Bartell Broadcasters, Inc.

BARTELL BROADCASTERS, INC. APPENDIX 551 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 give notice that: WE WILL NOT discourage legitimate union activity or membership in Truck Drivers Local Union No. 407 , International Brotherhood of Teamsters or any other labor organization by laying off or discriminating against Nick Vitantonio or any other employee because an employee exercises his right as guaranteed in the National Labor Relations Act. WE WILL pay to Nick Vitantonio the wages he lost by reason of his illegal layoff in October 1963. TROJAN FREIGHT LINES, INC., Employer. 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, 720 Bulk- ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Bartell Broadcasters, Inc. and Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Elec- trical Workers. Case No. 30-CA-31 (formerly 13-CA-6067). December 22, 1934 DECISION AND ORDER On August 3, 1964, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exami- ner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. The General Counsel filed a brief in answer to the Respondent's exceptions and brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Mc- Culloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1 As the record , including the exceptions and briefs , adequately sets forth the Issues and the positions of the parties , the Respondent's request for oral argument is hereby denied. 150 NLRB No. 28. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 1. Add the following paragraph as paragraph 2(b), the present paragraph 2(b) and those subsequent being consecutively relettered: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 2. The address of the Board's Regional Office in the notice to all employees is amended to read as follows : "Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Telephone 272-8600, Extension 3860." 2 On November 17, 1964 , the Respondent filed a motion to reopen the record and take official notice of the decision of the Industrial Commission of an appeal tribunal and holding that Conrad Mangrum was discharged for misconduct as charged by the Respond- ent. It is contended by the Respondent that since the original determination of the appeal tribunal was an important factor in the Trial Examiner's determination that Mangrum was not discharged for misconduct but for his union activities , the decision of the Industrial Commission is new evidence not previously available and should be con- sidered by the Board . In reaching our decision-in respect to Mangrum' s discharge, we have not relied in any respect upon the disposition by the appeal tribunal of Mangrum's application for unemployment compensation , but rely solely upon the evidence introduced at the hearing before the Trial Examiner . The Respondent's motion is accordingly denied. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on December 9, 1963, by Radio & Television Broadcast Engi- neers, Local No. 715, International Brotherhood of Electrical Workers, hereinafter called the Union, the General Counsel of the National Labor Relations Board, here- inafter called the General Counsel I and the Board, respectively , by the Regional Director for Region 13 (Chicago, Illinois ), issued his complaint dated February 12, 1964, against Bartell Broadcasters , Inc., hereinafter called the Respondent. The complaint alleged that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5) and Sec- tion 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charges, the complaint, and notice of hearing thereon were duly served upon Respondent and the Union. Respondent duly filed its answer admitting certain allegations to the complaint but denying the commission of any unfair labor practices. 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. BARTELL BROADCASTERS, INC. 553 Pursuant to notice, a hearing thereon was held at Milwaukee, Wisconsin, on March 25, 26, and 27, 1964, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel, and were afforded full oppor- tunity to be heard, to produce, examine, and cross-examine witnesses, and to intro- duce evidence material and pertinent to the issues. Oral argument at the conclusion of the hearing was waived. Briefs were received from General Counsel and Respond- ent 2 on May 26, 1964. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material herein, Bartell Broadcasters, Inc., is, and has been, a corpora- tion duly organized under, and existing by virtue of, the laws of the State of Wiscon- sin. At all times material herein Respondent has maintained its principal place of business at Milwaukee, Wisconsin, and has maintained various other places of busi- ness in the States of California, Colorado, and New York, and is, and has been at all times material herein, engaged at said places of business in the operation of radio stations and the business of radio broadcasting. Respondent's radio station WOKY, located at Milwaukee, Wisconsin (herein called the station), is the only station involved in this proceeding. Respondent, during the calendar year 1963, in the course and conduct of its business operations, derived a gross income in excess of $100,000. During the same calendar year, Respondent furnished advertising services valued in excess of $50,000 to the American Tobacco Company, P. Lorillard Co., Inc., R. J. Reynolds Tobacco Company, and other advertisers of nationally sold prod- ucts located outside the State of Wisconsin. The complaint alleged, the answer admitted, and I find that Respondent is engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Electrical Workers, is a labor organization admitting employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The facts During the instant proceeding 18 witneeses were sworn and testified, 2 for the General Counsel and the remainder on behalf of Respondent. However, Respond- ent's counsel, who was neither sworn nor took the witness stand, did most of the testifying on behalf of his 16 witnesses through leading and suggestive questions. 2At the hearing Respondent presented evidence of certain matters of a defamatory char- acter, if true, allegedly occurring in December 1961 and January 1962, which Respondent claimed constituted one of the causes of the discharge here involved. On cross- examination of Respondent's witness giving this testimony it developed that Respondent's first knowledge of these alleged events came to it on March 18, 1964, 7 days prior to the present hearing and 5 months subsequent to the date of the discharge. As, therefore, these events could not possibly have played any part in Respondent's decision to discharge, I, on motion of the General Counsel, ordered the evidence stricken from the record with with the added admonition to Respondent that, if it had any testimony whereby that material could be connected to the discharge, that evidence should be presented and quickly. None was. In its brief, however, Respondent referred to this stricken testimony by mentioning an allegedly pending lawsuit growing out of the alleged events of 1961-62. This alleged suit, pending or otherwise, was completely de hors the record of the instant case, desfiite a statement to the contrary made in Respondent's brief. Respondent's counsel followed this questionable practice with a letter dated July 9, 1964, addressed to me and to the General Counsel purporting to report the decision of an unnamed "County Court" in the above-mentioned lawsuit and ending: "We respect- fully request that this information should be associated with the record." Respondent's request is hereby denied. In addition the aforementioned references to testimony stricken at the hearing or to matter de hors the record have been disregarded except to the extent mentioned antra. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of these I could give full faith and credit to the testimony of only one: James Wilkerson, the union organizer. I could not credit the alleged discriminatee, Con- rad Mangrum, with being a completely frank and open witness although, in his case, his lack of candor and frankness occurred in connection with the subject matter introduced by Respondent as an alleged defense, or something, to the discharge which was subsequently stricken as noted in the footnote above. As for Respondent's 16 witnesses, each and every one of them proved most com- pliant and responsive to counsel's leading and suggestive questions. In fact most, if not all, of Respondent's witnesses succeeded in either impeaching or discrediting themselves by their very willingness to agree to the facts stated in Respondent coun- sel's questions, many of which were in rather direct contradiction to what counsel himself had stated as a fact during an arbitration hearing held on December 7, 1963. Despite the above, the record does establish the following basic facts: (1) Since 1947, when Respondent first recognized the Union as the representative of its broadcast engineers at Station WOKY, there has been a series of continuous collective-bargaining agreements between Respondent and the Union covering the wages, hours, and working condition of those broadcast engineers. On occasion the negotiations of these contracts have been protracted well beyond the expiration date of the prior agreement and, as an almost usual occurrence, Respondent has agreed upon the contract only after the Union's contract with Station WPMJ in Milwaukee had been negotiated and executed. (2) The latest contract between Respondent and the Union was dated October 1, 1960, and was by its terms to expire' on September 30, 1963, unless automatically renewed. (3) On or about May 21, 1963,3 Respondent discharged one of its five regular broadcast engineers 4 by the name of Kenneth Kussman. Conrad Mangrum, the steward for the Union at WOKY for approximately 8i of the past 10 years, promptly filed a grievance over this discharge in accord with the desires expressed by the union members at their June union meeting. Thereafter Mangrum remained active along with Wilkerson, union business agent, in bringing the Kussman discharge to arbitra- tion as provided for in the existing collective-bargaining agreement. This activity irritated Respondent. (4) By letter dated July 22, over the signature of John A. Reddy, station WOKY manager, Respondent notified the Union that it "elects to terminate" the existing collective-bargaining agreement with the Union "as of September 30, 1963," its expira- tion date. This was the first time Respondent has ever elected to terminate such an agreement. Respondent's letter gave no reason for its action. (5) By letter dated July 31, over the signature of Union Business Agent James A. Wilkerson, the Union notified Respondent of the receipt of Respondent's July 22 letter and gave notice of the Union's desire to negotiate certain specified changes in a renewal agreement to take effect October 1, 1963." Among the changes specified in said letter was a pension plan whose cost was to be borne by Respondent. (6) Thereafter a negotiation meeting between the parties was scheduled and held on August 29. In attendance at this meeting held in Reddy's office were Wilkerson and Mangrum for the Union and Reddy for Respondent. Following a short discus- sion of the Union's proposed changes in the agreement, it was suggested that further negotiations be postponed until it was determined whether Respondent and other Milwaukee radio stations would engage in joint negotiations of a contract with the Union as had been suggested by Spheeris of station WEMP and which was then under consideration. This was agreeable to the Union. (7) About October 1 Wilkerson learned from Spheeris that there would be no joint negotiations with the Union. He thereupon telephoned that information to Reddy who agreed to continue negotiations on October 14. (8) On October 3 Attorney Bartell had Engineers Grevenow and Christopherson sent to his office purportedly to discuss the "misconduct" of Kussman in preparation for, the arbitration hearing on the Kussman discharge.5 During this conference 3 All dates herein are 1963 unless otherwise specified. 4 From May 8, when it employed Ralph Evans' nephew, Dennis Christopherson, as an engineer, until May 21 when it dismissed engineer Kussman, Respondent actually had six engineers employed in this five-engineer unit. Ralph Evans is director of engineer- ing for Respondent. 5 Although Kussman was discharged within 2 weeks of Christopherson's employment, Christopherson testified that he "saw" the misconduct of Kussman "often." Christopherson was a most compliant witness for Respondent. In answer to leading questions he testified that he joined the Union at the request of Mangrum "3 or 4 months" after his employment began (which would make his joining either early August or Sep- BARTELL BROADCASTERS, INC. 555 Attorney Bartell took occasion to inform Grevenow and Christopherson that the col- lective-bargaining agreement between Respondent and the Union had expired on October 1 and that they no longer needed to remain members of the Union or pay dues to it in order to work for Respondent. The connection between this information and the Kussman arbitration investigation was unexplained in the record. (9) William J. Panagis, Attorney Bartell's partner in the firm of Bartell and Panagis, testified that at a conference attended by himself, Bartell, and Ralph Evans in Bartell's office he was ordered to file an R petition on behalf of Respondent with the Board and a petition for a referendum under the Wisconsin law with the Wisconsin Labor Relations Board. When asked the date of this conference on direct examina- tion, Panagis answered: "I would say around October the 11th, 1963. It might. have been the last couple of days of September. I can't be more specific than that." 6 Panagis explained the subsequent delay (until December 9) in the filing of such petitions by Respondent by testifying further that he and Bartell later thought'that they might be able to settle the Kussman arbiration and then get the Union to consent to an election and, therefore, he hesitated-until December 7-before preparing said petitions. This 2-month hesitation casts doubts on the accuracy of Panagis' earlier estimation. (10) On October 14 Wilkerson and Mangrum for the Union met with Reddy rep- resenting Respondent to continue negotiations of the renewal agreement. After some cursory discussion of the Union's proposals, Reddy announced that "the Company had decided that it would be necessary for the Company to go through the previous agree- ment in great detail and study it and as soon as possible submit a counterproposal," and that the Union would be notified when that counterproposal was prepared. Sur- prised by Reddy's remark Wilkerson inquired whether this sudden decision on the part of the Company had anything to do with the Kussman arbitration case. Reddy admitted that the l;(ussman case had "something to do with it." However, the Union agreed to await Respondent's counterproposal. Reddy made no suggestion of an election. (11) On the early morning shift of October 19, Mangrum was the engineer working with an announcer and "radio personality" known to the radio audience as Bob Barry (nee Doerfler). A little before midnight, despite a sign on the studio door forbidding visitors after 9 p.m., Barry admitted a young man named James Gorak who earlier that evening had acted as Barry's sound engineer at a record shop hop at which Barry had been master of ceremonies and who was returning the records and sound equip- ment used during the hop. About 12:30 a.m. Gorak answered a knock at the studio door where he found three teenage girls who asked to be admitted. When Gorak refused them admission, they asked to see Barry. When Barry got to the door, the girls told him that they wished to hold a surprise birthday party for Mangrum. After thinking it over, Barry decided that that would be "all right" and admitted the girls to the lounge outside the control room and studio. After the birthday cake, a gallon of wine, and some punch called "Bali Hi," had been arranged in the studio lounge, Barry called Mangrum from the control room and, as he entered the lounge, the girls shouted "Surprise." The testimony as to this party, all adduced by Respond- ent's witnesses, shows that soon thereafter the studio began playing a recorded tape, instead of live entertainment, while the men all drank at least two glasses of wine and ate the cake while the girls drank Bali Hi. The evidence also showed that from time to time Mangrum would leave the party and return to the control room for short periods of time. The party broke up about 4:30 a.m. According to Barry, he left about 4 a.m. although his shift had ended at 3 a.m. tember), became "dissatisfied" with the Union when he saw Kussman at the arbitration hearing "sit on the stand and deliberately lie" which caused him during "the first part of October" to make his "dissatisfaction" with the Union on this account known to Bartell, Grevenow, and Evans at the conference in Bartell 's office ( on October 3). But on cross-examination it was pointed out that the first day of hearing on the Kussman arbitration occurred on November 5, a day which Christopherson testified he, Christo- pherson, was not in attendance. Christopherson thereupon changed his story to deny having told Bartell et al on October 3 that he wanted to get out of the Union. Under the facts as Christopherson gave them the earliest possible date on which Christopherson could have seen Kussman on the stand at the arbitration was on December 5. I was not impressed with Christopherson's veracity. e This testimony is the first testimony to indicate any desire on the part of Respondent to have an election conducted among its engineers. There is no showing in this record that these alleged decisions were ever communicated to the Union. 0 0 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (12) Sometime during the morning of October 21 Barry, fearful that he might be blamed for the aforementioned party, telephoned Evans and told him that a party had taken place at the studio on October 19. At Evans' request Barry came to Evans' office later that day when Barry told Evans about the party.? Later that same day Respondent over the signature of Evans prepared and mailed to Mangrum the following letter: This is to notify you that, effective October 22, 1963, your employment by this organization is terminated for willful misconduct and matters attendant thereto. We have been advised within the past several days that, while on duty and in charge of the engineering operation of the station, you did on regular and numer- ous occasions retire and sleep for a substantial period of time during your shift. Accrued vacation pay, if any, will be computed and forwarded to you. Similarly that same day Respondent also sent a letter to Engineer Paul Leser accus- ing him of having slept during his duty shifts in the month of March.8 t.eser remained an employee of Respondent with no further disciplinary action so far as this record shows. Also, so far as this record shows, Barry continued his employment without any disciplinary action. Although Mangrum sought reinstatement from Reddy and Evans promptly after receipt of this letter, Respondent refused. (13) On or about October 30 negotiations between station WTMJ and the Union were concluded and that collective-bargaining agreement signed. Wilkerson so noti- fied Reddy. (14) Until November 5 Bartell and the attorney for the Union were unsuccessfully attempting to settle this whole matter in a package deal: Respondent was to bargain with the Union in good faith, Respondent was to reinstate Mangrum with full back- pay, and to settle with Kussman on terms unnoted in this record. When Respondent refused to comply therewith, the Kussman discharge matter went to arbitration on November 5. Subsequent sessions of this arbitration were held on December 5 and December 7. During a recess in the arbitration proceeding on December 7 the following occurred: Mr. BARTELL: The company is willing to settle the arbitration of the grievant Kussman on the terms which have been outlined by Kussman. That offer has been made, accepted and never withdrawn. Number two, and completely unrelated to the Kussman grievance, the com- pany is willing to sit down and in good faith negotiate with the Union, but as a condition of signing any contract, that an election be held to determine whether the Union represents the majority of the employees in the unit, and the company is willing to concede only for the purposes of the election and for no other pur- poses and without any prejudice to any rights that Mr. Mangrum may have to reinstatement or that the company may have for his discharge that they will permit him to vote at an election. All right? Mr. GOLDBERG [attorney for the Union]: Now by this you mean that you will bargain with us now? Mr. BARTELL: Yes. Yes. Mr. GOLDBERG: And when? When will you bargain with us? Mr. BARTELL: Anytime we can set it up in the very near future. Monday, Tuesday, Wednesday. We will set it up in the very near future. Whenever Jim [Wilkerson] and John [Reddy] can get together. This is when the bargaining will start. If this isn't sincere in good faith-this is off the record. (Discussion off the record.) Mr. GOLDBERG: You want an election before you sign a contract, or as a condition of signing a contract there must be an election? Mr. BARTELL: There must be an election to determine whether the employees desire to have this union as its bargaining representative. 7 The testimony of Barry and Evans on this point is in disagreement as to just how much about the party Barry actually told Evans. Barry testified that he told Evans "everything about the party" while Evans testified that he neither asked nor was told just how the girls had been admitted to the studio. 8 Leser acknowledged at the hearing that in March, due to pains caused by gall bladder trouble, he had stretched on a chair with his eyes closed but had not been asleep. BARTELL BROADCASTERS , INC. 557 Mr. GOLDBERG: Do you agree that a hundred percent of the men in your bargaining unit belong to the Union? Do you have any doubt about that? Mr. BARTELL: I don't know. 1 don't know whether they do or not. I have not asked one man "Do you belong to the Union?" If you tell me they belong, I just have to accept it. I don't know. Mr. GOLDBERG: Has any man told you he doesn't want to belong to the Union? - Mr. BARTELL: No man has told me he wants to belong or he doesn't. 1 have not inquired whether a man wants to belong or doesn't want to belong. Mr. GOLDBERG: So you have no belief that a man- Mr. BARTELL: I am not going to answer your questions. I am not on the stand . You are not examining me. Mr. GOLDBERG: Well, I am challenging your sincerity in making this offer. Mr. BARTELL: Off the record. (Discussion off the record.) * * * Mr. GOLDBERG: Mr. Peppey [the court reporter at the arbitration proceed- ing], in the presence of arbitrator Epstein and Conard Mangrum, Mr. Reddy, Mr. Panagis, and Mr. Wilkerson, and Mr. Michael Bartell, Mr. David Bartell withdrew and cancelled the date for bargaining because the Union refused to settle a grievance for Kenneth Kussman. This statement is being dictated on the record in the presence of all the aforementioned persons and the Union at this time requests bargaining on the date set forth by the prior agreed date. Mr. Reddy, will you bargain with us on Monday? Mr. BARTELL: Don't answer. [Emphasis supplied.] (15) No negotiation meeting between Respondent and the Union was held on that Monday, December 9, nor at any time since. (16) Respondent has forwarded to the Union no counterproposal as agreed on October 14. The Union is still awaiting said counterproposal. (17) On December 9 Respondent filed an RM petition covering its broadcast engi- neers with the Board signed for Respondent by John A. Reddy. This petition indicates that no other labor organization had a representative interest in the employees in the unit. At or about the same time Respondent filed a request with the Wisconsin Employ- ment Relations Board asking for a referendum on the question of an "all-union agreement." (18) On December 16 the following letter over the signatures of Respondent's then four broadcast engineers, William Grevenow, Paul Leser, Douglas Moore, and Dennis Christopherson, was sent to Wilkerson: DEAR Jim: The Union membership at WOKY feel we are not duly represented by Local 715 in regards to negotiations and contract. As a group we agree that the manner in which the Kussman arbitration is being conducted is not in the best interest of the Union. We cannot continue to be part of this local either financially or morally until the above matters are agreeably settled. Therefore, the union membership at WOKY respectfully request honorary withdrawal cards effective December 31, 1963. A copy of this letter was brought to the attention of Respondent by Grevenow. B. Conclusions 1. Refusal to bargain On October 14 Reddy agreed to submit to the Union a counterproposal as soon as Respondent had taken a long, hard look at the union proposal, a look which Respond- ent considered was necessitated for some unstated reason in part, at least, by the Kussman arbitration matter. Although often since then requested by the Union, that promised counter-proposal has never been forthcoming. That failure very simply constitutes a refusal to bargain in violation of Section 8(a)(5) of the Act. Respondent's defense is that the counterproposal was never furnished because it had a "good-faith doubt" as to the Union's majority status. As late as December 7, however, Respondent's counsel himself stated that he had no reason to doubt that all of Respondent's engineers were members of the Union, because he had never inquired nor been told by any engineer to the contrary. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, at the hearing counsel himself by his own leading questions led his com- pliant witnesses into testifying that as early as June and July each of the engineers was expressing his own "dissatisfaction" with the Union to Evans, Reddy, and, more importantly, to himself. But these same witnesses had executed affidavits stating that, so far as they knew, the first information Respondent had that the engineers wanted "to get out of the Union" was through their letter of December 16.9 The result is, of course, that either counsel was mistaken on December 7 or his witnesses, under his aegis, were at the hearing. Other facts indicate that counsel was truthful on December 7. Although the agreement had expired by its own terms on September 30, these facts show that Respondent sat down to negotiate the renewal agreement with the Union on August 29 (prior to the expiration) and again on October 14 (after the expiration) without challenging the Union's majority status in any way and without making any suggestion for the holding of an election. It was on this latter occasion that Reddy promised a counterproposal from Respondent. If Respondent had had a doubt, "good faith" or otherwise, of the Union's representative status at that time, it is inconceiv- able that Respondent would have promised to prepare a counterproposal, thereby impliedly promising a continuation of the negotiations. On the other hand, counsel's law partner, William J. Panagis, testified (without testimonial contradiction) that at a conference which, according to Panagis, occurred "around October 11, 1963," or some other time, Bartell and Evans ordered him to get out an RM petition for Respondent to send to the Board and a petition for the referendum under the Wisconsin Labor Relations Act. As admittedly neither petition was prepared until "December 7" nor filed until December 9, there seems to have been good reasons for Panagis to have become suddenly very indefinite as to the date of the conference. The facts contradict Panagis' testimony as to time at least. On the other hand, Respondent's own evidence shows that on October 3, 3 days after the expiration of the agreement, while purporting to investigate the "misconduct" of Kussman in preparation for an arbitration which did not take place for a month thereafter, counsel himself planted the seed from which a "doubt" could grow by informing Grevenow and Ralph Evans' nephew, Christopherson, in his office that the collective-bargaining agreement had expired so that the engineers no longer had to remain members of, or pay dues to, the Union in order to work for Respondent. This seed did not bear fruit until December 16, when Grevenow and the other engineers requested withdrawal cards from the Union with a copy to Respondent. On this date, for the first time, there was some evidence upon which Respondent could base a "doubt." But that doubt had been planted, fostered, and nurtured by Respondent's own efforts. Accordingly, I must find in accord with proven facts and contrary to the oral testi- mony presented by Respondent, that as of October 14, Respondent had no doubt, "good faith" or otherwise, but that the Union was the majority representative of the engineers employed in the appropriate unit and that on and after October 14, at least, Respondent refused to bargain with the Union as the majority representative of the engineers employed in the appropriate unit.by failing and refusing to furnish the promised counterproposal in violation of Section 8(a)(1) and (5) of the Act. 2. The discharge of Conrad Mangrum Prior to his discharge on October 21, 1963, Mangrum had been continuously employed by Respondent at station WOKY since June 29, 1952 . During the last 10 years of his employment, Mangrum had been the Union steward for V/2 years. During the other 11/2 years Engineer Grevenow had been the steward. 0For Instance Engineer Grevenow executed an affidavit containing the following, "No supervisor ever questioned me about my feeling toward the Union. I have never told any member of supervision that I wanted to get out of the Union . . . As far as I know until the letter of 12/16/63 the Company had no idea that we wanted out of the Union." - At the hearing, in answering leading questions, Grevenow's testimony was to the con- trary, as was the testimony of the other engineers Grevenow and other engineers were led into testifying that all that was meant in the affidavits was that the engineers had never used the particular words "want to get out of the union" to management but that they had expressed the thought in other phraseology as early as June. Before reach- ing that explanation, however, Grevenow fell back on that classic explanation which is returning to favor today: "Everybody misunderstands me. I'm sorry " BARTELL BROADCASTERS, INC. 559 As such steward Mangrum had been participant in the negotiation of all contracts during that period as well as in the handling of grievances and arbitrations. He was well known as a most ardent supporter of the Union. In May 1963 Respondent employed five engineers at WOKY: Mangrum, Kussman, Grevenow, Leser, and the last man employed (1957) Douglas Moore, a son-in-law of Attorney Bartell. On May 8, 1963, Respondent hired another engineer by the name of Dennis Christopherson, who happened to be the nephew of Ralph Evans. Two weeks later, on May 21, Respondent discharged Kussman for reasons not brought out in this record. Mangrum was instrumental in filing a grievance under the contract regarding the discharge of Kussman and thereafter in taking that dis- charge to arbitration, also under the contract. This Respondent did not like. As noted heretofore this arbitration hearing did not take place until November 5. After the surprise birthday party for Mangrum at the studio on October 19, Respondent discharged Mangrum promptly. Superficially this party would seem a perfectly valid nondiscriminatory cause for discharge. Unauthorized visitors had been admitted to the station and, presumably at least, Mangrum had not been giving his full attention to his duties. If that had been all there was to this case, I would recommend a dismissal of the 8(a)(3) allegations. But, unfortunately for Respondent's contention, that was not all there is to this case. It was Announcer Barry who "thought it would be all right"-as he had thought a number of times in the past-and admitted the teenage girls into the studio lounge with their cake, their wine, and their Bali Hi. It was Announcer Barry who helped set up the party in the lounge. It was Announcer Barry who called Mangrum from his duty station in the studio to the surprise party in the lounge. And, more impor- tantly, it was Mangrum who was actually surprised by the party.'° It was Barry who, during the party, was not doing the job for which Respondent was paying him because the station promptly began broadcasting a tape recording so that Barry could enjoy the party without working. It was Mangrum who left the party from time to time to return to the control room to make sure that the station was operating properly." It was Barry who participated fully in the party even to the careful admission that he even consumed "two glasses" of wine. In fact it was Barry who continued his participation in the party at least for 1 hour after his shift had ended at 3 a.m. Obviously Barry was solely responsible for the fact that the birthday party took place at the station and participated fully therein. But it was Mangrum whom Respondent discharged. Barry was not even reprimanded for the part he had played at the birthday party. Although Barry testified that he told Reddy "the complete story" about the party on Monday after he testified that he had been warned that he had "better watch myself" and became fearful that "a story or rumor might get started," Reddy testified, on the other hand, that he, Reddy, "didn't think it germane to the investigation at that particular time" as to how the teenagers happened to obtain admission into the studio despite the "no admission" sign on the door and, therefore, he neither inquired nor was informed by Barry as to how the girls got into the studio. Reddy also accepted without question Barry's statement that his own participation in the party "was substantially different [from Mangrum's] principally in the amount of wine con- sumed." Reddy's testimony of his investigation of the incident shows that his interest therein was only to find some "misconduct" on the part of Mangrum. He was equally careful to avoid uncovering misconduct on the part of anyone else. He had a willing collaborator in this effort in Announcer Bob Barry.12 io The evidence, all presented by Respondent's own witnesses, is absolutely clear on this: Until Barry called Mangrum into the lounge following the admission of the teenagers, Mangrum had had absolutely no knowledge of any party or the presence of any girls. For him this was genuinely a surprise party. u It is significant that, in the light of the diligence with which Respondent ferreted out each and every other fault of Mangrum, Respondent was able to present no evidence of any kind as to any dereliction of duty in Mangrum's operation of the station that morning. >a Barry's willingness to collaborate with Respondent , as well as his honesty , is shown in the following excerpts from his testimony. On cross-examination Barry testified as follows: Q. Did you ever work on the night shift with any of these engineers [Leser, Man- grum, Moore, and Kussman] ? A. Yes. ,[Footnote continued on following page.] 775-692-65-vol. 150 37 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Actually the evidence shows that it had not been unusual to Respondent's knowledge for women to visit this studio day or night without previous objection from Respond- ent despite the "no admittance" sign on the door. Nor was the presence of liquor unusual at the station with the knowledge of, but again without previous objection from, Respondent. In fact this station had at least one admirer who was well known for occasionally sending out such refreshments to the station without objection from Respondent. Thus Respondent found itself in a dilemma. Mere participation in this birthday party as its surprised guest of honor while performing his assigned tasks proved suffi- cient in Respondent's estimation for Mangrum's immediate dismissal while, on the other hand, Respondent found no fault on the part of Barry for his having admitted the teenagers to the station contrary to the "No Admission" sign, for his having authorized the holding of the party in the studio during working hours, for permitting the wine to be brought into the studio, for personally drinking "two glasses" thereof, or for not continuing his show live during the party as he was being paid to do. This dilemma did not bother this Respondent: the union man was fired while the non- union entrapper went free. Thus the violations of Respondent's rules, if any, were of little, if any, importance to Respondent. As to Mangrum's sleeping during his shift, the evidence shows that on October 21, the date of the discharge notice to Mangrum, Respondent also sent a letter to Engi- neer Leser regarding his having slept on duty back in March 1963 or over 6 months before. Leser was not discharged for that offense apparently because, as it was care- fully phrased during the hearing, Barry testified that Leser only "dozed" for 20 to 25 minutes whereas, in the case of Mangrum, Barry testified that he "slept" for 40 to 45 minutes during taped shows.13 This testimony by Barry is suspect for two reasons: first, because it was given by Barry; and secondly, because the undisputed evidence showed that Barry himself was such a sound sleeper during his shifts as to require an alarm clock to awaken him 10 minutes before the time to go back on the air. A sleeping man is rarely a competent observer. Furthermore Reddy testified that Barry had reported Mangrum's alleged sleeping propensity on duty between October 1 and 10. Reddy could hardly have considered the matter to be of much consequence for at that time he did nothing about it, not even speaking to Mangrum. Obviously, therefore, Respondent itself did not consider such to constitute a good cause for discharge. Next Respondent charged Mangrum with having "tampered" with the mail in the mailboxes located at the station. It produced witnesses who, in the past, had seen Mangrum looking at the mail in the cubbyholes and, in one case, a witness who testi- fied that he had seen Mangrum opening either one or two packages of advertising material addressed to an announcer. On April 10, 1963, Rosa Bartell Evans, general manager of WOKY, put out a memo to the whole staff stating that "tampering with other people's mail is a serious offense" and "dire consequences will result"-but accusing no one. There is no evidence in the instant record that subsequent to the memo, at least, Mangrum ever "tampered" with any mail. Hence this tampering could not have been the cause of the October 21 discharge of Mangrum. Next Respondent charged Mangrum with having "mutilated" a "trouble report" which it did not introduce into evidence but which, according to the testimony of another announcer named Spencer, concerned some alleged inattentiveness by Man- grum while working on a show with announcer Raymond E. Spencer, the writer thereof. Respondent did introduce into evidence a letter from Reddy addressed to "Conrad" requesting a meeting with him, apparently as union shop steward, and Wilkerson, union business agent, regarding a "mutilated trouble report" dated Tues- day, December 18, 1962. The conference was held. Nobody knew then and nobody Q. And did any of these engineers ever sleep on the night shift? A. No, they didn't But Respondent was interested in having Sussman asleep on shift. So on redirect examination Barry testified: Q. You testified that you worked with Kussman. A. Yes, I believe I did. Q. Did he sleep? A. Yes, he did. 18 Respondent never did explain how it happened that it first learned in October of the fact that Leser "dozed " in March. BARTELL BROADCASTERS, INC. 561 knows now who mutilated the trouble report. The matter was thereupon forgotten- until the present hearing. This 10-month old incident could hardly have been the reason for the discharge on October 21. This is particularly so as Spencer admittedly was a rather prolific author of such reports. He estimated that between October 1962 and May 1963, he authored at least 30 such reports, of which he also estimated that 20 concerned Mangrum 14 and the rest concerned the remainder of the engineering staff. His oral testimony as to the derelictions of Mangrum was so generalized, indefinite, and remote as to show that these reports could not have caused the discharge of October 21.15 At any rate these events, even assuming Mangrum's responsibility for them, were all so remote as to have hardly been the cause for the precipitous discharge of Mangrum without warning on October 21. Next Respondent impliedly charged Mangrum with having given a party in June. 1962. Leser, the engineer who only "dozed," testified that one morning in June 1962, as he was relieving Mangrum, he found a "martini glass with a little purple liquid" in it and accused Mangrum of having had "a party" at the station that night.16 Like Barry, Leser, fearful of his job, telephoned Evans about the party with the one martini glass with purple liquid. Evans thanked Leser for having called but did nothing about the so-called party. This 11/2-year-old incident could hardly have precipitated the discharge of October 21 17 In its opposition to Mangrum's application for unemployment compensation Respondent presented to the Wisconsin Unemployment Compensation Commission these same three alleged causes for the discharge of Mangrum at its preliminary inves- tigation and again on March 23, 1964, on appeal from the commission's original deci- sion that "It is not established that the employee [Mangrum] was discharged for mis- conduct connected with his employment." Twice before the present hearing, in November 1963 and on March 23, 1964, Respondent had defended against Mangrum's application for unemployment on the ground that Mangrum had been discharged for cause. On each of these occasions Respondent cited the same-and only the same-elements of misconduct against Mangrum as have been referred to above. Although the results of the hearing on appeal are unknown to me at this time, the Wisconsin Unemployment Compensation Commission was, as noted supra, originally unimpressed with Respondent's conten- tion. In brief, Respondent's contention then consisted of the following: (1) Man- grum's participation in the October 19 birthday surprise party; (2) sleeping on his shift; and (3) inattention to announcers and tampering with the mail. At the hearing before me which opened 3 days after the hearing on appeal before the unemployment compensation commission, Respondent introduced a new element of "misconduct" never presented by it before: alleged parties held at the studio in December 1961 and January 1962 at which Mangrum allegedly participated. - Upon the following assurance: TRIAL EXAMINER: Let me ask you this, Mr. Bartell. Is it your contention that Mr. Mangrum was discharged in October of 1963 for any conduct which occurred in 1961 or 1962? Mr. BARTELL: Our position is that Mangrum's discharge was effected- be- cause of his misconduct that occurred in 1961, 1962, and was culminated in 1963 when he was dismissed, yes. 14 Respondent introduced none of Spencer's trouble reports Into evidence 15 Spencer's trouble reports regarding Mangrum may well have been caused by the fact that Spencer blamed Mangrum because "about five or six times" during the "fall of 1962" (this was definite for Spencer) he had driven his automobile from WOKY with a deflated tire "in such condition that you wouldn't realize the tire was deflated until you had driven several blocks." Spencer blamed Mangrum for the deflated condition of his tire solely because Mangrum left the station prior to the time that Spencer left. It might have been that Spencer's tire had a slow leak. The evidence shows that Spencer never spoke to Mangrum about his suspicions. Is Leser was unable to explain why he immediately attributed the "martini glass with purple liquid" to Mangrum rather than to the announcer who was on duty at this same' time. 17 Respondent presented even sillier testimony regarding Mangrum such as the testimony by Leser that "2 or 3 years ago" he saw Mangrum with a "screwdriver" in his hand. The implication was that Mangrum had jimmied a door at the station, an alleged deed which Leser admittedly did not see. The numerous innuendoes and insinuations throughout the record are both too remote and too silly to be recounted here. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I permitted Respondent to introduce testimony regarding this new incident which proved to be evidence of a defamatory character. Promptly on cross-examination the witness who testified to the alleged events of 1961 and 1962 acknowledged that the first time this information was ever given to Respondent was on March 18, 1964. As this was only 7 days before the opening of the present hearing, it is obvious that this information could have played no part in Respondent's determination to discharge Mangrum , some 5 months before , despite Respondent's contention to the contrary . General Counsel's motion to strike the testimony was granted with the added admonition to Respondent that , if it had any evidence to connect this newfound evidence to the discharge , that evidence should be presented promptly. No such testimony was offered. The truth or falsity of the stricken testimony is unimportant here. What is of importance is Respondent's apparent willingness to change the very basis of its deci- sion of October 21, 1963, and adopt as its reason therefor any evidence which might come to hand no matter how impossible it might be that that evidence had had any- thing to do with Respondent's decision. Respondent's shifting, vacillating basis of defense indicates the weakness of its original defense as well as proving it to have been nothing more than a pretext to cover up the real reason for the discharge. The basic reason Respondent discharged Mangrum is easily seen . It had five engi- neers in the appropriate unit of whom Moore, son-in -law of Attorney Bartell , was on. In May 1963 , Respondent succeeded in placing a second member of the Bartell family into the unit in the person of Christopherson , nephew of Ralph Evans, when he replaced the discharged Kussman . Now Respondent held two out of the five places in the unit . So in July Respondent gave notice of termination of the collective- bargaining contract with the Union as the recruitment of only one more nonunion vote would successfully destroy the Union 's majority representation. Promptly after the expiration of that contract on September 30, Attorney Bartell made -it a point to call Grevenow and Christopherson to his office and to inform them that they no longer needed to remain members of or pay dues to the Union. But Respondent continued to bargain with the Union on the renewal contract through October 14, 1963, because even with two members of the family in a five- man unit, the Union still remained the representative of the majority . This was especially so due to the fact that Mangrum had filed a grievance on the Kussman discharge and taken the same to arbitration so that Kussman's status remained some- what unsettled , a fact which annoyed Respondent and Attorney Bartell. However, the birthday party on October 19 gave Respondent an excuse to retaliate against Mangrum and the Union both for their efforts on behalf of Kussman as well as to reduce the unit to a group of four of whom two were members of the family and, as such, presumably manageable. It is not without significance that , whereas on October 14 Respondent had prom- ised the Union a counterproposal in the negotiations , not only was that counter- proposal never forthcoming but also the Respondent never afforded the Union another negotiation meeting when , after the discharge of Mangrum , the unit was reduced to four with two members of the family included therein so that Respondent could make an arguable contention that the Union no longer represented a majority of the employ- ees in the appropriate unit. By thus discharging Mangrum Respondent was able to accomplish two aims at the same time. Furthermore if Respondent had really been interested in alleged vioations of com- pany rules in regard to the birthday party of October 19, it would have discharged the man responsible for those violations , Announcer Bob Barry, who admitted the party givers to the studio contrary to Respondent's "No Admission" sign and who participated in the drinking of the wine , if that were a violation of Respondent's rules, as well as failing to perform his duties during his shift. Instead, Respondent deliberately chose to discharge Mangrum although the evidence shows that he was the innocent victim of an actual "surprise" party-and not the "guilty" party. Respondent's failure on this occasion to discharge or reprimand Announcer Barry who violated the Respondent 's rules at least as badly as Mangrum proves that Respondent used the October 19 birthday party only as an excuse with which to rid itself of Union Steward Mangrum because of his activities on behalf of the Union as such steward and in order to create a situation whereby Respondent might log- ically claim that the Union no longer represented a majority of its engineers and thus excuse it from the necessity of bargaining collectively with the Union. Accordingly I am convinced and, therefore , must find that Respondent discharged Conrad Mangrum on October 19, 1963, because of his membership and activities in and on behalf of the Union in order to discourage membership and activity therein in violation of Section 8 (a) (1) and (3) of the Act. BARTELL BROADCASTERS, INC. 563 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that 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. It having been found that Respondent discriminated in regard to the hire and tenure of employment of Conrad Mangrum by discharging him on October 19, 1963, I will recommend that Respondent offer him immediate and full reinstatement to his former, or substantially equivalent, position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that he would have earned as wages from the date of the discrim- ination to the date of his full and complete reinstatement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289, with interest thereon at 6 percent per annum. Because -of the variety and the type of the `unfair labor practices engaged in by Respondent, I sense an opposition to the policies of the Act in general, and hence I deem it necessary to order that Respondent cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment of Conrad Mangrum, thereby discouraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a) (1) and (3) of the Act. 2: By refusing to bargain collectively with Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Electrical Workers as the majority rep- resentative of the employees in the appropriate unit consisting of its broadcast engi- neers, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of'the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, Bartell Broadcasters, Inc., Milwaukee, Wisconsin, its officers, agents, attorneys, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating in regard to the hire and tenure of employment or the terms and conditions of employment of any of its employees thereby discouraging member- ship and activities on behalf of Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Electrical Workers, by discharging any of its employees or by discriminating against any such employee in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Refusing to bargain in good faith with Radio & Television Broadcast Engi- neers, Local No. 715, International Brotherhood of Electrical Workers, as the bargain- ing agent of Respondent's engineers in the appropriate unit consisting of Respond- ent's broadcast engineers. (c) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self organization, to form labor organizations, to join or assist Radio & Television Broadcast Engineers, Local No. 715, International Brother- hood of Electrical Workers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activ- ities for the purposes of collective bargaining or other mutual aid or protection, or 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to refrain from any or all such activities to the extent that such right may be affected by an' agreement requiring membership in a labor organization as a condition, of -employment, as authorized by Section 8(a)(3) of the Act as amended. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Offer to Conrad Mangrum immediate reinstatement to his previous, or sub- stantially equivalent, position and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in this Decision in the section entitled "The Remedy." (b) Upon request bargain collectively in good faith with Radio & Television Broad- cast Engineers, Local No. 715, International Brotherhood of Electrical Workers as the bargaining agent of its employees in an appropriate unit consisting of Respond- ent's broadcast engineers. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its radio station in Milwaukee, Wisconsin, copies of the attached notice marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, upon being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 con- secutive 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 said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply with - the foregoing Recommended Order.19 I further recommend that unless within 20 days from the date of the receipt of this Decision, Respondent does not notify the Regional Director that it will comply with the foregoing Recommended Order, the Board issue an order requiring Respond- ent to take the aforesaid action. In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision and Order " 16 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 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 you that: WE WILL, upon request, bargain collectively with Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Electrical Workers as the exclusive representative of all our employees in the bargaining unit consist- ing of our broadcast engineers. WE WILL offer Conrad Mangrum full and complete reinstatement to his former, or substantially equivalent, employment and make him- whole for any loss of pay he may have suffered by reason of the discrimination practiced against him, with interest thereon at 6 percent per annum. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Radio & Television Broadcast Engineers , Local No. 715, Interna- tional Brotherhood of Electrical Workers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, LOCAL LODGE 790, INT'L ASSOCIATION OF MACHINISTS 565 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above -named or in any other labor organization. BARTELL BROADCASTERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or compli- ance with its provisions. Local Lodge 790, International Association of Machinists, AFL- CIO and Frank Wheatley Pump & Valve Manufacturer. Case No. 16-CP-2?. December 92, 196 . DECISION AND ORDER On June 5, 1964, Trial Examiner A. Norman Somers issued his Decision in the above-entitled case, finding that the Respondent had engaged in the unfair labor practice alleged in the complaint, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fan- ning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial. Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings of the Trial Examiner only to the extent consistent herewith. The material facts as fully set forth in the Trial Examiner's Decision are in all essential respects the same as those in Warehouse Employees Union Local No. 750, International Brotherhood of Teamsters, etc. (Whitaker Paper Company), 149 NLRB 731, except 150 NLRB No. 27.