Hennepin Broadcasting Associates, Inc.

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hennepin Broadcasting Associates , Inc. and American Federation of Television and Radio Artists, Twin City Local, AFL-CIO. Case 18-CA-3908 June 30, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hennepin Broadcasting Associates, Inc., Minneapolis, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the Board's Decision and Order of De- cember 6, 1974, at 215 NLRB 326. On December 6, 1976, the Board issued its Deci- sion and Order t in this proceeding finding that Re- spondent had engaged in and was engaging in certain unfair labor practices and ordering that they cease and desist therefrom and take certain affirmative ac- tion. Thereafter, the General Counsel filed an appli- cation for enforcement of the Board's Decision and Order with the United States Court of Appeals for the Eighth Circuit. Respondent filed a motion to re- mand the case to the Board for the purpose of taking additional evidence. On March 21, 1975, the court granted Respondent's motion and on April 7, 1975, the court clarified its order remanding the case to the Board. On June 18, 1975, the Board accepted the remand and ordered that the record be reopened and a further hearing be conducted before an Adminis- trative Law Judge in accordance with the court's re- mand.' On January 20, 1976, Administrative Law Judge Nancy Sherman issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- ' 215 NLRB 326 (1974) 2 It is noted that the court held in abeyance any decision on the merits of the Board's Decision and Order at 215 NLRB 326 until the record was su?plemented in accordance with the remand The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing her findings SUPPLEMENTAL DECISION NANCY M. SHERMAN, Administrative Law Judge: The first hearing in this case was held on November 7, 8, 9, and 12, 1973, before Administrative Law Judge James T. Ras- bury. On December 6, 1974, the Board issued its Decision and Order in this case, reported at 215 NLRB 326. The Board found, inter aka, that Respondent Hennepin Broad- casting Associates, Inc., had violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, here- in called the Act, by discharging engineer-announcer Rich- ard Carey on June 21, 1973, because Respondent believed him to be the one responsible for promoting the organiza- tional campaign of the American Federation of Television and Radio Artists, Twin City Local, AFL-CIO, herein called the Union. The Board further found, inter alia, that Respondent violated Section 8(a)(3) and (1) by discharging 7 engineer-announcers in June 1973 (John Bortnem, Rob- ert Gustafson, James Hubbard, Gregory Ellsworth, Grego- ry Peterson, Patrick McKeever, and Raymond Walby), who were striking to protest Carey's discharge, and by re- fusing on June 26, 1973, and August 16, 1973, to reinstate these seven strikers and striking engineer-announcer Rich- ard Campbell. The Board ordered Respondent, inter alia, to offer all 8 of these engineer-announcers immediate and full reinstatement to their former or substantially equiva- lent positions, respectively, without prejudice to their se- niority or other rights and privileges, dismissing, if neces- sary, any employees hired subsequent to the day the strike began; and to make such engineer-announcers whole for loss of pay. About February 13, 1975, the Board filed a petition to enforce the Board's Order with the United States Court of Appeals for the Eighth Circuit; and, about March 26, 1975, filed the record. Over date of February 19, 1975, Respondent filed, inter aka, an application for leave to adduce additional evidence pursuant to Section 10(e) of the National Labor Relations Act, a Board opposition to which was filed over date of March 13, 1975. By order dated March 21, 1975, and amended on April 7, 1975, the court of appeals remanded the case to the Board: . . for the purpose of taking additional evidence by the Board, a member or agent of the Board bearing upon the appropriateness of re-employment of engi- neer-announcers under the circumstances of this case 1 Backpay as to Carey runs from the date of his discharge As to the others, backpay runs from July 4, 1973, 5 working days after they first requested reinstatement 225 NLRB No. 66 HENNEPIN BROADCASTING ASSOCIATES 487 and other pertinent provisions of the National Labor Relations Act, as amended. In this regard the Board should hear and consider (a) evidence of bad faith of the engineer-announcers, if any, including, but not limited to, secondary boycotts or a willful and mali- cious attempt to destroy respondent's business; and (b) evidence which may bear on the employability of the engineer-announcers in light of provisions of the Federal Communications Act and pertinent regula- tions thereunder . . . the Board . . . shall have the right to file modified or new findings in light of addi- tional evidence. Such further proceedings as held be- fore the Board shall be certified to this court. Further proceedings before this court will be held in abeyance subject to the supplementation of the record author- ized by this and the preceding order. Thereafter, on June 18, 1975, the Board ordered "that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held before an Administra- tive Law Judge to be designated by the Chief Administra- tive Law Judge, for the purposes of taking evidence in ac- cordance with the Court's remand." The hearing on remand was held on September 2 and 3, 1975, in Minneapolis, Minnesota, before me. The findings of fact and conclusions of law herein are based on the entire record, including my observation of the witnesses who testified before me,2 and on due consideration of the briefs 3 and the oral argument at the conclusion of the 1975 hearing. I make the following supplemental findings of fact, conclusions of law, and recommended Order. 1. ALLEGED MISCONDUCT IN CONNECTION WITH INITIATION OF THE STRIKE A. Facts On June 15, 1973, the Union sent Respondent the fol- lowing letter: The American Federation of Television and Radio Artists-Twin City Local, represents a majority of the employees in the unit described below, and hereby de- mands recognition. AFTRA-Twin City Local is represented by James T. Hansing, Esquire, in this matter and we request that you provide him with copies of all correspondence. Please advise. Respondent received this letter on June 18, 1973, but, so far as the record shows, never replied to it. On the morning of June 21, 1973, Respondent dis- charged engineer-announcer Carey because of his activity 2 The Board's prior finding that particular evidence is credible and partic- ular evidence is not credible is, of course, binding on me However, in making my supplemental findings, I have in no way relied on whether a particular witness was credited by the Board as to other matters Rather, I have treated the 1973 record made before Administrative Law Judge Ras- bury as a "cold record" only 3 I have considered the briefs filed by Respondent and counsel for the General Counsel in the 1973 and 1975 proceedings and various documents filed with the Eighth Circuit on behalf of the Union.' The evening of that same day, which was a Thursday, engineer-announcers Bortnem, Hubbard, Ellsworth, and Peterson met with Carey and Union Attorney James Hansing at Carey's home. They unanimously decided to strike at 5 p.m. on the following day-Friday, June 22-in protest of Carey's discharge (see Administrative Law Judge Rasbury's Decision).5 When asked whether the engineer-announcers at that meeting discussed whether to turn the transmitters off if they went on strike, Ellsworth testified before Judge Rasbury, ".. . of course if you are going to be gone on strike you are going to shut it off and walk off." When then asked, "Why would you shut off the transmitter?", Ellsworth testified, "Because if you left it on and left [it] unattended it would be in violation of your license" (see infra, fn. 7, and at- tached text). Later, when asked, "Did you make both deci- sions that night at that place that you were going to strike and you were going to shut the transmitter down?", Ells- worth testified, "Shutting the transmitter down was not a separate topic of conversation. We were going on strike and that meant shutting the transmitters down and ev- erybody walking out of the building." Before Administra- tive Law Judge Rasbury, engineer-announcer McKeever, who did not attend the June 21 conference but had left word that he would go along with the majority, testimo- mally equated the decision to strike with a decision to shut the transmitters down. Union Representative Newell testi- fied before Judge Rasbury that shutting off the station "was inherently part of the strike." On the following morning, Friday, June 22, Ellsworth communicated the strike decision to Union Representative Newell, who said that they would have to get the sanction of the Union's parent International. Ellsworth and Newell set up a meeting for that same afternoon. Thereafter New- ell obtained a strike sanction from the International by telephone. At some time between 3:15 and 4 p.m. on June 22, Car- ey, Ellsworth, and engineer-announcer Gustafson met with Hansing and Newell in Hansing's office. Those present dis- Administrative Law Judge Rasbury and the Board so found The pro- priety of this finding is not claimed to be within the scope of the remand s At the second hearing, Ellsworth testified without objection that the strike decision was partly motivated by a desire to have Respondent recog- nize the Union Neither Ellsworth nor any of the other participants in this meeting so testified at the first hearing Moreover, although the record in the first hearing shows that such a claim was made about a month after the strike in a letter circulated to Respondent's advertisers by the Union and with the complainants' approval, Administrative Law Judge Rasbury and the Board did not find that the strike was partly caused by the refusal to bargain Nonetheless, the sequence of events leads me to credit Ellsworth The significance vet non of this issue is discussed infra, fn 51 Respondent contended at the earlier stages of the proceeding that the strike was aimed at the discharge of General Manager Robert Rock Ad- ministrative Law Judge Rasbury and the Board made no such finding Respondent's brief to me reiterates this contention Evidence at the first hearing regarding remarks allegedly made by Engineer-Announcer Ells- worth just before the walkout was discredited by Administrative Law Judge Rasbury and the Board (ALJD) Ellsworth credibly testified before me that he was not "starting to get rid of Mr Rock" and did not believe that he, Ellsworth, could do a better job of managing the station than Rock could Before Administrative Law Judge Rasbury, Ellsworth testified that he did not want Rock to leave but thought some of the conditions could be better I discuss infra Respondent's contention that a motive to compel Rock's discharge should be inferred from the means by which the strike was carried on 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cussed the possibility of striking after 5 p.m. that day, but eventually decided to adhere to the 5 p.m. time. Just before leaving the meeting, Ellsworth telephoned Peterson, who was then on duty at the AM station, and told him "that we were going ahead with the schedule of the plan of the meet- ing of the night before, to turn off the transmitter at 5." Ellsworth further told Peterson not to jeopardize Peterson's radio operator's license by leaving the transmitter on. Ells- worth then handed the phone to Newell and told him to dictate to Peterson a "sign-off" message prepared by Ells- worth (infra, fn. 8) and Newell. Newell in fact dictated this language, which is set forth infra, to Peterson. At or about 4:30 p.m., Hansing telephoned General Manager Rock's office to notify him of the impending; strike. Rock was in fact in his office when Hansing called. However, Rock had told receptionist Robin Hanson that he was not taking any calls,6 and she told Hansing that Rock was not there. Hansing said that he would talk to anyone in authority, and she referred him to Respondent's attorney, James Malcolm Williams. Hansing then called Williams' office. Williams' secretary, Jacquelin Stevenson, told Hansing that Williams was gone for the day but she would be able to reach him shortly after 5:30 p.m. Hansing said that it was now 4:43 p.m., that he was the union law- yer, and that he was ordering the stations off the air at 5 p.m. After leaving Hansing's office, Ellsworth drove to the AM station, dropping off Carey a block or so away. Ells- worth asked Peterson whether everything was set. He said yes and, at 5 p.m., read the "sign-off" dictated by Newell. Peterson then turned off the board, the "beeper," the trans- mitter, and the weather wire. As set out in greater detail below, FCC regulations require radio stations to keep a "program log." Respondent's form for this log contains in the upper right-hand corner columns headed "ANNCR.," "ON," and "OFF." Peterson, who had already filled in his name under "ANNCR." and "1605" under "ON," entered "1700" under "OFF." He also put away his records, closed the windows, and turned off the fan. He then left. Peterson, who did not testify before me, testified at the first hearing that he turned off the transmitter because "from my recol- lection of taking my 10-week course for my F.C.C. first class license . . . the transmitter cannot be left unattended at any time . . . if I would leave the station unattended I would be violating my first class license and it could be revoked." Before Administrative Law Judge Rasbury, engi- neer-announcer Gustafson (who turned off the FM trans- mitter in connection with the strike), engineer-announcer Ellsworth, and Union Representative Newell tendered a similar interpretation of FCC requirements in this connec- tion. I agree with this interpretation.7 6 Rock had been out of town that day He had returned to his office for "just a few minutes" and then intended to go to a local gasoline station, where his car was being serviced 7 FCC rules provide that "the actual operation of any radio station for which a station license is required shall be carried on only by a licensed radio operator" (47 CFR sec 13 I), require "one or more licensed radio operators [to] be on duty at the place where the transmitting apparatus of each licensed radio station is located and in actual charge thereof whenever it is being operated" (47 CFR sec 13 7, see also secs 73 93 and 73 265), and impose "responsibility for the proper operation of the equipment" on the In the meanwhile, Gustafson went to the FM station, where he encountered part-time engineer-announcer Mc- Keever, who had finished his scheduled June 22 shift, and engineer-announcer Bortnem, who was then on duty. Gus- tafson told him about the Union's strike sanction and the decision to strike at 5 p.m., and typed up a "sign-off" for Bortnem, which is set forth infra. At 5 p.m., Bortnem read the "sign-off" and went off the air. He entered "1700" in the "OFF" column of the program log, where he had previ- ously entered his name and "1200" under "ON." Gustaf- son turned off the transmitter, and the three turned off the lights and all the equipment, locked the building, and went outside. The AM "sign-off" read as follows: This is KTCR, now concludes its broadcast day. KTCR is owned and operated by Hennepin Broad- casting Association, Inc., maintaining studios and transmitters at 3701 Winnetka Avenue North. KTCR is licensed to the city of Minneapolis on a federally as- signed frequency of 690 kilocycles. Some of the pro- grams heard on KTCR were prerecorded.8 The "sign-off" read on the FM station was identical ex- cept for the description of the frequency and (inferentially) the address of the studio and transmitter. Respondent's FM station normally broadcasts around the clock except for the first 6 hours on Monday; its AM station is licensed to and normally does broadcast between sunrise and sunset-on this date, between 5:30 a.m. and 9 p.m. Ordinarily, only one licensed engineer is present at each studio during broadcasting hours; and, at the time the transmitters were turned off, no nonstriking licensed engi- neers were physically present at either studio. The FM sta- tion was off the air for 1 hour and 45 minutes; the record fails to show who turned it back on. The parties stipulated at the first hearing that the AM station was off the air for 30 minutes. It was turned back on by engineer-announcer Mike Fitzpatrick, who was scheduled to do an AM "re- mote" broadcast from the premises of an automobile deal- er shortly after 5 p.m. and who proceeded to the station when he heard the 5 p.m. "sign-off." A transmitter is turned off by one switch control and turned on by two switches operated 90 seconds apart, and there is no evi- dence that the transmitter is physically damaged by either operation. While the stations were off the air, Respondent received a number of telephone calls from members of the public asking why the stations were not broadcasting and when broadcasting would be resumed, and also telephone calls from newspaper wire services asking why the stations had gone off the air. Respondent received no communica- tions about the shutdowns from the Federal Communica- tions Commission (the FCC), which so far as the record shows never learned about them. Just before 5 p.m., General Manager Rock, who was licensed operator responsible for the maintenance of a transmitter, which can be adjusted only by him or in his presence (47 CFR sec 13 63) The Federal Communications Act provides (47 U S C § 318), "The actual oper- ation of all transmitting apparatus in any radio station for which a station license is required by this chapter shall be carried on only by a person holding an operator's license issued hereunder 8 The italicized portion was supplied by Ellsworth , the rest was prepared by Newell HENNEPIN BROADCASTING ASSOCIATES 489 then at a nearby gasoline service station (supra, fn. 6), learned about the strike through a telephone call from re- ceptionist Hanson, who had found out about it from striker Ellsworth and Attorney Williams' secretary, Stevenson. Rock admittedly heard the "sign-off" by both stations over his car radio, and immediately returned to his office at the AM location. En route, Rock who had admittedly partici- pated in the decision to discharge Carey, saw him standing alone in front of the AM station with a picket sign which, Rock testified, said "KTCR is mad at my daddy." Thereaf- ter, Ellsworth, Peterson, and Hubbard joined Carey in picketing the AM studio. At the hearing before me, Respondent's counsel stated, "At the original hearing Mr. Rock asked each [of the pick- ets] if they would go back and turn the stations back on and they said they would not and then he said, `You are discharged'." Moreover, before Administrative Law Judge Rasbury, Rock virtually admitted having told the pickets that, if they did not return and put the station back on the air, he had a right to discharge them as engineers (see ALJD). All of the conversations thus referred to occurred after 7 p.m.,9 by which hour both stations were back on the air. Rock first told Ellsworth and Hubbard, who were pick- eting the AM station, "that the two people who had turned off the station [see infra fn. 16] were definitely fired." Rock then said that he had been advised by his attorney to tell Ellsworth and Hubbard, neither of whom was scheduled to work for several hours,1° that if they did not return to their jobs immediately they were fired. Hubbard and Ellsworth said that they would not return until the matter had been settled. Rock replied, "Then you are fired." 1 [ Rock and Attorney Williams then approached picketing engineer-an- nouncer Peterson, who had actually turned off the AM transmitter, and who had been scheduled to work that day until 9 p.m., an hour or more later. Carey testified that Rock demanded that Peterson return to work immediately, and that when Peterson refused, Rock said he was fired. Carey's testimony in this respect was credited by Adminis- trative Law Judge Rasbury and by the Board. Admittedly thereafter, Rock and Williams drove to the FM station, where McKeever and Gustafson were still picketing.12 Either shortly before or shortly after Rock and Williams arrived, engineer-announcer Walby approached the pickets to find out what was going on.13 Administrative Law Judge Rasbury and the Board credited the engineer- announcers' mutually corroborative testimony to the fol- lowing effect: Rock told McKeever and Gustafson that they would be fired if they did not return to their next regularly scheduled air shifts,14 and both of them there- upon gave Rock their keys. Rock also told Walby that he 9 See Administrative Law Judge Rasbury's Decision 10 This conversation occurred on a Friday Hubbard was scheduled to work at the AM station on Saturdays and Sundays only Ellsworth was scheduled to start work at the FM station at midnight, several hours after this conversation occurred 11 See Administrative Law Judge Rasbury's Decision 12 Bortnem left the picket line before Rock and Williams arrived 13 Walby had been hired on June 1, 1973, as a part-time announcer on the FM station who worked on weekends only About June 21, he was brought over to the AM station to fill the vacancy created by Carey's discharge Prior to the strike, he had worked one or two weekday shifts would be fired if he did not return to work at his next regularly scheduled air shift, which began at 6 p.m. the following day. Walby, who had finished his tour of duty that day, replied that so far as he knew he was going to report for work the next day as scheduled. When Walby reported for work the next day, at the FM station, he was told by the men on the control board that he was not allowed in the station or on the premises. Ac- cordingly, Walby left. Walby was asked to appear on the AM station from 1 to 9 on the following day, June 24.15 When he arrived at the station and saw the picket line, he decided to honor it. Thereafter, he participated in the strike and in the picketing of Respondent' s premises. About July 6, 1973, while Bortnem was on the picket line, Program Director Gerald Cunning approached him and asked him for his key to the FM station. Bortnem thereupon returned his key. Part-time engineer-announcer Campbell was scheduled to work, and did work, one shift on the AM station during the weekend immediately following the beginning of the strike. That weekend, Program Director Cunning offered him a full-time job. On June 23 or 24, Campbell replied that "he thought he couldn't work for [Respondent], that he would have to honor the picket line." Campbell never thereafter returned to work. Ellsworth and Carey testified that on June 26, 1973, Union Attorney Hansing told Rock that the strikers want- ed their jobs back, and that Rock replied that the two who shut the transmitter down would never work there again, but he did not know about the rest.16 Administrative Law Judge Rasbury and the Board credited Ellsworth's and Carey's testimony in this respect. There is no evidence or claim that Respondent offered to reinstate any of the strik- ers.17 The picketing at the FM station stopped about July 1, 1973; the AM station was picketed periodically until at least November 1974. The Board found that Respondent unlawfully dis- charged Ellsworth, Hubbard, Peterson, McKeever, Gustaf- son, Bortnem , and Walby, and unlawfully refused on June 26 and August 16, 1973, to reinstate them and Campbell. There is no contention that any of them has ever been offered reinstatement and, as previously noted, the grava- men of Respondent's tendered basis for successfully seek- ing the instant remand is a contention that none of the 14 McKeever was scheduled to work from 6 a in to noon Sunday through Friday Gustafson was scheduled to work from 6 p in to midnight on Mon- da through Friday, and from noon to 6 p m on Saturday 5 The record fails to show when or by whom these instructions were given 16 These individuals were Peterson and Gustafson, although Bortnem was in charge of the transmitter when Gustafson turned it off Respondent's answer alleges that the individuals who turned off the transmitters were Peterson and Bortnem Cf supra, fn 7, infra, fn 29 17 Rock testified that Hansing said , "What would you say if I told you all of the employees wanted to return to work or were willing to return to work9", that Rock said, "Are they9", and that Hansing replied no Accord- ing to Rock, he went on to say, "At this time I don't know if I could ever re-employ the two people that turned the station off the air and I don't know if I could ever employ Mr Ellsworth again because of the personal remarks he made against me " As to Ellsworth 's alleged remarks, Adminis- trative Law Judge Rasbury and the Board found that they were not shown to have been said and, even if they had been, it was highly doubtful that they would prevent reinstatement or justify a discharge (see ALJD) 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claimants is reemployable. However, Respondent's counsel stated at the September 1975 hearing before me that he had arranged to have each of the complainants offered a job with a radio station in Hutchinson, Minnesota, "that we have an interest in." 18 Moreover, at the November 1973 hearing, claimant Peterson gave the following uncontra- dicted testimony: In September 1973, Company President Tedesco offered him ajob at a station in Hutchinson, Min- nesota. In late October or early November 1973, General Manager Rock told Peterson, Gustafson, Bortnem, Mc- Keever, Walby, and Ellsworth that he would be willing to meet with them privately on a one-to-one basis and to dis- cuss reinstatement, although "in no way was he going to hire everybody back." Later that day, Peterson told Rock that the employees should not have struck under the cir- cumstances, and that Peterson would like very much to go back to work. Rock asked whether Peterson wanted him to discharge anyone to make room for Peterson, and Peterson replied no. Rock said that he felt Peterson had done his job very well in the past and Rock would like to put him back to work, and promised to do so. Rock offered Peterson an immediate job as a full-time salesman, but Peterson re- fused. So far as the record shows, Rock never offered Pe- terson an engineer-announcer job with Respondent. There is no record evidence relating to the date of any permanent replacement of the strikers.19 B. Respondent's Contentions in Connection With the Initiation of the Strike 1. Respondent's motivation Program Director Cunning gave extensive testimony re- garding the supposed legal duties of the discharged engi- neer-announcers in connection with the initiation of the strike. However, he testified that he did not make the deci- sion to discharge the engineer-announcers on June 22, 1973, and was not consulted about that decision in ad- vance. This decision was made by Rock, who in effect tes- tified at the first hearing that before discharging the strik- ers he was told by counsel that under FCC regulations, if they did not return and put the station back on the air Rock had a right to discharge them as engineers. A conten- tion that he was motivated by this advice would be difficult to square with the fact that Rock effected all the discharges after both stations were back on the air, and discharged strikers who were not (as well as strikers who were) sched- uled to be working at the time of their discharge-some of them having been discharged after they refused to report to work at once, and some of them after they refused to promise to report for their next scheduled shift. In any event, if Rock acted on erroneous legal advice by Williams, such advice would not constitute a defense to otherwise unlawful discharge action.20 18 Ellsworth received a letter constituting "an offer to apply for a job" actually or expected to be open with that station He did not apply 19 See N L R B v Fleetwood Trailer Company, Inc, 389 U S 375, 378-379, fn 4 (1968), N L R B v Plastihte Corporation, 375 F 2d 343, 348 (C A 8, 1967), cited with approval in Fleetwood, supra 20Jerstedt Lumber Company, Inc, 209 NLRB 662, fn 2 (1974); N L R B v Vapor Blast Manufacturing Co, 287 F 2d 402, 405 (C A 7, 1961), 2 Respondent's legal arguments At the hearing, Respondent's counsel stated that his brief to me would include a "verbatim" recitation of, inter aha, the FCC rules on which he relied. The brief contains no such material. Some of the FCC rules on which counsel relies are set forth in Respondent's Exhibit 26, which is the 1974 version but, at least as to the specific rules cited by counsel, seems to be the same as the version in effect on June 22, 1973. Respondent's Exhibit 25 purports to contain other relevant rules, but does not do so (see infra, fn. 28). Respondent's programming on both stations consists of country-western records interspersed with news and com- mercial and public information announcements. At the outset of the hearing before me, Respondent's counsel stat- ed, "It is our position, ma'am, that when an engineer-an- nouncer receives a duty assignment to proceed to a radio station and operate it under the Federal Communications Act and regulations from, say 11 o'clock in the morning until 4, he has a duty to the public as well as to the licensee, as well as to the Commission, to continue and serve his tour of duty. If he wishes not to return for another tour of duty, of course, he's just like any other citizen. He's not in a state of slavery; but when he accepts a duty assignment, he has responsibility, and the very least that is required of him is that he give adequate notice to the licensee that he is leaving and going to shut the radio stations off or make some reasonable demand that he will do it if they're not met." Counsel stated that such requirements were imposed by both the National Labor Relations Act and the Federal Communications Act. Later, Program Manager Cunning testified before me, "It is management's position that an engineer can go on strike either before he or she goes on a tour of duty or after that tour of duty has been completed, but not at such time as they are on a tour of duty . . . the rules and regulations provide for certain duties to be performed during tours of duty, so to speak, and until those actually are completed they are actually in physical control of the station and by that are charged with the control of the station and cannot relinquish it unless properly relieved." When I asked Cun- ning, "Suppose the person that is supposed to relieve them never shows up?", Cunning replied, "By law they have to stay there until the station goes off the air or until relief is obtained. They cannot leave the transmitter." Two pages later in the transcript, the following colloquy occurred: MR. WILLIAMS: Every operating engineer is under an order for the period of his duty to complete that before signing the log or departing from the station. That is our contention. JUDGE SHERMAN: I gather from Mr. Cunning's earli- er comments his position is that he remains under this order to remain on duty until he is relieved or until the station is off the air. MR. WILLIAMS' Well, that is his obligation to the Federal Communications Commission, yes, that if he cert denied 368 U S 823 Cf N L R B v Burnup & Sims, Inc, 379 U S 21 (1964), N L R B v J Weingarten, Inc, 420 U S 251 (1975) Cunning testi- fied that Williams did not borrow Cunning's copy of FCC regulations until the week after the shutdown HENNEPIN BROADCASTING ASSOCIATES 491 accepts his license and agrees to take over he under- stands that he is accepting a duty assignment. But cer- tainly if management was negligent in refusing to re- lieve him I am sure that he would have a right to notify management with giving a reasonable notice unless they got some relief there that he would have to leave to go and eat or something. We are not contend- ing that they have to starve to death at their posts. That is the implication of your observation. JUDGE SHERMAN: Well, it wasn't really. I was sug- gesting that if the, every other person assigned, let's say, the FM station, not the one that is operating ev- ery hour of the day except six hours on Sunday? MR. WILLIAMS: That is right, six hours between midnight and 6 a.m. JUDGE SHERMAN: Everybody on that station who had a license elected to strike except the person on duty the person on duty would be obligated under your theory to remain on duty until the appropriate hour on Sunday morning. MR. WILLIAMS: No, you are missing it. We are con- tending that they can only walk out at the conclusion of their duty period or before their duty period. Once they accept the duty assignment and take over the shift they have to serve their shift. Nobody can compel them to go to work and nobody can compel them to work after their duty, after they have been relieved. JUDGE SHERMAN: I understood Mr. Cunning to testi- fy otherwise, but go ahead, Mr. Williams. MR. WILLIAMS: If you did, this is all done by the staff. JUDGE SHERMAN: He was giving his own interpreta- tion. MR. WILLIAMS: I don't understand that. I don't know where you got that conclusion. Q. (By Mr. Williams) Mr. Cunning, did you hear what Her Honor just said, that you were contending that they had to stay there apparently until they starved to death? A. No, not until they starved to death, until they were relieved. MR. WILLIAMS: All we are saying, Your Honor, is that the Act minimally requires them to give reason- able notice that they are departing. JUDGE SHERMAN: The record will show what Mr. Cunning testified to. Go ahead, Mr. Williams. Q. (By Mr. Williams) Mr. Cunning, what is your interpretation of their responsibilities under the duty provisions of the Act and of the regulations? A. When they have a tour of duty they are required to complete that tour of duty before leaving and it is up to management to provide relief for them so that they can leave at the end of their tour of duty. Q. If they become sick or otherwise disabled on the job they should notify management and management can make emergency arrangements? A. Correct. On cross-examination, Cunning testified, "I believe that the [FCC] regulations and certainly a sense of duty would require [engineer-announcers] even if the regulations weren't there to complete a tour of duty before starting or Joining any strike." Cunning further testified that the engi- neer-announcers who were not on duty when the strike began were in violation of FCC laws and regulations when they were requested to take a shift (without performing any announcing duties) spontaneously scheduled by manage- ment and refused to do so.21 Then, when specifically asked whether the engineer-announcers violated FCC laws and regulations when they refused to resume or commence cer- tain engineering duties, he replied, "Probably more in line with failure to perform the jobs as engineers, whether or not they wanted to specifically say in violation of the FCC rules and regulations that would be difficult, but as .. . engineer employees refusing an assigned shift, whether it was assigned five weeks, five months or five minutes in advance because of the particular situation." Shortly there- after, the following colloquy occurred: Q. [By Union Attorney Hansing] . . . You are con- tending, sir, you testified that the reason for these em- ployees violated FCC laws and regulations by not per- forming engineering duties. When did they violate FCC laws and regulations by not performing their du- ties, what period, what dates, could you give those to us? A. You are very good at asking questions, Mr. Hansing, but not too good at listening. I clarified that when I said they are probably not in violation of FCC rules and regulations by not taking that tour of duty, but they are in violation of their employment contract. Q. Oh. A. I even specified the term contract. Those who shut the stations off were in violation. Those who re- fused to accept the tour of duty were in violation of their employment contract. Q. I see. O.K. MR. HANSING: Do you agree with that contention? MR. WILLIAMS: I think they were in violation of the FCC regulations, too. MR. HANSING: Oh. O.K. MR. WILLIAMS: I think that knowing that the sta- tions were off the air and knowing the commitments that were made under the emergency act as well as the regulations that by not agreeing to turn the stations back on and allowing management a reasonable time to get replacement engineers they were violating the regulations. JUDGE SHERMAN: Excuse me. Mr. Hansing's ques- tion encompasses people who were not scheduled to be on duty at the time the picket line was set up. Would your answer include those persons, also? MR. WILLIAMS: Yes, ma'am. At the original hearing 21 There is no evidence that Respondent ever in terms asked any engineer- announcer to turn the transmitter on while refraining from announcing Further, evidence credited by Administrative Law Judge Rasbury and the Board shows that Respondent merely directed McKeever, Walby, and Gus- tafson to work their next regularly scheduled air shifts, even though Gustafson's shift for the day had already begun However, Respondent told Ellsworth and Hubbard to return to work immediately, even though neither had previously been scheduled to start work until some time thereafter 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Rock asked each individual if they would go back and turn the stations back on and they said they would not and then he said, "You are discharged." Cunning further testified that the only employment con- tract between Respondent and the engineer- announcers was an oral contract terminable at will. During the oral argument at the conclusion of the hear- ing before me, Respondent's attorney asserted that the en- gineer-announcers did not have the right to shut off the radio stations without giving Respondent reasonable notice of their demands and of their intention to strike. He further argued as follows: Now, you are asking me to reply to hypothetical situations wherein a radio station is operating and they want to go on strike and management can't get any replacement. In my judgment we cannot compel them to issue announcements because that is not covered under the Federal Communications Act under any circum- stances. They have the right to say I am not going to announce now. I am going to go back and watch the board and the records are going to go on. I am not going to announce any more. I think they have that right without restriction under the Federal Communi- cations Act. I also think that under the Federal Communications Act if they know their radio station is off the air and knowing what they should know under the regulations and they are given a direction by their employer that they should return and turn their radio station back on the air, I think that their refusal to do it on any grounds other than they are on strike is a violation of their responsibility under the Act. Now, when you go farther from that and say the guy is at home or he has been on a party the night before and somebody knocks at his door and says the radio station is off and you are not scheduled to go on until tomorrow and the guy says to heck with you. I don't care. I am hung over. I am not going to go do it. That is something I can't even answer. I don't even know the answer to that. JUDGE SHERMAN: Well, I think I either misunder- stood a word or, perhaps, you used the word you didn't intend to use. You said you thought it would be improper for them to refuse to go on duty as engineers except for the reason they were on strike. Is that what your argument was? I think I must have misunder- stood it. MR. WILLIAMS. Here I am. I am available and I am standing here and the radio station is off the air and I say I am on strike and we say the radio station is off the air. The Communications Commission demands that we put it back on. You are an employee of ours. We acknowledge that you are on strike as a performer for AFTRA, but we want you to go back and turn the radio station back on and do your engineering duties until we can get a replacement for you. I think that under those circumstances that there should be a responsibility imposed and I think there is under the Act, to turn the radio station back on. But I am jumping from that situation to one where the man is off duty and he is home and management calls him up and says to him we are shut off the air because we are on strike. The guy says tough. I don't care that you [are] on strike. I am not going to work. Now, that to my mind, that is also justification for firing, but I really don't know that it is because it is too remote from this situation. JUDGE SHERMAN: As to what these people should have done, you say they should have kept the radio on, the transmitter on and they they did not have to perform announcing chores. How about playing the records? MR. WILLIAMS: Well, playing records is not a per- forming art. That is just a routine function. JUDGE SHERMAN: You take the position that because of the Federal Communications Commission' s regula- tions that they should have kept the transmitter on and played records? MR. WILLIAMS: And notified management that they were on strike so management could take some steps to either get a dispensation from the Commission to go off the air or call their customers and tell them that we are not going to be able to announce, you better make arrangements with another radio station. Everything they did here was an act of disloyalty, not just the employer. JUDGE SHERMAN: Wait a minute. Suppose their job, this had been the kind of station where you had people talking all the time, an all news station or something of that kind where nothing at all is taped and these people had been announcer-engi- neers and this kind of format, what should they have done then? MR. WILLIAMS. Your Honor, there isn't any differ- ence. Every one of these situations is exactly the same. They have to give in my judgment, when management imposes this kind of confidence in them, they have to give management a reasonable notice that they are going to go on strike and a reasonable opportunity to meet their demands. JUDGE SHERMAN: Well, I am posing a situation where they have given reasonable notice and manage- ment has not been able to find a replacement. You are taking a position, it seem to me, that what these people were required to do under these circum- stances is continue to operate the transnntter and con- tinue to play records and I was asking what should they have done if there had been no records at all used in the format normally, just simply kept the transmit- ter on and kept the station dead quiet? MR. WILLIAMS: In the circumstances that you pro- pound it is management's responsibility to get a re- placement. I will not accept your hypothesis that man- agement cannot get a replacement. There is no such things as a cannot situation in proposing the hypothet- ical question. It is illogical and it defies my clear head- ed mind. You are saying that I am supposed to answer HENNEPIN BROADCASTING ASSOCIATES 493 a question where management cannot perform its re- sponsibilities under the Act. This management is capa- ble of performing its responsibilities, as every person who is entitled to a license is. They are capable of making arrangements for substitute engineers. Now, you want me to assume a situation where all the engineers have been killed in a hydrogen or a co- balt bomb. I will, but I think that is asinine. JUDGE SHERMAN: Quite possibly no other engineers would cross a picket line. MR. WILLIAMS: That is an absurd question. I would like to continue my remarks on the record and I would appreciate it if you asked the question after I finished my remarks. JUDGE SHERMAN: Mr. Williams- MR. WILLIAMS: (interrupting) The last time I was not given an opportunity to make a closing argument. This time my closing argument is being terribly inter- rupted. I want the record to be clear as to our position and I will answer questions, if I may, only when I conclude my remarks. JUDGE SHERMAN: I want to be clear of your position, too, Mr. Williams. Although you may think the ques- tions I ask are factually absurd and maybe they are, they-I expect to find them helpful in determining the legal boundaries and implications of your position. Please proceed. [MR. WILLIAMS:] The only thing in this area of the unique circumstances of this case that my clients have a right to ask for and the only thing they do ask for is that if these people were to have the right to reemploy- ment, if these people were to have the right to back pay they should have extended reasonable notice that they were going to shut these radio stations off the air and they should have given management a reasonable opportunity to meet their demands. None of which they did. . .. the very least that management has the right to expect of its engineers is that if they are going to shut the radio station off, that they give them reasonable notice and if they are going to make demands they give those demands before they shut the radio stations off. The duty in this case, we contend, under the law, both the National Labor Relations Act, the appropri- ate regulations in the Federal Communications Act is this, the duty is for the right to strike that you will give reasonable notice to your employer if you are going to shut off the radio stations contrary to its scheduled operations and contrary to your duty assignment and that you will give him reasonable opportunity to meet your demands. This is all our case is. Our case is not a complicated one. It is a simple one. Our case is that under the circumstances of the individual employment here, un- der the basic concepts of bad faith and malicious de- struction of his property and his business and business relationships, under the theory of basic equitable prin- ciples, under the theories of responsibilities and liabili- ties and rights and duties imposed upon the licensee and his engineers under the Federal Communications Act and regulations. All these things taken together and adding up to one simple little thing. You should give reasonable notice before you cut off the radio stations when you are in absolute charge of them and you should give management a reasonable opportuni- ty to meet their demands. If you do not do that the strike that is undertaken is conceived in disloyalty, is dedicated to disloyalty and it should not be rewarded with reemployment and payment of back pay. Disloyalty, I might say, notjust to the employer, but to the Act, to themselves, to their own labor union and to the public. JUDGE SHERMAN: Mr. Williams, you repeatedly ex- pressed annoyance of my interrupting your oral argu- ment. MR. WILLIAMS: I wanted to deliver a dramatic speech and I couldn't get it in. JUDGE SHERMAN: If I may suggest, that is perhaps your trouble. It seems to me that counsel really should welcome interruptions in the form of questions since it indicates the problems that the Judge has and I sug- gest that such problems should be dealt with in the brief. I certainly was not attempting to interfere with the presentation of your argument. I was trying to assist in my understanding of it and my understanding of the brief, which I assume will follow. MR. WILLIAMS: We have a very simple position in this case, Your Honor. You are complicating it into situations where management cannot find any re- placements. If they can't find engineer replacements they haven't got any business with a license to operate a radio station because they can't operate the station without having a licensed engineer there. That is their responsibility. But the question is, there is also respon- sibilities on the part of the engineers to exercise rea- sonable respect for the rights of their employer and holder of the license before they actively engage in a program to decimate and destroy his business and his right to broadcast. That is all we are saying. JUDGE SHERMAN: Well, I think the problem is a little more complicated than you suggest by your argument. I don't blame you for wanting to keep it simple, Mr. Williams, but if you do have to make a choice, per- haps you better make it persuasive rather than simple. The posthearing brief of Respondent's counsel asserts, inter alia, that engineer-announcers are required "at the 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD very least" to "complete their duty assignments before striking; 22 [and] that they give reasonable notice to either the [Federal Communications] Commission or their em- ployers that they will not report for their duty assign- ments." In support of this position, Respondent's counsel alleges that the engineer-announcers "functioned in a close fiduciary relationship not only to the station's owners, but to the public and the Federal Communications Commis- sion as well"; and that they failed to "comply with reason- able instructions designed to protect the company's essen- tial operating mechanisms from imminent destruction or damage. . . . Here, the federally granted licenses to broad- cast were in imminent danger of destruction as were per- sonal and property rights of innocent third parties depen- dent upon the continuation of the radio stations' electronic signals." Respondent's counsel apparently conceded on the rec- ord that the foregoing arguments are irrelevant to Camp- bell because he "was not on the premises the evening in question and was not given an opportunity to go back to work." I requested Respondent's counsel specifically to discuss the case of Walby, either in counsel's brief or in his oral argument. Respondent's counsel agreed that the re- quested discussion was "appropriate," and tacitly agreed to tender such a discussion, but he had not done so. During the oral argument, the following colloquy occurred: JUDGE SHERMAN: Mr. Williams, is any of this part of your argument addressed to the reinstatement of Mr. Carey? MR. WILLIAMS: No. Mr. Carey doesn't even want reinstatement any more. That question is moot. But I have to again ask you to let me finish my argument and I will take up Mr. Carey separately in my brief. But Mr. Carey, as I understand his status, has been employed in another job for, how long, two years? I think he was hired immediately after the strike started. JUDGE SHERMAN: All right. You answered my ques- tion. MR. WILLIAMS: So I think that is substantially a moot question, but I will find out and let you know the answer.23 Carey's case is not specifically treated in Respondent's posthearing brief. Respondent's counsel has repeatedly stated that he con- cedes that the engineer-announcers have a right to strike. 22 The brief as a whole indicates that by "duty assignments," counsel then meant the employees' respective regular shifts 23 Counsel's suggestion of mootness is erroneous in view of Cunning's testimony that Carey has never been offered reinstatement and consider- ations of backpay as to him See N L R B v Mexia Textile Mills, Inc, 339 U S 563, 567-568 (1950), Heinrich Motors, Inc, 166 NLRB 783, 785-786 (1967), enfd 403 F 2d 145, 149-150 (C A 2, 1968), N L R B v S W Dix- on, d/b/a U S Trailer Manufacturing Company, 184 F 2d 521, 522-523 (C A 8, 1950) 24 The decision specifically dealt with 47 CFR Sec 13 69, which forbids a licensed radio operator to "willfully or maliciously interfere with or cause interference to any radio communication or signal" (a prohibition set forth in the engineers' FCC licensees), and with 47 U S C § 303(m)(i)(b), which C. Analysis 1. Respondent's reliance on the Federal Communications Act and Federal Communications Commission regulations a. The shutdown of the stations I find unmeritorious Respondent's contention that the strikers' discharge was justified by certain operating re- quirements of the Federal Communications Act and of FCC regulations. See generally N.L.R.B. v. Globe Wireless Ltd., 193 F.2d 748, 750-751 (C.A. 9, 1951); Central Broad- casting Corporation d/b/a WENO, 182 NLRB 866, 872 (1970), enfd. 441 F.2d 1145 (C.A. 6, 1971). Thus, in Cham- berlin and Muller, 21 FCC 231, the FCC found that certain licensed radio operators did not breach FCC regulations or jeopardize their licenses by shutting down the station, with- out their employer's instructions or authorization, and leaving the premises before the completion of their shift, as part of strike action.24 Nor can I accept Respondent's con- tention that a shutdown of its stations due to a strike would jeopardize its retention of its broadcasting licenses.25 Re- spondent apparently relies on 47 U.S.C. Section 312(a)(3), which provides that the FCC "may revoke any station li- cense . . . for willful or repeated failure to operate substan- tially as set forth in the license ...." (emphasis supplied). However, FCC regulations implement this discretionary power afforded the Commission by providing, "In the event that causes beyond the control of a . . . licensee make it impossible to adhere to the [minimum] operating schedule [provided in the regulations] or to continue oper- ating, the station may limit or discontinue operation for a period of not more than 10 days, without further authority of the Commission. If causes beyond the control of a .. . licensee make it impossible to comply within the allowed period, informal written request shall be made to the Com- mission in Washington, D.C. no later than the 10th day for such additional time as may be deemed necessary." 21 In authorizes the FCC to suspend the license of an operator who "has failed to carry out a lawful order of the master or person lawfully in charge of the ship or aircraft on which he is employed " However, I regard the decision as tacitly finding inapplicable certain additional FCC regulations cited by Re- spondent, namely, sec 13 64 (requiring licensed radio operators to "carry out the lawful orders of the master or person lawfully in charge of the ship or aircraft on which they are employed", Chamberlin, like the instant case, involved a conventional land-based radio station) and sec. 13.65 (forbidding licensed radio operators to "willfully damage, or cause or permit to be dam- aged, any radio apparatus or installation in any licensed radio station") Cf Didriksen, 21 FCC 268, 22 FCC 151, affd 254 F 2d 354 (C A D.C., 1958), where the FCC suspended the licenses of operators who, before striking, had deliberately made various control maladjustments which kept the sta- tion off the air for 12 hours while their nature was being ascertained. 25 Between 6 a in and 6 p in, Respondent's FM station was required to operate at least 8 hours, and its AM station was required to operate two- thirds of the total hours it was authorized to operate, i e., two-thirds of the time between 5 30 a in and 9 p in 47 CFR Secs 73 71(a), 73 261(a) At the time the strike began, both stations had already operated during this mini- mum period 26 See 47 CFR Sec 73 71(b) (AM stations), Sec. 73 73, Sec 73.261(b) (FM stations) Effective April 1974, about 10 months after the strike began, cer- tain time periods specified in these regulations were enlarged 39 FR 10573 HENNEPIN BROADCASTING ASSOCIATES 495 short, Respondent would not even have to tell the FCC about limiting or discontinuing operations "for causes be- yond [its] control" during the first 10 days of a strike; nor do the FCC rules suggest that the FCC would take discipli- nary action if notified that if a strike "beyond [Respon- dent's] control" caused such operational difficulties for a longer period. As the court observed in Globe Wireless, Ltd, supra, 193 F.2d at 751, "A sufficient answer to the argument predicated on . . . Southern Steamship [Co. v. N.L R B., 316 U.S. 31 (1942)] is that the Communications Act does not confer upon licensees thereunder the right to conscript labor, nor does it expressly or by reasonable im- plication undertake to restrict the right of employees to strike or quit their jobs, either singly or in concert. On the other side of the picture the right of employees to strike and to engage in concerted activities for mutual aid and protection is expressly recognized in the National Labor Relations Act . . . . It seems purely fanciful to assume, as does respondent, that the failure of a licensee to perform the obligations prescribed by the Communications Act would constitute a breach of such obligations on the licensee's part in instances where the failure is caused by an economic strike." 27 Respondent also relies on its participation in the "Emer- gency Broadcast System" as established under 47 CFR Secs. 73.901-73.962.28 (No emergency was in effect the day of the strike.) Under these regulations and implementing material issued by the FCC, upon receiving notice of a "national-level" emergency, all participating "primary ra- dio stations," including those operated by Respondent, are required to broadcast a "common emergency program," and no station is permitted to broadcast any other materi- al, except that a "primary relay station" may instruct the public to tune to a "primary radio station" (Sec. 73.933). Also, a "common emergency program" "may, at the dis- cretion of management," be broadcast upon receipt of a "state-level" or "operational (local) area-level" emergency action notification (Secs. 73.927(d), 73.931 (b) (c), 73.935- 73.937). As these regulations show, a shutdown of Respondent's stations would prevent a listener from receiv- ing such "emergency" messages only if the shutdown caused the listener to turn off his radio or, in the case of a state or local emergency message, if among the 25 stations in the area the Respondent's station alone elected to carry it. In addition, Respondent drew my attention at the hear- ing to 47 CFR Sec. 73.98, which permits transmission of emergency weather warnings and other emergency infor- mation "at the discretion of the licensee and without fur- ther Commission authority," and provides that under some circumstances daytime stations like Respondent's AM sta- tion "may employ their full daytime facilities during night- time hours" to carry emergency information. However, ir- respective of these FCC-established emergency informa- tion arrangements, the FCC permits radio stations and ra- dio operators to retain their FCC licenses notwithstanding strike shutdowns (Chamberlin, supra, 21 FCC 231). More- over, as is apparent from the language of the pertinent regulations, whether to broadcast information other than national-level emergency information-like whether to broadcast any other programs-is left to station manage- ment. Moreover, Respondent's initial participation in the "Emergency Broadcast System" was voluntary, and so far as I can determine, Respondent is free to withdraw there- from at any time. Further, Respondent has made no effort to reconcile the seeming inconsistency between its reliance on these regulations and its position that the striking engi- neer-announcers were under no duty to perform any an- nouncing functions. I do not regard such regulations as affecting these engineer-announcers' reemployability. At the hearing, Respondent's counsel drew my attention to 47 CFR Secs. 73.80, 73.81, and 73.82, relating to a sec- ondary station's deviation from a schedule set by a time- sharing agreement with a dominant station. There is no evidence here that any such agreements exist or that there is any occasion for them. At one point, Respondent's counsel indicated that the "weather bureau" should have been advised of the shut- down. However, I can find nothing regarding this alleged obligation in the material to which counsel has drawn my attention. b. The "sign-off' language Respondent further alleges that the "sign-off" language is "fraud" giving rise to unreemployability. Respondent's argument is unspecific as to which individuals' rights are affected by this language, although I regard its relevance as limited to the two engineer-announcers who actually read it (Bortnem and Peterson) and the two (Gustafson and Ellsworth) who had helped draft it.29 Respondent appar- ently relies partly on 47 U.S.C. § 303(m)(1)(D)(1), which empowers the FCC to suspend the license of any operator if the licensee "has knowingly transmitted false or decep- tive signals or communications ..."; partly on an FCC regulation that "No licensed radio operator shall transmit false or deceptive signals or communications by radio"; 30 and partly on 18 U.S.C § 1343, which calls for fine or imprisonment for "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtain- ing money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of . . . radio . . . communica- tion in interstate or foreign commerce, any . . . signs, sig- nals, . . . or sounds for the purpose of executing such scheme or artifice ... ." Respondent seems to be relying 27 Southern Steamship, supra, upon which Respondent relies herein, held that the right to strike under the NLRA does not give employees aboard ship the right to defy the authority of the vessel's captain and officers in a manner violative of other Federal statutes prohibiting revolt or mutiny- and, therefore, refusals to obey orders to work-while on shipboard 28 A document marked in the exhibit folder as Resp Exh 25 consists of these rules as effective March 15, 1974, 9 months after the operative events in this case References in this Decision are to the rules (37 FR 7397, 25843) in effect on June 22, 1973 29 Coronet Casuals, Inc, 207 NLRB 304, 305 (1973), N L R B v Marshall Car Wheel and Foundry Co of Marshall, Texas, Inc, 218 F 2d 409, 417-418 (C A 5, 1955), International Ladies' Garment Workers' Union, AFL [B V D Co, Inc ] v N L R B, 237 F 2d 545, 549-552 (C A D C , 1956,, see also, N L R B v Local No 1229 International Brotherhood of Electrical Workers [JejQ'erson Standard Broadcasting Company], 346 U S 464, 470 (1953) 47 CFR Sec 13 68, whose substance is set forth in the engineers' licen- ses 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the fact that the "sign-off" announcements did not specify when the radio stations would resume broadcast- mg-a circumstance which in Cunning's opinion would cause a typical member of the radio audience to stop listen- ing to these stations until he was informed, or learned by spinning the radio dial, that the station was back on the air; in Cunning's judgment the complainants would know that "by wording the sign-off notice the way they did that this would be likely to have this effect." I cannot accept Respondent's contention that the "sign- offs" ran afoul of the foregoing prohibitions. As soon as the transmitters were shut down, the strikers set up a picket line in front of each station for the very purpose, inter alia, of deterring other engineer-announcers from resuming broadcasting activities. When the "sign-off" language was read, the strikers simply had no way of knowing that this picketing would not be effective for the rest of the day, and they undoubtedly hoped that it would be. Under these cir- cumstances, the "sign-offs' " assertion that the station "concludes its broadcasting day" cannot fairly be de- scribed as "false or deceptive" or for the purpose of execut- ing a "scheme or artifice to defraud, or for obtaining mon- ey or property by means of false or fraudulent .. . representation." Rather, the "sign-offs" contained pre- dictions which the strikers hoped would be correct and could not know would be wrong. Nor has Respondent made any specific contentions about what the "sign-off" language should have said. It seems to me that the effects which Cunning considered likely from the "sign-off" lan- guage as actually given would also have flowed from repre- sentations that broadcasting had been indefinitely sus- pended, either with or without the explanation that the suspension was due to a strike Respondent also seems to be suggesting that because the "sign-offs" did not recite Union Representative Newell's role in drafting them, they violated FCC rules forbidding licensed radio operators to transmit "unidentified ... ra- dio communications" (47 CFR Sec. 13.66). I interpret this regulation as requiring the operator to make identifiable the radio station from which communication has physi- cally come (as the "sign-offs" did) rather than to set forth the identity of whoever drafted the communication. I note that although Rock admittedly heard Peterson read the "sign-off" language over the AM transmitter, Rock testified that he in effect told Peterson that he would be retained in Respondent's employ if he turned the trans- mitter back on. I see nothing in the "sign-off" language which would diminish the rights of those who drafted or read it. c. The log entries FCC regulations require Respondent to maintain a "pro- gram log" for each station.31 Respondent contends that Bortnem (in charge of the FM transmitter) and Peterson (in charge of the AM transmitter) are not entitled to rein- statement because they allegedly violated the foregoing re- gulations, and thereby endangered the stations' licenses, by 3i 47 CFR Sec 73 112 (AM station, Sec 73 383 (FM stations) failing to note the "sign-off" statements on the program logs and because their time notations in the "OFF" column following their signatures (although accurately reflecting the hour when they shut down the transmitters and left the stations) were made before they had completed their "tour of duty"; i.e., the schedules to which Respondent had pre- viously assigned them. While I can find no specific FCC requirement that "sign- offs" be entered on the program log, FCC rules do require that announcements of broadcast station identification and location be made at the "beginning and ending of each time of operation" and that all announcements containing such information be logged.32 However, Respondent fails to point to any case indicating that a radio station' s license would be jeopardized because on one occasion one an- nouncer failed to note one short announcement on the pro- gram log.33 Such a Draconian FCC policy appears inher- ently unlikely. Indeed, if Respondent apprehended such a loss, it is difficult to understand Respondent's failure to correct the logs to reflect the "sign-off" message.34 More- over these same rules required a "sign-on" message, and an entry thereof on the program log, when each station was turned back on. No such entries appear on these logs. Nor can I accept Respondent's contention regarding the "OFF" time entries. Respondent failed to indicate what entries the engineer-announcers should have made instead, and what they did do seems both more straightforward and more natural than the obvious alternatives of leaving the "OFF" spaces blank or putting down the times they were scheduled to leave rather than the times they really did leave.35 I note, moreover, that FCC rules require program logs to be kept by an employee "having actual knowledge of the facts required, who . . . shall sign the appropriate log when starting duty, and again when going off duty." 36 I interpret these rules as requiring such a signature when the employee actually left, not when his employer had scheduled him to leave Respondent has also drawn my attention to FCC rules regarding operating logs (Secs 73.113 and 73.283) and maintenance logs (Sec. 73.284; see also Sec. 73.114). I see no relevance to any of these rules in the instant proceeding. 2. The turning off of the transmitters Respondent further contends that the turning off of the AM and FM transmitters rendered unreemployable the en- gineer-announcers who physically turned them off (see su- pra, fn. 16) and, erhaps, claimants whom Respondent does not identify. 3? In this connection, Respondent cites Carnegie-Illinois Steel Corporation (Gary Steel Works), 84 32 See 47 CFR Sec 73 I12(a)(4), Sec 73 282(a)(4), Sec 73 1201(a)(b)(I) 33 The AM log for that day contains more than 300 items, and the FM log more than 200 34 See 47 CFR Secs 73 I12(d)(1), 73 282(d)(l) 35 When I asked Station Manager Cunning what entries an engineer-an- nouncer should have made if at 1,700 hours he had become violently ill and had been replaced by another engineer-announcer, Cunning replied, "I would have expected him to put down on there the time that he did, let's say that he was relieved at 1700 hours and then on the back of that particular sheet a reason for a schedule change, why he was leaving" 3647 CFR Sec 73 111(a) (AM stations), Sec 73.281(a) (FM stations) 37 Walby and Campbell joined the strike after the transmitters had been turned back on See cases cited supra, fn 29 HENNEPIN BROADCASTING ASSOCIATES 497 NLRB 851, 852-854 (1949), affd. 181 F.2d 652 (C.A. 7, 1950), and the Marshall Car Wheel and Foundry case.38 However, "the material element in these cases is the threat of aggravated physical injury to plant premises." Morris Fishman & Sons, Inc., 122 NLRB 1436, 1447 ( 1959), enfd. 278 F.2d 792 (C.A. 3, 1960). In the instant case, the trans- mitters worked as well after being turned back on (a matter of 90 seconds) as they had before being turned off (also a matter of a few seconds) less than 2 hours previously, and there is no evidence that Respondent had any reason to apprehend otherwise. Indeed , Rock testified that he or- dered the strikers , specifically including Peterson, to turn the transmitter back on. I further reject Respondent's contention that the shut- down of the transmitters was improper because allegedly forbidden by section 609.595 of the Minnesota statutes, which imposes penalties on "Whoever intentionally causes damage to physical property of another without the latter's consent," with heavier penalties where "The damage re- duces the value of the property measured by the cost of repair or replacement, whichever is less." 39 This last-quot- ed language militates against Respondent's tacit assump- tion that the forbidden "damage" includes the temporary loss of the electronic signals from the transmitters, which themselves remained intact and in Respondent 's posses- sion . Further, Respondent cites no case which holds that this statute is applicable to the turning off of a transmitter in connection with strike activity by the engineer in charge. In any event, if such action would otherwise constitute conduct protected by the National Labor Relations Act, the Act would preempt a state statute to the extent that it purported to render this particular conduct unlawful. Amalgamated Association of Street, Electric Railway Motor Coach Employees of America, et al, v. Wisconsin Employ- ment Relations Board, 340 U.S. 383 (1951). Respondent also contends that the shutoff of the AM transmitter (actually effected by Peterson) was improper because some private pilots, particularly in bad weather, use the signal from that station to home in on when they are using the Crystal Airport; a pilot so using the signal would lose his sense of direction if the station ceased oper- ations; and if this happened at certain unspecified hours of the day, the pilot could start following another station at approximately the same wave length and have a serious accident . The FM station neither represents to any pilot that it maintains, nor is under any contractual obligation to maintain, a signal on the air for purposes of flight naviga- tion. Further, so far as I am aware, Respondent is under no obligation to forestall such airplane navigational difficul- ties by promptly advising anyone of changes in the hours during which it operates its AM signal4° Indeed, at the time the strike occurred , Federal Aviation Administration 38 Marshall Car Wheel and Foundry Co of Marshall, Texas, Inc, 105 NLRB 57 (1953), 107 NLRB 314 (1953), reversed and remanded 218 F 2d 409 (C A 5, 1955) Respondent relies on that portion of the Board's decision reported in 107 NLRB at 315 and on the approval thereof expressed in certain portions of the court's opinion (218 F 2d at 411, 413) 39 Heavier penalties are also imposed where, "The damage to the property caused a reasonably foreseeable risk of bodily harm, or [the] property dam- aged belongs to a public utility or a common carrier and the damage im- pairs the service to the public rendered by them " 40 As noted, supra, sec 1,C, l,a, the FCC notice requirements imposed by personnel had been specifically advised by that agency that aviation users of commercial broadcast stations for special instrument approach procedures- . .. lack the following capabilities: (1) Control over the station operation. (a) Hours of operation (b) Notification of facility shutdown failure or relo- cation (c) Signal strength in specific areas (d) Satisfactory identification of the station 41 I see no reason why these possible flight navigation prob- lems affected the employees' right to turn off the AM transmitter. Indeed, I note that Rock has promised to re- hire Peterson, who to Rock's knowledge turned off the AM transmitter. 3. Respondent's "equitable" arguments a. The alleged absence of demands Respondent's other "re-employability" arguments in connection with the initiation of the strike are based on assertedly equitable considerations. Among these claims advanced by Respondent is the claim that the strike was called without any prior demands. Assuming arguendo that this circumstance would be material if in consequence Re- spondent remained ignorant during a substantial period following the walkout as to what such demands were,42 Respondent's contention is refuted by the testimony of General Manager Rock, who admittedly decided on the discharge (which the Board found discriminatory) of engi- neer-announcer Carey, that immediately after the transmit- ter shutdown he saw Carey standing alone in front of the AM studio with a picket sign alleging that Respondent was "mad at my daddy"; and by Rock's further testimony and affidavit that thereafter he saw certain strikers, some of them picketing with Carey, who carried signs bearing the Union's name and alleging that Respondent was "unfair." Furthermore, neither Rock nor any other witness testified that when conversing with the pickets Rock or Attorney Williams asked why they were striking, as would have been a natural inquiry if they really did not know why. Indeed, Rock testified that, before discharging Carey, Rock had told Williams that Rock feared the discharge would lead to trouble with the Union.43 I conclude that engineer-an- 47 CFR Sec 73 71(b) apply only after operations, for causes beyond the licensee's control, have been suspended or limited for 10 days At the hear- ing, I requested counsel to advise me in their briefs whether Respondent was under any duty to notify anyone if it changed the hours during which it operated its AM signal , assuming that the change left the station operating during the minimum period required by FCC regulations (see 47 CFR Sec 73 71(a)) Counsel have not done so 41 The quoted material is from handbook 8260 19, Flight Procedures and Airspace, February 16, 1970, Department of Transportation, Federal Avia- tion Administration , sec 5 438(b), p 158 , as set forth in change 8 , effective November 29, 1971 This subject is currently covered in sec 5 450, whose language is somewhat different 4 But see N L R B v Washington Aluminum Co, 370 U S 9, 14 (1962), WENO, supra, 182 NLRB at 872, West Coast Casket Company, Inc, 97 NLRB 820, 824 (1951), enfd 205 F 2d 902, 907-908 (C A 9, 1953) 43 Moreover, immediately after Carey's discharge Ellsworth asked Cun- ning whether the Union's request for recognition had anything to do with the discharge Cunning replied no 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nouncer Ellsworth was not only reasonable but correct in his testimonial opinion that Rock knew when approaching the pickets on the first day of the strike the reason why they were striking; and, further, I conclude that Respon- dent was aware of the reason for the strike at all times after Rock saw Carey picketing.44 Moreover, any absence of demands could not acquire equitable significance in the instant case. I see no reason to suppose that Respondent would have been receptive to these demands if it had been advised that otherwise it faced a strike, in view of its continuous refusal to offer Carey reinstatement, and to recognize the Union, through- out the 2-1/2-year strike which has ensued 45 b. The timing of the strike and the alleged lack of notice thereof to Respondent In connection with Respondent's "equitable" conten- tions, Respondent further points out that FCC rules re- quire the transmitters to be operated by FCC-licensed per- sonnel,46 and asserts that the beginning of the strike was deliberately timed to coincide with the absence from both stations of licensed engineers, who had not agreed to join the strike, and of members of management, and also with the beginning of the weekend when the latter did not usual- ly report to work. However, Rock testified that, for practi- cal purposes, engineer-announcers are alone at the FM sta- tion all the time, and alone at the AM station close to 90 percent of the time; he himself spent less than 10 percent of his time at the AM station and never went to the FM sta- tion; and Cunning went to the FM station during regular broadcasting hours only once every 6 weeks. Also, the rec- ord indicates that only four FCC-licensed persons (Walby, Fitzpatrick, Ingle, and part-time employee Campbell) on Respondent's staff did not participate in the strike from its inception. Moreover, Cunning testified that engineer-an- nouncer Fitzpatrick had been directed by management to perform a "remote" broadcast which, because of illness, Cunning could not perform in accordance with the original 44 Rock testified on the third day of the November 1973 hearing that he had never received any demands from the complainants or the Union and that "I do not know why [the strikers] walked out " By that time, the origi- nal strikers had testified at the hearing that they had struck to protest Carey's discharge Moreover, prior to this 1973 hearing, Respondent had received the Union's demand for recognition, the Union's initial charge alleging that Carey had been discriminatorily discharged, the Union's amended charge adding the allegation , inter aim, that Respondent had un- lawfully refused to bargain, two union requests that Respondent reinstate all nine claimants, including Carey, and the complaint herein In addition, Respondent had seen copies of the Union's July 1973 letter to Respondent's advertisers, attributing the strike to, inter aha, Carey's discharge and the refusal to bargain At the September 1975 hearing, Rock testified that he had never received any demands from the complainants, except that he had seen a newspaper article alleging that the union attorney had said the back- pay for the nine claimants for the 18 months prior to the Board's Decision would amount to about $50,000 By that time, Respondent had seen the union leaflets handed out at automobile dealerships which advertised on Respondent's stations, attributing the strike to the complainants' discharge and to Respondent's failure to comply with Administrative Law Judge Rasbury's recommended Order 45 At the hearing, Respondent seemed to be relying on the Union's failure to tender any proposals of specific economic terms to be included in a collective-bargaining agreement However, such proposals would serve no useful purpose so long as Respondent withheld recognition 46 See, supra, In 7 arrangements. In addition, Rock testified that receptionist Hanson does not usually leave the office, which is located near the AM transmitter, until 5 p.m., the hour the strike began. In view of his further testimony that he sometimes did not get into the office until 4 p.m., I infer that his normal departure time is no earlier than hers. Further, about a half-hour before the strike began, Union Attorney Hansing began efforts to advise management of the im- pending strike. Management's failure immediately to re- ceive notice was due solely to Rock's statement to recep- tionist Hanson that he was not receiving any calls, and Hansing's message to Williams about the strike reached Rock through Williams' secretary and Respondent's recep- tionist a few minutes before the strike began. In short, the strike protesting Carey's discharge occurred on the Friday following the Thursday discharge; a strike at any hour would probably begin when only one engineer- announcer was on duty at each station and no member of management was present at the station; the absence of Rock from his office and of engineer-announcer Fitzpat- rick from the AM station when the strike began was for- tuitous, unpredictable, and beyond the strikers' control; and the Union made reasonable efforts to give manage- ment advance notice of the stnke.47 c. The failure to afford Respondent the time to obtain replacements "Primary employees have traditionally been assured the right to take concerted action against their employer to gain the `mutual aid or protection' guaranteed by §7 of the National Labor Relations Act . . . . As Judge Learned Hand stated in Labor Board v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F.2d 503, 505-506 (1942): `When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "con- certed activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutu- al aid" in the most literal sense, as nobody doubts."' Hous- ton Insulation Contractors Association v. N L R.B., 386 U.S. 664, 668-669 (1967). Accord: N.L.R.B v. J. I. Case Com- pany, Bettendorf Works, 198 F.2d 919, 921-922 (C.A. 8, 1952), cert. denied 345 U.S. 917 (1953). Such protection ordinarily extends, of course, to strikes which effectively halt the employer's operations. Moreover, such protection ordinarily extends to strikes which occur at a time when the employer particularly needs services of the kind the employees have been performing and is unable to obtain immediate replacements for them; indeed, the inconve- nience which such timing imposes on the employer may be 47 1 would be receptive to a contention that it would have been improper for the engineer-announcers to commence a strike which effectively ceased broadcasting operations without attempting to give reasonably prompt no- tice to management , where the circumstances were such that management would not otherwise likely find out about the strike for some time However, that situation is not presented here HENNEPIN BROADCASTING ASSOCIATES 499 the only kind of pressure available to unskilled workers in an unorganized labor market where unemployment is high. See N.L.R.B. v. Cowles Publishing Company, 214 F.2d 708 (C.A. 9, 1954), cert. denied 348 U.S. 876. I have previously discussed and rejected a number of the specific contentions on which Respondent appears to base its general contention that the Cowles Publishing line of cases is inapposite here. I also find unmeritorious Respondent's contention that the engineer-announcers' statutory rights are somehow affected by the fact that they have the necessary licenses to operate the transmitters and members of management do not. Such a contention would hardly be advanced in connection with (for example) truckdnvers, plumbers, electricians, barbers, beauticians, and stationary engineers, whose function may be necessary to the continued operation of a particular business. Rather, the need for licensed personnel is an aspect of labor-mar- ket considerations which will affect the parties' relative economic power in a labor dispute. In addition, Respondent contends that fiduciary obliga- tions flowing from the employer-employee relationship limit the engineer-announcers' rights under the National Labor Relations Act. However, because the parties' indi- vidual oral contracts of employment were terminable at will by either party at any time, the fiduciary obligations flowing from the employment relationship did not restrict the engineer-announcers' right to quit without notice. 8 Be- cause a mass simultaneous quit by six engineer-announcers without notice would have caused Respondent essentially the same kind of inconvenience as did the strike action here, I see no reason why the strike action would breach a fiduciary obligation where the mass quit would not49 In section II,B,2, supra, I have set forth at length Re- spondent's position regarding the extent of the engineer- announcers' rights because I regard the facial defects in the position as indicative that it has fundamental defects as well. Thus, Respondent contends on the one hand that the engineer-announcers were obligated to continue operating the transmitters (even, perhaps, on shifts to which they are not ordinarily assigned) until Respondent is able to find replacements (at least if Respondent is conducting a rea- sonable search therefor); and contends on the other hand that the engineer-announcers were obligated merely to give reasonable notice of their intention to engage in a concert- ed walkout, and after the expiration of such notice could properly walk out even if no replacements were found. Further, Respondent concedes that the circumstances sur- rounding the initiation of the strike do not affect the rein- statement rights of Campbell (who did not participate in the decision to strike, worked at least his first scheduled shift after the strike, but then decided to honor the picket line) or Carey (who did participate in the decision to strike in protest against his own discharge), but contends that such circumstances do negate the reinstatement rights of Walby (who did not participate in the decision to strike, tried to work his first scheduled shift after the strike, but just before his next scheduled shift decided to honor the picket line). In addition, Respondent contends on the one hand that the transmitter shutdown in connection with the strike was impiroper because it interfered with advertisers' ability to have their commercial messages timely conveyed to potential customers (see infra, sec. II,D,2,b) and might have interfered with emergency broadcasting announce- ments; contends on the other hand that the engineer-an- nouncers could properly have limited their functions to manning the transmitter and playing records; and re- frains-on the ground that an "absurd" hypothetical ques- tion was being asked-to take any position on what the engineer-announcers should have done if (for example) Respondent's station had been an all-news station which used only live voices. Respondent's failure to reconcile its unquestionably inconsistent positions and to clarify its seemingly inconsistent positions strongly suggests the ab- sence of a logically sound foundation for Respondent's en- tire claim. As previously indicated, I have discovered no such foundation. In any event, I regard Respondent as estopped from now claiming that the engineer-announcers should have stayed on the air and played records. Although Rock admittedly consulted Respondent's counsel before telling the employ- ees in June 1973 that they would be fired if they did not report for work, there is no evidence that prior to the No- vember 1973 hearing Respondent ever told anyone that the order to return did not ercompass announcing duties; and ordinarily, an employer can discharge any employees who "remain on their jobs and perform only such tasks as they choose" (Case, supra, 198 F.2d at 922 (C.A. 8) ). Cf. Com- fort, Inc., 152 NLRB 1074, 1077-79 (1965), enfd. in rele- vant part 365 F.2d 867, 877-878 (C.A. 8, 1966). 4. Con.;lusion For the foregoing reasons, I conclude that nothing in the Union's or the employees' conduct in connection with the initiation of the strike affected either the protected status of the strike or the reemployability of any of the complain- ants. In this connection, I note that Respondent has prom- ised to reemploy Peterson; that Company owner Tedesco has offered Peterson a job in another radio station owned by him; that, according to Respondent's counsel, he has arranged to have each of the complainants offered a job at (inferentially) that same station; and that Rock has ex- pressed willingness to discuss reinstatement with complain- ants Gustafson, Bortnem, McKeever, Walby, and Ells- worth. 48 See Sarkes Tarzian, Inc v Audio Devices, Inc, 166 F S 250, 267 (S D Calif, Central Div ), affd 283 F 2d 695 (C A 9, 1960), cert denied 365 U S 869 (1961), Republic Systems and Programming, Inc v Computer Assistance Inc, 322 F S 619, 626 (Conn ), affd 440 F 2d 996 (C A 2, 1971) 49 Accordingly, I need not and do not determine whether a fiduciary obligation under state law to give reasonable notice of resignation (which is not ordinarily protected activity) would generate a like obligation with re- spect to a strike (which is ordinarily protected) See Amalgamated Associa- tion, supra, 340 U S 383 H. CONDUCT AFTER THE STRI•:E BEGAN A Introduction Respondent further contends that striking claimants were rendered unreemployable by certain conduct which occurred after the strike began. Any claimants who had 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD initially acquired the status of protected strikers were un- fair labor practice strikers by virtue of the Board's finding that they struck in protest against Carey's discriminatory discharge. Accordingly, their rights to reinstatement and backpay are not subject to defeasance on a mere showing that during their unfair labor practice strike they engaged in unprotected acts of misconduct. Rather, the Board must determine whether to afford such relief upon a consider- ation of both the seriousness of the employer's unlawful acts, and the seriousness of the employees' misconduct Lo- cal 833, UAW-AFL-CIO, International Union, United Au- tomobile, Aircraft & Agricultural Implement Workers of America [Kohler Co J v N.L R B, 300 F.2d 699, 702-704 (C.A.D.C., 1961), cert. denied 370 U.S. 911 (1962); Coronet Casuals, Inc., supra, 207 NLRB at 305. " . .. a determina- tion that an employee is not engaged in a §7 activity does not necessarily mean that, if he is discharged for his parti- cipation in the unprotected action, the discharge is `for cause' [within the meaning of Section 10(c)]. That depends on the surrounding circumstances. What is cause in one situation may not be in another." N.L.R B. v. Thayer Com- pany and H N Thayer, 213 F.2d 748, 753, fn. 6 (CA. 1, 1954), cert. denied 348 U.S. 883.5° Moreover, unlawful dis- charges and unlawful denials of reinstatement are to be included in the employer misconduct relevant to evaluating any subsequent employee misconduct.5' B. The Letter to Respondent's Advertisers 1. The facts; Respondent's legal position About July 19, 1973, about 3 weeks after Respondent rejected the complainants' first application for reinstate- ment, all of them (as well as Union Attorney Newell and Union Attorney Hansing) authorized the distribution of the following letter drawn up by Newell. services and have been on strike against KTCR since Friday, June 22, 1973. We, the performers, early in June, decided we want- ed to be represented by a labor union-The American Federation of Television & Radio Artists-a right guaranteed to each of us by law. The management of Station KTCR was duly notified of our decision on June 18, 1973 and reprisals against us followed at once. One of us-Rich Carey-was fired, we were in- dividually questioned in a coercive way as to our Union membership and activities on behalf of the Union, and benefits or wage increases were promised to some-all of which we believe is, in violation of the law and the subject of an Unfair Labor Practice charge filed with the National Labor Relations Board. In direct and unified protest against all these acts, we voted to legally withhold our services until the Sta- tion management would sit down and bargain with our representative - AFTRA! THIS IS A LEGAL STRIKE! The people who are now broadcasting for Station KTCR are not the people who make this Station a lucrative business for the ownership. WE, THE AFTRA PERFORMERS, DID!!! Your message is not being delivered by us. As a sponsor on KTCR, you deserve the profession- al quality you are being charged for, but are not re- ceiving. Don't advertise your product or services on a Station declared Unfair by the thousands of organized consumers in the Twin Cities: Your "Image" will be affected. Our dispute is not with you the sponsor! Protect your advertising dollars. Don't be caught in the middle For the balance of our strike, move your commer- cial sponsorship from Station KTCR. Don't advertise across a picket line! AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS BRANCH OF THE ASSOCIATED ACTORS AND ARTISTS OF AMERICA AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS (AFL-CIO) TWIN CITY LOCAL HAL W. NEWELL 924 Soo Line Bldg Executive Secretary Minneapolis, Minn. 55422 332-7419 July 19, 1973 To All Advertisers on Radio Station KTCR. You doubtless know that all your favorite KTCR air personalities are withholding their professional 50 Respondent does not appear to contend that Carey's rights are affected by any events which occurred after his discriminatory discharge In any event, the foregoing principles would be applicable to him as well 51 As noted, supra, In 5, the instant record indicates that Respondent's refusal to bargain was among the causes of the strike Administrative Law Judge Rasbury's finding that Respondent's refusal to bargain violated Sec 8(a)(5) was reversed by the Board on the basis of a Board decision which has since been overruled by the Board See Trading Port, Inc, 219 NLRB 298 (1975) Because no extant 8(a)(5) finding is present in the instant case, a balance struck by me could not take any unlawful refusal to bargain into account KTCR-AFTRA Performers Copies of this letter were mailed to advertisers on Respondent's stations Ellsworth ascertained the identity of such advertisers by listening to the radio, and their ad- dresses from the telephone directory. The Board found in its Decision that the distribution of this letter, as it appears on its face, was not the kind of conduct which would remove the employees from the pro- tection of the Act (ALJD). I regard this holding as binding on me. In any event, I find persuasive the General Counsel's argument in his brief that where the ultimate product provided by the primary employer is not merchan- dise but, rather, is a service performed by the strikers, it is difficult for a striker to publicize his strike activity to pur- chasers of that service without somehow suggesting that the service was better performed by him than by his re- placement. See Frontier Guard Patrol, Inc., d/b/a Frontier Guard and De Lue, Inc., 161 NLRB 155, 169-170 (1966), enfd. 399 F.2d 716, 724 (C.A. 10, 1968), which held that guard service employees did not lose their reinstatement rights as economic strikers by circulating during their strike a "querulous opinion" regarding the abilities of their re- HENNEPIN BROADCASTING ASSOCIATES 501 placements "to the very customers who had been receiving the services both before and after the strike, and were thus in the best position of all to evaluate their quality." 52 At the hearing before me, Respondent sought to prove that the letter was untruthful. In this connection, General Manager Rock in his testimony characterized as "false" the statements in the letter (a) that "The people who are now broadcasting for station KTCR are not the people who made this station a lucrative station for the owner- ship"; (b) that "We, the AFTRA performers, did"; and (c) that "As a sponsor on KTCR, you deserve the professional quality you are being charged for but not receiving." His tendered reasons for this characterization are summarized below. a. Rock's primary function at the radio stations is to work with the salesmen of air time to advertisers to in- crease the dollar income of the station. During the 20 years prior to the hearing, he has sold about $3 million worth of air time. He was directly or indirectly involved in about 50 percent of the stations' sales of air time. He testified before me that he had an opinion based on reasonable business certainty that the amounts paid to Respondent for air time resulted from the selling abilities of Respondent's sales force among prospective advertisers, and that no advertis- ing had ever been sold because of the performing abilities of any of the strikers, most of whom had been with the stations for only a short time.53 He also testified before me that no sponsor had ever specifically asked for any particu- lar announcer among the strikers. Rock further testified before me that business was better between July 1974 (1 year after the strike began) and July 1975 than between June 1971 and June 1972 (when some of the complainants were announcing on Respondent's stations), an improve- ment which Rock testimonially attributed to the "econo- my" and not to the identity of the announcers.54 In re- sponse to leading questions by Respondent's counsel, Rock testified before me that it makes no difference "who 52 Jefferson Standard, supra, 346 U S 464, on which Respondent principal- ly relies, upheld a television station's discharge of nonstriking technicians because they distributed to the general public , and without revealing the existence of a labor dispute which did not arise from employer unfair labor practices, a handbill disparaging their employer's programming as out-of- date , solely on film , and not covering local events owing to the station's failure to purchase the necessary equipment for local pickups Coca Cola Bottling Works, inc, 186 NLRB 1050, 1054, 1062-64 (1970), enfd in part and affd 466 F 2d 380 (C A D C , 1972), found unprotected by Sec 7 cer- tain economic strikers' distribution of leaflets alleging that the struck employer's pop might be contaminated because the pop bottles were being cleaned and inspected by inexperienced strike replacements , where the leaf- lets were distributed to the general public and asserted that only experi- enced workers were able to detect the alleged health hazard Patterson- Sargent Company, i 15 NLRB 1627 (1956), found that a paint manufacturer did not violate the Act by refusing to reinstate economic strikers because they distributed to the general public certain leaflets alleging that the quality of the employer's paint might have deteriorated because it was being made by inexperienced strike replacements As shown , none of the cases discussed in this footnote involved either an employer which provided services nor- mally performed by the employees involved in the labor dispute, or a strike caused by employer unfair labor practices 53 Rock testified that , not infrequently, Respondent's announcers use theirjobs on Respondent's stations as a means of obtaining experience and exposure needed to obtain announcing jobs on bigger stations which pay more 54 Prior to the strike, only three of the claimants (Carey, Ellsworth, and Hubbard) had been working for Respondent for more than a year mouthed the ads . . . . [a]s long as they have a reasonably sounding voice and they can read the English language." Rock then testified as follows: JUDGE SHERMAN: Would it be fair to say, Mr. Rock, that aside from these requests that you have received that Mr. Cunning do the commercials, that no pur- chaser of advertising time from you has ever brought up the body of the announcing one way or the other? THE WITNESS: They brought up the quality, ma'am, but they've never asked for a specific voice where they have for Mr. Cunning. JUDGE SHERMAN: Have they complained? THE WITNESS: You get people-some guy might like somebody and the next guy may not like them. You get complaints and compliments all the time. I'm talk- ing about-are you asking me whether anybody has brought our radio station because of a certain an- nouncer? JUDGE SHERMAN: No, I'm not asking that. I'm ask- ing whether anybody has mentioned the matter one way or the other, saying that they will not buy because of an announcer? THE WITNESS: We've had that happen, surely. But we usually get around it, sell around it. That's a com- mon thing in broadcasting. That's not with our sta- tion, with any station. At the first hearing, Rock testified that the announcers' duties include selection of records to be played (with the responsibility of selecting records which conformed to Respondent's country-western format), properly spacing music and commercial announcements, writing copy, pro- ducing commercials, making sure that all contracted-for commercial announcements are in fact made, sufficiently spacing commercial announcements by competing spon- sors, and timely completing taped commercials.55 Much of this testimony was corroborated by Cunning's testimony at the first hearing.56 Further, Cunning testified before me that the engineer-announcers had occasion to handle ad- vertisers' requests for changes in copy. Cunning testified at the first hearing, "How [the engineer-announcers] get [list- ed commercials] in is to be left to their best judgment so long as it is done in good taste" in order to "accomplish a pleasing air sound that will attract listeners and do an ef- fective job of selling our advertisers' products and services to those listeners." Before me, Cunning testified that in many cases, an engineer-announcer has a personal rela- tionship with Respondent's advertisers and is held out to the public as a representative of the advertiser Moreover, at the hearing before me, when asked whether he had dis- charged people "because you did not think their voice on the air was the kind you wanted or the kind that felt listen- er loyalty or did not fit your image," he replied, "I would assume that those are logical reasons for people having been discharged." Cunning also testified at the hearing be- ss Indeed, Respondent contends that it discharged engineer-announcer Carey, who Cunning testified has a "fine voice," because of certain alleged deficiencies in his performance of some of these duties 56 Much of Rock's and Cunning's testimony in this respect was also cor- roborated by the complainants' testimony at the first hearing In addition, Hubbard testified without contradiction that the announcer selects the ma- terial to be used on a newscast to be delivered by him 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore me that he had discharged people because they re- fused to follow the format with respect to the type of music that should be played. Striking Engineer-Announcer Ellsworth testified at the first hearing to the opinion that "speaking from the an- nouncing aspect, not the selling aspect," he believed that the engineer-announcers were the people who made the stations a lucrative business. b. Rock testified in effect that the allegedly objection- able reference to "AFTRA PERFORMERS" was "false" because none of the engineer-announcers applied for Union membership until June 14, 1973, 8 days before the strike. c. Rock characterized as "false" the allegation that Respondent's sponsors were not receiving the "professional quality" of performers which they were paying for, on the ground that the announcers that took over after the strike began had as "professional" a quality as the complainants. Ellsworth testified at the first hearing that, in his opinion, "Initially [the sponsors] weren't getting quite as profession- al a sound as they were with us." Rock further testified that before making the foregoing statements none of the engineer-announcers had made any effort to determine their truth or falsity through him or (to his knowledge) anyone else working for Respondent.57 2. Analysis and Program Manager Cunning about announcers' duties, which testimony was largely directed toward Respondent's explanations for engineer-announcer Carey's unlawful dis- charge, shows that when testifying about the Union's July 1973 letter Rock was consciously understating his own evaluation of the announcers' economic contribution to the radio stations. Whatever conclusion as to these disputed matters might be reached by a disinterested third person, the strikers' expression of views about them falls well with- in the bounds of legitimate debate in the context of a labor dispute See Old Dominion Branch No. 496, National Associ- ation of Letter Carriers, AFL-CIO, v. Austin, 418 U.S. 264 (1974). In any event, most of the alleged misrepresentations are immaterial to the letter when read in light of its proposed audience. The letter constituted an attempt to discourage advertisers from purchasing air time from Respondent's stations by telling them that Respondent had committed certain unfair labor practices, that the present announcing staff was inferior to the prestrike staff, and that advertise- ments on these stations during the strike would adversely affect the advertisers' image among consumers who were themselves unionized. The force of such arguments would hardly have been diminished by inclusion of Station Man- ager Rock's assertion that Respondent's profits were virtu- ally unaffected by its announcers' professional abilities, or by inclusion of the statement that the announcers had not joined the Union until a few days before the strike. Even accepting Respondent's tacit assumption that the July 19, 1973, letter should be read without regard to the advertisers' likely interests, I find that the record fails to show that the letter was false. Thus, the letter neither ex- pressly nor by implication claims that the striking an- nouncers were union members during ail or much of the period during which they were announcing over Respondent's stations. Further, the letter's assertion that the stations' prosperity was attributable to the striking rather than to the incumbent announcers, and the further assertion that the incumbent announcers lacked "profes- sional quality," are statements of opinion as to matters sus- ceptible of honest disagreement between the parties to this labor dispute. As engineer-announcer Ellsworth's testimo- ny illustrates, relatively inexperienced announcers who have a normal sense of personal and professional self-re- spect and have struck to protest supposed employer mis- treatment are quite 1_.':e1y to value their own services more highly, and the services of their replacements and of sales personnel less highly, than does the member of manage- ment (Rock) who has for years spent most of his time on sales and who was responsible for much of the alleged em- ployer mistreatment. Indeed, the testimony of both Rock 57 Rock testified that the complainants had "no access to our books They can get the records from the FCC if they want to" It seems to me highly unlikely that Respondent's financial records would show whether its prosperity was due to its salesmen , its announcers, both such factors, or a number of factors including one and/or the other Nor did Respondent produce such records at the hearing . Cf. Golden State Bottling Co , Formerly Pepsi-Cola Bottling Co of Sacramento v N L R B, 414 U S 168, 174 (1973), International Union, United l utomobrle, Aerospace and Agricultural Imple- ment Workers of America (UA W) [Gyrodyne] v N L R B, 459 F 2d 1329, 1335-40 (C A D C, 1972) C. The Picketing and Handbtlling at Advertisers' Premises 1. Facts By letter dated August 16, 1973, Union Representative Newell stated that the Union, "on behalf of the employees listed below [i.e., the nine complainants], hereby uncondi- tionally applies for their reinstatement or substantially equivalent employment." Rock's reply letter, dated August 31, 1973, contained no offer of reinstatement. Thereafter, on September 6, 1973, the Board's Regional Office issued the complaint herein, alleging that Respondent unlawfully interrogated employees, granted wage increases, dis- charged Carey and certain strikers, and refused to bargain with the Union. On February 11, 1974, Administrative Law Judge Rasbury issued his Decision sustaining the alle- gations in the complaint and, inter aha, recommending that Respondent be required to offer reinstatement to all nine complainants and to bargain with the Union. Respondent filed exceptions thereto about March 4, 1974. On Decem- ber 6, 1974, the Board issued its Decision and Order, sub- stantially adopting Administrative Law Judge Rasbury's recommended Order. On February 13, 1975, the Board filed its petition to enforce the Order and, on March 21, 1975, the Eighth Circuit remanded the case to the Board. Between about November 20, 1974 (after the issuance of Administrative Law Judge Rasbury's Decision), and May 10, 1975 (after the court's remand), Walby, Bortnem, Gus- tafson, and Ellsworth distributed two kinds of handbills in front of five automobile dealerships which advertised on Respondent's stations. One kind of handbill read as fol- lows: HENNEPIN BROADCASTING ASSOCIATES 503 KTCR AM/FM UNFAIR PERFORMERS ON STRIKE DO NOT PATRONIZE58 AND DO NOT LISTEN TO KTCR AM & FM IN JUNE OF 1973, THE MAJORITY OF THE ANNOUNCERS EM- PLOYED BY KTCR AM/FM TRIED TO ORGANIZE THE RADIO STA- TIONS, THEY WERE PREVIOUSLY NON-UNION UPON FINDING OUT ABOUT THE ORGANIZING ATTEMPT, THE STATION FIRED ALL OF THE EMPLOYEES INVOLVED IN UNION ACTIVITY UNFAIR LABOR PRACTICE CHARGES WERE FILED AGAINST THE STATION WITH THE NATIONAL LABOR RELATIONS BOARD AN AD- MINISTRATIVE LAW JUDGE OF THE NLRB HEARD THE CASE AND RENDERED THE DECISION THAT FOUND THE EMPLOYER GUILTY OF SEVERAL UNFAIR LABOR PRACTICES HE ORDERED IMMEDI- ATE AND FULL REINSTATEMENT WITH BACK PAY FOR ALL THE DISCHARGED EMPLOYEES AND BECAUSE OF THE UNFAIR LABOR PRACTICES, THE JUDGE ORDERED KTCR TO BARGAIN WITH THE UNION THIS DECISION WAS RENDERED IN FEBRUARY OF 1974 THE COMPANY CONTINUES TO IGNORE THE ORDER OF THE AD- MINISTRATIVE LAW JUDGE THROUGH APPEALS THEIR UNFAIR LABOR PRACTICES STILL CONTINUE, AND WE, THE ANNOUNCERS, HAVE BEEN UNEMPLOYED SINCE JUNE 22, 1973 PLEASE DO NOT PATRONIZE OR LISTEN TO KTCR AM OR FM OUR DISPUTE IS WITH NO ONE EXCEPT KTCR AM AND FM AFTRA, TWIN CITY LOCAL, AFL-CIO Another kind of handbill read: AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS Twin City Local, AFL-CIO 924 Soo Line Bldg. Mpls., Minnesota 55402 The idea of distributing these documents at the dealer- ships was conceived by Ellsworth , who brought the idea to the Union for its approval . Ellsworth prepared these docu- ments with advice from Union Representative Newell and Union Attorney Hansing. The form, content, and distribu- tions of these documents were approved by the Union, Ellsworth, Walby, Bortnem, and Gustafson . Carey, Camp- bell, Peterson, and McKeever were not contacted about the matter, and there is no evidence that Hubbard agreed to the circulation and distribution of these documents. Ellsworth, Walby, Gustafson , and Bortnem distributed these handbills to passers-by and to persons about to enter the dealerships who appeared to be potential automobile purchasers . Some of these prospective purchasers there- upon walked away. Ellsworth also gave handbills to some deliverymen, and told them that this was not a dispute with the dealer they were in front of and to make the deliveries. The record affirmatively shows that at least one delivery was made, and there is no evidence that any 3eliveries were not made. These four strikers (Walby, Bortnem, Gustafson, and Ellsworth) also picketed in front of these four dealerships with picket signs reading: AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS-TWIN CITY LOCAL AFL-CIO DISC JOCKEYS AND NEWSMEN OF RADIO STATION KTCR AM & FM ON STRIKE TO PROTEST UNFAIR LABOR PRACTICES AND OBTAIN RECOGNITION AND UNION STANDARDS PLEASE HELP US IN OUR STRUGGLE TO REDRESS THESE UNFAIR LABOR PRACTICES AND TO OBTAIN A FAIR UNION CONTRACT' PLEASE DON'T PATRONIZE59 THANK YOU' The purpose of this leaflet is to inform particularly those of you who believe in the rights of working men that the above named firm continues to do business with KTCR AM & FM. We think you will agree that this continued association is contrary to the best inter- ests of working people and the public. NOTE: These statements are addressed exclusively to you as customers and individual members of the pub- lic. They are not directed to Employers. Further, this appeal is not a request to employees to refuse to pick up, deliver or transport, or to refuse to perform any service. 58 When handbills were distributed at the Ridgedale Ford dealership, that dealership's name was stamped after the first "patronize" in letters thinner than but otherwise about the same size as the radio stations' call letters When handbills were distributed at other dealerships, some had the dealership's name stamped after "patronize" and some left that space blank TUNE OUT KTCR PERFORMERS ON STRIKE AMERICAN FEDERATION OF TELEVISION & RADIO ARTISTS (AFL-CIO) TWIN CITY LOCAL Ellsworth testified that this picketing occurred only when Respondent was making a "remote broadcast" from the dealership in question and, therefore, one of Respondent's announcers was on the premises of the dealership. Like- wise, all the picketing at the dealerships which Cunning both saw and testified about occurred while Respondent was conducting a "remote broadcast" from the site. 60 Rock testified that on a Friday in the first part of December (i.e., December 6 or 13), he and sales manager Ken Fernstihl saw Ellsworth, Gustafson and Bortnem picketing in front of Lyndahl Oldsmobile about an hour before Respondent began to simulate a broadcast from Lyndahl.61 On the ba- sis of the witnesses' demeanor, I credit Ellsworth's testimo- ny that he never picketed at any of the dealerships unless he could ascertain by looking into a window that one of Respondent's announcers was doing a "live remote." In late December 1974, Respondent filed a timely charge, based on this picketing and handbilling, against the 59 See preceding footnote 60 Cunning testified that on one occasion someone interposed a picket sign between a potential customer and the doorway to the dealership The record fails to show this picket's identity See supra, fn 29 61 Rock testified that Respondent was "scheduled to be there" when the picketing took place, and "They figured that we were going to be there at that particular time and we weren't there " 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, Union representative Newell, and strikers Gustaf- son, Walby, Bortnem and Ellsworth. In March 1975, this charge was dismissed by then General Counsel Peter Nash. On September 29, 1975, after the hearing before me, the United States District Court for the District of Minnesota dismissed a suit by Respondent herein against Nash and the Regional Director for Region 8 requesting that they be required to issue a complaint on its charge. Hennepin Broadcasting Associates, Inc. v. N.L.R.B., 408 F.2d 932 (1975).62 2. Analysis I conclude that Ellsworth, Bortnem, Walby, and Gustaf- son did not engage in any improper activity by distributing to the five dealerships' prospective customers handbills urging them not to buy automobiles from such dealerships, expressly or impliedly because they continued to advertise on Respondent's radio stations . Such handbilling activity was not rendered improper by the fact that it occurred while Respondent was not engaging in "remote broad- casts" from the dealership site, as well as when Respondent was so engaged . Local No 662, Radio and Television Engi- neers (Middle South Broadcasting Co.), 133 NLRB 1698, 1704-06 ( 1961).63 I further conclude that these four engi- neer-announcers did not engage in improper conduct by picketing at the premises of these dealerships at times when an announcer employed by Respondent was actually en- gaged in a "remote broadcast " at the picketed site 64 D. The Motive for and the Actual and Apprehended Effects of the Strike's Prosecution 1. Introduction Respondent further contends that no reinstatement or- der should issue with respect to the claimants because of the actual and apprehended injury inflicted on Respondent and its advertisers by the claimants' prosecution of the in- stant dispute, because of the motivations which allegedly led the claimants to continue such prosecution, and be- cause the methods by which they prosecuted that dispute would allegedly contribute nothing toward its peaceful res- olution. Respondent relies mostly, although not entirely, on the same evidence in support of all these claims. 62 The court also dismissed Respondent's Sec 303 suit as to the four individual strikers and to the extent that punitive damages were sought To the extent that compensatory damages were sought against the Union, that proceeding is still pending 63 See also N L R B v Servette, Inc, 377 U S 46 (1964), American Federa- tion of Television and Radio Artists, San Francisco Local, et a! (Great Western Broadcasting Corporation, d/b/a KXTV), 150 NLRB 467 (1964), affd 356 F 2d 434 (C A 9, 1966), cert denied 384 U S 1002 (1966) 64 Local 25, National Association of Broadcast Employees & Technicians, AFL-CIO-CLC (Taft Broadcasting Company, Inc), 194 NLRB 162, 164-166 (1971) 1 would reach the same result if I accepted Rock's discredited testi- mony that on one occasion picketing took place at a dealership at a time when a "remote broadcast" had been scheduled but was not in fact con- ducted Laborers Union Local 1290 (Walters Foundation, Inc), 195 NLRB 370 (1972), but see Taft, supra 2. Facts a. Extent to which Respondent's operations may be economically vulnerable Respondent's brief asserts that its business is "economi- cally marginal" and that this was "well known to the engi- neer-announcers." Rock testified that the engineer-an- nouncers had no access to Respondent's books at its office, although the engineer-announcers could get Respondent's records from the FCC. Respondent's AM station has the lowest power and the smallest audience of the AM stations in the market area. About 26 AM and FM radio stations serve the metropolitan area served by Respondent 's radio stations . Respondent's counsel offered to prove that KTCR-AM's sales were one-thirtieth or one-sixtieth of those made by WCCO, the largest radio station in the area; that KTCR-AM's radio audience was about one-thirtieth of WCCO's; and that KTCR-AM's spot rate is one-tenth of WCCO's.65 Cunning testified that "very possibly," other radio stations in the area played country-western music at that time. b. Actual damage inflicted Cunning testified that on November 22, 1974, Lyndahl Oldsmobile's manager telephoned him that Lyndahl was curtailing Respondent's "remote broadcast" from that dealership's premises because persons driving along a near- by freeway would conclude that Lyndahl had a dispute with its own employees, and the pickets had agreed to go away if Respondent would stop broadcasting. According to Cunning, Respondent then resorted to tape commercials for Lyndahl but "we were paid for those. I don't think it resulted in lost revenue. I don't know." Rock testified that "the last two weeks of [December 1974] we lost [Lyndahl], we didn't have any broadcasts with them." Rock's testimo- ny suggests that Lyndahl attributed this withdrawal to the labor dispute. Rock also testified that, in consequence of the leaflets distributed in front of the five dealerships, these dealerships were more reluctant than before to buy radio time. He further testified that, in consequence of such dis- tribution and because the automobile business was bad at the time, Respondent lost all its business from Ridgedale Ford, although Respondent's sales staff was able to sell that time elsewhere at the same price. Cunning testified that because of the scheduling prob- lems caused by the strike, Respondent permanently lost the account of National Surplus, a retail store. He further testi- fied that, because the strike began on Friday night, in his opinion it inflicted damage on certain advertisers whose business is best on Friday nights and/or weekends, or which were running special events that weekend. Cunning named several automobile dealerships (including Lyn- dahl),66 National Surplus, a motion picture theatre, an 65 In effect I rejected this offer on the ground that the record already contained enough factual evidence in connection with Respondent 's conten- tion that advertisers bought time on the AM station because of the sales ability and personal relationships of Respondent's salesmen, the context in which the offer was made 66 Two of the dealerships named by Cunning, Midway Ford , and Prestige HENNEPIN BROADCASTING ASSOCIATES 505 amusement park, a racetrack, a restaurant, three bars, three beer manufacturers, a firm which sold coupon book- lets, and two sellers of tract housing. Further, Cunning named nine additional advertisers who in his opinion were dependent on the heavier listening of weekend radio to reach potential customers 67 In addition, Cunning testified that certain bars use Respondent's broadcasts as an attrac- tion for customers. Further, Cunning testified that certain religious groups could have had their income injured if Re- spondent had been unable to carry their weekly broadcasts that weekend. Cunning testified that in his opinion, all the claimants except the inexperienced Campbell must have anticipated the adverse impact on advertisers about which he testified.65 c. Management 's opinion regarding effect of July 1973 letter Cunning testified before me that in his opinion, based on reasonable broadcasting certainty , the July 1973 letter "would harm the business of the station for two reasons, the phrase `don't be caught in the middle ' and `don't adver- tise across a picket line .' The phrase `don't be caught in the middle' implies that their businesses could be hurt if they continue to advertise." Rock testified before me that in his opinion, based on reasonable broadcasting certainty, "any- body" would stop advertising over Respondent's stations if they believed the assertions in the letter that "The people who are now broadcasting for Station KTCR are not the people who make this station a lucrative business for the ownership. We, the AFTRA performers, did. Your mes- sage is not being delivered by us. As a sponsor on KTCR you deserve the professional quality you are being charged for but are not receiving. Your image will be affected." There is no evidence regarding the actual impact, if any, of this letter . Cunning testified that he did not see how telling advertisers not to advertise on Respondents' sta- tions could in any way bring about a peaceful solution to this labor problem. d. Actual progress of Respondent 's business between June 1971 and June 1975 Rock testified that there was a "considerable drop" in business between the fiscal year ending in June 1972 and the fiscal year ending in June 1973, just after the strike began. During the fiscal year ending in June 1973, the AM Lincoln-Mercury , had no commercials scheduled on Respondent's stations until Saturday, when such commercials were broadcast as originally sched- uled Cunning testified that the audience for these commercials might have been diminished because listeners who heard the 5 p in Friday signoff might not have found out by 9 a in on Saturday , when the earliest of these commercials was scheduled , that the stations had resumed broadcasting 67 Respondent's program logs for the day of the strike show that on that day Respondent broadcast advertisements for a number of the allegedly damaged advertisers named by Cunning Most but not all of these adver- tisements were carved before the 5 p in shutdown, and hence would likely have been heard by an audience different from the audience later that day 68 Engineer-announcer Peterson testified at the first hearing that he knew that Respondent had agreed with its advertisers to broadcast advertisements after 5 p in , the hour of the shutdown , and that the advertisers were relying on those advertisements as a stimulation of their business the next day When Respondent's counsel said , "But at the time you didn't give it a thought9", Peterson replied, "That's correct" station's gross profit before taxes and bonuses exceeded $100,000 on revenues exceeding $500,000 and the FM sta- tion, which was then less than a year old, lost about $40,000 on revenues of about $50,000. Rock further testi- fied that the following year, business improved. He attri- buted the changes between June 1971 and June 1974 to the economy. Also, Rock testified that as compared to the fis- cal year ending in June 1973, Respondent's FM profits for the fiscal year ending in June 1975 were "up by 500 percent or maybe 1000 percent," that the "AM is down," and that Respondent probably made lower profits because, al- though it did more business, expenses were higher. e. Ellsworth's purpose in prosecuting the strike Ellsworth testified that the purpose of the strike was to protest Carey's discharge and Respondent's refusal to bar- gain, and the strikers would have returned to work if Carey had been reinstated, as Respondent has never offered to do. When asked whether the purpose of distributing the 1974-75 handbills was to interfere as much as possible with patrons dealing with the automobile dealerships in ques- tion, he replied, "I think it [the leaflets] explained our posi- tion. That was it. If it applied pressure, well, good." Ells- worth further testified, in effect, that the July 1973 letter was sent out to let the advertisers know there was a labor dispute and get them to advertise on another station so long as the strike was in effect. In addition, Ellsworth testi- fied that "under the same circumstances" he would turn the radio stations off again, because "how else would you go on strike?" 69 When asked how much money the stations would have to lose because of the July 1973 letter to adver- tisers, and how long the radio stations would have to re- main off the air, before he would have told management that he would go back to work if management would rehire Carey and recognize the Union, Ellsworth replied that he did not know, that he thought management had been asked on earlier occasions to rehire Carey and bargain with the Union, and that he "was waiting for [management] to talk to me" about these matters. Also, he testified that he him- self "wasn't thinking . . one way or the other" how long the radio stations stayed off the air or how much money Respondent lost (although he did not know the other com- plainants' views in this respect), and that it was not his "concern" when Respondent found out about the shut- down or whether the stations ever went back on the air; "We were on strike, that was their problem." In addition, Rock testified without any objection on hearsay grounds, and without contradiction by Newell, Ellsworth, or Pe- terson, that in December 1974 Peterson told Rock that Ellsworth had told Peterson that Newell had "told him or told them that they would have [Rock] on his knees by Tuesday," the strike having started on a Friday. Ellsworth credibly testified that it was not his intention to destroy Respondent's business, and credibly denied the assertion of Respondent's counsel that the strike " was un- 69 Respondent's counsel at this point said, "You go on strike by complet- ing your tour and going out on strike " At this point, counsel was apparently contending that the engineer-announcers should have completed their scheduled shifts before sinking Cf, counsel's arguments summarized supra, sec f,B,2 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dertaken . . . to destroy as much as you could of the busi- ness, and after you had done that, then you would make your demands." When asked, "If you were offered .. . reinstatement and accepted an offer to your former posi- tion of employment, what would be your attitude and con- duct with respect to loyalty and fidelity to your employ- er?", he replied, "I'd go back to work with them, there's no problem," and that he would obey all lawful orders to do his utmost to promote the business. I believe his testimony in this respect was sincere. Ellsworth also testified that he knew that Company President Tedesco owned the radio stations, that Ellsworth "imagine[d]" the other complain- ants knew this too, that he "imagine[d]" Tedesco could fire Rock, that Tedesco is not usually around so Rock handles the managing, and that Ellsworth had made no effort be- fore the strike to find out whether Tedesco was in town or available. When asked whether, when striking, Ellsworth cared about Tedesco's radio station or his rights, Ellsworth replied, "I cared about my rights, our rights ... I'm not involved with Mr. Tedesco, I hardly know the man." Com- pany Vice President Rock testified that he himself is Respondent's principal exe. utive officer in terms of con- ducting the business, that Tedesco does not participate in the operation o: the business, and that Tedesco does not under ordinary circumstances reside iii Minneapolis. Ells- worth credibly testified before me that he did not approach Rock or Tedesco and threaten to strike if Carey was not reinstated because "I felt I'd get fired .. . I think a war was going on to get the people who were trying to put [the Union] into the station. ..." At the first hearing, Ells- worth and Gustafson testified that they decided to strike partly because they were afraid of losing their fobs as Car- ey had. 3. Analysis Respondent seems tc be contending that the actual and threatened damage to Respondent and advertisers flowing from the claimants' activities following the initiation of the strike has some bearing on their reinstatement rights. For this reason, I have set forth at some length the evidence relating to the damage issue. I conclude that the actual damage to Respondent and its advertisers was modest and, therefore, that the testimonial opinions of Rock and Cun- ning about the possible damage-which opinions were ten- dered after they had acquired all of the actual damage knowledge about which they testified-were much more gloomy than a disinterested observer's would have been. However, my finding that the complainants did not act improperly in bringing the pressure calls for the conclusion that they retai.i reinstatement rights no matter how much damage such pressure may have imposed or been desired on the economic prosperity of Respondent and its custom- ers. See N L.R B. v. Upholsterers Frame & Bedding Workers Twin City Local No. 61 [Minneapolis House Furnishing Company], 331 r.2d 561, 564 (C.A. 8, 1964); N.L.R.B. v. Star Publishing Co., 97 F.2d 465, 470 (C.A. 9, 1938); Local 14055, United Steelworkers of America, AFL-CIO [Dow Chemical Co.] v. N.L.R.B., 524 F.2d 853 (C.A.D.C., 1975). As Judge Learned Hand observed in Peter Cailler Kohler, supra, 130 F.2d at 506: ... so long as the [concerted] "activity" is not un- lawful, we can see no justification for making it the occasion for a discharge; a union may subsidize prop- aganda, distribute broadsides, support political movements, and in any other way further its cause or that of others whom it wishes to win to its side. Such activities may be highly prejudicial to its employer; his customers may refuse to deal with him, he may incur the enmity of many in the community whose disfavor will bear hard upon him; but the statute forbids him by a discharge to rid himself of those who lay such burdens upon him. Congress has weighed the conflict of his interest with theirs, and has pro tanto shorn him of his powers. Although Cunning may have been sincere in his testimony that the complainants' activity could not have assisted in bringing about a peaceful solution to this labor dispute, he was essentially expressing a difference with the Congress, whose views must of course prevail over his. See Amalga- mated Association, supra, 340 U.S. at 397. Accordingly, the allegedly disqualifying conduct and views discussed in the testimony of engineer-announcer Ellsworth consists of conduct protected or unrestrained by the Act, and an expressed intention to repeat such conduct in like circumstances. The worst that can be said is that approaches to Tedesco or other management representa- tives might have been more productive than the methods the employees in fact chose. Respondent is in a poor posi- tion indeed to urge even this much, because its own 1973 discriminatory discharge of Carey led Ellsworth to fear a like fate if he sought a direct confrontation with manage- ment, and as of the close of the 1975 hearing, Respondent had not yet made an attempt to remove the cause of the strike by offering Carey reinstatement. In any event, as the Supreme Court said in finding protected an employee walkout in protest of what the employees regarded as an excessively cold work place, "The fact that the Company was already making every effort to repair the furnace and bring heat into the shop that morning does not change the nature of the controversy that caused the walkout. At the very most, the fact might tend to indicate that the conduct of the men in leaving was unnecessary and unwise, and it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not." Washington Aluminum, supra, 370 U.S. at 16. The Court went on to quote the following language from N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 344 (1938): "The wisdom or unwisdom of the men, their justification or lack of it, in attributing to respondent an unreasonable or arbitrary attitude in connection with the negotiations, cannot determine whether, when they struck, they did so as a consequence of or in connection with a current labor dispute " For similar reasons, the concerted pressure which the claimants imposed on Respondent following the strike's in- ception fails to establish that the strike initially had or later acquired an improper purpose 70 Rather, the representa- 70 Accordingly, I need not and do not consider the effect of any such HENNEPIN BROADCASTING ASSOCIATES tions in the 1973 letter and 1974 handbills about the com- plainants' purposes in thus attempting to impose more and different economic pressure on Respondent are corrobo- rated by the events following the strike 's inception; name- ly, the discrimination against the striking complainants and Respondent's continued failure to remedy its unfair labor practices notwithstanding the orders issued by Administra- tive Law Judge Rasbury and the Board. The sincerity of such expressions is in no way impugned by any willingness in the complainants to inflict severe economic losses on Respondent; legitimate economic weapons for legitimate purposes "frequently [have] the most serious effect upon individual workers and productive enterprises" (N L.R.B. v. Insurance Agents' International Union AFL-CIO [Pru- dential Insurance Co.], 361 U.S. 477, 489 (1960) ). See also Minneapolis Home Furnishing, supra, 331 F.2d at 564 (C.A. 8); Fleetwood, supra, 389 U.S. at 381 ("Frequently a strike affects the level of production and the number of jobs"); Dow Chemical, supra. E. Conclusions For the foregoing reasons, I conclude that nothing in the Union's or the complainants' conduct after the strike be- gan warrants modification of their reinstatement and back- pay rights as unfair labor practice strikers and as employ- ees discnminatonly denied employment. Indeed, I would reach the same conclusion on the assumption that the strike was at its inception an economic strike. In this con- nection, I note the statement by Respondent's counsel at the hearing before me that he had arranged for job offers to all the complainants at another radio station owned by Company owner Tedesco. III. REACTIONS TO THE CLAIMANTS BY RESPONDENT'S PRESENT STAFF A. Cunning's and Rock's Testimony Cunning testified before me that in his opinion it would be impossible for Respondent to reemploy the complain- ants (including Walby but not Campbell) "primarily be- cause of the amount of trust that you have to place in them to do the kind of work that they do. If they walk off with no notice, put the station off the air, make no demands or say if you don't do this, we're going to do that, if they .. . destroy any trust that you have had to place in them by nature of the kind of work they do, it's hard to re-establish that trust . . . in this previous hearing we had testimony that they had a meeting at one of the announcers' houses [i.e., Carey's house] where a number of these people were in attendance, and it was agreed that they would put the stations off the air. Some of the people . . . were not there but were called by telephone, and as I understand the situ- ation again, it was a unanimous decision of those that were involved." 71 improper additional purpose on the employees' reinstatement rights See Colonial Haven Nursing Home, Inc, 218 NLRB 1007 (1975) 71 As the General Counsel pointed out at this puncture, the record shows that engineer-announcer McKeever advised Carey by telephone that Mc- 507 Rock testified before me that when leaving the stations in the engineer-announcers' control when he was not around, he had absolute trust in their loyalty and responsi- bilities to Respondent and under the Federal Communica- tions Act and FCC regulations until the stations were shut off,72 and that if he was compelled to rehire the complain- ants and did not quit, he would "absolutely" have to have somebody there to watch them at all times, and "No way" could repose his previous high degree of trust and confi- dence in their loyalty. He further testified that if any of the complainants (including Walby but not Campbell) came back, he himself would quit "because of the trust that's been put in. My job is to go home at night and not to have to worry about whether or not my station is going to be shut on or shut off." Further, Rock testified, his sales staff, practically all of whom had been with Rock for more than 10 years and without whose services (in his opinion) the station would have little value, had threatened to resign if any of the complainants came back. B. Analysis I regard the foregoing testimony as immaterial to the propriety of a reinstatement and backpay order herein. Cunning and Rock testified, in essence, that they regarded most or all of the complainants as untrustworthy-and, therefore, undesirable-employees because they had en- gaged in conduct which I have found was protected by Section 7 of the Act. However, Sections 7 and 8(a)(1) and (3) were enacted for the very purpose of compelling em- ployers to retain employees whom they want to get rid of because such employers regard such employees' protected concerted activity as rendering them untrustworthy and undesirable. Indeed, because Cunning and Rock based their opinion of the complainants partly on factual mis- statements about what they did in connection with the shutdown (see supra, fns. 71-72), to disqualify the com- plainants for reinstatement because of such misstatements would do violence to the principle that the Act "is violated if an employee is discharged for misconduct arising out of a protected activity, despite the employer's good faith, when it is shown that the misconduct never occurred." Burnup & Sims, supra, 379 U.S. at 23 Likewise immaterial to the disposition of this case is Rock's testimony that the complainants' protected activity led him to conclude that supervising them in the future would be unduly burdensome, that if any of them returned to work he would quit, and that the sales force had threat- ened to quit if any of the claimants returned. An employee's Section 7 rights would receive little protection if such attitudes by other personnel could justify top management's exclusion from the work force of employees Keever could not come to the meeting, whereupon Carey replied that Mc- Keever "could go along with the majority at the meeting, and they'd count on [McKeever's] vote with the majority and [Carey would] later inform [McKeever] what the decision was " McKeever participated in the strike and testified that he was a "principal" in turning the radio station off the air 72 In this connection, he asserted , in effect, that the engineer-announcers had shut off the stations "without warning" and "without making de- mands" As found supra, sec I,C, his statements in this connection were inaccurate, as were Cunning' s as well 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom it regarded as having less value to the enterprise.73 See N.L.R.B v. Erie Resistor Corp, et al., 373 U.S. 221, 228-229 (1963). Indeed, because Rock decided on most of the discharges, to withhold a reinstatement order because of his testimony in this respect would come close to saying that the very views which motivated an unlawful discharge would excuse the employer from remedying it. Moreover, I conclude that Rock was somewhat overstating his opinion of his sales staff's alleged distress at the strikers' tactics, in view of Rock's offer to Peterson of a salesman's job not- withstanding Peterson's approval of the July 1973 letter urging Respondent's advertisers not to advertise on Respondent's stations. IV. OTHER CONTENTIONS RAISED BY THE PARTIES B. Respondent's Attack on the Bargaining Order Respondent's contention that the bargaining order should be withdrawn because of improper conduct by the Union is rendered unsupportable by my finding that the Union did not engage in improper conduct. Accordingly, there is no occasion, in order to determine the appropriate- ness of the bargaining order, to balance the Union's al- leged unlawful conduct, most of it committed after Re- spondent had unlawfully denied employment to every union adherent shown to be in Respondent's employ, against the gravity of Respondent's conduct. See Daniel A. Donovan, et al. v. N L.R.B, 520 F.2d 1316, 1320-23 (C.A. 2, 1975), enfg. 206 NLRB 688, 689 (1973); cf. the cases cited supra, section II,A. A. Respondent's Reliance on the Petrillo Act Respondent contends that in any event, the backpay or- der herein is improper because of the language of 47 U.S.C. §506 (a)(2)-(4) (the "Lea Act" or the "Petrillo Act"), which forbids certain pressures to compel a licensee to make pay- ments "on account of failure to give .. . employment to any person or persons . . . in excess of the number of em- ployees needed by such licensee to perform actual serv- ices," to pay "more than once for services performed," or to make payments "for services ... which are not to be performed." However, Section 506(c) renders Section 506(a) inapplicable to "the enforcement ... by means lawfully employed . . . of any legal obligation . . . hereaf- ter incurred." I conclude that this language renders Section 506(a) inapplicable to Board orders requiring backpay to employees who are unlawfully denied employment. See Gremio de Prensa, Radio, Teatro y Television de Puerto Rico v. Voice of Puerto Rico Inc., 121 F.S. 63 (P.R., San Juan Div.). 73 In any event, there is a considerable difference between advancing res- ignation threats to a superior who feels the same way , and actually quitting a job held for many years Quite possibly, the sales force might change their minds if Rock or other members of management put a good face on the prospect of the claimants' return Cf N L R B v Cast Optics Corporation, 458 F 2d 398, 408 (C A 3, 1972), cert denied 409 U S 850 (1972), and cases cited C. The Union's Motion for Attorney's Fees and All Costs Incurred At the close of the 1975 hearing, the Union moved for an order requiring Respondent to pay it "attorney's fees and all costs incurred by the Union in having to participate in this hearing." The Union has filed no brief in this proceed- ing, and I am unclear whether its motion extends to expen- ses incurred in the 1973 hearing. In any event, although Respondent's contentions herein have been found unmeri- torious, I regard some of them as debatable rather than frivolous. Accordingly, the Union's motion is denied. Heck's, Inc., 215 NLRB 765 (1974). RECOMMENDED ORDER For the foregoing reasons, it is recommended that the Board reaffirm its order of December 6, 1974.74 74 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes