Reeves Broadcasting & Development Corp.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD second Region (Newark, New Jersey), shall, after being duly signed by the Re- spondent, be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-second Region signed copies of said notice for posting by the above-named Companies, if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by the Respondent, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the said Regional Director, in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith? I In the event this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith." APPENDIX A NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF NICHOLS ELECTRIC COMPANY, SELBY DRILLING COMPANY, AND ELMHURST CONTRACTING COMPANY Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage any individual employed by Nichols Electric Company, Selby Drilling Company, Elmhurst Contracting Company, or by any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his em- ployment to perform any services, or thicaten, ccerce, or restrain the above- named Companies and persons, where an object thereof in either case is to force or require Nichols Electric Company to assign the work of operating power- driven drilling and hoisting equipment to employees engaged as operating en- gineers who are represented by Local Union 825, International Union of Operating Engineers, AFL-CIO, rather than to employees represented by another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) of the Act. LOCAL UNION 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------ (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street, Newark 2, New Jersey, Telephone No. Market 4-6151, if they have any question concerning this notice or compliance with its provisions. Reeves Broadcasting & Development Corporation (WHTN-TV) and National Association of Broadcast Employees and Techni- cians, AFL-CIO. Cases Nos. 9-CA-2465 and 9-CA-2513. Janu- ary 7, 1963 DECISION AND ORDER On June 26, 1962, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- 140 NLRB No. 41. REEVES BROADCASTING & DEVELOPMENT CORPORATION 467 mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report with supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the following modifications. 1. We agree with the Trial Examiner that, although Respondent complied with the purely formal requirements of collective bargain- ing by meeting with the Union and discussing contract proposals, it nevertheless had no intention of attempting to reach agreement with the Union. We are convinced, as is the Trial Examiner, that Respond- ent's conduct in its totality, particularly its acts of restraint, coercion, and interference in violation of Section 8(a) (1) 2 and statements by its supervisors, reveal this intention. Thus, the day after the Union won the election, the Respondent promulgated an invalid no- solicitation rule; shortly before negotiations on a contract began, Supervisor Hamlin told employee Mays that Respondent "had no in- tention of signing a contract until a year was up at which date they would ask for a revote and vote the Union out"; and, after the Union took its strike vote on November 18, Respondent's general manager suggested to one of the employees, whom he considered in- fluential, that the employees would be better off with a company union and that he should speak to the other employees about it. Further, on a number of occasions between November 18 and 29 supervisors made threats and promised benefits to individual employees in an effort to learn about their intentions to participiate in a strike and to weaken the effectiveness of a strike, if called. Finally, on November 26, when queried about whether the Respondent would sign a contract 1 Respondent's request for oral argument is denied because, in our opinion , the record, exceptions, and briefs adequately set forth the positions of the parties. ewe find no merit in the General Counsel's exceptions to the Trial Examiner', failure to find certain other violations of Section 8(a) (1) alleged in the complaint . We have examined the evidence as to these allegations , and we do not believe, based on the evidence and the surrounding circumstances of each incident, that these additional acts of Respond- ent were calculated to, or did , in any way, restrain, coerce, or interfere with the employees' exercise of their rights under Section 7. 681-492-63-vol. 140-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union, Respondent's operation manager, Davis, told em- ployee McClure, "We have no intentions whatsoever of ever signing a contract." Such conduct on the part of Respondent compels the inference that from the very beginning of negotiations it deliberately sought to avoid its obligation to bargain in good faith. 2. There are two separate paragraphs in the complaint alleging a violation of Section 8(a) (5). Paragraph 8 alleges specifically that Respondent's unlawful refusal to bargain occurred on and after De- cember 6, the date on which the strike began. Paragraph 9 incor- porates by reference paragraphs 8 and 6 (the latter containing the allegations of the aforementioned Section 8(a) (1) conduct) and alleges that Respondent unlawfully refused to bargain by engaging in such conduct. Although the Trial Examiner rested his finding of an unlawful refusal to bargain in part upon the Section S (a) (1) conduct and thereby, in effect, upheld the general allegations of para- graph 9, he nonetheless concluded that the refusal to bargain occurred only as of December 6. At the hearing, the General Counsel moved to amend paragraph 8 so as to allege that Respondent unlawfully refused to bargain on and after August 23, 1961, when negotiations began. The General Counsel has excepted to the Trial Examiner's failure to grant the amendment. In view of the allegations of para- graph 9, that Respondent by its intimidation of employees and dis- paragement of the Union manifested its intent never to reach any agreement with the Union, we find, consistent with the rationale of the Trial Examiner's findings, that there was an illegal refusal to bargain as of the time when negotiations for an agreement began 3 3. In its exceptions and brief Respondent contends that the strike, which began on December 6, was in protest of its refusal to make further economic concessions, and that there is no probative evidence of any causal connection between the strike and any unfair labor prac- tices alleged to have been committed. Respondent therefore argues that its initial refusal to reinstate the strikers, who had already been replaced, did not violate the Act. We reject this contention. We are convinced, on the basis of the entire record, that the strike was substantially motivated by Respondent's refusal to bargain in good faith and its other unfair labor practices occurring between the Union's certification and the start of negotiations for a contract as well as those which occurred immediately after November 18, when the employees in the unit authorized strike action, if necessary. Indeed, the unfair labor practices which took place between the strike authorization meeting and the actual calling of the strike on Decem- ber 6, clearly interfered with the union activities of the employees and 8 Our finding that Respondent refused to bargain in good faith during the entire course of the negotiations is not prejudicial to Respondent, since it was apprised of these allega- tions and had the opportunity, which it exercised, to defend thereon. REEVES BROADCASTING & DEVELOPMENT CORPORATION 460. were intended to undermine the certified bargaining representative. That the strike was in great measure due to Respondent's activities during this 3-week period is evidenced by the testimony of Wilson, - the Union's negotiator, and Maddox, all employee. Wilson testified that the Union called the strike because of Respondent's treatment of - its employees as well as the stalemate in bargaining negotiations, and Maddox stated, in effect, that the strike resulted not only from the, failure of the negotiations but also because of complaints by individual employees that Respondent was intimidating them. Accordingly, we conclude that the strike was an unfair labor prat--1 tice strike and that Respondent's refusal to reinstate the strikers, upon their unconditional offer to return to work on January 25, 1962, violated Section 8(a) (3) and (1) of the Act.' 4: The General Counsel has excepted to the Trial Examiner's failure to recommend that Ronford Morrison, a striking employee who entered military service during the strike but before the Union's un- conditional application for reinstatement of the strikers, be afforded reinstatement upon his discharge from the Armed Forces. We find merit in this exception, and shall order the Respondent to notify Morrison that it will reinstate him if he applies within 90 days of his discharge from the Armed Forces.' 5. The backpay obligations of the Respondent shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing cC Heating Co., 138 NLRB 716.6 ORDER The Board hereby adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 1. Delete present paragraph 1(c) and substitute in its place the fol- lowing: "Giving effect to its rule promulgated on or about June 14,, 1961, or promulgating, maintaining, enforcing, or applying any rule-; or regulation prohibiting union activities by employees on Respond- ent's premises during nonworking tine." 2. In Paragraph 2 (b), after the words "The Remedy," add the words "as modified in this Decision." 3. At the end of present paragraph 2 (c) after the word "premises," add the words "during nonworking time." 4. After paragraph 2(c), insert a new paragraph to be numbered 2 (d), to read as follows : 4 Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294 , 309-310 Modern Motor Express, Inc, 129 NLRB 1433, 1434. 6 For the reasons stated in the dissenting opinion in the Isis case, Members Rodgers and Leedoin are convinced that the award of interest in this case exceeds the Board's remedial authority While adhering to such view , for the purposes of this decision they are acceding to the majority Board policy of granting interest on moneys due 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Notify Ronford Morrison by registered letter addressed to his last known address that the Respondent will offer him an opportunity to apply for reinstatement within 90 days after his discharge from the Armed Forces, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may suffer be- cause of Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages between a date 5 days after his timely application for rein- statement and the date of the offer of reinstatement by Respondent, less his net earnings during this period plus interest at the rate of 6 percent." 5. Renumber present paragraphs 2 (d), 2(e), and 2(f), as 2(e), 2(f), and 2 (g), respectively. 6. Make the following changes in the notice called "Appendix B": (a) At the end of the third paragraph after the word "premises," add the words "during nonworking time." (b) Before the paragraph "All our employees," insert "WE WILL notify Ronford Morrison of his right to apply for full reinstatement within 90 days after his discharge from the Armed Forces." (c) Change the penultimate paragraph to read, "This notice must remain posted for 60 consecutive days from the date of posting...." INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on December 4 , 1961, and February 12, 1962, the General Counsel of the National Labor Relations Board issued a consolidated complaint dated March 7, 1962, against Reeves Broadcasting & Development Corporation (WHTN- TV), herein called the Respondent, alleging that the Respondent had engaged in un- fair labor practices affecting commerce within the meaning of Section 8 (a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer on or about March 13, 1962, in which it admitted the jurisdictional allegations of the complaint but denied the commission of any unfair labor practices. A hearing was held before Trial Examiner John H. Eadie at Huntington, West Virginia, from April 3 to 6, 1962, inclusive. During the General Counsel's case, the Respondent moved to dismiss paragraph 6(d) (ii ) of the complaint. At the same time the General Counsel moved to amend said paragraph of the complaint by changing the date therein from March 18, 1961 , to November 18, 1961 . Ruling was reserved on both motions . The General Counsel's motion to amend is granted . The Re- spondent's motion to dismiss, together with other motions to dismiss, made by the Respondent at the close of the General Counsel's case and renewed at the close of the whole case, are disposed of as hereinafter indicated . After the conclusion of the hear- ing, the General Counsel and the Respondent filed briefs with the Trial Examiner. Both from the entire record in the case , and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation , is engaged in the operation of television stations located in Bakersfield, California, and Huntington , West Virginia . Only sta- tion WHTN-TV in Huntington is involved herein . During the period of 12 months preceding the date of the complaint herein, the Respondent derived a gross in- come in excess of $100,000 from the operation of said station . During this same period, Respondent performed advertising services of a value in excess of $50,000 REEVES BROADCASTING & DEVELOPMENT CORPORATION 471 for persons and firms advertising national brand products, each of which is located outside the State of West Virginia. The complaint alleges, the Respondent's answer admits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED National Association of Broadcast Employees and Technicians , AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union filed a petition for certification on March 15, 1961. Following a rep- resentation hearing on April 13, 1961, the Board conducted an election on June 13, 1961. Of 39 eligible voters, there were 23 votes for and 15 votes against the Union. The Board certified the Union on June 21, 1961. Bargaining sessions between the Respondent and the Union were held on August 23, 24, and 26, October 11, 13, 19, and 23, November 16 and 25, and December 21 and 22. John Jenkins, Jr., the Respondent's attorney; Clark Davis, its operations manager; and O. W. Myers, its vice president and general manager, represented the Respondent during the negotiations . Dorr Wilson, Edward Lynch,' Robert Maddox, and Erskine Barton represented the Union. Wilson and Lynch were the Union' s national rep- resentative and regional director, respectively. Maddox and Barton were the Local Union's president and vice president, respectively. The Union submitted contract proposals on August 10 and October 19, 1961, and March 14, 1962. The Respondent's counterproposals were submitted on Octo- her 11 'and November 16. The parties were unable to agree on a contract at the meeting held on November 16. The employees at a subsequent union meeting rejected the Respondent's last proposal. A Federal mediator was present at the last three bargaining sessions. On December 4 the Union filed an unfair labor practice charge alleging a refusal to bargain and called a strike commencing on December 6. The Respondent continued to operate the station, using replacements and some employees who did not join the strike. The bargaining negotiations were discontinued on December 22 when the Respondent advised the Union that most of the strikers had been permanently re- placed. By letter dated January 25, 1962, the Union on behalf of the striking em- ployees made an unconditional offer to discontinue the strike and to return to work., The Respondent did not answer the Union's letter, but did reinstate the strikers on or about March 5, 1962? B. The status of Robert Hamlin The question of whether or not Hamlin is a supervisory employee is in dispute. He was promoted to the position of "production manager" on June 1, 1961. He voted in the election without challenge by the Union. The evidence discloses that Hamlin has the authority to effectively recommend the hiring and firing of employees, grants time off from work to employees, gives orders and assigns work to employees, decides when overtime work is necessary, has the authority to reprimand employees, approves changes on timecards involving errors and lateness for work, and attends management meetings "once a week." I find that Hamlin is a supervisory employee within the meaning of the Act. C. Interference, restraint, and coercion; the negotiations At sometime shortly before the election, Myers told employees Barton, Hamer, and Jones that "no intelligent person would need an outsider from Buffalo to come down and bargain," 4 and that they could do "very well" by bargaining for themselves "individually." On June 14, 1961, Myers issued the following notice to all employees: As you all know, the majority of the personnel permitted to vote decided they wished to be represented by NABET. Undoubtedly, a considerable amount of activity on this subject (between the Company and Union representatives only) 1 Myers and Lynch were present at the two December meetings only S The Respondent admitted receiving the above letter on or about January 27 $ Employee Ronford Morrison was on strike from December 6 to January 15, at which time he entered the armed services. I The evidence shows that the Union has its office located in Buffalo, New York 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will now follow. However, please be advised that effective immediately, there is to be no further discussion of Union activities by the employees on Company time, or on the premises of WHTN-TV. It is found that the above rule is violative of Section 8(a)(1) of the Act since it prohibits employees from engaging in union activity on the Respondent' s premises during their free time. During July or August 1961, Hamlin had a conversation with employee William .Mays. Hamlin told Mays that the Respondent "had no intention of signing a con- tract until a year was up, at which date they would ask for a revote and vote the Union out." As stated above the first bargaining session between the Respondent and the Union was held on August 23. The Union's first prosposal was discussed by the parties. Jenkins stated that he thought that the "proposals were not too realistic." When Wilson said that the Union was "not here to change [the Respondent's] method of operations," Davis replied, "The Reeves Company has reorganized WHTN-TV. We've found that this is the most efficient way to operate, and this is the way we're going to operate, regardless of negotiations, or regardless of contract. This is the practical and economical way to operate the station. This is the way we're going to do it." The Union's proposal provided for a union shop. As to this proposal, Jenkins stated that a union shop was against the Respondent's policy as it "had made com- mitments to certain employees of WHTN-TV that . the joining of a union would not be a . . . condition of employment"; that the Respondent was "not going to violate that position to those employees"; that "in this Huntington market it was ,rather_a unique thing to have a union shop"; and that Wilson "had better reconsider the whole proposition, get off this Union Shop business because it just isn't to be." The Respondent rejected the Union's proposed classification of employees, stating -that it was necessary for it to have "complete flexibility in assignment of personnel." At the meetings between August 24 and November 25, there were about eight major issues upon which the parties could not agree , including union security, jurisdiction, ,seniority, overtime, wages, and grievances. As to jurisdiction, the Union proposed that production and engineering work was to be performed only by employees in the unit. At one of the first meetings the Respondent contended that it "needed some freedom in supervisory employees being able to do on-the-air work, or to do some engineering work." At a later session, Jenkins stated, "We don't know what the future holds for the broadcast business, and we may even want to farm out the maintenance of technical equipment." With respect to seniority, the Union took the position that it should be "defined clearly as an employee's service with WHTN owners, and previous owners. and should apply for the purposes of pay, retirement, whatever else might be involved in seniority, but primarily for the purposes of layoffs " The Respondent claimed that it had no obligation to recognize any seniority before the date that it became the owner of the station. The Union proposed that overtime would consist of all time worked in excess of 8 hours per day or 40 hours per week. The Respondent's position was that the work shift should be 9 hours,5 with the overtime rate being paid for hours worked in excess of 40 per week only. At either the meeting on August 24 or 26, the Respondent's representatives stated that they would not change their position on overtime "come hell or high water." As to grievance procedure, the Respondent proposed, "The Adjustment Board meet- ings and Arbitration meetings shall not be held on company time." The Union claimed that the settlement of grievances should be on company time. On October 12, 1961, John Hastie, the Respondent's president, told Maddox that the Respondent was going "to recommend merit raises" for him and some other em- ployees. On the same date Davis told employees Barton and Kenneth Jones that they were to receive merit raises, subject to the Union's approvals 5 In the Respondent's first written proposal under "hours of work" it is stated, "The Company will endeavor to establish work shifts so that no employee will work more than nine (9) hours in one day." , 6 Jones testified that Davis told him that he was "sure the Union would turn [the raise] down the next day " Davis denied the remark attributed to him by Jones. His denial is credited In his affidavit Jones states, "He [Davis] said, the raise will be sub- mitted to the union, but I don't know whether they'll accept it or not " From the testi- mony of Hastle and Davis, whom I credit in this connection, and from the record as a whole it is, clear that Maddox, Barton, and Jones were told that the raises, were subject to the Union's approval REEVES BROADCASTING & DEVELOPMENT CORPORATION 473 At the bargaining session the following day, October 13, the Respondent proposed merit wage increases for approximately 10 or 12 employees. At a later meeting the Union rejected the Respondent's proposal. The General Counsel contends that the Respondent's action in advising Maddox, Barton, and Jones of the raises was viola- tive of Section 8(a)(1) and (5) of the Act. I disagree. Maddox and Barton were officers of the Union and represented it at the negotiations. Further, Davis testified without contradiction that Jones attended some of the bargaining meetings. Accord- ingly, I find that the above conduct of the Respondent was not violative of the Act. At the conclusion of the bargaining session held on November 16, Wilson asked the Respondent's representatives, "Now, is this the proposals that we're going to take to the membership? . Is this your idea of what we have got to ask the employees to ratify?" Jenkins replied, "You all got it, Red. This is it. This, with the excep- tion of changing a comma, or a typographical error here or there, is the Company's proposal to you, and we're not going to change it from this. So go to ratification." During the meeting Jenkins asked Wilson if the Union would give "some warning as to when they were going to strike." Jenkins spoke about the possibility of the station being forced off the air if the strike "came suddenly." 7 Wilson refused to give such warning. On November 18 Davis called the station and spoke to employee Walter McClure. He asked McClure if he was going that night to the union meeting at which a strike vote was scheduled to be taken. McClure replied, "I'm not that interested in it either way.... I'm not going." Davis then said, "Well, I want you to go," telling him to call back and let him know the result of the vote. It is found that Davis' request of McClure to inform on the union activities of his fellow employees constitutes inter- ference, restraint, and coercion.8 McClure attended the union meeting on November 18. When he returned to the station that night be had a conversation with Hamlin. Concerning this conversation and a later one he had with Hamlin that same night, McClure testified credibly, "So I told Bob I wasn't going to call [Davis] back, that I didn't feel it right for me to do so, because I would have been squealing on the other side, ... and I said, `If you want to call him, you can call him. I'm not going to.' So he said, `What was it?' I said, `I don't know. The meeting was over, I didn't get there to attend the meeting, but I heard that it was an instant strike.' He said, `Well, the only thing that can mean is will be an instant firing.' . . . And he said that if they struck that they would just hold them out.... 'We will starve you out,' is what he said, `Until June, and then we can take another vote, and naturally the guys existing then is going to vote the Union out,' . . . but he said Mr. Myers had told him, ... that if we went out he'd drill holes in the marquee so it would rain through on us when it rained." 9 It is found that Hamlin's threat, to the effect that employees who participated in a strike would be discharged, is violative of Section 8(a)(1) of the Act. Davis had another conversation with McClure on November 26. McClure testi- fied that he was in the "control room" with Hamlin and employees Guerney and Nelson; that when Davis entered the room, Guerney and Nelson walked to the back of the room; that when Davis said he wanted to talk to McClure, Hamlin left the room; that Davis then said that he had come to talk to him about the Union since he (McClure) did not "seem to care one way or the other how it went"; that when Davis asked him if he was going on strike or if he would cross the picket line, telling him, "I have to know this evening," he replied that he did not know what he was going to do, that he asked Davis, "Are you going to sign a contract or not?" that Davis 7 Myers testified, "There are the Federal regulations which require us to broadcast a minimum number of hours everyday , and we could be, I suppose , subject to lose our license if we weren't. . . " 8By memorandum dated November 20, 1961, Davis notified the employees as follows: In view of the fact that a few of the company's employees have decided to strike, we would like to take this opportunity to advise you of the company's position in this matter and how we plan to handle the situation. In order that we do not prejudice the operation of this station, we request that you advise the undersigned individually when you are leaving to give us ample time to relieve you of your duties and obtain a regular replacement. Federal Law prohibits the interruption of television and/or radio operations It is our intention to continue to operate with normal program services. Your diligent attention to this is suggested "Hamlin denied making the remark about "instant firing " His denial is not credited. Concerning the balance of the conversation, lie testified, "It might have been just jokingly I said something, but I didn't refer to Mr Myers. I said, 'If I was to go out on strike, . . . they'd probably drill holes through the marquee and let the rain fall on us.'" 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answered, "We have no intentions whatsoever of ever signing a contract"; that Davis said that if he went out on strike, he would be "replaced" as the station had to stay on the air; that Davis said, "Of course, you realize that you're one of the eleven people who was due a raise, but the Union negotiates for the people as a whole and not for one man, and, therefore, you know, you didn't get it.... If it's the money situation, we'll give you a hundred, or a hundred fifteen, or you name it"; and that when he said he was "not afraid of anyone on the picket line or off the picket line," Davis re- plied, "Well, if it's for your family, ... We'll send them to safety, . . . no matter where in the world it is, to Africa, or where-have-you.... if it costs a thousand or two thousand, we'll send them." Concerning the conversation, Davis was questioned and -testified as follows: Q. Now, there has been testimony about a conversation on November the 26th, 1961, involving yourself and a Mr. McClure, and further testimony that you said in words or substance that, "We have no intention of signing a contract." Did you ever make such a statement to Mr. McClure? A. No, sir. Q. Do you have any recollection of a conversation with him on or about that time? A. Yes, I do. Q. Do you recall what was that, and the circumstances of the conversation? A. I'm not quite sure how the conversation started, whether or not I asked him or not, but I believe I asked Walt whether or not he was going on strike-I may have this out of context. He then said .to me that if he were in, he would not walk out; but if he were out, he would not walk across the picket line. He said that he lived in the neighborhood of one of the other employees, and- Q. Who? A. Jim Reynolds. Q. All right. A. And that he had been threatened, and his family had been threatened, and he said if it were just he, himself, he would not be afraid. So I said, "Well, if it's because of the fear or your family, we'll help you protect them as readily as we would anyone else working for us." I then said, "We would send them somewhere, if we had to." I don't believe I picked Africa, however. Q. All right. Did you offer him any money, such as-or make any state- ment to him that "We will Live you a hundred or a hundred fifteen dollars if it's the money that's necessary"? A. Not to my knowledge. Q. Do you have any recollection of any conversation on the subject matter of your paying McClure any money? A. No, I do not. Q. Did you ever make the statement to McClure that, "If you go out you will be replaced"? A. Asa statement, no. Q. What was said on that? A. There was nothing particularly said to him about it. Guerney testified, "[McClure] was working on the control board . . . and I came in, and I asked him, 'If the boys go out on strike, are you going to work?' And he made some remarks to the effect that if he was in, why, he would stay in the building and work.... He said something about, to the effect that he was afraid for his family, and that he was worried for fear something would happen to them if they did go out on strike and he worked. And as I recall, about that time Mr. Davis came up-whether-I didn't even know that he was there. He said something to the effect, 'Well, if you're worried about your family, we would certainly try to protect them in anyway.... If it got rough enough.... We would move them away from home so that they wouldn't be subject to any breaking heads, or anything such as that.' . . . Clark said something it might cost the station a thousand or two thousand dollars to protect them, if they got to that extent, to have them somewhere else." Guerney also testified that, other than the above, Davis made no mention of money; and that he present during the entire conversation between Davis and McClure. I credit McClure's version of the above conversation, and find that Davis' offer of money to McClure to induce him not to join the strike constitutes interference, re- straint, and coercion. REEVES BROADCASTING & DEVELOPMENT CORPORATION 475 On November 26 shortly after the above conversation between Davis and McClure, Davis spoke to employee Paul Workman.10 Guerney and another person were present at the time. Davis asked Workman if he was "interested in full-time employment." When Workman replied that he was, Davis said, "Well, you know of the Union trouble we're having here at the station. . . . I could give you full-time employ- ment if you would come across the picket line.... It would be the job of one of the-out on the picket line.... You don't have to have an answer right now.... If I see you cross the line, then I'll know what your answer was. . . . There's no sense in telling anybody about this conversation, because I have two witnesses that would swear that it never happened." Guerney then said, "I didn't hear anything in this conversation."" I find that Davis' offer of full employment to Workman if he did not join the strike was violative of Section 8(a) (1) of the Act. On November 29 Maddox was called to the office where he had a conversation about the Union with Myers which lasted for about 3 hours. In substance, Myers told Maddox that "the Union was really getting out of hand. . . . It appears to me that we're not in the television business here, we're in the union business"; that he wished there was "some way of getting rid of the Union"; that he felt that what the employees needed was a "company union"; and that "with a company union you have everything that you can have with a labor organization, such as the one that you have, with the exception with the company union you don't have to pay dues. . . Now, Mr. Wilson, you will have to remember is just a salesman for the Union, and his interest is in collecting the dues." He asked Maddox to speak to the other employees about a company union, telling him to feel free to come back at any time for further information on the subject and that he (Maddox) would be "influential in determining what they would do" since he was "the leader of the Union people." i2 I find that Myers' statements concerning a company union constitute interference, restraint, and coercion. At the bargaining session held on December 21 the parties discussed the Respond- ent's proposals of November 16. Excepting that the Respondent indicated that it might make some minor concessions on its proposals for overtime, grievance procedure, termination of employment, and seniority, the Respondent 's position remained fixed.13 Jenkins told the Union's negotiators that he "thought" the Respondent would accede to a 10-hour day for overtime purposes. As to the Respondent's proposals on grievance and discharge procedure, Lynch testified credibly, I suggested that we change the wording of it to the point where the Company would allow the employee to file a grievance and take it up with his immediate supervisor, if necessary, on Company time, but that the steward in processing it, the Company would agree that they would meet with the steward within a reasonable time, but that we wouldn't require in any contract that it be on company time or not, that if they wanted to meet on company time, all right, but if not, that they would meet at some other time , but they would agree to meet within a reasonable period of time. The period of time suggested was five days. The Company negotiator, Mr. Jenkins, said at that time that that approach seemed not unreasonable, and that he felt that the Company people ought to examine whether they could make any change in their position on that, on the grievance. Well, our position was that employees should be discharged for just cause only; and that any disputes that arose from that determination on the part of the Company would be an arbitrable grievance. 10 Workman was hired by the Respondent on June 30, 1961 , as a part-time projectionist. He worked 32 hours per week. 11 The above statements of Davis and Guerney are based upon the credited testimony of Workman. Contrary testimony and denials by Davis and Guerney are not credited ' Maddox testified credibly to the above. The denials and contrary testimony of Myers are not credited. The complaint alleges that during this conversation Myers stated that "the best thing he could do for an employee union negotiator (Barton) would be to fire him." Both Maddox and Myers testified in this connection . Since it is clear from their testimony that Myers' statements concerning Barton were not coercive , I have not set forth this part of the conversation. 13 Wilson testified that at the meeting held on November 25 Jenkins told him that "in the event of a strike all company proposals will be withdrawn ." Jenkins denied making this statement at any time. His denial is credited. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company's proposal on the table at the time stated that this would be the case, that the employees would be discharged for just cause. They went on to say that just cause might include ability and qualifications, and such things for salesmen as time sales they were making, and things of that sort, which qualified it, and I told Mr. Jenkins to the extent that it became meaning- less, that the Company stated in their proposal that these determinations as to qualifications were to be absolutely the prerogative of the Company to make and wouldn't be subject to any litigation on our part to determine the factual situation; ,that this was utterly unfair. . that this was absolutely something that no company could ask a reason- able man to adopt, the clause which would give the company the absolute right to determine qualifications, and then fire a man or discharge a man for lack of. And during that conversation Mr. Jenkins and the Company negotiators said that the way I put it, it sounded as though they were being rather strenuous, and that he felt moved to take it up with his principals as to whether or not they had ought to make any change in that. With respect to the Respondent's seniority proposal,14 the paragraph relating to reduction in staff provided that the Respondent was to be "the sole judge of quali- fication of any employee." Jenkins indicated that this provision "could be dropped." The meeting on December 21 continued until about 10 p.m., at which time the Union's representatives withdrew in order to consider the Respondent's proposals. At the time Lynch told the Respondent's representatives, "We will get proposals together, and see you." The meeting during the morning of December 22 lasted for only about 10 minutes. Concerning this meeting Lynch testified credibly as follows; Well, upon arrival of all the parties, we were all in the room, and I said to Mr. Jenkins that during the session that we had had the previous night, that some of the employees had said to me that they were somewhat concerned that one of the problems was going to be encountered by us that the Company would refuse to reinstate any of the strikers, and I said, "Mr. Jenkins, since this point has been raised by some of the employees, I feel I want to settle that with you first." And I said, "And we want it understood that if all the terms and conditions of a contract can be worked out by us here through our efforts, that one of the terms and conditions of the settlement would be that the striking employees would be reinstated without loss of pay or seniority." * * * * * * * And Mr. Jenkins said that they would not agree to such a provision in any settlement agreement; that the Company might employ a couple of the strikers, and that they would be willing to discuss with me putting the balance of these people on a rehiring list for future employment. * * * * * * * I told him, as he knew, our purpose in being there was to try and work out a settlement of the disputes and get the strike settled as expeditiously as possible, before Christmas, if it could be done, and that we wanted to get it done before the parties' positions had hardened to an extent where it made settlement extremely difficult, if not impossible, and since he had adopted this attitude on . not reinstating the strikers, that it made our efforts futile and it was ridiculous to try and make concessions to settle the agreement when they were being adamant on that point, and that, therefore, there was no point in continuing those negotiations on that expedited basis, let everybody go home for Christmas. D. Conclusions There is no issue in the case that the Respondent at any time refused to meet or negotiate with the Union. There were 11 bargaining sessions, some of which appear to have been protracted. Throughout the negotiations the parties were far apart, at least insofar as their written proposals were concerned. On some issues, such as union security and talent fees, the Respondent indicated that it was a waste of time and effort to negotiate; but there is no evidence that the Respondent refused to discuss such issues. "In the Respondent's original proposal of October 11, Incase of a "reduction in staff" an employee's seniority was based on his length of service with the Respondent in its proposal of November 16 this was changed to service with the station. REEVES BROADCASTING & DEVELOPMENT CORPORATION 477 Contrary to the contention of the General Counsel, I do not believe that the evidence shows that the Respondent's position in general remained fixed and inflexible during the negotiations. As found above, at the meeting on December 21 the Respondent indicated that it would make some concessions on its proposals dealing with overtime, termination of employment, grievance procedure, and seniority. In addition to this, I note that the Respondent in its written proposal of November 16 increased the wage offers for certain classifications over those made in its original proposal of October 11. These increases applied to engineers, announcers, and "news director, newsman." 15 An examination of the Respondent's and the Union's proposals reveals that the parties were never close to a contract, and that the Respondent in its second proposal made some improved offers, such as the above. The proposals, of course, speak for themselves; but it is noteworthy that Wilson in effect admitted that the Respondent's proposal of November 16 contained 11 "major concessions" as against the Union's "original proposals." It may be that most or all of these "concessions" could be considered inconsequential and were not offered with a serious intent of reaching agreement with the Union; but, in my opinion, from the record as it stands such a finding is not warranted. Taking into consideration the evidence on the negotiations only, it would appear that the Respondent was bargaining in good faith. However, the statements to employees of Myers, Davis and Hamlin, found above, reveal the Respondent's true position in the matter. While the Respondent was going through the motions of bargaining collectively with the Union, they were urging employees to displace the Union with a company union, and telling them that the Respondent had no intention of entering into a contract and was stalling until the time when they could "vote the Union out." Accordingly, I find that the Respondent on and after about December 6, 1961, refused to bargain collectively in good faith with the Union. In view of the above findings, it is clear that the strike was from its inception an unfair labor practice strike, motivated and prolonged by the Respondent's failure to bargain in good faith, and I so find. I further find that the Union on January 25, 1962, made an unconditional offer to return to work on behalf of the striking employees. Therefore, the Respondent by failing and refusing to reinstate the strikers until on or about March 5, 1962, violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operation described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will recommend that the Respondent be ordered to bargain with the Union upon request as the exclusive representative of all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. It has been found that the strike which commenced on December 6, 1961, was caused by the Respondent's unfair labor practices and hence was an unfair labor practice strike; that on January 25, 1962, the Union on behalf of the striking em- ployees made an unconditional offer to return to work; and that the Respondent did not reinstate the strikers until on or about March 5, 1962. Accordingly. I will recommend that the Respondent be ordered to make whole the striking employees named in Appendix A, attached hereto, for any loss of pay they may have suffered is The proposals provided for rates based upon a sliding scale, according to the length of service The proposal of November 16 increased the first-step rates of engineers and newsmen, but not of announcers. However, it increased the rates of announcers for the other steps set forth As noted above, the Respondent's proposal for seniority was based upon length of service with the Respondent, rather than with the station In this con- nection the General Counsel contends in his brief, "At the meeting of December 21, the, Respondent's seniority proposal indirectly decreased wages through reducing seniority by, starting it in January, 1961 [the date when the Respondent acquired the station] " In my opinion, the evidence does not support this claim. _ 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reason of the Respondent's failure and refusal to reinstate them until the above date by payment to each of them of a sum of money equal to that which each normally would have earned in wages during the period from January 25, 1962, to March 5, 1962, less his net earnings during such period in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, 291-294. Ronford Morrison is not included in this recommendation since there is no evi- dence on his case except the testimony of Maddox that Morrison went "into the service" on or about January 15, 1962. 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. All employees in the program production, engineering, and sales departments at the Employer's Huntington, West Virginia, television station, WHTN-TV, in- cluding announcer-directors, salesmen, engineers, floorman, film editors, photog- raphers, artists, mailroom employees, janitors, continuity writers, traffic department employees, and regular part-time employees, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute an appropriate unit within the meaning of Section 9(b) of the Act. 2. National Association of Broadcast Employees and Technicians, AFL-CIO, has been at all times on and after June 21, 1961, the exclusive representative of all the employees in the aforestated appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 3. By refusing at all times on and after about December 6. 1961, to bargain collectively with the above-named labor organization as the exclusive representative of its employees in the aforestated appropriate unit the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By discriminating with respect to the hire and tenure of employment of the employees named in Appendix A, attached hereto, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The strike which commenced on December 6, 1961, was caused by the Re- spondent's unfair labor practices and hence was an unfair labor practice strike. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , I recommend that the Respondent , Reeves Broadcasting & Development Corporation (WHTN-TV), Huntington, West Virginia , its officers, agents, successors , and assigns, shall: 4. Cease and desist from: (a) Discouraging membership in National Association of Broadcast Employees and Technicians, AFL-CIO, or any other labor organization of its employees, by discriminatorily failing and refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with the above-named labor organization as the exclusive representative of its employees in the appropriate unit found above. (c) Giving effect to its rule promulgated on or about June 14, 1961, which pro- hibits union activities by employees on the Respondent's premises. (d) Urging and requesting employees to form a company union and to inform on the union activities of other employees. (e) Threatening employees with discharge because of their union activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor REEVES BROADCASTING & DEVELOPMENT CORPORATION 479 organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and con- ditions of employment, and embody in a signed agreement any understanding reached. (b) Make whole each of the employees named in the attached Appendix A for any loss of pay they may have suffered by reason of the Respondent's failure and refusal to reinstate them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Rescind its rule of June 14, 1961, which prohibits employees from engaging in union activities on the Respondent's premises. (d) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records and reports necessary for the determination of the amount of backpay due under this Recommended Order. (e) Post at its plant in Huntington, West Virginia, copies of the attached notice marked "Appendix B." 16 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt there, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Reigonal Director for the Ninth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith.17 16 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." 17 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A Robert Maddox Paul Workman Kenneth Jones James Barbour Richard Mays Erskine Barton Eddy Gene Stephenson John Conrad John James Andrew Nagler Lewis Rowman Eugene Henson Walter McClure James Reynolds Charles Cook Daisy Reynolds APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in National Association of Broadcast Employees and Technicians, AFL-CIO, or any other labor organization of our employees, by failing and refusing to reinstate any of our employees, or otherwise discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE hereby rescind the company rule promulgated on June 14 , 1961, which prohibits union activity by employees on our premises. WE WILL NOT urge and request employees to form a company union and to inform on the union activities of other employees. WE WILL NOT threaten employees with discharge because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist National Association of Broadcast Employees and Technicians, ' AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL make, whole the following employees for any doss of earnings they may have suffered by reason of the discrimination against them: Robert Maddox Paul Workman Kenneth Jones James Barbour Richard Mays Erskine Barton Eddy Gene Stephenson John Conrad John James Andrew Nagler Lewis Rowman Eugene Henson Walter McClure James Reynolds Charles Cook, Daisy Reynolds All our employees are free to become, remain, or refrain from becoming or re- maining members of any labor organization , except to the extent that this right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. REEVES BROADCASTING & DEVELOPMENT CORPORATION (WHTN-TV), Employer. bated------------------- 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. Employees may communicate directly with the Board's Regional Office, Transit Building, 4th & Vine Streets, Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Local 28, International Stereotypers ' and Electrotypers' Union of North America, AFL-CIO and Capital Electrotype Com- pany, Inc. Case No. 3-CD-56. January 7, 1963 DECISION AND ORDER Upon a charge filed on June 28, 1961, by Capital Electrotype Com- pany, Inc., herein called Capital, the General Counsel of the Na- tional Labor Relations Board, herein called the General Counsel, by the Regional Director for the Third Region, issued a complaint dated August 10, 1962, against Local 28, International Stereotypers' and Electrotypers' Union of North America, AFL-CIO, herein called the Respondent, alleging that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Sections 8(b) (4) (D) and 2(6) and (7) of the Act. Copies of 140 NLRB No. 49.