Capital Broadcasting Co., Inc.

In the Matter of CAPITAL BROADCASTING- COMPANY, INC., and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 443, AFFILIATED WITH THE A. F. L. Case No. C-1669.-Decided March 8, 19/1 Jurisdiction : radio broadcasting industry. Unfair Labor Practices Interference, Restraint, and Coercion: questioning concerning union member- ship ; transfer following presentation of union contract of certain duties performed by union employees with respect to which union was seeking to bar- gain ; promulgation of restrictive rules which are applicable solely to union members. Discrimination: discharge of wife of union member immediately following presentation of union contract coupled with suggestion that her husband might be replaced; discharges for refusals to sign certain pay slips at a time when the union was negotiating for a contract and respondent knew that the union had advised its members not to sign these pay slips; discharge of union leader for misconduct without permitting an explanation. Collective Bargaining: majority established by membership in union-failure to negotiate in good faith; by meeting with but not agreeing to the proposals of the union and failing to advance counterproposals ; by changing duties of and imposing restrictive rules on union members; by discriminatory discharges of all union members ; by withdrawal from union meetings following discharge of union members. Remedial Orders : all discharged employees ordered reinstated; three dis- charged employees to receive back pay from date of discharge to date of issuance of Intermediate Report and from date of order to date of offer of reinstatement ; back pay from date of discharge to date of offer of reinstatement when employee refused offer of reinstatement in protest against employer's unfair labor practices. Unit Appropriate for Collective Bargaining : all radio engineers. Mr. C. Paul Barker, for the Board. Hill and Hill, by Mr. William Inge Hill, of Montgomery, Ala., for the respondent. Mr. 0. A. Walker, of Shreveport, La., Mr. James R. May, of Montgomery, Ala., and Mr. Lawson Wimberly, of Washington, D. C., for the Union. Mr. Louis S. Penfield, of counsel to the Board. 30 N. L. R. B., Na. 25. 146 CAPITAL BROADCASTING COMPANY, INC. 147 DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Electrical Workers, Local 443, affiliated with the A. F. of L.,' herein called the Union, the National Labor Relations Board, herein called the. Board, by the .Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated May 9, 1940, against Capital Broadcasting Company, Inc., Mont- gomery, Alabama, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac. tices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein, called the Act. Copies of the complaint, accompanied , by notices of hearing, were duly served upon the respondent and upon the Union. With respect to the unfair labor practices the complaint alleged, in substance, that the respondent (1) on or about December 4, 11, 30, 1939, and on or about January 8, 1940, and at all times thereafter, refused to bargain collectively with the Union as the exclusive rep- resentative of all the engineers and electricians employed by it al- though the Union then represented a majority of such employees for collective bargaining and said employees constituted an appro- priate bargaining unit; (2) on or about December 6, 1939, discharged or laid off and thereafter refused to reinstate Mrs. Harold Peck because her husband, Harold Peck, was a member of and active on behalf of. the Union; (3)', during the "period between December 30, 1939, and January 7, 1940, discharged or laid off and thereafter refused to reinstate H. R. Johnson, Harold Peck, and John Albert Thompson because of their membership in or activities on behalf of the Union; (4) between December 3, 1939, and January 8, 1940, and thereafter, questioned its employees,about their union affiliation, denied them privileges ' enjoyed prior to, ' and harrassed and em- barrassed them because of such affiliation, warned them to drop out of the, Union, and by other acts; and conduct attempted to and did interfere with, restrain, and coerce its employees in their right to be represented by a labor-organization,; (5) by the foregoing and other acts and conduct interfered with, restrained,, and coerced its em. ployees in the ,exercise of rights guaranteed by Section 7 of the Act. ' Incorrectly designated in some of the formal papers as "International Brotherhood of Electrical workers, affiliated with the A. F. L " 440135-42-V ol 30-=11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 31, 1940, the respondent filed an answer denying generally the allegations of unfair labor practices contained in the complaint. Pursuant to notice, a hearing was held in Montgomery, Alabama, on June 3, 4, 5, and 6, 1940, before W. P. Webb, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and participated in the hearing. The Union appeared' by its' representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. - During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of- evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju= dicial errors were committed. The rulings are hereby affirmed. On September 12, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (1),' (3), and (5) and Section 2 (6) and (7) of the Act, and recommended that the com- plaint against the respondent be dismissed in its entirety. On Sep- tember 28, 1940, the Union filed exceptions to the Intermediate Report and to-the record. On October 11, 1940, the Union requested- oral argument before the Board and submitted to the Board a brief in support of its exceptions. ' On November 18, 1940, pursuant to notice,- a hearing for,the -pur- pose of oral argument was held before the Board in Washington, D. ' C. The respondent and the Union were represented. by counsel, presented oral argument, and otherwise participated in the hearing. The Board has considered the exceptions 'and brief filed by the Union and in so far as the exceptions are consistent with the findings of fact, conclusions of law, and order set forth below, hereby sustains them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Capital Broadcasting Company, Inc., an Alabama corporation, owns and operates a radio station located in Montgomery, Alabama, known by the call letters WCOV. It is duly licensed by the Fed= eral Communications Commission to operate its radio transmitting apparatus on a frequency of 1210 kilocycles with a power of 100 watts for the purpose of broadcasting daily radio programs. - . Programs broadcast from WCOV are consistently received within a radius of from'18 to 25 miles of Montgomery within the State of Alabama, but in some instances test and regular programs are heard CAPITAL BROADCASTING COMPANY,, INC. 149 in States other than Alabama. WCOV is not a part of any chain of radio stations broadcasting on a national hook-up but on occasion it broadcasts play-by-play descriptions of football and baseball games and other programs originating in States other than Alabama and sent to WCOV by direct wire. Five times daily for 10-minute periods WCOV broadcasts world-wide news furnished it directly from Trans- radio News Service, New York City. A substantial part of its pro- grams consist of playing records rented from a Hollywood, California, company and shipped back and forth by express between WCOV and the Hollywood company. Two times a day it broadcasts New York Stock Exchange reports furnished by direct wire from New York. During the baseball season it regularly broadcasts baseball scores, supplied by direct wire through Western Union, of games played in various States of the United States. All the broadcasting equipment used by WCOV was purchased and shipped to it from the Collins Radio Company, Cedar Rapids, Iowa. In addition to issuing to WCOV the above-mentioned liscense to broadcast, the Federal Communications Commission licenses WCOV's radio engineers, approves the equipment it uses, conducts regular tests to check its frequency, and requires that it regularly submit financial and other reports, and, within certain limits, controls ma- terial permitted in its broadcast programs. Approximately 10 per- sons are employed in connection with the operation of WCOV. IS. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local 4,43. is a labor organization affiliated with the American Federation of Labor. It admits to membership, among others, all licensed radio engineers employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology In the fall of 1939 the Union commenced to organize the radio engineers employed at radio stations WCOV and WSFA in Mont- gomery, Alabama. By approximately the middle of November 1939 the Union had enrolled as members John Albert Thompson, H. R. Johnson, and Harold Peck, the only persons then employed as radio engineers at station WCOV, and all such engineers employed at WSF„A. At WCOV these radio engineers were employed to op- erate, test, and maintain the electrical equipment -used to broadcast radio programs. In December 1939 their' duties included-operation,, maintenance, and repair of electrical equipment at the so-called trans- mitter house from which the broadcast programs are put on the air,. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance and repair of electrical equipment in a studio situated about 4 miles from the transmitter house from which a majority of such programs originate and are relayed to the transmitter house, and making so-called "remote pick-ups," an operation which consists of setting up the electrical apparatus used to relay to the transmitter house programs originating at points outside the studio. For these services Thompson , the chief engineer, received $150 per month and Johnson and Peck received $18.50 and $15 per Week, respectively. On December 4, 1939, the Union presented to G. W. Covington, president of the respondent , a proposed closed-shop contract cov- ,ering the wages, hours, and other conditions of employment of the above-mentioned radio engineers .2 The proposed contract proscribed lock-outs or work stoppages over matters relating to the agreement, and provided inter a'lia for arbitration of disputes , a 9-hour day with all time in excess ' thcreof compensated at overtime rates, a basic 40- hour week, a minimum weekly rate of $53.33 for the chief engineer, and $40 for the assistant engineers With overtime hourly rates of $2 and $1.50, respectively , and for time and a half for any engineer on duty who is' required to copy news sent over radio telegraph. In addition to provisions for vacations with pay and compensation for injuries incurred by employees while on duty , the' proposed agree- ment further provided that the respondent would pass no rule con- flicting with the terms of the contract or restricting the personal liberties of the engineers ; that the respondent , except in cases of dismissal for moral turpitude or wilful neglect of duty, would dis- miss no engineer without giving 2 weeks ' notice with pay; and that the respondent would furnish transportation to any engineer re- quired to make a remote pick-up, the time of the engineer making such pick-up to be computed from his departure from the studio until .his return. With the presentation of this contract on December 4 the respond- ent for the first time was apprised that its engineers were members of the Union. While the terms of the contract were not discussed at the December 4 meeting , the Union at that time informed Covington that an identical contract had been presented to WSFA and proposed that both contracts be discussed at a later date at a joint meeting with officials of both stations. 2 The agreement uses the term "technicians " to describe the persons covered thereby and defines a technician as "any person employed for the operation and/or maintenance and/or construction and/or repair of any transmitting and/or receiving equipment . . . as used in radio broadcasting." It was brought out at the heal mg that the only persons employed at WCOV eligible for membership in the Union and purported to be covered by this contract were the three radio engineers above described We shall construe the term technicians as used in the proposed contract to be limited to such radio engineers alone and not to include announcers, Transradio Press operators , and others whose duties may include, in part, the operation of some transmitting or receiving equipment CAPITAL BROADCASTING COMPANY, INC. . 151 -On December 4, following the presentation of the aforesaid con- tract, Covington visited the transmitter house, and engaged in a conversation with Johnson, the radio engineer then on duty. John- son testified that Covington asked him if he had joined the Union and that when Johnson replied that he "didn't know," Covington stated that Johnson "certainly should be able to know whether . . . [he] belonged to the union or not." Johnson then told Covington that he "had reason to believe that his application; had been accepted" and Covington commented that if Johnson "had not joined it he would advise . . . [him] to give it a lot of consideration," and then reminded him who had "been signing . . . [his] checks for the last year." Covington then asked if Johnson had the interests of the station at heart and when Johnson replied in the affirmative, com- mented that it was "quite evident where . . . [his] interest is" if he, joined a union. The conversation was thereupon concluded and Covington left the transmitter house. Covington admitted asking Johnson if he had joined the Union and that Johnson had first re- plied that he "didn't know," and later explained that "he had his application in." Covington denied any further discussion with, Johnson "with reference to his union affiliation" or that he "threat- ened" Johnson because of such affiliation. The Trial Examiner credited Covington's testimony and found that Covington did noth- ing more than question Johnson about his union membership. We are unable to agree with the Trial Examiner and we do not believe that Covington concluded the conversation upon hearing that John- son had joined the Union. Covington had not questioned the Union's majority status earlier in the day and he offered no explanation for questioning Johnson thereafter.3 Moreover, Covington, while deny-, ing categorically that he threatened Johnson, did not specifically deny the accuracy of Johnson's version of the conversation. We be- lieve, furthermore, that Johnson's testimony with respect to the entire conversation is consistent with that part of the conversation admitted by Covington. In the light of all the testimony we find that Covington made the statements attributed to him by Johnson. During the same day, December 4, following the presentation of the proposed contract, Covington informed Lucille Peck, the wife of Harold Peck, the engineer, that her services would not be required after December 9. On December 6 he paid her through the 9th and told her that she need not return thereafter. Mrs. Peck had been 'Questioning individual employees regarding their union affiliations has been held in itself to be a violation of Section 8 (1) of the Act See Matter of Greensboro Lumber Company and Lumber and Sawmill Workers Local Union No. 2688, 1 N . L R. B. 629; Trenton Garment Company and International Ladies Garment Workers Union , 4 N. L. R. B. 1186; Matter of William Randolph Hearst, Hearst Corporation, American Newspapers Inc. and King Features Syndicate, Inc. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530 , enf'd as mod N. L. R. B. v. Hearst et at, 102 F. ( 2d) 658 (C. C. A. 9). 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed since September 1939 to answer the telephones and per- form stenographic and clerical work at the respondent's studio and offices. For such services she received a salary of $10 a week. The respondent contends that it discharged Mrs. Peck to effect a reduc- tion in its, operating expenses. There is abundant evidence that for some time prior to December 4 the respondent's business had not been profitable. Covington testified that in August 1939 a diminish- ing income and pressure from creditors had made apparent to him the necessity for reducing operating expenses, and that thereafter he considered, and in some instances adopted, measures directed toward this end.4 On December ,1 he effected a reduction in, rent by placing the program and commercial departments, which formerly had occupied two rooms, in a single office. This change, according to Covington, resulted in more persons becoming available to answer telephones thereby eliminating, in part, Mrs. Peck's chief function and enabling him further to reduce expenses by " dispensing with her services. As heretofore pointed out, Mrs. Peck performed duties in addition to answering the telephone and she testified, without contradiction, that for some time preceding her lay-off, Covington and other officials had been instructing her in new duties which were to arise as a consequence of this rearrangement of the office, and that on the day preceding her discharge Covington had been working with her at rearranging certain files and had told her to arrange them in the "way it would be most convenient to . . . [her]." Mrs. Peck further testified without contradiction that about 2 weeks before her discharge, in contemplation of opening charge accounts, she had received assurances from both Mrs. E. B. Robinson, the secretary and part owner of the, respondent, and R. B. Raney, the commercial .manager, that her "job was safe." Although Covington did not regularly dictate to Mrs. Peck, he called her to his office on the day of her discharge and dictated, to her certain letters addressed to four previous applicants for posi- tions as radio engineer with the respondent, in which he requested that such applicants advise him if they were still interested in jobs with the respondent. Covington made no explanation why these letters were dictated to Mrs. Peck rather than to Mrs. Robinson, who regularly took his dictation. In connection with these letters he tes- 4 In August 1939 Covington reduced the cost of news furnished by Transradio Press In the ensuing months salaries of certain department heads were reduced and certain per- sonnel changes were made, including the discharge of one announcer and two office em- ployees. In September the economies effected by these changes were in part offset, however, by hiring Mrs Peck in the office and Harold Peck as engineer. On December 1, in an etlort to improve the quality of the announcing staff Covington discharged two announcers and hired two more highly paid announcers . One of these was subsequently discharged in January 1940 and not replaced. In January Covington further reduced the cost for the rental of records used In broadcasts by subscribing to a less extensive service. CAPITAL BROADCASTING COMPANY, ZINC. - 153 tified that the terms of the contract presented that day "would have been utterly impossible for the Capital Broadcasting, Company to comply- with," and that the Union, intimated that failure to sign such .contract might result in a walk-out of the radio engineers. Ac- cordingly, he feared that a strike might cause the station to go off the air if replacements were not available, and thus be subject to the loss of its Federal Communications Commission license. - "So in self-defense" he testified, he felt he "had better go and write some engineers who had formerly. applied to . . . [him] for posi- tions." - Shortly after December 4 Covington transferred remote pick-up work from the engineers to the station announcers, and at the same tithe denied to the engineers further use of an automobile theretofore used by them.. As above-mentioned, making remote pick-ups was up to this time one of the regular duties of the engineers and the proposed contract specified that they should do this work and pro- vided for minimum hours with time and a half for overtime. The automobile, used chiefly to facilitate making remote pick-ups, was owned by Covington but for a considerable period it had been placed in the custody of Thompson and was regularly used by him and the other engineers. Covington at no time consulted with the Union or with any of the engineers concerning the transfer of this work. He testified that making remote pick-ups is a non-technical job, that the transfer of such work to the announcers effected- a reduction in the work of the engineers without a reduction in their pay, and that the use of the automobile was naturally transferred to the em- ployees thereafter making the remote pick-ups. One or 2 days after December 4, Covington issued instructions for- bidding the engineers to use the telephones at the transmitter house except to call the studio, and forbidding visitors at the transmitter house without a permit signed by him. The transmitter house is out of town,and somewhat inaccessible and the hours worked there by the engineers are irregular. Prior to this time it had been customary, and a matter of great convenience, for the engineers to use the telephone there located to call taxis and communicate with their homes. There is no showing that employees at the studio were similarly restricted in their use of the telephone or that the adoption of such a policy at the transmitter house effected an econ- omy in operation. Visitors, although never permitted to pass beyond a certain rail, formerly had been permitted admission to other parts of the transmitter house without a special permit.5 5 The Trial Examiner found that a similar rule was in effect with regard to visitors in other radio stations. The record shows that WSFA, the only other radio station referred to, had a rule prohibiting ordinary visitors but that engineers from other stations were permitted to visit the transmitter house at any time. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first joint meeting for collective bargaining was held on Decem- ber 11, at the WSFA office. It was attended by Covington , representing WCOV, Howard Pill, representing WSFA, and Shelkofsky and Dun- can, engineers at WSFA, Thompson, the chief engineer at,WCOV, and James R. May, the international representative , all representing the Union . Most of the time at the meeting was taken up "by'argu- ment from the two stations as to whether or not they would sign an agreement with the Brotherhood ." On December 12 the same _parties again met and Covington and Pill requested that further meetings be postponed until after the Christmas holiday rush season . The union representatives proposed that if Covington acid Pill would agree that the provisions of. any contract later signed should be retroactive to December 4, it would have no objection to delaying further negotia- tions. The parties reached no agreement on this point, but the Union consented to postpone the meeting as requested when it was agreed that Covington would increase the weekly wages of both Peck and Johnson immediately and that both employers would later meet with the Union continuously until "the agreement was signed , or settlement made by the parties." On December 23 for the first time the respondent requested each salaried employee to sigh a so-called "pay slip" before obtaining his weekly salary check. These pay slips were to be signed in two places. The first signature acknowledged receipt of the amount due for a particular week and the second that this amount was "in full payment of all wages to date." Concerning these pay slips Covington testified that following a visit by a representative of the Wage and Hour Divi- sion of the Department of Labor the preceding week, he had made inquiries but had been unable to ascertain with certainty, whether employees at WCOV were subject to,the Wage and Hour provisions of the Fair Labor Standards Act,s herein called the Wage and Hour Law, but he had been advised that until the question could be definitely determined he should keep accurate employment records- for all em- ployees. Pursuant to this advice and without directly consulting representatives of the Wage and Hour Division concerning their re- quirements for compliance or conferring with the Union regarding its position, he prepared and presented these pay slips. Prior to receiving their December 23 pay checks, all the salaried employees, except Johnson , signed both portions of these pay slips as requested. Thompson, who was paid on a monthly basis and conse- quently received no check on December 23, advised Johnson to sign only the first portion of the pay slip acknowledging receipt of the amount due for that particular week. Johnson followed this advice . - At a union meeting held sometime between -December 23 and 30, 1940, the Union 52 Stat. 1060 , 53 Stat. 1266. CAPITAL BROADCASTING COMPANY, INC. 155 decided - that signing the second part acknowledging the amount ' re- ceived as in full payment of all wages might have an adverse effect on any claims for overtime which might arise if the respondent should be found subject to the Wage and Hour Law, or if a collective contract with•retroactive provisions-should be entered into between the respond- ent and the Union. Thompson, Peck, and Johnson were all present at this meeting and were advised not to sign the second part of the pay slip when next requested by the respondent. On December 30 the respondent discharged H. R. Johnson. ' John- son had been employed as a radio engineer by the respondent since December 15, 1938. Johnson called' at the respondent's business office on that date to get his weekly salary check. Covington presented him with a pay slip of the type above described which Johnson refused to sign telling Covington that he had been advised not to do so. Covington told him that it was "a rule of the company" that all' eihployees sign these pay slips. Johnson then requested per- mission to 'consult Thompson. Covington replied that if Johnson "was going to have to consult Thompson every time . . . [he] did anything around the station . . '. [he] had better work for Thomp- son," and if he "couldn't abide by the rules, why we [the respondent] couldn't use him any more." Johnson thereupon left and his salary check was later mailed to him. Johnson at no time made a specific claim for overtime wages due or that the amount set forth on the slip was not the amount due for that week. He testified that he feared that signing might adversely effect any claim which might arise and upon advice of the Union he had determined not to sign the second portion of the pay slip. The Trial Examiner found that Covington was not aware that Johnson was acting on the advice of the Union. We do not agree with this finding. The record is clear that Johnson told Covington he had been advised not to sign the pay slips and requested permission to consult Thompson before his final refusal. Since Thompson had represented the Union at the -December 4, 11, and 12 collective bargaining meetings and since the question of whether the provisions of the proposed contract would be retroactive was still pending as a subject of collective bargaining it is clear that Covington understood that Johnson was acting on the advice of the Union and sought to consult Thompson in his capacity as union representative. It is clear, further, that Covington was aware that the question presented by the pay slips presented an issue that was the subject of collective bargaining. We find that Cov- ington had knowledge that Johnson's refusal was based upon advice from the Union. On January 3 another joint meeting for collective bargaining was held at Pill's office and attended by the same parties. The union representatives first sought to discuss the pay slip`s and the reinstate- 156 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD ment of Johnson. Covington stated that since these quest.ions,did not concern WSFA they should be discussed at a separate meeting in his office. Such meeting was arranged for that afternoon. May testified,, without contradiction, that the remainder of the morning meeting was "more or less of a repetition of the conferences held prior to that time," that both Covington-and Pill repeated that-they had not "made up . [their] mind whether to sign an agreement or not;" and that the Union was unable to get "either party to agree to any- thing or enter into a discussion on any point." The,union representa- tives requested that the stations submit counterproposals but ' none were forthcoming and the meeting adjourned. , Three days later,, on January 6, 1940, the respondent discharged Harold Peck. Peck had been employed,as a radio engineer by the respondent since September 24, 1939. On the afternoon , of Jan, nary 3, 1940, Peck, who had not yet received his December 30 salary check, accompanied May and Shelkofsky when they went to Coving- ton's -office for the conference concerning the pay slips and the reinstatement of Johnson. Upon arriving at the 'office Peck re- quested his check but Covington demanded that-he first sign a pay slip. Peck expressed willingness to sign the first part of the slip but refused to sign the second part,. , All the parties discussed the discharge of Johnson, Covington explaining that it had been caused by Johnson's failure to comply with the rules and sign. a pay slip. May and Shelkofsky testified that they then informed Covington that the Union had advised its members not to sign the second part of these pay slips because signature might adversely affect possible claims for overtime under the Wage and Hour Law, and because the Union believed that this rule "had been put into effect because of our [the Union's] having mentioned retroactive pay in confer- ences previously." Covington denied that he was so informed by the union representatives and the Trial Examiner credited his, testimony. We do not agree with the Trial Examiner. This conference be- tween Covington and the two,union representatives was arranged for the, express purpose of discussing the pay slips and the reinstate- ment of Johnson, whom Covington had admittedly discharged .for refusing to, sign a. pay, slip, and the refusal by Peck presented an identical issue. Under the circumstances it seems clear that Coving- ton, who, as we have found above, already knew that 'Johnson's refusal was based on advice of the, Union, must have been fully aware that Peck had been smiilarly advised, and, as the - union rep- resentatives testified, must further have been informed as to the reasons for the Union's position. We find that at the time of, Peck's discharge Covington had full knowledge that, Peck's refusal to sign the pay slips was based on the -advice of the Union and that he was fully apprised of the reasons for the position taken by the Union: CAPITAL BROADCASTING COMPANY, INC. ^ 157 At the conclusion of the discussion Covington still insisted that Peck sign the second part of the slip and upon Peck's refusal told him "if he couldn't comply with a rule of the company, why we wouldn't need him anymore." The conference was then concluded and Peck's check was later mailed to him with a letter stating, that because of his failure to comply with the rules his services would not be required after January 6. On•January 6 another joint meeting was held in Pill's office attended by, the same parties as before, and by O. A. Walker, international representative of the Union. Walker testified, without contradic- tion, that as each paragraph was. read he "would endeavor to get both of the employers to state whether that particular part of the agreement was acceptable or not, and Mr. Pill occasionally would agree that there was not anything wrong with it," but Covington, though not setting forth objections to any particular part or making any counterproposals, informed him "that he was not agreeing to anything." We find that this meeting progressed substantially as described by Walker. On January 7, 1940, the respondent discharged John Albert Thomp- son, the last union member in its employ. Thompson had been employed as chief radio engineer since the station first opened in December 1938 and was regarded by the respondent as a competent engineer. Thompson was active in the Union and had represented the engineers at all the conferences held with Covington. For some months prior to January 7 the respondent had in its employ one Sidney Ducote, a Transradio Press machine operator. Ducote was a licensed radio engineer, but his duties at that time consisted in receiving news reports transmitted in code by Transradio Press from New York and transcribing such reports for broadcast from WCOV. He was not engaged in engineering work at the time and therefore was not eligible to union membership. When Peck's discharge became effective on January 6, Covington was left with but one regular radio engineer. He thereupon moved the Transradio Press machine to the transmitter house and directed that Thompson and-Ducote share the engineering-work, and that Ducote, in addition to assuming new engineering duties, continue to operate the Trans- radio Press machine. On Saturday and Sunday, January 6 and 7, Ducote was assigned to put the station on the air and to continue on duty thereafter until 2 o'clock in the afternoon when Thompson was to relieve him. Because Ducote was unfamiliar with the apparatus at the transmitter house Thompson feared that he might have diffi- culty in putting the station on the air for the first time.. On Satur- day morning Thompson voluntarily went to the transmitter house to assist him. Although Thompson was still the chief engineer Ducote objected to his presence and indicated that Covington had placed him 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in charge of the transmitter. After some argument Thompson put the station on the air and then left. Upon reporting for his regu- lar shift at 2 p. in. Thompson discovered that the station was then operating in excess of the 100 watts permitted by its license and .hat Ducote had not Made proper entries in the "log books" which the Federal Communications Commissions requires all radio stations to keep. Thompson called these matters to the attention of Ducote whose answer was "'a surly statement that it didn't make any differ- ence." Thompson then ordered him to make the corrections in the log books. Ducote refused and after some argument left the trans- mitter house without transcribing the regular news report, which resulted in one of the respondent's regular news broadcasts being omitted that day. Ducote did not testify at the hearing but Coving- ton testified that Ducote explained to him that Thompson had pre- vented him from taking the news report. Thompson admitted having had an argument with Ducote but denied that he was responsible for Ducote's failure to take the transradio press reports. On Sunday morning, January 7, Ducote was unable' to get the station on the air as scheduled at 6: 30 a. in. At 8 o'clock Covington summoned Thompson from his home in order to put the transmitter in operation. Thompson questioned Ducote as to the difficulty and according to Thompson, whose testimony was undenied, Ducote re- sponded in a surly and evasive manner. Thompson discovered that the oscillator was not working properly and was soon successful in correcting the trouble and putting the station on the air. Thompson further testified that Ducote intimated that on the preceding night 'Thompson had fixed the transmitter so that it would not work. Thompson, ired by this accusation, admittedly lost his temper and engaged in a violent argument with Ducote, during the course of which he threatened and cursed him. Thompson then left the trans- ,mitter house. After hearing an account of the dispute from Ducote, Covington requested that Thompson come to the office to give his version of the altercation. When Thompson arrived about 3 :30 that afternood he found Raney, the commercial manager, also in the office. Before any discussion regarding the incident at the transmitter house could take place, Thompson stated that if Raney was to be a witness to the conversation he also wished to call a witness. Covington re- plied that it would not be necessary and asked Thompson to "give me your keys, I don't need you anymore." On January 9 Thompson, May, Walker, and a Board representa- tive visited Covington's office to seek reinstatement of the discharged engineers. Covington explained to them that business conditions did riot warrant the reinstatement of Johnson and Peck and that he was planning to effect a reduction in operating expenses by replacing CAPITAL BROADCASTING , COMPANY, INC. 159 them with an engineer who could, perform engineering duties and also transcribe Transradio Press reports , a task which neither Peck nor Johnson could perform . He did, however, offer to reinstate Thompson if he would "behave himself and comply with our rules and quit wanting to fight. " The Union would not agree to the rein- statement of Thompson unless Johnson and Peck were also reinstated. Covington's position remained unchanged and the matter was there- after dropped. On January 12 the joint meetings for collective bargaining were again resumed at Pill's office. Further discussion of the agreement was continued at this time but without result. At this time the re- spondent no longer had union members in its employ and Coving- ton asked if he need continue attending these meetings . There is some dispute as to the answer given him . Covington testified that Walker informed him that he need no longer attend further con- ferences since he no longer employed union members , and Pill, in effect, confirmed this testimony . Walker testified , however, and May confirmed him, that he told Covington that he "could satisfy himself about continuing to meet with us." Walker further testified that the Union would meet with him at any time but insisted that first they "should go into a consideration and discussion of the reemploy- ment of the men whom he had discharged." The Trial Examiner credited the testimony of Covington and,Pill in this regard.. We do not agree with his conclusion ., We do not believe that the Union , while asserting that its members had been discriminatorily discharged , would have been willing to abandon fur- ther negotiations with the respondent merely because the respondent. no longer employed union members. It is more reasonable to assume that the Union would, as May and Walker testified, insist that the reemployment of these discharged employees first be considered before! negotiating -further for a contract . We believe , and find, that Cov- ington abandoned negotiations on January 12, 1940, because of his unwillingness to discuss further the 'reinstatement of the discharged radio engineers as requested by the Union. B. The appropriate unit and proof of majority The complaint alleges and the Trial Examiner found that the "engineers and electricians employed by the respondent constitute a unit appropriate for the purposes of collective bargaining." The record 'does not disclose any persons designated "electricians" em- ployed by the respondent but the afore-mentioned radio engineers engage- in electrical work which requires special skill and training and a license from the Federal Communications Commission. The 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent does not allege that a unit composed of its radio engineers is inappropriate. We find that all radio engineers employed by the respondent at radio station WCOV, Montgomery, Alabama, at all times material herein constituted and that they now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective baigain- ing and otherwise effectuates the policies of the Act. Early in November 1939 all three radio engineers employed by the respondent filed application blanks for membership in the Union and on November 18, 1939, they became members. The Trial Exam- iner found that "from November 18, 1939, until January 5, 1940, the Union was the duly designated representative of the employees in the unit" found by him to be appropriate. The record shows that by January 6, 1940, two of these three radio engineers had been 'discharged and_ that on January 7, 1940, the third was discharged. Since we hereinafter find that such employees -were discharged be- cause of the respondent's unfair labor practices they retain their status as employees within the meaning of Section 2 (3) of the Act after the dates of their respective discharges.? We find that on November 18, 1940, and at all times thereafter, the Union was the duly designated bargaining representative of a majority of the respondent's employees in the unit found to be ap- propriate. Pursuant to Section 9 (a) of the Act, the Union was at all times after November 18, 1939, the exclusive representative of all employees in the appropriate bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and 'other' 'conditions of employment. C. Conclusions with respect to the unfair labor practices The Trial Examiner in his Intermediate Report found that the evidence did not sustain the allegations in the complaint that the respondent interfered with, restrained, and coerced its employees within the meaning of Section 7 of the Act, that the discharges of Mrs. Peck, Johnson, Peck, and Thompson were discriminatory within the meaning of Section 8 (3) 'of the Act, or that the respondent re- fused to bargain with the Union within the meaning of Section 8 + Black Diamond Steamship Corp. v. N. L. R B., 94 F. (2d) 875 , 879 (C C A. 2), cert. denied 304 U. S. 579 enf'g Matter of Black Diamond Steamship Corporation and Marine Beneficial Association, Local 33, 3 N. L. R. B. 84; N L. R B. v Stackpole Carbon Co., 105 F. (2d) 167, 176 (C. C. A. 3) cert denied 308 U. S. 605, modifying and denying rehearing Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No 502, 6 N. L. R. B. 171. 'CAPITAL BROADCASTING COMPANY, ' INC. - 161 (5) of the Act. We believe that the Trial Examiner erred-and that an ' examination of 'the facts heretofore set forth leads to contrary conclusions. The respondent 's first knowledge of the union affiliations and col- lective bargaining aspirations of its employees came with the presen- tation of the contract on December 4 and we, believe that it is more than a coincidence that within scarcely a month thereafter the re- sponderit discharged all the union members in its employ and ceased all negotiations 'with 'the Union. 'ire are of the opinion that the actions of the respondent after December 4 show a pattern of unlaw- ful intimidation , coercion , and discrimination which was designed to undermine the, authority of the Union and to render ineffective its efforts to secure a collective agreement. The questioning of Johnson by Covington at the transmitter house on December 4 concerning his union membership and the accompanying disparaging remarks regarding the loyalty of union members which we have heretofore found that Covington made were acts in themselves of a coercive nature." - Moreover, we are, of the opinion that the transfer of duties in connection with the remote pick-ups from the engineers to the,an- nouncers and the promulgation of the ' rules with respect to the use of the telephones and the reception of visitors , both applicable only to the radio engineers , were designed to discourage the radio en- giueers from continuing their union activity . The respondent did not contend that any of 'these innovations effected economies. Cov- ington testified only that the remote pick-up work was of a nontech- nical nature and that he transferred ' it to the announcers to effect a reduction. in their work without a reduction in their pay. It is significant , we" believe, that the respondent effected the transfer of this work at a time when the Union was seeking to bargain with respect to it. Plainly the engineers were led to believe that to this extent their self-organization and efforts to bargain collectively would be fruitless. We are further of the opinion that the respond- ent invoked the other restrictive rules referred to above in order to discourage the engineers from continuing their organizational ac- tivities. We find that by the questioning of Johnson , the transfer of the remote pick-ups, and the promulgation of the afore -mentioned rules, the respondent has interfered with, restrained ,- and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 8Matter of Luckenbach Steamship Company , Inc. and Lucl, enbach Gulf Steamship Com- pany, Inc. and Maritime Office Employees International Longshoremen 's and Warehouse- men's Untion ,'Local No 1-15. 8 N L R. B 1280: Matter of Triples' Screw Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1583, 25 N L R B 1126 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not agree with the Trial Examiner's conclusion that the respondent discharged Mrs. Peck on December, 4 in order to reduce operating expenses. While it is true that with the business running at a loss Covington was seeking to -reduce operating expenses, we do not believe that, as Covington explained,-the rearrangement of the office rendered Mrs. Peck's services unnecessary and that her dis charge followed solely to effectuate an economy. Since this rear- rangement was itself designed to reduce operating expenses, had been planned for some time, and actually took place on December 1, 1940, the resulting economies must have been apparent before December 4, yet there is nothing in the record to show that at any time before December 4, the respondent contemplated that the change would also result in a further reduction of operating expenses by enabling it to dispense with Mrs. Peck's services. On the contrary, it is clear that the respondent had no such intention for up to the day before her discharge, Covington and others had instructed Mrs. Peck in new duties arising as a direct consequence of this rearrangement, and shortly before had assured her that her position was secure.. We are of the opinion that the circumstances of Mrs. Peck's dis- charge establish that her services were no longer desired because of her husband's union membership. Immediately after the presen- tation of the contract. Covington called her to his office, though she was not his regular stenographer and had never taken letters of this nature before, and dictated to her the letters suggesting the pos- sibility of her husband's replacement. Later the same afternoon, he discharged her. From all the evidence we are ,convinced that reduc- tion of operating expenses was only a pretext, and that by -Mrs. Peck's discharge, coming as it did immediately following the presen- tation of the union demands and coupled with the suggestion that her husband might be replaced, Covington sought to coerce and intimidate Peck and the other union members and thus discourage them in further resorting to the Union. To discharge Mrs. Peck under such circumstances was a singularly effective means of dis- couraging union activity for by, such action the respondent showed to both Peck and the other radio engineers that its hostility to the Union extended even to the families of union members? We find that the respondent by discharging Mrs. Peck discrimi- nated in regard to her hire and tenure of employment thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 9Matter of Memphis Furniture Manufacturing Company and Furniture sWorkers Local Unison No 11111, United Brotherhood of Carpenters and Joiners of America, 3 N. L. It. B. 26, enf'd Memphis Manufacturing Co v N L R B, 96 F. (2d) 1018 (C C A. 6 ), cert. denied, 305 U S 627. CAPITAL BROADCASTING COMPANY, INC. 163 The Trial Examiner found that Covington was not motivated by a desire to interfere with the union activities of its employees in presenting the above-mentioned pay slips and that the discharges of Johnson and Peck, which followed, were for failure to sign these pay slips and thus conform with a legitimate rule of the respondent. We-are- of -the opinion; however, -that even assuming that Covington was not motivated by a desire to interfere with the Union in pre- senting these pay slips, he did not discharge Johnson and Peck solely for failure to conform with a rule . Both discharges came at a time when the parties were negotiating for a contract which was viewed unfavorably by the respondent, and at a time when the respondent knew that Johnson and Peck had been advised by the Union not to sign the second part of these slips for fear of prejudicing their rights. Although a visit from the Wage and Hour Division prompted Covington to keep wage and hour records for his em- ployees, there is no showing that he had consulted the Wage and Hour Division as to the form in which such records should be kept. Under ordinary circumstances, we doubt that Covington would have considered a refusal to sign the second part of the slips of such great importance as to cause the summary discharge of two compe- tent employees . However, the Union was seeking a wage increase and bargaining negotiations were still pending as to whether such increase should be retroactive to December 4. The respondent's in- sistence that the engineers sign a slip acknowledging that they had been paid all wages to date had the appearance of precluding further bargaining on this issue and placed Peck and Johnson in the posi- tion where to hold their jobs they must yield individually on an issue which was at the time the subject of collective bargaining between the respondent and the Union. When it is considered that Covington's immediate reaction to the presentation of the contract was to dictate letters indicating his intention to replace the engineers, that he followed this with the discharge of Mrs. Peck, the question- ing of Johnson, the transfer of the remote pick-ups, and the enact- ment of restricting rules applicable only to engineers, it seems clear to us that the refusals of Johnson and Peck to sign the' pay slips presented were not the real reasons for their respective discharges. We are convinced that the respondent used such refusals as a pre- text for the discharges and that its real motive was to strike a.telling blow at the authority of the Union. We find that the respondent discharged H. R. Johnson and Harold Peck because of their mem- bership in the Union and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. 440135-42-Vol. 30-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that Thompson was discharged for misconduct and not because of his union activity. We do not be- lieve, however, that Thompson's misconduct was the motivating cause for his discharge. Thompson had been employed as chief engineer and was considered competent in his work. At the time of his dispute with Ducote he was still chief engineer and his concern about Ducote's inexperience and his resentment at Ducote's refusal to obey orders finds explanation in his desire faithfully 'to perform his duties. That this concern was justified is abundantly supported by the fact that on Sunday morning, January 7, Ducote was unable to get the station on the air and that Covington found it necessary to call in Thompson to assist. As we have found above Covington was in the midst of bargaining negotiations with the Union which was deniandnng a contract which he viewed unfavorably. Thompson was a union leader who had actively participated in all negotiations theretofore had. We are convinced that Covington's app<u•ent willingness to credit all that was told him by an inexperienced nonunion employee, and his haste to discharge, without explanation, a competent engineer employed since the station opened, can only be explained by his hostility toward . Thompson as a leader of the Union. We find that the respondent discharged John Albert Thompson be- cause of his membership in the Union and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. The Trial Examiner found that the respondent did not refuse to bargain collectively on and after December 4, 1939. No real at- tenmpt was made to bargain on December 4 but we are convinced from an examination of the entire' record, that the conduct of Covington at the December 11 and January 3, 6, and 12 meetings shows a refusal on the part of the respondent to bargain in good faith on those dates and thereafter. The Trial Examiner found that inasmuch as Cov- ington met several times with the Union and discussed the proposed contract in detail, lie had bargained in good faith and that nego- tiations ceased after January 12 because the respondent no longer employed union members. This conclusion overlooks Covungton's attitude at the collective. bargaining meetings, as well as the respond- ent's conduct since December 4. Throughout these bargaining con- ferences Covington, while engaging in discussions of the various parts of the agreement, did not agree to any portion of the agree- ment and refused to offer any counter-proposals of his own although asked to do so by the Union. Thus, while not agreeing to the pro- posals of the Union, Covington at the same time avoided any affirma- tive indication of possible terms to which he might be willing to agree. CAPITAL BROADCASTING COMPANY, INC. 165 This is a technique not calculated to make productive negotiations possible, and when the other activities of the respondent are con- sidered it is clear that it was not the purpose of Covington that these conferences should end in successful collective bargaining. While he continued attendance at the bargaining meetings, Covington was evidencing his true attitude toward the Union by various anti- union acts including the transfer of work covered by the contract and the imposition'of restrictive rules applicable only to the engi- neers. These changes, inaugurated as they were without consulting the Union, are in themselves destructive of the principles of col- lective bargaining for their effect was to "undercut" the author- ity of the Union with respect to subjects of negotiation and thus discredit it as a bargaining representative and destroy its power -to bargain.10 The respondent was not content, however, with merely undermining the authority of the Union but sought more effectively to evade its bargaining duties by the discriminatory discharges of all the union members. The respondent's intention in this connection is;clearly shown by the immediate withdrawal of Covington-from the collective bargaining meetings following the discharges although the Union insisted that the reinstatement of the discharged employees had then become the primary subject of bargaining. Such conduct on the part of an employer is in itself a direct refusal to bargain.'1 We are satisfied from a consideration of all the evidence that the respondent was deliberately pursuing a policy designed to evade its duty to bargain and that it continued meeting with the Union for the purpose of giving the appearance of obedience to the Act without, as the Act requires, attempting in good faith to bargain collectively with the Union.12 We find that the respondent on December 11 and at all times there- after has refused to bargain collectively with the Union as the ex- clusive representative of the employees in the appropriate unit and that by such refusal it has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 10Matter of Williams Coal Company and United Mine Workers of America, District No. E3, 11 N. L. R. B. 579, 644; N. L R. B. v. Remington Rand, Inc , 94 F. (2d) 862, 870 (C. C. A 2 ), cert den. 304 U. S 576, enf'g Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N L. R. B -626. "Matter of Chicago Apparatus Company and Federation of Architects, Engineers, Chem- ists and Technic'ans, Local 107, 12 N.L. R. B 1002, enf'd N L R. B v Chicaq'o Apparatus Co, December 13, 1940 (C. C. A. 7) ; Matter of Riverside Manufacturing Company and Amalgamated Clothing Workers of America, 20 N L R B 39-1 ' Matter of Globe Cotton Mills and Textile Workers Organs-tng Committee, 6 N L. R. B 461, enf'd as mod. Globe Cotton Mills v N L R B, 103 F. (2d) 91 (C C. A 5) ; Matter of Atlas Mills Inc and Textile House Workers Union No 2283, United Textile Workers of -America, 3 N. L R B 10. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. Since Mrs. Peck, Johnson, Peck, and Thompson were all discharged because of the respondent's unfair labor practices, we shall, in accord- ance with our usual custom, order the, respondent to offer each of them reinstatement without prejudice to his seniority and other rights and privileges. Further to effectuate the policies of the Act we would normally order reinstatement with back pay from the dates of the respective discharges to the time of the respondent's offer of reinstatement. In view of the Trial Examiner's recommendations in the cases of Mrs. Peck, Johnson, and Peck, the respondent could not have been expected to reinstate such employees after it had received the Intermediate Report. It should not, therefore, be required to. pay them back pay from that time until the issuance of this De- cision.13 Accordingly we shall order that Mrs. Peck, Johnson, and Peck receive sums equal to the wages they would normally have earned from the dates of their respective discharges until the date of the receipt of the Intermediate Report by the respondent, and from the date of this Decision and Order until the offers of reinstatement less net earnings 14 during these periods. With respect to Thompson, the Trial Examiner found that the respondent offered him reinstatement 'a Matter of Kentucky Firebrick Company and United Brick and Clay Workers of Amer- ica, Local No. 510, 3 N L R B 455, enf'd N. L. R B v. Kentucky Firebrick Co., 99 F, (2d) 89 (C. C. A. 6) ; Matter of Kuehne Manufacturing Company and Local No. 7191, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R B. 304. "By net earnings" is meant earnings, less expenses, such as for transportation, room, and board incurred by an employee in connection with obtaining work elsewhere than with the respondent, Rhich would not have been incurred but for his unlawful discharge and the consequent necessity of seeking employment elsewhere. See Matter of Crosset Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Saw- mill Workers Union, Local $590, 8 N. L: B B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered' as earnings. See Republic Steel Corporation v ,N. L. R. B., decided by United States- Supreme Court, November 12, 1940. CAPITAL BROADCASTING COMPANY, INC. 167 provided "that he would conduct himself properly with" Ducote and that the offer of reinstatement was not conditioned upon the with- drawal of the charges herein by the Union. We agree with the Trial Examiner and are of the opinion that Covington was within his Tights in -requesting that Thompson conduct himself properly with Ducote. Thompson, however, refused to return to work unless John- son and Peck were also reinstated. We have refused to award back pay to an employee who voluntarily refuses to return to work, even if in protest against an employer's unfair labor practices.15 In such -cases we have awarded back pay only from the date of the discharge until the offer of reinstatement. We shall so provide in the case of Thompson. In order to remedy the respondent's illegal refusal to bargain, we will order the respondent to bargain collectively with the Union. CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local 443, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. The radio engineers employed by the respondent at radio station WCOV, Montgomery, Alabama, have at all times material herein constituted and they now constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Brotherhood of Electrical Workers, Local 443, affiliated with the A. F. of L., was on November 18, 1939, and at all times material herein has been the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. ' 4. By refusing on or about December 11, 1939, and at all times thereafter to bargain collectively with International Brotherhood ,of Electrical Workers, Local 443, affiliated with the A. F. of L., as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of Lucille Peck, H. R. Johnson, Harold Peck, and John Albert 'Thompson and thereby discouraging membership in International Brotherhood of Electrical Workers, Local 443, affiliated with the A. F. of L., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ' Matter of Hemp t Company of Illinois, a corporation and Federal Labor Union, Local No 21284, Macomb, Illinois, 9 N. L. R B 449. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By interfering with,, restraining, and coercing its employees in_ the exercise of the rights guaranteed in Section 7 of the Act, the- respondent has engaged in and is engaging in unfair labor practices,- within the meaning of Section 8 (1) of the Act. 7.-The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the- respondent, Capital Broadcasting Company, Inc., Montgomery, Ala- bama, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : , (a) Refusing 'to bargain collectively with International Brother-- hood of Electrical Workers, Local 443, affiliated with the A. F. of L.,. as the exclusive representative of its radio engineers; (b) Discouraging membership in International Brotherhood of- Electrical Workers, Local 443, affiliated with the A. F. of L., or in any other labor organization of its employees by discriminating in regard to the hire or tenure of employment or any term or condition of employment; (c) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to fo_m, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. '2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with International Broth- erhood of Electrical Workers, Local 443, affiliated with the A. F. of L., as the exclusive bargaining representative of the employees in the unit found appropriate ; (b) Offer to Lucille Peck, H. R. Johnson, Harold Peck, and John Albert Thompson, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (c) Make whole Lucille Peck, H. R. Johnson, and Harold Peck for any losses of pay they have suffered by reason of their re- spective discharges by the payment to each of them of a sum of, money equal to that which each would normally have earned as wages during the periods from the date of his discharge to the date of CAPITAL BROADCASTING COMPANY, INC. 169 the receipt of the Intermediate Report by the respondent , and from the date of this Order to the time of such offer of reinstatement, less his net earnings , if any , during such period; (d) Make whole John Albert Thompson for any loss of pay he has suffered by reason of the respondent 's discriminatory discharge by payment to him of a suiii of money equal to that which he would normally have earned as wages from the date of his discharge until January 8 , 1940, the date on which he refused the respondent's offer of reinstatement, less net earnings during that period; (e) Post immediately in conspicuous places throughout its studio, offices, and transmitter house, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : ( 1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a), (b), and (c) of this Order; (2) that the respondent will take the miffirmative action set forth in paragraph 2 (a), (b), (c ), and (d) of this Order ; and (3 ) that the respondent's employees are free to become or remain members of International Brotherhood of Elec- trical Workers, Local 443, affiliated with the A. F. of L., and that the' respondent will not discriminate against any employees because of membership or activity in said organization; (f) Notify the Regional Director for the Fifteenth Region in writing within ten ( 10) days from the date of this Order what steps the respondent has taken to comply therewith. CHAIRMAN HARRY A. MTLLTS took no part in the consideration of the above Decision and Order.