony, that the decision was finally reached to dis- charge Edwards. In the evening of that day Cleghorn and Roy 6 Although the Respondent contends that the pension plan mentioned by Cleghorn had long been in contemplation, the record shows that Cleghorn spoke to the engineering em- ployees only after the Union began its organizational campaign and mentioned a pension plan in the context of speech in which he stated that he hoped to operate the station without a union. We find, as did the Trial Examiner, that this statement of Cleghorn's was intended as an inducement to the employees to discourage their participation in union activities. I We agree with the Trial Examiner that this offer of Cleghorn's was a promise of benefit if the employees refrained from further concerted activity. HARDING COLLEGE 961 appeared at the transmitter station, called Edwards to their car, and summarily discharged him, giving him 2 weeks severance pay. Al- though Edwards was senior in employment to other engineering em- ployees, he was informed by Cleghorn that he was being discharged because the engineers' costs were too high and, as his salary was the highest among them, that was "the right place to start cutting." Edwards pleaded for his job, offering to work at a lower salary, but Cleghorn refused. The Respondent contends that Edwards was discharged for economy reasons. Nevertheless, during the latter part of October 1950, Robert T. Harbison, formerly employed by the Respondent as a transmitting engineer, was rehired and reported to work on October 31, 1950. The Respondent asserts that Harbison was a more competent remote control engineer than Edwards and was hired for that purpose. However, at no time did it inform Edwards that this was the reason for his discharge. Nor is there any evidence in the record that the Respondent. had ever expressed dissatisfaction with Edwards' work either as a, transmitter engineer or remote-control operator. Rather, it is clear from the record that the lower paid engineers at the transmitter station regarded Edwards as their superior, although he was not, in fact, a supervisor. Dye testified that he had received the impression from talking to Roy, Cleghorn, and other employees that Edwards was "top man." On the basis of these facts and the union animus demonstrated by the conduct found above to be violative of Section 8 (a) (1) we conclude, and find, that in discharging Edwards the Respondent was motivated by a desire to rid itself- of an active union adherent and thus to destroy the strongest link in the Union's organizational cam- paign. The Respondent thereby violated Section 8 (a) (3) and 8 (a) (1) of the amended Act. 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, Harding College, WHBQ Radio Station, Memphis, Tennessee, its officers, agents, succes- sors and assigns shall : 1. Cease and desist from : -(a) Interrogating its employees regarding their union membership, activities, and sympathies; promising benefits or threatening to deprive its employees of benefits in order to coerce its employees in the.selection of a bargaining representative; in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the Interna- tional Brotherhood of Electrical Workers, AFL, or any other labor 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 or protection, and to refrain from any and all 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 authorized in Section 8 (a) (3) of the Act. (b) Discouraging membership in International Brotherhood of Electrical Workers, AFL, or in any other labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating against them in regard to their hire, or tenure of employment, or any term or condition of their employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Frank T. Edwards immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make whole the said Frank T. Edwards for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, in the manner provided in the Intermediate Report, attached hereto, in the section entitled "The Remedy." (b) Post at its broadcasting studio and transmitter station at Memphis, Tennessee, and vicinity, copies of the notice attached and inarked "Appendix A." 8 Copies of said' notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent or its representative, be posted and main- tained by the Respondent for sixty (60) consecutive clays thereafter in conspicuous places, including all places where notices to employees are customarily posted. Necessary action shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana), in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply therewith. 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, as amended, we hereby notify our employees that: 8 In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the'words, "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.'; HARDING COLLEGE 963 WE WILL NOT interrogate our employees regarding their union membership, activities or sympathies; promise or threaten to deprive our employees of benefits in order to coerce them in the selection of a bargaining representative; or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization to form, join, or assist INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all 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 authorized in Section 8 (a) (3) of the Act. WE WILL NOT discourage membership in INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor organization of our employees, by discharging or refusing to rein- state any of our employees, or by discriminating in any other manner concerning their hire, or tenure of employment, or any term or condition of employment. WE WILL OFFER to FRANK T. EDWARDS immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights and privileges pre- viously enjoyed by him, and will make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become, or remain, or refrain from becoming members of the above-named union or any other labor organ- ization except to the extent that this right may be affected by an agree- ment in conformity with Section 8 (a) (3) of the amended Act. 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. LARDING COLLEGE, Employer. By ----------------------------- Dated ------------------------- (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. Intermediate Report STATEMENT OF THE CASE By reason of a charge filed on November 3, 1950, and a first amended charge filed on November 6, 1950, by International Brotherhood of Electrical Workers, AFL, herein called the Union, the General Counsel of the National Labor Rela- 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board, separately designated as the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued it complaint dated August 7, 1951, alleging that WHBQ, Radio Station Owned and Operated by Harding College, herein called the Respondent, engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sec- tions 8 (a) (1) and (3) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating them concerning their union activities, granting wage increases and offering other benefits to discourage self-organization, and threatening the withdrawal ofipros- pective benefits if the Union became their bargaining agent. It is also alleged in the complaint that the Respondent discriminatorily discharged one of its em- ployees (Frank T. Edwards), and thereafter refused to reinstate him in his position, because he assisted and joined the Union and engaged in other con- certed activities with fellow employees for the purposes of collective bargaining and other mutual aid or protection The Respondent filed an answer admitting pertinent allegations of the com- plaint with respect to commerce, but denied that it has at any time engaged in unfair labor practices. Pursuant to notice to all the parties, a hearing was conducted at Memphis, Tennessee, on September 20, 21, and 22, 1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel, and a representative of the Union was present. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues involved. By oral motion at the opening of the hearing, the Respondent challenged the jurisdiction of the Board and the presiding Trial Examiner to hear and deter- mine the issues raised by the pleadings for alleged noncompliance with the provisions of the Administrative Procedure Act (1946) with respect to the appointment, tenure, compensation, removal, and duties of Trial Examiners. For reasons hereafter explained, the motion was denied. Ruling on a motion of the Respondent to dismiss the complaint for an alleged lack of legal service of the Board's processes upon Harding College as the real party.in interest was reserved, and is now denied, as hereinafter set forth. At the close of the hearing oral argument by counsel was waived by all parties. All parties were informed as' to their right to file written briefs, proposed find- ings of fact, and conclusions of law. Briefs filed by the General Counsel and the Respondent have been given due consideration. Motion to Dismiss (1) Requirements of Administrative Procedure Act It is contended by Respondent that all proceedings before a Trial Examiner of the National Labor Relations Board are void for failure of the National Labor Relations Act to conform with requirements of the Administrative Procedure Act. In support of such contention, counsel for the Respondent cites, the case of Wong Yang Sung v. McGrath, Attorney General et al., 339 U. S. 33, decided Feb- ruary 20, 1950. In that case the Government admitted noncompliance, and asserted that the Administrative Procedure Act did not apply to administrative hearing's before an immigrant inspector of the Immigration Service, wherein HARDING COLLEGE 965 the investigating , prosecuting, and adjudicating functions were combined. The single ultimate question decided by the Supreme Court was that administrative hearings in deportation cases must conform to the requirements of that act. No comparable situation exists with respect to hearings before Trial Examiners on a complaint issued and prosecuted by the General Counsel of the National Labor Relations Board. The Trial Examiner presiding at the present hearing was selected by the Na- tional Labor Relations Board from a certificate of eligibles furnished by the U. S. Civil Service Commission. His tenure, compensation, promotion, and removal is controlled by the Commission, as provided in Section 11 of the Admin- istrative Procedure Act, and he performs no duties inconsistent with the duties and responsibilities prescribed by that act and the Rules and Regulations of the employing agency not in-conflict therewith. The reports of the Trial Exam- iner are not reviewed, either before or after publication, except by members of the Board upon exceptions duly filed by an aggrieved party, and in that event the Trial Examiner does not advise or consult with the Board with respect to excep- tions taken to his finding, rulings, or recommendations. It is therefore concluded that the National Labor Relations Act, as amended, 61 Stat. 136, and the Rules and Regulations of the National Labor Relations Board are in conformity with requirements of the Administrative Procedure Act. The contention of Respondent to the contrary cannot be sustained. (2) Service of process Service of all necessary process in this case by registered mail upon the Re- spondent, WHBQ Radio Station Owned and Operated by Harding College, is admitted, and proof of such service appears in the record. Thereafter, the Re- spondent filed an answer, appeared at the hearing, and "had its day in court." It is contended, however, that the Respondent is an entirely mythical and non- existent entity with no legal status whatsoever ; and for that reason the Board has no "person" (as defined in the Act) before it upon whom to pass judgment. It is argued that Harding College is not affected because service of process was not made upon its resident agent for Tennessee It is admitted that the Re- spondent is a subsidiary agency of Harding College and an integral part of that corporation. In the opinion of the Trial Examiner service of process on the Respondent is, for the purposes of this case, equivalent to service on Harding College as a common legal entity subject to the jurisdiction of the Board. Juris- diction will be asserted by reason of the fact that the Respondent is an instru- mertality of interstate and foreign commerce.' Separate service of process upon the resident agent of Harding College is not required? For reasons above stated the motion to dismiss the complaint is denied. Upon the entire record in the case and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT The Respondent named in the charge, amended charge, and complaint is "WHBQ Radio Station Owned and Operated by Harding College." It is engaged in the business of radio broadcasting as a commercial enterprise for profit, and is an employer within the meaning of the Act. By authority of the Federal Coin- munications Commission, it operates a 5,000 watt radio station by day and a ' WSBR, Inc., 91 NLIB 110 Pioneer Electric Go, 70 NIdtB 771. 215233-53-62 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1,000 watt station by night in Memphis, Tennessee, and vicinity. The broad- casting station is located in the Gayoso Hotel within the city of Memphis, and the transmitter station is situated outside the city limits in the same vicinity within the State of Tennessee. The Respondent is affiliated with the Nation-wide hookup of the Mutual Broadcasting System, and devotes approximately 15 per- cent of its broadcasting time to that network. It utilizes the services of the Associated Press, a world-wide news gathering agency, and is a licensed user of the services of Broadcast Music Incorporated and the American Society of Com- posers, Artists and Publishers. Undoubtedly, the reception range of the radio station extends outside the State of Tennessee. The present station is a suc- cessor to Broadcasting Station W-H-B-Q, Inc., Hotel Claridge, Memphis, Ten- nessee, which surrendered its charter on December 9, 1946. As of November 1. 1950, it employed approximately 32 people, including staff musicians. At all times pertinent to this case, the operation and management of Radio Station WHBQ was delegated to John H. Cleghorn by the trustees of Harding College: By reason thereof he was and is the agent of Harding College. Welton M. Roy is, chief engineer for the Respondent. I find, therefore, that the Respondent is an employer engaged in commerce within the meaning of the Act.' Harding College is a corporation organized and existing pursuant to the laws of Arkansas in that behalf provided for "Incorporation of Educational Institu- tions" with its principal office and educational institution located at Searcy, White County, Arkansas. The corporate charter was issued by the State Board of Education on September 7, 1934. Domestication in the State of Tennessee was accomplished on May 15, 1946, by filing its charter in the office of the Secretary of State, Nashville, Tennessee, and appointing a resident agent in that State. Since that time the college has owned and operated the Respond- ent Radio Station WHBQ at Memphis as an integral part of the corporation for profit. Harding College is, therefore, also an Employer within tlie^meaning of the Act' II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL, is a labor organiza- tion within the meaning of the Act, admitting to membership employees of the Respondent' IH. THE UNFAIR LABOR PRACTICES A. Organization and management The named Respondent, WHBQ Radio Station Owned and Operated by Hard- ing College, is an integral part of Harding College, Searcy, Arkansas. It has no separate legal existence. It is operated by the chairman and board of trustees of'the college in a manner like the president and board of directors of any,pri- vate corporation would operate a subsidiary company or division of the parent corporation. In September 1949 John H. Cleghorn was employed as general manager of the Respondent radio station, and instructed to operate it in accordance with over-all policies and instructions issued by the board of trustees. Complete control of the ordinary activities of the business, including the right to hire and fire employees, was delegated to him without reservation. All checks for the payment of operating expenses, etc., are countersigned by the secretary of the board of trustees. 3 Western Gateway Broadcasting Corporation , 77 NLRB 49 'Port Arthur College, 92 NLRB 152. 5 See testimony of Taylor L. Blair, Jr., international representative HARDING COLLEGE 967 Manager Cleghorn organized the radio station into departments, viz: (1) ad- minisirative, (2) accounting, (3) engineering, (4) programs, and (5) sales. Walton Roy was installed as chief engineer in the engineering department. As chief engineer he maintains an office at the broadcasting studio and the Gayoso Hotel, and also supervises the operation of the transmitter station about 8 miles outside the city limits. At times he performs the work of an ordinary engineer. At times pertinent to this case, engineers employed at the transmit- ter station were Frank T. Edwards, D. W. Thompson, Norman Dye, and Mr. Carroll. Edwards was the senior and highest paid transmitter engineer. Prior to the advent of Manager Cleghorn, the Respondent operated unprofitably. The net loss for the year 1949 was $50,000. The new manager effected certain economies in operations and developed the broadcast of sporting events as a major source of income. For the year 1950, and thereafter, the Respondent realized substantial profits. To foster cooperation and esprit de corps, Man- ager ^ Cleghorn initiated and conducted, group meetings with employees of the varitiff "departments, but by reason of the isolated location of the transmitter station no meetings were held with the engineers until late in September 1950. B. Union Activities During the latter part of July 1950, and thereafter, until November 1950, Tay- lor L. Blair, Jr., international representative of the Union, made frequent visits to Respondent's transmitter station in an effort to organize the engineers into a unit for the purpose of collective bargaining., The engineers as a group became interested in self-organization, but some were reluctant to join the Union with- out the approval of management. It was thought by some that Chief Engineer Welton Roy would not oppose, and would possibly favor, the organization. Consequently, the international representative sought an. interview with,Roy, and discussed the subject of unionization. Roy was noncommittal and evidently did not favor the idea' It is clear that the management of Radio Station WHBQ was advertent to union activities among engineers at the transmitter station following the afore- said interview with the chief engineer. In September 1950, Manager Cleghorn initiated a series of weekly meetings with the engineering department. At the second of these meetings he expressed the hope that he would be able to operate without a union. He hoped to maintain close association with all employees, and felt that a union would tend to erect a barrier between them. It was an- nounced that he was working on a pension plan for employees similar to that in effect at Harding College. At an interview in his office, Manager Cleghorn again exhibited concern about laboi organizations by requesting a prospective radio announcer (James H. Warren) to state his views about unions. When or shortly after Robert T. Harbison was rehired by the Respondent as an engineer on remote control broadcasts in October 1950, Chief Engineer Welton Roy expressed his opposition to the Union. Roy said that Harding College was a good Christian institution, that Manager Cleghorn was a good Christian man, and frankly he did not think there was any need for a union, that he had built up a relationship with the manager and the college officials that might be jeopardized or destroyed ; and that was his own feeling in the matter. Roy further stated that Manager Cleghorn was still working on the profit-sharing .plan, and that possibly it would not be put into effect if the radio station was operating under a union contract.' 6 See testimony of Taylor L. Blair, Jr, 7 See testimony of Robert T. Harbison. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, Frank T. Edwards, D. W. Thompson, Norman Dye, and Mr. Carroll joined the Union, constituting a majority, if not all, of those eligible for a collec- tive bargaining unit in the engineering department. Thereupon, on October 23, 1950, the Union filed a petition for representation with the Board. Edwards was instrumental in procuring the membership of D. W. Thompson and Norman Dye. In the case of Thompson, a second union-authorization card was signed by Edwards in October to induce him to sign one also. Dye was a recent addition to the engineering staff and regarded Edwards as his supervisor and was under the impression that he held the title of assistant chief engineer 8 Both Edwards and the international representative tried unsuccessfully to procure the mem- bership of Robert T. Harbison. C. Interference, restraint, and coercion On Monday, October 30, 1950, Frank T. Edwards had an interview with Man- ager Cleghorn and Chief Engineer Roy, requesting an adjustment in his hours of work and raise in pay. The manager was not favorably impressed by Ed- wards' demands, and in the course of conversation inquired bow he felt about unions. Edwards replied, "Well, I haven't thought of the answer to that one." When Edwards complained that he was being required to work more than 40 hours per week, Manager Cleghorn turned to Chief Engineer Roy and said "Reckon we can get Mr. Harbison to help us out on that?"' The interview was concluded by Cleghorn stating that he would make a decision in the matter within a few days. On the morning of Wednesday, November 1, 1950, Chief Engineer Roy ap- proached Norman Dye at the transmitter station with a list of 10 written ques- tions concerning Frank T. Edwards and the union activities in general. Pro- fessing knowledge of what had been going on out there, Roy urged Dye to tell all he knew about the situation. Dye apologetically and chronologically out- lined from the beginning all that had occurred, and named all that had par- ticipated in the union activities. He contended that Blair had out-talked him about joining the Union, and that he had been greatly influenced by Frank T. Edwards, whom he regarded as his supervisor and assistant chief engineer. Roy questioned Dye in particular concerning the activities of Edwards, and inquired whether Dye considered his a "double crosser," or words to that effect. D. Discriminatory discharge of Frank T. Edwards Following the interrogation of Norman Dye on November 1, 1950, Manager Cleghorn and Chief Examiner Roy drove out to the transmitter station at ap- proximately 6 p. m. and called Frank- T. Edwards outside to their automobile. Edwards had been notified in advance by telephone to await their arrival. `-Man- ager Cleghorn opened the conversation by stating "Well, I told you that I would give you an answer soon, and my answer is that we're going to have to let you go." Then the manager explained that things were not going too well and that he must cut down expenses in the engineering department ; the engineering costs were too high; and since Edwards' salary was the highest, that was the right place to start cutting. He had already prepared a final pay check, and gave it to Edwards in settlement for immediate discharge. Edwards hesitated about tak- 8 It is not contended by either party, however, that Edwards was a supervisor within the meaning of the Act. 11 The duties of Harbison at that time were limited to remote control broadcasts and at intervals to relief work at the transmiter. HARDING COLLEGE 969 ing the check, and argued to hold his job. He offered to continue working at a lower salary rather than lose his employment ; but the discharge was final. Shortly thereafter the international representative of the Union talked to both Manager Cleghorn and Chief Engineer Roy about the matter, but they definitely declined to reinstate Edwards for reasons of economy. No complaint was made at that time concerning his ability as an engineer or performance of work with the Respondent. E. The aftermath Following the discharge of Frank T. Edwards, other engineers of the Respond- ent who had joined the Union were greatly disturbed concerning their status of employment. On the following Friday, November 3, 1950, Norman Dye ap- proached Manager Cleghorn at the studio, solicited his views on the subject, and inquired what would likely happen in the future. Dye also rehearsed the state- ments and explanations previously made to Chief Examiner Roy at the trans- mitter station. Shortly thereafter Manager Cleghorn held a meeting with the engineering staff, and assured them that there was nothing to fear so far as the Union was concerned. He proffered the services of Respondent's attorney for consultation without fee concerning the matter. Both Cleghorn and Roy said that it was regrettable that such a situation existed. At this and subsequent meetings the subject of unionization became an open subject for discussion be- thavee`il'-thee°niaiTagementland, its-employees. At a meeting on November 15, 1950, in the Board's Subregional Office, represent- atives of the Respondent and the Union agreed to hold a consent election on November 17, 1950. On the same day Norman Dye went to the hotel room of Taylor L. Blair, Jr., international representative, and resigned his membership in the Union. D. W. Thompson resigned the following morning (November 16, 1950). Both men personally submitted letters of resignation dated November 15, 1950. Mr. Carroll on the same date submitted his resignation by telephone. By the concerted action of Dye, Thompson, and Carroll the Union's majority was destroyed. Consequently, the Union withdrew its petition for representation, .Nnd no election was held. At that time charges of unfair labor practices had already been filed against the Respondent by reason of the discharge of Frank T. Edwards and other acts and conduct of the Respondent. F. Concluding findings it is clearly established by undisputed testimony in this case that Manager Cleghorn -was-seribusly concerned and'opposed to'the activities of Respondent's employees to form a labor organization, and that he announced an intention to install a pension or profit-sharing plan as an inducement to discourage such activities. Chief Engineer Welton Roy made similar statements to Robert T. Harbison for the same purpose, as an inducement to refrain from membership in the Union. At the interview of James H. Warren, in the presence of other employees and supervisors of the Respondent, Manager Cleghorn unlawfully solicited statements from this prospective employee concerning his sympathies for labor organizations in general. Such conduct by supervisors of the Respond- ent was intended and calculated to discourage collective bargaining, and con- stituted interference with the rights guaranteed in Section 7 of the Act 10 1O Majestic Metal Specialties, Inc., 92 NLRB 1854; S. B. Whistler & Sons, Inc., 92 NLRB 1. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the discharge of Frank T. Edwards, it appears from his undisputed testimony that on October 30, 1950, he was interrogated concerning his sympathies for labor organizations in the presence of Manager Cleghorn and Chief Engineer Roy. Two days later, on November 1, 1950, the chief engineer extensively interrogated Norman Dye concerning union activities at the trans- mitter station and submitted to him 10 written questions concerning Frank T. Edwards in connection with such activities. Such conduct flagrantly interfered with the exercise of the rights of employees guaranteed by Section 7 of the Act's In view of such conduct it is difficult to believe that on the same day Frank T. Edwards was discharged, purely for economic reasons, as contended by the Respondent. I am, therefore, "constrained to find from all the evidence and the entire record in the case that the discharge was discriminatory and motivated to a large extent by this employee's membership in and activity on behalf of the Union. To find otherwise, it would be necessary to disregard the equities of the situation and the past and present demonstrated efforts and intent of the Respondent to discourage the self-organization of its employees. The disciplinary effect of interrogation and the discharge of Frank T. Edwards was amply and immediately demonstrated by the solicitude of Norman Dye and other employees concerning their future employment with the Respondent or elsewhere. The assurance of Manager Cleghorn in open meeting, that they had nothing to fear so far as the Union was concerned, and the proffer of free advice and legal service by Respondent's attorney was a promise of benefits for re- fraining from further concerted activities for the purposes of collective bargain- ing or other mutual aid or protection. The futile gesture of the Respondent in agreeing to a consent election under the foregoing circumstances, followed si- multaneously by the resignation of union membership by all remaining members in Respondent's engineering department, does not indicate sincerity on the part of Respondent to decide the question of representation in a free and democratic manner." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in Section III, above, occurring in _connection with the Respondent's operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing com- inerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Frank T. Edwards was discriminatorily discharged by reason of his membership in and activities on behalf of the Union, it will be recommended that the Respondent offer to said employee immediate and full n ,Standard-Coosa-Thatcher Co., 85 NLRB 1358 ; H. J. Heinz Company v. N. L. R. B., 311 U. S. 514 ; Virginia Electric & Power Co. v. N. L. R. B., 132 F. 2d 390 ; N. L. R. B. V. Baltimore Transit Co., 140 F. 2nd 51 ; Piedmont Shirt Company v. N. L. R. B., 138 F. 2nd 738. 12 Joy Silk Mills, Inc. v. N. L. R. B., 27 LRRM 2012. HARDING COLLEGE 971 reinstatement to his former or substantially equivalent position " without preju- dice to his seniority or other rights and privileges, and that the Respondent make him whole for any loss of pay suffered by reason of the discrimination against him by the payment to him of a sum of money equivalent to that which he would have earned as wages since the date of his discharge to the date when the offer of reinstatement is made, less his net earnings" to be computed on a quarterly basis in the manner established by the Board in the case of F. W. Woolworth Co., 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board upon request its payroll and other records to facilitate the checking of the amount of back pay due. Further finding that the Respondent has interrogated its employees concern- ing their union sympathies and affiliations, and offered them inducements and benefits to refrain from affiliating with the Union and engaging in concerted activities for the purposes of collective bargaining or other mutual aid or protection, it will be recommended that the Respondent cease and desist there- from. Finding from past conduct of the Respondent and the nature of the unfair labor practices herein revealed, a likelihood that such practices may recur in the future, it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section of the Act.15 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, AFL, is a labor organiza tion within the meaning of Section 2 (5) of the Act, admitting to membership employees of the Respondent. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, as aforesaid, the Respondent has'engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire or tenure of employment of Frank T. Edwards to discourage membership in a labor organization, thereby dis- couraging membership in International Brotherhood of Electrical Workers, AFL, the Respondent has engaged in unfair Labor practices within the meaning and in violation of Section 8 (a) (1) and 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting ctutllierce within the meaning of Section 2 (6) and (7) of the Act. 5. The findings and recommendations of the Trial Examiner herein are equally binding upon WHBQ Radio Station Owned and Operated by Harding College, and upon Harding College, their agents, trustees, successors, and assigns.16 [Recommendations omitted from publication in this volume.] 13 The Chase National Bank of the City of New York, San Juan, Pueo to Rico, Branch, 65 NLRB 827. 11 See • Crossett Lumber Co., 8 NLRB 440 15 May Department Stores v. N. L. It. B., 326 U. S. 376. 16 Republican Publishing Co., 73 NLRB 1085