KARD-TV

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' obedience to working rules, and it is clear that he told them to go back to work when they left their assignments. There has been no instance of disobedience to these requests. Green has also effectively recommended the discharge of two employees.2 In all the circumstances of this case, including the fact that Howard would otherwise appear to be the only supervisor for a two-shift operation, we find that Green responsibly directed the work of the night shift employees, and was therefore a supervisor within the meaning of the Act. We shall therefore sustain the challenge to his ballot. As the Petitioner has obtained a majority of the valid votes cast, we shall certify it as the exclusive representative of the Employer's employees in the agreed unit. [The Board certified International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL- CIO, as the designated collective-bargaining representative of the Employer's production and maintenance employees in the agreed- upon unit.] 2 The Employer contends that no weight should be given to this because it occurred under Howard 's predecessor , but it does not appear that Green' s duties changed signifi- cantly when Howard took over. We therefore reject this contention. Wichita Television Corporation Incorporated , d/b/a KARD-TV and International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No. 414, AFL-CIO. Cases Nos. 17-CA-1109 and 17-CA-1153. December 1, 1958 DECISION AND ORDER On August 20, 1957, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent also requested oral argu- ment. As the record, exceptions, and briefs adequately present the issues and the positions of the parties, the request for oral argument is denied. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 122 NLRB No. 37. KARD-TV 223 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.1 The Board has considered the Intermediate report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, with the modifications set forth below. 1. We agree with the Trial Examiner that the Respondent dis- charged Gordon Coker on May 11, 1956, because of his union activity, in violation of Section 8(a) (1) and (3) of the Act. The Respondent contends in its brief, as it did before the Trial Examiner, that Coker was discharged for insubordination. The pertinent facts are these.3 Coker was an assistant director under Harry Renek, the Respond- ent's production supervisor.4 About May 5, 1956, Coker became active in attempting to organize the production department. Shortly there- after, various of the Respondent's supervisors, as set forth in the Intermediate Report, began questioning employees as to union or- ganizing activities.r, One such instance-Supervisor Edwards' inter- rogation of employee Millar-is clear evidence of Respondent's in- terest in Coker's activity in organizing. ' In view of the Respondent 's allegations of bias and prejudice in the Trial Examiner, we have scrutinized the record with extreme care. We find nothing to support the Respondent 's contention. ' We note the following minor inaccuracies and inadvertences which do not affect either the Trial Examiner's ultimate findings and conclusions or our agreement therewith : (1) We do not pass upon the Trial Examiner's various comments with respect to the Coker-Renek incident on May 11, to which Edwards testified. As the Trial Examiner correctly noted, the Respondent 's decision to discharge Coker had already been taken at this time. Edwards' testimony is therefore irrelevant. (2) We do not adopt any of the Trial Examiner's comments at footnote 23, with respect to the discharge of V. L. Martin. Cf., however, N.L.R.B. v. Albert Armato and Wire h Sheet Metal Specialty Co., 199 F. 2d 800 (C.A. 7). (3) There is no record support for the finding that the salary range for directors was $75-$80. (4) Although supervisor Edwards did, as found by the Trial Examiner , speak to announcer Jack McElrath on May 10, he did not ask for a report on the impending union meeting. Therefore , the Trial Examiner 's statement in footnote 7, that Edwards asked all his announcers to report, is not entirely correct. (5) The Trial Examiner erroneously states that at the Respondent 's May 11 meeting, no one referred to the decision not to reemploy Neal . Worsham did in fact mention such a decision. (6) At one point, the Trial Examiner states that Martin called William J. Moyer on January 17. The correct date is June 17. S Our statement of facts accords substantially with that of the Trial Examiner. It is based largely on the testimony of Coker, whose credibility was accepted by the Trial Examiner despite the Respondent's attack. In accepting the Trial Examiner 's resolution of credibility, we do not indicate agreement with all his statements. Some of these are somewhat inaccurate or more sweeping than the record warrants , but none are of sufficient gravity to overcome the validity of findings based in part , at least, upon observa- tion of demeanor of the witnesses. Standard Dry Wall Products, Inc., 91 NLRB 544. We find that the record supports the Trial Examiner 's resolutions of credibility. 4 Renek is clearly a supervisor within the meaning of the Act. 5 With respect to the Trial Examiner 's findings in this respect, the Respondent raises, inter alia, the contention that certain of them are barred by Section 10 ( b) because not mentioned in the original charge and occurring more than 6 months before the amended charge. We do not agree, generally, with the Respondent's contention. But in any event there is sufficient conduct violative of Section 8(a) (1) which cannot be challenged on this ground to make any possible additional violations merely cumulative. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The critical events with respect to Coker's discharge occurred in the afternoon of May 10 and the morning of May 11. According to the Respondent's witnesses, Renek reported to William Moyer-the Respondent's general manager-on the afternoon of May 10 that Coker had been insubordinate to him. The insubordination consisted in Coker's having told Renek that the union was coming in, that it would assume a large part of the running of the station, that Renek would have to be careful in what he said to the employees, and that Coker was going to get Worsham.' William Moyer was much per- turbed, he testified, by this report, and that evening he had a meet- ing at his home to decide what to do about this serious situation. Present were George Brown and Daniel Moyer.? At this meeting, according to the testimony of all the participants, it was decided, on the urging of Daniel Moyer, that nothing be done until all the facts Were known. Therefore, a meeting vas held the next morning, attended by Worsham and Renek, in addition to those pres- ent the previous evening. Renek, again according to the testimony of the Respondent's Witnesses, was carefully examined by Daniel Moyer. He was also asked if, after what had happened, he felt that he could work with Coker. He said he could not." Daniel Moyer then stated that although the situation was delicate because of mention of the union, the act did not immunize employees from discharge for cause. He considered that this insubordination was cause. The Respondent decided to discharge Coker and he was in fact discharged that morning. The Trial Examiner rejected this defense. We agree with his ulti- mate finding, that the Respondent discharged Coker not for any in- subordination, real or fancied, but for his union activities. In so finding, we rely, as did the Trial Examiner, on the numerous instances of interrogation occurring at this time, which demonstrate 'clearly the Respondent's concern at the unionization of its employees, its knowledge that Coker was a leader in such activity, the statement a The Respondent's production supervisor, Renek 's immediate supervisor. The Respondent's president and attorney-treasurer, respectively. Renek did not testify. He had left the Respondent's employ in August 1956, and was not in Kansas 'at the time of the hearing. The Respondent, at the outset of the hearing, sought leave to take his deposition. This was not granted. Instead, the Trial Examiner granted a subpena for Renek. On the last day of the hearing the Respondent, which had still not located Renek, renewed its request to take his deposition. The Trial Examiner inquired what efforts the Respondent had made to locate Renek. Upon learning the limited extent of those efforts he denied the request, but at the same time informed the Respondent that his ruling could be appealed at once to the Board. The Respondent did not do so, and now urges that the Trial Examiner's ruling was prejudicial error. We do not agree. Knowing as it must have, that Renek was central to its defense, the Respondent slid not, in our opinion, show due diligence in locating him. We there- fore hold that the Trial Examiner did not abuse his discretion in denying the request to take Renek's deposition, and affirm his ruling. Cf. Vogue-Wright Studios, Inc., 76 NLRB 773, 778; Roure-Dupont Manufacturing , Inc., 93 NLRB 1240 , enf. as modified on another point, 199 F. 2d 631 (C.A. 2). BARD-TV 225 by Renek 9 that William J. Moyer had said the Respondent had to eliminate the union, and Sbarra's call to Coker. Against this back- ground, it is clear that the Respondent seized upon insubordination as a pretext to rid itself of an active union adherent, in violation of Section 8(a) (1) and (3). We so find.10 2. We agree with the Trial Examiner that the discharge of Frank Neal on May 11, 1958,11 violated Section S (a) (1) and (3) of the Act. The Trial Examiner's findings here are supported by his credibility findings, which are strongly attacked by the Respondent. Although the Trial Examiner has inadvertently misstated some minor matters of fact,l2 his credibility findings, in our opinion, are adequately sup ported by the record. We therefore find the discharge of Neal viola- tive of Section 8(a) (3) of the Act. 3. The Respondent contends that the strike which began on June 2 was caused by its refusal to bargain with the Union, and as that refusal was not violative of the Act, the strike was economic. The General Counsel contended, and the Trial Examiner found, that the strike was caused in substantial part by the discriminatory dis- charges of Coker and Neal, and was therefore an unfair labor practice strike. We agree with the Trial Examiner.13 Although the strike did not begin until. after the Respondent's refusal to meet with the Union, it does not at all follow that the Respondent's refusal to bargain was the only reason for the strike. To the contrary, the record establishes that the employees, at their prestrike meeting, were concerned about the dischare; and placards carried by the pickets from the very begin- in Clearly admissible as an admission against interest. 1o There is a seeming inconsistency in the Trial Examiner's findings with respect to Coker's alleged insubordination. It will have been noted that the Trial Examiner has credited Coker's denial that he made the alleged insubordinate remarks. Nevertheless his rationale at times sounds as if he credits the Respondent's testimony as to what it was told by Renek, which is obviously contrary to Coker's credited denial. First, we note that Renek, who alone could have resolved the issue, did not testify. Second, we believe, as we have found above, that the Trial Examiner's underlying reasoning is that the Respondent simply alleged insubordination as a pretext and for that reason he found it unnecessary to resolve the apparent inconsistency. 11 The Trial Examiner in his concluding findings refers in the alternative to the dis- charge or the refusal to reinstate Neal on this date, but in his conclusions of law he finds a discharge. We agree. In this connection, the Respondent argues that Section 10(b) bars it finding that Neal was refused employment because the relevant charge alleged only it discharge, relying on Knickerbocker Mannfactnring Company, Inc., 109 NLRB 1195. Our finding herein disposes of that argument, but in any event we do not believe that Knickerbocker compels the Respondent's conclusion, in the circumstances of this case. 1" It is not at all clear that Neal first spoke to William J. Moyer on May 8, as found by the Trial Examiner. May 6, as urged by the Respondent, is more likely. The point, however, is not material and does not affect our agreement with the Trial Examiner's ultimate conclusion. Similarly, the Trial Examiner relies on the fact that Renek told Hanson that Neal had been discharged because of his union activities. The Respondent correctly excepts to this ; the record shows that Renek made such a statement to Coker rather than Hansen, and this was testified to by McOsker, a, witness generally credited by the Trial Examiner. 11 We find it unnecessary, in the circumstances of this case, to adopt the Trial Examiner's dictum that bargaining here included an attempt to remedy the discharges as grievances. 505395-59-vol. 122-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping of the strike show their concern with, and their protest of, the discharges.14 We therefore find that the strike was an unfair labor practice strike. It follows that, as unfair labor practice strikers , the employees were entitled to reinstatement upon their unconditional application, without regard to any replacements that may have been hired , unless they had forfeited that right by their conduct during the strike. The Respondent contends that such conduct did occur and to such an extent that it may be attributed to all the strikers . As did the Trial Examiner, we reject this contention. We do not believe it necessary to repeat the Trial Examiner's de- tailed consideration of the numerous items of alleged misconduct urged by the Respondent. Where the conduct is attributable to iden- tified strikers, it is in most instances so minor as to verge on the frivolous; in any event, none of the conduct by specified strikers affords a basis for denial of reinstatement. The rest of Respondent's case in this respect is founded on its belief that any untoward event occurring during the strike is to be imputed to the strikers . It offered testimony to establish that it had decided that this was a tenable position under Rubin Bros.'15 and was in fact the basis for its denial of reinstatement to all the strikers. In Rubin Bros. the Board held that when an employer had estab- lished its good-faith belief that strikers had engaged in misconduct, it then became incumbent upon the General Counsel to prove that the strikers had not, in fact, engaged in such conduct. We adhere to that rule, but we think that a good -faith belief must be established by something more than the Respondent has shown here. It has not, in our opinion , for example, established a connection between any individual striker or group of strikers and any specific conduct of sufficient gravity to warrant a denial of reinstatement . What the Respondent has shown is that many things happened during the strike many of which are common to strikes and picketing generally, which it was convinced must have been done by the strikers to harass it. And on this basis the Respondent would deny reinstatement to all strikers. We do not believe that strike conduct, simply by being thus 14 For this reason, we cannot agree with the Respondent 's reliance on Winter Garden ,Citrus Products Cooperative v. N.L.R.B., 238 F. 2d 128 ( C.A. 5), enfg., as modified, 114 NLRB 1048. In that case, the timing of the union's allegations persuaded the court that it was attempting to alter the real reason for the strike by conduct after the strike had begun . But here all conduct from the outset of the strike is consistent with, and supports, the conclusion that the discharges were an effective cause of the strike. It therefore follows that , as the Respondent 's unfair labor practices were a contributing cause of the :strike, the strike is an unfair labor practice strike. See for example, N.L.R.B, v. Wooster Division of Borg-Warner Corporation, 230 F. 2d 898 ( C.A. 6), modified on another point at 356 U. S. 342. 15Ruliin Bros. Footwear, Inc., 99 NLRB 610, enf. denied 203 F. 2d 486 (C.A. 5). With due respect for the Court of Appeals for the Fifth Circuit, we nevertheless adhere to our opinion in that case until such time as the Supreme Court may determine the issue. KARD-TV 227 characterized, is sufficient of itself to establish an employer's good faith. We hold, therefore, that reinstatement cannot be denied on such a basis. Accordingly, we reject the Respondent's contention. THE REMEDY As noted in the General Counsel's exceptions, although the Trial Examiner found that an unconditional application for the rein- statement of E. W. Price and Robert W. Fitzmorris had been made on December 6, 1956, he inadvertently omitted any provision for them in his remedy and recommended order.16 We have therefore included them. 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, Wichita Tele- vision Corporation, Incorporated, d/b/a KARD-TV, Wichita, Kan- sas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Alliance of Theat- rical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No. 414, AFL- CIO, or any other labor organization, by discriminating in any manner with regard to the hire and tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, or to join or assist International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No. 414, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or mu- tual aid or protection, or to refrain from any such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 18 The General Counsel excepts also to the Trial Examiner's failure to find specifically that employees Millar, McCabe, Meosker, and Smoot made individual requests for re- instatement. It is true that such requests were made, but as we have found that a prior request had been made on their behalf by the Union, this will not alter the terms of our order herein. The General Counsel also excepts to the Trial Examiner's failure to find that employee Menefee was discriminated against when her request for reinstatement was denied at a time when she had not been permanently replaced. The Trial Examiner found that Menefee had been temporarily replaced but that such a replacement could not be con- sidered permanent. As we have found Menefee to be an unfair labor practice striker, resolution of this issue is unnecessary. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Gordon C. Coker, Frank Neal, and to each of those unfair labor practice strikers listed in Appendix A attached hereto immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges, discharging if necessary any employee hired on or after June 2, 1956, and make each of them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified by the section of this decision entitled "The Remedy" for any loss of pay resulting from the Respondent's discrimination against him. (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all. payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this recom- mendation. (c) Post in conspicuous places at the Respondent's studio and transmitter in Wichita, Kansas, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix B." 17 Copies of said notice, to be fur- nished by the Regional Director for the Seventeenth Region, shall, upon being duly signed by the Respondent's representatives, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region, within ten (10) days from the date of this Order, as to Nvliat steps the Respondent has taken to comply herewith. IT 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." APPENDIX A K. Darell Cole Joseph J. Goulart Virginia L. Krkosska Jack McElrath Edgar L. Millar E. W. Price Leeland D. Daley Jack H. Hansen Clifford E. McCabe Darrell E. McOsker L. Lee Parsons Robert W. Fitzmorris Kenneth E. Carter Peggy M. Dalton Marlow D. Hippen Marilyn G. Menefee Russell W. Smoot KARD-TV APPENDIX B NOTICE TO ALL EMPLOYEES 229 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, 1947, we hereby notify our employees that: WE WILL NOT discourage membership in International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No. 414, AFL-CIO, or any other labor organization, by discriminating in any manner against our employees in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any manner interfere with, restrain, or coerce, our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist International Alli- ance of Theatrical Stage Employees and Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Pro- jectionists, Local No. 414, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. WE WILL offer to each of the employees listed below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and will make each of them whole for any loss of pay he may have suffered as a result of the discrimination against him. Gorden C. Coker K. Darell Cole Joseph J. Goulart Virginia L. Krkosska Jack McElrath Edgar L. Millar E. W. Price Frank Neal Leeland D. Daley Jack H. Hansen Clifford E. McCabe Darrell E. McOsker L. Lee Parsons Robert W. Fitzmorris Kenneth E. Carter Peggy M. Dalton Marlow D. Hippen Marilyn G. Menefee Russell W. Smoot All our employees are free to become or remain members of Inter- national Alliance of Theatrical Stage Employees and Moving Picture 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machine Operators of the U.S. & Canada, Motion Picture Projection- ists, Local No. 414, AFL-CIO, or any other labor organization. WICHITA TELEVISION CORPORATION, INCORPORATED, d/b/a LARD-TV, Employer. Dated---------------- By----------------------------------= (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed on May 15, 1956, in Case No. 17-CA-1109 and a charge filed in Case No. 17-CA-1153 on December 26, 1956, by International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No 414, AFL-CIO, hereinafter referred to as the Union or IATSE, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its consolidated complaint against Wichita Television Corporation, Incorpo- rated, d/b/a KARD-TV, herein referred to as the Respondent or KARD or KARD-TV, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3), and Section 2(6) and (7) of the Labor Management Relations Act, 1947, 61 Stat 136, herein called the Act. Copies of the charges, the order consolidating cases, and the complaint together with notice of hearing thereon were duly served upon the Respondent and the Union. The Respondent duly filed its answer wherein it admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Respond- ent's answer further affirmatively alleged that it had refused to reinstate or reem- ploy either the two individual employees allegedly discriminatorily discharged or the strikers "for the reason each of said persons had been permanently replaced and for the reason that each of said persons had committed acts of violence and misconduct, and threats thereof, against employer and the public during the period from June 1, 1956 (May 10, 1956, in the case of Gordon C. Coker) to on or about July 20, 1956, and encouraged, abetted, and were sympathetic with, such acts and threats committed by others in said group of persons during said period of time." Pursuant to notice a hearing thereon was held at Wichita, Kansas, from May 20 through 29, 1957, inclusive, before the duly designated Trial Examiner. All parties appeared at the hearing, were represented by counsel and afforded full opportunity to be heard, to produce, examine and cross-examine witnesses, to introduce evi- dence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both. On or before July 1, 1957, briefs were received from the General Counsel and the Respondent, Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleged , the answer admitted , and the Trial Examiner finds, that Wichita Television Corporation, Incorporated, d/b/a KARD-TV, is a corporation with its principal place of business located at Wichita, Kansas. It is engaged in 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. KARD-TV 231 the television broadcasting business . Respondent's revenue exceeds $200,000 an- nually. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists , Local No. 414, AFL-CIO, is a labor organization admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The facts As noted the Respondent is a corporation. The active operating heads of this corporation are George Brown, its president; William J. Moyer, its vice president and general manager; and Daniel M. Moyer, its secretary and treasurer. In the year 1955, the Respondent received permission from the Federal Communications Commission to construct and operate a TV station in Wichita, Kansas. On Sep- tember 8, 1955, it executed a written labor agreement with the International Brotherhood of Electrical Workers covering the operation of the transmitter station so constructed. This written contract formalized a prior oral arrangement between these same parties. In the latter part of 1955, after a short period of operation as an independent local TV station, KARD-TV, as the Respondent is known in television circles, began expanding. One of its first moves was to hire Don Sbarra from an Amarillo, Texas, television station as its sales director and, subsequently, also a vice presi- dent. Through Sbarra the Respondent recruited and hired Robert Edwards Leach (known professionally as Bob Edwards)2 as chief announcer and Harry Renek as production supervisor as well as a number of directors and cameramen from this Amarillo station. Other similar employees were hired from television stations in Lubbock, Texas, Carlsbad, New Mexico, and Hutchinson, Kansas? Through Sbarra and Renek cameraman Gordon C. Coker, among others, was employed by KARD as a director working under the direction and supervision of Renek. Coker commenced his employment at KARD about the first of January 1956. The Respondent introduced a great deal of evidence to the effect that all hiring and firing at KARD had to be cleared by Moyer or George Brown. It was ad- mitted that Sbarra, Bob Edwards, and Renek could effectively recommend such action. The evidence was conclusive that these three individuals in fact inter- viewed prospects and notified them of their hiring by Respondent. The authority of Renek and Bob Edwards in this regard is shown by the following interoffice memorandum dated February 6, 1956, and signed by Sam Worsham, KARD pro- duction manager: FEBRUARY 6, 1956. To: Harry Renek Bob Edwards Don Fryers From: Sam Worsham As a matter of administrative practice, please be certain that I am advised in writing concerning your actions in hiring, firing, promoting, and change- of-jobs-assignments of personnel in your department. This practice is in no way intended to reduce your full authority to hire, fire or assign your people. It is necessary, however, in order that I might advise Accounting of any changes in our payroll and department budgets. (Signed) SAM. Subsequent memos in evidence proved the full exercise of this authority by both Renek and Edwards. In Respondent's memorandum of May 11, 1956, to all KARD employees signed by Moyer the Respondent referred to Renek, without naming him, as "a representative of management." The evidence leaves no doubt, and the Trial Examiner finds, that Sbarra, Renek, Edwards, and Sam Worsham, among others, were at all times material supervisors within the meaning of the Act. 2 Hereinafter referred to as Bob Edwards. 31n fact, William J. Moyer, who will be referred to as Moyer throughout this report in order to distinguish him from his brother Daniel M. Moyer, Respondent's secretary and treasurer, testified that the Hutchinson station manager became, in Moyer's phrase, "put out with" Moyer because HARD had hired so many of that station's employees. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted heretofore, Coker was hired from the Amarillo, Texas, station through Sbarra and Renek and began working as a director at KARD about January 1, 1956. For an unknown length of time Frank Neal had been employed by KARD but resigned on May 1, 1956. On May 8, 1956,4 Neal applied to Moyer for reem- ployment at Moyer's home and was told by Moyer to see Renek as his reemploy- ment would be "up to Renek." At the same time Moyer also asked Neal to have Renek telephone Moyer when he, Neal, saw Renek. Neal saw Renek that same evening, informed him that he, Neal, wished reemployment and asked Renek to telephone Moyer which Renek proceeded to do. During this telephone conversa- tion Renek referred to Neal's request for reemployment, then stated "we have a fellow who is kind of dragging his feet ." and that he, Renek, thought he would have Neal "come back Sunday," May 13. Subsequently during his conver- sation with Renek, Neal asked when he should return to work. Renek told him "yes, come back Sunday around noon." 5 Thereafter Renek spread the news throughout the KARD station that Neal would return to work the following Sunday, May 13. To retrogress a moment, sometime about March 1956, the Respondent suddenly discharged an employee named John Jennings. The following day Renek asked Director Jack Hansen "do you know why Jennings was fired?" When Hansen answered in the negative, Renek replied "because he was trying to start a union here and I was told to let him go." Then Renek asked whether Hansen had heard any union talk in the studio. Hansen stated that he had heard union talk in every TV station he had ever worked in but had heard nothing definite about it at KARD. About May 5, some of the KARD production employees became interested in trying to improve the wages and working conditions around the station where floormen and cameramen were being paid about $55 to $60 a week and directors about $75 to $80. Gordon Coker became the leader, or, as the Respondent's brief phrases it, the "quarterback," of the group seeking unionization. He talked to his fellow employees and distributed union authorization cards to them. About May 10, the production department employees decided to hold a union organizational meeting with the union attorney at midnight (12:01 a.m.) May 11. About 1 p.m. May 10, Renek, who as production supervisor was Coker's imme- diate superior, asked Coker if Coker "had heard anything about this union busi- ness going on." When Coker denied having any such knowledge, Renek said "well, if you hear anything, let me know because Mr. Moyer said we have to get rid of them" and added "you remember what happened to John Jennings, he got fired for union activities." Sometime after Coker's work had ended about 1 p.m. on May 10, Neal met Coker, apparently by chance, in the KARD studio and remarked to Coker that he had heard about a union. Coker promptly suggested that they take an auto- mobile ride during which he told Neal about the organizational activities going on at the station. While driving around downtown Wichita around 3:30 p.m., Neal and Coker passed Renek driving his automobile. Renek flagged them down. After parking back of Neal's car, Renek called Neal to his (Renek's) auto where Renek inquired "what do you know about this union?" Neal stated that Renek must have heard that Neal was returning to work in order to organize a union to which Renek stated "it kind of looks that way." When Neal protested that he could not organ- ize without having returned to work, Renek said "we have got to have the names of the people who are organizing, behind this." Neal again protested that he could give no names as he did not know not having even gotten back to work. Renek answered that "we have got to get this stopped" and that it looked "bad for Neal." Neal inquired if that mean that he was fired before he started. Renek apparently did not answer this directly but ordered Neal to get the names of the organizers and give them to him. Neal promised to keep his ears open. With that promise the conversation ended. Following this conversation Neal returned to the station where he saw Moyer and told him that Renek had stated that it looked like Neal was returning to 4 All dates herein are in the year 1956, unless otherwise specified. c Moyer testified that he referred Neal to Renek on Sunday, May 6, that he and Worsham discussed the matter of Neal's reemployment on May 8, and "unanimously" decided not to rehire Neal. Moyer admitted, however, that he failed to notify either Renek, Neal, or anyone else of this "decision" of May 8, prior to the meeting of May 11, when the officers decided not to "reemploy" Neal. Moyer attempted no explanation for this 3-day delay. The Trial Examiner is convinced that Moyer was at least confused and unreliable in his testimony about the events in the 'Neal episode. KARD-TV 233 work in order to organize a union. Moyer agreed that it looked that way. Where- upon Neal inquired if that meant that the Respondent could not use him. Moyer answered "I did not say that." As he left Moyer's office, Neal saw Worsham who told him that he was glad that Neal was returning to work at the station. Worsham continued on into Moyer's office as Neal departed .6 Between 3 and 4 o'clock that afternoon, announcer Edgar Millar approached his good personal friend and supervisor, Bob Edwards, in the alley behind the studio and inquired if they could have a private, confidential talk because he, Millar, wanted advice on matters concerning the Respondent which Millar thought could be used against his fellow employees. When Edwards agreed, Millar told him about the union organizational effort going on in the studio and that he, Millar, had been asked to join the Union. During a conversion of some consider- able length in which Millar's responsibilities to the Respondent and to his col- leagues were discussed fully and frankly, Millar informed Edwards that there was going to be a union organizational meeting that night which Millar was going to attend. Edwards asked "well, would you let me know what happens at the meet- ing?" Millar agreed to do so. As the two parted Edwards inquired if Coker were the person who had solicited Millar. Millar agreed that he had been. Shortly thereafter Edwards went to the announcer's booth in the studio where he engaged announcer Jack McElrath in a conversation somewhat similar to that he had held with Millar, during which McElrath also informed Edwards about the organizational meeting scheduled for that evening. Edwards again requested a report on the meeting. Sometime between May 5 and 10, Edwards came into the announcer's booth while announcer Darrell McOsker was on duty and inquired if McOsker "had heard of any union activity going on throughout the station." After McOsker had answered in the negative, Edwards instructed him that if McOsker should hear of any union talk circulating around the studio, he, Edwards, would appre- ciate it if McOsker would inform him about such talk.? Between 4:30 and 5 o'clock on the afternoon of May 10, Moyer invited Director Jack Hansen into Moyer's office where Moyer asked "well, Jack, what do you think about unions?" When Hansen answered that he would like to be a member of the Directors Guild, Moyer limited his question specifically to IATSE and asked why the employees of the production department at KARD wanted a union. Hansen admitted being prejudiced against IATSE for reasons he made known to Moyer. Moyer then inquired as to what Hansen personally would do on the union matter, to which Hansen answered that, if the station went union, he would go union too, which concluded the interview.8 Between 4:30 and 6 o'clock that same afternoon of May 10, Sales Director Sbarra telephoned Coker at Coker's home and inquired if Coker "had heard any- thing about IATSE." When Coker asked what IATSE was, Sbarra answered that "it is a union that is trying to get in here and we have to stop them." When Coker denied having any knowledge, Sbarra said "OK" and concluded the con- versation.8 About this same time, 5 or 6 p.m., Renek reported to Moyer at the studio. According to Moyer's testimony, Renek reported to him at this time as follows: 8 Moyer denied ever having seen Neal after Neal requested reemployment of him on May 6 [Moyer's date] at Moyer's home. Worsham did not deny having congratulated Neal on his imminent return to work. a According to Edwards' testimony, he made no report of this information to anyone in authority at HARD. In view of the care with which Edwards had asked each of his announcers to make reports to him, this is somewhat difficult to believe. As Edwards admittedly was a supervisor, his knowledge is attributable to the Respondent. 8 Moyer did not deny having this conversation with Hansen so that it is clear that Moyer had information by this time on May 10 of the organizational efforts of IATSE at Respondent's station-despite Moyer's testimonial denial of such knowledge. 9In his testimony Sbarra acknowledged having made this telephone call to Coker but contended that he had made the telephone call due to his paternalistic feeling of re- sponsibility for the welfare of those employees, including Coker, whom he had been instrumental in bringing to Wichita and further testified that his conversation with Coker began with "What do you say, Coker, what is the matter?" and the "usual con- versation along that line" of business and family health. Sbarra had to admit on cross- examination that this telephone call was the only one he had ever made to the Cokers since their arrival in Wichita early in January. It is noteworthy that Sbarra was not asked to deny Coker's testimony specifically and did so only inferentially at most. Sbarra was a glib, smooth, but unconvincing, witness. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, as I recall, it was on, between 5 and 6 o'clock on May the tenth when Renek came into my office and said that he had a very bad situation with Coker, and I said, well, what is it, and he said, well, this afternoon around noontime that Coker had approached him and told him that the union is going to come in and that they were going to do the hiring and firing, that the company wouldn't have anything to do with it, and he further told him-Coker further told Renek-that Renek was going to have to be very careful the way he dealt with the employees in the production department, and he was going to have to be very careful what he said to them and he- Coker also told Renek-that he was going to get Sam Worsham , in substance, this was the report that Renek gave me, and- After hearing Renek's report, Moyer said "Harry, there has been mention of a union here . to me, it sounds as though it is a serious situation . I don't want you to do anything . . . I will have to confer with" George Brown and Daniel Moyer, the other managing officers. Although Moyer claimed that this report constituted the first time he had heard anything about a union in the studio, he denied during his testimony that he had made any inquiry of Renek or anyone else about the union allegedly involved or the extent of its organizational campaign. In view of Moyer's admitted consternation over the mere mention of a union, the Trial Examiner is unable to credit Moyer's denial. Upon arriving at his home that evening , Moyer telephoned Daniel Moyer, re- peated the Renek report, told Dan Moyer that "there was some mention of union in it," that he, Moyer, was "disturbed" and "very, very concerned " about the mat- ter and wanted, indeed insisted , upon meeting with his fellow officers that same evening. The three officers did meet at Moyer's home promptly after dinner when Moyer again reiterated the Renek report "with the mention of union in it" and where, after a short discussion of what Respondent could do, it was decided to hold a meeting "first thing in the morning" so as to get a firsthand account from Renek because, according to Daniel Moyer, the mention of the union created "a very sensitive situation" "too delicate" for any legal evaluation to be made without knowing the "exact facts." At midnight that night, as previously scheduled , 23 members of the production department personnel, a large majority thereof, met with Attorney Cranmer of the Union, drafted and executed a letter dated May 11, which was mailed to Moyer, special delivery return receipt requested , early that morning. On May 11, Coker reported at the studio as per his schedule about 6 o'clock in the morning. When Renek arrived around 7 o 'clock, he asked Coker "what is going on around here, I was down here last night and nobody was around?" Coker stated that they had had a meeting last night whereupon Renek asked what Neal had said about him, Renek To this Coker answered that he understood from Neal that Renek was threatening Neal's job. Renek retorted "what a buddy, I'll drive him through a wall" and commented that, after he, Renek , had asked Neal some questions the previous afternoon , Neal had returned to the station and told Worsham and Moyer that Renek had been threatening Neal's job. Ten minutes or so later Renek returned and inquired of Coker whether the Union would interfere with Renek's management of the production employees. Coker answered in the negative saying that "we wanted to get some good working conditions and be able to negotiate with Bill Moyer on good terms ." After com- menting that "Moyer had brought it on himself," Renek departed. Renek returned to Coker a few minutes later and inquired if he, Renek, could join the Union. After originally saying yes, Coker reversed his opinion on the ground that Renek was a part of management and, therefore, ineligible. About 8:30 a.m. Coker noticed Renek and Moyer in conference. About this same time, 8:15 or 8:30 a .m., according to the Respondent's evidence, Moyer, George Brown , Daniel Moyer, Worsham , and Renek gathered in Moyer's office at the studio for the conference which had been decided upon by the officers the previous evening. Daniel Moyer had Renek repeat the story of his conversa- tion with Coker which, as described by Daniel Moyer during his testimony, was almost verbatim with the Moyer description quoted above .lo After hearing Renek, Daniel Moyer asked Renek "do you believe that after having had these remarks made to you that you can work with him effectively and give him orders and suggestions which will be carried out ?" Renek did not think so. Upon inquiry Worsham agreed with Renek . Daniel Moyer then gave his legal opinion. After 10 The testimony of Moyer, Daniel Moyer, George Brown , and Worsham in their in- dividual descriptions of the Renek report were rather startling in their almost verbatim similarity. KARD-TV 235 warning "there are cases in which the employer might want to interfere with those [union] activities but not lead anybody to believe that he was so interfering," the employer would discharge the employee for some "minor act of insubordination" as a coverup to accomplish his purpose through subterfuge and further that no matter what the Respondent did in this case it would probably be challenged, Daniel Moyer opined that, unlike a case of some "minor act of insubordination" such as "where some employee might make a remark once like `oh, yeah?'"" to his superior, where, as here, a "major act of insubordination" which interfered with the "special relationship" existing between director and production supervisor, thereby preventing the proper accomplishment of the work of the employer, was committed, the Respondent would be justified in summarily discharging the em- ployee even where this situation had been complicated and made "delicate" by the mention of a union. The group thereupon decided to discharge Coker. Daniel Moyer was instructed to prepare a memorandum of explanation of the discharge for distribution to the KARD employees. As Daniel Moyer started to leave the meeting, Renek asked "what about Neal?" Daniel Moyer inquired "well, what about Neal?" Renek explained that Neal wanted to return to work. Daniel Moyer expressed the opinion that he, Daniel Moyer, had had all he wanted of Neal as Neal had been a "constant bother" to him. After a short discussion Moyer stated "well Harry, forget about any rehiring of Neal." 12 Daniel Moyer then departed in order to prepare the memorandum. So far as the Respondent's evidence shows, no one at this conference made any inquiry regarding the Union mentioned in the alleged Coker-Renek conversation or about its organizational progress. The Respondent's officers professed ignorance of these matters during their testimony until the arrival of the Union's May 11 letter at the studio subsequent to this conference. In view of the obvious con- sternation and concern caused by the mere mention of the word "union" among the Respondent's officers, this reticence appears at least unusual. According to the testimony of Edwards as a witness for the Respondent, he arrived at the studio between 9:30 and 9:45 a.m. on May 11. Edwards testified that, as he was passing the water fountain in the studio area on his way to the administrative section in the front portion of the station, he heard Coker say to Renek, in the presence or three or four employees, "when the Union came in they would take over the operations of the production department and that Renek had better toe the mark," or, as he testified on cross-examination nine pages of the transcript later, "look, Harry, when the Union comes in here we will take care of running the production department, all the hiring and firing, and you better do as we dictate." This was the entire portion of the conversation between the two which Edwards heard as he passed the group without stopping. Although Edwards testified that he considered the remarks "exceedingly serious" and enough to "war- rant immediate discharge," he, a supervisor with authority to affect a discharge, did not stop to hear more of the conversation and failed to report the incident to anyone until after he had sat back-to-back with his superior, Worsham, for 20 minutes when he turned around and remarked to Worsham that he had heard Coker "fussing" at Renek.13 Sometime in the neighborhood of 10 a.m. the letter composed and executed at the Union's midnight meeting arrived by special delivery at the Respondent's studio. At Coker's suggestion the receptionist took the letter from the mailman to Moyer, the addressee, for his signature upon the return receipt. The letter read as follows: MAY 11, 1956. Mr. WILLIAM J. MOYER, WICHITA TELEVISION CORP ., INC., KARD-TV, 218 North Broadway, Wichita, Kansas. DEAR MR. MOYER : The Radio & Television Department of the International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL-CIO has been selected and designated 1z On page 961 of the transcript the above-quoted remark was incorrectly transcribed as "oh, yell." It is hereby corrected as above found. 'a If, as Moyer testified, he and Worsham had decided on May S "unanimously" not to reemploy Neal, it is as amazing that neither of these individuals mentioned that unani- mous decision at this time as it was that neither of them had passed the news of that unanimous decision on to either Renek or Neal prior hereto. 13 For reasons expressed hereinafter, the Trial Examiner is convinced and finds that this conversation never took place. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the following named employees as the bargaining representative to bargain for them collectively concerning wages, hours and working conditions: 1. Ken Carter-Staff Director 2. Jack Hansen-Staff Director 3. Bob Fitzmorris-Staff Director 4. Gordon Coker-Staff Director 5. Joe Goulart-News-reel Cameraman 6. Roger Klucas-Staff Announcer and Comm. Talent 7. Darrell McOsker-Staff Announcer and Comm. Talent 8. Edgar Millar-Staff Announcer and Comm. Talent 9. Jack McElrath-Staff Announcer and Comm. Talent 10. K. Darrell Cole-Film Editor 11. L Duane Daley-Film Editor 12. Donald D. Brooks-Camera-floorman 13. Myrl W. Fletcher-Camera-floorman 14. Marlow D. Hippen-Camera-floorman 15. Clifford E. McCabe-Camera-floorman 16. Russell W. Smoot-Camera-floorman 17. Laddie Lee Parsons-Camera-floorman 18. Marilyn G. Meneffee-Continuity Writer 19. Virginia L. Krkosska-Traffic Specialist 20. Bo McElrath-Availability Specialist 21. Carol Sfeigley-Receptionist 22. Virginia L. Martin-Receptionist 23. Frank Neal Conesee-Floorman In doing so, the employees of KARD-TV have exercised their rights guar- anteed to them by the National Labor Relations Act and Section 44-803 of the General Statutes of Kansas. It is unlawful for the officers and agents of KARD-TV to interfere with the employees exercising their rights to engage in union activities. You shall therefore not fire any of your employees for so doing or for their designating the aforesaid labor organization as their bargaining representative. Please advise me whether KARD-TV will voluntarily recognize the afore- said labor organization. If it does not elect to do so, we will have no alter- native but to proceed with an election for the certification of the bargaining representative of your employees which we have filed in their behalf in the Regional Office of the National Labor Relations Board. Very truly yours, RATNER, MATTOX AND RATNER, (Signed) RUSSELL CRANMER. cc: Robert D. Moyer Russell V. Coyette Rodger D. Herring Sam Worsham Harry R. Renek George M. Grown Daniel M. Moyer Dilmand D. Postlewait Upon opening this letter Moyer immediately called Brown into conference about the same.14 About 11 a.m. Worsham and Renek relieved Coker of his duties in the control room, took him to Moyer's office where Moyer stated that he had received a letter from the "ex-Governor of Kansas" 15 and that it looked like "we are going to be unionized." Moyer handed Coker a copy of the following memorandum which had been drafted by Moyer and approved by the other officers reading as follows: 14 Daniel Moyer contended during his testimony that he had been at his law office pre- paring the aforementioned memorandum when the Union's letter was delivered so that he did not learn about it until 12 :30 p.m. that day. However, his evidence also showed that he had returned to the studio sometime before 11 a.m. in order to secure the approval of the officers to the memorandum he had drafted. The evidence does not clearly indicate whether his return was before or after the arrival of the letter. In light of the cautious manner in which the Respondent had been proceeding in this matter up to this time due to the mention of the Union, it seems strange that Daniel Moyer was not promptly informed of the appearance of the union letter. 15 A member of the law firm with which Attorney Cranmer was connected. KARD-TV 237 MEMORANDUM TO STAFF AND EMPLOYEES MAY 11, 1956. This memorandum is written for the purpose of acquainting our staff and employees with the circumstances relating to the discharge of Gordon Coker. Mr. Coker has not been discharged by reason of labor activities. The laws of both the State of Kansas and the United States provide means whereby employees may band together and select a bargaining representative for collective bargaining. Neither management nor employees are permitted to engage in coercion, intimidation, or threats. Management has pursued a policy of complying with the laws in this regard and in all matters relating to the employee organization and collective bargaining. Mr. Coker, during working hours, has contacted a representative of man- agement and has made statements in regard to whom management should hire and whom management should not discharge, along with other statements as to the course of action a certain labor organization had planned for KARD-TV. It has been the decision of management that Mr. Coker has by these statements exceeded any privileges accorded to an employee under any authority, and he has been discharged on the grounds of insubordination. It is considered advisable to issue this memorandum to offset the usual rumors that are rampant and in the interest of retaining proper employee morale. (Signed) Wm. J. Moyer, W. J. MOYER, General Manager. After reading the memorandum Coker asked who he had been insubordinate to and was told that he had been insubordinate in having the receptionist take the Union's letter return receipt to Moyer for signature. Moyer stated that he could not have a man like Coker around his organization and that Coker was disrupting the organization. While Coker's final paycheck was being prepared, Coker told Moyer that he thought this matter would go to the National Labor Relations Board. Moyer answered that Coker was "awfully stupid, you are sitting right there threatening me." 16 Upon receiving his check Coker left the station. About 12:15 p.m. during Respondent's outdoor "Man on the Street" program, Frank Neal noted a bad electrical connection in the front of the studio and put his hand over it in order to prevent its being kicked by passers-by. As Neal was thus guarding this connection, Renek opened the front door and said that Moyer did not want Neal around the equipment. Neal asked if that meant that he was fired. Renek answered "I didn't say that, I just said Mr. Moyer did not want you around the equipment." A little later Neal went out to lunch with Renek and again asked if he was fired to which Renek answered "as of now, yes." After lunch Neal returned to the studio in order to pick up his mail and walked into Moyer's office where Moyer said "we are reorganizing our floor and cannot use you." 17 Neal stated that he had already been so informed and thereupon departed the studio. Neither Coker nor Neal have worked for the Respondent since. On May 14, the following letter over the signature of Attorney Cranmer was sent to and received by the Respondent: DEAR MR. MOYER: Mr. Gordon C. Coker and Mr. Frank W. Neal have consulted us concerning their discharge by the officers and agents of Wichita Television Corp., Inc. From the statements we have taken from them, there is no question but what their discharge came about as a result of their participating in union activities. From the memorandum you issued to the staff and employees of Wichita Television Corp., Inc. d/b/a KARD-TV there is no question but what you are familiar with employee's right to engage in union activities and a trumped-up excuse as given in the aforesaid memorandum will he completely disregarded by the National Labor Relations Board. We have filed on behalf of our client, Mr. Coker and Mr. Neal, an unfair labor practice against Wichita Television Corp., Inc., d/b/a KARD-TV. 1U Although Worsham denied hearing the remarks of Coker found above, Moyer did not. The evidence is clear that Worsham and Renck had left this meeting prior to its ,conclusion. Therefore Coker's testimony in effect stands undenied. 17 The record here is conclusive that no such "reorganization" took place at least until the strike of June 2. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You can save your corporation considerable inconvenience , expense, and embarrassment by reinstating the aforesaid employees . Formal demand is herewith made upon you to do so. If you do not do so, we will have no alternative but to compel such action through proceedings before the National Labor Relations Board. Very truly yours, Respondent did not answer.18 Promptly after the receipt of the Union's letter of May 11 and the dismissal of Coker and Neal, Respondent began a campaign to disassociate those who had signed the union letter from their adherence to the Union. On about May 11 Moyer spoke to Virginia Lee Martin , a permanent part-time evening receptionist, whose name was on said union letter . Moyer told her he would like to have a "private conversation" with her which was "not to be related to anyone." Moyer asked Martin why she had signed the union letter . After she answered that she had signed because she believed that the employees had a grievance over the conditions at the station , Moyer told her that it would be much better for her if she would withdraw from the Union , that the Union would not help her in any way, that he was sorry that she had not consulted with him before signing as he could have told her more than she knew about the Union, that eventually things at the station would change and that , whether the Union came in or not, Martin would always have her job with the Respondent. At Moyer's re- quest, Martin agreed to wait and see how things turned out.19 On the afternoon of May 11, Moyer once again called Director Hansen to his office and asked what his name was doing on the union letter . Hansen reiterated what he had said about unions the day before adding that , despite the fact that he and announcer Fitzmorris had argued and voted against IATSE, the majority of the production employees had voted for it, and so he would go along with that decision. A short time after this conversation Hansen was back at work when Renek came up and asked Hansen if he had heard what happened to Coker . Although Hansen answered in the affirmative , Renek continued "well, you know he [Coker] was trying to form a union here." When Hansen admitted having heard that, the conversation ended. During the afternoon of May 11, the chief announcer, Edwards, entered the announcer's booth while Jack McElrath and Edgar Millar were on duty there and said "I am surprised that you announcers signed that letter," that he had "gone to bat" for the announcers and thought everything was all right in that department. Edwards inquired why they had not joined AFRA , an announcer 's union, instead of IATSE and then ended the conversation by saying "well, you know how William J. Moyer hates unions." On May 14, E. W . Price began his employment as cameraman with the Respond- ent. A day or so thereafter Moyer invited Price into his office , learned that Price was from the State of Mississippi and then , after telling Price that there was union talk going on in the station, asked if Price was for the Union . Price answered in the negative saying that he was from the South and all he had heard about unions was strikes. Moyer ended the conversation by telling Price that he could make up his own mind as to what he wanted to do about the Union. About 2 weeks after the receipt of the Union 's May 11 letter, Renek asked cameraman Marlow Hippen if Hippen had anything to do with the union talk going on at the station . Hippen admitted that he had, whereupon Renek told Hippen that once before the Union had come up at the studio and that, if Hippen had anything more to do with this union affair or activities, he would be dis- charged by the Respondent.2° Shortly after the discharge of Coker and Neal , Sbarra invited Jack McElrath and his wife, Bo, who was acting as Sbarra's secretary, to go to a nearby restau- Is In regard to the above-quoted letter, Daniel Moyer testified : I just want to point out that this is the type of letter [previously characterized by the witness as "smart alecky"] that Mr. Cranmer would send me from time to time which was the basis for me having the personal attitude toward him in not desiring to extend him the usual courtesy in replying to an attorney. 19 As found hereinafter, conditions changed but not for the better for Martin. 29 Sometime in March of that year Renek had asked Hippen if he knew of any union activities going on at the station. After Hippen had denied any such knowledge, Renek informed him that he, Hippen, had almost lost his job because Respondent thought he had been engaged in those union activities. KARD-TV 239 rant for a "quick cup of coffee." The question of the Union came up promptly after they had sat down . Sbarra inquired as to why they thought a union was necessary in the production department . Jack McElrath explained that they needed a union because of the poor conditions at the station and for security in view of the recent discriminatory discharges . Sbarra then argued that McElrath should look at those employees who had been fired, stating that they were nothing but a "bunch of bums," that McElrath was an intelligent man and should make up his own mind . Sbarra continued by saying that the Union would try to do all kinds of things for the employees , buy them whiskey and make all sorts of prom- ises, but that the Union would not fulfill their promises . He urged them to refuse to drink the Union's whiskey , to use their own heads, and to arrive at their own decisions which he said he hoped would be the "right one." 21 On or about May 30 there was an evening meeting of most of the employees who had joined the Union at which time they decided that the Union would request Respondent to bargain with it on behalf of the production employees of the Respondent . The group decided further that, if this request were refused, the group would go on strike in protest of the Respondent 's refusal and of the Respond- ent's discriminatory discharges of Coker and Neal. Again Respondent did not answer the Union 's request. Therefore about 6 a.m. on June 2, the Union began picketing the Respondent's studio and its transmitter which was located out of town . The record shows that 20 of the Respondent's production employees ceased work at this time. Most of them, except Bo McElrath and Virginia Lee Martin , engaged in at least some picketing. The picket signs worn by those on picket duty had the following wording: KARD FIRED ME BECAUSE OF UNION ACTIVITIES EMPLOYEES OF KARD-TV PROTEST THE ACTION OF KARD-TV IN DISCHARGING ITS EMPLOYEES FOR PARTICIPATING IN UNION ACTIVITIES * * * * * * * EMPLOYEES OF KARD-TV PROTEST THE ACTION OF KARD-TV IN COMPELLING ITS EMPLOYEES TO SIGN INDIVIDUAL CON- TRACTS OF EMPLOYEES AFTER WE DESIGNATED OUR COLLEC- TIVE BARGAINING AGENT * * * * * * * EMPLOYEES OF KARD-TV PROTEST THE ACTION OF KARD-TV IN COMELLING [sic] ITS EMPLOYEES TO SIGN INDIVIDUAL CON- TRACTS OF EMPLOYMENT AFTER WE HAD DESIGNATED OUR COLLECTIVE BAGAINING [sic] AGENT * * * * * * * A MAJORITY OF THE EMPLOYEES OF THE PRODUCTION DEPT. OF KARD-TV HAS DESIGNATED THAT IATSE, AFL-CIO, AS THEIR BARGAINING AGENT In addition to these picket signs, the pickets carried printed cards for distribu- tion to any of the public who inquired of them as to the reasons for the strike. These cards read as follows: WE ARE ON STRIKE BECAUSE A majority of the employees of the Production Department of KARD-TV designated the I.A.T.S.E. as their Bargaining Agent. These employees so noti- 21 As a witness Sbarra acknowledged that this conversation had taken place substan- tially as testified to by Jack McElrath. However, Sbarra claimed that the purpose of the conversation was to determine why the work of Be McElrath had deteriorated over the past few weeks. He testified that Be McElrath had explained this alleged deteriora- tion because of her nervousness caused by having joined the Union, which Sbarra con- tended was the first he had known that the McElraths had joined the Union. Sbarra also claimed that, while he had used the word "bums" he used that word exclusively in reference to professional paid union organizers. As previously noted, the Trial Examiner was not favorably impressed with the glibness and suavity of Sbarra as a witness. As the names of both Jack and Bo McElrath were listed in the May 11 letter of the Union which caused so much consternation at KARD-TV, it is impossible to believe Sbarra's claim that he learned for the first time, over the cup of coffee , that the McElraths had joined the Union. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled William J. Moyer, the General Manager of KARD-TV on May 11, 1956. Within two hours after KARD-TV had been so notified, it fired two of its employees who had designated the I .A.T.S.E. as their Bargaining Agent. Within a week thereafter, KARD-TV commenced altering the working con- ditions and posted vacation schedules. It did not consult the Bargaining Agent of its employees in regard to these matters. Later, KARD-TV caused some of its employees to sign individual contracts of employment with KARD-TV and completely ignored the designated Bargaining Agent of these employees. The employees in the Production Department of KARD-TV are on strike in protest of the unfair labor practices committed by the officers of KARD- TV. The Bargaining Agent of these employees has endeavored to meet with the General Manager of KARD-TV to discuss these matters and to negotiate a contract concerning wages, hours and conditions of employment of the Pro- duction employees of KARD-TV. The General Manager of KARD-TV re- fuses to meet with the Bargaining Agent of the Production employees. We appeal to you, as members of the public , to use your influence with the officers of KARD-TV to change their attitude toward its employees and reinstate the two fired employees and to commence bargaining with our Union. Beginning the morning of June 2, the Respondent began hiring replacements for the strikers . All such replacements were promised permanent positions . General Counsel stipulated that at least by the conclusion of the strike on July 16 the Respondent had succeeded in replacing all of the strikers except Menefee with permanent replacements . The record shows that , while Menefee had also been replaced by this time, her replacement was a young college girl who intended to, and did, return to college on September 1. Such a replacement cannot be con- sidered permanent . Accordingly the Trial Examiner finds that Menefee was not permanently replaced prior to July 16, when she made an unconditional request of the Respondent for reinstatement to her position which Respondent failed to acknowledge. About 9 : 30 a.m. on June 2, Bob Edwards telephoned Director Jack Hansen asking him to report to the studio prior to his scheduled 4 p.m. tour of duty. When Hansen asked the reason for this early arrival , Edwards told him of the presence of the picket line. When Hansen asked whose picket line it was, Edwards answered "the Production Department ." Hansen stated he would call Edwards back. About an hour later, Hansen did call Edwards back and explained "Bob, I don't feel that I can honestly cross the picket line." Edwards answered "I am sorry, Jack, but Mr. Moyer said that anyone who did not cross the picket line, their employment would be terminated . . . good luck" and ended the conver- sation. About noon that same day Edwards telephoned to Jack McElrath and asked what McElrath thought about the pickets and the strike . McElrath answered that he was going to honor the picket line. Edwards replied that he was sorry to hear McElrath say that and that McElrath felt that way and then ended the conversa- tion with "from what I have heard , Mr. Moyer doesn't like Unions, and if you don't come back to work, it may be expensive for you . . . salary wise." Sometime prior to the end of the strike on July 16, Hansen had made applica- tion at Liberty Loan Company for a loan where he had listed the Respondent as his place of employment. The following day the loan company 's credit manager telephoned Hansen and told him that she had been informed by the Respondent that Hansen's employment with the Respondent had terminated on June 1. Hansen immediately telephoned the Respondent 's office manager who confirmed his con- versation with the loan company. When Hansen asked for a written memorandum as to his termination , Respondent's office manager stated that he could not give him such a written statement but that Hansen would have to call Daniel Moyer to get such a written statement. The Respondent's testimony affirmed this aforementioned finding. Daniel Moyer testified that the Respondent 's office manager had been given strict instruction to tell anyone calling the office in regard to any of the strikers that such individual "was not working there any more" without further comment . Dilmon Postlewaite, Respondent's office manager, acknowledged that he had told the Liberty Loan Company credit manager that Hansen "had not worked for the Respondent since June 1." It is a reasonable interpretation of either of the aforementioned state- ments made by the Respondent that Hansen , after June 1, was no longer con- sidered an employee by the Respondent. In the State of Kansas there is a statutory provision requiring the payment of wages due to discharged employees within 10 days of the termination of their BARD-TV 241 employment. On May 31 the KARD employees had been compensated for their work through that date by regular payroll checks. Within the 10-day statutory period, on orders of Respondent 's attorney, the Respondent sent checks on or about June 7 or 8 to all strikers covering payment for work performed by them on June 1, the only work not compensated for on their last regular paychecks of May 31. Admittedly Respondent paid the strikers on a special payroll. After work on June 1, Virginia Lee Martin, the regular part-time receptionist, left Wichita on her vacation 22 prior to the commencement of the strike and did not return home until June 16 as per her previous agreement with Respondent. Upon her return she was informed that Moyer had telephoned several times during her vacation and was very anxious to speak to her. Martin returned these calls on the morning of January 17 prior to her scheduled return to work at the studio that evening. The following is Martin's undenied testimony regarding this tele- phone call with Moyer, which Moyer did not deny and which the Trial Examiner credits: Well, the first thing he said to me on the phone, he said, do you know what happened, and I said, "no," and he said, "well everybody walked out," and I said, "what for," and he said it was a strike, and he asked me, he said, "I have your resignation typed up and I would like to bring it out to you. I can have it out there for you to sign in about 30 minutes," and I was flabbergasted, and I said, "why," and he said "I don't consider you were loyal and you were a union sympathizer," and I said, well, I don't know all exactly was said, but I reminded him of a conversation that he and I had had prior to this occasion [reference is to the conversation of about May 11 when Moyer promised Martin that she would always have a job with the Respondent re- gardless of whether the Union came in or not ] he said it didn't matter, and he said I still wasn't faithful, and he said, "either you resign or I will fire you." I said, "I don't want to resign , I want to talk to someone that knows more about these things than myself," and he said, "all right," so I called a friend of mine who was a friend of mine here in town, and he said that it would be best not to resign,. and so I didn't. Martin refused to sign the letter of resignation . She has never since been rein- stated by the Respondent although request therefor was made on July 16, 1956.23 On or about July 17 the Respondent received the following letter dated July 16 over the signature of Attorney Cranmer, attorney for the Union: DEAR MR. MOYER: As attorney for the individuals named below who went on strike on June 2, 1956, against the Wichita Television Corporation, Inc., 22 Martin's vacation was from her full-time employer, an aircraft manufacturer located in Wichita. Respondent merely agreed that Martin could be absent from the studio during this same period of time. a3 Moyer testified in full about the Martin discharge. Moyer denied none of the testi- mony of Martin. In his testimony Moyer attempted to shift the emphasis to the harassment Respondent had suffered during the strike in attempting to secure reception- ists. The record shows that the scarcity of receptionists was still acute as of June 17. -In fact the record shows that receptionists had quit Respondent's employ on June 6, 9, and 15, and that after June 8 no receptionist was hired until June 26. In view of this scarcity of receptionists Moyer must have had strong reasons not to welcome Martin back' on June 17. His testimony does not explain nor lessen the admission that Martin was. being discharged because Respondent considered her "a union sympathizer." For reasons unknown, the complaint herein does not list Virginia Lee Martin although that issue was fully litigated at the hearing and she was named in the charge and in the Union's unconditional request for reinstatement of July 16. Rule 15(B) of the Federal Rules of Civil Procedure of the district courts provides as follows : When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgments ; but failure so to amend does not affect the result of the trial of these issues. . . . Although the Trial Examiner personally believes that the public interest requires that a remedy be provided in the case of Virginia Lee Martin, he is providing none here as he feels bound by recent decisions of the Board refusing relief on any issue not specifically raised by the complaint. 505395-59-vol. 122-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d/b/a KARD-TV, I do hereby, on their behalf, request that they be put back to work. This request, on behalf of the below named employees, is without any conditions on their part. Ken Carter Clifford E. McCabe Jack Hansen Russell W. Smoot Joe Goulart Laddie Lee Parsons Darrell McOsker Marilyn G. Menefee Edgar Millar Virginia L. Krkosska Jack McElarth [sic] Bo McElrath K. Darrell Cole Virginia L. Martin L. Duane Daley Peggy Dalton Marlow D. Hippen You will recall that we have previously requested that Gordon Coker and Frank Neal be put back to work. However, the re-employment of Gordon Coker and Frank Neal is not a condition of putting the other aforenamed employees back to work. You may contact the above named individuals directly, or if you desire, you can notify me when they can return to work and I will so advise them for you. Very truly yours, RATNER, MATrox & RATNER. As usual the Respondent failed to answer this request. However, the picket line ceased on July 16. By letter dated December 6, 1956, over the signature of Attorney Cranmer, the unconditional request for the reinstatement of employees E. W. Price and Bob Fitzmorris was made of the Respondent. Respondent made no answer thereto. None of the strikers or persons whose work ceased on June 2 have ever been reinstated or offered reinstatement by the Respondent. Nor has Respondent ever answered any requests for same.24 B. Conclusions 1. The discharge of Coker a. The General Counsel's prima facie case The evidence adduced here proves that Gordon Coker was the leading pro- tagonist on behalf of the organization of the Respondent's production employees. In its brief the Respondent refers to Coker as the "quarterback" or the "lay organ- izer" of the union drive, descriptions merited by the evidence. The organizing drive began about May 5. Undenied evidence also proves that beginning on May 10, or earlier, Respondent through its general manager, Moyer, and super- visors, Renek, Edwards, and Sbarra, began a course of illegal interrogation of its employees seeking to learn the leadership and the progress of the union organiza- tional drive and to coerce or frighten said employees into abandoning that effort. The facts prove without a possibility of dispute that, as early as May 10, Renek knew that Coker was the leader of this organizational effort and that he, Renek, thereupon, apparently on orders of Moyer, sought further information from Coker along that same line because as Renek told Coker, "Mr. Moyer said we have to get rid of them." The facts also prove that by 4 p.m. on May 10 Edwards had been told of the organizational meeting scheduled for that midnight as well as that Coker was the organizer for the Union among the employees. Within an hour or so after Edwards had confirmed the fact that Coker was the leader of the organizational drive, Sbarra made his unique telephone call to Coker's home during which he inquired about Coker's knowledge of IATSE and ended the conversation with the warning that "IATSE was a union that is trying to get in here and we have to stop them." u During the course of the strike from June 2 to July 16 certain acts done or events occurred by and through persons, known and unknown, which the Respondent here con- tends constituted "violence and serious strike misconduct" sufficient to justify the Respondent in refusing reinstatement to each and every person whose work for the Respondent had ceased on June 2, whether or not such person had actually been engaged in the strike and whether or not such persons engaged in such acts or events. As such material constitutes purely defensive matter in the event that unfair labor practices are found here, the Trial Examiner will not make any findings thereon at this time but will consider such matters in a subsequent section of this Intermediate Report. KARD-TV 243 With the general manager and his supervisors acting so obviously in concert toward the same stated end as they were , it is impossible not to conclude that such activity by the Respondent was directed by Moyer even as Renek had sug- gested. The Trial Examiner so concludes . Clearly these concerted efforts "to stop the Union" were directed towards Coker . It is thus apparent that the Respondent was displaying an untoward amount of interest in Coker and his union activities long before any question of alleged insubordination arose. Within an hour after the receipt of written proof in the form of the Union's letter of May 11 listing 23 of the Respondent's production employees , a large majority of the employees in that department , thus attesting to the successful organizing of Coker, the Respondent not only discharged Coker but also through Moyer, Renek, Edwards, and Sbarra commenced a campaign of coercion and in- timidation in an effort to cause its employees to withdraw or abandon the Union. Following Coker's discharge other employees were informed by the supervisors that they had been instructed by Moyer to "stop the Union" and to "get rid of the union leaders." Although the Respondent issued an official memorandum on the Coker discharge publicly disclaiming that said discharge was due to Coker 's union activities, Renek took occasion that same afternoon to make it quite clear to Director Hansen that Coker had been trying to form a union in the studio prior to his discharge. As seen from this very short resume , the General Counsel proved a formidable prima facie case that the Respondent had discriminated against Coker because of his union activities. b. The credibility of Coker The Respondent devoted approximately a third of its 45-page brief to the ques- tion of whether Coker could be credited. It cited numerous instances of what it chose to call "the type of misconduct [Coker] committed on the witness stand." The brief then cited "Coker's most glaring instance of lying" where, according to the brief, on direct examination Coker had testified that he "was hired " by Renek and never talked to anyone else regarding his employment , whereas, on cross- examination, Respondent brought out that prior to Renek's informing Coker that he had been employed by KARD as a director , Coker had in fact talked to Sbarra in Amarillo and had also visited Moyer in Wichita about possible future employment at KARD. The brief reached the conclusion that Coker was a "psy- chological liar" whose testimony was unworthy of belief and , therefore, could not be credited. The Trial Examiner is unable to concur in this judgment of Coker's credibility for the reasons cited in the brief but more importantly because so much of Coker's testimony was either undenied or corroborated by other witnesses, including those of the Respondent. In the first place the instances cited of so-called "misconduct on the witness stand," with one glaring exception , are the usual, ordinary, and not unexpected instances of a lay witness untrained in the intricate rules of evidence overstepping some of the technical boundaries thereof . The exception referred to is an obvious typographical error in the transcript.25 As for the "most glaring example of lying," cited by Respondent , Coker had testified that Renek "hired me from Amarillo" and then , in answer to the follow- ing question : "In your conversation with Mr . Renek about your going to work for KARD, did he give you any indication whatsoever what his action was?" Coker answered : "No, I never talked to anybody about it." At the hearing, as it has done in its brief, Respondent interpreted this question and answer to mean: "[by Daniel Moyer] Now wasn't it your testimony on your examination in 'chief, that Harry Renek called you and you never talked to the general manager, to anybody else at KARD Television about a job except Harry Renek." Coker obviously did not place this interpretation upon his prior testi- mony for his answer to this was: "I think I testified that when I did come to work I was hired by Harry Renek." The Respondent did not prove that Coker was ever interviewed by any other KARD official after his notification of employ- ment by Renek. 21 Coker had been asked a question regarding a memorandum . In answer to the ques- tion he inquired "are you referring to the one [memorandum ] that said I was fired for insubordination for union activities ?" It is so apparent that the words "and not" should have been inserted between the word "insubordination " and the word "for," that the Trial Examiner on his own motion hereby corrects page 111 of the transcript to so read. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner could not at the hearing and cannot now, after rereading the transcript, accept Respondent's interpretation of this one answer to an am- biguous question as reasonable nor as justifying its contention that Coker was a "psychological liar" unworthy of belief. The Respondent next picks upon Coker's explanation of the reasons discussed by the Respondent's union employees in deciding to strike on June 2. At this point in the hearing the word "motions" was used frequently by all parties. It was being used loosely and very differently by each of the parties. Respondent's counsel, being a corporation lawyer, quite clearly was speaking in terms of care- fully prepared corporate minutes, while the General Counsel and Coker were quite as clearly speaking in terms of arguments made at less sedate , less sophisticated, informal meetings of working people who had not even gone so far as to elect officers. Respondent's contention here is unrealistic. Contrary to the Respondent's contention, the Trial Examiner believes and , there- fore finds Coker to have been a witness worthy of belief. Coker's demeanor on the stand, his willingness to answer questions frankly and candidly, his consistency under rigorous cross-examination convinced the Trial Examiner that Coker was testifying to the truth. Furthermore , Coker's testimony was in large measure un- denied by Respondent's witnesses or was corroborated in whole or in large part by such witnesses . The Trial Examiner is convinced that, instead of being "a psy- chological liar," Coker was worthy of credit as a witness. c. Respondent's alleged lack of knowledge The first line of defense which the Respondent advanced to the General Coun- sel's prima facie case is stated in its brief as follows: There is not one speck of evidence in the record that management, at, prior to, or during the May 11, 1956, conference, knew anything about Coker being the lay organizer of any union activity , nor that management knew anything about a meeting of the employees held to organize on the preceding night of May 10-May 11, 1956. [Emphasis in original.] However, at page 33 of its brief, 5 pages thereafter, Respondent indicated a more cautious and more realistic , if not contradictory, approach to this problem of its knowledge of union activity when it stated: Employer knew that he [Coker] was associated with union activities, to be sure; but the record does not show that Employer knew him other than as a rank and file employee who indicated an affiliation with union activities, nothing was known to Employer of his key-man function. Although no doubt the Respondent intended its last-quoted statement to refer to May 11, the facts prove that, as early as May 10 Renek recognized that Coker was the leader of the organizational effort, and that he and Sbarra thereupon sought further information about the Union from Coker and Neal because "Mr. Moyer said we have to get rid of them." The facts further show that by 4 p.m., or thereabouts , on May 10 Edwards, at least, had learned both that Coker was the "lay organizer," to use the Respondent's phrase, and that the organizational -meeting of the Union was to be held that evening . In his conversation with Hansen on May 10, Moyer indicated having definite knowledge as to the extent of the organizational drive, despite his denial on the witness stand of having made inquiry regarding either the Union or its activities . This denial by Moyer was contradicted by the, concerted efforts of Renek, Edwards, and Sbarra, obviously acting upon orders of Moyer, to ferret out information regarding the Union and its leadership. Nor, for the same reasons , was the Trial Examiner impressed with Edwards' denial of ever having passed on the information he received from em- ployees Millar and McElrath to "anybody that is getting paid a dollar by KARD- TV." Furthermore, the knowledge acquired by Moyer and his supervisors in their efforts "to stop" IATSE and "get rid" of its leaders was the knowledge of super- visors of the Respondent and, therefore, imputable to the Respondent. The facts proved or admitted make the Respondent' s attempted defense of a lack of knowledge of union activities and Coker's part therein untenable. d. Insubordination Somewhat in the nature of a,plea in confession and avoidance, the Respondent contended at the hearing and in its brief that Coker had been discharged for acts of insubordination in telling, or in Respondent's phrase "telling off," "a represen- tative of management" Harry [Renek] that, "when the Union came in," (1) the Union would do the hiring and firing and management would not have anything BARD-TV 245 to do with that; (2) Renek would have to watch his step and be careful how he talked to the employees; and (3) that the Union was going to "get," or, "nail to the cross" 26 one Sam Worsham. Coker denied having made the above-mentioned remarks to Renek. There is nothing even faintly resembling the alleged Renek report to be found in Coker's testimony. Respondent's brief apparently agrees for it states: "On one point, one alone, the information which management received of the conversation and Coker's ver- sion of it, are consistent, viz, that it occurred around one o'clock in the after- noon." There is in this quoted sentence one inaccuracy and one assumption: (1) Moyer testified that, according to Renek, his alleged conversation with Coker occurred "about noon time"; (2) it is a pure assumption that Renek's "noon time" conversation was the same as the conversation Coker testified he had had with Renek about 1 p.m. Legally there is in this record no probative evidence that Coker made any of these allegedly insubordinate statements. Furthermore, Coker's denial that he made any such statements to Renek stands uncontradicted on this record. The Respondent did not call Renek as a witness, nor did Renek appear at the hear- ing.27 Thus the only testimony in this record as to this alleged conversation between Renek and Coker is the testimony of Moyer, Daniel Moyer, Brown, and Worsham regarding the reports which Renek made to Moyer on May 10 and to the management group on May 11, concerning his alleged conversation with Coker about "noon time" on May 10. This testimony is, of course, hearsay regarding the conversation itself as none of the witnesses personally heard the disputed conver- sation and, therefore, could not be cross-examined as to the conversation itself- but only as to Renek's second-hand report of the conversation upon which the Respondent based its contention of insubordination for which it allegedly dis- charged Coker. As there is no probative testimony in this record to contradict Coker's denial that any such conversation ever occurred, the Trial Examiner must accept Coker's denial and find that on May 10 Coker had no such conversation with Renek as Renek reported to management. As a necessary corollary to this finding, it fol- lows that not having made the offensive remarks claimed, Coker could not have been insubordinate, in fact, to Renek as contended by the Respondent. This raises the interesting problem-fortunately theoretical here-as to whether an employer is justified in discharging an employee allegedly for making insubordi- nate remarks to a representative of management when that member of manage- ment who has reported the alleged insubordination knows that such insubordination never occurred or, at least, fails to substantiate the alleged insubordination. Perhaps with this in mind, the Respondent's brief makes much of the testimony of Edwards to the effect that, about 9:30-9:45 a.m. on May 11, as he was walking 26 Apparently a favorite expression of Renek. r The complaint in this matter was served upon the Respondent on May 1, 1957. On May 8, Respondent served upon the Regional Director a paper termed "Motion for Bill of Particulars or for More Definite Statement" together with a paper entitled "Interroga- tories" in which it requested the last known address of Renek from said Regional Director and suggested the possibility of taking the deposition of said Renek. By tele- graphic order dated May 15, 1957, signed by Trial Examiner Louis Plost, the motion was denied and the interrogatories quashed. The hearing herein commenced on May 20, 1957. On May 22, Respondent filed with this Trial Examiner a document entitled "Motion to Take Depositions," which included a deposition to be taken of Renek, among others. The motion was denied. The Trial Examiner then treated that motion as a request for a subpena for Renek. A subpena was given the Respondent that same day. On May 24 Respondent informed the Trial Examiner that such subpena had been mailed to Renek at an address supplied by the General Counsel to the Respondent on May 21, together with witness and transportation fees. Just prior to the conclusion of this hearing at about 11 :15 p.m., May 29, Respondent reported that no word had been received from said Renek. It renewed its request to take the deposition of Renek, stating its belief that it could secure Renek's address "within 24 hours." Upon determining from the Respondent that its efforts to locate said Renek after the service of the complaint on May 1 had consisted of the aforementioned request made to the Regional Director and no more than three telephone calls, the Trial Examiner denied this request to take the deposition of Renek for lack of due diligence. In making this ruling, the Trial Examiner stated that he would "welcome" an appeal of his said ruling by Respondent immediately to the Board as permitted by its Rules and Regulations. To the date of the execution of this Intermediate Report, the Respondent has failed to avail itself of this right of appeal. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through the studio on his way to the front office of the station on his way to work, he saw Coker, Renek, and 3 or 4 other employees (unnamed) at the water fountain and, as he passed by the group, he heard Coker say to Renek, "When the Union comes in, they would take over the operations of the production depart- ment and that Renek had better toe the mark" (as he testified on direct examina- tion) or (as he testified on cross) "Look, Harry, when the Union comes in here we will take care of running the production department, all the hiring and firing, and you better do as we dictate." Outside of being the only probative evidence in this record that Coker ever made these or almost identical remarks to Renek, this testimony by Edwards actually is immaterial to the discharge of Coker for the reason that the Respond- ent's evidence is exclusively to the effect that the Respondent's decision to discharge Coker was based upon Renek's report and had been arrived at at least an hour prior to the time Edwards allegedly overhead the conversation about which he testified. In assessing this testimony by Edwards, it stretches credulity to believe that, in the 10 seconds or so Edwards claimed it took him to pass Coker and Renek, he just happened to overhear them reiterating in almost the exact words the same conversation which reportedly had occurred between them some 21 or 22 hours previously. This would seem to verge more on the miraculous than on upon the coincidental. Nor can the Trial Examiner believe that this alleged conversation was as serious as Edwards during his testimony would have us believe in view of his own failure to stop or discipline Coker in any way as he had authority to do, in view of his own description of the event as "fussing" and in view of his having sat for at least 20 minutes back to back with his superior, Worsham, before even reporting the "fussing." As Edwards denied having reported his discoveries regarding Coker's leadership of the union movement and of the organizational meeting scheduled for midnight to anyone at a time when Moyer and his supervisors were concertedly seeking such information, the Trial Examiner is constrained to discredit this testimony by Edwards and to credit the denials thereof. In any event this testimony was im- material to the Respondent's decision to discharge for, if Edwards is to be believed, he failed to report this conversation as other than "fussing." Respondent cannot have Edwards' testimony both ways. The Trial Examiner does not believe that this Coker-Renek conversation ever took place. According to Moyer, it was about 5 or 6 o'clock May 10, when Renek reported Coker's statement as to things-to-be "when the Union comes in." It is clear from all of the Respondent's testimony on this subject that it was, to use the Respond- ent's phrase, this "mention of a Union" in the studio which caused Moyer to con- sider Renek's report to "show a serious situation" at the studio, which caused Moyer to become so "very concerned" and "very, very disturbed" as to insist upon an immediate meeting with the Respondent's attorney and president, and to say "I don't see how we can run a business with this going on and what is the law, what is the situation, we have a Union mentioned here and I want you to tell us what we can do," and which further caused Attorney Daniel Moyer to describe the situation as being "very sensitive." Thus it was this "mention of a union" clearly which disturbed the Respondent's officials. In fact it was not until the early morning conference of May 11 that "insubordi- nation," major or minor, was first mentioned by Respondent. This came during Daniel Moyer's legal opinion that, while some employers attempted to disguise their interference with the employees' right to organize by discharging the leading protagonist among the employees allegedly for "some minor act of insubordina- tion," such as saying once to a supervisor "Oh! yeah!," he was sure that the law would not prevent the summary dismissal of Coker for a "major act of insubordi- nation" such as this to a superior. Yet the Respondent's officers all knew that, without the Respondent's consent, the Union could not accomplish any of the things Coker allegedly had mentioned to Renek. Thus, it becomes quite clear that it was the Respondent's fear of the union organizational drive and Coker's leadership thereof which caused the meeting to be called and a decision to dis- charge Coker taken. All doubt as to the correctness of this finding is removed by Renek's prior warn- ing to Coker on May 10 that "Mr. Moyer said we had to get rid of them [anyone connected with the Union]" and his patent warning to Coker in recalling the fact that John Jennings had been discharged previously for engaging in union activities as well as by Sbarra's unique telephone call of the evening of May 10 which ended with a warning that "we have to stop" the Union from getting into this studio. This the Respondent did by discharging Coker the following morning BARD-TV 247 promptly upon receipt of proof of his successful organizational efforts. Renek confirmed that it was Coker's union activities which had caused his discharge dur- ing a subsequent conversation with employee Hansen. Consequently the Trial Examiner is convinced and, therefore, finds that the Respondent discharged Gordon C. Coker on May 11, 1956, because of his mem- bership in, and activities on behalf of, the Union in violation of Section 8(a)(3) of the Act. 2. The discharge of Frank Neal Respondent's brief commenced its discussion of the Neal case as follows: "The examiner must admit fairly that the charge involving Neal is not an ordinary one. One would have to look far and wide in the annals of labor records to find a similar situation upon which a union or the General Counsel has tried to base a case on facts similar to this. At best, one would conclude, even if all the accusa- tions of the Union and the General Counsel were admitted, that the Neal case is `pretty poor picking."' On the contrary the Supreme Court of the United States on April 28, 1941, decided the Phelps Dodge Corp. case, 313 U.S. 177, which determined the law applicable to the Neal case. Even prior thereto, in 1939, the Board decided the Waumbec Mills case, 15 NLRB 37, which was affirmed in the First Circuit Court of Appeals, 114 F. 2d 226. The law applicable to the Neal case has been long settled. Factually the evidence is quite conclusive that on May 8 in answer to Neal's request for reemployment by the Respondent following his resignation of May 1, Moyer admittedly sent Neal to Renek stating, in substance, that Neal's reemploy- ment was "up to Renek," not up to himself. That same evening Renek telephoned Moyer, mentioned Neal's request for reemployment and stated that he, Renek, had a man who was "dragging his feet" whom Renek was going to discharge and that Renek expected to have Neal return to work on Sunday, May 13. Following this telephone call Renek instructed Neal "to come back about noon Sunday," May 13. Employees of the station were so notified by Renek. Worsham even added his congratulations to Neal upon his impending return to the station.28 The Trial Examiner believes, and therefore, finds that on May 8 Neal was reemployed by the Respondent to return to work on May 13. Neal's problems began on May 10 when Renek discovered Neal driving around downtown Wichita with the known leader of the union drive, Coker. At that time Renek asked Neal to give him the names of the leaders of the union drive which Neal refused to do on the ground that he had not been at work and, therefore, did not know them. When Neal promised "to keep his ears open," Renek, upon inquiry by Neal, refused to rescind Neal's ordered reemployment. Upon returning to the station that afternoon apparently prior to Renek's return, Neal reiterated Renek's remark that it looked as though Neal wanted to return to work in order to organize the station to Moyer who agreed that it did look that way, but who refused to say that Neal was discharged.29 As he was leaving Moyer's office after this interview, Worsham congratulated Neal on his coming return to work. Early on the morning of May 11 the first thing Renek wanted to know, after confirming the fact that the Union had had a meeting the night before, was what Neal had had to say about him, Renek. When Coker indicated that Neal thought that Renek had been threatening his future employment because of his refusal to divulge the names of the leaders of the union movement, Renek indicated his displeasure by stating that he "would drive Neal through a wall." An hour or two after Coker's discharge Renek told Neal that he was fired "as of now." Moyer subsequently confirmed this decision on the ground that the Respondent was "reorganizing its floor" and so had no place for Neal. Exhibits prepared by the Respondent and in evidence proved that no such "reorganization" took place. Moyer clearly was not giving Neal the true reason for his discharge. Some days thereafter Renek told Hansen that the cause of Neal's discharge was Neal's refusal to divulge the names of the leaders of the union movement. There was no denial of this congratulatory statement by Worsham although both Moyer find Worsham testified that on May 8 they had unanimously decided against the reemployment of Neal . The facts prove that there was no communication of this so-called unanimous decision to any of the interested parties. In fact it was not even mentioned when the Neal case came up for discussion at the morning conference of May 11. Accord- ingly it is impossible for this Trial Examiner to believe that any such unanimous decision was ever made. 21 Moyer could not recall this meeting, 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts are quite conclusive, and the Trial Examiner finds, that the Respond- ent denied Neal reemployment or discharged him because the Respondent believed, rightly or wrongly, that Neal was an organizer of the union movement, was return- ing to work for that purpose, and had refused to divulge to Renek the names of the leaders of the union movement. Consequently the Trial Examiner must find that the Respondent refused to reemploy or discharged Neal on May 11, 1956, because of its belief that he was a member of, and active on behalf of, the Union in violation of Section 8(a)(3) of the Act. 3. Interference after May 10 Respondent originally announced the discharge of Coker to its employees through a memorandum prepared by its attorney, the second paragraph of which read as follows: "Mr. Coker has not been discharged by reason of labor activities." Ac- cording to the Respondent's testimony at the hearing, this memorandum was spe- cifically prepared and distributed to the employees in order to allay their fears, to stop any rumors, and to assure them that they would not be discharged for engaging in union activities. However, even as this reassuring document was being circulated among the em- ployees, Moyer and his supervisors had returned to work. Moyer called the receptionist, Virginia Lee Martin, into his office for what he described as a "pri- vate" and "not to be related to anyone" conversation where he demanded to know why Martin's name had appeared on the union letter of May 11, assured her that the Union could not do her any good, and requested that she withdraw therefrom which Martin finally agreed to do upon Moyer's promise that conditions at the station would change. After this success Moyer called Director Hansen back into his private office for the second time in 2 days, demanding to know what Hansen's name was doing on the union letter. After Hansen failed to react to Moyer's pointed suggestion and announced his intention to remain with the majority of the production em- ployees, Renck took occasion to visit him in the studio, asking if he had heard about Coker's discharge and then warned "you know that [Coker] was trying to form a union here." At about this same time Edwards was announcing "his surprise" to announcers McElrath and Millar that they had joined IATSE. Although Edwards' approach was rather more indirect than Moyer's and Renek's when he suggested that, as announcers, they should join AFRA, an announcers' union, the purpose was the same: withdrawal of the Respondent's employees from IATSE. Sbarra clearly had the same purpose in mind when he took McElrath and his wife, Bo, who was also Sbarra's secretary, to a nearby restaurant for a quick cup of coffee during which the conversation got around to the Union. When McElrath stated that, among other things, he and his wife needed a union in order to pro- tect them from such discrimination as had already taken place and to prevent their being discharged for engaging in union activities, Sbarra referred to those dis- charged and to those with whom McElrath still worked as a "bunch of bums" and "implored" McElrath not to drink the Union's whiskey and, as an intelligent per- son, to reach his own, and the "right decision," about the Union. Just so that there could be no doubt as to what the "right" answer was, Sbarra let the McElraths know that he himself "hated unions." A day or so after his employment began on May 14 at KARD, Moyer called employee Price to his office, informed him that there was union talk in the studio and bluntly asked if Price was for the Union. Apparently satisfied when Price stated that he was a Southerner and did not like unions, Moyer stated that he could make up his own mind as to what he wanted to do about the Union 3u Sometime in the latter part of May, Renek took occasion to ask employee Hippen if Hippen had anything to do with the Union and the union talk which was going on in the studio. When Hippen acknowledged that he did have, Renek warned him that he would be discharged if he had anything more to do with the Union and further that he had once before almost been discharged because the Respondent believed that he had been engaged in union activities. Clearly Moyer, Renek, Edwards, and Sbarra embarked upon a concerted cam- paign of illegal interrogation of Respondent's employees as to their and the Union's activities on or before May 10, and on May 11 and thereafter, in concert they continued a campaign of fear, intimidation, and coercion of the employees in order to force them to withdraw from or abandon the Union. The conversations of Respondent's supervisors with the employees on and after May 10, were not 30 Subsequently on May 31, Price joined the Union and on June 2 went on strike. KARD-TV 249 mere "isolated incidents" as contended by the Respondent but instead constituted a concerted drive or campaign headed and directed by Moyer "to stop the Union" and "to get rid of its leaders," even as announced to the employees by Renek and Sbarra. This campaign constituted a violation of Section 8(a)(1) of the Act in that it tended to interfere with, restrain, and coerce Respondent's employees into withdrawing from the Union and into abandoning their right to engage in con- certed union activities in violation of the guarantees of Section 7 of the Act. The Trial Examiner so finds. 4. The Strike of June 2 The complaint alleged that certain employees of the Respondent went on strike on June 2, in protest against the unfair labor practices and the discriminatory con- duct 9f the Employer with regard to the said Coker and Neal and was, therefore, an unfair labor practice strike. On the other hand, the Respondent contended that the decision to strike was made at a meeting of the employees on May 31, which, according to Respondent, had been called exclusively for the purpose of receiving a report regarding the Respondent's reaction to the Union's request for bargaining and that it was there determined by the employees to protest the refusal of the Respondent to bargain by going on strike. According to the Respondent, consequently, the strike having been caused by the Respondent's refusal to bargain constituted an economic, and not an unfair labor practice, strike because there was no allegation in the com- plaint charging the Respondent with a refusal to bargain and at the hearing the General Counsel had specifically disclaimed any contention that the strike was to be considered an unfair labor practice strike because of any such refusal to bargain by the Respondent. It is true as the Respondent claims in its brief that the meeting of May 31, was primarily called for the purpose of making a request upon the Respondent that it bargain with the Union and to determine what course of action the employees should take if that request were refused. However, contrary to the Respondent's brief, it is also true that at the May 31 meeting the employees present did in fact include, among their other reasons for striking, the discriminatory discharges of Coker and Neal as well as their own fear as to "whose head would roll next." Furthermore, contrary to Respondent's contention, bargaining includes much more than merely negotiating a contract. It also includes an attempt to remedy past grievances such as the discriminatory discharges of Coker and Neal. The above finding is confirmed by the fact that on the first day of picketing, June 2, Coker and Neal wore picket signs bearing the inscription "KARD fired me because of union activities" and among the five other picket signs worn indis- criminately by striking employees throughout the strike were two reading as fol- lows: "Employees of KARD-TV protest the action of KARD-TV in discharging its employees for participating in union activities." The remaining three signs protested actions of the Respondent more applicable to a refusal-to-bargain con- tention. In addition the printed card headed "We are on strike because:" which the pickets handed to members of the public who asked what caused the strike read in part as follows: The majority of the employees of the Production Department of KARD-TV designated the IATSE as their bargaining agent. These employees so notified William J. Moyer, general manager of KARD-TV on May 11, 1956. Within 2 hours after KARD-TV had been so notified, it fired two of its employees who had designated the IATSE as their bargaining agent. The employees in the Production Department of KARD-TV are on strike in protest of the unfair labor practices committed by the officers of KARD- TV. The bargaining agent of these employees has endeavored to meet with the general manager of KARD-TV to discuss these matters and to negotiate a contract concerning wages, hours and conditions of employment of the Pro- duction employees of KARD-TV. The general manager of KARD-TV refuses to meet with the bargaining agent of the Production employees. We appeal to you, as members of the public, to use your influence with the officers of KARD-TV to change their attitude towards its employees and reinstate the two fired employees and to commence bargaining with our Union. [Emphasis supplied.] It is clear from the discussions at the meeting of May 31, the picket signs and the printed notice that the strikers went on strike in protest against the discrimina- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory discharges of Coker and Neal, the Respondent's unfair labor practices towards its employees and the Respondent's refusal to bargain. The Respondent's brief contended: "There is no evidence that the Company committed any acts of retribution during the period May 12, 1956, to June 2, 1956, against any of the employees who had indicated affiliation with the Union on May 11, 1956, letter." This claim is not accurate. The undenied evidence proves that on or about May 25, the Respondent through Renek told employee Hippen that,. if he continued his interest in the Union, he would be discharged. Although Price technically does not qualify under the above-quoted contention of the Respondent because he had not indicated his affiliation with the Union in the May 11 letter, and in fact, had not even been an employee at that time, on or about May 15 or 16, Moyer interrogated Price as to whether he was for or against the Union. Thus it is clear that, contrary to the Respondent's claim, the Respondent in fact continued its campaign of interference, restraint, and coercion throughout the whole period to June 2. It is well settled Board and court law that where there are several causes for a strike, some of which are economic and some of which are unfair labor prac- tices, the strike is an unfair labor practice strike.31 So here where the strike was caused, at least, in part by the Respondent's unfair and discriminatory practice in discharging Coker and Neal and by its long continued campaign of illegal inter- ference and coercion, the strike is an unfair labor practice strike. The under- signed so finds. Under well-established law, unfair labor practice strikers are entitled to rein- statement to their former or substantially equivalent positions upon making an unconditional request therefor. Such unconditional requests for reinstatement were made on July 16, 1956, on behalf of employees Carter, Cole, Daley, Dalton, Goulart, Hansen, Hippen, Krkosska, McCabe, Jack McElrath, Bo McElrath, McOsker, Menefee, Millar, Parsons, and Smoot as well as for Virginia Lee Martin. Further unconditional requests for reinstatement were made by Millar on Decem- ber 13, McCabe and McOsker on December 27, and by Smoot on December 30. As had happened in the past, Respondent chose to ignore all such requests and thus refused the same. The evidence here also justifies a finding that the Respondent discharged all the strikers on June 2 for their failure to report to work and to cross the estab- lished picket line. At 9 o'clock on June 2, Edwards told Hansen over the tele- phone "Mr. Moyer said that anyone who did not cross the picket line, their employment would be terminated-" That same day Edwards also told McElrath "from what I have heard, Mr. Moyer doesn't like unions and if you don't come back to work, it may be expensive for you . salary-wise." Respondent also instructed his office manager to inform anyone inquiring about any of the strikers that such individual "was not working there any more" or "had not worked for the Respondent since June 1." Respondent also complied with the statute of the State of Kansas requiring payment of wages to discharged employees within 10 days of the date of their discharge by sending special payroll checks on June 7 or 8 to all strikers in payment for their 1 day of work, June 1, subsequent to the last regular payroll. Furthermore, Respondent began employing new person- nel on a permanent basis beginning on June 2, the day the strike began. Dis- charging an employee for engaging in a concerted union activity such as a strike is a violation of Section 8(a)(3) of the Act. That this was, in fact, the reason for the discharge of the strikers is corrobo- rated by the discharge of Virginia Lee Martin who was discharged by Moyer upon her return from a prearranged and a preagreed upon vacation on June 17, because, in Moyer's words, "I don't consider you were loyal and you were a union sympathizer." Thus the Trial Examiner must find that Respondent violated Section 8(a)(1) and (3) by refusing to reinstate those unfair labor practice strikers listed in Appendix A attached hereto upon their unconditional request therefor made on July 16, 1956. 5. Defense of violence and strike misconduct Having heretofore found, contrary to the Respondent's first lines of defense, that the Respondent did commit unfair labor practices by discharging Coker and Neal and by interfering with, restraining, and coercing its employees for the purpose of causing them to withdraw from or abandon the Union and their activities on its behalf, we now reach Respondent's last line of defense, to wit: ffi Spitzer Motor Sales, Inc., 102 NLRB 437, 452, enfd. 211 F. 2d 235 (C. A. 2) ; Winter Garden Citrus Products Cooperative, 114 NLRB 1048, enfd . 238 F. 2d 128 (C.A. 5). KARD-TV 251 Respondent was justified in refusing reinstatement to all the strikers, including Coker and Neal, because of acts of violence and serious strike misconduct occur- ring during the period of the strike in which striking employees either participated, abetted, or sympathized. As this is a purely defensive issue, having no materiality on the question as to whether the Respondent did in fact commit the unfair labor practices charged where the General Counsel bears the burden of proof, on this issue of violence and strike misconduct sufficient to relieve Respondent of the necessity of rein- stating unfair labor practice strikers and discriminatees, the Respondent must bear the burden of proof and of going forward at least to the point of proving that it had a bona fide belief that the strikers were guilty of misconduct of suffi- cient magnitude as to make the strikers unfit for employment. In attempting to fulfill this burden, the Respondent introduced a great volume of testimony to the effect that during the period of the strike from June 2 to July 16, some, but not all, identified strikers had committed the following acts in general which Respondent maintained constituted "violence and strike misconduct": (1) As many as three, four, or five pickets had walked abreast on the 12-foot wide sidewalk in front of the Respondent's studio, thereby, according to the Respondent's theory, committing serious strike misconduct by interfering with pedestrian traffic in front of the Respondent's building. (2) Two women pickets, Krkosska and Menefee, walked the picket line in front of the Respondent's studio for 11/2 hours on 1 day carrying large old-fashioned men's umbrella (perhaps better described by the word "bumbershoots") thereby, according to the Respondent's theory, committing serious strike misconduct by interfering with pedestrian traffic in front of the Respondent's studio, by prevent- ing others on the street or sidewalk from reading advertising material painted on the approximately 50-foot expanse of windows of the Respondent's building facing upon the street, and by reason of the hazard allegedly created of physical damage to passing pedestrians from the ribs of said bumbershoots. (3) Numerous strikers parked their automobiles by the curb in front of the Respondent's studio and remained parked at that point throughout the day by putting nickels into the public parking meters every hour, thereby, according to the Respondent's theory, committing serious strike misconduct by incommoding pedestrian traffic on those occasions when the automobile doors next to the curb happened to be open and also by forcing motorists seeking speedy entrance to the Respondent's offices to seek parking places other than those directly in front of the studio thereby interfering with Respondent's business. (4) On occasion two or three strikers were to be seen standing in the 2-foot- wide recess beyond the sidewalk proper in front of the 9-foot-wide set of doors leading into the Respondent's offices at the studio, thereby, according to the Re- spondent's theory, committing serious strike misconduct by interfering with those desiring to enter or leave by the Respondent's front entrance. Respondent made no claim that ingress or egress was ever blocked. On only two occasions was it claimed that physical contact occurred between the strikers and any other person. On one of these occasions strikers Millar and McOsker appeared to be standing on the sidewalk near the front doors when Sbarra and Moyer left the studio by the front door. Sbarra passed the pickets without physical contact, but Moyer chose to shove his way between the two pickets nearly knocking Millar off his feet. This incident constitutes the only occasion in this record of deliberate physi- cal contact during the whole period of the picketing. In the other episode shoulders were brushed. (5) On two occasions Coker, while leaning against one of the parking meters in the vicinity of the front door, spat in the direction of an employee leaving the front door of the studio and about to enter upon the sidewalk. This, according to the Respondent's theory, constituted serious strike misconduct but at least one of the nonstriking employees involved considered it amusing. The closest the spittle was estimated to have come to the departing employee was as much as 3 or 4 feet. (6) Strikers Price and Coker were said to have told certain nonstriking em- ployees, that they, the nonstriking employees, would lose their jobs at the studio after the strikers got back in. According to the Respondent's theory, this was also serious strike misconduct. However, it appears that both Price and Coker were correctly stating the law as to the reinstatement of unfair labor practice strikers. (7) On one occasion Coker was heard to yell "Hey" in the public alley a few feet away from the Respondent's open rear studio door which faced out upon a public alley. This, according to the Respondent's theory, was serious strike mis- conduct inasmuch as the noise might have been picked up by the Respondent's 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD studio microphones and broadcast, thus interfering with the Respondent' s business. The Respondent applied this same theory to striker McCabe who allegedly either whistled shrilly or blew a shrill whistle in this same public alley near the Re- spondent's open rear door. Both Coker and McCabe denied the testimony. (8) Respondent produced the testimony of James R. Davis, a nonstriking em- ployee, that sometime during the strike, striker Goulard asked him how his gar- den was growing and told him to enjoy it while he could. Nothing untoward happened to either Davis or the garden. What theory the Respondent had re- garding the making of this enigmatic remark is unknown except that the episode was cited as violence and strike misconduct. Davis further testified that Coker applied the term "s-o-b" to him on one occasion during the strike when Coker was relating to Davis an appraisal of Davis which he, Coker, had received from two other persons, one of whom was a college professor. On still another occa- sion Davis testified that he heard some unidentified person say the word "slut" as one Michelle Fauvret, a television personality at KARD, entered the studio. Fauvret, who was still employed by KARD, did not testify-nor was she unavail- able. (9) One day during the strike Edward Watson, then farm editor and camera- man at KARD testified that about noon as he was crossing the intersection of Douglas and Broadway Streets in Wichita, reputedly the busiest street intersection in the State of Kansas, about a block and a half from the studio while carrying a camera with the letters KARD-TV on it, he was bumped slightly by striker Goulart who was crossing the intersection at the same time. The evidence shows that Goulart and Watson were not even acquainted. (10) Certain of the strikers failed to return their company uniforms in time for the uniforms to be placed in the weekly laundry which was regularly picked up at the station on Tuesdays. One such uniform, valued new at $5 apparently was never returned. According to the Respondent's theory, this constituted seri- ous strike misconduct as it discommoded Respondent's regular business practice. (11) According to the Respondent's evidence there were more automobile motors revved up, more automobile doors closed in the public parking areas which abound near the studio, more automobiles driven through the public alley and more sounds like firecrackers exploding in the public alley on which the Respondent's opened rear door faced than occurred prior to or following this strike. On one occasion an unidentified auto with a tin can or some other metal object attached and banging on the public alley went past the studio rear door making con- siderable noise. According to the Respondent's theory, this constituted serious strike misconduct because it interfered with the Respondent's conduct of its busi- ness as the noise might have been picked up by the microphones and broadcast. Of course the Respondent could have closed its rear door but, due to the hot weather and the lack of air conditioning in the studio, that would have been in- convenient for the nonstriking employees. (12) The Union began the strike on June 2, which coincided with what was known as "rating week" in Wichita when a national organization polls the TV watching public to ascertain the comparative listening and watching appeal of the various programs being broadcast. This, according to the Respondent's the- ory, constituted serious strike misconduct because it could have interfered with the Respondent's ability to sell advertising time to local and national adver- tisers because the higher the rating of the program the more attractive and the easier it is to sell the advertising spot. As a matter of fact this rating week resulted in a substantial rise in the Respondent's ratings. This, in general and in brief, constituted the type of evidence produced by the Respondent involving identified individual strikers (except in the case of para- graph 11 above where there was no identification of strikers allegedly involved). The Trial Examiner does not believe, even accepting the Respondent' s testi- mony at face value and disregarding the denials made by the individual strikers, that the above conduct constitutes violence and/or serious strike misconduct suffi- cient to prove even the identified individual strikers unfit for reinstatement. The local police never interfered. The strikers were using public property for the purposes for which it was intended. The dangers inherent in the bumbershoots were identical to that whenever or wherever women pedestrians are walking in the rain or shading themselves from the sun. The interference with the Respond- ent's business was that customarily attending upon any strike. And while the Trial Examiner does not approve of spitting, the only violence which occurred during the whole strike was that when Moyer chose to shove his way between 2 pickets-although Sbarra had found that procedure unnecessary. . In addition, the Trial Examiner must consider an offer of proof on "violence and serious strike misconduct" made by the Respondent, because the Respondent's KARD-TV 253 evidence shows that the Respondent considered these matters in refusing reinstate- ment to the entire group of strikers. This offer of proof referred to certain other events or happenings where the parties or forces responsible for damage done during the period of the strike were unknown and unidentified. The Respond- ent's theory was that, as these all happened with one exception during the period of the strike, had not happened before and did not happen thereafter, the strikers must be held responsible therefor. Admittedly the Respondent had no proof connecting any of these events to either individual strikers, the group of strikers or the Union. Because of this failure of proof the Trial Examiner refused to admit the proffered testimony. Respondent's offer in brief indicated that, during the period of the strike the following occurred: (1) Scratches were discovered on two or three automobiles owned by employees of KARD and parked in public parking lots back of the studio. (2) Four tires on an automobile operated by Michelle Fauvret, the TV person- ality at KARD, blew out a few minutes after she had left her parking place be- hind the studio, from having been slashed, according to the Respondent's theory, during the 2 or 3 minutes she had been inside the studio. (3) After having been driven some distance from the studio the radiator hose on one car broke, according to the Respondent's theory, from having been slashed. (4) The taillight assembly on one automobile was discovered to have been in- jured. (5) One automobile burned up at the transmitter station.32 (6) Anonymous telephone calls to Fauvret. (7) Exhaust fumes from automobiles drifted into the studio through the open rear door. (8) A merchant from Wichita conceled his TV advertising over KARD after members of the Union threatened not to patronize his store. Another merchant refused to appear on a KARD program after having been seen talking to pickets. (9) On June 2, Respondent's microwave dishes, weighing about 1,300 pounds, atop the Orpheum Theater Building close by Respondent's studio through which the Respondent's programs were transmitted from the downtown studio to the out-of-town transmitter, shifted 4 or 5 inches in direction, thus weakening the transmitted signal. Admittedly the force or persons responsible for this movement were not and could not be identified. Respondent attributed responsibility to the Union and the strikers solely because it happened during the strike period. However, in the latter part of August some unknown and unidentified individual appeared on the roof of the Orpheum Theater, got himself knocked down in physical combat with the Respondent's guard on duty there, but was allowed to disappear again still unidentified. Although this event occurred long after the strike had ended and the strikers had applied for reinstatement, the Respondent still blamed the Union and the strikers upon the dual assumption that this soli- tary individual intended to shift the 1,300 pounds of microwave dishes and that only the former strikers would have reason to try to interfere with the Respond- ent's business. Respondent's position in regard to the reinstatement of the strikers was set forth during a conference held by the Respondent's officers about July 18, which Daniel Moyer described as follows: THE WITNESS: What [George Brown] did say. "Well, Dan, now we believe that this whole course of conduct here that everybody is in it in some way or another and I want to know from you whether in the case like where we were talking about one person-perhaps we only had two acts of what we could call misconduct against-whether we can refuse to rehire that person in connection with the activities which we believed the whole group were engaged in." And I told Mr. Brown that it was my judgment that he could and we reviewed in that connection the-what effect the nature of these acts of violence and misconduct in relation to a television broadcasting business. TRIAL EXAMINER: Let me see if I understand your testimony to date on this. You advised Mr. Brown that these acts of misconduct could be charged against the group, is that right? THE WITNESS: That's correct. That is, up to that point. I go further than that. * * * * * * * 821n this case the General Counsel offered to prove that the insurance company and the police determined the cause of the fire to have been defective wiring. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE WITNESS: I did state that as my conclusion. The reasons for my con- clusions are more extensive. THE WITNESS: As I said, we reviewed the whole course of conduct that had taken place from June [2] up until July 16 in the attempt to base-to arrive at some reasonable basis for this. I mean the question was asked, well, how can we-let me see if I can pick somebody out here. I think Marilyn Menefee was one we discussed quite lengthy. * * * * * * * THE WITNESS: I believe that up to that time we all three of us knew about this umbrella matter and we tried to analyze the umbrella incident and I had been very much disturbed with the umbrella incident because I am a short man and my eyes are very important to me and my business and I know that I was afraid to walk by those umbrellas for fear either by intention or by accident I might have my glasses knocked off and my eyes hit and Mr. Brown- * * * * * * * THE WITNESS: That's right, I am testifying as to what I said on the um- brella deal. Mr. Brown said, "Let's take Menefee," and I think that the only thing we charged her with is parading abreast with this umbrella deal and he said, "Dan, do you think this is important?" and I told him how I felt about the thing and how it affected me and he could see my point of view and he said, "Well, I don't look at it as seriously as you do, I can see where it might be a hazard but I dont feel that strongly, but," he said, "Supposing that is all we had against her in parading abreast." Well, I said, "George, you know what we have been through here," referring to all the things that we were engaged with during this period of picketing. I said, "Marilyn has been out there on the picket line and she did engage [in picketing] with these umbrellas and we have seen her with the group, in groups talking around with them and she has been, we have seen her all during this time having conversations with her and so forth," I said, "Don't you think that she knew all about these acts that we consider very seriously," and he says, "Well, there is no question in my mind that all of them knew about these things and that they have been in sympathy with this course of conduct and have encouraged it." "Well," I said, "I believe that the law would allow us to refuse to reinstate Marilyn for that reason, for the reason considering the type of operation that we have here." And we talked then about what pos- sibly could result from a reinstatement of Marilyn with respect to the opera- tion or our business. And then we discussed the power of any one indi- vidual who might have tendencies toward violence or serious misconduct to commit severe damage on our operation. That is, on the broadcasting opera- tion, our ability to telecast. And as a result of that discussion Mr. Brown concluded, stated that he believed that we were taking a proper position by refusing to reinstate anyone. And as a-W. J. Moyer and myself agreed to that position. Thus, by the Respondent's reasoning, it was justified in refusing reinstatement to a striker regardless of whether that striker had actually participated in an act of violence personally because some acts of violence affecting the employer's business had occurred during the strike period, even though that act had been committed by persons or forces unknown and unidentified. Respondent's theory is based not upon the individual striker's aiding, abetting, or participating in acts which the Respondent called violence and strike misconduct but upon the Re- spondent's belief that the individual strikers "knew of, encouraged or sympathized with" any and all such acts as occurred during the strike period. This theory violates a number of fundamental principles of American law, of agency and personal responsibility. It goes further than any Board or court decision on the .question which this Trial Examiner has been able to locate. In fact, the Re- spondent cited no authority for its position. If the Respondent's colorful theory .is accepted, it would make every striker, in effect, an insurer against the acts not only of his union, his fellow strikers, third persons in general, but even of agents provocateurs. Obviously this is not good law. i Based upon this theory Respondent claims to have had a bona fide belief that all of the strikers were guilty of such serious violence and strike misconduct as to justify it in refusing each of them reinstatement. However, such a belief without a reasonable and legitimate basis hardly qualifies as being ' bona fide. The acts legitimately attributable to identified strikers do not justify a belief that BARD-TV 255 such individuals had the propensity to violence and misconduct as claimed by the Respondent. Such alleged characteristics had never been displayed during the period the strikers had been employed by KARD. Furthermore, the bona fides of this alleged belief become even more questionable when one considers the fact that the Respondent even refused reinstatement to employees whom it knew had never so much as engaged in picketing . Also the evidence referred to heretofore tending to show that the Respondent considered the strikers to have been discharged as of the first day of the strike and, therefore, prior to the com- mission of any of the acts of so-called violence and strike misconduct, lead to the conclusion that the Respondent never intended to reinstate any of the strikers and that the violence and strike misconduct theory was presented solely in order to achieve the Respondent's intended result, i.e., the elimination of all union adherents and sympathizers from employment even as it had done in the case of Virginia Lee Martin. Thus, without the necessity of resolving the numerous conflicts of testimony created by the denials of the strikers that they had engaged in the conduct at- tributed to them by the Respondent, and taking the Respondent's testimony at face value, the Trial Examiner must hold that the actions referred to by the Respondent do not constitute violence and strike misconduct and further that, even if they are so considered, they are not of sufficient gravity to justify the Respondent in refusing reinstatement of the identified participants therein and, therefore, much less those other strikers who had not participated. 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-ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Gordon C. Coker and Frank Neal by discharging them on May 11, 1956, the Trial Examiner will recommend that the Respondent offer to each of them immediate and full reinstatement to his former , or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of said discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Com- pany, 90 NLRB 289. It having also been found that the strike of June 2, 1956 , was caused by Re- spondent's unfair labor practices and that on July 16, 1956, Respondent refused reinstatement to those unfair labor practice strikers listed in Appendix A attached hereto after their unconditional request for reinstatement , the Trial Examiner will recommend that the Respondent offer reinstatement and reimbursement to each of said strikers in the manner and in the amount as set forth in the preced- ing paragraph. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of oppo- sition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act , thereby minimizing indus- trial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Alliance of Theatrical State Employees & Moving Picture Ma- chine Operators of the U.S. & Canada, Motion Picture Projectionists, Local No. 414, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discharging Gordon C. Coker and Frank Neal on May 11 , 1956, and by refusing to reinstate the unfair labor practice strikers listed in Appendix A attached hereto on July 16, 1956, thereby discriminating in regard to their hire and tenure of employment and thus discouraging membership in International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the U.S. & Canada, Motion Picture Projectionists , Local No. 414, AFL-CIO, the `Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. - 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meanmg of Section 8(a)(1) of the Act. - 4. 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 omitted from publication.] Emil A. Myrmo and Arthur Myrmo, Partners d/b/a Geo. Myrmo & Sons and Leonard A. Drake and Henry Goodman, Jr. Cases Nos. 36-CA-822 and 36-CA-824. December 2, 1958 DECISION AND ORDER On July 16, 1958, Trial Examiner Herman Marx 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 it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- -mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 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 Emil A. Myrmo and Arthur Myrmo, partners d/b/a Geo. Myrmo & Sons, Eugene, Oregon, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership of their employees in International Association of Machinists, Lodge 1311, AFL-CIO, or in any other -labor organization, by discriminatorily failing or refusing to employ :any employee or applicant for employment, or in any other manner 122 NLRB No. 40.