American Federation of Television and Radio Artists

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The following employees of the Employer, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act All production and maintenance employees of the Employer at its Riverside, New Jersey, plant, excluding all office clerical employees, plant clerical employees, salaried employees, watchmen, guards, and supervisors as defined in the Act [Text of Direction of Election omitted from publication ] CHAIRMAN LEmoaz took no part in the consideration of the above Decision and Direction of Election American Federation of Television and Radio Artists, AFL-CIO and L. B. Wilson, Inc. (Radio Station WCKY) Cincinnati Local, American Federation of Television and Radio Artists, AFL-CIO and L. B. Wilson, Inc. (Radio Station WCKY). Cases Nos 9-CC-131 and 9-CC-132 December 17, 1959 DECISION AND ORDER On August 28, 1958, Trial Examiner Charles L Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in and were not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report, the General Counsel, the Charging Party, and the Respondents also filed 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 only the findings of the Trial Examiner, but not his conclusions or recommendations Introductory statement of facts: The record shows, and the Trial Examiner found, that the significant evidentiary facts are as follows In the summer of 1957 the Respondents, dissatisfied with the results of their contract negotiations with radio station WCKY, proceeded to authorize a strike of WCKY's 11 staff announcers, and to appeal for support to the advertising agencies and sponsors who 125 NLRB No 85 AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 787 were WCKY's customers.' In addition to these activities, however, the Local's executive secretary induced Freelance Artist Sheppard to refuse to continue making tapes of the music program he was con- ducting for Sixty-Second Shops at the sites of the latter's restaurants, for use over WCKY; and he also discussed with other local freelance artists (Brengel 2 and Palmer) the problem of transcriptions being broadcast over WCKY. At a meeting of the Local on September 17, 1957, Thornburgh, operator of the advertising agency (Ad Frontiers) handling the Sixty-Second Shops' account, complained of the loss of revenue occasioned by the Local's action; and both the ensuing dis- cussion, and the passage of an express resolution that no member was to work "at or through" WCKY, made the Local's position clear to its members that transcriptions were not to be made for use over WCKY. In the latter part of October 1957, the National sent an order to all its 12,000-odd members requiring them to have the producer of each transcription fill out a report or questionnaire stating whether or not the transcription was intended for use on WCKY. The order explained that the purpose of the questionnaire was to compile accu- rate information on the supply of transcriptions to "unfair WCKY." And it further directed that if a producer refused to fill out the ques- tionnaire, the matter should be referred to the appropriate local. Thereafter, on October 29, the Local sent a letter to all its members, stating in part that the National had ordered them not to make any transcription without procuring a written statement from the producer that the transcription would not be used on "unfair WCKY." The National learned of this letter within a month. However, it was not until January 1958, after issuance of the complaint in this case and the commencement of an injunction proceeding against the Respond- ents under Section 10 (1) of the Act, that the Local attempted to advise its Local's membership that the letter was in error. The Trial Examiner concluded that despite these facts no unfair labor practice finding was warranted. We do not agree with this conclusion. 1. As to the incident involving the National's order to its members, which obligated them to have the questionnaire filled out by the producer of each transcription the member made and which designated WCKY as "unfair," we find that the purpose of the order was not merely to compile information, as the National asserted. Instead we find that it clearly intended to constitute a signal or invitation to the 12,000 members to refuse to make transcriptions intended for use over 1 WCKY's business is to sell "time" to advertisers for broadcasting their "commercials," a substantial part of which are taped ( transcribed or recorded ) in advance by non- employees of WCKY. 2 Brengel subsequently refused the request of another employer to make a transcription until assured that it would not be used over WCKY. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WCKY. In this connection, we find, contrary to the Trial Examiner, that the National's order should be interpreted, as it was clearly inter- preted by the Local, as advising its members not to make a transcrip- tion for any employer without prior assurance that the transcription would not be used over WCKY. (This original interpretation by the Local is discussed below.) It is well settled that the unlawfulness of this order does not depend on its lack of specificity, as the Trial Examiner seems to have believed, or on its alleged ineffectiveness. It is equally well established that Section 8 (b) (4) (A) prohibits inducement or encouragement of strike action if addressed to em- ployees of employers other than the primary employer, WCKY in this case. We are satisfied that the National's order was addressed to such employees. Thus, the record in this case establishes that em- ployers desirious of making transcriptions are limited to a pool of artists or performers who are members of the Respondents. The Na- tional in effect admitted that such performers are employees of pro- ducers and not independent contractors, for the standard form of agreement or "Transcription Code," prepared by the National for execution with firms making transcriptions for the broadcasting in- dustry, expressly states that the bargaining unit consists of available performers on a national basis, and that the National represents a majority of such performers and is therefore their exclusive collective- bargaining agent. The code further provides for a conventional union shop until and unless the corresponding provisions of the Act are re- pealed or amended to permit a "stricter" union-shop clause, in which event the code provision was to be deemed amended accordingly. In addition, paragraph numbered 21 of article IV specifically states that social security and withholding taxes should be deducted from the payments to all performers covered by the code, "regardless of whether they are part-time or full-time, staff or free-lance employees." These provisions are wholly inconsistent with any notion that the workers covered are not employees, but are independent contractors. In these circumstances we find that the National's members are em- ployees within the meaning of Section 8(b) (4) (A) of the Act, even though they were not employed at the moment by any specific em- ployer. Their status is determined by the nature of the relationship, practice, or arrangement with such employers as might require their services, and is not controlled exclusively by any immediate or con- tinuing employer-employee nexus. We do not view as important the fact that the employers in this case sought to fill their needs for artists by directly dealing with the particular artist desired rather than ad- dressing a request to the National or its Local. Nor do we consider it material that the needs of such employers may have been relatively infrequent. The controlling consideration, in our view, is that the National's members in essence formed virtually the exclusive source AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 789 of employees available to employers who produced transcriptions; and the National, by a continuing appeal to its members, encouraged them not to do such work when the transcriptions were intended for use over WCKY. We think this is the very type of so-called secondary boycott which the Congress intended to prohibit .3 For the foregoing reasons, we find and conclude, contrary to the Trial Examiner, that the National has engaged and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act.4 2. We likewise conclude, contrary to the Trial Examiner, that the Local violated Section 8 (b) (4) (A) by the incidents discussed below. (a) With respect to the incident involving Sheppard, the Trial Examiner concluded that in making daily transcriptions for Sixty- Second Shops to be broadcast over WCKY, Sheppard was an in- dependent contractor and not an employee. It was not contended, however, that Sheppard was an independent contractor rather than an employee while conducting a similar type of musical program for WCKY-a weekly rock-and-roll show. Indeed, the Local had per- mitted Sheppard to vote in the WCKY election as a WCKY employee because of this employment. The evidence shows that Sheppard had a similar relationship with Sixty-Second Shops : He was on a periodic salary, and to a substantial extent determined his working sched- ule and itinerary in consultation with either Sixty-Second Shops or its advertising agency. Moreover, as a union member, Sheppard was part of the "pool" or exclusive source of employees available to the producers of transcriptions ; and under our holding, supra, he was therefore an employee within the meaning of Section 8 (b) (4) (A) of the Act regardless of his immediate relationship to Sixty-Second Shops. Accordingly, we do not agree with the Trial Examiner's conclusion that Sheppard was an independent contractor and not an employee. The Trial Examiner further concluded that even if Sheppard was an employee, the Local's inducement or encouragement was of but this single employee, and was therefore not a violation. However, the record shows that the Local discussed this inducement or encour- agement with many other similarly situated employee-members (par- ticularly Brengel, and also Palmer, Carlon, and others. Moreover, the evidence viewed as a whole establishes that the Local, following 8 Charleston Stevedoring Company, et at., 118 NLRB 920, 925; United Marine Division, Local 333, International Longshoremen's Association (Independent ); at at. ( New York Shipping Association ), 107 NLRB 686 , 708, 709. See American Broadcasting Company, Inc., et at., 96 NLRB 815 , where, in an analogous situation , the Board found that the pool of employees available to employers operating network television chains constituted an ap- propriate collective-bargaining unit, and that eligibility to vote in that unit was established by employment on as few as two programs in a 10 -month period. We accordingly find it unnecessary to decide whether the National is also liable for the Local's violations of the same section of the Act. 535828-60-vol. 125-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National's lead, made no effort to urge its members not to carry over their employer and customer boycott of WCKY to their other role as secondary employees. On the contrary, the Local's discussion of Sheppard's case with various other secondary employees, and the other actions set forth below, made it clear that the Local was en- couraging such employees concertedly to refuse to make transcriptions, whenever the transcriptions were to be used over WCKY.S (b) With respect to the incident involving the resolution, the Trial Examiner concluded that by ordering its members not to work through the facilities of WCKY, the Local referred only to transcrip- tions to be used as part of a "live" broadcast and thus the equivalent of working at WCKY. However, that conclusion is contrary to the express language of the resolution, which prohibited work not only at but also through WCKY. Moreover, we note that Conaway, the executive secretary of the Local's parent organization, admitted that the Respondents' concern was with transcriptions to be played through the facilities of WCKY, regardless of the nature of the rest of the program. Accordingly, we cannot agree with the Trial Ex- aminer's conclusion that the resolution did not prohibit the Local's members from making transcriptions for use over WCKY. (c) With respect to the incident involving the October 29 letter, in which the Local advised its members that by order of the National they were not to make transcriptions without first being assured in writing by the producer of the transcription that it would not be used on "unfair WCKY," the Trial Examiner concluded that the Local thereby committed a violation but that it was only a single unintentional and ineffective violation and was therefore merely "technical," and in any event was nullified a few days later by the National's order (discussed above in section 1). The Trial Examiner further concluded that the Local's subsequent disavowal by letter 2 months later served the formalities of effectively remedying the viola- tion, and for that reason it would not effectuate the policies and pur- poses of the Act to make an unfair labor practice finding. We do not agree. Copies of the October 29 letter were sent to all members, and can hardly be termed a single lone violation. Moreover, the Act does not exempt an unintentional violation, even if we were to accept the Trial Examiner's inference that it was unintentional. In addition, it is well established that the ineffectiveness or the brevity of a viola- tion is no defense. Finally, we have found, contrary to the Trial Examiner, that the National's order was itself unlawful, and there- fore it could not nullify the Local's violation. As for the Trial Ex- aminer's further conclusion that the Local's disavowal effectively remedied the violation, we note that the disavowal was not made 5 Amalgamated Meat Cutters, and Butcher Workmen of North America, AFL, Local No. 88 (Swift and Company), 113 NLRB 275, footnote 7. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 791 until after issuance of the complaint herein, and was a disingenuous maneuver to forestall an unfair labor practice finding rather than a genuine effort to remedy the violation, as the Trial Examiner seems to have inferred. Accordingly, we find ourselves unable to agree with the Trial Examiner's conclusion that no unfair labor practice finding should be based on the letter. For the foregoing reasons, we find and conclude, contrary to the Trial Examiner, that the Local has engaged and is engaging in un- fair labor practices within the meaning of Section 8(b) (4) (A) of the Act. 3. To effectuate the policies of the Act, we shall order the Re- spondent not only to cease and desist from the violations found, but also to revoke and cease enforcing all instructions, requests, and appeals to employees of any employer other than L. B. Wilson, Inc. (Radio Station WCKY), to refuse to make transcriptions for use over WCKY, and to post appropriate notices. ORDER Upon the basis of the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, American Fed- eration of Television and Radio Artists, AFL-CIO, and its Cincin- nati Local, and their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging the employees of any employer other than L. B. Wilson, Inc. (Radio Station WCKY), to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any good, articles, materials, or com- modities, or to perform any services, where an object thereof is forc- ing or requiring any employer or other person to cease doing business with L. B. Wilson, Inc. (Radio Station WCKY). 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Forthwith notify all their members that they are revoking any prior instruction, request, or appeal to stop making transcriptions, tapes, or recordings for employers other than Radio Station WCKY unless the transcriptions, tapes, or recordings are not intended for use over radio station WCKY, and that they will not visit any re- prisals or impose penalties upon such members for making any such transcriptions, tapes, or recordings. Such notice shall be in addition to that conveyed by the posting of the notice specified in paragraph (b) below. (b) Post at all offices and places where notices to members are customarily posted, copies of the notice attached hereto marked "Ap- 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendix." 6 Copies of said notice, to be furnished by the Regional Di- rector for the Ninth Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof and main- tained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER BEAN, dissenting : Unlike my colleagues of the majority, I cannot say that the Trial Examiner was wrong in refusing, on the record in this case, to find a violation. In my opinion the evidence before us does not disprove the Trial Examiner's basic finding that the freelance artists here involved offer their services to the transcription industry as independent contractors, and not as employees. The vital distinction between an independent contractor and an employee is a question of fact and often, as here, a close matter of degree. The delineation of the precise borderline is not easy. After considering all the facts looking both ways, the Trial Examiner reached the well-reasoned conclusion that the freelance artists here were independent contractors in their relationship with the producers of transcriptions. Yet the majority reverses him to find a violation, principally because the Respondent National used a form agreement making no distinction between artists who might offer their services as employees and those who were independent contractors, but lumped both groups together as "artists employed or otherwise engaged" in the industry; and also because one freelance artist did some consultation about his working schedules with the person who engaged him, received a periodic income from this person, and sup- plemented it with income as a regular employee of a radio broadcast- ing station. It seems to me that this is not a sufficient basis for re- versing the Trial Examiner's finding of fact, particularly since the majority completely ignores paramount evidence that the producer of a transcription selects the freelance artist not on the sole basis of his competency to do the work, but because the producer wants a cer- tain individual who, with broader discretion than is entrusted to an ordinary employee, and often using his own property rather than that of the producer, would project himself as a "personality" and thus 6In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 793 in his own right command the attention of prospective consumers of the product or services involved. But even assuming that the artists before us are employees rather than independent contractors, I would then see no substantial differ- ence between the mandate of Section 8(a) (5), involved in Page Air- craft Maintenance, Inc., 123 NLRB 159, and the mandate of Section 8(b) (4) (A) here involved. While certain other provisions of the Act protect members of the working class generally, even though they may be unemployed at the time, Section 8(b) (4) (A) was primarily designed to protect employers against involvement of their specific employees in another employer's labor dispute. Similarly, Section 8(a) (5) refers only to employees of a particular employer: that is, to employees who are currently employed, or whose employment has ceased in connection with a current labor dispute with or unfair labor practice by their immediate employer. Both sections thus deal with an existing employer-employee relationship, and do not create rights or duties with respect to unemployed workers generally. In the absence of evidence in either case of an immediate employment rela- tionship, I think the complaint in the present case should receive the same disposition as the one the Board dismissed in the Page case. The Detroit Edison case (123 NLRB 225) supports this view, in my opinion, for the alleged violation there turned on whether or not the particular employer involved had made union members his employees, even though they were not yet on his payroll, by entering into an exclusive hiring-hall contract with the union. Employers DiDuca and Partlan were not parties to any such contract with the union, and the complaint was therefore properly dismissed insofar as they were in- volved. As this dismissal recognized, until an employer takes some action with respect to a labor pool, it cannot be said that the workers in the pool are in any sense his employees, even though there was no other source of workers available to employers DiDuca and Partlan if and when they wanted to enter into an employment re- lationship with such workers. Moreover, I am not satisfied that the Trial Examiner was wrong when he found that the National's order involving the questionnaire was legitimately intended by the Respondents to disclose which em- ployers were in fact doing business with WCKY. Understandably, the Respondents wanted to focus their appeals on such employers rather than follow the expensive blanket approach of appealing to all employers throughout the entire country to withhold their business from one lone radio station, WCKY. The majority ignores the ex- press statement, in the order, that if the producer of a transcription refused to fill out the questionnaire the artist should refer the matter to the appropriate local. This is hardly the language that would be 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used if the artist were supposed to refuse to make the transcription in the first place. As for the Local's violation, the record shows that it orally en- couraged only a single working artist to refuse to make transcriptions. This is no violation, as most members of the majority conceded in Local 450, International Union of Operating Engineers, AFL (In- dustrial Painters and Sandblasters), 117 NLRB 1310. In my view this encouragement does not become unlawful merely because it was the subject of discussion among several other artists. In any event, I am of the view that the Respondents, as part of their lawful strike against WCKY, could properly encourage secondary employees not only to refuse to enter upon WCKY premises in order to make a "live" broadcast,' but could also urge employees to refuse to do what any radio listener would find indistinguishable : broadcast over WCKY by transcription. I do not see how else this legitimate object could be accomplished by the Respondents except by advising their members not to make transcriptions for use over WCKY. For all the foregoing reasons, I would affirm the Trial Examiner and dismiss the complaint in its entirety. P'IE1zBER FANNING, dissenting: I would dismiss this complaint in its entirety. In order to spell out a violation of Section 8 (b) (4) (A) in this case, the recorded facts must establish that (1) the Respondents engaged in acts of inducement; (2) the inducement expended its force on "em- ployees" of secondary employers (advertising agencies, individual sponsors, or producers) to refuse to perform services for those em- ployers "in the course of their employment;" and (3) the object of such inducement was to force the employers to cease doing business with WCKY. I concur in the majority's findings that Respondents' orders and letters to their members, as well as the resolution adopted at the union meeting, constituted inducement in the statutory sense, and that these communications evidenced an object proscribed by the Act. However, I cannot join my colleagues in the majority in their further finding that the Respondents' members who were thus induced were "employees" within the meaning of Section 8 (b) (4) (A). The reason for my disagreement with the finding that Respondents' members are statutory "employees" of secondary employers is basically an evidential one. When the Court of Appeals for the Sixth Circuit in American Federation of Radio and Television Artists, AFL-CIO, et al. v. John C. Getreu 8 (L. B. Wilson, Inc.), affirmed the granting of 7 See the proviso to Section 8 (b) (4) (A) of the Act ; Interborough News Company, 90 NLRB 2135. 8 258 F. 2d 698 (C.A. 6). AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 795 Section 10(l) injunction against the Respondents' conduct here alleged to be unlawful, the court made it clear that evidence of a "continuous employment relationship" was not a necessary prerequi- site to a finding that the Respondents' members stood in a relationship of employment with the secondary employers involved. However, the court also noted that "Whether such relationship [s] existed is a question to be resolved in the first instance by the Board." As I read the court's opinion, resolution of this question must be based upon factual considerations which reasonably tend to show that the parties contemplated an employer-employee relationship based upon evidence of the existence of incidents of such a relationship. In The Detroit Edison Company case,' the Board held that a union's refusal to refer members to a secondary employer constituted induce- ment of "employees" within the intendment of Section 8(b) (4) (A) even though the members were not under an actual contract of hire at the time the refusal occurred. However, that decision was predicated upon a factual showing that the union and the secondary employer had an established arrangement for the employment of members of the union which possessed sufficient characteristics of "certainty and con- tinuity" to warrant the conclusion that the parties had intended to create an employer-employee relationship for all members. This in- tent was manifested by an agreement between the employer and the union pursuant to which the latter undertook to become the exclusive source of supply of workers for that employer. The record disclosed that the employer had employed members of the union; all employees of the employer in the particular skill involved were members of the union; all had been referred by the union for work with the employer pursuant to the agreement between the parties; and no individual could obtain employment with the employer unless he was so re- ferred. The agreement also obligated the employer to make payments into various health, welfare, pension, and vacation funds, the benefits from which were available to all union members regardless of whether they were then employed by this employer. Unlike The Detroit Edison Company case, the record in the case at hand is singularly devoid of evidence of an arrangement between the Respondents and the advertising agencies, individual sponsors, or producers which contemplated any certain or continuing employment relationship between their members and those agencies. There has been no showing that the Respondents were in contractual agreement with any identifiable agency covering terms and conditions of em- ployment for union members, or that the Respondents had any con- tractual agreement or arrangement with those employers under which 9 123 NLRB 225. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they acted as the sole clearing house for jobs in the industry. Nor is there evidence that Respondents' members had ever performed serv- ices for any identifiable advertising agency,10 individual sponsor, or producer, or would be called upon to do so in the future. In fact, it was because of the absence of such a contractual arrangement, with the attendant incidents of an employment relationship, which prompted the Board in The Detroit Edison Company case unani- mously to find that the members whom the union refused to refer to employers DiDuca and Partlan were not "employees" under Section 8(b) (4) (A). The majority in this case holds that the Respondents' members satisfy the statutory definition of "employees" of the advertisers simply because these individuals constitute the only available "pool" of performers in the area whom the advertisers could employ. I would note, however, that the union members involved in The Detroit Edison Company case also constituted the only available "pool" of skilled workers from which DiDuca and Partlan would have been compelled to draw. Nevertheless, the Board in that case refused to find that the occupants of this pool were "employees" absent a showing that the union and these employers had any contractual agreement or arrangement giving rise to any of the normal incidents of an employer- employee relationship. My colleagues in the majority, who partici- pated in the unanimous decision in The Detroit Edison Company, have unaccountably chosen to ignore that decision in this regard. If the majority decision herein is to stand, every union whose mem- bership constitutes the exclusive source of available workers in a given area would be required, on pain of violating Section 8(b) (4) (A), to supply members for work with employers who have never recog- nized or dealt with the union as the bargaining agent for its mem- bers, who have never assumed any of the duties and responsibilities of an employer regarding such members, and to whom the union was under no obligation to furnish men. In my opinion, neither the stat- ute nor the decision in The Detroit Edison Company contemplates this result. Accordingly, because of the absence of evidence indicat- ing a contractual agreement or other arrangement between the parties which contemplated an employer-employee relationship between the Respondents' members and the advertising agencies, et al., I would dismiss this case. 30 The only reported incident of inducement of a member of Respondents who was work- ing at the time concerns Sheppard. Like the Trial Examiner, I am convinced on this record that Sheppard, while he was an employee of WCKY, the primary employer, was not an employee of Sixty-Second Shops but rather occupied the status of an independent con- tractor vis-a-vis that company. I cannot subscribe to the majority's specious reasoning that, because Sheppard was an employee of WCKY, he could not also occupy an inde- pendent contractor's status with respect to Sixty-Second Shops. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 797 APPENDIX NOTICE TO ALL MEMBERS OF AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, AND ITS CINCINNATI LOCAL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT engage in , or induce or encourage the employees of any employer other than L. B. Wilson, Inc. (Radio Station WCKY), to engage in, a strike or' a concerted refusal in the course of their employment to use, manufacture , process, trans- port, or otherwise handle or work on any goods, articles , materials, or commodities, or to perform any services, where an object thereof is forcing or requiring any employer or other person to cease doing business with L. B. Wilson, Inc. (Radio Station WCKY). WE ARE revoking any prior instruction, request, or appeal to stop making transcriptions , tapes, or recordings for employers other than L. B. Wilson, Inc . (Radio Station WCKY), unless the transcriptions, tapes, or recordings are not intended for use over radio station WCKY, and will not visit any reprisals or impose penalties on our members for making any such transcrip- tions, tapes, or recordings. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, Labor Organization. Dated----- ----------- By------------------------------------- (Representative ) (Title) CINCINNATI LOCAL, AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, Labor Organization. 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE A separate charge having been filed on November 6, 1957, against the American Federation of Television and Radio Artists, AFL-CIO ( referred to throughout the testimony at the hearing as AFTRA ), Case No. 9-CC-131, and the Cincinnati (Ohio ) Local of that Union , Case No. 9-CC-132 , by L. B . Wilson, Inc., referred to herein as WCKY radio station , or merely as WCKY (at Cincinnati , Ohio), and said cases having been duly consolidated , the General Counsel of the National Labor Relations Board , by the Regional Director for the Ninth Region (Cincinnati, Ohio), on December 30, 1957, issued the consolidated complaint herein against the said 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Federation of Television and Radio Artists, AFL-CIO, and the Cincinnati Local of that Union, collectively herein called the Respondents, and severally called respectively National (AFTRA) and the Cincinnati Local, or the Local, alleging that the Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (A) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, the order of consolidation, complaint, and notice of hearing and other pertinent processes were duly served upon the appropriate parties.' With respect to the unfair labor practices the complaint alleges: Subparagraph 1(b) that, "at all material times . . . Donald F. Conaway . has been Executive Secretary of National and its agent" and (Subparagraph 1(c)) "Jonas B. Katz . . . has been the Executive Secretary of" the Cincinnati Local and the agent of" both National and the Local; Subparagraph 2(c) that, "Dinerman & Co, Inc., Associated Advertising Agency, Inc., Sixty-Second Shops, Inc., and other advertising agencies and firms doing busi- ness in and around Cincinnati, Ohio, whose names are unknown to the Regional Director, employ radio artists to make commercial transcriptions or recordings for broadcast through the facilities of WCKY which transcriptions or recordings advertise the various products and services of the clients of said agencies and firms"; [Emphasis supplied.] Subparagraph 2(d) that 10 named advertising agencies located in New York, New York, "and other advertising agencies doing business in and around New York, New York whose names are unknown to the Regional Director, employ radio artists to make transcriptions or recordings for broadcast through the facilities of W.C.K.Y. which transcriptions or recordings advertise the various products and services of the clients of said agencies"; [Emphasis supplied.] Subparagraph 2(e) that, "the radio artists referred to in subparagraphs (c) and (d) above, are supervised and directed by the agencies and firms" named in said subparagraphs "and are employees of said agencies and firms as defined in Sections 2(3) and 8(b)(4)(A) of the Act"; Subparagraph 3(a) that, "on or about August 28, 1957 the Respondents author- ized and ratified a strike of W.C.K.Y. employees in support of the Respondents' bargaining demands and have at all times since continued to maintain said strike by said employees"; Subparagraph 3(b) that "in furtherance of" such "strike and demands . . . the Respondents, by and through Conaway and Katz and other agents whose names are unknown to the Regional Director, since on or about September 15, 1957 have requested the agencies and firms named in Paragraph 2(c) and (d) . . to refuse to make any transcriptions or recordings for broadcast through the facilities of W.C.K.Y. or to do business otherwise with W.C.K.Y."; Subparagraph 3(c) that "since on or about August 18, 1957 the Respondents by and through Conaway and Katz and other agents whose names are unknown to the Regional Director, have induced and encouraged the employees of the agencies and firms" previously "named" in subparagraphs 2(c) and 2(d) "to refuse to per- form services in the course of their employment for said agencies and firms in con- nection with any transcription or recording to be broadcast through the facilities of W.C.K.Y. with the object and purpose of forcing and requiring said agencies and firms to cease making any transcriptions or recordings for broadcast through the facilities of W.C.K.Y. or doing business otherwise with W.C.K.Y."; Paragraph 4, that, "By the acts and conduct alleged above [in subparagraphs 3(a), (b), and (c)] and by each of said acts, the Respondents have engaged in and are engaging in unfair labor practices as defined in Section 8(b) (4) (A) of the Act, `affecting commerce' as defined in Section 2(6) and (7) of the Act." On January 9, 1958, the Cincinnati Local filed with the Ninth Regional Office, a motion in the alternative to dismiss the complaint; to strike certain portions of the complaint; and for a bill of particulars, which motion was referred by the Regional Director, for disposition by a Trial Examiner. The motion was assigned, by the Chief Trial Examiner, to Trial Examiner Sidney Lindner for a ruling thereon. In his suggestions in opposition to the motion the General Counsel disavowed that the allegations of paragraph 3(b) that, "since on or about September 15, 1957" Respondents "have requested the agencies and firms named" in the complaint as secondary and neutral employers "to refuse to make any transcriptions . for broadcast" over WCKY, were intended to allege a violation of the Act. That part 1 The term General Counsel as herein used includes the attorney of record representing the General Counsel at the hearing ; the National Labor Relations Board will be referred to herein as the Board. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 799 of the motion which seeks to strike from subparagraph 2(c) the language "and other advertising agencies and firms (other than the three named) doing business in and around Cincinnati, Ohio, whose names are unknown to the Regional Director, employ radio artists to make commercial transcriptions . . . for broadcast" over WCKY, was denied by Trial Examiner Lindner "with the proviso that should the General Counsel learn the names of" such " `other advertising agencies and firms doing business in and around Cincinnati, Ohio' any time prior to the scheduled hearing in the instant matter, such information should be made known forthwith to Counsel for the Respondents." Pursuant to said order of Trial Examiner Lindner, issued on January 21, 1958, the General Counsel on the first day of the hearing herein, January 28, 1958, de- livered to counsel for Respondents a "list" apparently purporting to show the names of the "other advertising agencies," purportedly neutral employers of radio artists employed to make commercial transcriptions for broadcast over WCKY, referred to in both subparagraphs 2(c) and 2(d) of the complaint, whose names were said to have been "unknown to the Regional Director" at the time the com- plaint was issued. Listed were advertising agencies numbering approximately 45 to 50 in and around New York, New York; Chicago, Illinois, 16; Louisville, Kentucky, 2; San Francisco, 4; and Los Angeles, California, 1; Memphis, Tennessee, 1; and Cincinnati, Ohio 27 to 30, with the name of the client or the client's product or services, the advertising for whom or which each of the agencies listed handled. By its answer National denies, "that Jonas B. Katz is now or has at any time in the past been" its "agent"; admits, "that on or about August 28, 1957," it "authorized or ratified a strike of radio station W.C.K.Y. employees in support of the bargaining demands of such employees"; and denies "that it has at any time induced or en- couraged the employees of any of the advertising agencies or firms named in the complaint or any other agencies or firms to refuse to perform services for said agencies and firms in connection with any transcriptions or recordings to be broad- cast" over W.C.K.Y. "with the object and purpose of forcing and requiring said advertising agencies or firms to cease making transcriptions or recordings for broad- cast" over "said radio station." [Emphasis supplied.] The answer of the Cincinnati Local admits, "that Jonas B. Katz has been the Acting Executive Secretary of Cincinnati (Local) and the agent" of that Local, but denies that" Katz "is now or ever has been the agent of National"; denies generally and seriatim all of the allegations of the complaint charging an 8(b)(4)(A) viola- tion; and "states that it has not induced or encouraged any `concerted' refusal to work on transcriptions to be used on WCKY; and that, in fact, there has been no such `concerted' refusal on the part of any employees of any particular employer"; and "further states that the artists referred to in the complaint are not employees of any advertising agencies or firms named in the complaint"; and "that any alleged inducement or encouragement to said artists was not in the course of their employ- ment with any advertising agencies or firms." Pursuant to notice, a hearing was held at Cincinnati, Ohio, on January 28, 29, 30, and 31 and February 1, 3, 4, 5, 6, 8, 17, 18, 19, and 20, 1958, before Charles L. Ferguson, the Trial Examiner duly designated to conduct same. At the hearing full opporunity was afforded all parties to be heard, and to produce, examine and cross- examine witnesses, introduce evidence material and relevant to the issues, argue orally, on the record, at the conclusion of the evidence, which was done, and file briefs and proposed findings of fact and conclusions of law. The filing of the transcript of the evidence and the exhibits herein was completed March 20, 1958. Briefs of respective counsel were received from the Charging Party and the Cin- cinnati Local on March 31, and from National on April 1, 1958, all within the extension of time theretofore, upon request of the parties, granted for filing briefs. These briefs have been examined and considered. Upon the entire record in the case; my observation of the witnesses at the hearing; my analysis of the testimony and the documentary evidence and the voluminous exhibits herein; and full consideration of the positions of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY The answers herein admit, as is alleged in the complaint, that "L. B. Wilson, Inc. (the Charging Party), a Kentucky corporation, whose principal office and place of business is in Cincinnati, Ohio, is engaged in the operation of Radio Station W.C.K.Y. from which broadcasting operation W.C.K.Y. during the 12-month period preced- ing the issuance of" the complaint herein, "received gross revenue in excess of $200,000." 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that the Charging Party, L. B. Wilson, Inc. (Radio Station WCKY), is and was at all material times engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that this proceeding comes within the standards fixed by the Board for the exercise of its jurisdiction. H. THE LABOR ORGANIZATIONS INVOLVED Admittedly, the Respondents "are labor organizations within the meaning of Section 2(5) of the Act." III. THE UNFAIR LABOR PRACTICES National AFTRA Respondent National AFTRA "is a National Union composed of 34 Locals and chapters extending from Boston to the West Coast, and up the Pacific Northwest." National "has been in existence about 21 years. . .. Any person who performs or intends to perform, as an actor, signer, dancer, announcer, newscaster, narrator, commentator, lecturer, analyst, master-of-ceremonies, sound effects artist, graphic artist, manual artist, demonstrator, moderator, panel member, specialist, quizmaster, disc-jockey, sportscaster, speciality act, puppeteer, model, walk-on, extra, or super- numerary, in the fields of radio, television and phonograph recordings" is "eligible for membership." Members "agree to be bound by the respective Constitutions of" National and the Local to which they belong, "and by any By-laws, rules, regulations and orders existing or thereafter lawfully enacted pursuant to such Constitutions." From the testimony of Donald F. Conaway, the executive secretary of National and apparently its principal administrative officer, I get the impression that its member- ship, throughout the United States, numbers approximately 12,000 or more. Na- tional offices and headquarters are in New York, New York. "The general management, direction and control of the affairs" of National and "the determination of the relations and obligations of the members," the National, "the Locals and the Regional Divisions to one another and the carrying out of the objects and purposes of the" National is "vested in a National Board" which con- sists "of not less than seventy-five (75) members," however "the Board may not take any action contrary to any resolution" adopted "at any annual or special con- vention." Each local is entitled to representation on, and to elect a member or members of, the national board allotted on a proportional membership basis. Re- spondent, Cincinnati Local, was entitled to elect one member. The national board "meets in three sections" the eastern section in New York, the midwestern or central section in Chicago, and the western section in Los Angeles. The midwestern section is the one attended by the member from the Cincinnati Local. The eastern and western sections "meet on regular schedule. The midwestern or central section meets only on call." "Any National Board member can attend any of the National Board meetings, regardless of location. . . . Once a year, at the annual convention, the National Board meets as a body . the three Sections combined." The national constitution provides that: "Subject to the provisions of the Charter and Constitution granted by" National, and of National's constitution "each Local shall be autonomous and shall manage and govern its own affairs . . . provided however, that in no event shall any Local take any action which in the opinion of the National Board is injurious to any other Local or detrimental to the best interests of" National "nor shall any Local enter into any contracts or understandings on behalf of its members, or issue rules or regulations governing working conditions or compensation, without the approval of the National Board." Under the title, "Re- strictions on Locals," National's constitution asserts that: "No relationship is created by this Constitution whereby any Local, in the absence of consent or authority in writing from the National Board, shall have any right or power to act as agent or representative of" National "or bind it to any obligation whatsoever .. . and the acceptance of rights hereunder by the several Locals shall not be deemed, at any time, to create any partnership or joint venture between" the Local and National. The Cincinnati Local of AFTRA The evidence indicates that Respondent, the Cincinnati Local of AFTRA, referred to herein merely as the Local, has been in existence for about 20 years. At the time of the events giving rise to this proceeding the Local had approximately 150 members. By the constitution of the Local, "the general management, direction and control of the affairs . . . of the Local . . . and the carrying out of the objects and pur- poses of the Local, except as they are controlled by the" National and the local con- AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 801 stitutions and bylaws is "vested in a Board of Directors" generally referred to as the local board. The Local's bylaws provide, that . . . "matters not covered by the Constitution or By-Laws" are "in the discretion of the Local Board" which has the "power to adopt . . . rules . covering" such matters. "Such rules when made" become "effective upon approval by the National Board." The board of directors of the Cincinnati Local consists of 20 members. The Local's constitution lists the "officers of the Local" as "a President, Vice- President, Recording Secretary, and Treasurer, or otherwise, as may be determined by the Local membership. . . . Officers shall be members of the Local Board and shall be elected by the members as provided in the By-Laws." The bylaws of the Local, under the title "Officers," defines the duties of the four officers named in the Local's constitution and provides for an additional officer, an "Executive Secre- tary" who "shall be a paid employee" and "perform such other duties (than those enumerated) as may be directed by the Local Board." The Local does not elect and does not have a recording secretary, as the duties of that office are performed by the executive secretary, who is selected and appointed by the local board. Since November 1955, Jonas B. Katz, a Cincinnati attorney, has been the executive secre- tary. Katz "receives a salary" for his services as executive secretary, and in addition he is also attorney and "legal counsel" for the Local, and in that capacity appeared as attorney of record for the Respondent Local in this proceeding. For his separate services as attorney "the law firm of which" Katz "is a member receives a fixed monthly fee" from the Local. The address of the Local "appearing on its letter- head" is the office of the law firm in Cincinnati of which Katz is a member. Katz is not a member of AFTRA. About 1944 "upon recommendation of the Local Board . the membership . . . created the office of Business Counsellor," named Andre Carlon, a longtime member of AFTRA, as business counsellor, and "at the same time . . . voted" him "a lifetime membership in the Union." Carlon has held that position since. For his services as business counsellor, the Local pays Carlon a salary of $100 a month. While no such committee is specifically mentioned in the Local's constitution or bylaws, it appears that the business and affairs of the Local is largely carried on by and through a committee known as the executive committee and the executive secretary. This executive committee is composed of the president, vice president, treasurer, and business counsellor. While Katz, the executive secretary, is not a member of this executive committee he meets with and advises the committee, par- ticipates in their discussions, and implements the decisions, policies, and orders of both the local board and the executive committee. Apparently with the approval of both the local board and the executive committee Katz exercises a very considerable discretionary authority in promoting the general purposes and objectives of the Local. The officers, agents, and representatives of the Local most prominently mentioned, in the course of the evidence, in carrying on its activities are: Katz, the salaried executive secretary, heretofore identified; Carlon, who holds the "advisory" and salaried position of business counsellor, as above noted. Carlon is listed as a mem- ber of the board of directors although not elected to that position. He meets with and advises the Board. As mentioned, he is also a member of the executive commit- tee. Carlon is the "Delegate" from the Local "to the Central Labor Council," in Cincinnati, and a member of the "National Board of Directors" of AFTRA, "elected from the Cincinnati Local." In that capacity he attends the meetings of the mid- western or central section of the national board held in Chicago. Carlon no longer works as a "radio personality," or in that field, but is regularly employed by the Cincinnati Community Chest organization; George Palmer, president of the. Local, has held that office "for ten years." By virtue of his position as president, Palmer is a member of the board of directors and of the executive committee. Palmer de- scribed himself as a "free-lance performer" doing "free-lance work throughout the town, for instance transcriptions." He also works "for Station WKRC-TV," doing TV "news programs"; and George Brengel, vice president of the Local, and by virtue of that office also a member of the local board and the executive committee. Brengel is now, and was at the times material, "a full time insurance agent," however, he continues to work on occasion as a freelance artist, and in that connection accepts infrequent employment to make commercial transcriptions. WCKY Radio Station, the Charging Party WCKY radio station, the Charging Party, is one of the older radio stations in Cincinnati. Its offices and studios are in the Gibson Hotel in Cincinnati. The WCKY transmitter is located near Crescent Springs, Kentucky. WCKY maintains a sales office in New York City. "During the day" WCKY "services a geographical 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area .. . of 70 to 90 miles . . within the tri-state area of Ohio, Kentucky and Indiana at night-time" it "services a geographical area" covering "the Southern part of the United States." There are four other radio stations of comparable power in Cincinnati, all broadcasting both day and night programs, WLW, WSAI, WCPO, and WKRC, and a smaller ' radio station, WCIN, which broadcasts only daytime programs. Of these six radio stations in Cincinnati, four, all but WCKY and WCIN, have and at all times material had contracts with the Cincinnati Local covering rates of pay, wages, hours of employment, and working conditions of the radio per- sonalities composing the staff of radio announcers employed at such stations. WCKY has never contracted with the Local. There are also two small radio stations in the greater Cincinnati area, WNOP and WZIP, the first at Newport and the other at Covington, Kentucky, both "just across the river from Cincinnati." These sta- tions broadcast only in the daytime. They have "power sufficient to enable their signals to be heard clearly . . . throughout the greater Cincinnati area during the daytime." However their range as competitors to the five large Cincinnati stations is illustrated by the comparison as to power, WNOP operates on 1,000 watts, and WZIP on 250 watts, while the power rating of WCKY, for example, is 50,000 watts. Neither WNOP nor WZIP has a contract with the Cincinnati Local. Charles H. Topmiller is president and general manager of WCKY. Topmiller has "been with this Company," L. B. Wilson, Inc. (Radio Station WCKY), more than 20 years. Jeanette Heinze is secretary and treasurer of WCKY. She has been the secretary for about 10 years. Board Election and Certification of Cincinnati Local as Collective- Bargaining Repre- sentative of WCKY Radio Announcers-Contract Negotiations-Strike Called Pursuant to a Board election among the WCKY radio announcers,2 established as an appropriate unit, at which "the vote was 7 to 5 . . . in favor of representa- tion by" the Cincinnati Local of AFTRA, the Local was, on May 10, 1957, certified by the Board as the collective-bargaining representative of all the employees in such unit. Except as otherwise specifically noted, the events and matters hereinafter set out occurred in 1957. Shortly after the certification the Local and WCKY entered into contract negotiations. Katz alone carried on the negotiations on behalf of the Local. No other representative or members of AFTRA attended any of these negotiating sessions. Katz said that when negotiating agreements he acted in his capacity as attorney for the Local. The negotiations did not result in an agreement, and, according to the testimony of Palmer, president of the Local, "the membership . voted," in June, "to authorize a strike at WCKY," and in the same month the local board voted to approve the strike. However, the strike was not ordered until August 21, on which date the local board in emergency meeting, after Katz made a full report on the contract negotiations, in the course of which he told the board "that the proposals to date were nowhere near what the people involved wanted," adopted "a motion . that every reasonable effort be made to successfully con- clude negotiations with WCKY, but in the event said negotiations were not con- cluded by midnight, August 27, the Cincinnati Local consider itself on strike against that station." At this meeting the local board, pursuant to authority previously voted by the membership, ordered or levied "an emergency assessment" upon all members of the Local to "be placed immediately into effect at 5 percent of gross earnings within" the Local's jurisdiction up to $200.00." Needless to say the negotiations were not concluded by the deadline fixed by the resolution, nor since, and the strike commenced as of August 28 and is still in effect. The Local's request to National "for strike authorization . was approved" by Conaway, National's executive secretary, who had "that authority . two or three days prior to the actual strike." The eastern section of the national board; which met on September 6, approved and reconfirmed Conaway's action in the matter. Carlon testified that, "by action of the membership the Executive Committee was put in charge of the strike . and it devolved upon Mr. Katz because of the nature of his office (Executive Secretary) to actually run the strike and be in top charge. . He (Katz) was put in full authority." Apparently immediately or shortly after the local board action of August 21, ordering the strike as of August 28, the Local "sent letters . . . over the signature of" Katz "as Executive Sec- 2 Radio announcers is here used as a general term covering all radio personalities or per- formers employed at WCKY to do live performances or live announcements of all kinds, in- cluding newscasts , spot commercials, and announcements in connection with transcribed musical or other types of transcribed programs. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 803 retary . . . to advertisers in the Cincinnati area" advising them that a strike against WCKY was contemplated and "requesting their cooperation by not sending their advertising for broadcast on WCKY in the event of a strike." On the morning of August 28, the announcers 3 at WCKY went on strike. Top- miller, WCKY's president and general manager, said, "Seven announcers went out on strike" but "four stayed and did not go on strike," and "We have replaced the seven announcers who went on strike." About 6 a.m. of the morning of August 28, the Local set up picket lines at WCKY. Topmiller said the picketing was carried on "by our own people and others." On January 10, 1958, upon the petition of the Regional Director of the Ninth Region, Judge John H. Druffel of the U.S. District Court for the Southern District of Ohio, Western Division, issued an order granting a temporary injunction enjoining and restraining the National and the Cincinnati Local, their "officers, representatives, agents . attorneys, etc.," pend- ing the final disposition by the Board of the matters involved in this proceeding, from by any means inducing and encouraging "the employees of advertising agencies, or any other employer, to engage in, ,a strike or a concerted refusal in the course of their employment . to perform any services, where the object thereof is to force or require the advertising agencies, or their clients, or any other employer or person, to cease using the broadcasting facilities of, or cease doing business with WCKY." This case, as it is framed by the complaint and developed by the evidence, involves the employment by "advertising agencies and firms" of "radio artists to make com- mercial transcriptions or recordings," advertising "the various products and services of the clients" of said advertising agencies, for broadcast by or over radio station WCKY. The terms "transcriptions" and "recordings," as used in the complaint and the evidence, are "synonymous." Topmiller explained that "it is the form they are in" that gives rise to the terms, "one is on a disc and one is on a tape," but both are included in the term "transcription." There are of course various kinds of transcriptions, but this case has to do with one type or kind only, that is, commercial or advertising transcriptions for broadcast by radio. These advertising transcriptions are "commercial messages for an advertiser." They "usually run a minute or less," and are "made in lengths of a minute, 30 seconds, 20 seconds and 10 seconds. . They are transcribed on a plastic disc . . . or a plastic tape." Topmiller said, "a radio station derives its revenue from the sale of time to advertisers . . . usually the music or program material . . . is on transcriptions other than the commercial tran- scriptions. . The announcer will play the phonograph record (music or program record) until it is completed and then start another turntable that has the advertising transcription on it . . . the length of the advertising ranscriptions . is usually one minute." These advertising transcriptions are known in the business as "com- mercial spot announcements." A radio station receives compensation for running these commercial spot an- nouncements. Topmiller said a radio station does not "receive any compensation" for running the "music or program transcriptions," except, "If a sponsor should buy a program," for instance "of 15 minutes in length , we receive compensation for the entire time, but normally they buy (time for the) spot announcements and not programs." As stated, only transcriptions, of the kind described, carrying these "commercial spot announcements" are involved in this case. Advertising Agencies It is here noted that, with one exception, the employers named in the complaint and on the list supplied by the General Counsel in compliance with Trial Examiner Lindner's order are advertising agencies. Concerning that list Topmiller, the president and general manager of WCKY, said, "it shows the names of advertising agencies in Cincinnati and New York and some other areas (heretofore noted) who purchased time" in 1957 from WCKY "to advertise products of their clients on . . . WCKY." The one employer, the exception mentioned, who is not alleged to be an :advertising agency, is the Sixty-Second Shops, Inc., a chain of so-called drive-in restaurants or shops in Cincinnati, who the General Counsel asserts, and offered evidence which he claims establishes, employed radio artist Gil Sheppard to make commercial transcriptions for broadcast over WCKY advertising the products and services of that company. With this exception, and whether, under the evidence, it is an exception, is a matter hereinafter, in due course, thoroughly discussed, the advertising of products and services said to have been done over WCKY by means of commercial transcriptions, with which this case is concerned, was handled entirely by advertising agencies. s Topmiller, who testified as to this, defined announcers as "the air personalities, the people who appear before the microphone ... who do the broadcasting." 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It appears that the manufacturers, producers, or offerors of practically all na- tionally advertised products and services contract with an advertising agency or agencies to handle their advertising of all kinds and types. This is also true of the principal advertisers in local areas such as Cincinnati. The advertising agency usually handles all phases and types of the clients' advertising, including magazine and newspaper ads, billboards, bus and streetcar cards, and radio and television, both live radio or by transcriptions, and both live or film television. "Generally in a national campaign" the advertising agency makes and uses transcriptions on radio and film on television. Some of these advertising agencies are large organizations, with staffs highly specialized in the fields covered by the various publicity media with which they deal. While the largest agencies appear to be concentrated in New York City, Chicago and Los Angeles, such agencies operate throughout the United States, ranging from large organizations carrying on a nationwide business to small organizations handling mostly local advertising, even one-man agencies such as, in one instance later described, we encounter in this case. It is here reiterated that this case deals only and solely with commercial tran- scriptions prepared, produced, and placed by advertising agencies with radio stations for broadcast. The advertising agency buys time from radio stations for the broad- cast of the transcription advertising its clients' products or services. A radio station bills the advertising agency for time purchased by it on that station for the broad- cast of the advertising transcription. The agency collects from its client, and remits the amount of the account to the radio station less a commission which the radio station allows the agency. Topmiller said a 15 percent commission is standard. The manner in which the advertising agency produces and distributes these commercial transcriptions goes to the very heart of this case. The General Counsel called two witnesses, William T. Lassar, a freelance radio and television announcer, actor, and narrator in New York City, and a member of AFTRA there, and Edward 0. Carder, film and transcription director for the Ralph H. Jones Advertising Agency, of Cincinnati, who described the procedures involved in the production of a commercial transcription. It appears that in making these transcriptions advertising agencies wherever located follow or use substantially the same methods and "techniques," a detailed description of which was given by Carder. The Jones Agency, by whom Carder is employed as film and transcription director, has its principal offices in Cincinnati, but it also has offices in New York, and a second agency in Columbus, Ohio. The Columbus agency does not have a radio tran- scription department of their own and Carder handles their transcription work at Cincinnati. Carder described what is done by the Jones Agency in making a transcription, and he said, "other agencies use the same technique, ... handle it in the same way," as follows: I take' the copy which has been written by me or a member of the copy department . . . I study it and decide . who is best suited to do this par- ticular commercial. It may be that I decide on a local announcer . . . some one from the Cincinnati area, or it might be someone from Chicago, or New York, or Nashville, or New Orleans. . . Then I contact the talent, the an- nouncer I've chosen and set up a recording date . . . then we meet at the studio . . . and the announcer and I talk over the copy. I explain to him what is in my mind . . . what the important parts of the copy are . . . I underline . the stressed words . after he understands what is wanted I go into the control room and the announcer goes through his first read- ings, or dress rehearsal of the spot. . . . He reads the spot once or twice and I time it with my stop watch, because each commercial spot has to fit into a definite time period . . . after he has read the copy a couple of times and I've timed it, we are ready to record. After he has made these first recordings I call him into the control room and we listen to the spot to see how it has been handled. I point out the words he may have missed, ask that he try reading a line or two in a different way. Then he goes back into the studio, and we try it again. Perhaps we will get the finished spot in one or two . . . tries.. . It may be we will run fifteen or twenty times on a spot until we finally get it, because it must be letter perfect in every respect because . the transcription will be used on 10, 20, maybe 100 stations, and will be heard over and over again. So there can be no mistake in the recording session. Lassar's recital of how a commercial transcription is made corresponds generally and closely to that given by Carder. In that connection Lassar said the "sponsor (or client) goes to its advertising agency and says, `we suggest that commercials be made' " for a specific product. "The agency puts its creative department to AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 805 work.... The copy writers are given ... an outline of what is desired ... a script is prepared," which, after being approved by the sponsor, "is turned over to the (advertising agency's) producer or director," who is "a salaried employee of the agency. . . . The director consults his casting files, if necessary to find the right voice or voices" for the part or parts and "issues a call" for the artist or artists selected. The testimony of both Lassar and Carder is to the effect that in the making of transcriptions the advertising agency's director has "complete control over the artist's performance." It is noted too that their testimony is that advertising agencies do not own, maintain, or operate studios for the making of transcriptions and film, as the case may be, in the instant case commercial transcriptions, but use the avail- able facilities of commercial studios set up and equipped for that purpose. The artists used in making transcriptions are known as freelance artists. A free- lance artist is defined by Carder and other witnesses as "one who is not regularly employed" full time or "on a regular salary . . by any station or any organization," or "anybody" to make transcriptions. He derives his income through freelancing, that is, he works and is paid by the job. He may be called by an advertising agency to make a specific transcription, and that job completed, he may or may not be called soon again by that same agency, to make another transcription or he may not be called again by that agency for months or years later or not at all. Lassar put it this way, "freelance artists" may be called by an advertising agency "to make a transcription." He may get a call from that agency "again soon or not ever again." Lassar also testified that when a freelance artist accepts a call by an advertising agency to make a commercial transcription his employment with or by that agency "is for the period of time of the recording session with the particular agency . . . no more and no less . . . after that is over his employment with" that agency termi- nates and until the artist "is rehired by them or somewhere else on another call" he is not an employee of any agency. Agencies do not retain or regularly employ artists to make transcriptions. All work of that kind is done by freelance artists on a job-by-job basis. Carder said that "freelance artists . . . have no connection with an advertising agency except for the period that they are actually employed to perform the work of recording a tran- scription . . . that is the only time the agency pays them for," which is "almost always less than half a day." The agency pays the artist for the full time of the recording session, which includes "the time spent in audition and rehearsal." These recording sessions range in time from a short period to periods of an hour, or perhaps more, rarely, if ever, as much as a half-day. Carder said, in substance, "except for that small interval of time that they are in the studio engaged in making a tran- scription," under the supervision of the advertising agency's director, the agency has no relationship to, or control or supervision over freelance artists, and "when the recording session is concluded, they are free to do what they want, go where they want, and accept employment where they want." Both Carder and Lass^ar stated that on each job the "Advertising Agency . . . deducts standard withholding taxes, and social security . from the fees of the freelance artists" hired to make these commercial transcriptions; and Carder said that the Jones Agency "does not consider these people as being employed by, or as being employees of," the Agency "between engagements." The transcription code of National AFTRA prescribes basic minimum talent fees of artists for making transcriptions for periods of time ranging from up to 15, 30, 45, and 60 minutes, with a method of computation for time over 60 minutes. Most, particularly the larger, advertising agencies have either signed this transcription code or given letters of adherence thereto, and those who have not signed it, or signified in writing their adherence, observe the provisions relative to minimum talent fees. As I understand, the talent fees charged and paid generally exceed the minimum set out in the national code and vary according to place. Further when a call is made to a freelance artist for a transcription recording, inquiries and informa- tion are exchanged between the director for the advertising agency and the artists called as to the nature of the job, whether any sponsor conflict might result, the extent of distribution of the transcription, and certain other factors which have a bearing on the amount of the artists' fee. The Issues It is alleged by the complaint that Respondents violated Section 8(b) (4) (A) of the Act. That section, so far as applicable to the complaint, as drawn, and the facts herein, provides: 535828-60-vol. 125-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It shall be an unfair labor practice for a labor organization or its agents . . . to engage in , or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment .. . to perform any services, where an object thereof is . . . forcing or requiring any employer . . . or other person . . . to cease doing business with any other person. The General Counsel's position is that the advertising agencies named in the com- plaint and the list supplied by him, as aforesaid , were employers and the freelance artists whom they may have at various times called or engaged to make transcrip- tions were employees within the meaning of the above Section 8 ( b)(4)(A) of the Act, and that the evidence establishes that Respondents did induce and encourage said employees to engage in a concerted refusal to perform any services, in the course of their employment by said agencies , "in connection with any transcription" which was intended for "broadcast through the facilities of WCKY , with the object . . . of forcing or requiring said agencies . . . to cease making transcriptions . for broadcast" over WCKY, that is, "to cease doing business" with WCKY. On the first day of the hearing the attorney representing the General Counsel stated that he proposed to "adduce evidence which will show that specific induce- ment and encouragement of some specific individuals took place , and it will also be shown that there was some generalized broad inducement of large numbers of people who worked for many different employers." The only and sole instance I find any- where in the voluminous evidence which purports to directly show what the General Counsel terms "specific inducement and encouragement" of a "specific" individual, and it is noted that it relates to an individual , not individuals , is that concerning cer- tain representations or statements made by Katz, the executive secretary of the Cincinnati Local, to or about Gil Sheppard , a member of that Local , in reference to transcriptions made by Sheppard for broadcast over WCKY advertising the Sixty-Second Shops, a chain composed of 10 drive -in restaurants or shops operating throughout the Cincinnati area. All other acts, statements, or conduct of any kind whatsoever , on the part of the Respondents, or either of them, or their agents, found in the evidence, which the General Counsel claims show , or tend to show, induce- ment and encouragement, relate, as the General Counsel states it (set out above), to "generalized broad inducement and encouragement of large numbers of people who worked for many different employers." As used here "Employers" means advertising agencies. The Gil Sheppard Incident Gil Sheppard , who described himself as a freelance artist, working in the Cin- cinnati area , had, at the time of the hearing, been a member of the Cincinnati Local for 7 years . The evidence concerning Gil Sheppard depicts a unique, or at least an unusual situation . The testimony reflecting the background as well as that which purports to be vital and dispositive of this phase of .the case is in many respects so complicated and complex , and in spots so vague, that it is difficult to accurately .arrange and present it in time, sequence, and meaning. It seems that during a period of possibly 2 years prior to May 1956 , Gil Sheppard, a prominent local radio per- sonality in the Cincinnati area, regularly did radio programs sponsored by the Sixty-Second Shops over both radio stations WCPO and WCKY. As I understand the evidence these programs were what are known as "live broadcasts" made by Sheppard from the studios of the radio stations , Sheppard performing the role of what is sometimes referred to as a disc-jockey, although that descriptive term was not used by the witnesses . Apparently during this period the AAWL Advertising Agency handled all advertising for the Sixty-Second Shops and in this capacity placed and contracted for these programs with the two radio stations mentioned. The Sixty-Second Shops programs were broadcast over WCPO 5 days a week, Mon- day through Friday, and over WCKY on Saturdays and Sundays. Sheppard testified that prior to 1956 he did the Sixty -Second Shops programs on WCPO "while an employee" of that station, but that as of January 1, 1956, "I was made an account executive or salesman for WCPO rather than a radio per- sonality. At that time WCPO classified me as a salesman , and free-lance an- nouncer," and that "from that point on" his fees for talent services in broadcasting the Sixty-Second Shops programs were paid by that company. However, in this connection, at one point Sheppard said, "I was doing Sixty-Second Shops work and being paid by them for that, through an advertising agency called AAWL." This statement may well mean he was paid by or at least "through" the agency as is usual and customary in such cases. He also stated that while employed "as a salesman . . . for WCPO" that station "permitted . .. me to work on other sta- tions as a radio personality." An account executive, "a fancy name for a salesman," AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 807 is paid a fixed salary and expenses . Whether working for a radio station or an .advertising agency he solicits advertising accounts, sells advertising programs and "ideas" and radio time to various clients, and services the advertising accounts placed with his employer. Sheppard continued to work for WCPO as an account executive until January 1, 1957, that is during the entire year of 1956. In May 1956, Sixty-Second Shops contracted with Ad Frontiers, Inc., an adver- tising agency in Cincinnati, to handle all of its advertising, succeeding the AAWL Advertising Agency, and thereupon Ad Frontiers moved the Sixty-Second Shops programs, which had been theretofore, under the AAWL Agency, broadcast live by Sheppard 5 days a week, Monday through Friday, on WCPO, to WCKY. It will be remembered that two Sixty-Second Shops programs were already, prior to that, being broadcast live by Sheppard over WCKY, weekly, on Saturday and Sunday. With this move, the Sixty-Second Shops programs became a "seven day a week show" on WCKY. Sheppard continued as the talent on this Sixty-Second Shops, 7-day a week, program on WCKY. About this Sheppard said that after "Sixty- Second Shops turned their (advertising) account over to Ad Frontiers, I continued, at the requirement of the Sixty-Second Shops to work their programs . . . in this business, if a new agency takes on an account, the talent is sometimes left behind" but "because Sixty-Second Shops felt that I had done them a good job . they wanted me to continue to do their work." About keeping Sheppard as the talent on the Sixty-Second Shops radio programs after Ad Frontiers took over that com- pany's advertising and placed all their radio programs with WCKY, Vernon S. (Red) Thornburgh, the president and manager of Ad Frontiers, said: He (Sheppard) was at the instructions of Sixty-Second Shops, hired by me . because they wanted him as their man for that particular show, which he had been doing for a period of two or three years. [Emphasis supplied.] I find it necessary, in order to better understand that which follows, to here digress from the continuity of the Gil Sheppard story, to identify Vernon S. Thornburgh, known generally, and referred to throughout the testimony involving him, as Red Thornburgh, and his one-manpower corporations. Thornburgh has been "working in the radio field . . . nearly 25 years," and until more recently, in both radio and television since 1947 as an announcer. He established a name and audience on radio and television in the Cincinnati area, largely as a sportscaster. He has "worked for practically every station in Cincinnati . . . as an announcer doing live shows" and "as a free-lance man (he) has done a lot of tapes" (transcrip- tions). In more recent times, however, his principal business has been advertising and promotion. Thornburgh describes himself as an advertising executive. He has been a member of the Cincinnati Local since it was organized, but since engag- ing in the advertising business he is permitted to hold only a nominal and limited, but dues-paying, membership in AFTRA known as a provisional membership. To carry on his advertising and promotional business Thornburgh has organized three -corporations, Red Thornburgh Productions, Inc., in which he owns all the stock, .Ad Frontiers, Inc., and Thornburgh Promotions , Inc. Thornburgh is president and treasurer of each of his corporations. The principal and only office and place ,of business of each of these three corporations is located in the same place, an apartment at 3407 Clifton Avenue, in Cincinnati. Except one account executive, dater herein referred to, carried on the payroll of Ad Frontiers since January 1, 1957, none of these corporations has, or has ever had, any employees of any kind other than Thornburgh himself. Thornburgh declared that, with the one exception noted, he himself does everything that is done in carrying on the business of each of his corporations "from janitor on up." As noted supra, it was Thornburgh's Ad Frontiers advertising agency which, in May 1956, took over all of the Sixty- Second Shops advertising and placed all of that company's radio programs on WCKY under a contract running to November 1, 1957. The contract for the Sixty-Second Shops broadcasts over WCKY was wholly between that station and Ad Frontiers; Sixty-Second Shops was not a party. About June 1956, Sixty-Second Shops, with Thornburgh's cooperation and general .supervision in execution, adopted a new and novel advertising and promotion plan which has been since followed. It purchased a "mobile unit . . . a Volkswagen" equipped with record playing machines and a public address system. Sheppard was placed in charge of this mobile unit. He drives it to, and parks it at, the various Sixty-Second Shops locations, according to a prearranged itinerary set up by Thorn- burgh and Sheppard after consultation with the Sixty-Second Shops management, or upon their own combined judgment. The mobile unit may sometimes visit the same location for several nights successively. At the location selected, Sheppard "proceeds to play music . . . all records," interspersed with announcements ad- 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vertising the food , wares, and services of the Sixty-Second Shops, which "goes out over the public-address system . . . to entertain the people " present in the restaurant or "in their parked cars." The copy for the commercials is prepared by Thornburgh, or under his supervision . In that connection Thornburgh said, "Gil (Sheppard) writes part of it (the copy) . . . it is a matter of who has an idea . we kick the idea around and put it down in words . . . actually I am the boss." However, in doing commercials Sheppard oftimes departs from the text of the copy and ad fibs, which has Thornburgh's approval , because Sheppard is adept in that line. In addition to the music and commercials , some of the "people . . . customers" present leave their cars and come to the mobile unit where Sheppard interviews them, and upon their requests that he play "a special tune" he does so. These interviews "go out," as does the music and the commercials , "over the public-address system." Thornburgh, that is Ad Frontiers , installed in this mobile unit an Ampax 601 tape recording machine, owned by Red Thornburgh Productions , Inc., and rented by Ad Frontiers from that company, and an amplifier and turntables loaned to Ad Frontiers by WCKY.4 By means of the equipment thus installed in the mobile unit by Ad Frontiers, Sheppard "tapes" (transcribes on tape ) in full the programs. or shows which be does at the various Sixty-Second Shops locations, as aforedescribed. Thornburgh sums up the operation in this way : Sheppard "drives the mobile unit . . . around to these different shops and . . entertains the customers .. . with music. He talks to (interviews ) some of the people. His voice, the interviews, the music . . . all records," and commercials "go out over the public address sys- tem . . . so everybody on the lot can hear and as he is doing this we have this. tape machine going. . . These tapes are taken ( at the end of the program or the next day ) to the (radio ) station (WCKY) by either myself or Mr. Sheppard" and ",are generally . broadcast over WCKY the next night . . . if the tape was. made on Wednesday night it would , most of the time, be played back (on radio) on Thursday night." Sheppard works alone in the mobile unit and places the tape and starts and operates the tape machine which records his programs as they go out over the public address system. Thornburgh's statement above, "we have this tape machine going," evidently refers to Thornburgh 's Ad Frontiers Company which supplies the- tape recording equipment to make the transcriptions. Thornburgh observed: "By taping" these programs "we get two runs for one . .. the actual on-the-ground advertising for the Sixty-Second Shops . . and then we play the tapes back over the radio . . so we get two program for one which is good advertising ." Along that line both he and Sheppard noted that the people interviewed on the spot "like- to hear themselves back the next night" on radio. As noted, prior to this time Sheppard had done the 7-day a week Sixty-Second Shops radio programs live from the radio station's studios , but after the advent of- the mobile unit and the taping arrangement made by Ad Frontiers, above described, these programs were broadcast over WCKY wholly by means of the tape transcrip- tions under the tile of "Mobile Music." By virtue of his promotion work for Sixty-Second Shops by means of its mobile unit, Sheppard became known as the Sixty-Second Shops' Good Will Ambassador . This promotion work was not limited wholly to the operations already described but in addition "in summer months"' he is sent with the "mobile unit to carnivals . . and picnics ," and like gatherings of people, throughout the Cinncinnati area where he broadcasts the Sixty -Second Shops programs from the mobile unit over its public-address or loudspeaker system for the entertainment of those attending . These shows were not, for the most part, taped although he did occasionally tape some of these shows for broadcast "on the regular Mobile Music" radio programs. Sheppard owns a large library of approximately 10,000 phonograph records which is kept current. He said that although he got "most of these records free from record companies . . . it is nevertheless a valuable library." From this library Sheppard selected and supplied the records played on the Sixty-Second Shops pro- grams emanating from the mobile unit. He also owned and supplied the tapes used, in transcribing the mobile unit programs for broadcast over WCKY, and after same had been broadcast the tapes were returned to him, erased , and used again. In the actual broadcast of the programs on the spot from the mobile unit, and the taping of same, Sheppard worked alone . No other radio artists assisted him at any time. It Thornburgh said the WCICY "engineers want a certain quality to go out over WCKY . so we have to use their amplifier and their turntables in order to do this," and that WCKY "merely loaned" that equipment to Ad Frontiers "to get the best possible reproduc-- tion quality." AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 809 was in fact a one-man job throughout except to the extent that Thornburgh par- ticipated in the preparation of the itinerary and the advertising copy, and in the handling of the transcriptions after the programs had been taped. According to both Sheppard and Thornburgh, Sheppard negotiated direct with Sixty-Seconds Shops for his "talent fee" for doing these mobile unit programs, and for his talent services and the use of materials or equipment supplied by him, the Sixty-Second Shops paid Sheppard direct $162.50 a week. The Sixty-Second Shops made no deductions for taxes or social security, or of any kind. None of this fee "passed through" Thornburgh's "hands" or through or to either Thornburgh or Ad Frontiers. In fact Thornburgh said he did not even know what the amount of Sheppard's talent fee was until this case arose. Both Sheppard and Thornburgh re- ferred to the compensation paid by Sixty-Second Shops to Sheppard as a "talent fee." Ad Frontiers' compensation for handling a client's advertising derives from a percentage commission on the gross charge made by the "medium" with which the advertising is placed. In radio the standard commission seems to be 15 percent. The gross charge for that part of Sixty-Second. Shops advertising carried on radio by Ad Frontiers, all with WCKY, ran, as best I can make out from Thornburgh's testi- mony, between $700 and $800 a week, on which WCKY allowed Ad Frontiers to deduct the standard commission of 15 percent. In October 1956, Sheppard was employed by WCKY to do one 4-hour show a week, each Saturday night from 7 to 11 p.m., at a fee or salary of $50 a week. The show was known as the Rock-and-Roll Jamboree and was broadcast live by Sheppard from the WCKY studios until about June 1957, after which time it became "a tape (transcribed) show." Sheppard's rock-and-roll show for WCKY continued until terminated by Sheppard at the date of the strike, August 28, 1957. Because of this employment Topmiller described Sheppard as a regular employee on the WCKY payroll. WCKY deducted social security and withholding taxes from the fee or salary paid Sheppard for doing the show, and by virtue of that employment Shep- pard, "as one of the eligible employees within the unit," voted in the Board- conducted election at WCKY, and went on strike against WCKY when the strike commenced on August 28. I have mentioned that up until sometime in June 1957, Sheppard did this show live from the studios of WCKY, but at that time tapes (transcriptions) were substituted and thereafter the program was wholly by tape transcription. Occasionally these tapes were made in the Sixty-Second Shops mobile unit while Sheppard was doing Sixty-Second Shops programs. In such instances he turned off the tape recording machine when he was conducting interviews or when doing the "pitch" for Sixty-Second Shops or making any reference to it; at other times he taped the rock-and-roll show at his home. There was no connection be- tween the Sixty-Second Shops programs and the rock-and-roll show, "other than Gil :Sheppard worked both programs." On January 1, 1957, Sheppard left his employment as account executive at WCPO, and accepted that position with Ad Frontiers, and has since been employed by that agency as an account executive at a salary of $50 a week and expenses. Sheppard is now, and at all the times material herein was, the only employee of Ad Frontiers other than Thornburgh himself. The work of an account executive has been de- scribed. It is a part of his job to service or assist in servicing the radio advertising .accounts of his employer's clients, and the preparation of the itinerary of the Sixty- Second Shops mobile unit and the copy for the advertising commercials used on the Sixty-Second Shops programs, and the handling and delivery of tapes to WCKY, all in conjunction with Thornburgh, seem to fall in the category, as Thornburgh described that phase of an account executive's work, of servicing, by Ad Frontiers, of the Sixty-Second Shops radio advertising account. In addition to the employment already mentioned Sheppard, at the same time, during 1957, as a freelance artist, "worked as talent" on two other radio programs or shows, both broadcast over WCPO. Both were live shows; one, the Queen City Chevrolet program "was a live show . . . done remote . . . from the show room of the automobile agency . . . from 9:30 a.m to noon . . . every Saturday"; the other program advertised Oakley Merchants. It is not said how often the Oakley Merchants program was run. Thornburgh's testimony discloses that Ad Frontiers was the advertising agency which handled the Oakley Merchants account, and that the Queen City Chevrolet advertising "account was handled through another agency" which is not named. Sheppard doubtless did some other freelance work from time to time during 1957 which was not mentioned. Thus, as the strike approached and on the date thereof, Sheppard was the talent on two taped shows running regularly on WCKY, the 7-day a week Mobile Music and the 4-hour rock-and-roil show on Satur- day nights, and the two live shows on WCPO next above described. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Alleged Inducement or Encouragement of Gil Sheppard Thornburgh testified that prior to August 28, the date the strike commenced, he was aware that there was a possibility of a strike at WCKY," and was concerned about how "it might affect" the Sixty-Second Shops radio programs, carried by his. Ad Frontiers advertising agency on that station, which prompted him to make in- quiries by telephone, prior to the strike, of Katz, and on one occasion, of Carlon,. thus prior to the strike there were "a number of" these telephone conversations be- tween Katz and Thornburgh about the situation in reference to these programs in the event of a strike. Some of the conversations were initiated by Thornburgh,. others by Katz. Thornburgh quoted Katz as saying in their "first conversation on the: telephone" that "Sheppard would no longer be considered a member of the Union if his voice was carried on WCKY." Thornburgh further said, that about "two weeks prior to the strike . Katz called me . . . and asked me what I was going to do about the Sixty-Second Shops program . . . if they go on strike at WCKY . I said, `that is a tape show. . He (Sheppard) does not appear in the studio at all . . . we make tapes and play them -back on WCKY.' And then he mentioned' in the course of the conversation at that time . . . that if Mr. Sheppard's tapes went on WCKY, he would no longer be recognized as a member of the Union." In an- other of these telephone conversations, prior to the strike, Thornburgh said the "conversation was practically the same about the business of the tapes . . and he (Katz) said, `If (in the event of a strike) Gil's voice goes on WCKY he will no. longer be recognized as a member of the Union,' " and "In one of these conversa- tions with Mr. Katz, I asked him directly what would happen to Mr. Sheppard on other stations," if, in the event of a strike, Ad Frontiers continued to broadcast the taped Sixty-Second Shops programs, and Katz "reinterated that he (Sheppard) would no longer be recognized as a member of the Union if his tapes went on" WCKY under such circumstances, which Thornburgh said he personally construed as, in: effect, meaning that Sheppard "could not appear on other stations." Thornburgh testified that he called Katz on the telephone, "a day or two before or the day of the. strike, and discussed with him this business of Mr. Sheppard's voice" on WCKY, after the strike started, and that, on this occasion, Katz again used the identical language, "he (Sheppard) will no longer be recognized as a member of the Union. Thornburgh said that Sheppard "listened in . on an extension telephone during one of these conversations," which one he did not say, and that, "I told him (Shep- pard) what Mr. Katz said" in the other conversations, "about running the tapes on WCKY . and I also told him that Mr. Katz said he would get time for us on other stations." About his telephone call to Carlon, "prior to the strike," Thornburgh said, "I told Mr. Carlon exactly what Mr. Katz had told me about the transcriptions . we had on WCKY . . . and I said, `Gil does not work for WCKY (in making these Iran- scriptions). . He is not in the studio. . . . These are made from a mobile unit at the Sixty-Second Shops . what happens if these tapes go on the air?' Carlon's answer was, as Thornburgh relates it, that if Thornburgh put the tapes on WCKY, Sheppard would "no longer be a member of the Union." Asked about a conversation with Thornburgh around the date of the strike, Carlon recalled that. Thornburgh had called him by telephone "immediately preceding or on day of the strike, or immediately after," and made an "appeal" to him "in respect to permitting these recordings to be played over WCKY," but Carlon was not asked, and did not say, what he said to Thornburgh. Sheppard said he called Katz on the telephone two times, prior to the strike, and discussed with him the use of the Sixty-Second Shops mobile music tapes on WCKY in the event of a strike. The first call was occasioned by a report Thornburgh made to Sheppard "about ten days or two weeks" before the strike that he (Thornburgh) had talked to Katz and that Katz had informed him that he (Thornburgh) "wouldn't be able to use" these tapes "on WCKY" in the event of a strike. Sheppard "called. Mr. Katz a few days later," told him (Katz) that he (Sheppard) was making the tapes as a `;free-lancer working for the sponsor," and that he "was not being paid by the station," and inquired if, under those circumstances, the tapes "couldn't be- used" on WCKY in the event of a strike, and that Katz "said, No." About the second call, Sheppard said: "I called him (Katz) back another time . . . and again checked on my status as a free-lancer because it looked like the strike was coming, closer, and the answer was the same, I couldn't use tapes on WCKY." Nowhere does Sheppard say that. Katz made any statements to him, such as Thornburgh at- tributed to Katz, to the effect that if the strike occurred and Sheppard made the tapes and they were used on WCKY, Sheppard would no longer be considered or recognized as a member of the Union. The most Katz said to Sheppard, as related by Sheppard, was that the tapes could not be used on WCKY in the event of a AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 811 strike, and, so far as Sheppard's testimony reveals, that is the sum of what Thorn- burgh told Sheppard that Katz had said to him (Thornburgh). Katz's testimony was that he and Thornburgh had a series of telephone conver- sations "over a period . of maybe ten days . before the strike and three or four days after the strike" started; that "Mr. Thornburgh called me originally"; that he did not know how many times thereafter that Thornburgh called him, or he called Thornburgh; and that in the conversations with Thornburgh, before the strike, he told Thornburgh, "in no uncertain terms," that, "since he (Thornburgh) was a mem- ber of the organization," the Union would take "a dim view of him putting . . . any advertising on WCKY . a struck station." It will be remembered that at the very time these conversations were in progress the Local was appealing to all ad- vertising agencies in the Cincinnati area to withhold advertising from WCKY in the event of a strike. Katz said, "the thing of prime importance to us," at that time, was that in the event of a strike "advertising agencies would not place advertising on" WCKY, and that "was the import" of what he said to Thornburgh in these con- versations. Katz denied that he said anything to the effect that Sheppard "would be kicked out of AFTRA" or "he couldn't be a member of AFTRA" if he made the Sixty-Second Shops tapes for use on WCKY. Katz admitted talking with Sheppard about the matter and, in that connection, said, "We felt, at the time, that the broadcast of those tapes over WCKY . was like broadcasting live over the station," and "I told him (Sheppard) that I didn't feel that we could agree to let him make the tapes . . . I made it very clear to him . as clear as I could . . . that we would disapprove . . . if he continued to make these tapes," and "that the Union would probably .. . take a very dim view of it" if "his voice was broadcast over WCKY on . . . any of these Sixty-Second Shops advertising tapes . . . and I appealed to him . as a member not to do it." Disregarding the statements concerning Sheppard's union status if he should continue to make the tapes for use on WCKY after the strike started, attributed to Katz by Thornburgh, but not mentioned by Sheppard, and about the preciseness of which I am doubtful, nonetheless, the representations and appeals admittedly made by Katz, the authoritative representative and voice of the Union, to Sheppard, above set out, were such as of themselves constituted, in my opinion, inducement or en- couragement of Sheppard to refuse to make the Sixty-Second Shops tapes for use on WCKY after the strike started. According to the testimony of both Thornburgh and Sheppard, well before the strike commenced (on August 28) Thornburgh had a conference with the sixty- Second Shops management and, as Sheppard put it, "told them the possibility of a strike and what could happen," and they directed Thornburgh, as he stated it, that if a strike occurred "to stop the program, because they didn't want .. . to do anything injurious to Mr. Sheppard . inasmuch as he had programs on other stations," following which Thornburgh advised Topmiller orally "that in case of a strike, the Sixty-Second Shops did not want to embarrass Mr. Sheppard, who was the talent on the show, and they would cancel the program." Later, on August 21, 7 days before the strike started, Thornburgh confirmed this by letter to WCKY advising: It is the clients' wishes to pull the Sixty-Second Shops mobile music programs off the air if a strike occurs. . It is also their wish to continue the programs as soon as the strike is settled . . . we sincerely hope the strike situation re- mains in the talk stage. On August 28, the date of the strike, Topmiller called Thornburgh "and asked him if he was going to" continue "to run" the mobile music program, and Thornburgh said "No," and "that program did not go on" WCKY after the strike started. After the mobile music program was cancelled at WCKY it was off the air for 5 weeks until Thornburgh was able to place it, at a satisfactory time on another station. WKRC, where it has since continued. Presumably, during this interim, with the exception of 1 week, Sheppard continued his on-the-spot broadcasts and entertainment with the mobile unit at various Sixty-Ssecond Shops locations, and was paid his regular talent fee of $162.50 a week. Sheppard testified that Sixty- Second Shops indicated that they felt, under the circumstances, with the tapes off the air, they should have "a little relief.," so he volunteered to take a week off without pay, which he did. Whether Sheppard continued taping the programs during this period, for future use when a new home for the program was found, is not disclosed. When the strike began the Local paid Sheppard, as a striker, strike benefits in the amount of $25 a week. Sheppard said that he "did not ask for" these weekly payments, and that he does not know by whom or how the amount was determined, however, he accepted and retained them. It was his testimony about this that the "first" he "knew" of these payments was "when" he "received a check . . . for .812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $25 . . . through the mail," whereupon he called Katz and told him that he (Sheppard) did "not think" he "would cash it," and Katz told him to go ahead and accept and cash the weekly checks "until you find another home on another station," which Sheppard did for 5 weeks; however, when the Sixty-Second Shops mobile music taped show was resumed on WKRC, Sheppard, again called Katz and told him, "We have found a new home for our program, so, I don't see any necessity of you sending me any more checks," and the checks stopped. It is recalled that Sheppard, as a striker, withdrew the Saturday night taped rock- and-roll show which he had been doing as an employee of WCKY at :a salary of $50 a week. His talent fee for his work with the mobile unit was paid in full, as above noted, for 4 of the 5 weeks the tapes of that show were off the air. No witness, who might have been in a position to have information of that kind, could give an explanation of just how the amount of weekly strike benefits paid to Sheppard was arrived at. Katz could not say on what basis the payment to Sheppard was computed but thought it must have been taken into consideration that Sheppard had "jobs somewhere else and had other sources of income." I realize that this Sheppard matter is being extended out of proportion perhaps to its impact on the case but it has so many facets and covers so many pages of the record that it is difficult to relate it concisely, which brings me to still another phase of the Sheppard story which I feel I must set out before I undertake to determine, if need be, what Sheppard's real status was immediately preceding and at the time of the strike. Thornburgh's Ad Frontiers was organized in January 1956 with 20 shares of stock. At the time the organization was in progress, Thornburgh "invited" Sheppard "to become a stockholder" and Sheppard wanted to do so, however, as Sheppard explained, "I was at that time employed at WCPO as an account executive, which gave me an entry into other advertising agencies, so I couldn't buy stock in Ad Frontiers because if other advertising agencies knew it I would have a fine time attempting to sell time on WCPO . . . so I told my mother-in-law (Elizabeth Volk), `This looks like a good investment and if you'd like to invest the money and pick up the five shares, twenty-five percent, do so, and some time in the future I hope you'll turn them over to me' . . . so she bought the five shares of stock," at .a cost of $125, i.e., $25 each. Sheppard claimed that he did not "put up the money . . . or agree to put up the money at the time" his mother-in-law purchased the stock, however, he said he told her at that time that he would pay for the stock when it was transferred to him. It is quite clear, I think, that Sheppard all along contemplated acquiring eventually at least this one-fourth interest in Ad Frontiers, and that his mother-in-law took and held the stock with the understanding between them that at a propitious time for him he would reimburse her and take it over in his name. The original stockholders of Ad Frontiers, of record, were Thornburgh, Elizabeth Volk (Sheppard's mother-in-law), Jane Toepfer, and Mary Toepfer. The Toepfers were respectively the wife and mother of an attorney, Robert Toepfer, who was made vice president and secretary of Ad Frontiers. Robert Toepfer was supposed to write the minutes of the supposed meetings 5 of the board of directors and stockholders, and, as secretary, he had custody of the records and the stockbook of the corpora- tion. However, about the first of 1957, the Toepfers moved to Cleveland. Robert Toepfer took all the Ad Frontier records, such as they were, with him. Thornburgh testified that "probably in July 1957," he (Thornburg) decided to effect a "reor- ganization," as he called it, of Ad Frontiers. His plan of reorganization contem- plated, as several months later materialized, the purchase by the corporation, as he explained it, of the 10 shares of stock owned by Jane and Mary Toepfer, an arrange- ment for the transfer of the Volk stock to Sheppard, and making Sheppard vice president. At the date of the strike, August 28, this reorganization plan was still tentative. While it is not directly said that Thornburgh discussed his reorganization plan with Sheppard, it seems a reasonable inference he did so since Sheppard was so importantly involved. I shall try briefly to state, as best I can make out from Thornburgh's confused and -confusing testimony about this so-called reorganization, what occurred after August 28, as tending to throw light on the real situation in reference to Sheppard and Ad Frontiers on and prior to that date. It seems that on August 31, Robert Toepfer orally resigned as vice president and secretary, which was confirmed in writing by 5 Minutes of the board of directors show Mrs. Volk present, but as a matter of fact she did not ever attend any stockholders' or board of directors' meetings. Thornburgh did not even know Mrs. Volk, and his testimony about her and how, and the circumstances under which , she acquired the 25 shares of stock is so evasive and vague as to cast doubt upon rather than to verify the transaction as being all it purported to be. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 813 letter of November 4. "About Thanksgiving" Robert Toepfer "came down from Cleveland," and some kind of a meeting was held on November 29. It is not definitely disclosed whether this meeting was between just Toepfer, representing the stock owned by his wife and mother, and Thornburgh, or whether Sheppard was also present, although it is indicated he was. Thornburgh said that at this meeting. Sheppard was made vice president succeeding Toepfer in that office, and "at that time also I told Mr. Sheppard he would receive 25 percent . . . or five shares . of the stock." According to Thornburgh the corporation repurchased, just when this occurred is not clear, the 10 shares, or 50 percent of the stock, held by the Toepfer women. Thornburgh said that even at the time of the hearing no stock had as yet been transferred on the books to Sheppard, and that as of that time he (Thornburgh) owned "twenty-five percent of the stock . . . and as soon as the certificate is given to Mr. Sheppard, he will own twenty-five percent or five shares." Asked if Sheppard had paid, or agreed to pay for that stock, Thornburgh answered, "No, because it was a transfer matter." It seems that recently before the hearing Thornburgh had retained an attorney and named him secretary who was supposed to write up the corporation minutes and records showing and formalizing the various oral transactions mentioned which have occurred since August 28, and formally transfer the stock, including the "transfer" to Sheppard, which, since it is referred to as being a mere transfer, presumably means the transfer to Sheppard of the 5 shares of stock which has been outstanding in the name of his mother-in-law. Conclusions About the Sheppard Case From the foregoing I find that immediately prior to, as of the date of the strike, and during the period the above-related events involving Sheppard occurred, which the General Counsel contends make out a violation by the Local of Section 8(b) (4) (A) of the Act, Sheppard was engaged as follows: Doing the rock-and-roll show on WCKY, by means of tapes, as an employee of WCKY; doing the Queen City Chev- rolet and Oakley Merchant shows, live, as a freelancer, on WCPO apparently under the supervision of the respective advertising agencies handling those accounts, but with his talent fees paid to him directly by the sponsors; as account executive, a salaried employee of Ad Frontiers with at the same time at least an optional, if not, in fact, an equitable one-fourth interest in that corporation; and doing the Sixty- Second Shops on-the-spot shows from the mobile unit at the various locations of that company's places of business for the purpose of attracting and entertaining customers, and at the same time taping those programs for, under the supervision of, and with equipment supplied for that purpose by, Ad Frontiers, performing such services in that connection as usually fall into the category of servicing a client's, account which is part of the work of an account executive of the advertising agency handling the clients' advertising. As I understand the way this Sheppard matter shaped up, it was the General Counsel's theory originally that, in making the Sixty-Second Shops transcriptions for use on WCKY, Sheppard was an employee of Ad Frontiers, but he apparently changed horses while crossing the stream and wound up with the proposition that Sheppard was the employee of the Sixty-Second Shops. It is problematical to what extent, if any, the situation shown indicating that Sheppard might be found in reality to have been at all the times material a part owner of Ad Frontiers and therefore as such could not be an employee of himself as employer, may have had on this switch.. In my opinion it is, all the facts detailed supra concerning his relationship with the Sixty-Second Shops radio programs considered, doubtful that Sheppard ever was an employee of that company as that term is defined and used in the Act. As here- tofore set out, prior to May 1956, Sheppard did the Sixty-Second Shop programs live on WCPO as an employee of that station. The AAWL Advertising Agency was at that time handling all the Sixty-Second Shops advertising. As of January 1, 1956, Sheppard was employed by WCPO as an account executive "rather than a radio personality," and was thereupon "classified as a freelance announcer ... and from that point on" the Sixty-Second Shops paid him for his work as an announcer on their programs "through" AAWL so long as that agency continued to handle the Sixty-Second Shops advertising. When Ad Frontiers took over all of Sixty-Second Shops advertising 'and switched all of its radio programs to WCKY, the Sixty-Second Shops management told Thorn- burgh they wanted Sheppard to continue as the talent on their radio programs, whereupon, "at the instructions of Sixty-Second Shops," as Thornburgh stated it, he hired Sheppard as the talent to do that company's mobile music and radio pro- grams; however, it seems that Sheppard as a freelancer was left to negotiate and contract, on his own, with Sixty-Second Shops as to the amount of the talent fee he was to receive and that same was paid by Sixty-Second Shops direct to him, 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instead of through Thornburgh or Ad Frontiers. The compensation thus paid Sheppard was denominated exclusively as a "talent fee," which certainly does not have the same connotation as "salary" or "wages." Further, no deductions were made by Sixty-Second Shops for social security, or United States withholding tax, or any other like deductions usually made from the wages or salary of an employee. While the failure to make such deductions is not conclusive, it tends to indicate that neither Sheppard nor the Sixty-Second Shops considered him an employee of that company. Sheppard owned and furnished the records played on the pro- grams broadcast from the mobile unit which programs were in turn taped by him on tapes, which he owned and furnished, by means of the tape recording equipment provided and installed by Thornburgh. Sheppard said that the use of his records was included in and a part of the talent fee paid him. The Sixty-Second Shops did not exercise or attempt to exercise control of the selection of records played, or the nature or content of the interviews conducted, on the programs. Thus the formula- tion and execution of the programs were left to Sheppard's judgment and discretion and were matters within or under his exclusive control. These facts tend to indicate that Sheppard's relationship to the Sixty-Second Shops was in fact that of an inde- pendent contractor rather than an employee. The facts indicate that the itinerary of the mobile unit and the actual taping of the programs so broadcast from the mobile unit to attract and entertain on-the-spot customers of the Sixty-Second Shops, and the handling of the tapes thereafter, were primarily under the supervision and control of Ad Frontiers, and what was done by Sheppard and Thornburgh, or either of them, in that connection falls into the definition of "servicing the account" by Ad Frontiers. Even if Sheppard be not considered a part owner of Ad Frontiers, nonetheless, he held the salaried position of account executive with that agency and part of his work in that connection was, in the field of radio, to service, and assist in the servicing of, advertising accounts handled by it. I have noted that the representations and appeals made by Katz to Sheppard, as a member of the Local and a striker, not to make tapes of the Sixty-Second Shops programs for use on WCKY in the event of the strike, were, under the circumstances, such as to constitute inducement or encouragement. However, to make out the violation of Section 8(b) (4) (A) alleged in the complaint it must be shown that such inducement and encouragement was directed to "employees" of a neutral em- ployer to engage in a concerted refusal, in the course of their employment, to make transcriptions for use on WCKY. Assuming that in making these transcriptions Sheppard was an employee of either Ad Frontiers rather than a part owner, or an employee of Sixty-Second Shops father than an independent contractor, the fact remains that he was the sole and only person engaged in broadcasting the programs from the mobile unit or in the actual taping of the programs. True, Sheppard par- ticipated with Thornburgh, a part owner and president of Ad Frontiers, in the performance of those functions classified in the business as servicing the account, but Thornburgh certainly cannot be considered an "employee," as that term is used in Section 8(b) (4) (A). No employee of either Sixty-Second Shops or Ad Frontiers, or any other employer, worked with, assisted, or participated with Sheppard in either broadcasting the programs from the mobile unit or in taping them for use on WCKY. Katz' appeals, requests, and representations, constituting inducement and en- couragement, were directed wholly and alone to and at Sheppard. He was the only employee, assuming he was an employee, involved. The actions, on the part of Respondents, which the General Counsel claims constituted "generalized broad inducement of large numbers of people who worked for many different employers," dealt with later, did not occur for approximately 2 months after the events above related involving Sheppard alone. Katz stated, and there is naught to be found in the evidence to the contrary, that he did not "personally ask any members of the Union other than Gil Sheppard . . . not to make transcriptions to he used on WCKY." Here the entire inducement or encouragement shown amounted to no more than a single request for "individual conduct." 6 The Board has held that a showing of inducement or encouragement of only a single employee to refuse, in the course of his employment, to work or perform 6 The quoted phrase is taken from International Rice Milling Co., Ind., at al. v. N.L.R.B., 341 U.S. 665, at 671, wherein the Supreme Court found no violation of Section S(b) (4) (A) where the absence of a "concerted refusal" resulted from a showing that there was only a single request by a picketing union "to a driver of a single truck to discontinue a pending trip to a picketed mill. There was no attempt by the Union to induce any action by the employees of the neutral customer which would be more widespread than already described." AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 815 services is not sufficient to make out a violation of Section 8(b)(4) (A) of the Act, because in such a situation there is an absence of the essential element of "a concerted refusal." Local 450, International Union of Operating Engineers, AFL- CIO (Industrial Painters and Sandblasters), 117 NLRB 1310; Denver Building and Construction Trades Council, et al. (Gould & Preisner), 82 NLRB 1195, 1197; Joliet Contractors Association, et al. v. N.L.R.B., 202 F. 2d 606 (C.A. 7), cert. denied 346 U.S. 824. It follows that, in my opinion, the showing as to Sheppard does not make out a violation of Section 8 (b) (4) (A) of the Act. George Brengel and Dinerman and Company There was testimony about another incident supposedly, I take it, purporting to show inducement or encouragement by the Local of one, as only one was involved, of its members, George Brengel, to refuse to make, for an advertising agency, a transcription intended for use, among other radio stations, on WCKY. This state- ment of the matter suffices in itself to indicate that no violation was made out. The flaws in this instance are so glaring and the essential elements of a violation so lacking, that I have debated whether I should devote the space required to a dis- cussion of it, but have decided to do so lest it may be thought I had not considered it at all. George Brengel has heretofore been identified. He has been a member of AFTRA for about 17 years. He was at all times material herein the vice president of the Respondent Local and a member of its board of directors and executive committee. In recent years Brengel has been a full-time insurance agent, however, he has done and continues occasionally to do some work as a freelance radio artist. On Sep- tember 2 or 3, 5 or 6 days after the commencement of the strike at WCKY, Mr. Whitmire of the Dinerman Advertising Agency (Cincinnati) called Brengel to inquire as to his availability as a freelancer, to make a transcription for use of radio advertising a sale of furniture by Shillitos, a Cincinnati department store, whose advertising was handled by that agency. Brengel made the usual preliminary in- quiries pertinent to his availability and the amount of talent fee he would charge if available. By these inquiries the artist ascertains the possibility of any sponsor con- flict, "the manner in which the transcription is to be used," whether only in Cin- cinnati "or on other markets as well"; the number and names of stations on which it is to be used; whether "there are any particular or unusual factors" involved, and whether he would "be expected to do any of the production" himself; the last several enumerated factors having to do with the determination of the amount of the talent fee he will charge. When Whitmire named "the various stations" on which the proposed transcription "was to be used . including WCKY," Brengel told Whitmire he (Brengel) "would not be able to do the job for him," that "it was against" his "principles" to make transcriptions to be used on, or to work on, a radio station "where a strike existed," and that he "made it a practice" not to do so. For the reasons thus stated Brengel refused the employment; whereupon, Whit- mire assured Brengel that if he would make the transcription the Dinerman Agency would make "other arrangements" as to WCKY. Brengel assented to this propo- sition, and the talent fee and time and place for making the transcription having been agreed upon, Brengel accepted the employment and made the transcription on September 5, and "it was used on the other stations." However, the Dinerman Agency sent the advertising copy from which the transcription was made to WCKY, and announcers there, regular employees of that station, made a transcription which was broadcast over WCKY on time purchased by the Dinerman Agency. There is not a scintilla of evidence that the representations and statements made by Katz to either Sheppard or Thornburgh, upon their inquiries concerning the making and use of the Sixty-Second Shops transcriptions on WCKY, had any bearing upon, or connection with, Brengel's refusal to accept employment with the Dinerman Agency to make the transcription. At the time Brengel refused to accept the employment, he had never heard anything at all about the Katz-Thornburgh- Sheppard discussions, and the first he did hear of that matter, in any form, was when it was brought up in a remote way by Thornburgh at a membership meeting of the Local on September 17. Further, Brengel had not, at that time, ever dis- cussed the matter of making transcriptions, intended for use on WCKY, with Katz, or any officer, or member of AFTRA. Brengel testified that his refusal to accept employment with the Dinerman Agency, as related, was his "own personal decision, uninfluenced by anything" said to him by any officer or member of AFTRA "or any information" put out "or representations" made, by AFTRA as "an organization" either National or Local concerning the strike then in progress; that his decision was prompted altogether by 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a personal conviction long held; that "it is abhorrent" to him that any phase of his work should "appear on a station where a strike is in progress"; and that he re- garded "the taking of such an engagement as unethical." Based upon my observa- tion of the witness, and my impression as to the reliability of his testimony as a whole, I fully credit Brengel's statements about this matter, and find that his refusal, under the circumstances to accept employment with the Dinerman Agency to make a transcription which was intended for use on WCKY, was his own indi- vidual and personal decision and act uninfluenced by any appeals or representations, to that end, by Respondents, or either of them, arising out of this strike. Certainly the Act does not deny any person the right to refuse to accept employment which is personally unacceptable to him. If the other elements essential to a violation of Section 8(b) (4) (A) had been made out, as they were not, nonetheless, Brengel did not refuse to make the transcription in the course of his employment, and even had inducement or en- couragement been brought to bear upon him by Respondents, or either of them, to refuse to make transcriptions for use on WCKY, yet to make out that the violation alleged such inducement or encouragement must have been directed to a refusal in the course of his employment, and in this instance the relationship of employer and employee had not even been established and did not exist at the time the only refusal involved occurred, as there was no refusal to perform any services agreed upon after that relationship was entered into. Further to make out a violation there must have been inducement or encouragement of employees to engage in a concerted refusal. There was only one individual involved, Brengel. He could not act or have acted in concert when and while at the time he was acting alone with no other person similarly situated to concert with. As demonstrated, the evidence about the Brengel-Dinerman incident is wholly insufficient to establish a violation. Lacking in this incident is any showing of inducement or encouragement of the employees of any employer, by either of the Respondents, to engage in a concerted refusal, in the course of their employment, to make the transcription or any transcriptions for use on WCKY. It is not neces- sary that I comment further on this. I have eliminated, as a basis of a finding of facts tending to show the violation charged, the testimony of Topmiller that "about the middle of October" Jeanette Heinze, secretary-treasurer of WCKY, told him that someone connected with As- sociate Advertising Agency (Cincinnati), which agency handled the advertising of the Kahn Meat Company (Cincinnati), had told her over the telephone that Barbara Benson had made a request to someone at the Associate Advertising Agency that a transcription made, or about to be made, by her for the Kahn Meat Company not be used on WCKY. Topmiller said that the Associate Advertising Agency had not sent WCKY any transcriptions since the strike started but has bought time from WCKY for live advertising announcements. This pyramided hearsay testi- mony standing alone hardly measures up to the standard and a quality of proof required to make out a violation. It is too farfetched. There is naught from which a reasonable and sustainable inference can be drawn that Respondents, or either of them, ever induced or encouraged Barbara Benson individually or in concert with any other or some other employee or employees to refuse in the course of her or their employment to perform services for any employer. Local Membership Meeting of September 17 Much testimony was offered about a meeting of the membership of Respondent Local held, pursuant to call, the night of September 17, 3 weeks (less 1 day) after the strike started. "A hundred or more" of the approximately 150 members of the Local were present. Seated at a table at the front of the room, were President Palmer, Vice President Brengel, Treasurer Amrein, and Executive Secretary Katz. A report on the progress of the strike and a number of items having to do with its. maintenance and prosecution were on the agenda for consideration at this meeting. However, President Palmer had no sooner called the meeting to order than Thornburgh arose and requested and was granted recognition, whereupon he held the "floor" and "practically monopolized" the meeting with his complaints for approximately 45 minutes.? Sheppard, who had come to the meeting with Thornburgh, "sat directly behind" Thornburgh. Before Thornburgh commenced 7 As previously stated, for some time Thornburgh's principal business was that of an advertising agency. As such be became, and was at this time, only a "provisional mem- ber." There was testimony that as a provisional member "he had no vote or even any right to be there . . . but he was there," and President Palmer accorded him the "courtesy of addressing the meeting." AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 817 "to talk," Palmer, who does news programs for WKRC-TV, announced that he would have to leave shortly on account "of some revision in his air schedule"; Palmer left soon after Thornburgh began talking, and Vice President Brengel took over as chairman of the meeting. Testifying in a very disconnected way, about his remarks on this occasion, Thornburgh gave the following account: "I said that from the time of the strike until" the day of this meeting "we 8 have . . . monitored various spots . . . on WCKY . and have heard . . . some spots . . . which were made by union people in this town [he did not, however, know when these transcriptions were made]. . . That was the thing I was trying to point out . that at that time we had members of the Union whose voices were still on that station . . . on tran- scriptions . . . and we couldn't run these tapes [Sixty-Second Shop tapes] . when I asked the questions [it does not appear just how these questions were framed or to whom addressed] about the tapes and the transcriptions and about Mr. Sheppard . somebody I believe it was Mr. Katz . . . because he was up front . . . said, 'No you can not do it , or he will not be recognized as a member of the union.... 9 Prior to this meeting Mr. Katz told me that he was going to get us time on other stations when we pulled our tapes off of WCKY . so when at this meeting Mr. Katz said, 'why don't you put it on other stations,' I said, 'I can't for the reason on WLW from 11 o'clock [p.m.] to 12 o'clock is the com- petitors band wagon,' and on such and such a station we can't do it because of this and that. And I said, 'now what are you going to do for us,' and that's when everybody jumped up and were hollering 'Sit down' and 'Let him talk' . . . So we [Thornburgh and Sheppard] walked out." Sheppard's account of the joint visit he and Thornburgh made to this meeting is generalized. He did not undertake to relate what Thornburgh said. Sheppard stated that "in monitoring WCKY . . . after the strike," he and Thornburgh "found there were AFTRA members' voices on WCKY by transcriptions" 10 and that "the whole extent of" their "visit to this meeting was to ask why" he (Sheppard) "was not eligible . . . to put" Sixty-Second Shops tapes on WCKY, and that when Thornburgh took the floor he "was addressing his remarks to the officers still present [Palmer having left] and the assemblage in general," and "Red [Thornburgh] wanted to know if we could put them [the Sixty-Second Shops tapes] on there [WCKYI and the answer was 'No."' Sheppard said there was "hollering and screaming from everybody," but that the answer, "No," was made by "someone from the platform, but who I don't know . . . I thought it was Jonas [Katz] . but I won't say for sure." Sheppard did not corroborate Thornburgh's version that, at this point, "someone . . . up front" said, "No you can not do it or he [Sheppard] will not be recognized as a member of the Union." Sheppard further stated: "I got the floor after Mr. Thornburgh, and made the same appeal, that as a free lancer I though I ought to be permitted to put my tapes over there and the answer was 'No,' and then we left the meeting." Whatever Sheppard said could not have been more than a brief remark. Thornburgh did not mention Sheppard taking the floor, but said that at the conclusion of his tenure of the floor he and Sheppard left. Of the several witnesses who gave testimony about this meeting only one, Brengel, mentioned Sheppard saying anything, while some of them said they had no recollection at all of Sheppard "saying anything." Brengel, however, said that Sheppard "did speak up and say that he was very much interested too" and that "he had a great deal at stake." Six witnesses, other than Thornburgh and Sheppard, Katz, Brengel, George and Mary Lou Case, Roland Wiltsey, and Jane Lynn, testified about this meeting and Thornburgh's remarks on that occasion. All of these six witnesses denied that anyone present at this meeting made a statement to the effect, as Thornburgh asserted, that if Sheppard's voice was broadcasted over WCKY on Sixty-Second Shops programs he would no longer "be recognized as a member of" AFTRA, or "would lose his membership in" AFTRA, or said anything of that kind, and I credit their testimony concerning that. Based upon my observation of the witness in the course of his lengthy testimony and my analysis of his testimony as a whole, I am of the opinion that Thornburgh was prone to speak loosely at times and to 8 "We" apparently meant Thornburgh and Sheppard. 6 On cross-examination Thornburgh said that at this time the meeting "was noisy, everybody was hollering and shouting . . . thats what happens . . . at Union meetings," and that he "was not sure" it was Katz who said this. 10 Sheppard said at another point in his testimony that the transcriptions mentioned, which he and Thornburgh had heard in this monitoring, "were made by membership per- formers prior to the strike," and not after it started. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portray his own personal interpretations and concepts of events, and their meaning, and of other peoples' positions, attitudes, and language as facts, interweaving them in such a way, whether inadvertently or intentionally I do not undertake to surmise, as to overstate and build up his own position. On the other hand, Thornburgh's. lapses, at times, into vagueness about important matters and inability to remember were significant. Wherefore, except where and when it is well corroborated, I am,. as heretofore indicated, hesitant about accepting Thornburgh's testimony, when. brought in issue, as being accurate or reliable. Disregarding here the testimony of Katz, as being perhaps too personally involved in the controversy with Thornburgh, I look to the testimony of the other five wit- nesses mentioned, all of whom were present throughout the meeting, to find out what occurred at this meeting in its entirety and what was said by Thornburgh and others while Thornburgh held the floor. These witnesses upon whom I rely for this information are Brengel, George and Mary Lou Case, husband and wife, Jane- Lynn, and Roland Wiltsey, better known, and hereinafter referred to, by his pro- fessional name of Dave Scott. Brengel has been identified and, as heretofore stated, I consider him a credible witness. George and Mary Lou Case are a husband and wife radio team known as "Mr. and Mrs. Music," and were, as of the time of the hearing, the "top rated [radio] show in Cincinnati." Their Mr. and Mrs.. Music show is broadcast over station WSAI each weekday morning from 7 to 10 a.m., with news interspersed. Jane Lynn is employed by radio station WKRC in Cin- cinnati and Dave Scott by WLW in that city. All are members of Respondent Local. While Brengel was vice president of the Local and a member of the board of directors and executive committee, and George Case and Jane Lynn were mem- bers of the board, none of the five was a striker and none was directly or personally involved in the dispute with WCKY or the controversy between Katz and Thorn- burgh, or the matter about which Thornburgh was complaining, nor had they so much as heard of that prior to this meeting. Brengel, a freelancer, worked only occasionally in that profession, while the others were regularly employed at various. of the larger radio stations in Cincinnati, as mentioned, and enjoyed high rank and standing in their profession. I observed the demeanor of these witnesses on the stand and have also thoroughly reviewed their testimony set out in the transcript. I perceive of no compelling motive or reason for evasion or misstatement by them,. or either of them, as witnesses, and I credit their testimony. From the testimony of these witnesses it appears that the matter brought up and discussed by Thornburgh at this meeting was not the making of transcriptions for use on WCKY, but rather his situation as an advertising agency having a contract for the Sixty-Second Shops radio advertising on WCKY, the financial losses he was, sustaining, as a result of the strike, and his feeling that the Local and its member- ship should in some way come to his relief. Thornburgh reminded the assemblage that he was a long-time member of AFTRA, "a charter member," who "had gone- through labor troubles before with the Union, and had suffered a great deal for labors sake." He said that he was now "a one-man advertising agency or producer" and in that capacity had a "lucrative (advertising) account" for the Sixty-Second Shops radio advertising on WCKY. He then put it two ways; that because of the strike Sixty-Second Shops had taken their Mobile Music program off of WCKY, and that when the strike started he "had voluntarily," as a loyal union member of long standing, "gone along with the Union and in sympathy for the Union cause had removed" the Sixty-Second Shops programs from WCKY, and that these programs represented a large part of his income as an advertising agency. By this action, Thornburgh said he had sustained, and was continuing to sustain, heavy financial losses-some witnesses said he mentioned in this connection the sum of $800 a week-and that the resulting situation presented for him both "a personal problem as a member of AFTRA," and the problem of financial losses as an advertising agency and "he wanted to know what the Union was going to do for him" in respect to the Sixty-Second Shops programs. Members from the floor, as well as Brengel, who was presiding, advised Thornburgh that it appeared that he had a "conflict of interests" problem about which "he would have to make his own decision." Thornburgh suggested as a solution to his problem, which would resolve the conflict, that the Union "should do something . . . to bring the strike to a con- clusion . . . that the strike had gone on too long." This proposal brought a re- sponse from several members that the Union "was attempting to bargain with the station in good faith" and that they "felt" that "everything was being done that could be done" to end the strike. As Thornburgh "talked and talked," and continued "to reiterate" that he was "losing money," that he felt "some consideration should be given" to the fact that he had long been a member of AFTRA, and to inquire "what the Union was going to do about him," in respect to running the Sixty-Second AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 819 Shops programs on WCKY, many of the members, from time time. "raised their hands" or "stood up" and "gave their ideas," and Thornburgh, holding the floor the entire time, "would answer them back . .. it was like a discussion." Jane Lynn said, "there was a lot of this discussion . but the upshot of it was that it was his problem, and he would have to figure it out." Dave Scott said that the "con- sensus of the meeting" seemed to be, as expressed by "several people," who during these discussions with Thornburgh "made the same point, one right after the other," that Thornburgh's complaint "was more in the capacity of an advertising agency than as a member of the Union," and was "a matter he would have to decide for himself." Brengel said that: "The whole point of the discussion, and the reason it took so much time, was that Red Thornburgh kept asking the same question (what was the Union going to do for him) and kept getting the same reply, that `It's your decision, you have a conflict of interests which you will have to resolve. We can't resolve it for you as a group or individually.'" However, while these discussions between Thornburgh and the members were going on, admittedly, "someone [not identified] got up and suggested that part of the strike fund be paid" to Thornburgh "because" of his financial losses, however, that proposal seems to have died aborning. In the course of the discussion someone asked Thornburgh why he did not put the programs on some other station, and in reply "he mentioned several sta- tions . and said he could not get time on them because of conflicting time commitments" or other reasons. Whereupon, Dave Scott told Thornburgh that he (Scott) "didn't know of a station . that couldn't use the additional business, especially at night," and Thornburgh replied that the time already committed "would be in conflict" with the time he wanted for his programs. What I find was said and done at this meeting, to this point, does not, as I view it, contribute anything at all, circumstantially or direct, toward making out any of the essential elements of the violation alleged, for instance, that the Local induced or encouraged the employees of a neutral employer to refuse, in the course of their employment, to make transcriptions for use on WCKY. It is not necessary to enu- merate other elements. This the General Counsel does not concede, but he con- tends that even so mischief a plenty occurred after Thornburgh and Sheppard left the meeting by the adoption of the resolution, which I shall next discuss. Imme- diately upon the departure of Thornburgh and Sheppard "a member from the floor," with the observation that the membership ought to act upon Thornburgh's complaint before proceeding to the matters which the meeting had been called to consider, verbally offered a resolution, which, according to the credited testimony of Brengel, is correctly set out in the written minutes of the meeting, and moved its adoption. The resolution follows: Resolved that Red Thornburgh be advised that the Cincinnati Local of AFTRA firmly disapproves of any advertising agency placing any advertising business on WCKY, and that the Cincinnati Local reaffirms that no member of AFTRA is allowed to work at or through the facilities of WCKY. None of the witnesses could say definitely who offered the resolution other than, it was offered verbally by "a member from the floor," and seconded by someone on the floor, immediately after the departure of Thornburgh and Sheppard. Ap- parently there was no debate or discussion, and the resolution was "unanimously adopted," or, as one witness put it, "it was passed without a dissenting vote." The resolution appears to have been the spontaneous reaction of the membership to Thornburgh's plea and the discussion it engendered. There is no evidence tending: to show that the resolution was conceived, suggested, framed, proposed, recom- mended, or espoused by any officer or agent of the Local or that any such was con- sulted about it, or so much as had any prior informatics: of the proponent's intention, to offer same. The six witnesses, Katz, Brengel, George and Mary Lou Case, Jane Lynn, and Dave Scott, all present throughout the meeting and all, except Katz,, members of the Local, concurred in saying that the resolution was prompted by and directed to Thornburgh's plea. Certainly the first part of the resolution expressing the membership's disapproval of any advertising agency placing any advertising business on WCKY is in itself innocuous so far as making out, or tending to make out, any of the elements of the violation charged. It was in line with the legitimate appeal the Local had made even before the strike commenced, and persisted in since, to advertising agencies in the Cincinnati area, to withhold business from WCKY during the strike. Even so, says the General Counsel, and nonetheless, the con- cluding affirmation of the resolution constitutes on its face, or at least in its meaning and effect, inducement and encouragement of members of the Local not to make: transcriptions for use on WCKY. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The portion of the resolution at which the General Counsel thus points an accusing finger, "reaffirms that no member of [Local] AFTRA is allowed to work at or through the facilities of WCKY." [Emphasis supplied.] So far as the resolution prohibits members of the Local "to work at" WCKY, the meaning is clear enough, and, as I understand, it is not claimed that such prohibition con- stitutes any part of the violation alleged. The General Counsel takes the position, however, that the language, "No member . . . is allowed to work . . . through the facilities of WCKY" must be construed to prohibit any member of the Local "to work" at making any transcription intended ultimately for broadcast over or through the facilities of WCKY, and therefore amounts to inducement and en- -couragement of the members of the Local to refuse, in the course of their employ- ment by advertising agencies, to make transcriptions intended for use on WCKY. There was testimony, which no witness questioned or contradicted, that in the radio broadcasting industry or field the terminology "through the facilities of .. . has a particular connotation," and is a term peculiar to that industry, well under- stood by radio artists or announcers generally. According to this uncontradicted testimony the term "through the facilities of" refers to "live broadcasts" made through the facilities of a station but "from somewhere other than the station." It is "what is known as remote" broadcasting as distinguished from broadcasting "at the physical properties of the station" itself. It may involve the remote broad- casting directly through the facilities of the station of music or other matter played from transcriptions by an artist making live announcements, but it does not refer to work in connection with the making of transcriptions which later may be played at or through the facilities of a station. The testimony defining the meaning in the industry of the term "through the facilities of" is substantiated by two collective- bargaining agreements, between the Local and station WSAI, and station WKRC, put in evidence by Respondent Local. In defining the coverage of employees, the contracts read: "This contract applies to all persons who perform professionally before the microphone at or through the facilities of Radio Station WSAI ..." or, in the other contract, WKRC. None of the several artists who testified in this case contradicted, or was called or recalled to do so, the testimony that in the radio industry the terminology "through the facilities of" has the meaning, above stated, ascribed to it by the witnesses so testifying, and that it is so understood by the members of the profession. Nor were any of the other readily available and numerous artists, resident in the Cincinnati area, called or produced as witnesses to contradict such testimony. Wherefore, in evaluating this resolution, I accept the meaning of the language used to be as defined by the uncontradicted evidence. With this view it follows that on its face the resolu- tion meant to the members of the Local no more and no less than it says, that is, that no member is allowed either to work at WCKY, or to work through the facilities of WCKY. If it is intended to theorize that although the resolution on its face does not apply to members engaging in the work of making transcriptions, nonetheless, in view of the fact that Sheppard made the transcriptions which in turn, through Thornburgh and Ad Frontiers, were broadcast at and over the WCKY station, the part of the resolution that "no member . is allowed to work at or through the facilities of WCKY" was subtly directed at Sheppard and any other member or members who might contemplate engaging in the work of making transcriptions,11 then such theory is too subtle for me to comprehend. Thornburgh doubtless did say in the course of his remarks that Sheppard was the talent on the Sixty-Second Shops programs, and that by reason of Thornburgh's withdrawal of those programs from WCKY Sheppard too was sustaining losses (which as has been noted resulted in the loss of 1 week's pay), but such evidence as there is on the matter, and there is none to the contrary, indicates that the impression and understanding of the membership present was that Sheppard did those Sixty-Second Shops programs live and remote from the mobile unit directly through the facilities of WCKY, and that may well have prompted or explained the inclusion of the reaffirmation in the reso- lution of the longstanding policy of the Union that no member is allowed either to work at, or work through the facilities of, a station where an AFTRA strike is in progress. I refer now to the evidence concerning the understanding of the membership about Sheppard. Brengel did not say whether the matter, as such, of making transcrip- 11 There is no evidence that at the time any member, except perhaps Sheppard, was em- ployed in making transcriptions, or that thereafter any members of the Local as employees of any advertising agencies, or of any sponsor, refused in the course of their employment to make transcriptions. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 821 tions which were to be used on WCKY was discussed by Thornburgh. Katz recalled that Thornburgh had, at one point, in his talk "attempted to make it clear, whether he was successful or not . . . I don't know . . . that tapes had been used" on the Sixty-Second Shops Mobile Music programs on WCKY and to draw "the analogy that there were other tapes . . . spot announcements being played on WCKY." However, the other four witnesses, and, as heretofore stated, I credit their testimony, individually and collectively, the two Cases, Lynn, and Scott, were united in saying that they did not hear any discussion about the making of transcriptions, and in respect to Gil Sheppard being the talent on Thornburgh's Sixty-Second Shops radio programs, they "thought," "believed," and "assumed" that Sheppard made those broadcasts live, through the facilities of WCKY, by remote control from the mobile unit. Further, if it was contemplated by the resolution to strike at the work of making transcriptions why was the resolution not so worded, and why was language used which in its ordinary, usual, and understood meaning in the radio industry connoted no such policy or purpose. It is too much for my poor reasoning powers to grasp that every freelance artist who, anywhere in the United States, makes a transcription for an advertising agency is deemed as working through the facilities of each and every radio station anywhere over which the transcription is later broadcast. All the direct evidence bearing on the matter is to the contrary, and I am unable to discover any circumstantial evidence of such a nature and quality as would supply a reasonable basis for an inference, such as the General Counsel would have me draw, that the last affirmation of the resolution means, or was intended to mean, and was so understood by the members present, that members of the Local are forbidden to engage in the work of making any transcriptions which might later be broadcast over WCKY. Further, there is no evidence whatever that, by virtue of the resolution, any members of the Local thereafter engaged in any concerted refusal in the course of their employment to make transcriptions. Katz notified Thornburgh the following morning of the action taken by the membership as expressed in the resolution, but did not notify Sheppard thereof. There is no evidence that the resolution was ever given any publication, or that its existence was known to any member not present at the meeting. With the views I hold and have expressed about this resolution, I deem it un- necessary to rule upon the several pertinent and cogent arguments advanced by the Respondents as applicable only in the event it be held that the second affirmation of the resolution be construed as having been directed to members engaging in the work of making transcriptions intended for later broadcast at or over the WCKY station. Conclusion About September 17 Membership Meeting and the Resolution Under the facts as I find them to be, it is my opinion that neither the membership meeting. nor the resolution there adopted furnishes evidence of a violation of the Act, or is sufficient to make out any element of the violation alleged. Union Appeals to Advertising Agencies and to Consumers As noted, after it had been authorized but prior to the beginning of the strike, while the Local still hoped a strike could be avoided, the Local appealed by letter to all advertising agencies in the Cincinnati area for support by withholding advertis- ing from WCKY in the event of a strike, and that appeal was renewed and continued both by letters and personal appeals after the strike commenced. In addition in at least three letters, or communications, to its members reporting on the progress of the strike, the Local inclosed lists of products or merchandise being advertised on WCKY bearing the admonition in heavy type: "KEEP THIS LIST IN MIND WHENEVER YOU SPEND YOUR MONEY AND SHOW IT TO YOUR FRIENDS," at this point some of the lists continued with "AND THE MER- CHANTS WHERE YOU BUY," others read "MENTION IT TO YOUR DEAL- ERS-AND HAVE YOUR FAMILY DO THE SAME." In addition the Local distributed pledge cards printed on plain Government issue postcards and reading: Cincinnati, Ohio I have pledged myself and family and will pledge my friends not to patronize any of the products, services or establishments which continue to advertise on UN-FAIR WCKY-Cincinnati's non-union radio station. The above was followed by lines for signature and address. Apparently these cards bore, on 'the address side, the typed name and address of the owner, manufacturer, or producer of some establishment or product being advertised on WCKY. The 535828-60-vol. 12 5-5 3 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local also distributed to the public a yellow cards, 51/2 inches in length and 3 inches in width, on which was printed, "HOUSEWIVES GUIDE . for Mrs. Union Member. Keep this card in your purse," followed by a list of "PRODUCTS ad- vertising on UNFAIR WCKY." As it had a perfect right to do the National gave its support to the strike by its Cincinnati Local. This support was evidenced in two ways, financial contributions to the Local and appeals to advertising agencies generally to withhold advertising from WCKY until the strike was settled. Under date of September 19, National sent the Local a check in the amount of $5,000. National Executive Secretary Conaway's accompanying letter advised the Local that the $5,000 was sent "to assist you initially with the costs of conducting the strike . . . against station WCKY. It is understood of course, that as this amount is exhausted the National Board will entertain requests for additional assistance." Pursuant to the appeal of the Local for additional funds, the eastern section of the National Board, at a meeting in New York on November 12, "voted to tender the Cincinnati Local an additional sum of $5,000." Needless to say the Local accepted the tender mak- ing the aggregate amount, contributed by the National to assist the Local in carrying on the strike, $10,000.12 I come now to the appeals made by National to advertising agencies, throughout the United States, seeking their support of the strike by the Cincinnati Local against WCKY by withholding advertising from that station. On August 29, the next day after the strike started, National sent out a letter to advertising agencies generally advising them that the Cincinnati Local of AFTRA was "currently on strike against Radio Station WCKY." The concluding paragraph of the letter reads: "We would deeply appreciate your cooperation by withholding your use of the Station's facili- ties pending a fair and equitable settlement of this dispute." Another letter directed "To Advertisers over Station WCKY, Cincinnati, Ohio," was sent out by National under date of September 24. This letter discusses the merits of the strike from the viewpoint of the Union, and states that the strike action taken by the Local has been "approved and is being actively supported by all of the AFL-CIO Central bodies." It also asserts and requests that: Since the strike began on August 28, announcing duties have been handled by strike breakers who are inexperienced and untrained and who are now handling your commercial messages to consumers in the greater Cincinnati area . AFTRA respectfully requests that you consider withholding your advertising from this unfair station until the strike is settled . . . AFTRA respectfully requests that you call Station WCKY immediately and inform them that you wish to cancel your advertising until the strike is settled. It does not bear a date but there is testimony that about October 18 a printed statement, titled, "Why WCKY is Unfair," was issued by National and sent to ad- vertising agencies generally. Again the causes of the strike and the issues involved, from the union standpoint, are restated, and the assertion made that "WCKY is on labor's Unfair list-by action of AFTRA." In conclusion the statement reads: We urge you to use sound business sense by:. (1) Suspending your advertising on this unfair station; (2) Using your influence as an advertiser to convince WCKY that it will be to the benefit of the station and its employees, as well 'as adver- tisers, to conclude an agreement with AFTRA that honorably resolves all issues. The appeals and solicitations made by Respondents to consumers and to adver- tising agencies, as above set out, do not come within the prohibitions of Section 8(b)(4)(A) of the Act, and do not, as I understand, constitute unfair labor prac- tices, nor is it alleged here that they do so. Admittedly the principal objective of the strike was to bring such economic pressure to bear against WCKY that it would be induced to reconsider its prior position and contract with the Local on the terms proposed by the Union or substantially like terms. In reference to the "endeavor" of the Local "to obtain consumer support" for the strike and of both the National and Local to induce advertising agencies to withhold advertising from WCKY until the strike was settled, the attorney for National stated, of record: I am willing to stipulate . . . that the object of the Union . . . in furtherance of the strike . . . was . . . in all legal ways . .. to do economic damage to 12 Pursuant to the prior action of the membership authorizing same, the board of di- rectors of the Local, on August 21, 7 days before the strike started, "placed In effect" a 5 percent assessment on the membership of the Local to create a strike fund. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 823 this station (WCKY) . to cause the loss of its patrons in order . . . to bring the station to what the strikers considered reasonable terms of fairness on wages and working conditions, and, at another point, I am frank to admit that one of the objects of the Union (in carrying on the strike) is to endeavor, by all legal methods (such as the appeals to consumers and advertising agencies ) to diminish the business of this station , as much as possible. Thus while the Union's objective is clearly stated and shown , Respondents deny that in seeking to achieve that objective they, or either of them, resorted to any action proscribed by Section 8(b) (4) (A) of the Act, as alleged. Alleged Violation by National AFTRA With one exception , the better understanding of which suggests it be dealt with later after the specific acts and conduct on the part of National , which are said to constitute Section 8(b) (4) (A) violations, on its part, are disposed of, I have set out and passed upon the acts of the Local which are claimed to have been in viola- tion of that section of the Act, and to this point I find that no violation by Respondent Local has been made out, and, to this point , certainly none has been shown as to Respondent National. I come now , at long last , to a consideration of the specific acts on the part of National which are supposed to constitute violations . Entering upon this phase of the case, I would incorporate here by reference and suggest a rereading, if same has been dimmed by that which has intervened , of the description earlier herein set out at length of the situation involved , that is, so far as National is concerned, this case deals solely with advertising agencies throughout the United States named in the complaint and on the list supplied herein by the General Counsel, as neutral employers 13 and the freelance artists, members of AFTRA, who are em- ployed from time to time by said advertising agencies , to make transcriptions for broadcast by radio, advertising their clients ' products , merchandise, or services. As stated, a considerable percentage of these advertising agencies , more particularly the larger agencies , have signed, or given letters of adherence to, the National AFTRA transcription code. It is claimed that by means of a certain letter or printed order sent to its members throughout the United States, supplemented by letters or directions , pursuant to the provisions of the transcription code, to advertising agencies generally , who are signa- tories, or have given letters or adherence, to the code, National induced or en- couraged or attempted to induce or encourage its members everywhere who, work- ing as freelance artists, might accept employment from time to time by the various advertising agencies , for the short period of time, from perhaps 30 minutes to, but rarely ever, 3 or 4 hours at the most , required to make an advertising transcription of, rarely ever over, 1 minute in length, to concertedly refuse, in the course of their such employment, to make the transcription if it was intended ultimately for use, by said advertising agency , on WCKY, with the object of thereby forcing or requiring the advertising agencies where the freelance artists may be so employed to cease doing business with WCKY. Under the transcription code, when an advertising transcription is made, the advertising agency 14 making same is required to furnish AFTRA with a written re- port in accordance with a form prepared by AFTRA specifying the type of tran- scription, name of the sponsor and product, dates and times of rehearsal, time of recording, length of spot, gross talent fee paid, and other like data. This is denom- inated as a production memorandum . The code specifically notes that the form of the production memorandum set out therein "is subject to revision by AFTRA in its discretion , but pursuant to this Code ." This reservation was made so that AFTRA could require other and further information about transcriptions as in its discretion was deemed necessary or desirable. "In addition to this Production Memorandum which comes from the management side . the members in the major locals are required to fill out a report." The "members reports are checked against the Pro- duction Memorandum. . . . One reason for this is " that the code requires that "five percent of the gross compensation paid to the performer must be paid to the AFTRA pension and welfare fund." Neither of these reports give any information "Included are both large advertising agencies handling their clients radio advertising on a national or nationwide basis, or over large areas, as well as the smaller agencies who limit their operations mostly to local areas. 111 again call attention that this case, so far as National is concerned , deals only with advertising agencies. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "as to where" the transcription is "going to be played," or on or at what radio stations, or whether it is to be "played on a regional . . . or network program," or whether it is a "wild spot or a local area spot." Neither the production report filed by the advertising agency making the transcription nor the member's report showed "the extent of the use" which would be made of the transcription. At at meeting of the eastern section of the National Board in New York on October 16, a proposal that a "survey" be made for the purpose of ascertaining, so far as possible, "the extent" of anew transcriptions made after November 1, which were intended for use on WCKY, was adopted, and "the format of the question- naire" to be used in making the survey "was approved." The form of the question- naire follows: Recording Date: ---------------------------------------------------- Sponsor and Product: ------------------------------------------------------------------- Yes No Is this transcription intended for use on WCKY Yes No Is this transcription intended for broadcast to WCKY (Signed) - ---------------------------------------- Producer Recording Studio -------------------------------------------------- Employer (advertising agency or other) ------------------------------- The first move made by National in getting the survey under way was a printed letter, dated October 25, and mailed on that date, directed "To all Signatories to the AFTRA National Codes and Letters of Adherence thereto." The letter reads: AFTRA has been on strike at radio station WCKY, Cincinnati, since August 28, 1957. Most local businessmen have suspended advertising on this UNFAIR station to avoid purchasing the illwill of consumers in the Greater Cincinnati area. However, a supply of National spot transcriptions continues to broadcast. In order to compile accurate information on the supply of transcriptions to UNFAIR WCKY, the AFTRA National Board has ordered all members to file a special report on recording dates. We want you to know that it is obligatory for AFTRA members to submit the survey questionnaire reproduced below for signature at each recording session on and after November 1, 1957. Accordingly, pursuant to the provisions of the AFTRA National Code of Fair Practice for Transcriptions for Broadcasting Purposes, we request that you cooperate in this survey by having your authorized representative sign the questionnaire. A supply of forms will be made available to you. The letter was signed: "American Federation of Television and Radio Artists, AFL-CIO, by Donald F. Conaway, National Executive Secretary." A reproduction of the questionnairs form (above set out) appears after the signature. On October 29 and 30, 4 days after the above letter to advertising agencies throughout the United States, who are signatories or have given letters of ad- herence to the transcription code, had gone out, National mailed out to its members an "Order to File Special Transcription Report," dated October 28, 1957, which reads as follows: DEAR AFTRA MEMBER: Beginning November 1, 1957, and until further notice, each AFTRA member is obligated to have the following survey ques- tionnaire filled out at each transcription recording date, and then filed at the Local AFTRA office: (Here questionnaire form is reproduced) AFTRA has been on strike at radio station WCKY, Cincinnati, since August 28, 1957. In order to compile accurate information on the supply of tran- scriptions to UNFAIR WCKY, the AFTRA National Board has ordered all members to file a special report on recording dates. We has informed adver- tising agencies and other transcription producers that it is obligatory for AFTRA members to submit the survey questionnaire for signature at each recording session on and after November 1. A supply of forms is being made available to producers and recording studios. Please be sure to have this form filled out. Please be sure it is filed with the Local AFTRA office. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 825 The order is in printed form, and is signed, "By Order of the National Board, by Donald F. Conaway, National Executive Secretary," following which is the notation If the producer refuses to sign the questionnaire, please call the AFTRA office, and refer the matter directly to Local AFTRA officials." This order was mailed out to the approximately 3,000 members in New York City on October 29, and to the remaining approximately 9,000 in other cities and localities of the United States on October 30. It is recognized that many, a con- siderable percentage, of the membership do not work as freelance artists or make advertising transcriptions at all, however, National's membership roll does not disclose such information, and this method of mailing to all members was adopted in order to assure notice to all members doing that type of work of National's requirement that this special transcription report be filed. The query may arise why, if National's purpose was as it purported to be merely to get the information called for by the questionnaire, it did not amend or supple- ment its production memorandum form, provided for by the transcription code, accordingly, as it had a right to do, and require the advertising agencies, parties to that code, to supply the information along with that report instead of requiring that its members individually make the necessary inquiries and make out and file the questionnaire form in each instance. The answer to this is obvious. While most of the large advertising agencies making and distributing advertising transcrip- tions nationwide or over extensive areas were signatories, or had given letters of adherence to the code, by no means all of the advertising agencies throughout the United States were parties to the code. This situation is illustrated by the fact, for instance, that none of the advertising agencies in the Cincinnati area had signed, or executed letters of adherence to, National's transcription code. Hence the only way National's survey could be made to cover the whole transcription field was through these special transcription reports made by its members as and when they made recordings, as was required of them "regardless of whether" the advertising agency making the transcription "is or is not a signatory" to the code. Although the operation of this special transcription report plan went into effect and was carried out without, so far as the evidence in this case discloses, any interruption anywhere in the making of transcriptions, not even a ripple, the Gen- eral Counsel and the Charging Party profess to discern in the order of the National to its members requiring them to file the report some sort of a scheme, device, intent, or attempt to induce or encourage AFTRA members, working as freelancers, to refuse, in the course of their employment by the advertising agencies, to make any transcription intended for use ultimately on WCKY. It is recalled that begin- ning on August 29, the day after the strike started, National actively engaged in a continuing campaign to induce advertising agencies generally to withold advertising from WCKY pending settlement of the strike. According to the testimony of Conaway, National's executive secretary, whom I credit, and I perceive no reason not to do so, came the latter part of October, at least a month and a half or more having passed, and National was "interested . as to the extent of transcriptions" still going to WCKY "in view of the activities" it had "carried on" seeking the cooperation of the advertising agencies in withholding advertising from that station. This interest prompted the National Board to order, as aforestated, that this survey be made and maintained in an effort to ascertain "the amount of new advertising" that went to WCKY after November 1, the effective date of the order, and which advertising agencies, and to what extent, "were really using WCKY." I concur in the reasoning advanced by National that, "If National could determine, through the special transcription report, the agencies, which were handling WCKY advertising transcriptions, its efforts could be channeled toward those particular agencies. Obviously it would be a waste of time to solicit agencies who had no business con- nection with WCKY." Both the letter of October 25 to the advertising agencies, who were subscribers to the National's transcription code, and the order of October 28 to AFTRA members stated that the purpose of the survey and the special tran- scription report was "to compile accurate information on the supply of transcriptions" going to WCKY after November 1. When the language of the order to the members is considered in this setting, the order does not, in my opinion, alone and on its face disclose or manifest any intent, purpose, or attempt to induce or encourage AFTRA members to engage in. a concerted refusal in the course of their employment, by the advertising agencies, to make transcriptions intended for use ultimately on WCKY. Nor by my reason- ing processes, such as they are, can it be deemed that such inducement or encourage- ment was or is the "inevitable result or even the `natural and probable consequence' of" the Order. N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Royal Typewriter Co.), 228 F. 2d 553 (C.A. 2), cert. denied 351 U.S. 962. Certainly, however, if it were shown that the 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect of the Order was such that by virtue, and as a result or consequence, thereof AFTRA members working as freelancers actually engaged in a concerted refusal in the course of their employment 15 by the advertising agencies to make such transcriptions, inducement and encouragement might reasonably be inferred there- from. I, therefore, look next to what is to be found in the evidence, which is meager at most, concerning the actual effect of the order on AFTRA members. The AFTRA members were required, by the order, to make out the questionnaire and file it in all instances whether or not the transcription made was intended for use on WCKY. Between the effective date of the order, November 1, 1957, and January 10, 1958, the date the injunction was issued herein, the freelance artists throughout the United States who from time to time were briefly employed by various advertising agencies to make transcriptions, filed this special transcription report with their respective locals as directed. In a very few instances the report was sent by the artist making same direct to National's office in New York. Conaway estimated that "about 35" of the questionnaire forms had been received at the National office, but "most of those were" from advertising agencies "who wrote on the bottom of the . form . that they did not at the time, have any transcriptions to be broadcast on . WCKY," or that it "was not contem- plated" that they would "have any such in the immediate future." However, one agency reported, to the National office that they had one "spot that they intended to use on WCKY," and "that it had been made by an AFTRA member in Indianapolis," after the order went into effect. Through telephone conversations with the secretaries of the locals 16 Conaway kept advised of how the special transcription reports were running and what they showed. As I understood or construe Conaway's testimony along this line, taken as a whole, he said in substance that from the information coming to him from various sources, including that shown by these reports, he became "pretty well satisfied" that "tran- scriptions" were not "to any appreciable extent being" placed with WCKY "by signatories and parties to the Code." The National office did not "at anytime" receive any inquiry from any AFTRA member as to the meaning of the order, or any communication or statement from any AFTRA member to the effect that "they did not understand" the order, or that "they understood it to be an Order to refuse to make transcriptions" scheduled for use on WCKY. Conaway further said, "there is no question" that, after the order went into effect, members of AFTRA continued to make transcriptions which "were to be played" on WCKY, and to file reports covering same, as directed in the order, and in this connection Conaway testified in substance that he did not know, and had never heard, of any member refusing to make a transcription by reason of the order. Direct evidence tending to show how AFTRA members interpreted the order is scant. Gil Sheppard, a member of the Cincinnati Local, heretofore identified, called as a witness by the General Counsel, mentioned receiving the order and said he understood it to mean "to go ahead" and "make transcriptions," but "fill out" the questionnaire form, which contained "blocks to be checked whether it [the tran- scription] was to be used for WCKY." In the course of his testimony, George Brengel, the vice president of Respondent Local, heretofore identified, recalled conversations with two other members of the Local, Jane Lynn and Bob Braun, in which National's October 28 order was discussed. Referring to the order, Jane Lynn told Brengel that her understanding of it was that it "doesn't mean I can't make a recording for WCKY, but I should fill this information out," whereupon Brengel told her, "that's my understanding of it" and "whether you make a tran- scription for use anywhere, is up to you." Bob Braun, commenting on the order, told Brengel that "he [Braun] had gotten it" but "he wasn't making records any- 16I continue to reiterate this essential element of a Section 8(b) (4) (A) violation for the reason that had it been shown, as it was not, instead of being loosely suggested that it might have happened, that the effect of the order was to induce freelance artists to refuse to accept employment with advertising agencies to make such transcriptions, that would not have been enough to make out the violation alleged. Such an instance involves only a refusal made prior to the establishment of an employer-employee relationship. The statute does not condemn a refusal, by either individuals or groups, even when acting concertedly, "for any reason which they may regard as sufficient, or for no reason," to accept employ- ment. Joliet Contractors Association, et at. v. N.L.R.B., 202 F. 2d 606 (C.A. 7), cert. denied 346 U.S. 824. 10 These telephone calls were not made, in every instance, solely for the purpose of getting information about these reports, but that information was conveyed in the course of routine and customary telephone calls made by Conaway to the local secretary or by the local secretary to Conaway, concerning union business. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 827 way," and would not "have to fill it [the questionnaire] out." Braun "is a staff artist at WLW," and does not work as a freelance. Only one witness, William T. Lassar, told about making out and filing the special transcription report. Lassar, a member of AFTRA in New York City, working as a freelance artist there, was called as a witness by the General Counsel. The "first information" Lassar had "of the WCKY strike came" to him "sometime in the late summer" (of 1957) through "a news-letter which is part of the informational matter which comes to every AFTRA member." Lassar received National's October 28 order through the mail. Thereafter, on November 6, he received a telephone call from a Mr. Dean, the director in charge of making transcriptions for the Batten, Barton, Durstine and Osborn Advertising Agency (B. B. D. & 0.) in New York City, inquiring as to his availability for work on a transcription. An agreement having been arrived at, November 8 was fixed as the recording date. This transcription required the services of three artists. In addition to Lassar, two other freelance artists, Miss Fran Carlon and "another actress" whose name Lassar could not recall, both members of AFTRA in New York City, were employed for the job. Miss Carlon was subpenaed by the General Counsel and was present at the hearing, but was not called as a witness. On November 8 the transcription was made under the supervision of Dean. The recording session, including re- hearsals, lasted from 10 to 11:30 a.m. that day, which constituted the entire period of their employment. As before noted, when a transcription is made, members of the major locals are required to make out, and file with AFTRA, what is known as a members' report relating "to hours worked, spots made, classification of the performer," etc. Where, as in this instance, more than one artist is engaged in making the transcription it is customary to select one member of the group to make out the members' report. On this occasion Lassar was selected for that duty. After the transcription had been made, Lassar prepared the member report and then turned to the making out of the questionnaire form required by National's October 28 order. In that con- nection Lassar said, "I brought that form to Mr. Dean's attention . . . I asked him whether . . . the transcriptions were to be used on WCKY in Cincinnati. His response was, `I don't know."' At the place on the questionnaire where the in- quiry, whether the transcription is to be used on WCKY, appears, Lassar wrote, "Mr. Dean does not know," then "folded" the questionnaire and inclosed it with the "member report and mailed it to AFTRA." Miss Carlon was present and heard Lassar's conversation with Dean, and observed the making up of the questionnaire form by Lassar. This is the only evidence in the record as to the actual practice of AFTRA members in using the transcription report required by the October 28 order. Here were three AFTRA members in New York City, all well "aware at the time" they accepted employment to make this transcription "that AFTRA was conducting a strike" at WCKY in Cincinnati, and all had received National's order of October 28, yet none made any inquiry either before or during the recording session concerning the radio stations over which the transcription was to be broadcast. Such inquiry was not made until after the recording session was completed, and their employment terminated, and then only for the purpose of obtaining the information called for by the questionnaire. After the transcription is completed the artist has no control, could exercise none, over the use of the transcription. Lassar testified that the artist who makes a transcription has "no control over it" after it is made. It is quite ap- parent that these three freelance artists did not have even the faintest idea that, as the General Counsel seems to claim, National's order meant that it was obligatory upon them to find out, before it was completed, whether a transcription they had accepted employment to make was scheduled for use on WCKY, and if so to refuse to continue working on same. On the contrary they proceeded in the manner pre- scribed by the order. Conaway said that it was contemplated, and so understood by the membership, engaged in freelance work of this type, that the information called for by this special transcription report, just as in the case of the members' report,17 be obtained "from the" advertising agency's director "in charge of the recording session, if he knew," after the recording session was concluded and the transcription completed. This fact alone precludes the idea of inducement or encouragement of a refusal in the course of the employment. Along in November some of the large advertising agencies in New York City ad- vised Conaway that WCKY was making representations to the effect that "the strike is almost over . that it was about settled . . . that it was a matter of but a day or two or a week and the thing was going to be over," and made inquiries of Cona- way as to the factual basis for same. This moved Conaway to call a meeting of the 17 It seems that many of the locals required a membership report. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD larger advertising agencies in New York City. This meeting was held at National's office, in that city, on November 20. Present were "representatives from 13 of the major advertising agencies, . the hard core" of the advertising agencies "dealing not only in transcriptions, but in the whole field of radio and television syndication." All were signatories, or signers of letters of adherence, to the AFTRA transcription code. and all had received National's October 25 letter and were familiar with Na- tional's order of October 28 to its members. Conaway said that at this meeting "we went through a complete factual step by step WCKY-Cincinnati Local resume up to the morning of November 20th," and "I solicited their continued cooperation." None of the representatives of the advertising agencies there present raised any question at all about the meaning of either National's letter of October 25 to the advertising agencies who were signatories to the transcription code, or letters of ad- herence thereto, or National's order of October 28 to AFTRA members, nor was anything at all said to indicate that, by virtue of that order, either there had been any refusals on the part of any AFTRA members to make transcriptions, or that the agencies thought the order tended, or might tend, to induce AFTRA members to refuse to do so. The General Counsel and the Charging Party insist that "a signal" to the members to refuse, in the course of their employment by advertising agencies, to make tran- scriptions must, somewhere and somehow, lurk in National's order. AFTRA is a well and tightly organized and well disciplined union. Under its constitution and bylaws AFTRA members are bound by the "rules, regulations and orders" issued by National. If there were such "a signal" hidden somewhere in the order of October 28, it is incomprehensible that it would have been uniformly ignored and disregarded by the members, as must have been the case, for the General Counsel was unable to, or could not, and certainly did not, produce any evidence, from any source 18 that, by reason of said order, a single member, or much more that two or more members anywhere concertedly refused, in the course of his or their employment, to make transcriptions. In searching for a specific "signal" the General Counsel and the Charging Party finally point to the following provision of the transcription code found on page 16, thereof: Unfair Stations: AFTRA hereby notifies producers that, under AFTRA's rules, artists may not authorize the producer to use the transcribed record of the artist's performance for the purpose of strike-breaking. The normal supply of records to a radio station shall not be considered strike-breaking. Producers are not bound by such rules of AFTRA, but neither AFTRA nor AFTRA members shall be subject to action for breach of contract or otherwise for com- plying with or enforcing such rules. The General Counsel and the Charging Party surmise that the elusive secret signal may have been the word "Unfair" used in the order in referring to WCKY as "UN- FAIR WCKY," and that by the use of that term a signal was transmitted to AFTRA members everywhere to refuse to make transcriptions which might be used at the struck station. Such a theory rests upon the assumption that thus National alerted its members to only the first part of the unfair stations provision of the code. The second part of this provision which is ignored reads: "The normal supply of records to a radio station shall not be considered strike breaking." As I grasp the testimony, such as there is, about the meaning and purpose of this provision I am not clear that it applies to the spot or sort of advertising transcriptions to which the com- plaint in this case is addressed. The only testimony interpreting this provision is, as best I can make it out, to the effect that the provision in intended to prevent an excess supply of transcriptions to a struck station, whereby a network, for example, could effectively break a strike by furnishing so many transcriptions that a station would need no live broadcasters. There is no testimony tending to show that it had or might have had any contrary or other meaning or interpretation. The word unfair, a word of "characterization" common to labor disputes, had been, previous to this order, repeatedly applied by National to WCKY in letters and statements about this strike. If the word unfair in itself constituted a signal to AFTRA members to refuse, in the course of their employment, by advertising agen- cies, to make any transcription scheduled for use on WCKY, why, since National had already branded WCKY as unfair, all the formalities of the order and the sys- tem of reports. If it were a signal to the freelancers to ascertain before accepting Is For instance, no representative of any advertising agency was produced as a witness to say that by virtue of this Order any artists or artists had in the course of employment by such agency, refused to make any transcriptions, or that any trouble of that, or of any kind, had occurred. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 829 employment to make a transcription whether it was to be ultimately used on WCKY, and if so to refuse the employment, that would not, as has been heretofore pointed out, constitute a violation of Section 8(b) (4) (A) of the Act, because it would have been no more than inducement not to accept employment. Joliet Contractors As- sociation, et al. v. N.L.R.B., supra. Again I interpose the comment that I cannot conceive that National would rely upon a signal that its members would not recog- nize as such, and in this instance apparently no proof was found, or if found it was not produced, that any member anywhere recognized the word "unfair," or the characterization "UNFAIR WCKY," as used in the order, or, for that matter, any other part of the order, as a signal .to refuse in the course of employment to make such transcriptions. This provision of the transcription code is not invoked by National as a defense of its order, or of any action of any of its members pursuant thereto, or anything of that kind. National does not claim that by virtue of this clause it had a right to, and did, call on "its" members to refuse, in the course of their employment, to make transcriptions. This code provision is drawn into the case by the General Counsel and the Charging Party in what, in my opinion, proved to be a futile search for a secret signal. While quoted out of context, as it now is, it may import a meaning other than in- tended, however, at one point in his testimony, Conaway said: "One of the reasons for the survey . was so we [National] could know that they [the advertising agencies] would be on notice that our members were asking whether or not that particular transcription was to be played on . . WCKY." If from this statement by Conaway, and from the evidence as a whole relating to National's October 28, order to its members, it is suspected and theorized that the real purpose or object of that order and of National's letter of October 25, to the advertising agencies, who are parties to the transcription code, was to direct pressure against the advertising agencies by implying that unless they ceased placing advertising transcriptions on WCKY National might order its members to refuse to accept employment to make such transcriptions, such, standing alone, would not, as I understand, even if the evidence were sufficient to establish that motivation, as it is not, constitute a viola- tion of Section 8(b)(4)(A) of the Act. N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Royal Typewriter Corn- pany), 228 F. 2d 553 (C.A. 2), cert. denied 351 U.S. 962. As must already be apparent, I discover nothing of a probative nature in the evidence, such as it is, bearing on the impact or effect of the order on AFTRA members, or the consequences of the order generally, which would support an in- ference that the intent or purpose of the order was to induce or encourage members to refuse, in the course of their employment, by the advertising agencies, to make transcriptions, or that by means of the order National was attempting to do so. Conclusion About National's Order of October 28 to its Members There being no substantial evidence of intent, or attempt, by the Order, to in- duce or encourage, or of effective, or even probable, inducement or encouragement, of AFTRA members to engage in unlawful action, I find that the issuance and en- forcement of the order by National did not constitute a violation of Section 8(b)(4)(A) of the Act. Letter Mailed on October 29 by Katz to Members of Local Lastly I come to a consideration of the remaining episode which is said to con- stitute a violation of Section 8(b) (4) (A) of the Act. This involves only the Local. On October 23, Katz, in Cincinnati, made a long-distance telephone call to Conaway, at National's headquarters in New York City. After they had "disposed of the business" about which Katz had called, Conaway "volunteered to" Katz "what was contemplated" in regard to the survey which had been ordered by the National board, above described. This was the first Katz or anyone connected with the Cincinnati Local had heard of the projected survey. Conaway said he told Katz "at that time" about the plans which were then under way for conducting the survey "since we were on the phone anyway .. . to let him be advised as to what National was doing." Conaway had the "galley proofs of the letter which was going to the signatories [to the transcription code] on Friday" (October 25), and of the letter or order "which was going the first of the next week . to the membership," and "apprised" Katz "of the contents of both." About the letter dated October 25, Conaway told Katz, "we are putting the signatories, and signers of letters of ad- herence, to the Code on notice that as of November 1, our members will be required to have a survey questionnaire filled out," and in that connection he read to Katz the third paragraph of that letter, which is, in part, as follows: 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to compile accurate information on the supply of transcriptions to unfair WCKY the AFTRA National Board has ordered all members to file a special report on recording dates, etc. [See supra for paragraph in full.] Conaway also read to Katz, from the galley proof, the first paragraph of the letter or order to AFTRA members, dated October 28, as follows: Beginning November 1, 1957, and until further notice, each AFTRA member is obligated to have the following survey questionnaire filled out at each transcription recording date, and then filed at the Local AFTRA office: "At that point" Conaway stopped reading "and went into a description of what the form was like." He made no mention of the parts of the order following the ques- tionnaire form. Conaway asserted, and I fully credit his statement to that effect, that he "did not in that . . or any other conversation . or by letter or other communication . . . ever advise Mr. Katz that National AFTRA intended to issue an order to its members to refuse to make transcriptions to be . played over WCKY," and that he "never inferred it and never had a secret understanding with him [Katz] or anyone else" to that effect. Katz affirmed that he was never "at any time advised by" Conaway or "any official of the National that they had issued, or were contemplating, issuing any order to their members not to make transcriptions to be used on WCKY," and that "nothing was ever said (to him) by any responsible officer or representative of National that would have given that impression." Sometime in October, and prior to this telephone conversation of October 23, be- tween Katz and Conaway, Carlon had been "put in charge" of the strike. On the same day, after his telephone conversation with Conaway, Katz called Carlon by telephone to discuss certain items of current local union business, and, in the course of that conversation, told Carlon that National was going to take action concerning transcriptions, and that Conaway had so informed him. Katz was not at all clear as to what he told Carlon about National's contemplated survey. He said that at the time he talked to Carlon "the nature of the action about which Conaway had informed" him "was not very clear in" his "mind," although he knew "it was to be a type of survey" or "questionnaire." Carlon could not recall "specifically" what Katz said as he (Carlon) was "primarily concerned" at the time "with running . . the Local strike," and since the action Katz mentioned "was being taken by National alone" he did not "think" he "would be concerned with it." Carlon did recall, how- ever, that Katz told him that he (Katz) had "received the information in a conversa- tion with" Conaway, that National "was going to issue an order . . . to mem- bers . concerning -transcriptions," and that "we would receive it in a few days," and "I think he [Katz] explained the order to me." From what Katz told him, on this occasion, about the contemplated order, it was Carlon's "impression," "under- standing," or "supposition" that the order was going to forbid the members "to make transcriptions for use on, or which were to wind up on, WCKY." On October 25 (Friday), 2 days after the telephone conversation in which Katz told Carlon the National was "going to send out an order to the members concerning transcriptions," Carlon called Katz, on the telephone, to tell him that the executive committee of the Local had voted "to remove" or "suspend," the 5 percent assessment levied on the membership of the Local, to provide financial assistance for the strike, which had been in effect since August 21, and to discuss with Katz the contemplated visit to Cincinnati of National President Bud Collyer on November 1, of which they had just been informed.19 At that time Katz told Carlon that a letter should be gotten out immediately, "because we don't have too much time," to the member- ship of the Local advising them "about the assessment being lifted and Mr. Collyer's coming," and "it was agreed" that Carlon should prepare the letter. Letters were, at that time, being sent "regularly" to the members of the Local keeping them in- formed about the strike. These letters were written by Carlon. Katz said that Carlon has "a fine command of the English language." While Carlon composed the letters they were, after being approved by Katz, signed by him as executive secretary of the Local, and sent out by him. On Monday, October 28, Carlon, pursuant to Katz' direction, wrote the letter to the membership. As drafted by Carlon the letter read: DEAR MEMBER: The Executive Committee is pleased to announce that the weekly five percent assessment, while remaining in force, is suspended tem- porarily as of November 2, 1957. The assessment has been in force for nine 19 This visit was cancelled by Collyer on October 29 or 30, but Collyer, and other Na- tional officers, later made an overnight visit to the Cincinnati Local on December 13. What occurred at that time does not, as I view it, contribute anything of value to a solu- tion of the issues. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 831 weeks and we are happy to say that the great majority of our members have made payments promptly and up to date. For the small delinquent minority, weekly payments to the Treasurer are required until paid off. This action is now possible because the large initial costs of the strike are now past and continuing costs will be considerably reduced. Also, we have received substantial financial support from our National Union and we are now in a strong position. Now, best news of all: Our National President, Clayton (Bud) Collyer, on authority from the National Board, is personally coming to Cincinnati Friday evening, November 1, 1957, to consult with the Cincinnati Executive Com- mittee and our striking members to explore and greatly enlarge enforcement of the strike. The great majority of sponsors, local and national (over sixty accounts), have deserted WCKY. We are steadily winning the battle against Cincinnati's unfair station! It is noted that the letter was limited to the two matters about which Katz had instructed Carlon to get out a letter to the membership. Having completed the above draft, Carlon called Katz on the telephone at his office and "read him the letter." Katz approved what had been written, but told Carlon that he thought "a paragraph should be included about the order" "National AFTRA" was going to issue "in regard to transcriptions," which he (Katz) "had mentioned to" Carlon "the other day." Carlon told Katz that he would "put that in" the letter, and "almost immediately" wrote a paragraph reflecting his concept of National's order relating to transcriptions. Katz had previously told Carlon that National's about-to-be-issued order would be received by the membership "in a few days" at most, and it was in fact mailed in New York City, to AFTRA members outside the New York City area, on October 30. The paragraph which Carlon framed relating to National's action in respect to transcriptions follows: National AFTRA has notified all National makers of transcriptions and all AFTRA members in major originating cities that no transcriptions may be made by any member without a written statement from the agency or producer that such transcriptions will not be used on Unfair WCKY. All members are hereby notified of this order. Carlon inserted this paragraph as the third paragraph of the letter, immediately preceding the paragraph about President Collyer "coming to Cincinnati" (see supra). Carlon said he put into this paragraph his "supposition" of what the National Order was intended to accomplish, and that the paragraph represented his "impression" of what Katz had previously told him, in their telephone conversation of October 23, about National's imminent order to its members. Explaining the purpose he and Katz had in mind in including in this letter, to the members of the Local, a reference to National's order, which order itself would be in their hands in a few days, 3 or 4 at most thereafter, Carlon said: "We wanted to mention National every time we could because we wanted to give our people the impression that we were strongly supported" by National. "We figured it was a moral advantage." Having thus revamped the letter by inserting the new paragraph, about the National order, as the third paragraph thereof, Carlon again called Katz at his office by telephone and "read to him" (Katz) "what" he "had written . . . read the entire letter . . . and he [Katz] said `All right. Give it to Naomi"' (Katz' secretary). Carlon then read the letter over the telephone to Katz' secretary "who took it down in shorthand." Katz said that "at the time" Carlon called him back and read the revamped letter to him, "I was very busy, I said, `that's all right,"' and then "he [Carlon] dictated the entire letter over the phone to my secretary. . The stencil was placed on my desk, with a stylus, and I signed the stencil . I didn't even bother to read it [the letter] again." All of this, the drafting of the original letter, the addition of the paragraph referring to National's order, the approval of the letter in its final form, and the signing by Katz occurred on October 28. The letter, as mailed out to just the members of the Local, did not bear a date; however, it was mailed on October 29. Carlon said he received a copy through the mail "within two days" after he had written it on October 28. As before noted, National mailed out its order of October 28 to members outside of the New York City area on October 30, the next day after the Carlon-Katz letter was mailed to the members of the Local, and National's order was received, through the mails, by members of the Local within 3 or 4 days at most thereafter, so that at most only about that period of time elapsed between the receipt, by the members of the Local, of the Local's letter and National's order. It seems it was then that 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it came to Katz' attention for the first time that the third paragraph of his letter to the members of the Local "did not accurately reflect the action of the National." Katz said, "It was my mistake . . . I was in error in approving it . . . I should have known better, but in the press of other matters . there was so many things going on at the time . I just said, `it's all right, send it out.' The only explana- tion 1 can make of it is that everybody makes mistakes and I made one here." Katz immediately talked to many members of the Local, who might possibly be, or have been, affected by National's order, that is freelancers, as well as other members, and was convinced that any erroneous "impression" of National's order that may have been conveyed by his letter "was corrected," and nullified when, only a few days later, they "got the letter (or Order) from the National." To the same effect was the testimony of Carlon, Brengel, Palmer, and other members of the Local. Since the discrepancy and inconsistency between what National's order required and what Local's letter said it required was so apparent and so obvious that it left no room for confusion or misunderstanding, as was uniformly recognized by the Local's membership, Katz and Carlon deemed it wholly unnecessary to send out a letter disavowing, retracting, or correcting the third paragraph of Local's letter. Conaway and AFTRA General Counsel Becker arrived in Cincinnati on Sunday, November 24. They remained there 2 days, Monday and Tuesday. Katz was away in Cleveland during that entire time. Conaway and Becker went to Cincinnati to employ counsel to represent the Union in a civil action which WCKY had filed in the State courts there. The charge herein "had not at that time jelled into a com- plaint." On Monday, Conaway and Becker visited the strike headquarters. In discussing with Carlon and others there what the Local had done in carrying on the strike, they were shown copies of letters and statements sent out or issued by the Local. It was then that Conaway discovered this Carlon-Katz letter to members of the Local. This is the first knowledge to come to National of such a letter. Conaway said, "I blew my lid over paragraph three." However, Conaway's agita- tion was allayed when Carlon, also other members, assured him that this paragraph had not resulted in any confusion at all among Local members about, or caused any misunderstanding of, National's order which they had received only a few days later, and that "nobody understood," or construed, National's order to forbid AFTRA members "to make transcriptions to be played on WCKY." Further General Counsel Becker advised Conaway that "in his considered opinion" Local's "letter did not violate the" Act, and "he could see no purpose," under the circumstances, in requiring Katz, at that late date "to issue a retraction because that might put" Katz "in an unfavorable light." After Conaway and Becker returned to New York, how long after is not said, Becker, in a telephone conversation about other matters, told Conaway that he had talked to Katz by telephone and had "taken him over the coals about that letter . . . and Mr. Katz regretted that it had issued," and Becker again suggested that "it would serve no purpose" to now "insist upon a letter of retraction by Katz for after 'all "it was a tempest in a tea-pot." During the investigation of the matters embraced by the charge herein, Katz and the attorney representing the General Counsel discussed various aspects of the investigation. General Counsel's attorney inquired of Katz about this letter, and Katz pointed out that it contained an erroneous interpretation of National's order, but that National's order, received within a few days thereafter, clearly corrected and rectified the error, and that no confusion or wrongful action had resulted. When later, on December 30, 1957, the complaint herein issued it was Katz' belief, as ma- terialized, that the General Counsel was, inter alia, relying upon this erroneous letter as being a violation of Section 8(b) (4) (A). Whereupon Katz, acting upon his own judgment, procured from National 150 or more copies of its October 28 Order to AFTRA members, and then wrote and sent out to the members of the Local the following letter, under date of January 6, 1958, inclosing in each a copy of National's order: JANUARY 6, 1958. DEAR MEMBER: On or about October 29, 1957, you received a letter over my signature which stated in part as follows: National AFTRA has notified all national makers of transcriptions and all AFTRA members in major originating cities that no transcriptions may be made by any member without a written statement from agency or producer that such transcriptions will not be used on Unfair WCKY. All members are hereby notified of this order. This statement was in error and was corrected directly thereafter by a letter from National AFTRA, correctly setting forth its position in regard to making of transcriptions. A copy of this letter is enclosed herewith. AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS 833 It was obvious to me, and to other members with whom I discussed the mat- ter, that the letter from the National organization clarified the position of this organization in regard to transcriptions and corrected the error contained in the first aforementioned letter. However, recent events demonstrate that the National Labor Relations Board refused to accept the obvious. In order that there be no misunderstanding, please be advised that the only rule presently in effect, or which has ever been in effect, is that which is con- tained in the enclosed letter of the National organization, a copy of which you have previously received. This organization has not committed any unfair labor practices and has not been found guilty of any such action. Newspaper stories to that effect are erroneous. Legal harassment is to be expected in any strike. Further, the only thing involved in this proceeding is the filing of reports on transcriptions, and our right to strike and picket against WCKY remains un- challenged. We will keep you advised of further developments. The General Counsel and the Charging Party take the position that the third paragraph of the Katz letter to members of the Local on its face constituted induce- ment and encouragement of such members to refuse, in the course of their employ- ment by advertising agencies, to make transcriptions which were intended for use on WCKY. If this is so it is no defense that, as here seems to be .the case, such inducement or encouragement was not successful.20 I suggest again that the existing situation be kept in mind, that is, that the members of the Local operating as free- lance artists 21 become and are employees of the various advertising agencies, only, at intervals, and then only for and during the brief period of perhaps 30 minutes to not more than 2 or 3 hours, rarely, if ever, that long, which may be required to make a transcription. The third paragraph of the Katz letter told the members of the Local that National had notified AFTRA members "that no transcriptions may be made by any member without a written statement from" the advertising agency intending to make same that "such transcriptions will not be used on Unfair WCKY." In my opinion, in practical effect, the situation and setting considered, this paragraph could have had but one meaning to the members of the Local, that is, that the National had ordered that before accepting, and entering upon, employ- ment to make a transcription they should require the agency soliciting their talent services to furnish "a written statement . that such transcriptions will not be used" on WCKY. It constituted no more than inducement of the members of the Local to refuse to accept employment to make a transcription unless and until such statement was supplied by the agency seeking their services. As heretofore observed, such inducement or encouragement to refuse employment is not inducement or encouragement of "employees . . . to engage in . a concerted refusal in the course of their employment . to perform services" essential to the making out of a violation of Section 8(b)(4)(A) of the Act. [Emphasis supplied.] Such being the case, I am constrained to hold that the erroneous third paragraph of the letter did not on its face constitute inducement or encouragement within the mean- ing of, and as those terms are used in, Section 8(b)(4) (A) of the Act. Nor, as noted, was there any showing that the effect, or impact, of that paragraph on the members of the Local, during the brief interval of 2 or 3 days between the receipt by them of the Katz letter and the receipt of National's order, or at any other time, resulted in any member or members, refusing, in the course of their em- ployment by an advertising agency, to make transcriptions,22 from which an in- ference of inducement and encouragement within the meaning of Section 8(b) (4) (A) might be drawn. If it be deemed that my findings of facts concerning this letter are inaccurate or materially in error, or that my concept of the meaning of Section 8(b)(4) (A) is incorrect, or too narrow, and that in fact the third paragraph of the Katz letter constitutes on its face inducement or encouragement, within the meaning of that section, although unsuccessful, even so, in my opinion it would not effectuate the 20 No proof whatever was adduced that any member, by reason of the erroneous in- terpretation made of National's order by this third paragraph of the letter, refused either in the course of his employment or at any other time to make any transcription. 21 As best I can make out a freelance artist, as here used, is one who is not regularly employed by any one employer to make transcriptions, but moves from one engagement to another. The term freelance artist does not in itself connote either current employment or employee status. 2There is no evidence at all tending to show that at the time he received the Katz letter through the mails any member of the Local was then engaged in making a transcription, as an employee, for the time being, of an advertising agency. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies and purposes of the Act, to order, as to this one, lone, and technical viola- tion, the result of blundering carelessness, but not intent, which did not, however, induce any unlawful conduct on the part of any member, that the remedial pro- cedures which the General Counsel proposes be put in motion, that is, that the Local now be required to formally notify all its members in writing of the recision of the Katz letter. The evidence is so convincing that National's order received by all members of the Local within a few days after they had received the Katz letter operated effectively to correct, nullify, and wipe out the erroneous interpretation made of that order by the Katz letter, it is my opinion that further and formal remedial action to that end is not now necessary or required. If despite this it were thought that to effectively remedy the error found in the Katz letter some formal and official recision should have been made, I think the Katz letter of January 6, 1958, above set out, served the formalities, although it served no practical or realistic purpose. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. L. B. Wilson, Inc. (Radio Station WCKY), the Charging Party, is, and at all the times material herein was, engaged in commerce within the meaning of Section 2(6) and (7) oftheAct. 2. Respondents, American Federation of Television and Radio Artists, AFL-CIO, and Cincinnati Local, American Federation of Television and Radio Artists, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. None of the unfair labor practices alleged in the complaint has been estab- lished by a preponderance of the credited evidence. [Recommendations omitted from publication.] Wagner Electric Corp. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local Union 926, Petitioner. Case No. 6-RC-2395. December 17, 1959 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election executed August 10, 1959, an election by secret ballot was conducted on August 14 under the direction and supervision of the Regional Director for the Sixth Region among the employees in the stipulated unit. Following the election, the parties were served with a tally of ballots which showed that, of approximately 17 eligible voters, 11 valid ballots were cast, of which 5 were for, and 6 against, the Petitioner. There were no challenged ballots. Thereafter, the Peti- tioner filed timely objections to conduct affecting the election. The Regional Director investigated the objections, and on October 13, 1.959, he issued and served upon the parties his report on objections, in which he found the objections to be without merit and recom- mended that they be overruled and the election results be certified. The Petitioner filed timely exceptions to the report. Subsequently, the Employer filed a document commenting on the exceptions. 125 NLRB No. 106.