Midland Broadcasters, Inc.

MIDLAND BROADCASTERS, INC. Midland Broadcasters , Inc. and Topeka Association of Radio Announcers. Cases 17-CA-3580 and 17-CA-3631 May 22, 1969 DECISION AND ORDER BY MEMBERS FANNING, JI•NKINS, AND ZAGORIA On November 29, 1968, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 exceptions and the briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, except as modified below. 1. Although not alleged in the complaint, the Trial Examiner found that the Respondent violated Section 8(a)(1) when supervisor Larry Jarvis asked employee Ray Goldsich how he would vote. We do not agree. The record reveals that prior to reading his affidavit, Goldsich first testified that he was asked the above question. However, his subsequent testimony reveals that he volunteered the information concerning his voting intentions without being asked. Accordingly, we shall dismiss the Trial Examiner's finding of interrogation as it is unsupported by the evidence. 2. We also find, contrary to the Trial Examiner, that the Respondent did not violate Section 8(a)(3) and 8 (a)(5) by its failure to reassign its newscar to newsdirector Graham following the strike. The Trial In adopting the Trial Examiner's conclusion that Christian is properly excluded from the announcer's unit, we do not rely upon Great Western Sugar Company, 132 NLRB 936, which not only involved seasonal supervisors, but was subsequently reviewed and amended at 137 NLRB 551. Instead, we rely upon Westinghouse Electric Corporation. 163 NLRB No. 96, wherein we held that only those engineers who spent 50 percent or more of their working time performing nonsupervisory duties were properly included in the unit. 107 Examiner found that prior to participating in the strike, Graham had possession of the Respondent's newscar, as he was responsible for 24 hour on-the-spot news coverage, and that use of the newscar saved Graham an estimated $10 per week in gasoline and parking fees. On the morning of the strike, Graham returned the car to the Respondent. During the strike and for some time thereafter, the newscar and the 24-hour news coverage associated with it were assigned to other employees. The Trial Examiner concluded that the Respondent had discriminated against Graham by its failure to return the car to him. We do not agree. Graham's possession of the car was only incidental to the corresponding duty that he be available 24 hours a day. As both the car and the duty were assigned to another, the Respondent did not violate the Act when it failed to return the car to Graham. Accordingly, we shall dismiss these allegations of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Midland Broadcasters, Inc., Topeka, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified.' IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. 'Add as the last Indented paragraph on page (I) of the Appendix the following: WE WILL notify the above-described 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, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: Upon a charge filed June 4 , 1968,' and amended July 15, in Case 17-CA-3580, by Topeka Association of Radio Announcers, referred to herein as the Charging Party or the Union, the General Counsel of the National Labor Relations Board , on July 24, acting through the Regional Director of Region 17 (Kansas City, Missouri) issued a complaint and notice of hearing in which it is alleged that Midland Broadcasters, Inc., referred to herein as Respondent, has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act in various ways. A similar charge filed on July 31 in Case 17-CA-3631 led in a similar manner to the issuance of a complaint on August 20 in which it is alleged that Respondent has 'Dates are 1968 unless otherwise specified 176 NLRB No. 15 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(l) and (3) in various additional ways. Respondent's answers deny any violations of the Act. The two cases were consolidated for hearing by an order dated August 20. Pursuant to due notice, hearing was held before me in Topeka, Kansas, on September 4, 5, 17, and 18. At various times during the hearing, counsel for the Charging Party and counsel for the General Counsel moved, respectively, to amend the charge and complaint in Case 17-CA-3631 to name three additional persons as discriminatees. I granted the motions. The issues litigated were whether Respondent unlawfully refused to recognize and bargain with the Charging Party on or about May 10, whether Respondent thereafter violated Section 8(a)(5) of the Act by unilaterally making certain changes in the terms and conditions of its announcers' employment, whether Respondent discriminated against its announcers in different ways, including discharging Gregory Aust on July 15, James Connors on September 3, Christopher Graham on September 5, and Stanley Wall on September 9, in order to discourage their membership in the Union, and whether Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights by words spoken to announcers by agents of Respondent on several occasions. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses , to argue orally, and to file briefs. Upon the entire record, including briefs filed by the General Counsel and Respondent and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Missouri corporation, operates radio station KEWI in Topeka. It annually receives more than $100,000 for the services it performs, $30,000 of which comes from the advertisement of national brand products. On the basis of these admitted facts, the complaints allege, the answers admit, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent contends, generally, that the Charging Party is not a labor organization within the meaning of the Act and, specifically, that it was not a labor organization on May 10, the date on which the General Counsel alleges Respondent unlawfully rejected its demand for recognition.' As is more fully set forth below, five of Respondent's announcers had expressed their intention in writing of banding themselves together for collective bargaining purposes under the name of Topeka Association of Radio Announcers on May 10 when, as a group, they met with Respondent's general manager and informed him of their desires. Thereafter, on May 13, the Topeka Association of Radio Announcers came into formal existence as an unincorporated association when the five put their names to its charter. No officers, as such, have ever been elected. No dues, as such, have ever been collected . However, as its charter makes clear, the 'Respondent's answers deny the Union' s status as a labor organization in general terms. However, only the latter argument is raised in its brief. Charging Party is an association which admits employees to membership and exists for the purpose of representing them in bargaining over wages , hours and other conditions of employment . I find, therefore, that it is a labor organization within the meaning of Section 2 (5) of the Act and has been at all times material to the case.' 111. THE UNFAIR LABOR PRACTICES A. Prerequisites to Bargaining 1. Existence of a labor organization Respondent operates KEWI, a contemporary music and news radio station in Topeka, Kansas. On April 26 it asked its announcers to sign personal service contracts. At that time, and at all times relevant to the 8 (a)(5) issue in this case, it employed nine persons whose duties, in whole or in part, regularly required them to appear on the air, either as disc jockeys or as newsmen or as a combination of both. Eight of the nine broadcast under names other than their real names, James Connors being the one exception. The other eight, with their stage names in parenthesis, are Larry E. Jarvis (Larry James), Stanley James Wall (Stan Wallace), Christopher R. Graham (Tom Sawyer), Gregory Van Aust (Greg Austin), Raymond Edward Goldsich (Ray Dunaway), Willis Raymond Moorehead (Ray Marshall), Keith L. Christian (Keith Holliday), and Lonnie M. Stanton (Ron Stevens).' Connors, Wall, Graham, Aust, and Stanton retained a lawyer who undertook to deal with Respondent about objections which the announcers had to certain provisions in the contracts. The lawyer conferred with Respondent on May 9. A meeting of the announcers with Robert F. Russell, Respondent's vice president and general manager of Station KEWI, was scheduled for the morning of May 10. After retaining an attorney, Connors, Wall, Graham, Aust, and Stanton explored the possibility of unionization. They called David Schnabel, executive secretary of the Kansas City local of the American Federation of Television and Radio Artists and asked AFTRA to organize Respondent's announcers. There were several telephone conversations between Connors, as spokesman for the five,' and Schnabel in the week or 10 days before May 10. Finally, Schnabel told them that AFTRA could not afford to move into the Topeka area at that time and suggested that they form their own labor organization. The attorney they had retained declined to undertake the task of organizing a union for them. On the night of May 9-10 Connors asked Schnabel what the five could do to protect themselves, especially in view of the imminent meeting with Russell. Schnabel advised that they immediately draft a "letter of intent" and, without delay, retain James Rose, the Topeka attorney who represents the Charging Party in this matter. Consequently, at 1 a.m. on May 10, the five drafted and all signed a letter dated May 10 and addressed to "Mr. Robert F. Russell, KEWI Radio" which reads: 'Iowa Industrial Hydraulics, Inc., 169 NLRB No 27; Grand Lodge International Association of Machinists and Aerospace Workers, AFL-CIO, 159 NLRB 137, Stewart Die Casting Division (Bridgeport) of Stewart Warner Corporation, 123 NLRB 447. 41 have attempted to refer to these men by thew real names at all times herein, although their real and stage names are used indiscriminately throughout the transcript. 'I have referred to Connors , Wall, Graham , Aust, and Stanton collectively as "the five" throughout this decision in describing actions MIDLAND BROADCASTERS, INC. 109 We, the undersigned, members in good standing of the Topeka Association of Radio Announcers, hereafter known as TARA, hereby demand all rights as the collective-bargaining group for the majority of announcers at KEWI, to negotiate with the company on matters pertaining to wages, hours and working condition. Topeka Association of Radio Announcers consists of: followed by the signatures of Connors, Wall, Graham, Aust, and Stanton. This letter was never sent to Respondent. On May 10 Rose sent a letter, addressed to Russell, which informed Respondent that Rose's firm had been retained to represent "a group of your broadcasting employees who have become organized under the style of Topeka Association of Radio Announcers." This letter also named Connors, Wall, Graham, Aust, and Stanton, claimed that they, as members of the Union, constituted a majority of Respondent's "broadcast employees," and demanded that Respondent recognize the Union. On May 13 Connors, Wall, Graham, Aust, and Stanton each signed two documents which had been prepared for them by Rose. One is headed AUTHORIZATION FOR REPRESENTATION and authorizes the Union "...to represent us for purposes of collective bargaining within the meaning of the Labor-Management Relations Act, to negotiate collective-bargaining agreements on our behalf, and to petition for an election before the National Labor Relations Board and/or achieve recognition from our employer without an election ." The second is headed CHARTER of the TOPEKA ASSOCIATION OF RADIO ANNOUNCERS and begins, "We, the undersigned, employees of Midland Broadcasters, Inc., (Radio Station KEWI) hereby associate ourselves together to form and establish a non-profit labor organization under the laws of the United States of America and the State of Kansas." It then sets forth the name, principal place of business (Connors' home address), purpose, and charter nembers of the Union (i.e., Connors, Wall, Graham, Aust and Stanton). It states that membership is limited to "employees of employers in the radio and television broadcasting industry." On May 16 Rose sent a special delivery letter to Respondent which reads, in part: Dear Mr. Russell: Please be advised that as of 6:00 AM, May 17, 1968, your broadcasting employees will engage in a strike to protest your unfair labor practice in refusing to recognize and bargain with the Topeka Association of Radio Announcers as their bargaining agent. Demand is again made that you recognize and bargain with Topeka Assocation of Radio Announcers as the duly authorized bargaining representative of a majority of your broadcasting employees, that is, those employees who frequently or regularly appear before the microphone... which they took concertedly . I do not mean to imply that all five men were always present when a concerted action took place. Their various work schedules in Respondent 's 24-hour broadcast day frequently caused one or the other to be absent from their meetings in the period prior to May 10. For example Gregory Aust had the all-night disc jockey show from midnight to 6 a.m. Consequently , he was not actually present when the others signed the May 10 "letter of intent" (see below) at I a.m. on the morning of May 10. However , he signed it later that day, apparently before the 9 a.m. meeting with Russell. The Union has no officers as such, although Connors has acted as spokesman for the five. The Union has no dues, although Connors, Wall, Graham, Aust, and Stanton have agreed to share equally any legal expenses. Respondent contends that Rose's letter of May 16 was the first valid demand for recognition since the Union did not come into existence until after the meeting of the five with Russell on May 10 and after receipt of Rose's letter of May 10 by Respondent. I find no merit to this argument . In the first place, the demand voiced by Connors on May 10 (about which more immediately below) and written by Rose on the same day was a continuing demand which fully apprised Respondent as early as May 10 of its employees' intentions with respect to organization and thus was in effect on May 13 when the Union came into existence in a formal sense. In the second place, a labor organization is, at most, an unincorporated association and begins in a legal sense as soon as two or more persons expressly band themselves together for purposes of collective bargaining. Therefore, I find that the Union came into existence in the early morning hours of May 10 when Connors, Wall, Graham, Aust, and Stanton plighted their troth. The only significance of their unsent letter to Russell dated May 10 is that it now provides demonstrative evidence of their act. If they had never written it, the Union would nonetheless have been born at that moment. The fact that they recorded their act in the form of a letter addressed to Russell which Respondent never saw affects the coming together of the five not one whit. 2. Demand Russell called a meeting of the announcers for 9 a.m. May 10 after conferring with their original attorney the day before and, he thought, resolving all the disputes over the proposed personal service contracts in order to discuss changes in the contracts with them.' Russell began by explaining the changes he had worked out with their attorney which, he understood, would take care of their objections. When he asked for questions, Connors spoke up on behalf of the five. As he had been instructed by Rose prior to the meeting, Connors informed Russell that the five had formed the Union, that he was demanding that Respondent recognize and bargain with it as the representative of Respondent's announcers, and that the Union was represented by Rose. Russell expressed surprise that the announcers had not brought their gripes to him and invited them to discuss such matters with him on an individual basis. Connors refused. Instead, he again referred Russell to Rose. The record is unclear as to just which announcers attended this meeting It is undisputed that Connors, Wall, Graham, and Stanton were present Connors first testified that Aust was also present, then expressed some uncertainty. Graham and Wall did not name Aust as among those present. Aust was not asked whether he was present. Russell named the five plus Moorehead but expressed some uncertainty . Since Aust worked the midnight to 6 a.m. shift it is unlikely that he would have stayed around for a midmorning meeting . Also, it is clear that dissatisfaction with the proposed personal services contracts was not limited to Connors, Wall, Graham , Aust, and Stanton. Therefore, it is likely that announcers other than the five would have attended a meeting called by Russell to discuss those contracts. Consequently, I find that the announcers present for this meeting were Connors, Wall, Graham, Stanton, and Moorehead . However, I attach no significance to Aust's absence since it is undisputed that Connors said he was speaking on behalf of the five and Russell did not question that fact. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 17, after Connors, Wall, Graham, and Aust struck in protest of Respondent refusal to recognize the Union, William Haynes, the attorney who represents Respondent in this matter, wrote Rose. Haynes' letter reads, in part: Your letter dated May 10, 1968 , on behalf of the Topeka Association of Radio Announcers, to the Midland Broadcasters, Inc. (KEWI) has been referred to me for answering. You are hereby advised that the employer has a good faith doubt that said Association represents a majority of the employees in an appropriate unit for purposes of collective bargaining . Moreover , the Company questions the status of the Association as a labor organization within the meaning of the National Labor Relations Act.... Respondent contends that the Union 's demand for recognition was not rejected by it until May 17. I find that the Union satisfied the formal prerequisite to bargaining of a demand for recognition when Connors spoke to Russell at the meeting of announcers on May 10 and that Respondent then and there formally refused even though, as is undisputed, Russell spoke no magic words. 3. Appropriate Unit The General Counsel contends that a unit limited to Respondent's broadcasting employees, i.e., those employees who regularly or frequently appear before a microphone, is appropriate for bargaining. Respondent contends that only a unit of announcers, engineers, and production programmers is appropriate. The parties are in agreement that salesmen, office clerical employees , guards and supervisors should be excluded from any unit found appropriate herein. Respondent's operation is divided into departments, two of which are the program department and the engineering department. Jarvis was promoted from head announcer to program director on April 17 and thus became head of the program department at that time. The program department consists of announcers and production programmers. Production programmers prepare the log which announcers follow while on the air and perform other clerical duties in connection with Respondent's programming. They do not appear on the air. On May 10 there were two female employees performing these duties. No employee of Respondent has ever transferred from a job as production programmer to a job as announcer or vice versa. On May 10 the engineering department was headed by Keith Christian and numbered five engineers in addition to the chief engineer . Christian began his employment with Respondent as an announcer. When he became chief engineer he continued to run a disc jockey show from 10 p.m. to midnight, Monday through Friday. Other than Christian and Jarvis, who began with Respondent as an engineer and an announcer simultaneously, there has never been any interchange between announcers and engineers. Engineers work at Respondent 's transmitter , some miles removed from its studios, where they monitor the equipment and make minor repairs. Program department employees are paid on a monthly salary basis with, however, time and a half for overtime. Engineers are paid on an hourly basis. All employees share the same fringe benefits, such as vacations and group insurance. Since announcers and engineers perform different duties at different locations under different supervisors without any significant interchange, a unit which covers both programming and engineering departments is not the only one appropriate for Respondent's employees. Since the Board has held that a unit limited to radio station employees who frequently or regularly appear before the microphone can be appropriate and Respondent's production programmers do not possess such a community of interest with Respondent's announcers as to rule out application of that rule here, a unit comprised of all production department employees is also not the only one appropriate here. Therefore, I find that a unit limited to Respondent's announcers is appropriate for purposes of collective bargaining. Hampton Roads Broadcasting Corporation (WGH), 100 NLRB 238; KPOJ, Inc., 129 NLRB 727; National Broadcasting Company, Inc., 160 NLRB 1440. 4. Majority The parties agree that Larry Jarvis is properly excluded from an announcers unit because, as program director, he was a supervisor within the meaning of the Act after April 17. The significance of Respondent's contentions with respect to labor organization and demand and refusal lies in the position it takes with respect to the other eight announcers plus events which took place before and on the day the Union struck Respondent, May 17.' Of the eight men who, in addition to Jarvis, frequently or regularly appeared before Respondent's microphones on May 10, the parties agree that James Connors, Stanley Wall, Gregory Aust, Raymond Goldsich, Raymond Moorehead, and Lonnie Stanton are properly included in a unit of announcers .'The General Counsel would exclude Keith Christian and Respondent would exclude Christopher Graham, each on the ground that he is a supervisor within the meaning of the Act. Keith Christian worked 30 hours a week as chief engineer and 10 hours a week as a disc jockey. The parties agree that his duties as chief engineer made him a supervisor insofar as his relationship with the engineers is concerned and that he had no supervisory authority of functions with respect to the other announcers. Respondent relies on the latter fact to argue for his inclusion on the authority of Berea Publishing Company, 140 NLRB 516, wherein the board held that an employee with dual functions could be included in a unit on the basis of his community of interest with the other employees in that unit despite the fact that he spent less than 50 percent of his time working in that unit. I agree that Christian , as an announcer, had a community of interest with the other announcers. However, Berea Publishing and the • cases which follow it involve dual-function employees who wore two rank and file hats. Since Christian wore a supervisor's hat as chief engineer, I hold that he is properly excluded from an announcers unit. Unlike the carpenter in Dimeo Construction Company, 122 NLRB 980, who had worked for the same employer at various times as a carpenter, carpenter foreman, and superintendent and was found to be an employee rather than a supervisor in an 8(b)(2) context, Christian was chief engineer and disc jockey simultaneously although performing the duties of the two jobs at different hours of the work week. Like the year-round employees in the Great Western Sugar Company, 132 NLRB 936, who 'Connors, Wall, Graham, and Aust struck . The strike ended May 20. MIDLAND BROADCASTERS, INC. exercised supervisory authority only during the season and were excluded from a unit of seasonal and year-round employees for that reason, Christian's relationship with management as chief engineer so colored his total image as to outweigh the community of interest with the announcers that his 10 hours a week before the microphone otherwise gave him. On May 10 Christopher Graham and Lonnie Stanton were the only newsmen among Respondent's announcers. Respondent's program format calls for 5 minutes of news beginning 5 minutes before each hour, referred as the 55 news, and news bulletins or "headlines" at 20 minutes after and 20 minutes before each hour, referred to as the 20-20 news. The newsman's duty is to prepare the material for each of these broadcasts and, if present in the studio at the appropriate time, read it on the air. If the newsman is out of the studio covering a story, the disc jockey in whose show the newscast falls reads the news and, if necessary, prepares it. Newscasts which fall in periods when there is no newsman on duty are prepared and presented by disc jockeys. Graham had worked for Respondent longer than Stanton, was paid a larger salary than Stanton, and had authority to tell Stanton what news events he should cover. Graham also had the title of news director. Graham's hours were 6 a.m. to noon, Monday through Saturday, Stanton's were 12:55 p.m. to 7 p.m. Monday and Wednesday through Saturday, 10:55 a.m. to 7 p.m. Tuesday. The 1-hour overlap of Graham's and Stanton's hours on Tuesday morning was provided to permit Graham regularly to cover meetings of the Topeka City Council which take place at that time. The working arrangement between Graham and Stanton was that each would leave notes for the other about news events the writer of the note could not cover. Although the system was highly informal and there is no evidence that any such distinction was ever expressly laid down by Respondent, I find that a note from Graham to Stanton had the status of an order while one from Stanton to Graham was a suggestion only. There is no evidence that Stanton ever failed to cover a news event ordered by Graham. There is no evidence that Graham ever failed to cover a news event suggested by Stanton. Respondent relies on Graham's authority to tell Stanton what news events to cover in arguing that Graham responsibly directed the work of Stanton and was, therefore, a supervisor within the meaning of the Act. I disagree. Graham did not direct the work of Stanton in any immediate sense , especially in view of the fact that they were present for duty at the same time, at most, only 1 hour per week. The relationship between them was, at most, that of journeyman and helper and involved only the carrying out of routine tasks without the exercise of independent judgment. Since Graham possessed none of the other indicia of supervisory authority and since his title alone is not enough to confer that status on him, I find that he was not a supervisor within the meaning of the Act. He is, therefore, includible in a unit of Respondent's announcers. National Broadcasting Company, Inc., supra. Respondent further contends that Stanton should not be counted as a supporter of the Union because his adherence was coerced in the first instance and because he had withdrawn by May 17 when, in Respondent's view of the case, it first refused the Union's demand for recognition.' During the period when the five were wrestling with the problem of how to cope with Respondent's insistence upon personal service contracts 111 and were in telephone communication with Schnabel, the question arose of what, if any, pressure they could bring to bear on colleagues who did not go along with them in the event they went on strike. The suggestion was made that it might be possible to get AFTRA's help at least to the extent of bringing pressure to bear on others not to cross their picket line. The five spoke to each other in terms of "blackballing" their colleagues, especially Raymond Moorehead. Which of the five first raised the subject is not clear, although Stanton conceded that it could have been he. In any event, the subject was discussed in the telephone conversations Connors had with Schnabel during this period. Finally, an arrangement was reached under which Schnabel was to send a letter which the five could show to would-be picket line crossers. Apparently this arrangement was reached on the evening of May 13 since it was discussed by the five that evening before they signed the Authorization for Representation and Charter detailed above, and Connor's wife made a special trip to Kansas City the next day to pick it up. The letter is dated May 14, addressed to Jim Connors and reads, in pertinent part: ...I haven't heard yet from National AFTRA when we can expect the hiring of a new Field Rep. to service the Central Region but hope it will be shortly. Keep me posted on all developments, not only at KEWI but any interest you might hear of at the other stations. When we can get sufficient personnel to service the Central Region I am sure that Topeka will be a prime area for organization... P.S. I would be interested in the names and Social Security Numbers of any performers who act contrary to the best interest of this effort on the part of the KEWI Announcers to obtain just and equitable terms and conditions of employment. On the evening of May 16 Stanton joined Connors, Wall, Graham, and Aust in painting picket signs for their strike, scheduled to begin at 6 a.m. the next morning. Sometime after midnight that night Stanton was awakened from sleep by his roommate, Raymond Moorehead. Moorehead was angry, he said, because Connors had shown him Schnabel's letter and sought to force him not to cross the picket line by threatening him with being blackballed in the industry. Stanton and Moorehead talked until dawn. Stanton then called his father, an executive in the radio business, and sought his advice. As a result of his conversations with Moorehead and his father, Stanton changed his mind about joining in the strike. Stanton crossed the Union's picket line to go to work on the morning of May 17. He told Russell that he was worried about what might happen to him in Kansas City as a result of crossing the picket line. Kansas City is a "major market" in the radio business to which announcers in Topeka, apparently a "minor market," aspire to advance in furtherance of their careers. Stanton told Russell about the discussions the five had had about "blackballing" in the period leading up to the strike. He did not tell Russell that he had joined with the four strikers in organizing the Union because he feared he would be blackballed. Stanton took no affirmative action to end his membership in the Union, either by word or deed, until August when, in preparation for hearing in these cases, he was invited to meet with Rose and counsel 'This portion of my decision is based on the testimony of Stanton, whom I credit 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the General Counsel. In a letter mailed to Rose on August 28, Stanton replied: Regarding a letter from Mr. Robert E. Funk, Jr., of the National Labor Relations Board Region 17, suggesting a meeting between myself and Mr. Rose and Mr. Jolley for the purpose of discussing the trial of N.L.R.B. cases numbers 17-CA-3580 and 17-CA-3631, Midland Broadcasters Incorporated on Thursday, August 29. With all respect, I fail to see the necessity for such a meeting since I terminated my involvement with the Topeka Association of Radio [sic] on May 17, 1968. The Union has never taken any formal action to expel Stanton from its ranks. In Respondent's view of all the issues so far considered, Respondent can be under no duty to bargain with the Union because, there being no labor organization in existence prior to May 13, there was no operative demand to bargain until that time and no operative refusal of that demand until Haynes' letter of May 17. By that time, since Stanton cannot be counted among the Union's ranks whichever of the reasons set forth at the beginning of the discussion of Stanton's travail is relied on, Respondent had a good faith doubt of the Union's majority even in the announcers' unit whose appropriateness Respondent does not concede on the basis of the facts available to it. The Union, Respondent says, on the morning of May 17 had only three adherents - Connors, Wall, and Aust - in a unit of seven - the three just named plus Goldsich, Moorehead, Stanton, and Christian. I disagree with both of Respondent's reasons for eliminating Stanton from the Union's ranks. First, it is clear from his own testimony that he was not coerced into signing the May 10 "letter of intent" and the May 13 Authorization for Representation and Charter by the blackball conversations being carried on by himself and his fellow dissidents. Schnabel's letter was intended to bri ng pressure not on Stanton, who wanted it as a weapon to use in the fight of the five for the rights they sought, but on other announcers, among them Stanton's roommate Ray Moorehead, who were reluctant to join the five. Stanton did not change his mind about the step he had freely taken to join with Connors, Wall, Graham, and Aust in organizing the Union and calling a strike against Respondent until his talk with Moorehead a few hours before the strike was scheduled to begin. Second, the fact that Stanton then crossed the picket line establishes only his refusal to strike, not his withdrawal from the Union. Since he did nothing to terminate the relationship until August, he continued to be a member at all times relevant herein despite what he thought in August was the sig nificance of his action in May.' In summary, therefore, I find that, on May 10 and at all other relevant times, the Union represented a majority of five Connors, Wall, Graham, Aust, and Stanton - in an appropriate unit limited to Respondent's seven non-supervisory announcers - the five just named plus Goldsich and Moorehead - and that, on that date, the Union made a legally sufficient demand for recognition which continued in effect at all relevant times. Thus all the prerequisites to bargaining were met at all relevant times. The question remains whether these and/or other 'It is, I think, an interesting commentary on the thought processes of the earnest young men, uninitiated in the mysteries of labor law , involved in this matter but a matter of no significance that Stanton chose the word "involvement" rather than "membership" when he wrote to Rose. events gave rise to a duty on Respondent's part to bargain with the Union. That issue is discussed under The 8(aXS) Allegations below. B. The Independent 8(aX 1) Allegations 1. The conversations of Russell and/or Reynolds with Connors on May 10 and May 131° Shortly after Russell's meeting with the announcers on the morning of May 10, Russell took Connors to the office of Fred Reynolds, president of Respondent. Reynolds asked Connors if he knew what he was getting into and told Connors that Respondent had gone through the same thing with its engineers 2 years before." He said that Respondent had been able to beat the engineers then and was prepared to follow the same course with the announcers . He pointed out that Respondent was in a much better position than the five to bear the expense of a drawn-out Labor Board election fight. The conversation then turned to Connors' personal situation and his prospects with Respondent. Russell told Connors that he had reached a crossroad in his career. There was a discussion of youth and its propensity to buck the establishment, Reynolds at one point citing his own son as an example . Reynolds pointed out to Connors that he had to make a choice between bucking the establishment and going along with it, between deciding he wanted to be a disc jockey for the rest of his life and deciding he wanted to move up to better things in the radio industry. Russell reminded Connors of a conversation they had had a couple of months before, on the occasion of Connor's last raise, when the possibility of Respondent's opening up an FM station and the value to Respondent of Connors' prior experience at an FM station had been discussed. Reynolds and Russell told Connors that Respondent would need someone to manage its FM station, if it started one, and that he would end his chances of getting that job if he insisted on bucking the establishment as he was doing. Finally, Reynolds asked Connors if he was going to go ahead. Connors replied that he did not know, that the decision was not his alone to make, and that he would have to talk to the others. On the following Monday morning, May 13, Connors had occasion to go to Russell's office to get a key, Russell asked Connors if he had made a decision based on the May 10 discussion. Connors said, "No, not yet." Russell said, "You had better make a decision pretty quick. I have to know this afternoon. That is when our defense mechanism goes into action." Later that day, in the control room, Russell again asked Connors if he had made up his mind. Connors said that the five were going to go ahead with their plans. Russell said, "You know you are not going to win because you don't have a majority of the broadcasting employees." On the foregoing, I find that Fred Reynolds, Respondent's president, on May 10 and Robert Russell, This section is based on the credited testimony of Connors. Reynolds did not testify Russell's version differs from Connors' in detail, emphasis, and shading. I found Connors, like all of General Counsel's witnesses, a straightforward if brash young man. Russell, on the other hand, was somewhat evasive and inclined to attempt to substitute his opinions for facts in areas damaging to Respondent. "The Director of the 17th Region issued a Decision and Direction of Election in Midland Broadcasters, Inc. (Radio Station KEWI), Case 17-RC-4935, on December 23, 1965, in which he directed an election in a unit of Respondent 's transmitter engineers . Petitioner was International Brotherhood of Electrical Workers, Local No. 226, AFL-CIO. MIDLAND BROADCASTERS, INC. Respondent's vice president and general manager, on May 10 and 13 interrogated an employee about his union activities and desires, promised him future economic benefits if he refrained from union activities, and threatened him with loss of those benefits if he persisted in his efforts to organize Respondent's employees, thereby violating Section 8(a)(l) of the Act. 2. Jarvis' conversation with Goldsich on May 19 and subsequent events'2 Raymond Goldsich, a high school senior, worked part-time as a disc jockey for Respondent during the 1967-68 school year. In mid-May he was on a leave of absence to permit him to participate in the activities which keep seniors busy as graduation nears. Following his graduation, he went to work full-time on June 10. He quit 2 weeks later. On May 17 Goldsich received a call from Russell, who asked him to come to work, saying that Respondent could use him full-time immediately. Goldsich asked if the announcers were on strike. Russell replied that they were. Goldsich put Russell off. Goldsich then called Schnabel. He asked what might happen to him if he crossed the picket line at KEWI. On May 19, while the strike was in progress, Goldsich called Larry Jarvis and discussed the situation with him. Jarvis filled Goldsich in on what was going on. Jarvis named the four announcers who were out on strike and said that the score was tied, four announcers who did not want a union being at work and four who did being out on strike. Goldsich said that he was willing to come to work immediately if Respondent needed him but that he would rather not get mixed up in the situation in light of his conversation with Schnabel. Jarvis replied, "We will get by all right without your working. You do not have to come to work right away. What we need right now is your vote." Two days later, after the striking announcers had returned to work, Goldsich called Jarvis again. It was arranged that Goldsich would wait a while longer before coming to work for Respondent. Goldsich began working full-time for Respondent on Monday, June 10. On June 12 Jarvis telephoned Goldsich while Goldsich was working." Goldsich told Jarvis that he had been talking about the union situation with the other announcers and thought there was some merit to the arguments of the five that they were being treated unfairly. He pointed out that the schedule which had gone into effect when he was added to the full-time staff required Christopher Graham to work until midnight on Sunday, then return to the station at 5:50 a.m. on Monday. Goldsich said he did not think that was fair. He asked whether Graham's being for the Union had anything to do with his getting a schedule like that. Jarvis replied that Graham and the other strikers had been disloyal to Respondent and Graham was only getting what he deserved. Jarvis asked Goldsich how he would vote. 1° Goldsich replied that, in light of his conversations with Connors and Graham, he did not know which way he wanted to vote. Jarvis replied, "It was our understanding when you came to work for us that you were going to be on our side." "This section is based on the testimony of Goldsich , whom I credit over Jarvis, where there is any discrepancy between their versions , for the same reasons I credit Connors over Russell. "Apparently it is not uncommon for disc jockeys to use the telephone or to perform other chores while technically on the air I gather that, while 113 The next day Goldsich received a memorandum from Jarvis criticizing his work. Goldsich asked Jarvis about the memorandum he had received and the fact that Jarvis was giving out more memoranda than previously. Jarvis said that his purpose was to create a record so that, in the event Respondent decided to discharge anybody, it could prove that the employee had been warned about doing wrong the things for which he was ultimately let go. I find the statement of Larry Jarvis, Respondent's program director, to Goldsich on June 12 that it was Respondent's understanding, when Goldsich came to work, that Goldsich would be on its side, coupled with Jarvis' statement to Goldsich on May 19 that what Respondent needed was Goldsich's vote and with Jarvis' statement on June 12 about Graham's schedule, constitutes an implied threat of economic loss to an employee and thus is violative of Section 8(a)(1). The complaints in this matter do not allege any interrogation of employees by Jarvis. However, since what Jarvis said to Goldsich in the June 12 telephone conversation was thoroughly litigated, I find that Jarvis further violated Section 8(a)(1) in that conversation by asking him how he would vote. 3. Russell's conversations with Goldsich on May 31, June 10, and June 1315 On May 17 Respondent mailed both an unfair labor practice charge and a petition for an election to the Board's regional office in Kansas City." In Case No. 17-CP-87, Respondent alleged that the Union 's picketing was violative of Section 8(b)(7)(C) of the Act. In 17-RM-384 it sought an election as a result of the Union's claim to represent its announcers. On May 27 Respondent filed a second unfair labor practice charge against the Union . Case 17-CB-607 alleges a violation of Section 8(b)(1)(A) in that "On or about May 16, and at various times thereafter, [the Union] .. . threatened, intimidated and coerced Raymond Goldsich, Lonnie Stanton, Ray Moorehead and Gregory Aust with regard to future employment . . . . . On May 30 Respondent asked Goldsich to give a statement to a Labor Board field examiner in support of its charge. Goldsich did so. The next day Russell asked Goldsich if he had gotten a copy of his statement . Goldsich replied that he was supposed to get one but did yet have it. The regional office dismissed Respondent 's charge in Case 17-CB-607 on June 7 . On June 10 Russell again asked Goldsich if he had a copy of his statement to the Labor Board. He also asked Goldsich to make another statement to Respondent 's attorney . Respondent's purpose in seeking a copy of Goldsich' s Board statement and in taking another affidavit from him was to appeal the Regional Director's dismissal of its charge on the ground that the field examiner had refused to include in the statements he took certain information with respect to the blackballing facet of the situation which I have discussed above. the platters are spinning, the disc jockey's microphone is cut off and he is free to speak on the telephone or do other things without being heard on the air. "Respondent's petition for an election in Case 17-RM-384 was pending at the time . See fn. 16 below. "The facts in this section are undisputed. "Both cases were docketed in the Regional Office on May 20. Both were dismissed shortly before the complaint was issued in Case 17-CA-3580 on July 24 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 13 Goldsich accompanied Russell to the office of William Haynes , Respondent' s attorney. Russell again asked Goldsich whether he had obtained a copy of his Board statement. Goldsich replied that he had not but that he would get one and bring it to Russell . Haynes took another statement from Goldsich. Goldsich subsequently gave to Russell , for Haynes' use, a copy of his Board statement. Haynes mailed his appeal of Case 17-CB-607 on June 19. The General Counsel relies on the well established principle that an employer violates Section 8(a)(l) when he interrogates his employees about statements they have given to Board investigators and seeks copies of their statements in arguing that Russell's queries of May 31, June 10, and June 13 were violative. Johnnie's Poultry Company, 146 NLRB 770; Winn-Dixie Stores, Inc., 143 NLRB 848; Texas Industries, Inc., 139 NLRB 365; Hilton Credit Corporation, 137 NLRB 56. I disagree. Each of the cases in which the Board has reiterated this principle has involved charges against an employer and his efforts, or the efforts of his attorney, to find out what the employees have told the Board about them so that he could prepare his defense . As the Board said in Winn-Dixie: Pretrial statements taken by the General Counsel are intended to record and preserve the facts leading to the alleged unfair labor practices on which the charge is based. As such, these statements necessarily reveal the employees' attitudes, activities, and sympathies in connection with the Union. Moreover , the statements divulge the union sympathies and activities of other employees and the conduct of the supervisors toward the Union and its adherents. As such, they should be as free of any inquisitive interest by the Employer as are the employees' union activities themselves . Knowledge by the employee that his Employer is manifesting an interest in what the employee may say about him can only exert an inhibitory effect on the employee's willingness to give a statement at all or to disclose all of the matters of which he has knowledge for fear of saying something that might incur the Employer's displeasure and possible reprisal. None of these elements is present here . Rather, Goldsich talked to the Board's investigator at Respondent's request in order to give to the Board information Respondent thought Goldsich had which would support Respondent's charge . When the Regional Director found no merit to Respondent's charge, Respondent could not intelligently appeal to the General Counsel without knowing wherein the information on which the Regional Director had based his decision differed from the facts as Respondent understood them from its own conversations with the witnesses it had relied on in filing charges in the first place. Thus, under these circumstances, Respondent's mere request to Goldsich to get it a copy of his statement to the Board, absent any other pressure to force him to comply, is a necessary part of Respondent's right to avail itself of the Board's processes, not an invasion of its employees' rights to invoke the Board's help without coercion. I find, therefore, that Russell did not violate Section 8(a)(1) on May 31, June 10, and June 13 when he asked Goldsich for a copy of the statement which Goldsich had furnished to the Board as Respondent's witness in support of an unfair labor practice charge filed by Respondent against the Union. C. The 8(aX3) Allegations 1. The events immediately following the May 17-20 strike" a. Christopher Graham and the news car As indicated, the strike began on Friday, May 17. On Monday, May 20, the strike was abandoned. Connors, Wall, and Graham signed and delivered to Respondent a letter dated May 20 in which, on behalf of themselves and Aust, they made an unconditional offer to return to work and repeated their demand for recognition of the Union as their collective-bargaining representative. All four announcers returned to work. As part of its news operation, Respondent operates a telephone-equipped automobile known as the news car or the mobile unit which is used for covering local news events. Prior to the strike, the news car was assigned to Christopher Graham as news director. This meant that he was on 24-hour call to cover any events which required use of the mobile unit. Consequently, when he was not at work he was required to have the news car with him. With Respondent's permission he drove it to and from work and on personal errands or social events in and around Topeka. Use of the news car on his own as well as on Respondent's business was a prequisite of his job whose value Graham estimated at $10 a week in gasoline and parking fees saved. On the morning the strike began Graham parked the news car in its usual garage stall at the studio and turned in the keys. When the strike ended Graham, by note, asked Jarvis to return the keys. Jarvis failed to reply. The keys were returned to Graham in the middle of July, when he again became responsible for 24-hour on-the-spot news coverage. During the period from May 17 to mid-July, the news car and the responsibility were assigned to Lonnie Stanton, the second newsman, for a period of 1 week and to Jarvis for the rest of the time. Graham was on vacation for 2 weeks during this period. On two occasions when events occurred during Graham's shift which required on-the-spot news coverage, Graham obtained the keys to the mobile unit from Jarvis and gave them back when he returned to the studio. b. Stanley Wall, his lunch and his wife Prior to the strike it was Stanley Wall's custom to eat his lunch in the disc jockeys' lounge . The disc jockeys' lounge is an office with a desk and a telephone which the 'Trhe facts in this section are essentially undisputed. As indicated above, I credit Jarvis only where his testimony is corroborated . In addition to his demeanor, I rely on the following specific inconsistencies in his testimony in discrediting him generally as well as with respect to the particular points on which the inconsistencies bear (1) Jarvis deni ed any knowledge that Mrs. Wall was keeping Wall company at the station on Sunday afternoons prior to the Sunday after the strike. However , in detailing his reasons for ordering Wall to stop eating his lunch in the disc jockeys' lounge , Jarvis said, "I informed him ... for several reasons , me not having a telephone in my own office it was bad news for me to go in there and find him and his wife eating their lunch ." I consider Jarvis' reference to Mrs . Wall in this context an admission that he knew she frequently visited her husband at the studio. (2) Jarvis testified that he changed Graham 's schedule around August 1, as soon as the inequity was called to his attention, yet he admitted that, in their June 12 conversation , Goldsich told him that Goldsich thought the new schedule discriminated against some of the announcers MIDLAND BROADCASTERS, INC. announcers are free to use when not in the control room. It also contains the office coffee machine . Jarvis, as program director, has an office elsewhere which does not contain a telephone . He customarily uses the telephone in the disc jockeys' lounge. On the day after the strike ended Wall, as was his custom, went to the lounge with sandwich in hand. He was met there by Jarvis who told him there was a policy against eating in the lounge and that, because it interfered with Jarvis' use of the telephone , he could not eat there. When Wall protested that he was all ready to eat his sandwich, Jarvis relented for that day but ordered him not to eat his lunch there in future . A three-page, single-spaced document entitled "KEWI GENERAL ADMINISTRATIVE POLICY" contains no mention of eating in the disc jockeys' lounge. On the Sunday after the strike ended, that is, on Sunday May 26, as she had on previous Sundays since their marriage the preceding October, Mrs. Wall accompanied Wall to the studio to keep him company during his 6-hour afternoon disc jockey stint . Jarvis saw Mrs. Wall there . He told Wall that he would have to tell his wife to leave because of Respondent 's policy against visitors in the station. The aforementioned policy document contains various provisions the gist of which is that visitors will not be encouraged and anyone who wants to see the station in operation will be given a brief look and ushered politely out. It reads, in part: 7. Visitors:.. . d. If you bring in personal friends or relatives to look at the station, make it brief. Show them around, then, after a reasonable time, leave. e. Air Staff will not have visitors while on the air . During the 1967 football season Wall had occasion to comment to Jarvis one Monday what a big help his wife had been to him the previous day in keeping football scores up to the minute . On another occasion a telephone call which Wall could not cope with came into the station from an advertiser on a Sunday afternoon. Mrs. Wall relayed the message to Jarvis at home. c. The June 9 schedule change Lonnie Stanton was hired by Respondent around the first of April . He and Raymond Moorehead are members of the Kansas National Guard. They are required to attend a weekend drill once a month. KEWI broadcasts on a 7-days-a week, 24-hours-a-day schedule with the exception of midnight to 6 a .m. on Monday . Before Stanton was hired, the absence of Moorehead on a Saturday and a Sunday because of his military obligation caused a problem which Respondent solved each month by finding another disc jockey who could cover for him. The addition of Stanton to the staff and his and Moorehead 's absence on the same weekend complicated the problem to the point where a permanent schedule which would give each a weekend schedule with another announcer, either disc jockey or newsman , who could run the whole shebang himself once a month when Stanton and Moorehead were gone became a better solution. Keith Christian left Respondent on June 1 to join the United States Navy. Raymond Goldsich was placed on a full time status to cover the gap left in Respondent's disc jockey schedule by his departure . Because of the necessity of working Goldsich into the schedule on a 40-hour basis while Christian's departure left only a 10-hour gap in disc 115 jockey programming and because of a desire to resolve the Stanton-Moorehead National Guard problem in the manner indicated, Jarvis issued a completely revamped work schedule, effective Sunday, June 9. Prior to the change, James Connors worked as a disc jockey from noon to 6 p.m. on Saturdays, with Lonnie Stanton opposite him as newsman. Both had Sunday off. Stanton's shift ran until 7 p.m. which carried him an hour into Goldsich's 6 p.m. to midnight show. (Goldsich worked Saturday nights only.) After the change, Moorehead had the Saturday afternoon disc jockey trick, with Goldsich opposite him as newsman. Connors wound up with the 6 p.m. to midnight Saturday shift, doubling as both disc jockey and newsman. Prior to the change Graham worked as newsman from 6 a.m. to noon, Monday through Saturday, opposite disc jockey Jarvis. Both had Sundays off. Moorehead had Saturday off but was required to work a split shift on Sunday, 9 a.m. to noon and 6 p.m. to midnight, with no newsman opposite him. After the change Lonnie Stanton worked the Saturday morning news trick opposite Jarvis. Graham had Saturday off but was required to work a split shift on Sunday, as newsman from 10 a.m. to 1 p.m. and as both from 6 p. m. until midnight. His old Monday shift as newsman from 6 a.m. to noon remained unchanged. The new schedule solved Respondent's National Guard problem in that, on weekends when Stanton and Moorehead were away, neither was scheduled to work on Sunday and Jarvis and Goldsich could get along by themselves on Saturday morning and afternoon respectively. In a schedule effective July 14 Graham was relieved of his Sunday morning shift, returning to the 36 scheduled hours basis which he had worked before the June 9 change . In a schedule effective August 12, Graham and Connors swapped the Saturday night and Sunday night shows. Jarvis ordered the change in order to end the necessity for Graham to return to work on Monday mornings only 6 hours after finishing his stint on Sunday nights. d. Conclusions In each of these three areas I am convinced that Respondent acted out of a desire for revenge against the strikers. I rely for this conclusion on the fact that, on June 12, Jarvis told Goldsich that Graham had been disloyal to Respondent when he went out on strike and was only getting what he deserved in the June 9 schedule. While this is, technically, an admission of an illegal motive as to only one of several discriminations alleged by the General Counsel, it throws such a blinding light on the atmosphere that prevailed just after the May strike that it reveals the real reason for each of the petty vengeances Jarvis took against employees who had the termerity to exercise their legal right to strike. In addition, with respect to each of the discriminations, I do not credit the ostensible reason advanced by Respondent for the following reasons: (1) In arguing that Christopher Graham is excluded from an announcers' unit because he is a supervisor, Respondent does not take the position that his title or duties were any different after the strike than before. Therefore, he was still news director and, in Respondent's view, responsible for collecting the news after the strike. If carrying out that responsibility required him to be on 24-hour call for on-the-spot news coverage before the strike, he should have been subject to the same requirement after the strike . But the requirement carries 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with it 24-hour use of the news car. To say, as Respondent does, that it did not give the car back to Graham immediately once the strike was over because it found that Jarvis or Stanton could carry the responsibility satisfactorily is to say that Graham had ceased to be news director insofar as that title has any real significance. Such an argument is totally inconsistent with Respondent's majority argument that Graham is a supervisor. (2) Timing alone is enough to give the lie to Respondent's excuse that Jarvis could not permit Wall to continue to eat his lunch in the disc jockeys' lounge because it interfered with Jarvis' business use of the telephone. Jarvis succeeded Russell as program director on April 17. Wall ate his lunch in the lounge without objection in the month between April 17 and May 17. Jarvis forbade such conduct on the first day after the strike. There is no fact other than Wall's participation in the strike to account for the change in the rules. The same reasoning applies to Jarvis' forbidding Wall to have his wife with him at the station on Sunday afternoons since Jarvis acted on the first Sunday after the strike. Jarvis' excuse that he invoked Respondent's policy against visitors while on the air the first time he learned Mrs. Wall was in the station fails before the clear proof that he knew full well what was going on before the strike. (3) Finally, Respondent's coincidence explanation for the fact that, in the June 9 schedule, Connors wound up with a Saturday night shift instead of a Saturday afternoon shift and Graham wound up with a Sunday night shift that gave him only 6 hours off before he had to return to work on Monday morning instead of a Saturday morning shift is completely incredible. I do not doubt that Respondent's motive for revamping the schedule was to solve its National Guard problem at the same time it wove Goldsich in. I am equally convinced, however, that Jarvis took advantage of the opportunity to punish strikers and reward non-strikers. There is no other explanation for the fact that Jarvis' solution was to prefer Goldsich, whose experience to that point had been as a part time employee only, over Connors, an experienced radio announcer, as the man who would work by himself when Raymond Moorehead had to be away. To say, as Jarvis did, that Connors was better qualified than Goldsich to work the Saturday night shift will not stand close inspection either, for Saturday night was the very shift that Goldsich had worked as a regular part-timer prior to June 9. The easy solution, as far as Lonnie Stanton's National Guard duty was concerned, was to put him on as Saturday afternoon newsman opposite Connors' pre-June 9 disc jockey show. The fact that Jarvis chose to solve the problem the hard way makes his motive clear. With respect to Graham, the fact that Jarvis chose the news director rather than some other disc jockey, say Goldsich, the new man, to replace Moorehead on his Sunday shows is equally illuminating. Wall's eating of his lunch in the disc jockeys' lounge and having his wife in the studio with him on Sunday afternoons are not conditions of employment of the same magnitude as Graham's use of the news car for personal business, with the attendant increase in his real salary, or Graham's and Connors' less onerous hours of employment, but they are substantial enough to be conditions of employment in the circumstances of these cases. I find, therefore, that Respondent changed the conditions of employment of Wall, Graham, and Connors in the manner indicated because they engaged in the May strike and thereby, in each instance, violated Section 8(a)(3) of the Act. 2. Discrimination against Gregory Aust18 Gregory Aust began working for KEWI on April 15. His only prior experience as a radio announcer had been at KUSN in St. Joseph, Missouri, a sister station of KEWI. At KUSN Aust had worked as the all night show disc jockey from August 1967 until he quit sometime prior to being hired at KEWI. His manner of quitting was to leave a note that he would not be back in the control room at the end of a shift. All-night disc jockeys, at both KUSN and KEWI, are alone in the studio while they are working. Aust was hired by Russell at KEWI with knowledge of the difficulties he had had at KUSN, the manager having told Russell that Aust tended to deviate from KUSN's on-the-air policies and programming format, preferring to create his own image as an entertaining personality. Aust was assigned to KEWI's all-night disc jockey show. As additional duties he was required to prepare the daily civic calendar and poop sheet, noncommercial items of local interest which Respondent broadcasts in the public interest. KEWI, like KUSN, has an on-the-air policy and a programming format. KEWI's policy and format are designed to project the total image to listeners which Respondent has decided will make KEWI a successful radio station. The image which Respondent seeks to project is that of a contemporary music and news station, that is, a station whose around-the-clock programming is limited to disc jockey music shows interspersed with news at 20 minutes after the hour, 20 minutes before the hour, and 5 minutes before the hour. The music which disc jockeys are permitted to present is strictly limited to the 40 top records at any given moment, as determined by record sales in the Topeka area, some 20 or 30 other new records known as "comers" which Jarvis and Moorehead (who has the additional title and duties of "music director") have decided show promise of rising to top 40 stature, and a few former top 40 tunes known as "classics." The format calls for disc jockeys to play records of their own choosing from each of these stacks in a certain ratio and sequence during a given time period. There are other rules about such things as not presenting a commercial immediately before a newscast. The most sacred rule is not to omit any of the commercials scheduled during a given time period. Respondent's image is one of bright, cheerful, entertaining young disc jockeys who do not, however, let their chatter overshadow their music. Within the on-the-air policy and programming format laid down by Respondent disc jockeys are free to plan and present their shows as they see fit. When Aust was hired in April he was informed of Respondent's policies and format, including the fact that Respondent has a 90-day probation period for new employees. Probation was never mentioned to him again up to and including his discharge on July 15, 3 months to the day from his hire. Prior to the May strike, Aust received frequent instruction and criticism from Jarvis about his work. These efforts to mold Aust into a KEWI-model disc jockey took the form of conversations between Jarvis and Aust when Jarvis reported in the morning to begin his, show as Aust was finishing his as well as memoranda sent to Aust by Jarvis. However, during the prestrike period Jarvis did not speak to Aust "The facts in this section are essentially undisputed. MIDLAND BROADCASTERS, INC. and then follow up the conversation with a memorandum on the same subject. As already related in detail, Aust joined with Connors, Wall, Graham, and Stanton in the activities which led up to formation of the Union and the May strike. Aust vacillated somewhat before he cast his lot irrevocably with the Union by joining in the strike. On Sunday, May 12, Aust called Russell at home to tell him he was not involved with the Union, despite the fact that he had signed the "letter of intent" 2 days before and signed the authorization and charter the following day. In the last few days before the strike, Aust told Russell on several occasions how happy he was to be given a second chance by Respondent, how much he liked his job, and how he did not want any trouble. On May 17, as Aust was leaving at 6 a.m. he shook hands with Jarvis and told him that, while he was joining the strikers, he really did not have his heart in it. He added, "No matter what happens, no matter how much dissension we have, I want to remain friends." Jarvis replied, "You are doing a good job on the air." In the period after the strike, Aust continued to receive instructions and criticism from Jarvis. During this time, however, Aust, like other strikers, received more memoranda then before and the memoranda tended to supplement and memorialize conversations already held. Also in the period after the strike, Aust on two occasions asked Jarvis to transfer him from the all-night show to a better shift. The first was around the time Keith Christian left. The second was when a new disc jockey named Steve Keating was hired, apparently shortly before Aust's discharge.19 He was told that he could not be transferred because of his attitude. Other disc jockeys who started with Respondent on the all-night show advanced to a better shift when a new man joined the staff and took over the all-night show although the record does not establish that Respondent invariably followed this practice. Aust was discharged at 11:15 p.m. on Monday, July 15, a few minutes before he was to go on the air. Russell made the decision to fire him and Jarvis executed it. No reason was given to Aust, either then or later, for his discharge. He had been late for work the preceding Saturday. When Jarvis gave him his check and told him his services were no longer required, Aust referred to that fact, pointing out that Jarvis, too, had been late for work on occasion. Jarvis replied, "That is none of your concern." Respondent contends that Aust was discharged for consistently and deliberately failing to follow Respondent's policies and format, attempting to substitute his own concept of the kind of disc jockey he wanted to be. He was discharged on July 15, despite advice of counsel that an unfair labor practice charge might result, rather than at some earlier or later time because that date marked the end of his probationary period and, as Russell testified, ". . . it would be necessary to take this action or else everybody would think they could get away with murder and do anything they wanted to and disregard format entirely." "The name Steve Curtis first appears on the schedule effective June 9, where he is shown as a part-timer working a Sunday morning show only. (I assume the Keating-Curtis discrepancy is another example of the real name-stage name syndrome which plagues these cases .) On a schedule effective July 14, Curtis is a full-timer whose hours are basically 6 p.m. to midnight, and Aust is still listed as the all-night disc jockey. 117 Russell and Jarvis catalogued a long series of Aust's failures and shortcomings, beginning soon after his hire and ending only with the weekend preceding his discharge. There is no point in detailing all their criticisms, for the simple fact is that most, if not all, of them are true. Aust admitted that he did not always follow to the letter Respondent's rules with respect to newscasts, not balancing content of the 55 newscasts as required, or keeping his finger on the beeper a shade too long, or going directly from a commercial into the news, or miscuing the tape cartridges which contain portions of the introduction and close to newscasts, or failing to keep a serious tone even when recounting amusing stories. He admitted that he misidentified KEWI on the air, giving, instead, the call letters of another station. He did not dispute that he did not adhere strictly to Respondent's rule of one record out of this stack, followed by another out of that stack, followed by another out of the third stack but, rather, played the records placed in the control room by Respondent in a different order. He denied that he "screamed" on the air in the sense that the word was used during the hearing although he admitted that he did raise his voice and speak in the manner of "rock jocks,"10 another expression which assumed term-of-art stature during the hearing.31 He admitted that he frequently failed to prepare the civic calendar and poop sheet as he was supposed to. He did not dispute that he talked longer between records than a strict adherence to Respondent's policy would dictate. He admitted that he was late for work the Saturday night before his discharge. But other announcers testified and Respondent conceded that all announcers make all of these mistakes or commit all of these transgressions at one time or another without any dire consequences. And Respondent does not argue that it discharged Aust for any particular one or more of these incidents. Instead, it contends that the totality of Aust's conduct, during the 3 months he worked for KEWI, added up to a nondiscriminatory cause for discharge because it evidenced an attitude of defiance of Respondent's policies and substitution of Aust's. The key to this aspect of the case lies in the word attitude. Aust was the kind of disc jockey he was from the time he was hired until he was fired. If anything, he improved at least slightly during his tenure as he became familiar with and adept at using Respondent's equipment. Yet the shortcomings which Respondent would use to justify his discharge after the strike were not so serious before as to prevent Jarvis' responding to Aust's friendly gesture of goodwill on May 17 with an assurance that Aust was doing a good job on the air. The attitude that changed after the strike was Respondent's, as evidenced by Jarvis' remark to Aust on May 17 when contrasted with his remark to Goldsich on June 12 that another striker was getting what he deserved. I find, therefore, that, regardless of how high the level of Russell's exasperation with Aust as a disc jockey may have been on July 15, but for Aust's participation in the May strike he would not have been discharged. For the same reasons, I also find that Respondent was similarly motivated when it refused to transfer him to a more desirable shift when it added new full time employees between the end of the strike and July 15 who could have been assigned to the all-night show. By refusing to transfer Aust and by "Respondent denied vehemently that it operated a "rock -and-roll" radio station and that the image it seeks to project has anything in common with the mannerisms of disc jockeys featured on that kind of a station. " I conclude this is a distinction without a difference. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharging him for his union activities, Respondent violated Section 8(a)(3) of the Act. Whitin Machine Works, 100 NLRB 279. 3. Discharges of James Connors, Stanley Wall, and Christopher Graham" One of the things Respondent requires its disc jockeys to do is to read "one-liners" on the air . One-liners are brief promotional statements, for example, "This is Big Kee Wee, let the good guys put you in the music seat." They are kept on a circular spindle in the control room, one one-liner to a 3 by 5 inch card. Disc jockeys are supposed to read them in rotation, three or four each hour, flipping over each card on the spindle as it is read and reading the next card on top when one-liner time next rolls around. In practice, prior to August 1, disc jockeys sometimes picked and chose among the one-liners on the spindle without any protest from Respondent. From time to time, all of the one-liners were removed from the spindle and replaced with a large new batch in order to keep Respondent's promotional efforts fresh. In addition to the one-liners on the spindle just prior to August 1, there was, in the control room, taped to the glass wall between the control room and the newsrooms' a set of seven additional one-liners which read: This is Big Kee Wee, the Kansas giant This is Big Kee Wee, first in Topeka and getting firster This is Big Kee Wee, number one in Topeka This is Big Kee Wee, Topeka's top sound This is Big Kee Wee, on top of the heap This is Big Kee Wee, the Kansas king This is Big Kee Wee, the people's 1 choice These one-liners were marked "Please Rotate." On special occasions Respondent substitutes special one-liners for the general promotional one-liners usually used . Prior to August 1 no disc jockey ever refused to read a one-liner placed in the control room by Respondent. James Connors, Stanley Wall, and Christopher Graham struck Respondent for a second time on August 1 in protest of Respondent's refusal to recognize and bargain with the Union. They returned to work on August 5. On August I Jarvis removed=' the spindled one-liners and replaced them with a new set which read: This is Big Kee Wee, the fairest of them all This is Big Kee Wee, the world's greatest radio station This is Big Kee Wee, and this is good guy (name of announcer), I love big Kee Wee and I'm proud you do too This is Big Kee Wee, 1 and we still try harder This is Big Kee Wee, I'm proud to be a part of the world's greatest radio station The new one-liners were lettered on a 5 by 8 inch card which Jarvis placed next to the control room console. The "There is no dispute about the facts in this section. "Disc jockeys broadcast from the control room; newsmen, from the newsroom . The glass partition permits them to see each other in order to coordinate their efforts. Or covered; the record is unclear card also bears the notation "Use T.F. [til further notice?] Please Rotate Evenly." Jarvis testified his reason for replacing the one-liners on August 1 was that ". . . we were getting ready to do certain promotions in association with a period we had coming up. This was to improve the image of the station, number one, we are all good guys, we love our work, we like our station and it is a great station, number one. Number one, this is what we were trying to get across." I do not credit Jarvis. I find, relying on the speed with which he acted when Connors, Wall, and Graham began picketing Respondent's studios on August 1, that Jarvis' purpose was to counteract the adverse publicity Respondent was receiving that some of its good guys were telling the community, by their picket signs, that in their opinion, "KEWI refuses to recognize and bargain with its announcer employees in violation of the National Labor Relations Act Topeka Association of Radio Announcers." From August 5, when they abandoned their second strike, until September 3 Connors, Wall, and Graham refused to read the new one-liners on the air. They did so on the advice of counsel that they had a Section 7 right not to read material which made Respondent out to be a good employer when their labor dispute demonstrated their real view that Respondent was a bad employer. On the stand, Connors, in response to a request that he read the new one-liners as he would have read them on the air, articulated their reasons for taking this position thus: You have to smile and sound sincere, and say this is Big Kee Wee, the best in the west, which sounds you are completely sold on company policies, your treatment of the company and you are really in love with the company. After the fact we have been out on strike once and newspaper articles had appeared, the other radio stations had mentioned the fact on their newscasts that we had been out on strike, the general public knew about it and to us it appears to have to do this, in fact, tells the people we really did not mean it when we were on strike. We really love Big Kee Wee. They [that is, the public] do not feel this is a job, you are doing this just because you are forced to. The public listens and accepts what they hear. They [that is, all the new one- liners] all do [that is, convey the same message], because of what they say and the way they are used in this context. Graham put it this way: I felt that they reflected on my decision to join TARA. They were trying to get me to say something that quite literally I did not believe that would have been the exact reversal of the reasons I went out on strike. Wall put it this way: ... because it is against what we have tried to strive for, we have went on strike because of unfair labor practices and the next day we come back and these cards are up and they are requiring us to state over the air to all those listening to KEWI to say they are fairest of them all. And the same thing with these cards that just came up, they are about the same, a few have been deleted, thty are saying `the world's greatest radio station' and I am not going to admit this. Respondent soon became aware of the refusal to read the new one-liners and the reason. In a memorandum dated August 17 containing various criticisms of Connors's work, Jarvis wrote: MIDLAND BROADCASTERS , INC. 119 I've . . . also been listening to you quite frequently this past week and have noticed in many hours of your program you have failed to give the flip cards that I have posted on the giant flip card . The hot clock=s indicates that these should be read 3 times per hour and they are to rotate there are 5 of them . All 5 of the one liners are to [be] rotated by all jocks and will be read as per hot clock . We all tend to forget once and awhile but you have repeatedly ignored the flip cards on your program. Similar memoranda to Graham and Wall also dated August 17 contain similar statements . Another memorandum to Connors dated August 21 contains another reference to failure to read the new one -liners. On September 3, on advice of counsel and in order to bring the dispute to a head , Respondent removed the August I one-liners from the control room and replaced them with four which read: This is Big Kee Wee , the best in the West This is Big Kee Wee, Number One, and we still try harder This is Big Kee Wee, the world 's greatest radio station Hi, this is (name of announcer ) and I'm another good guy from Big Kee Wee, the station that loves people, and the station people love The new one-liners were circulated to all announcers with a memorandum from Russell dated August 30 which reads: Attached is a new series of station one-liners. Each of these are to be read on the air once an hour during your disc jockey shift. Failure to do so will be an act of insubordination and we will consider you to have terminated your employment " with KEWI . All programs will be regularly monitored to insure compliance. We regret we find it necessary to take this stand. Never in the history of this station has it been necessary to issue such a memorandum concerning programming policies and compliance therewith. It is the result of one person 's refusal [a reference to Connors] to follow instructions with regard to one-liners which have been posted in the control room. When Connors finished his afternoon show at 6 p.m. on Tuesday, September 3, he noted on his log that he had not read the one-liners . In addition , he scrawled on his copy of the August 30 memorandum , "As I stated before. On the advice of my lawyer I will refuse to read the flip cards. Jim Connors" and turned it in too. Russell typed on the top of the same piece of paper: To: Jim Connors From : Bob Russell On the advice of our attorney , your failure to comply constitutes clear cut insubordination . Thus, as noted in this memo below, you have terminated your employment effective 6 PM, Sept . 3, 1968. /s/ Robert F . Russell and returned it to Connors. The next morning , at the opening of the hearing in this case , the General Counsel amended the complaint to allege the discriminatory discharge of Connors . Wall and Graham both took the stand on September 5. Wall testified that he had deliberately failed to read the September 3 one-liners on his 10 a.m. to 2 p .m. show on September 4. Counsel for Respondent stated that his employment was terminated . Graham testified that, while he had not yet appeared as a disc jockey since the September 3 one -liners had been introduced , he planned not to read them at the first opportunity , his disc jockey show on Saturday , September 7. Counsel for Respondent stated that if he did so, he too would terminate his employment . The General Counsel indicated his intention to move to amend the complaint at an appropriate time to allege the discriminatory discharges of Wall and Graham. I recessed the hearing for 2 weeks to give the situation time to come to a head . Graham refused to read the September 3 one-liners on September 7. He was discharged on September 9. Over the Labor Day weekend , August 31 through September 2, Respondent placed in the control room a special set of one-liners keyed to the theme of safe holiday driving. Connors, Wall, and Graham read them on the air without comment . During the period from August 5 until the various discharges , each occasionally read one of the one-liners on the card taped to the controlroom newsroom partition which had been there prior to their August strike. During the hearing the General Counsel cited the doctrine of constructive discharge as his theory with respect to the discharges of Connors , Wall, and Graham. However, his brief does not mention constructive discharge and cites no cases. Instead , he argues this way: In the analysis of this issue the fact that these disc jockeys were personalities must be taken into consideration . Their picketing had been publicized by all the news media. If they then went on the air and praised the Company those people listening to them would feel that there really was no problem with the Company and the purpose of the picketing would be defeated . It must be taken into consideration that the average person listening to the radio does not know a disc jockey is required to read one-liners and most probably thinks that disc jockeys make these slogans up as they go along. The average person probably feels that this is a sincere expression of opinion.' The narrow issue presented by the discharges of Connors, Wall, and Graham is whether radio announcers have a right under the Act to refuse to read on the air words which their employer insists that they read on the ground that the words publicize the employer's side of a labor dispute to the detriment of their own . Any analysis of that issue must start with the nature of a radio announcer's job. While he is on the air a radio announcer's only function is to broadcast sounds which his employer wants on the air. Whether he is reading a commercial, a public service announcement or a promotional one-liner , activating a "A diagram, in the form of a clock face, in the control room which tells disc jockeys in which quarter -hour segment of each hour regularly recurring program items such as news and one-liners are to be read. "Counsel for Respondent would make an issue out of whether Connors, Wall and Graham were discharged or quit. I think this is another distinction without a difference and find that they were discharged. "For purposes of my analysis I have considered General Counsel's conclusions as if they are facts, even though the record contains no evidence on the points and I do not consider this a subject as to which I may take judicial notice No criticism of General Counsel is intended by this comment . What the average person knows or thinks about radio disc jockeys, if, indeed, he knows or thinks anything, are matters incapable of proof within the scope of a Labor Board hearing. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tape recording of a newscast lead-in or conclusion, playing the latest rock-and-roll record, or a simply ad libbing words off the top of his head, the final decision as to whether the sounds he has sent out are acceptable is his employer's and not his. In this respect, the announcers in this case must be distinguished from employees on other jobs. If a trucking firm bought air time and made a dissident driver read a statement that the firm does not commit unfair labor practices, a violation would be clear because what the firm was forcing its employee to do, even though part of its Section 8(c) right to get its side of the labor dispute before the public, is totally unrelated to the driver's regular duties. Here, if Respondent's dispute had been with its engineers rather than its announcers and it had insisted engineers read on the air a statement that Respondent does not commit unfair labor practices as the price of saving their jobs, the same conclusion would obtain. But Connors, Wall, and Graham are not truckdrivers or engineers. They are radio announcers, and their job, day in and day out, labor dispute or no labor dispute, is to put Respondent's words, not their own, on the air. Therefore, I begin by concluding that the doctrine of constructive discharge has no relevance to the issue presented here. Respondent did not move Connors, Wall, and Graham from the comfortable, pleasant control room in which they had always worked to a hellhole. It did not remove their familiar equipment and substitute strange or dilapidated tools for them to work with. It did not take them off the air and hand them brooms. All it did was insist that they do what they had always done, read Respondent's words on the air." Consequently, in my view, General Counsel can only prevail on this issue if the words Respondent furnished are so directly related to the labor dispute and so unrelated to Respondent's general purpose of promoting its business that it can reasonably be said that the announcers' Section 7 rights have been violated in a manner and to an extent which outweighs Respondent's Section 8(c) right to state its case to the public. A flat statement that Respondent does not commit unfair labor practices or something equally bald and unambiguous would, I think, tip the scales in the General Counsel's favor. This leads me, perforce, to determine whether the words which Respondent did insist Connors, Wall, and Graham read were so unrelated to one-liners which they read when there was no labor dispute as to consitute an unreasonable attempt by Respondent to force them to undermine their own rights. Respondent introduced into evidence all the one-liners which had been used on the control room spindle in the year preceding the hearing. I do not consider it necessary to reproduce in this decision the words appearing on 352 cards measuring 3 by 5 inches. A few one-liners in this group, selected at random, are: This is ever newer KEWI, where you get service with a dial This is Big Kee Wee, as much fun as being awake This is Big Kee Wee, no money down, years to play This is Big Kee Wee, better than crackerjacks, Kee Wee has a new surprise every day "Jarvis issued a memorandum in June or July that all news items concerning unions must be cleared with him before being put on the av. There is no evidence that any announcer ever objected. Apparently the General Counsel does not claim that Respondent did not have a right to control the content of its programming in this respect. This is Big Kee Wee, with the secret that unlocks the flavor Among the pre-August 1 flip cards appears one of the slogans objected to by Connors, Wall, and Graham, namely: This is Big Kee Wee, number one and we still try harder The good guys theme recurs over and over, as, for example, in: This is Big Kee Wee, let the good guys put you in the music seat This is Big Kee Wee, the wonderful world of the good guys Others paraphrase the ideas in some of the post-August l one-liners although the actual words are different, for example: This is Big Kee Wee, the Mid-West's friendly giant As a group they tend to run to puns and parodies on popular sayings as a slogans similar to the allusion to the objected to, "This is Big Kee Wee, the fairest of them all" makes to the evil Queen's "Mirror, mirror on the wall, who's the fairest one of all?" in Snow White. There is, I find, a slight difference between the pre-August 1 one-liners, considered as a group, and the post. The ones which Connors, Wall, and Graham refused to read make slightly more directly and forcefully the point that the speaker loves and is happy with Big Kee Wee. However, the distinction is so fine and so subtle that it has no significance since, I conclude, the post-August 1 one-liners fall far short of the sort of direct and unambiguous statement that "We do not, either, commit unfair labor practices, regardless of what those pickets are trying to tell you, dear public," required to outweigh Respondent's Section 8(c) rights. Finally, I further find that Respondent did not resort to the dispute over the one-liners as a pretext to mask discharges really motivated by Connors', Wall's, and Graham's union activities. I disagree with the General Counsel statement that "What Respondent did [when it issued the August 30 memorandum] was to set up the Union members with a choice of either saying to the public that they didn't really mean that the Company was unfair when they picketed or refusing to do so and thereby terminating their employment." I find, rather, that Respondent changed the one-liners on August 1 for the legitimate purpose of countering the Union's picketing and that the situation escalated step by step thereafter with no intention on Respondent's part of forcing Conn,)rs, Wall, and Graham to quit. I am especially persuaded to this conclusion by the fact that Respondent removed from the list of one-liners it insisted on at the ultimatum stage "This is Big Kee Wee, the fairest of them all," the only one-liner which contains a word - "Fairest" - close to an expression - "unfair labor practice" - of significance in the labor dispute between Respondent and the Union. I interpret this omission as part of a deliberate and reasonable effort on Respondent's part to give Connors, Wall, and Graham one last chance to back down without compromising Respondent's right to control its own programming. For the reasons stated, I find that Respondent discharged Connors, Wall, and Graham, not because of their union activities, but because of their insubordination in refusing to perform a part of their normal duties which MIDLAND BROADCASTERS , INC. 121 Respondent had a legal right to insist they perform. They had a right to strike, a right they invoked twice during their extended confrontation with Respondent. They had no right to engage in a partial strike. Riviera Manufacturing Co., 167 NLRB No. 103; John S. Barnes Corp., 165 NLRB No. 58; Stop & Shop, Inc., 161 NLRB 75. Cf. Uniform Rental Service, Inc., 161 NLRB 187; Ador Corporation, 161 NLRB 1042. D. The 8(ayS) Allegations I have found in section A above that all the prerequisites to bargaining were present on May 10 when the announcers met with Russell. I have found in sections B and C above that Respondent thereafter committed serious and substantial unfair labor practices. I now find, relying on the evidence which establishes the unfair labor practices, that Respondent engaged in such a course of conduct in order to gain time to undermine the Union by dissipating its majority and in complete rejection of the principle of collective bargaining. I further find that, at no time, did Respondent have a good faith doubt as to the Union's majority or the appropriateness of the unit in which it sought recognition. Respondent has, therefore, violated Section 8(a)(5) of the Act. Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914; Gibson Products Company, 172 NLRB No. 243 ; Bauman Chevrolet, Inc., 173 NLRB No. 781. Cf. J. C. Penney Company, 172 NLRB No. 82; Merritt Packing and Crating Service, Inc., 172 NLRB No. 202; Fashion Fair, Inc., 173 NLRB No. 28. Since Respondent was under a duty to bargain with the Union at the times the various events occurred, it follows that Respondent also refused to bargain when, unilaterally, it changed the terms and conditions of its employees' employment by depriving Christopher Graham of use of the news car from May 20 until mid-July, by cancelling Stanley Wall's privileges of eating his lunch in the disc jockeys' lounge and having his wife with him in the studio on Sunday afternoons, and by assigning Graham and James Connors to less desirable shifts on June 9. 1 find that Respondent also violated Section 8(a)(5) in each of these instances. CONCLUSIONS OF LAW Upon the foregoing findings of fact, and on the entire record in these cases, I make the following conclusions of law: 1. Midland Broadcasters, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Topeka Association of Radio Announcers is a labor organization within the meaning of Section 2 (5) of the Act. 3. All employees who regularly or frequently appear before the microphone at Respondent's radio station KEWI in Topeka, Kansas, including disc jockeys and newsmen , but excluding engineers, production programmers, salesmen , office-clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after May 10, 1968, the Union has been and presently is the representative for the purposes of collective bargaining of the employees in the unit described above and, by virtue of Section 9(a) of the Act, has been and now is the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 5. By refusing on or about May 10, 1968, and at all times thereafter, to bargain collectively with the Union in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, of the employees in the unit described above; and by unilaterally changing the terms and conditions of employment of Christopher Graham on or about May 20, 1968, Stanley Wall on or about May 21, 1968, and on or about May 26, 1968, and Christopher Graham and James Connors on or about June 9, 1968, Respondent has refused to bargain with the above-named labor organization and thereby has violated Section 8(a)(5) and (1) of the Act. 6. By failing to return the news car to Crhistopher Graham on or about May 20, 1968; by cancelling Stanely Wall's privileges of eating his lunch in the disc jockeys' lounge on or about May 21, 1968, and of having his wife with him in the studio on Sunday afternoons on or about May 26, 1968; by transferring Christopher Graham and James Connors to less desireable shifts on or about June 9, 1968; by refusing to transfer Gregory Aust on various dates in June and July, 1968; and by discharging Gregory Aust on or about July 15, 1968, all because of the union activities of the employees named, Respondent has discriminated with respect to their hire and tenure of employment, discouraging membership in the above-named labor organization, and thereby has violated Sections 8(a)(3) and 8(a)(1) of the Act. 7. By interrogating its employees about their union activities, by threatening them with loss of economic benefits if they persisted in such activities, and by promising them economic benefits if they refrained from such activities, Respondent has interefered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not committed unfair labor practices by requesting that an employee obtain for it a copy of a statement furnished by him to a National Labor Relations Board investigator in support of a charge filed by Respondent against the above-named labor organization or by discharging James Connors on or about September 3, 1968, Stanley Wall on or about September 5, 1968, and Christopher Graham on or about September 9, 19 68. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent has discriminated against Gregory Aust. Therefore, I will recommend, not only that Respondent offer him reinstatement to the position that he formerly held, namely, that of a disc jockey, but that it also assign him to a show other than the all-night show. I will also recommend that Respondent make Aust whole for any loss of earnings he may have suffered as a result of his discharge by paying to him a sum of money equal 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to that which he normally would have earned as wages from July 15, 1968, to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Since James Connors, Stanley Wall, and Christopher Graham are no longer employees of Respondent, I will not recommend that Respondent take any steps to remedy the various discriminations practiced against them. I will also recommend that Respondent bargain, upon request, with the Union in respect to the rates of pay, wages, hours of employment, and other terms and conditions of employment of its announcers. Since Connors, Wall, and Graham are no longer employees of Respondent, I will not recommend that Respondent take any steps to revoke the changes it unilaterally made in the terms and conditions of their employment. Since the unfair labor practices which Respondent has committed are flagrant and exhibit a deliberate purpose to thwart the rights of its employees, I will recommend that it cease and desist from interfering with those rights in any manner. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following Recommended Order: Midland Broadcasters, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union activities. (b) Threatening its employees with loss of economic benefits if they persist in their union activities. (c) Promising their employees economic benefits if they refrain from union activities. (d) Discriminating against its employees by discharging them or by changing the terms and conditions of their employment in order to discourage memberhsip in the Topeka Association of Radio Announcers or any other labor organization. (e) Refusing to recognize and bargain with the Topeka Association of Radio Announcers as the exclusive representative of its employees in the unit found appropriate herein. (f) Unilaterally changing the terms and conditions of employment of its employees in the unit found appropriate herein without bargaining with the Topeka Association of Radio Announcers as the exclusive representative of the employees in that unit. (g) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Gregory Aust immediate and full reinstatement to his former position as a disc jockey, or to a position substantially equivalent thereto in that it utilizes his services as a radio announcer , and assign him to a show or duties other than the all-night disc jockey show, without prejudice to any seniority or other rights and privileges enjoyed; also, make him whole for any loss of pay suffered as a result of Respondent's discrimination against him in the manner set forth above under "The Remedy." (b) Notify Gregory Aust 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, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records, social security payment records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (d) Upon request, bargain collective with the Topeka Association of Radio Announcers with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the appropriate unit described above under "Conclusions of Law" and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its studio and transmitter in or near Topeka, Kansas, copies of the notice attached marked "Appendix."" Copies of such notice, on forms to be provided by the Regional Director for Region 17, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily placed. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.70 I further recommend that the complaints in these cases be dismissed insofar as they allege that Respondent has committed unfair labor practices by Robert F. Russell's interrogation of employees on or about May 21, June 1, and June 13, and by discharging James Connors on or about September 3, 1968, Stanley Wall on or about September 5, 1968, and Christopher Graham on or about September 9, 1968. "In the event that the Recommended Order'is adopted by the Board, the words "This notice is posted by order of the National Labor Relations Board after a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we , Midland Broadcasters, Inc., violated the National Labor Relations Act, and ordered us to post this notice." shall be substituted for the words "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 Relations Act we hereby notify our employees that ," in the notice In the further event that the Board's Order is enforced by a decree of the United States Court of Appeals, the words "this notice is posted by order of the United States Court of Appeals" shall be substituted for the words "This notice is posted by order of the National Labor Relations Board." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in MIDLAND BROADCASTERS , INC. 123 order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: The Act gives all employees these rights: To engage in self-organization To form, join , or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT ask you whether you are a member of, or are helping, TOPEKA ASSOCIATION OF RADIO ANNOUNCERS, or any other union. WE WILL NOT threaten you with loss of your job or any benefits you now enjoy as our employee if you become a member of, or help, TOPEKA ASSOCIATION OF RADIO ANNOUNCERS, or any other union. WE WILL NOT promise to reward you in any way if you refrain from becoming a member of, or helping, TOPEKA ASSOCIATION OF RADIO ANNOUNCERS, or any other union. WE WILL immediately offer to reinstate Gregory Aust to his former position as one of our announcers on a show other than the all-night disc jockey show without any change in the seniority or other privileges he enjoyed before we discharged him and we will pay to him any money he lost as a result of our discrimination against him with interest at 6 percent. WE WILL recognize Topeka Association of Radio Announcers as the only collective-bargaining representative of our employees in the bargaining unit which is: All employees who regularly or frequently appear before the microphone at our radio station KEWI in Topeka, Kansas, including disc jockeys and newsmen, but excluding engineers, production programmers, salesmen, office clerical employees, guards, and supervisors as defined in the Act. WE WILL bargain, on request, with Topeka Association of Radio Announcers on wages , hours and conditions of employment , and any agreement we reach will be put in writing and signed. Dated By MIDLAND BROADCASTERS, INC. (Employer) (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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-5181.