Hennepin Broadcasting Associates, Inc.

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hennepin Broadcasting Associates, Inc. andAmerican Federation of Television and Radio Artists, Twin City Local, AFL-CIO. Case 18-CA-3908 December 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 11, 1974,- Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.' Respondent operates two radio stations at separate locations in the Minneapolis area. In early June 1973' Respondent employed 10 announcer-engineers at its two stations. Following discussions among these employees about the feasibility of having a union repre- sent them, two employees, Carey and Ellsworth, ar- ranged a meeting with the Union at Carey's house on June 10. The meeting was attended by 7 of the 10 employees. By June 14 all seven of these employees had signed authorization cards.' On June 15, the Union in a letter to Respondent stated that the Union repre- sented a majority of Respondent's employees and de- manded recognition. The Union also filed a petition for an election with the Board on June 18. The allegations presented in this case essentially arise from Respon- dent's conduct during the period of June 18-22. We agree with the findings by the Administrative Law Judge that Respondent violated Section 8(a)(1) by (1) interrogating employees on June 18 about their knowledge or interest in the Union without adequate safeguards or assurances against reprisals; and (2) pro- mising wage increases to employees Bortnem and Hub- bard on June 20 and 21, respectively, intending thereby to frustrate and interfere with the employees' rights as I The request by the Respondent for oral argument is hereby denied as the record, including the briefs, adequately presents the issues and positions of the parties 2 All dates hereafter are 1973 3 These seven employees included Gustafson, McKeever, Hubbard, Bort- nem, Ellsworth, Peterson, and Carey Employee Walby signed a card on June 25 and Campbell signed a card on June 6 Only one employee in the unit found to be appropriate by the Administrative Law Judge, which find- ing we adopt, did not sign a card guaranteed by Section 7 of the Act. We also agree with the Administrative Law Judge's conclusion that em- ployee Carey was discharged on June 21 solely because Respondent believed him to be the one responsible for promoting the Union's organizational campaign and that the reasons offered by Respondent as justification for Carey's discharge were purely pretextual. In view of this conclusion, we find it unnecessary to consider or adopt the Administrative Law Judge's further conclu- sion that, even under an application of a mixed motive theory, Carey's discharge would still be unlawful. The Administrative Law Judge found and we agree that, because of Carey's discharge, Respondent's em- ployees commenced an unfair labor practice strike and picketed at the two radio stations on June 22. Shortly thereafter, Respondent's vice president, Rock, ap- peared first at one and then the other radio station and ordered the picketing employees to return to work or face immediate discharge. The employees refused to return to work and Respondent discharged them. We adopt the Administrative Law Judge's finding that the picketing employees were engaged in a legal work stop- page and that their discharge violated Section 8(a)(1) of the Act. For the reasons described infra. we find that the discharge of the striking employees also violated Section 8(a)(3) of the Act. The record shows that the strike and picketing com- menced just 4 days after. Respondent received the Un- ion's letter demanding recognition and the filing of the election petition. As described supra, Respondent found time during the intervening 4-day period to un- lawfully interrogate employees concerning the Union, make unlawful promises of wage increases to two em- ployees, and unlawfully discharge a known and active union adherent. This conduct reveals a vigorous effort by the Respondent to influence and coerce its em- ployees to abandon their efforts to have the Union represent them. In these circumstances, it is clear that Respondent's action in discharging the striking em- ployees also had the effect of discouraging membership in the Union and, thus, the discharges must be deemed to be violative of both Section 8(a)(3) and Section 8(a)(1) of the Act. The General Counsel has filed exceptions to the Ad- ministrative Law Judge's failure to make certain addi- tional findings and conclusions of law related to the discharge and reinstatement of the striking employee. We find merit in these exceptions inasmuch as they are directed at what appear to be inadvertent omissions by the Administrative Law Judge in view of other findings regarding these same employees and his recommended order which provides for reinstatement of them. Specifically, we find, therefore, that Richard Campbell joined the strike on June 23 or 24 and thereby became an unfair labor practice striker, and that by refusing to 215 NLRB No. 32 HENNEPIN BROADCASTING ASSOCIATES reinstate :unfair-labor practice 'strikers, Bortnem, Ells- worth, t Gustafson, . Peterson, McKeever, - Hubbard, Walby, and Campbell on June 26 and on August 16, Respondent violated Section 8(a)(3) and (1) of the Act. Finally, we, do not, adopt the, administrative Law Judge's finding . that Respondent violated Section 8(a)(5) of the Act, for the reasons stated in Steel-Fab. Inc., 212 NLRB No. 25 (1974)4 iii 'view of the serious unfair labor practices committed by the Respondent, we do, however, enter a bargaining order as a remedy. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Hennepin Broadcast- ing Associates, Inc., Minneapolis, Minnesota, its offic- ers, agents, successors, -and assigns, shall take the ac- tion set forth in the recommended Order, as modified below: 1. Eliminate paragraph 1(d). 2. Substitute the following as paragraph 2(a): "Upon request, recognize and bargain with Ameri- can Federation of Television and Radio Artists, Twin City Local, AFL-CIO, as the exclusive bargaining re- presentative of all full-time and regular part-time em- ployees employed by the Respondent at its AM and FM radio stations located in the Greater Saint Paul- Minneapolis areas, who regularly are heard on the air, excluding office clerical employees, guards, and super- visors as defined in the Act, with respect to rates of pay, hours of employment, or other terms and conditions of employment and, if an understanding is reached, em- body such understanding in a signed agreement." 3. Substitute the attached notice for that of the Ad- ministrative Law Judge. For the reasons set forth in his concurring and dissenting opinion in Steel-Fab, Member Jenkins would find a violation of Sec 8(a)(5) as well as entering a bargaining order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which parties had the opportunity to give evidence, it has been decided that we, Hennepin Broadcasting Associates, Inc., have violated the Na- tional Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights, including the right to support 327 and join a labor union and to bargain through your representative without fear of discharge or other inter- ference, restraint, coercion, or discrimination. Accordingly we give you these assurances: WE WILL, upon request, recognize and bargain with American Federation of television and Radio Artists, Twin City Local, AFL-CIO, as the exclu- sive bargaining representative of all full-time and regular part-time employees employed by the Re- spondent at its AM and FM radio stations located in the Greater Saint Paul-Minneapolis areas, who regularly are heard on the air, excluding office clerical employees, guards, and supervisors as de- fined in the Act, with respect to rates of pay, hours of employment, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. WE WILL offer to Rich Carey immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by reason of his termination in the manner set forth in the section entitled "The Remedy." WE WILL offer immediate and full reinstatement without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any em- ployee hired subsequent to the day the strike be- gan, the following named employees: John Bort- nem, Robert Gustafson, James Hubbard, Gregory Ellsworth, Gregory Peterson, Patrick McKeever, Raymond Walby, and Richard Campbell and make each of them whole for any loss he may have suffered as a result of our failure to reinstate each of them on or before July 4, 1973, in the manner set forth in the section entitled "The Remedy." WE WILL NOT discourage membership in Ameri- can Federation of Television and Radio Artists, Twin City Local, AFL-CIO, or any other union by discharging or otherwise discriminating against any of our employees because of their union or concerted activity. WE WILL NOT interrogate employees concerning their union activity or those of other employees. WE WILL NOT promise employees wage increases on an individual basis tending to interfere with the employees in their rights to bargain collectively or otherwise engage in concerted activity. WE WILL NOT in any manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization, to form labor or- _Sanizations, to join or assist the above-named union or any other labor organization, to bargain 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. HENNEPIN BROADCASTING ASSOCIATES, INC DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was tried at Saint Paul, Minneasota, on November 7, 8, 9, and 12, 1973.' The complaint and notice of hearing was issued on September 6, based on a charge filed on June 22 and an amended charge filed on August 31. The complaint alleges, in substance, that Hennepin Broad- casting Associates, Inc. (herein Respondent), engaged in, and is continuing to engage in, unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended (herein Act), in that said Respondent unlawfully interrogated employees concerning their union membership, activities, and desires and granted wage in- creases to two employees in order to discourage union mem- bership and activities all in violation of Section 8(a)(1); dis- criminatorily discharged an employee because of his union membership and activity and thereafter discharged several other employees who were engaged in a lawful concerted work stoppage in violation of Section 8(a)(1) and (3); and through its continued refusal to recognize, meet, and negoti- ate with the authorized collective-bargaining representative of the employees in an appropriate bargaining unit, Respond- ent has and is continuing to violate Section 8(a)(5) of the Act. Respondent's answer denies the commission of the unfair labor practices as alleged in the complaint. Helpful briefs have been filed by the General Counsel and the Respondent and have been carefully considered. Upon the entire record and my observation of the de- meanor of the witnesses, I hereby make the following: FINDINGS OF FACT I JURISDICTION Respondent is, and at all times material herein has been, a corporation duly organized and existing by virtue of the laws of the State of Minnesota. Respondent maintains its principal office and operates an AM radio station (KTCP- AM) at 3701 Winnetka Avenue, New Hope, Minnesota. Re- spondent also maintains and operates an FM radio station (KTCR-FM) at 3800 Minnehaha Avenue, Minneapolis, Min- nesota. Respondent's answer acknowledges that KTCR-AM during the fiscal year ending June 30, 1973, had gross revenue in excess of $500,000 with gross profits before taxes and bonuses of over $100,000. Respondent's answer states that KTCR-FM had gross revenues of less than $50,000 and losses of approximately $40,000. Respondent receives reve- nues generally from the sale of time for commercial advertis- ing and its general manager acknowledged during the course ' All dates hereinafter will be 1973 unless otherwise indicated of the trial that it had accounts in Chicago, Detroit, and New York. Additionally, General Counsel Exhibit 17 is a "cover- age map" prepared by Robert A. Jones, a counsulting engi- neer located in La Grange, Illinois, indicating the area cover- age of Respondent to include not only the greater Minneapolis and St. Paul area, but also rural areas in counties located both in Wisconsin and Minnesota. These coverage maps are utilized by Respondent's salesmen. To insure the elimination of obstacles to the free flow of commerce, Congress granted the Board authority over all labor disputes, as defined in the Act, occurring in commerce or affecting commerce. By this grant of authority Congress intended to delegate to the Board the full limit of the com- merce power of Congress as that power may be marked out by the courts. As marked out by the courts of authority of the Board extends to activities which in isolation might be deemed to be merely local but in the interlacings of business across state lines abversely affect such commerce.' Within these mandates the Board has asserted jurisdiction over all enterprises engaged in the operation of radio or television broadcasting stations which do a gross volume of business of at least $100,000 per year.' The Board's standards adopt the concept that it is the totality of an employer's operations which determine whether or not jurisdiction should be as- serted. Thus the dollar volume from all of the employer's plants or locations constituting a single enterprise is totaled to determine whether the relevant jurisdiction standard is met.' On the basis of these facts, and consistent with Board and court decisions, I find that the Respondent is an em- ployer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. i[ THE LABOR ORGANIZATION INVOLVED The Board has, on previous occasions, found the American Federation of Television and Radio Artists, AFL-CIO, to be a labor organization within the meaning, of the Act.' Hal Newell, the executive secretary of the Twin City Local, testi- fied that the Union exists for the purpose of representing employees in collective bargaining and in the administration of the negotiated contracts such as the processing of griev- ances and, further, that employees participate in the activities of the Union. On the basis of these undisputed facts, I find the American Federation of Television and Radio Artists, Twin City Local, AFL-CIO (the Charging Party of AF- TRA), to be a labor organization within the meaning of Sec- tion 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues In addition to the question of jurisdiction raised by the pleadings and evidence in this case, which has already been disposed of, the Respondent seriously questions the treatment 2 See Polish National Alliance of the United States of North America v N.L.R B, 322 U S 643 (1944) 3 See Raritan Valley Broadcasting Company, Inc, 122 NLRB 90 (1958), and Siemons Mailing Service, 122 NLRB 81 (1958) 4 See T H Rogers Lumber Company, 117 NLRB 1732 (1957) Also Siemons Mailing Service, supra. 5 See for example Raritan Valley Broadcasting Co., supra HENNEPIN BROADCASTING ASSOCIATES of the two radio stations as one business enterprise which raises an issue as to the appropriate bargaining unit. Other issues to be resolved might be framed in the form of questions as follows: (1) What was the reason for Carey's discharge? (2) Was it a violation of the Act to question the employees about their knowledge of union activity? (3) Were the strikes unlaw- fully discharged? (4) When did the strikers offer to return to work? And (5) are they entitled to reinstatement under all the circumstances? B Chronology of Relevant Events The parties hereto are not in serious disagreements as to the sequence of events and many of the basic facts surround- ing this labor dispute.' It is those "shaded" areas of differ- ence and the impact or consequences which flow therefrom that must be resolved. KTCR-AM is operated from sunrise to sunset. KTCR-FM is operated 24 hours each day except for 6 hours from mid- night Saturday (or 12:01 a.m. Sunday) until 6 a.m. on Sun- day. Mr. Tedesco is the president and owner of both stations. Robert J. Rock is a vice president and the general manager of both stations, responsible for the day-to-day operation. Gerald D. Cunning is program director for both stations and the immediate supervisor of the announcer-engineers herein involved. Cunning was responsible for scheduling the air shifts of the employees at both the AM and FM stations, does some newscasting, has authority to hire and fire, and gener- ally serves as an assistant to Robert Rock in the daily opera- tion of the stations. At the relevant time surrounding this dispute, there were four announcer-engineers at the AM station-these were Richard Carey, Gregory Peterson, Michael Fitzpatrick, and a regular part-time announcer-engineer, James Hubbard, who worked on the weekends. Mr Cunning was responsible for a morning news sportscast. At the FM station the regular full-time announcer-engineers were John Bortnem, Patrick McKeever, Robert Gustafson, and Gregory Ellsworth. Ray- mond Walby and Rick Campbell were regularly employed on a part-time basis. In the latter part of May, Gregory Ellsworth became quite unhappy and upset about his wages because he received a cut in pay when his shift was changed. This prompted Ellsworth to discuss the feasibility of a union with some of his fellow employee announcer-engineers, including Richard Carey. Carey and Ellsworth then contacted Hal Newell, executive secretary of the Union, and made an appointment to meet with him to discuss "what is involved in putting in the union, what a union could do for me, what a sample contract was like, so we could determine if we were interested at all'in doing anything further at this point." The meeting with Ne- well occurred on June 5. Carey and Ellsworth, after having their questions answered satisfactorily, were told by Newell to contact the other announcer-engineers to see if a majority of the employees were interested in joining the Union. There- 6 The Act defines labor disputes at Sec 2(9) as follows "The term labor dispute includes an controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee " 329 after, Carey and Ellsworth contacted the other announcer- engineers and, after, ascertaining that there was interest among the group, a meeting was held at Richard Carey's house on or about June 10. This meeting was attended by Peterson, Gustafson, McKeever, Hubbard, Bortnem, Ells- worth, and, of course, Carey. This group of seven included all of the announcer-engineers except full-time regular em- ployee Michael Fitzpatrick and part-time regular employees Raymond Walby and Rick Campbell. According to Richard Carey, whose testimony I find fully credible, the group unani- mously decided to arrange a date with Newell for the purpose of joining AFTRA., All of the employees who had attended the meeting at Carey's home on or about June 10, except Gustafson, met with Newell on June 14 and signed forms captioned, "Desig- nation and Application for Membership in the American Federation of Television and Radio Artists."' Gustafson met with Newell on the afternoon of June 13 because he was scheduled to be working at the time the others planned to meet with Newell on June 14. His application is, therefore, dated June 13. It might be mentioned, parenthetically at this point, that the applications of the two part-time regular em- ployees Rick Campbell and Raymond Walby were signed and dated July 6 and June 25, respectively, and appear in the record as General Counsel Exhibits 13 and 15. On Friday, June 15, Mr. Newell wrote to the Respondent, attention Mr. Robert J. Rock, stating that AFTRA repre- sented a majority of the employees and demanded recognition (G. C. Exh. 2). On Monday, June 18, AFTRA filed an RC petition (18-RC-9614) with the Minneapolis Regional Office of the NLRB seeking to have an election conducted among the announcer-engineers of KTCR-AM and FM in accordance with the applicable provisions of the Act (G. C. Exh. 10). Mr. Rock testified he received the Union's June 15 letter, demanding recognition, on June 18 at or about 10 a.m. He further testified that he immediately called his attorney and read the letter to him and was told by his attorney that inclusion of the clerical help in the bargaining unit was an error. (See G. C. Exh. 2 which uses the word "including" instead of "excluding" in the paragraph describing the bar- gaining unit. Such an inadvertent error would normally be immediately recognized by an attorney familar with the field of labor law ) Mr. Rock also testified that his attorney advised him, "not to, in any way, discuss it with the personnel at the radio station, which I didn't do. And, also, to not have any- body else talk to them or give any raises or fire anybody." The attorney advised Mr. Rock that he would handle the reply to the Union's letter. Program Director Cunning testified that Mr. Rock talked to him by telephone on Friday, June 15, saying that Carey's 7 See G C Exh 3 through 9 for copies of the applications Par (2) of these exhibits reads as follows "1 hereby designate the American Federation of Television and Radio Artists as my exclusive agent for collective bargaining purposes in any and all matters dealing with the radio industry, television, television recorded commercials, records, slide films, electrical transcrip- tions, any other means for mechanical reproduction, and any other matters of industries within the jurisdiction of the said Federation I hereby further authorize the said Federation to delegate its right to be my collective bar- gaining agent to the said Local or to any other subdivision, agent or affiliate of said Federation " 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "got to go. I want him to go now." Cunning replied by saying, "Can we talk about it Monday viorning?" On Monday, June 18, before the letter from Newell was received by Respondent, Rock and Cunning discussed Ca- rey's status. According to Respondent's own witnesses, Rock wanted Carey to go, but was convinced by Cunning that under all the circumstances Carey should stay. The decision to retain him was left up to Cunning. After relating the June 18 discussion with Rock, Cunning gave these responses: Q. So, at this time, would you say then, that you decided not to fire Mr. Carey? A. I had decided. I don't think Mr. Rock was of that opinion, but I decided to retain him. Q. What time did this conversation take place? A. Between 8:30 and 9, right upon Mr. Rock's arrival at the station. According to Cunning when the letter from the Union arrived, Rock discussed it with him and then it was decided to call the attorney . According to Cunning, he asked the attorney if, "there was any procedure we could follow that would prove or disprove the truth of this letter ." Counsel advised him not to "go around and browbeat them or any- thing, but he said, 'I think you have the right to ask them if they are represented by AFTRA "' Mr. Cunning testified that thereafter he asked several of the employees if they belonged to AFTRA or knew anything about AFTRA . Cunning further testified , "Then I believe I talked to Mike Knight' and asked him what he knew about it. He said, 'Oh, there was some talk about it awhile back.' I said, 'What do you mean?' He said, 'Rich Carey came to me and wanted me to join the union.' I said , 'What did you do?' He said, 'I told him I wasn't interested."' Cunning acknowl- edged that on the afternoon of June 18 he discussed the results of his questioning of the employees with Mr. Rock. The testimony of witnesses McKeever and Peterson indi- cates that Cunning not only interrogated them concerning their interest or membership in AFTRA, but Cunning was quite specific in seeking information concerning the extent of Rich Carey's activities on behalf of the Union. On Wednesday, June 20, at a staff meeting-without any mention of the Union being in the picture-the Respondent sought to resolve the gripes and complaints of the employees. While in some instances such conduct has been construed to be interference and coercive of the employees (after the Com- pany has received notification of a claim of majority represen- tation by a labor organization), in this instance it was not alleged in the complaint as a violation and in view of all the evidence shall not be so considered herein. However, this meeting is of significance because it was immediately follow- ing this meeting that Mike Fitzpatrick ac'vised John Bortnem that he had talked to Mr Rock and Mr . Rock had approved a $50-a-month raise for Bortnem.9 James Hubbard, who was first employed by Respondent in 1968 and who has had various jobs at both the AM and the FM station since that date, but at the time of the strike was 8 Mike Knight was the "air" name used by Mike Fitzpatrick, the announc- er-engineer who also served as music director 9 There was no proof to indicate the raise was actually paid, only pro- mised The employees, including Bortnem, went on strike 2 days later. a week-end, part-time announcer,1° testified that he had written a memorandum to Cunning in May requesting a raise from $3 an hour to $3.50 an hour. On June 21 Cunning advised Hubbard by way of a telephone call to Hubbard's office that he had approved the raise and he would check into it to see that it was paid." On June 21 Rich Carey received a phone call at his home from Cunning advising him, "Before you hear from some- body else, Rich, I wanted to tell you that your services have been terminated here at the radio station." Carey inquired as to the reason and was told, "There is a letter here at the station from the manager explaining the circumstance " Carey went to the radio station, found the letter in his mail box, and, after clearing out his desk, he departed without anything further being said to him other than a "Good Morn- ing" from Mr. Cunning. The termination letter was signed by Robert J. Rock, general manager, and read as follows: June 21, 1973 Mr. Richard Carey This letter is to inform you that, effective immediately, your services will no longer be required by KTCR AM/FM Radio. The reason for this termination is be- cause your activities on the air at KTCR are not in good broadcast taste. Some examples are: 1.) The broadcasting of competitive dealer or product spot announcements in the same commercial cluster; 2.) The disregard for the logged length of commer- cials, specifically as they apply to Nashville North; 3.) The apparent willful disregard for the music poli- cies of KTCR which resulted in a large number of lis- tener complaints; and 4.) Your disregard for carrying through instructions relative to furnishing commercials for KTCR-FM. As compensation for lack of notice concerning this sepa- ration, you will receive one (1) week's pay. You will also receive one (1) week's pay for accrued vacation time. Since Mrs. Thomas, our bookkeeper is on vacation this week, your check for this money due you will be mailed to your home on Monday, June 25. If you have any further questions regarding this action, you may come in and see me. Robert J. Rock General Manager On the evening of June 21, several of the announcer-engi- neers met with the Union's attorney at the home of Carey. There they unanimously decided that their best course of action would be to strike the Respondent at 5 p.m. the follow- ing day 10 Hubbard resigned as a full-time employee of Respondent on December 31, 1971, and is employed full time at another vocation, but has remained continuously employed by Respondent as a regular part-time employee 11 Hubbard participated in the strike of June 22 and, as in Bortnem's case, there is no proof the promised increase was ever paid HENNEPIN BROADCASTING ASSOCIATES The following day the decision to strike was communicated to Newell who advised that he would have to obtain the sanction of the National AFTRA According to Newell's testimony, this was done immediately by way of a long dis- tance phone call to Sanford I. Wolfe, the national secretary. On June 22 John Bortnem was the announcer-engineer on duty at KTCR-FM on the afternoon shift. Sometime shortly before 5 p.m., McKeever and Gustafson arrived at the radio station and informed Bortnem that the strike had been sanc- tioned by AFTRA. At 5 p.m. Bortnem read a "sign off' which indicated the station was going off the air; the trans- mitter was turned off; the building and equipment was gener- ally made secure and the three announcer-engineers went outside and began to picket. At approximately the same time, Peterson, who was work- ing at the AM station, was joined by Ellsworth and a similar procedure was followed-the "sign-off" was read and the transmitter was turned off. Carey, Peterson, and Ellsworth began picketing; some time shortly after 7 p.m. Hubbard joined the picketers. According to Rock he had left the radio station and was at a nearby gasoline service station when he received a phone call from Robin Hanson, an office clerical, just before 5 p.m. and was told that the announcer-engineers were going on strike at 5 p.m. He testified that he heard the "sign-off' by both stations over his car radio and immediately returned to his office at KTCR-AM. Mr. Rock's attorney arrived at the station within the hour and after a consultation the following occurred as evidenced by the testimony of Mr. Rock. Q. And would you outline in the record precisely what I .told you and precisely what you did? A. I asked your advice. I said the stations have to be signed on the air. Your advice was to go out and contact each employee and order them to put the station back on the air. Q. Did you in any way order them to make any an- nouncements or any personal statement? A. I just ordered them to put the station on the air, period. And I said, "If you don't, I am going to have to replace you because the stations have to go on the air. We have to broadcast." In fact, I told one of the people, I think Mr. Peterson, "If you have some grievances, we can talk about it on Monday, but let's keep the show on the road." There were extremely hostile. In fact, there was no conversation after that I went to each and every employee and asked them the same question. Q. Did any of them agree to turn the station back on? A. No, sir. Q. Did you then proceed over to the FM station? A. Yes, sir. Q. And what did you do there? A. The same thing was asked those employees there. Q. Did any of them agree to turn the station back on? A. No, sir. In Mr. Rock's affidavit (Resp. Exh. 5), he indicates that when the employees refused to return to work they were told they were discharged. The employees testified that when they refused to return to work Rock said, "Then you are fired."12 I do not.believe Rock used the word "replaced" 331 and I credit the testimony of Hubbard who testified the em- ployees were told they were fired. C. Analysis 1. The bargaining unit Respondent argues that the AM and FM stations be treated separately because "the economic realities require separate bargaining units for each station " While the evi- dence does indicate that there is a substantial difference in the income of the two stations , income is not a relevant factor to be weighed in ascertaining a unit appropriate for purposes of collective bargaining . The Board considers a number of fac- tors in resolving the appropriate unit issue, which include (1) extent and type of union organization of the employees, (2) bargaining history in the industry, (3) similarity of duties, skills, interests, and working conditions of the employees; (4) organizational structure of the company; and (5 ) the desires of the employees In the instant case, the supervision of both stations is the same. Mr. Tedesco is the president and owner of both sta- tions. Rock is the general manager of both stations and all the "announcer-engineers" involved have the same immediate supervisor-namely Mr. Cunning . Respondent's stationery (see G. C. Exh. 10) gives the appearance of a single unified operation for both the AM and FM stations. The salesmen-who are not herein directly involved-solicit ad- vertising for both stations. Both stations have the same chief engineer who performs the maintenance work for both sta- tions. The personnel policies appear to be determined and administered by Mr. Rock for both stations A number of the employees have worked at both stations. There is a similarity of the duties, skills, interests, and working conditions of the employees. Based on the testimony and written applications for membership, all the announcer-engineers employed by the Respondent on June 15, except one, desire to be represented in one bargaining unit by AFTRA. Respondent also argues that the announcer-engineers are professional because they do engineering work, and are managerial because they often work alone and, as such, they are management's only representative at the station at the time. Both of these arguments are shallow and superficial. For the most part the employees involved are only high- school graduates with a cursory knowledge of how a radio transmitter works. This knowledge is attained through at- tendance at an 8 or 10 week school that enabled them to memorize a few answers and thereby obtain a required FCC operator's license. This training enables them to turn the "off-on" switches and to read and make log entries of certain meter readings in compliance with FCC regulations. Such training and activity hardly qualifies these "announcer-engi- neers" as professionals. At most, it might be said they have some technical skills and might more accurately be called "announcer-technicians."" 12 Walby and Campbell-part-time regular employees at the FM station-were not parties to the initial walkout and picketing, but they joined AFTRA within the next few days (see G C Exh 13 and 15) and have continued to participate in the strike 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Managerial employees are deemed to be employees who are in a position to formulate , determine, and effectuate manage- ment policies." Managerial employees, as such, are not specifically excluded from a bargaining unit by the Act, but truly nonsupervisory policymakers have been elevated or as- similated to the status of supervisory employees by Board and Court interpretation and supervisors are specifically excluded by the Act. The mere fact that these "announcer-engineers" are on duty alone or have a key to the premises hardly ele- vates them to the status of managerial employees. There was no evidence that the employees herein concerned formulate or determine management policies. They perform limited du- ties within the confines of rather narrowly drawn guidelines prescribed by the Respondent. The "announcer-engineers" are neither professional nor managerial employees. Accord- ingly, I find that all full-time and regular part-time employees employed by the Respondent at its AM and FM radio sta- tions located in the greater Saint Paul-Minneapolis area, who regularly are heard on the air, excluding office clerical em- ployees, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act.15 2. Agents and supervisors The complaint alleges the following individuals to be agents acting for and on behalf of the Respondent and to be supervisors within the meaning of Section 2(11) of the Act: Robert J. Rock Gerald D. Cunning Charles E Ingle Michael Lee Fitzpatrick Vernon C. Weegman Vice President and General Manager Program Director Chief Engineer Music Director Assistant Sales Manager Ingle, Fitzpatrick, and Weegman did not testify and there is a paucity of evidence relating to their authority and activity that might enable one to determine whether they are supervi- sors within the meaning of the Act.16 While there was evi- dence to indicate that Fitzpatrick played a part in obtaining a promise of a raise for an employee, this evidence is insuffi- cient to make a definitive determination regarding his super- visory status. It appears that this act was more that of a Good Samaritan, or the act of a "spokesman," rather than the act of an employee clothed with supervisory authority. The status of employees Ingle, Fitzpatrick, and Weegman is being left unresolved because, as indicated, the paucity of evidence makes it impossible, and, furthermore, I find it unnecessary 13 But see KPOJ, Inc, et at, 129 NLRB 727 (1960), where the Board included the "announcer-technicians" in the same unit with the "pure" announcers 14 Ford Motor Co, 66 NLRB 1317 Also Palace Laundry Dry Cleaning Corp, 75 NLRB 320, see especially fn 4 at 323 is See El Mundo, Inc, 127 NLRB 538 (1960) 16 See Sec 2(11) "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward , or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment." to definitively determine their status in order to resolve all the issues in this dispute. The testimony of Robert J. Rock and Gerald Cunning as to the authority they exercise in connection with Respon- dent's business leaves no doubt that they are agents and supervisors of Respondent within the meaning of Section 2(11) and (13) of the Act and I so find. 3. Restraint, coercion, promises of benefit The interrogation by Cunning of the employees about their interest in AFTRA, shortly after the letter from the Union was received, and the promises made to Bortnem and Hub- bard of wage increases within a few days following receipt of the Union's letter demanding recognition are not denied by Respondent. Respondent's counsel would seek to justify or explain away the interrogation by contending the employees were not "brow-beaten" and they did not feel they were being coerced or threatened. This is not the law. "Questioning se- lected employees about their union sympathies without any legitimate reason therefor and without any assurance against reprisal, by its very nature tends to inhibit employees in the exercise of their right to organize." Engineered Steel Pro- ducts, Inc., 188 NLRB 298 (1971). For example, see N.L.R.B. Y. Illinois Tool Works, 153 F.2d 811 at 814 (C.A. 7, 1946), where the court observed that "the test of interference, re- straint and coercion under § 8(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. [Citations omitted.] The test is whether the em- ployer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." The reluctance of some of the announcers to acknowledge their membership in AFTRA or discuss their interest in the Union, as testified to by Cunning, is, of itself, indicative of the coercive nature of the interrogation. I find the wholesale questioning of a majority of the employees in a rather small unit, as to their knowledge or interest in AF- TRA by Cunning on June 18, without adequate safeguards or assurances against reprisals, to have interfered with and re- strained employees in the exercise of their rights as guaran- teed by Section 7 of the Act and thus violative of Section 8(a)(1) . " The promise of wage increases to Bortnem and Hubbard after having received the Union's letter demanding recogni- tion and after having received the Union's petition for an election, can only be interpreted as an act intended to curry favor with the employees on behalf of Respondent thus inter- fering with the employee' Section 7 rights. A promise or grant of a calculated benefit to stifle an organizational campaign may be unlawful interference even though no strings are ex- plicitly attached. As the Eighth Circuit said in N.L.R.B. v. Crown Can Company, 138 F.2d 263, "Interference is no less interference because it is accomplished through allurements 17 There was some testimony by Rock suggesting that the ascertaining of AFCRA's majority status by questioning the employees was permissable and had been authorized by the N L R B. field investigation This evidence has not been considered because (1) 1 do not credit the testimony attribut- ing such a remark to the field investigator and (2) admittedly the field investigator did not contact Mr Rock until June 20-after the RC petition had been received by Respondent-and the violative interrogation found herein occurred on June 18 HENNEPIN BROADCASTING ASSOCIATES rather than coercion." (Citing Western Cartridge Co. v. N.L.R.B., 134 F.2d 240 (C.A. 7). The infringement stems from the timing and the impact. As the Supreme Court has said: The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Em- ployees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." I find that Respondent did promise wage increases to Bort- nem and Hubbard on June 20 and June 21 intending thereby to frustrate and interfere with the employees' rights as guar- anteed by Section 7 of the Act and did thereby violated Section 8(a)(1) of the Act." 4. The discharge of Carey As indicated hereinbefore, Respondent' s witnesses testified that a discussion had occurred between Rock and Cunning on June 15 and again on June 18 relative to terminating Carey's employment. According to the testimony of Respon- dent's own witnesses, the final decision on June 18 was to retain Mr. Carey's services. There is no evidence, however, to indicate that Mr. Carey was advised, either written or orally, that his job was in jeopardy. What happened then between 9 a.m. on June 18 and June 21, the date of Carey's discharge? Mr. Carey is blamed for having played a competitive adver- tisement during a Hamm's Beer remote. The other things which happened are: Respondent learned that Rich Carey was actively soliciting and encouraging employees to affiliate with AFTRA; AFTRA demanded recognition and was ac- tively seeking to have an election held by the National Labor Relations Board in the event the Respondent failed to volun- tarily recognize AFTRA. The first incident hardly seems sufficient to justify a dis- charge. Mr. Cunning agreed with the testimony of some of the announcers that the announcers had never been in- structed that they were not to play competitive ads in the same cluster. The testimony of both Cunning and Rock indi- cates that there is some uncertainty as to whether or not the responsibility for the misplacement of the competitive ad belonged to Greg Peterson or Rich Carey. Nevertheless, it was Carey that was discharged immediately without a thorough investigation of the facts. Carey and Ellsworth had been the two most active ringleaders in soliciting the an- nouncer-engineers to interest them in AFTRA. A meeting of the employees had been held at Rich Carey's house and there it had been decided that they would go as a group and join AFTRA. Knowledge and information concerning Carey's interest and activity on behalf of the Union was known to the management. Not only on the part of Cunning, the supervisor responsible for drafting the discharge letter received by Carey, but also Mr. Rock who signed the letter. Cunning acknowledged having reported to Rock following his interro- gation of the employees concerning their interest and activity on behalf of AFTRA, but was unable to recall whether or not ]B NLRB v Exchange Parts Co, 375 U S 405, 409 (1964) 19 U-Wanna-Wash Frocks, Inc, 203 NLRB 31 (1973) 333 he specifically related the conversation had with Fitzpatrick, who had told Cunning that Carey had solicited his member- ship. It is inconceivable that Cunning would have failed to relate the only real, definitive piece of information obtained as a result of his interrogation. The reasons for discharge given in the termination letter were all events that had happened in the past and had been thoroughly discussed between Cunning and Rock on the morning of June 18 when it was decided to retain Carey. The reasons given by Rock at the hearing in this case are different from those given by Rock in his affidavit. From my careful review of all of the evidence, I am convinced that the reasons given by the Respondent for the discharge of Carey were a pretext, and that Carey was discharged solely because Re- spondent was of the opinion that Carey was the leader in the formation of the interest among the employees to join AF- TRA. In my opinion, the testimony of Respondent' s witness Rock is not to be credited. He was evasive, unresponsive, and it was frequently necessary for his own counsel to remind him to listen to the questions being asked. James. Hubbard, who struck me as being an extremely credible and reliable witness and a former manager of the FM station and perhaps the most experienced of the announcers, testified that he has played competitive dealer commercials in the same cluster and that he had never been informed that this should not be done. Carey testified that he was following the instruction of Mr. Weegman, the assistant sales manager, in the time al- lowed for the Nashville North commercials. Not only was Mr. Carey a very credible witness, but failure of the Respond- ent to call Mr. Weegman to rebut Mr Carey's testimony in this regard warrants an inference that, if this witness had been called to testify, it would not have been favorable to the Respondent.20 The reference in the discharge letter to the "willful disregard for the music policies," had reference to the very brief period of time when Carey was in charge of the music policy for the station, but he was relieved of these duties some 6 to 8 weeks prior to the discharge and without any apparent hard feelings on the part of the Respondent toward Carey. There is insufficient evidence to find that Carey ever disregarded his instruction relative to furnishing commercials for KTCR-FM. The record is abundantly clear that Rich Carey was. the most obviously active union adherent While it is true as the Respondent's brief points out that union activity does not confer immunity or provide a guarantee against discharge for cause, nevertheless, when the reasons advanced by the Re- spondent are so vague, veiled, confused, and inconsistent, it causes one to reach the inescapable conclusion that the real cause of the discharge was the union activity on the part of the dischargee. The discharge of a leading union advocate is a most effective method of undermining a union organization effort. 21 It strains credulity that an employee's conduct might have been so serious as to precipitate a discussion between the operating vice president and the employee's im- mediate supervisor, relating to whether the employee should be discharged and then, following a decision that he would be retained, that the employee was not even talked to or warned r 20 Interstate C,rculty US., 306 U S 208 , NLR B. v Wallick & Schwalm Co., 198 F 2d 477 (C A 3) 21 N.L.R B v Longhorn Transfer Service, Inc., 346 F 2d 1003 (C A 5, 1965) 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his tenuous situation. The testimony by Respondent's wit- nesses of such a conversation was the only evidence in the record to reflect adversely on Cab ey's "job status" prior to Respondent's learning of Carey's involvement with the Un- ion. A complete failure to discuss with Carey his shortcom- ings causes me to seriously doubt that the discussion ever occurred. As related earlier herein, the only thing that oc- curred thereafter to provide an excuse for the discharge was the "airing" of a competitive ad in the same "cluster" or sequence. This, however, had been previously done by others without such dire results and the evidence is that there were no instructions that it should not be done. The evidence seems overwhelming that Respondent was motivated in his actions toward Carey to rid itself of a known and active union adher- ent. Even though part of the motivation for Carey's discharge might have been his action of poor timing in airing competi- tive commercials, in light of the total conduct of Respondent, such circumstances cannot be legally used to effectuate a companion motive to rid the Company of a union protago- nist N.L.R B. v. West Side Carpet Cleaning Co., 329 F.2d 758 (C.A. 6, 1964). The discharge of an employee is violative of the Act if Respondent is partially motivated by union ac- tivity, even though the discharge may have been based on other reasons as well. N. L. N.L.R.B. v Great Eastern Color Litho- graphic Corp., 309 F.2d 352 (C.A. 2, 1962), cert denied 373 U S 950 (1963). I find the discharge of Rich Carey to have been at least partially, and probably entirely, because of his activity on behalf of the Union and thus violative of Section 8(a)(3) and (1) of the Act 22 5. The tactical discharge of the strikers As related herein before, sometime shortly after counsel for Respondent arrived at the AM station, Rock proceeded to order employees Ellsworth, Hubbard, and Peterson (Carey was also picketing, but of course had previously been dis- charged) that if they did not return to work immediately they would be fired. Rock then proceeded to the FM station where McKeever and Gustafson were ordered back to work at their next scheduled work shift with the alternative that if they did not -eturn to work they would be fired. Bortnem was not present when Rock discharged the other employees at the FM station but a few days later Cunning approached him while he was picketing and asked for his keys to the station. Walby's discharge followed a slightly different pattern. Fol- lowing the discharge of Carey, Walby was offered a full-time job at the AM station and worked at the AM station from 10 a.m until 4:30 p.m. on June 22. Later that evening he visited the FM station between 6:30 and 7 o'clock and whi! „ visiting with Bob Gustafson and Pat McKeever heard Rock dis- charge them. When Rock asked Walby if he was going to return to work on his next scheduled shift, Walby replied as far as he knew he was going to. The following day when he reported for work he was told by the men on the control 22 See also N.L R.B. v Howell Automatic Machine Co, 454 F 2d 1077 (C A 6, 1972), NL R B v Adam Loos Boiler Works Co, 435 F 2d 707 (C A 6, 1970), and The Singer Company v N.L R B 429 F 2d 172, 180 (C A 8, 1970), where the court said "we think Jones' discharge was han- dled precipitately and, when coupled with the trivial nature of the violation, it affords substantial evidence that the alleged rule violation was a mere pretext for discharging Jones because of his union activities " board that he was not allowed in the station or on the prem- ises. Walby left and thereafter participated in the strike. The evidence amply supports a finding that a majority of the employees in the bargaining unit met with their counsel on June 21 at Rich Carey's home and there a majority of them decided they would strike Respondent on the following day because of Respondent's illegal course of action in discharg- ing Rich Carey. As heretofore found, the discharge of Rich Carey was an unfair labor practice on the part of Respondent. It follows therefore that the strike by the employees protest- ing the discharge of Rich Carey was an unfair labor practice strike. A primary strike, such as this was, is protected whether called for economic reasons or to protest unfair labor practices. It is a clear violation of the Act for an employer to condition an employee's continued employment on his aban- doning the Union since that indirectly interfers with the right of the employee to choose a collective-bargaining representa- tive free of employer coercion.23 The discharge of picketing employees involved in a legal work stoppage for their own aid and protection has generally been held not to be violative of Section 8(a)(3) of the Act, because such discharges do not have the affect of discouraging union membership. However, discharges of this nature have been found to be violative of Section 8(a)(1) of the Act inasmuch as such conduct by the Respondent tends to interfere with the concerted activities by employees undertaken for their protection.24 It is the affect and not the motivation of an employer's action which deter- mines whether the Respondent has violated Section 8(a)(1) of the Act.25 Respondent argues that it was justified in discharging these striking employees because their actions in shutting the trans- mitter off and in refusing to return to work caused Respond- ent to violate a regulation of the Federal Communications Commission which requires that respondent maintain its sta- tions on the air a specified number of hours a day. Respon- dent's assertion is without merit. I know of nothing in the Federal Communications Act which enslaves employees or in any manner diminishes the protection afforded all other em- ployees under the National Labor Relations Act. The argu- ment advanced by this Respondent was asserted by the Re- spondent in N.L.R.B. v. Globe Wireless, Ltd., 193 F.2d 748 (C.A. 9, 1951), enf. 88 NLRB 1262. There the court affirmed a Board holding saying: " . . the Communications Act does not confer upon licensees thereunder the right to con- script labor, nor does it expressly or by reasonable implica- tions 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 their mutual aid and protection is expressly recognized in the National Labor Relations Act [citations omitted]. It seems purely fanciful to assume, as does respondent, that the failure of a licensee to perform the obli- gations prescribed by the Communications Act would consti- tute a breach of such obligations on the licensee's part in instances where the failure was caused by an economic strike."26 The employees had a right to strike. In exercising 23 Georgia Hosiery Mills, 207 NLRB 781 (1973) 24 Modern Motor, Inc v N.L R B, 198 F 2d 925 (C A 8, 1952) 25NLRB.v McCartron,etal,d/b/a Price Valley Lumber Co, 216 F 2d 216 F 2d 212 (C A 9 1954), cert denied 348 U S 943 HENNEPIN BROADCASTING ASSOCIATES 335 that right they took the only reasonable and prudent course of action available to them-namely, turning off the transmit- ter and snaking the stations reasonably secure and safe before leaving the premises to exercise rights given them under the Act. Respondent further asserts that the strike was illegal and therefore unprotected because the announcer -engineers gave no notice and voiced no demands before they walked out. Again the Respondent's assertion is erroneous . Notice is not a prerequisite to engaging in a protected strike . In N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 14 (1962), the court said : "We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made." I find the discharge of all the announcer-engineers because they refused to abandon their picketing and striking activities in protest of the unfair labor practice discharge of Rich Carey to have further interfered with the Section 7 rights guaran- teed by the Act and therefore to be further violative of Section 8(a)(1) of the Act. 6. The reinstatement Respondent argues that even though an employee's aims may be legitimate , if the concerted activity amounts to disloy- alty, such disloyalty may merit a discharge and/or relieve the employer of reinstatement obligations . In support thereof Re- spondent cites Local Union No. 1229, International Brother- hood of Electrical Workers (Jefferson Standard Broadcasting Co.), 94 NLRB 1507, enfd . 346 U.S. 464 (1953). In that decision the Supreme Court in overruling the D .C. Circuit and agreeing with the Board quoted the Board as follows: "We .. . do not decide whether the disparagement of pro- duct involved here would have justified the employer in dis- charging the employees responsible for it had it been uttered in the context of a conventional appeal for support of the union in the labor dispute ." The court then says, "This un- derscored the Board's factual conclusion that the attack of August 24 was not part of an appeal for support in the pend- ing dispute. It was a concerted , separable attack purporting to be made in the interest of the public rather than in that of the employees." An examination of the letter which was dated July 19, and mailed to the advertisers of station KTCR fails to place it in the same category as the handbill dis- tributed by the employees in the Jefferson Standard Broad- casting Co. case. (See Resp. Exh. 2.) The letter makes it crystal clear that the employees are involved in a labor dis- pute with radio station KTCR and sets forth some of the reasons why they are involved in a strike . Thereafter the handbill appeals to the advertisers to support the strikers by withholding their advertising from KTCR with whom the striking employees are involved in a legal labor dispute. 26 While the Glabe Wireless case dealt with an economic strike situation, the principle enunciated would be even more applicable in an unfair labor practice strike Also see Central Broadcasting Corporation , d/b/a WENO, 182 NLRB 866 (1970), enfd 441 F.2d 1145 (C A 6, 1971), wherein the Respondent company raised similar defenses before the Board Clearly this handbill is distinguishable from that which was employed in the Jefferson Standard Broadcasting Co. case and is not the kind of conduct which would remove the employees from the protection of Section 7 of the Act.27 The Respondent introduced evidence in the form of an affidavit by Robin Kay Hanson to support its contentions that conduct by at least one of the employees had been of such a nature as to prevent his reinstatement. Robin Hanson's testimony was inconsistent with her affidavit and as a conse- quence I place no reliability in either her testimony or her affidavit. (See Resp. Exh. 7.) Robin Hanson was not a credi- ble witness. Additionally, even if the statements attributed to Greg Ellsworth were found to have been said, it is highly doubtful that such language or conduct would prevent rein- statement or justify a discharge. In Blue Jeans Corpora- tion, 170 NLRB 1425 (1968), the Board held that an em- ployee who had threatened to "kill the S.O.B." who had informed the employer that she was soliciting for the Union and threatened a supervisor with a pair of scissors, would not forfeit her right to reinstatement since her misconduct was provoked by her employer's unfair labor practices. In so hold- ing the Board quoted in part from N.L.R.B. v. M & B Head- wear Co., Inc., 349 F.2d 170 (C.A. 4, 1965), as follows: "An employer cannot provoke an employee to the point where she commits such an indiscretion as is shown here and then rely on this to terminate her employment.. . . The more extreme an employer's wrongful provocation the greater would be the employee's justified sense of indignation and the more likely its excessive expression. To accept the argument addressed to us by the company would be to provide employers a method of immunizing themselves from the only real sanction against violations of section 8(a)(3). . . . [R]efusal to reinstate her would put a premium on the employer's misconduct." After a careful examination of all the evidence, I find nothing in this case so flagrant as to render any of the employees unfit for further service or to excuse the Respondent from its obliga- tions toward the discharged employees.28 7. The unconditional offer to return to work According to the testimony of Gregory Ellsworth , on June 26 (at a time when the parties were involved in the Minneapo- lis, Minnesota, District Court concerning Respondent's ef- forts to obtain a temporary restraining order), Mr. Hansing, the attorney for the Charging Party, made an unconditional offer on behalf of the employees to return to work. According to Ellsworth, Mr. Rock responded by saying that the two guys who shut his transmitter down would never work there again, but he didn't know about the others. Hansing report- edly replied, "These guys want to go back to work. Will you give me an answer by Thursday?" To which Mr. Rock re- sponded, "I don't know." Carey's testimony corroborates the testimony of Ellsworth as to the occurrence of the conversa- tion. Both Ellsworth and Carey testified that they recalled this incident rather specifically because immediately follow- ing its occurrence they were asked by Mr. Hansing if each of them had heard the conversation. They were asked by Hans- ing to repeat what they had heard and then told that they 27 See Texaco, Inc, 462 F 2d 812 (C A 3, 1972) 28 ODamel Oldsmobile, Inc., 179 NLRB 398 (1969) 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should carefully remember the particular conversation. Mr. Rock does not deny that a conve, sation concerning the em- ployees returning to work occurred. His version is only slightly different as to the language used by Mr Hansing According to Rock, Hansing said, "What would you say if I told you all of the employees were willing to return to work?" Rock then said, "Are they?" And Hansing replied, "No." Rock then stated, "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 every employ Mr. Ellsworth because of the personal remarks he made against me, but that will remain to be seen." According to Rock, Hansing then said, "Would you think about this and call me within a week or 10 days?" Mr. Rock replied, "Our jobs have been filled, these people walked out. If you want to contact me, you certainly are very welcome to do it." I find it rather incredible that Rock would have made such a statement as "our jobs have been filled fi l l e d . unless it was in reply to Mr. Hansing's unequivocal offer on behalf of the employees to return to work. Thereafter on August 16, when no offer of reinstate- ment from the Respondent had been forthcoming, Mr. Ne- well wrote to the Respondent again making an unconditional offer on behalf of the eight striking employees and Carey to return to work (G. C. Exh. 11). Respondent refused to rein- state the strikers in a letter dated August 31 Mr. Newell responded to the Respondent's August 31 letter on Septem- ber 6, stating: "We stand by my letter of August 16, 1973. On the basis of this evidence it seems perfectly clear and I find that Hansing made an unconditional offer on the part of the employees to return to work on June 26 and thereafter the offer was repeated in letters of August 16 and September 6." 8 The refusal to bargain The evidence and testimony unmistakably establishes that seven employees had signed AFTRA application cards on June 15. On that date, there were only 10 employees em- ployed by Respondent in what I have heretofore found to be an appropriate bargaining unit. The Union demanded recog- nition by letter dated June 15 which was received by Re- spondent on June 18. Respondent has ignored the demand an, continues to refuse to recognize the Union. During the interim period, Respondent has committed a number of un- fair labor practices calculated to dissipate and destroy the Union's majority as heretofore set forth in detail. Under such circumstances the Respondent is guilty of violating Section 8(a)(5) of the Act and I so find. There remains, however, the question of whether in the cirumstances of this case, consider- ing particularly the nature and extent of Responder"s other unfair labor practices a remedial bargaining order is war- ranted under the principles declared in N.L.R.B. v Gissel Packing Co., Inc., 395 U.S 575 (1969). It might be well to recite significant portions of the Su- preme Court's decision in Gissel in order to determine its application to the facts herein. The traditional approach utilized by the Board for many years has been known as the Joy Silk doctrine. Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enforced &7 U.-$ App. D.C. 360, 185 F.2d 732 (1950). Under that rule, an employer could lawfully refuse to bargain with a union claiming representative status through possession of au- thorization cards if he had a "good faith doubt" as to the union's majority status, instead of bargaining, he could insist that the union seek an election in order to test out his doubts. The Board, then, could find a lack of good faith doubt and enter a bargaining order in one of two ways. It could find (1) that the employer's independent unfair labor practices were evidence of bad faith, show- ing that the employer was seeking time to dissipate the union's majority. Or the Board could find (2) that the employer had come forward with no reasons for enter- taining any doubt and therefore that he must have re- jected the bargaining demand in bad faith. An example of the second category was Snow & Sons, 134 NLRB 709 (1961), enforced 308 F.2d 687 (C.A. 9th Cir. 1962), where the employer reneged on his agreement to bargain after a third party checked the validity of the card signa- tures and insisted on an election because he doubted that the employees truly desired representation Continuing, the Court traced the Board's modifications to the Joy Silk doctrine and then said: Thus, an employer can insist that a union go to an elec- tion, regardless of his subjective motivation, so long as he is not guilty of misconduct,- he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union [Emphasis supplied.] After considering the cases and the legislative history and concluding that Congress intended that there were acceptable methods of ascertaining majority status other than by a Board-conducted election, the Court said: And we have held that the Board has the same authority even where it is clear that the union, which once had possession or cards from a majority of the employees, represents only a minority when the bargaining order is entered. Franks Bros. Co. v. N.L.R.B., 321 U.S. 702 (1944). We see no reason now to withdraw this authority from the Board. If the Board could enter only a cease- and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him to "profit from [his] own wrongful refusal to bar- gain," Franks Bros., supra, at 704, while at the same time severely curtailing the employees' right freely to deter- mine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain; and any election held under these circumstances would not be likely to demonstrate the employees' true, undistorted desires. In giving approval to a bargaining order without an election, the Court then concluded: The only effect of our holding here is to approve the Board's use of the bargaining order in less extraordinary cases marked by less pervasive practices which nonethe- less still have the tendency to undermine majority strength and impede the election processes. The Board's authority to issue such an order on a lesser showing of HENNEPIN BROADCASTING ASSOCIATES employer misconduct is appropriate, we should empha- size, where there is also a showing that at one point the union had a majority; in such a case, of course, effectuat- ing ascertainable employee free choice becomes as im- portant a goal as deterring employer misbehavior. In fashioning a remedy in the exercise of its discretion, then, the Board can properly take into consideration the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likeli- hood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue. In the instant case, there can be no doubt but that the Respondent's illegal course of conduct-interrogating em- ployees, promising wage increases, and discharging em- ployees engaged in union or concerted activity-was cal- culated to cause the Union's majority strength to be dissipated and I have so found. To hold otherwise would allow the Respondent to profit by its own illegal conduct. I find that the Respondent's course of conduct was not only violative of Section 8(a) (1) and (3) of the Act, but its course of conduct after having knowledge of the Union's majority status and demand of recognition was clearly a violation of Section 8(a)(5) of the Act. Under the doctrine expressed by the United States Supreme Court in Gissel, supra, a bargain- ing order remedy is appropriate in situations where, in fact, a union's majority can be clearly established by authorization cards and the nature and extensiveness of the employer's unfair labor practices make a subsequent free choice by the employees problematical. Clearly a Gissel-type remedy is warranted under all the circumstances of this case. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. American Federation of Television and Radio Artists, Twin City Local, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees employed by the Respondent at its AM and FM radio stations located in the greater Saint Paul-Minneapolis area, who regularly are heard on the air, excluding office clerical employees , guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union, at all times since June 15, 1973, has been and is now the exclusive representative of a majority of the em- ployees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on June 18, 1973, and at all times since, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the appropriate bargaining unit, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 337 6. By discharging Rich Carey on June 21, 1973, because he was actively promoting the employees to become interested in and to join the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act: 7. A strike which commenced on June 22, 1973, because of Respondent's discharge of Rich Carey was an unfair labor practice strike. 8. By its course of conduct and language to the striking employees on June 22, 1973, Respondent tactically dis- charged the following named strikers in violation of Section 8(a)(1) of the Act: John Bortnem, Gregory Ellsworth, Robert Gustafson, James Hubbard, Patrick McKeever, and Greg Peterson. 9. By interrogating the employees concerning their interest or activity relating to the Union and in seeking to ascertain who was the most active union adherent, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 10. By promising wage increases to employees Bortnem and Hubbard after knowledge of the Union' s claims of majority representation, the Respondent engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 12. Any and all allegations contained in the complaint not specifically found herein are to be dismissed. THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Respondent has committed unfair labor practices tending to destroy the Union's majority and to make a fair election impossible. The affects of such conduct can only be remedied by an order requiring Respondent to bargain with the Union. By its conduct in interrogating its employees, by discharging Rich Carey because of his union activity, and by tactically discharging a majority of the employees who elected to strike in protest of Respondent's unfair labor practices, Respon- dent's conduct has been so egregious as to warrant a Gissebtype bargaining order.29 Clearly the unfair labor prctices committed herein by the Respondent were so perva- sive and outrageous that their coercive effects cannot be eliminated by the application of traditional remedies.30 Ac- cordingly the remedy shall require the Respondent to recog- nize and, upon request, bargain with the Union. Having found that Respondent unlawfully discharged Rich Carey in violation of Section 8(a)(3) of the Act, it will be recommended that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges and to make him whole for any loss of earnings or 29 Gissel Packing Co, Inc., supra; Peerless ofAmenca, Inc, 198 NLRB 982 (1972). 30 United Electric Company, 194 NLRB 665 (1967) 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any other monetary losses he may have suffered as a result of such discrimination from the date of his discharge until reinstated. Having also found that Respondent tactically discharged the striking employees and that the strike was an unfair labor practice strike from its inception, I shall recommend that Respondent be required to reinstate, or offer immediate and full reinstatement to each employee to his prestrike or sub- stantially equivalent position with all the rights and benefits he would have accumulated but for the discrimination against him, discharging, if necessary, any strike replacements. The Respondent shall also be required to make whole all of the striking employees for any loss they may have suffered as a result of the Company's failure to reinstate them beginning 5 days after their unconditional application for reinstatement was made. I have found that counsel representing the Union made an unconditional offer of reinstatement on behalf of the employees to the Respondent's vice president and general manager, Mr. Rock, on June 26, thus the backpay shall run from July 4, 1973, until the date of their reinstatement. Any backpay will be determined in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" The Respondent, Hennepin Broadcasting Associates, Inc., its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Interrogating employees in an effort to ascertain their interest or activity on behalf of a union, or other efforts of the employees to engage in concerted activity. (b) Directly or indirectly promising employees increases in wages tending to influence them in their interest and activity on behalf of the Union or other concerted activities. (c) Discouraging membership in the American Federation of Television and Radio Artists, Twin City Local, AFL-CIO, or any other labor organization by discharging or in any other manner discriminating against employees in re- gard to hire or tenure of employment or any other term or condition of employment. (d) Refusing to bargain collectively with American Federa- tion of Television and Radio Artists, Twin City Local, AFL-CIO, as the exclusive bargaining representative of the employees in the following unit: All full-time and regular part-time employees employed by the Respondent at its AM and FM radio stations located in the greater Saint Paul-Minneapolis area who regularly are heard on the air, excluding office clerical employees, guards and supervisors as defined in the Act, 31 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. constitute a unit appropriate for the purposes' of collec- tive bargaining within the meaning of Section 9(b) of the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through represen- tatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the Union named above as exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed statement. (b) Offer to Rich Carey immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings or other monetary losses suffered by him, in the manner set forth in the section above entitled "The Remedy." (c) Offer to Bortnem, Campbell, Ellsworth, Gustafson, Hubbard, McKeever, Peterson, and Walby immediate and full reinstatement to their former or substantially equivalent positions, respectively, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any em- ployees hired subsequent to the day the unfair labor practice strike began. In the manner set forth in "The Remedy," make each of them whole for any losses they may have suffered as a result of Respondent's failure to reinstate them beginning 5 days after their unconditional offer to return to work, which date I have found to be June 26, 1973, and continuing until the date of their reinstatement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary for determination of the amount of backpay due and the right of reinstatement under the terms of this order. (e) Post at its principal office in the city of New Hope, Minnesota, and on its bulletin boards, or such other place as the usual notices to employees are posted, at its KTCR-AM and KTCR-FM radio stations, copies of the attached notice marked "Appendix."32 Copies of such notice, on forms provided by the Regional Director for Region 18, after being signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be 32 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." HENNEPIN BROADCASTING ASSOCIATES 339 taken by Respondent to insure that said notices are not al- within 20 days from the date of this Order, what steps the tered, defaced, or covered by any other material. Respondent has taken to comply herewith. (f) Notify the Regional Director for Region 18, in writing,