Brown Radio Service and Laboratory

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 476 (N.L.R.B. 1946)

III the Matter of GORDON P. BROWN, AN INDIVIDUAL DOING BUSINESS
UNDER THE TRADE NAME AND STYLE OF BROWN RADIO SERVICE AND
LABORATORY and NATIONAL ASSOCIATION OF BROADCAST ENGINEERS &
TECHNICIANS
Case No. 3-C-810.-Decided August 26, 1946
Mr. Cyril W. O'Gorman, for the Board.
Mr. Jacob Ark, of Rochester, N. Y., for the Respondent.
Mr. A. T. Powley, of Brooklyn, N. Y., and Mr. Charles Snyder, of
Rochester, N. Y., for the Union.
Mr. James Zett, of counsel to the Board.
DECISION
AND
ORDER
On May 9, 1946, Trial Examiner Irving Rogosin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and-was engaging in certain unfair labor
practices and recommending that the respondent cease and desist there-
from, and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, on June 3, 1946,
the respondent filed exception's to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner and finds
that no - prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as hereinafter modified.
1. The Trial Examiner found that the strike beginning August 12,
1945, was caused by the respondent's unfair labor practices and not, as
claimed by the respondent, by the employees' desire to compel the
respondent to comply with a Directive Order of the War Labor Board.
It is to be noted in this connection that an unfair labor practice strike
does not lose its character as such merely because economic reasons may
70 N. L. R. B., No. 38.
476
BROWN RADIO SERVICE AND LABORATORY 477
have contributed to or even precipitated the work stoppage.' In the
present case, it appears that the respondent had been unwilling at the
very outset to engage in the good faith bargaining required under the
Act for, as the Trial Examiner found, the respondent originally
delayed bargaining with the Union and finally acceded to the Union's
request to negotiate with it only after the Union threatened to file
strike notices. Thereafter, the respondent, in disregard of his obli-
gation to the statutory representative, unilaterally made changes in
work schedules and gave individual wage increases to employees within
the bargaining unit represented by the Union. Also during this
period the respondent engaged in other illegal conduct, as set forth
in the Intermediate Report. Moreover, on the day preceding the
strike, one of the employees complained to the union representative
that the respondent had made the third unilateral change in the work
schedule. Thereupon, the union representative made three unsuccess-
ful attempts to contact the respondent. Although advised of these
calls by his secretary, the respondent made no attempt to communicate
with the Union; instead,-he directed his secretary to call a meeting of
his employees to discuss the Union on August 13, to which meeting he
failed to invite the union representative. Later in the day the Union
filed a 30-day strike notice pursuant to the War Labor Disputes Act.
During the afternoon of the same day the respondent kept the Union's
activities under surveillance and on that evening the employees held
their strike meeting. %
The real causes of a strike are to be found "in the whole sequence,
of events" 2 preceding it, and this motivation is to be determined "in
the light of the cumulative effect of [the employer's] prior tainted labor
practices." 3 Upon the entire record in this case, we conclude that,the
afore-mentioned strike was caused by the respondent's unfair labor
practices and' we, therefore, affirm the Trial E'xaminer's findings
thereon 4
IN. L R. B. v. Remington Rand, Inc , 94 F. (2d) 862, 871-872 (C. C. A. 2), cert. denied
304 U S 576 ; N. L R. B. v Stackpole Carbon Co , 105 F. ( 2d) 167,175-'176 ( C. C. A 3),
cert. denied 308 U. S . 605 , Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472, 478
(C C. A. 3), cert . denied except as to other provisions 309 U. S. 684.
2 N. L. R B. v. Barrett Co., 135 F. ( 2d) 959, 961-962 (C. C A. 7).
B Great Southern Truck ing Co. v. N. L. R . B, 127 F. ( 2d) 180, 186 (C C. A. 4 ), cert.
denied 317 U. S. 652.
4 Employee Christ ' s testimony concerning the strike meeting lends further support to our
conclusion herein
well, we said that we couldn 't go to the meeting because we didn't have Union
representation , and we * * * didn't feel we would be wise in going to it. Besides
that, about 2 weeks previously we had received a new schedule which we feel was
pretty tough , besides the fact that Mr. Snyder had not been consulted on that too
* * * and we had received remarks from - other operators that were not in the
Union and other operators that were in the Union who talked with Mr. Brown and
we thought Brown would carry this thing out for years.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner also found that the record did not support
the respondent's contention that some of the striking employees had
engaged in the wrongdoing allegedly committed at the commencement
of the strike, and the Trial Examiner therefore rejected the respond-
ent's contention that the strikers should be denied reinstatement for
that reason. We affirm this finding. In so concluding, however, the
Trial Examiner further stated that he would have reached a similar
result "even if the evidence were sufficient to establish that the control
room failure was clearly attributable to the strikers." On the con-
trary, we do not condone the alleged wrongdoing and we would have
considered such misconduct as sufficient justification for discharge of
an employee who had been clearly and unmistakably identified as a
participant therein.5 We find, however, that the record does not
identify any of the striking employees as having engaged in the mis-
conduct alleged, and in the absence of such showing we will not, for
that reason, deny reinstatement to any of the employees herein.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations' Act, the National Labor Relations
Board hereby orders that the respondent, Gordon P. Brown, doing
business as Brown Radio Service and Laboratory, Rochester, New
York, and his agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with National Association
of Broadcast Engineers & Technicians as the exclusive representa-
tive of all his employees within the appropriate unit described in
paragraph 2 (a) of this Order, and from taking unilateral action,
without prior consultation with the Union, with respect to rates of
pay, wages, hours of employment, or other conditions of employ-
ment affecting the said employees ;
(b) Discouraging membership in National Association of Broad-
cast Engineers & Technicians or in any other labor organization of
his employees, by discharging or refusing to reinstate any of his
employees, or in any manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment;
(c) Interrogating any of his employees, orally, or by meazis of
employment applications or any like or similar devices, with regard'
to their union membership or affiliations or their sentiments regard-
ing unions;
(d) Engaging in any surveillance of the union activities of his
employees ;
6 Matter of Mt. Clemens Pottery Company , et al and S . S. Kresge Company, 46 N. L. R.
B. 714, 715-761, 765, enf'd as modified 147 F. (2d) 262 (C. C. A. 6).
BROWN RADIO SERVICE AND LABORATORY 479
(e) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist National Association of Broad-
cast Engineers & Technicians or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purposes of collective bar-
gaining or other mutual aid and 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 National Association
of Broadcast Engineers & Technicians as the exclusive representa-
tive of all of his employees performing the duties of radio operator
and studio operator, excluding the chief engineer and assistant chief
engineer, at the respondent's studio and transmitter plant, and ex-
cluding all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, in regard to rates of pay,
wages, hours of employment, or other conditions of employment;
(b) Offer the employees whose names are set forth in Appendix
A of the Intermediate Report attached hereto, immediate and full
reinstatement to their former or substantially equivalent positions, dis-
missing, if necessary, any employees who were hired to replace the
said employees subsequent to August 12, 1945, without prejudice to
their seniority and other rights and privileges;
(c) Make whole the said employees whose names are set forth in
Appendix A of the Intermediate Report attached hereto, for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them, by payment to each of them of a sum of
money equal to that which each would normally have earned as
wages from November 10, 1945, the date on which, after they uncon-
ditionally offered to return to work, they were discriminatorily re-
fused reinstatement, to the date of the offer of reinstatement, less the
net earnings of each during said period;
(d) Post at his broadcasting studio in Rochester, New York, and
his transmitter plant in Brighton, New York, copies of the notice at-
tached to the Intermediate Report marked "Appendix A." 6 Copies of
said notice, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by the respondent, be posted
by the respondent immediately upon receipt thereof and maintained by
him for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
6 This notice, however , shall he, and it hereby is, amended by striking from the first
paragraph thereof the words "RECOMMENDATIONS Or A TRIAL EXAMINER" and
substituting in lieu thereof the words "A DECISION AND ORDER "
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY, concurring in part dissenting in part:
I concur in this decision, except with respect to the finding that the
employees who participated in the strike are entitled to affirmative
relief under the Act.
From the record it appears that the strike notice required under
the War Labor Disputes Act was filed on August 11, 1945, and that the
employees went out on strike the following day without observing the
30-day waiting period required under that Act. I would therefore deny
reinstatement and back pay to these employees for the reasons set
forth in my dissenting opinion in Matter of Republic Steel Corpora-
tion, 62 N. L. R. B. 1008 (in which I discussed the legislative history of
the War Labor Disputes Act) .
INTERMEDIATE REPORT
Mr. Cyril W. O'Gorman, for the Board.
Mr. Jacob Ark, of Rochester, N. Y., for the respondent.
Mr. A. T. Powley, of Brooklyn, N. Y., and Mr. Charles Snyder, of Rochester,
N. Y., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by National Association of Broadcast
Engineers & Technicians, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Third Region
(Buffalo, New York), issued its complaint dated March 25, 1946, against Gordon
P. Brown, an individual, doing business under the trade name and style of
Brown Radio Service and Laboratory, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices af-
fecting 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 notice of hearing were duly
served upon the respondent and the Union. -
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent: (1) since on or about January 30, 1945 has vilified, dis-
paraged, and expressed disapproval of the Union ; interrogated his employees
concerning their union affiliations ; urged, persuaded and warned them against
membership in, or assistance to the Union ; threatened them with discharge or
other' reprisals if they joined or assisted the Union , for the purpose of discourag-
ing membership in or assistance to. the Union, granted a wage increase to some
of his employees on or about April 10, 1945; and from on or about January 30,
1945, to date, has kept under surveillance the union activities of his employees;'
(2) on or about November 10, 1945, refused and has since continued to refuse
1 As amended during the hearing, over the objection of the respondent , to allege
surveillance.
BROWN RADIO SERVICE AND LABORATORY 481
to reinstate certain of his employees who had concertedly ceased work and gone
on strike on or about August 11, 1945, as a result'of the respondent's unfair labor
practices and who thereafter, on or about November 8, 1945, had applied for re-
instatement, thereby discriminating in regard to the hire or tenure or terms or
conditions of employment of the said employees, and thereby discouraging mem-
bership in the Union; 2 (3) since on or about November 20, 1944, and at all times
thereafter, has failed and refused to bargain collectively with the Union notwith-
standing that the Union had at all times since October 18, 1944, been the rep-
resentative of a majority of the employees in an appropriate unit, and has, on
or about December 23, 1944, and thereafter, bargained directly and individually
with his employees within the appropriate unit concerning rates of pay, wages,
hours of employment and other conditions of employment, and granted wage
increases to such employees; and (4) by the foregoing acts, has interfered with,
restrained, and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent, in his answer filed April 9, 1946, admitted the allegations
concerning the nature and extent of his operations, and the designation of the
Union on or about October 18, 1944, as the exclusive representative of the
employees in the appropriate unit, but denied the commission of any unfair
labor practices.
Pursuant to notice a hearing was held at Rochester, New York, on April
9 and 10, 1946, before Irving Rogosin, the Trial Examiner duly designated by
the Chief Trial Examiner The Board and the respondent were represented by
counmel, and the Union by its iepresentatives. All parties participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues: At the
close of the Board's case, the respondent moved to dismiss the complaint. The
motion was denied., Motions to conform the pleadings to the proof with
respect to formal matters not affecting the substantive issues were granted
without objection at the close of the evidence Counsel for the Board and for
the respondent availed themselves of the opportunity afforded all parties to argue
orally upon the record. Although afforded an opportunity to do so, none of the
parties has filed a brief.
Upon the entire record in the case, from his observation of the witnesses,
and upon the basis of a view of the respondent's broadcasting studio -taken
before the close of the hearing, the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Gordon P. Brown, an individual doing business under the trade name and
style of Brown Radio Service and Laboratory, maintaining his principal' office
and radio broadcasting station under the call letters WSAY, at Rochester, New
York, and operating a transmitting plant in conjunction therewith in the Town-
ship of Brighton, County of Monroe, State of New York, has been engaged since
1936 in the transmission by radio of entertainment, advertising, and intelligence
under license granted by the Federal Communications Commission, into and
through the State of New York and into and through states of the United States
other than the State of New York. The radio programs transmitted by Station
2 The employees involved are
Joseph Durante Clara Weston
Helen Christ Prank Ciccoiicco
Beryl Shay
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WSAY are heard in States of the United States other than the State of New
York. Programs are also transmitted by direct telephone wire from points
located in the States of California, Illinois, Florida, and other States of the
United States to radio Station WSAY in Rochester and then transmitted by
Station WSAY over the air. The station serves almost daily as an outlet for
the Mutual Broadcasting System and the American Broadcasting Company
System as part of the so-called Mutual and ABC networks. Approximately 75
percent of the radio time of Station WSAY is devoted to sustaining and com-
mercial programs of national origin, originating from points outside the State
of New York. Programs transmitted over the air from this station are re-
ceived in states outside the State of New York. The respondent concedes that
he is engaged in commerce within the meaning of the Act i
II. THE ORGANIZATION INVOLVED
National Association of Broadcast Engineers & Technicians is an unaffiliated
labor organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
The respondent conceded at the hearing, as he had in his answer, that the unit
alleged in the complaint to be appropriate constitutes an appropriate unit for
the purposes of collective bargaining within the meaning of the Act; and that
a majority of the employees in the said unit designated the Union as their
exclusive bargaining representative on or about October 18, 1944, as established
by a cross-check conducted under the supervision of the Regional Director of
the Third Region of the Board.'
The undersigned finds, accordingly, that all employees of the respondent per-
forming the duties of radio operator and studio operator, excluding the chief
engineer and assistant chief engineer, at the respondent's studio and transmitter
plant, and excluding all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
The undersigned further finds that at all times since October 18, 1944, the
Union has been the duly designated representative of a majority of the employees
in the said appropriate unit, and that by virtue of Section 9 (a) of the Act was,
on October 18, 1944, and has since been, at all times material herein, the exclusive
representatives of all the employees in the said unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours, and other conditions of
employment.
2. The refusal to bargain
(a) Sequence of events
Early in November 1944, following notification by the Regional Director to the
parties of the selection of the Union, Allan T. Powley, president of the Union,
The findings in this section are based upon the allegations in the complaint and the
respondent's answer thereto, the testimony of the respondent, Gordon P. Brown, and the
concession of counsel for the respondent at the hearing.
There were five employees in the unit, all of whom designated the Union as their
collective bargaining representative.
BROWN RADIO SERVICE AND LABORATORY 483
attempted to communicate with the respondent to commence negotiations for a
contract. Powley telephoned the studio daily over a period of 4 to 6 days, while
he was in Rochester negotiating with other local radio stations, identified himself
to the switchboard operator, as well as to the respondent's assistant and personal
secretary, and, after stating the nature of his business, requested that the
respondent communicate with him at his hotel in Rochester. At no time during
Powley's stay in Rochester did the respondent communicate with him Later
that month Powley, accompanied by Charles F. Snyder, chairman of the Roches-
ter chapter of the Union, after having attempted without success to reach Brown
at his transmitter plant in Brighton, New York, drove to his home He was
informed that Brown was not in, but when Powley announced that "a man from
Washington [was] looking for him," he was finally ushered into Brown's office
at his home. Snyder did not accompany him into the house, but remained in the
car. Powley submitted a proposed contract to Brown and requested that a
date be set for a conference. Brown asked for an opportunity to consider the
contract, informed Powley that he intended to be in Washington on December 1
and suggested a meeting at the Hamilton Hotels Brown was not in Washington
on or about that date, nor did he communicate with Powley at the time.
Shortly afterward, Snyder called on Brown at his transmitter station and
requested him to set a elate for a conference, suggesting that he submit a -counter-
proposal. Brown stated that he would be unable to meet with the union repre-
sentatives until the beginning of the year or until such time as he had com-
pleted the construction of a new transmitter which he was then installing. Snyder
rejected this as unsatisfactory.
On December 11, 1944, Powley wrote the respondent that the Union had been
endeavoring to initiate contract negotiations since it had been "certified," and
complained of the respondent's failure to keep the appointment of December 1,
as well as of the futile attempts of Snyder to reach the respondent. The letter
further stated that unless the respondent communicated with Snyder by December
15, and informed him that he was prepared to begin negotiations, a 30-day strike
notice would be filed. Brown replied by telephone requesting that Powley delay
the filing of a strike notice for 10 days. Powley agreed to wait until December
23, and advised him that if he failed to confer with Snyder in the meantime he
would proceed with the strike notice. Soon afterward, on or about December 14,
Snyder learned from the employees that the respondent had inaugurated a change
in the hours of work in the operators' schedule. Snyder notified Powley in
Washington and was advised that he would request the services of a Conciliator.
Powley thereupon instructed the attorney for the Union to arrange for a con-
ciliator to confer with Snyder and the respondent in Rochester.'
At the conference held at the office of the respondent on December 18, 1944,
attended by Snyder, Brown, and the Conciliator, the change in the working
Although there is a conflict in the testimony as to whether a definite appointment was
made on this occasion , or whether , as contended by Brown, he merely stated that he
anticipated being in Washington at about that time and suggested that Powley communi-
cate with him at the hotel where he usually stayed, the undersigned finds, upon the basis
of Powley's credible testimony that he subsequently telephoned the hotel on November 30
and on the next 2 days to ascertain whether Brown had registered there, that Brown did
in fact make a definite appointment which he failed to keep without notifying Powley.
Some support for this conclusion is found in a letter from Powley to Brown, dated
December 11, 1944, received in evidence, in which Powley referred to Brown's failure to
keep that appointment.
Although the respondent testified that it was he who called in the Conciliator, the
undersigned does not credit his testimony as against Snyd'er's and Powley ' s, upon the
basis of which the above finding is made.
712344-47-vol. 70-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
schedule was discussed with the union representative for the first time It was
agreed that the employees would continue working in accordance with the new
schedule, which was to have become effective the day before, for a trial period of
1 or 2 weeks, upon the respondent's assurance that he would provide the employees
with some relief.
A further conference was held at the respondent's office between Snyder and
Brown on December 23, 1944, at which, Brown submitted his counterproposal.
Snyder examined it and stated that he would submit it to' the members of the
Union employed by the respondent and would communicate with him after they
had considered it. The parties were unable to reach agreement upon most of
the substantive provisions of a contract, and again enlisted the services of the
Conciliator. On January 11, 1945, after a conference participated in by the Con-
ciliator, a memorandum was prepared indicating the issues upon which the parties
had reached agreement, as well as those upon which the parties were in dispute,
and the matter was submitted to the Regional War Labor Board. On July 10,
1945, following hearings held on March 0 and 13, 1945, that agency issued its
Directive Order."
On or about July 18, 1945, Howard B. Mouatt, secretary-treasurer of the
Rochester chapter of the Union, telephoned Brown and requested a meeting for
the purpose of embodying the terms of the Directive in a collective bargaining
agreement Brown inquired as to the date of the "dead line" and, when Mouatt
referred him to the Directive, Brown stated that there would be a "slight delay,"
inasmuch as he intended to file a petition for review A petition for reconsidera-
tion filed by the respondent was denied by the Regional War Labor Board on
August 9, 1945, the Industry members dissenting, and the respondent thereupon
appealed to the National War Labor Board.
On the morning of August 12, 1945, the radio and studio operators of the
respondent concertedly remained away from work, and went on strike under
circumstances related hereinafter. They have not since been reinstated.
(b) The respondent's unilateral action following the designation of the Union
1. The change in the operators' work schedule
As has already been indicated, the respondent, shortly before December 17,
1944, changed the operators' work schedule without previously consulting with
the Union. Although Brown himself, in his testimony, was not certain whether
the change was made before or after the conference held on December 18 at which
Snyder and the Conciliator were present, he admitted that the schedule had been
prepared "just prior" to the conference. The schedule itself indicates upon its
face that it was to have become effective on December 17, the day before the
.conference with the Conciliator. In any event, there was no showing that the
respondent had consulted with the Union before posting the new schedule about
a week prior to its effective date. At the close of the conference, according to
Brown's' testimony, the employees threatened to strike if required to work in
accordance with that schedule.
Defending his right to change the work schedule, the respondent contended at
the hearing that the new schedules were similar to those which had formerly been
in use from the time the radio station was first operated until the outbreak of
the war Thereafter, due to the manpower shortage among operators, the re-
spondent contended he employed more operators than were actually required
for the operation of the station. Thus, the change in schedule, according to him,
G No evidence was adduced at the hearing in the instant proceeding as to the provisions
of the Directive. -
BROWN RADIO SERVICE AND LABORATORY 485
was not actually a change, but a return to the schedule which had formerly been
in effect.
A further change in the schedule was inaugurated by the respondent, effective
March 28, 1945. This, according to him, was for the purpose of releasing em-
ployee Durante from his duties as a control room operator to assist the respondent
in the construction of his new transmitter station.
A subsequent change in the operators' schedule a week or two before August 12,
culminated in the strike on that date.
Whatever the necessity, from the respondent's standpoint, for the change in
working schedule, the question is whether the respondent instituted a change in
the hours of work after the designation of the Union without prior consultation
with it, and in derogation of its righfs as exclusive collective bargaining repre-
sentative. It is clear, upon the record, that this must be answered in the
affirmative.
2. The granting of individual wage increases
On or about April 10, 1945, while the dispute between the respondent and the
Union was pending before the War Labor Board, the respondent granted Beryl
Shay, a control and transmitter operator, a weekly wage increase of $10. There
is a square conflict as to whether the respondent did so without first communicat-
ing with the Union. Both Brown and his assistant and personal secretary, Jeri
Sanders, testified that Brown telephoned Union Representative Snyder before
acceding to Shay's demand. Snyder categorically denied that he had ever been
notified by the respondent of his intention to grant the wage increase. Brown's
testimony, that on the occasion when he informed Snyder that he proposed to grant
the wage increase, Snyder adopted a "lackadaisical" attitude and stated, "It's okay
with me," is inherently improbable. Brown conceded at the hearing that, during
the entire period when Snyder was meeting with him, Snyder was attempting to
obtain a general wage increase for all the employees who were members of the
Union, and that Snyder was vigorous in presenting his demands for a general
wage increase, both before the War Labor Board and at conferences at which the
Conciliator was present. Brown further testified that on the occasion when he
informed Snyder of the proposed increase to Shay, Snyder' made no demand for a
wage increase in behalf of any of the other employees in the unit, but acquiesced
in the granting of the $10 weekly wage increase to Shay. It is illogical to believe
that the Union would have consented to the respondent's granting of a wage in-
,crease to an individual member at a time when it was attempting to negotiate a
general increase for all the members whom it represented. The undersigned does
not credit Brown's testimony that he notified the Union prior to granting the
wage increase, and that the Union acquiesced in the respondent's action, but finds,
on the contrary, that Brown did not communicate with the Union prior to grant-
ing the wage increase, and did in fact grant it without prior consultation with it,
notwithstanding that the Union was then, and had been, the exclusive bargaining
representative of the employees in the unit, and had been attempting to bargain
with the respondent at the time involved.
On May 22, 1945, the respondent filed a Form 10 application with the War
Labor Board for an increase of $7.50 weekly to two technicians, one of whom
was Shay, effective April 15, 1945. Although the application disclosed that the
Union was the "duly recognized" labor organization representing the employees
involved in the application, the respondent did not request the Union to join in
the application, nor did it submit the same to the Union for its approval. The
only explanation for the absence of the Union's participation in the application
was that when the respondent submitted it to the War Labor Board, and was
informed that the Union would be required to join in the application, Brown
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested that agency to forward a copy to Union Representative Snyder.
Snyder did in fact receive a copy of this application from the War Labor Board,
and learned for the first time of the wage increase to Beryl Shay.
Shay continued to receive the $10 increase until about the first of June, 1945,
when, s&era1 days after her return from her vacation, the respondent withdrew
the increase, informing her that it was because of the Union's objection, and
remarking, "That's your Union for you." Shay replied that if the Union was
opposed to her increase, "evidently there was a reason" for it, and that she was
content to await War Labor Board action.' Brown commented that the War
Labor Board had no authority to enforce its directives ; that it could no more
enforce them against him than it had been able to in the Montgomery Ward case;
that he would litigate the case through the courts ; and that Shay would be "old
and gray" before she received any benefit from the War Labor Board's directives.
She rejoined, "that would be all right, when I got too old and too tired of fighting,
I would quit
With respect to a wage increase also granted to Salvatore Tomaselli, a radio
operator in the appropriate unit on or about February 7, 1945, the respondent
conceded that he granted it without prior consultation with the Union.
It is clear from the foregoing, and the undersigned finds, that on at least the
two occasions herein referred to, the respondent granted unilateral wage increases
to employees in the appropriate unit, after the designation of the Union as the
exclusive collective bargaining representative, without prior consultation with
the said Union.
B. The unfair labor practice strike
On Saturday, August 11, 1945, Snyder learned from some of the employees at
the radio station that the work schedule had again been changed and that the
hours of work were unsatisfactory. Snyder thereupon telephoned the station,
but was unable to reach the respondent He did, however, speak to Jeri Sanders,
the respondent's assistant and personal secretary, on three occasions during that
day, and informed her that it was very urgent that he reach the respondent.
Sanders was unable to reach Brown, but telephoned his attorney, Jacob Ark, who
in turn communicated with Snyder. Snyder inquired whether Brown intended to
do anything regarding the prevailing conditions at the studio and the War Labor
Board Directive. When informed that Ark had been unable to reach Brown but
that, as far as Ark knew, Brown did not intend to comply, Snyder stated that he
would file a 30-day strike notice. Ark suggested that he do so, and in the event
Brown changed his decision, the strike notice could then be withdrawn. Snyder
later notified Sanders of his intention to file the strike notice.
Later that day, when Sanders informed Brown that Snyder was filing the
strike notice, Brown instructed her to notify the employees that there would
be a,meeting of the employees on the following Monday. Sanders prepared the
following inter-office communication which was posted in the control room :
To: Operators Date AUGUST 11, 1945
Re:
From : Jeri Sanders
Monday, August 13, at 2: 00 P. M there will be a meeting in Mr. Brown's
office for all, operators regarding the Union.
JERI SANDERS.
'Although the respondent denied the statements attributed to hint by Shay, the under-
signed does not credit his denials.
BROWN RADIO SERVICE AND LABORATORY 487
Helen Christ, when informed of the meeting, after conferring with other em-
ployees, told Sanders that the employees could not meet with Brown unless
a union representative was present. Sanders made some ambiguous comment,
remarking that she did not know what to do about it, but told Christ to notify
all the employees about the meeting When Christ informed her that "Steve,
Frank and Louette," not otherwise identified in the record, would be working,
Sanders replied "Oh, they won't come, but be sure that Joe [Durante] * * *
Beryl [Shay] * * * [Christ] and Clara [Weston] [are] there" According
to Sanders' testimony, Brown instructed her to notify Snyder of the contem-
plated meeting, but she informed him that Snyder had already been advised of
the meeting by one of the union members.' At the hearing, Brown testified
that he was unable to recall the purpose of the meeting.
During the course of the day. Snyder, who had been in communication with
Helen Christ, learned from her of the meeting He advised her to instruct the
employees not to attend since he had not been invited to be present. The meeting
was not held. Later that day Snyder served written notice upon the respondent,
copies of which were sent to the Board and the Secretary of Labor, that the
respondent's broadcast technicians would exercise their right to strike under
the Smith-Connally Act 30 days from that date because of the respondent's
failure to comply with the War Labor Board Directive and to negotiate a
contract in good faith.
The same day all the employees, except Shay, who was absent from the city,
met and agreed to strike. On the next morning, Sunday, August 12, none of the
operators reported for work. Elmer J. Walz, manager in charge of station
operations, testified, without contradiction, that as a result of telephonic advice
from the Mutual Broadcasting System the previous day, he had instructed em-
ployee Clara Weston, the last operator on duty that evening, to notify the
operator who was scheduled to open the station the following morning, to report
for work at 7 o'clock, 1 hour earlier than usual, because of an important an-
nouncement expected from Washington in connection with V-J Day. The
following morning, Walz arrived at the studio at 6: 30. When it became ap-
parent that none of the operators were reporting, Walz, after ascertaining that
none of the operators had reported at the transmitter site, notified the respondent.
Brown himself went to the transmitter and instructed Walz to send for Assistant
Engineer Johnson to have him "put the control room on the air " When Johnson
arrived and attempted to do so, he discovered that the control room failed to
function. An investigation revealed that tubes had been removed from the
circuits, plugs_ connecting microphones in the studios had been removed from
the sockets, and other measures taken to render the control room inoperative.
The station was "off the air" for about an hour. At about 9 o'clock in the morn-
ing operating facilities had been restored and broadcasting was resumed.
At about 12:30 in the morning of August 14, 1945, the Union, through its
counsel, Thomas X. Dunn, telegraphed the respondent that it had notified the
National War Labor Board of the respondent's refusal to comply with its
directive, and offered unconditionally to return to work "providing you comply
with order of Board." An immediate reply was requested.10 Apparently none
was sent, but on August 16 the respondent wrote to the "Chairman of NLRB"
informing him of the "walkout perpetrated in violation of NWLB rules and
0 The circumstances under which Sanders learned that Snyder had been informed of the
scheduled meeting are discussed hereinafter in connection with the allegations of surveil-
lance.
10 The telegram was datelined , Washington , D. C. August 13, 1945, 12 : 31 P. M.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure," enclosing photostatic copies of the respondent's petition for review
of the Board's Directive Order, petition for reconsideration, notice of denial
of the petition for reconsideration, and the strike notice by Snyder, dated
August 11. The letter, after deploring the action of the employees and the
Union in concertedly ceasing work on "the day most important to radio station's
(sic) because of V-J Day news," continued,
In creating the walkout on one of WSAY'S most important days of its
existence (sic) in violation. of the no strike clause and notification Exhibit
#411 as well as violation of WLB Rules and Procedure which calls for no
strike while actions are still pending before the board, the Union employees
have in the eyes of WSAY left its employ permanently
As a result of this walkout which the Union Members thought would
cripple WSAY on one of its most important days of its whole existence
WSAY wants no further negotiations with its former employees who,
themselves terminated their employment with WSAY.
The employees remained on strike until November 8, 1945. On that date,
the Union's counsel wired the respondent as follows :
On behalf of your employees make unconditional and unqualified offer to
return to work please reply immediately.
The respondent replied by wire on November 10, 1945, that he would be
pleased to discuss with the Union's local representative the reemployment of
his "former NABET employees." -
The respondent had in the meantime replaced the striking employees with
operators who subsequently became members of the Union'
A conference was thereupon held between Brown and Snyder at the respondent's
station at which several of the striking employees were present. The evidence
is conflicting as to what occurred at this meeting, Brown testifying that the strik-
ing employees, through their union representative, offered to return to work
provided he signed a contract in accordance with the War Labor Board Directive;
Snyder and the employees who were present at the conference, testifying that
Brown offered to reinstate the strikers provided the Union executed the contract
which he had proposed on December 23, 1944, and agreed to a no-strike clause.
In view of Brown's testimony that he considered it imperative that he receive
assurances that the employees would not engage in further strikes, and thus
prevent him from fulfilling his obligation to the Federal Communications Com-
mission to maintain uninterrupted broadcasting facilities ; his uncompromising
position with respect to collective bargaining except upon relatively minor
matters ; his disregard of the Union in dealing with his employees upon matters
which were appropriate and essential subjects of collective bargaining ; his
position at the very outset, following the strike, that he considered that the
strikers had lost their status as employees, as evidenced in his letter addressed
to the Chairman of the Board ; and especially in view of the Union's telegraphic
unconditional offer to return to work in behalf of the employees, as contrasted
with the earlier offer to return upon condition that the respondent comply with
the War Labor Board Directive, which the Union subsequently abandoned, the
undersigned concludes and finds, upon the basis of the foregoing, as well as the
credible testimony of Board witnesses, that the strikers, through their designated
representative, unconditionally offered to return to work on November 8, 1945,
u Reference here was to the 30-day strike notice, dated August 11, one of the enclosures.
An aggregate of 20 employees were hired to replace the striking employees from the
date of the strike to the time of the hearing. All of the striking employees had been
replaced prior to-the unconditional application for reinstatement.
BROWN RADIO SERVICE AND LABORATORY 489
but that the respondent rejected that offer, and countered with the proposal that
he would reinstate those employees provided they signed his original counter-
proposal and agreed to a no-strike provision.
Early in December 1945, following the filing of the original charge herein,
Snyder, together with Board agents of the Regional office, again conferred with
the respondent . Snyder, in an attempt to resume contract negotiations, asked
Brown which, if any, of the disputed issues he was willing to concede under the
War Labor Directive, but Brown was adamant , and would make no concession.
Snyder again requested the reinstatement of the striking employees , but Brown
adhered to his former position, namely, that he would not reinstate the employees,
unless they signed the contract which he had originally presented, and agreed
to a no-strike provision. °
C Interference, restraint, and coercion
When Helen Christ entered the employ of the respondent on or about January
31, 1945, she was interviewed by Brown. In questioning her as to her attitude
about unions, he mentioned the Montgomery Ward case, remarking that "the
Government wasn't telling them what to do and [that] he didn't feel the Govern-
ment should tell him what to do either."" Later that evening, he presented her
with a statement for her signature, and asked her whether she wanted to join
,the Union. The statement, after reciting that she certified that she was the
holder of the requisite operator' s license , and expressing her desire to accept
employment at a stated hourly rate, continued,
It is my understanding that I may or may not join a union. And whether
or not I join a union my status as an operator will not be effected (sic), and
that I will not be forced to join a union to maintain my position with WSAY'
unless I so desire.
In view of the above it is my desire to join the union not to join the
union.
She stated that she would not join the Union and, according to her credible
testimony, Brown thereupon deleted the words "to join the union," in the state-
ment."
Several weeks later, while Christ was in the control room with Brown, he
suggested to her that another vote be taken among the employees "to see
whether there was a majority of Union members in the control room," stating
that "he would count [Assistant Chief Engineer] Johnson and Marion Stillman
and [Helen Christ] as not joining the Union . . . Miss Christ told him that she
had not yet decided whether she would join." She subsequently joined the Union,
and participated in the strike.
Francis Ciccoricco, who was employed by the respondent on July 19, 1945, was
not asked to sign a statement similar to that signed by Helen Christ"" He
11 It will be recalled that Brown made statements of a similar nature to Beryl Shay
following the withdrawal of her wage increase. In view of this , and the general credi-
bility of Helen Chiist ' s testimony the undersigned rejects Brown 's denial.
14 A similar statement was signed by employee Dewitt F Bogart on May 5, 1945, to the
effect that he did not desire to join the Union. Bogart, however, unlike Helen Christ,
did not subsequently become a member of the Union The statement signed by Bogart
contained the following concluding paragraph : It is understood however that if at anytime
my union status is changed , that I will immediately notify WSAY
lb This finding is based upon the credible and undenied testimony of Helen Christ.
The respondent testified that it had been his practice to require all applicants for
employment to sign such a statement and, that although it should have been required in
every instance , he was unable to state that it had been . No explanation was offered for the
failure to present Ciccoricco with a statement for his signature Later, however, follow-
ing a conference at the Regional office, regarding the original charge, when he was in-
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, however, informed by Brown that Brown was aware that the War Labor
Board had issued its Directive, but that he was "not going to worry about it "
Brown also advised him that "every thing [would] he all right" if he did not
join the Union, and work[ed] along with [Dewitt] Bogart," a non-union trans-
mitter operator. Ciccoricco, nevertheless, joined the Union several days later.
At about that time, while he was on his way to the studio, Brown told him not
to talk to any of the operators, and reiterated that if he did not join the
Union, "everything [would] be all right with [him]." 17
About May 23, 1945, after the respondent's new transmitter station "went on
the air," Beryl Shay visited the transmitter in the company of an employee who
was leaving the respondent's employ. Shay, who had the iequired license, and
had been anxious to work at the transmitter station, asked Brown why she
could not work there 19 Brown stated that inasmuch as she was a member of
the Union, it would not be a "very good spot" for her to be -in, in the event
the Union should call a strike. Although Brown denied the remarks attributed
to him on this occasion, the undersigned does not credit his denial.19
On another occasion at or about this time, Shay mentioned to Brown that
she had received "a ticket" for illegal parking, and "wondered if [she would
have to] go to jail." Brown commented that "it would be a good idea becauso."
it would prevent her from being "so active in the Union." Brown admitted
that he had had the conversation adverted to by Shay, and that he had said,
"You will probably get locked up," but denied any reference to her union mem-
bership. Although the undersigned credits Shay's version of the incident, espe-
cially in view of his demonstrated antipathy toward the Union, it is apparent
that the conversation was carried on in a somewhat bantering vein. Neverthe-
less, it serves as a further manifestation of the respondent's intent to discour-
age membership in the Union.
The surveillance of.the employees' union activity
On August 11, 1945, according to the testimony of Jeri Sanders, the respond-
ent's assistant and personal secretary, she was unintentionally "cut in" by the
switchboard operator on a telephone conversation between Helen Christ and
Union Representative Snyder, in which Snyder was identified, and overheard
Christ inform him of the meeting in regard to the Union scheduled by the respond-
ent for the following Monday morning. Although the undersigned accepts her
testimony that she was unintentionally "cut in" on this telephone call, no expla-
nation was given for the fact that she listened in on the conversation after dis-
covering that the line was engaged. During the course of the same day, however,
while Sanders was relieving the regular switchboard operator, she was observed
by former Chief Announcer Paul Robinson deliberately listening in on a line from
formed that the use of the statement might constitute an unfair labor practice, he
discontinued the practice.
17 Although Brown denied the statements attributed to him by Ciccoricco, the under-
signed does not credit his denials.
18 According to Shay's uncontradicted testimony , which the undersigned credits, the
regulations of the Federal Communications Commission require a first-class radio operator
to operate a radio transmitter for a certain length of time during each 5-year period to
qualify for renewal of the license.
19 Shay testified , without contradiction , that when she was first employed, Brown dis-
cussed with her the transmitter station which he then contemplated erecting. Shay
remarked that it would be pleasant working at the site, and that she might garden there.
(Note: The transcript of the testimony at page 158, lines 7-8, erroneously quotes Shay as
saying,' "That would be nice working out there, I could guard it . . The record
is hereby corrected to substitute "garden it" for "guard it.") Brown agreed that "the air
would be fine," from which she inferred that he would permit her to work there.
BROWN RADIO SERVICE AND LABORATORY 491
the control room in which Helen Christ was on duty. According to Robinson's
credible and uncontradicted testimony, he reported to Christ several days later
that Sanders had been listening in at the switchboard on the control room line
while Christ was on the telephone. He also informed Christ that when he ap-
proached Sanders for information, while she was at the switchboard, with the
listening key adjusted to intercept calls to and from the control room, Sanders
"motioned [him] away from the [switch] board, saying, `I want to hear what is
going on here.' " As has already been stated, Christ had telephoned Snyder from
the control room several times during the course of that day 2°
In view of the fact that this incident occurred on the day before the strike, when
Snyder was attempting to reach the respondent and had threatened to file a 30-day
strike notice ; the fact that Sanders had communicated to Brown the information
she had acquired as a result of having overheard a telephone conversation between
a union member and the union representative; Sanders' admission that she had
listened in on a conversation between those persons that day ; the respondent's
general attitude of antipathy toward the Union ; and Sanders' failure to deny the
statements and conduct attributed to her in this connection, the undersigned finds
that the respondent, through its agent, by the foregoing conduct kept the union
activities of his employees under surveillance.
Respondent 's contentions ; concluding findings
A. The refusal to bargain
An analysis of the events which transpired reveals that from early in
November 1944, when the Union first undertook to' bargain , the respondent
avoided meeting with the union representatives , failed to keep an appointment,
and delayed and postponed meeting with them until threatened , on December
11, with the filing of a strike notice While the respondent contended that he
was engaged during this period and the ensuing months in the construction of
a new transmitter which, according to him, he was erecting practically single-
handed, and was faced with the necessity of meeting a "deadline " imposed by
the Federal Communications Commission , the record indicates that he re-
quested and received several extensions , the last of which expired on May 15,
1945, a day after the actual completion of the construction . It is difficult to
believe that this project prevented him from effectively negotiating with the
Union during that period , if he were acting in good faith . This excuse, how-
ever, might appear more reasonable , were it not for the fact that the respond-
ent had attempted at the very threshold of the negotiations to postpone col-
lective bargaining until the completion of the transmitter , which, as it turned
out, was not completed until approximately 6 months after the Union 's demand
20 Helen Christ testified that on the day in question she observed Sanders at the switch-
board, listening in on her telephone conversations with Snyder. Although she testified
that she could actually observe the keys and their position on the switchboard in the outer
room, from a standing position , through the window of the closed door of the control room,
experiments conducted by the undersigned as well as by the parties or their counsel, at a
view taken for the purpose, demonstrated that, although it was impossible to see the
switchboard keys from the position in which she testified she was standing at the time, it
would, however , have been possible to observe the person seated at the switchboard. The
undersigned finds, both on the basis of the testimony of Helen Christ , as well as Paul
Robinson , that Christ did in fact observe Sanders at the switchboard on the occasion in
question, although she could not, and did not, observe the keys on the switchboard It is
apparent that Christ was mistaken in her testimony in this respect and that she probably
concluded, from what Robinson later told her, that she had personally observed the position
of keys. The undersigned does not consider that her credibility has been affected by the
fact that she was mistaken in this regard.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
for collective bargaining . Moreover, the respondent 's subsequent conduct indi-
cates a deliberate design to ignore and circumvent the Union as the collective
bargaining representative Thus, the respondent , on about December 14, 1944,
again in March 1945 , and finally late in July or early in August 1945 , unilater-
ally, and without prior consulation with the Union , changed the hours of
work in the operators ' work schedule . Whether or not the change was neces-
sitated by the exigencies of the respondent ' s operations is not here material.
Again , the respondent , on February 7, 1945, and April 10, 1945 , unilaterally
granted individual wage increases to employees , ww bile the Union was attempting
to negotiate a contract and obtain a general wage increase for all the employees
whom it represented , and at a time when the dispute between the respondent
and the Union was pending before the War Labor Board This conduct mani-
fests a deliberate and flagrant disregard of the fundamental concept of col-
lective bargaining , and has the necessary effect of discrediting and, undermining
the bargaining representative in the eyes of the employees It has been re-
peatedly held by the Board and the courts to constitute the unfair labor prac-
tice of refusal to bargain. This principle has been so well established in the
realm of industrial relations as to permit of no further doubt.21 Moreover,
with respect to the wage increase granted to Beryl Shay, the respondent, while
ostensibly resorting to' the procedure of the War Labor Board by filing an ap-
plication for approval , after having already granted it without prior con-
sultation with the Union , ignored the Union by failing to invite it to join in the
application , despite the fact that he not only then knew that the Union had
been selected as representative , but so stated in the application The excuse
advanced for thus by-passing the Union, namely , that lie relied upon the War
Labor Board to notify the Union, is not convincing , and certainly provides
no justification for disregarding the collective bargaining representative at the
outset. Furthermore , the respondent ' s attempt to place the onus, for the fail-
ure to obtain approval upon the Union , indicates a deliberate intent to discredit
the Union with the employees.
With respect to the so -called bargaining conferences which occurred between
December iS, 1944, when the Conciliator first entered the negotiations , and-which
finally resulted in the submission of the dispute to the War Labor Board, the
record discloses that , although the respondent submitted a counterproposal on
December 23, 1944 , he evinced slight disposition to make any concession on the
more important basic issues . Considered in the light of his subsequent conduct,
following the submission of the dispute to the War Labor Board , when lie pe-
titioned that 'Board for reconsideration and, after its denial, appealed to the
National War Labor Board , it is apparent that the respondent was. not engaging
in that bona fide collective bargaining envisioned by the Act , especially when it
is recalled that during this period he was engaging in a course of unilateral
conduct designed to discredit and undermine the Union . This is not to suggest
that an employer may not be entitled to exhaust such remedies as are available
to him before the War Labor Board , without being charged . with a refusal to
bargain. The record here , however , amply establishes that the respondent re-
sorted to the appellate procedure of the War Labor Board as a dilatory tactic
to hinder and delay the Union in fulfilling its function as collective bargaining
representative ., Thus, it will be recalled that the respondent had stated to
employees that the War Labor Board lacked authority to enforce its directives;
21 See Matter of Sullivan Dry Dock it Repair Corporation, 67 N. L R B . 627, for a
collection of authorities on this point. See also Majority Rule in Collective Bargaining,
Ruth Weyand , Columbia Law Review, Vol. XLV, 556, 579 et seq for a discussion and
rationale ' on The Power of a Statutory Representative to Bar Unilateral Changes by
Employer.
BROWN RADIO SERVICE AND LABORATORY 493
threatened to litigate the dispute through the courts; advised one employee
that she would be "old and gray" before she received any benefit from its
directives ; and, about a week after the War Labor Board had issued its di-
rective, after inquiring of the union representative, who had communicated
with him to arrange a meeting to embody the terms of the directive in a con-
tract, what the "dead line" was, announced that there would be a "slight delay,"
as he intended to file a petition for review.
It is clear from the foregoing, and the undersigned finds on the basis thereof
and the entire record, that, by' the foregoing course of conduct, including the
failure to bargain in good faith, the unilateral action, both with respect to
the change in the hours of work and the granting of individual -wage increases,
and the resort to the machinery of the War Labor Board as a means of hindering
and delaying the Union in fulfilling its role as statutory representative, the
respondent has, from on or about November 1944, and at all times thereafter,
failed and refused to bargain with the Union as the exclusive representative of
its employees within the appropriate unit with respect to rates of pay, wages,
hours, and other conditions of employment, in violation of Section 8 (5) of the
Act, thereby interfering with, restraining, and coercing his employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
B. The unfair labor practice strike
Against this setting, the racho operators, after meeting to consider their
problem, went on strike on August 12, 1945. It will be recalled that the respond-
ent's petition for reconsideration had been denied by the Regional War Labor
Board 3 days earlier, on August 9; that the respondent had already indicated
that lie intended to resort to all the dilatory means available to postpone, if
not to frustrate, genuine collective bargaining, that when lie learned that the
Union intended to file the strike notice, he forthwith scheduled a meeting of his
employees to be held several clays later, to discuss the Union and, through his
secretary, urged the union members in particular to attend, while declining
to accede to the employees' request to permit a union representative to be
present. When these factors are considered in connection with the respond
ent's unilateral conduct, his attempts to discredit and undermine the Union, to
alienate the members from their representative by suggesting that a poll be taken
to ascertain whether the Union still had a majority, indicating what employees
lie believed could be relied upon to dissipate the Union's majority, and his
other acts of interference related above, and hereinafter found, there can be
little doubt that the strike was caused by the unfair labor practices of the re-
spondent, and the undersigned so finds. The undersigned further finds that
the strike was prolonged as a result of the said unfair labor practices, as more
fully set forth below.
The respondent contends, however, that by failing to comply with the provisions
of the War Labor Disputes Act, prior to concertedly ceasing work and going
on strike, the employees forfeited their status as employees and are not entitled
to the relief and protection afforded by the Act. It may be assumed, for the
purpose of this case, that the War Labor Disputes Act is equally violated whether
the employees fail to give the required notice altogether, or whether, having given
such notice, they fail to comply therewith. , Clearly, then, it must be found that
the employees violated the provisions of the War Labor Disputes Act in striking
before the expiration of the 30-day period. The contention raised here is, how-
ever, by no means novel, and was urged before the Board in the Republic Steel
case, where, after comprehensive analysis, examination of the legislative history
of that Act, and articulation of its rationale, the Board concluded that "the
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress did not intend.specifically, or,generally as part of its legislative policy,
that the right of employees, . . . under the National Labor Relations Act
be affected by the War Labor Disputes Act." 22 The case is decisive upon this
issue in the instant case, and the undersigned, therefore, finds, that the employees
herein did not forfeit their rights as employees under the Act by failing to
comply with the provisions of the War Labor Disputes Act. It follows as a
corollary that the employees may not be denied the protection of the Act because
they went on strike, contrary to the policy of that agency, while the dispute
was pending, on appeal by the respondent, before the War Labor Board. The
instant case is clearly distinguishable from the American News case 28 in which
the employees resorted to a strike to compel the employer to grant a wage in-
crease without awaiting prior approval of the War Labor Board. There is no
showing here that the purpose of the strike was illegal, except with regard to
the contention already disposed of, that the employees failed to comply with the
War Labor Disputes Act. If any conclusion is to be drawn, in connection with
the relation of the pendency of the proceedings before the War Labor Board
to the strike, it is that the employees resorted to the strike to compel obedience
to, rather than disregard of, the War Labor Board's directives.
A further defense, not specifically urged at the hearing as a ground for the
refusal to reinstate, but which is regarded by the undersigned as having been
raised, inasmuch as evidence was offered bearing upon it, is that relating to the
evidence regarding the failure of the control room to function' on the morning
of the strike. The undersigned is apparently asked to infer from the facts which
have been detailed above, that the interruption of service, lasting 1 hour on the
morning of the strike, according to the respondent's letter to the Chairman of
the Board, was attributable to the strikers. The evidence, at best, is circum-
stantial, establishing merely that one of the union members was the last operator
on duty prior to the failure of operations, and while it creates a suspicion that
the alleged acts may have been committed by one or more of the strikers, there
was no showing which, if any, of the strikers actually engaged in the alleged mis-
conduct. However, even if the evidence were sufficient to establish that the
control room failure was clearly attributable to the strikers, the evidence of
misconduct in connection with the strike' is too insubstantial, especially where
no actual damage was done, to warrant the application of the principles enun-
ciated in the Fansteel and Southern Steamship cases,24 so as to deny the strikers
the benefits of the Act because,of any alleged illegal conduct in connection with
the strike. Moreover, it is especially significant that the respondent , following
the strikers' unconditional offer to return to work, at no time advanced their
alleged misconduct as a ground for refusing to reinstate them. Under these cir-
cumstances, it may be concluded that the respondent did not consider the conduct
of such gravity as to afford a ground for refusal to reinstate, or, if he did so
consider it at the time, condoned the said alleged conduct.
The undersigned finds, upon the basis of the foregoing and the entire record,
that the strikers have not been deprived of the protection of the Act upon any of
the foregoing, grounds, and further finds that the respondent discriminatorily
refused them reinstatement on November 10, 1945, after they had unconditionally
n Matter of Republic Steel Corporation (98" Strip Hill), 62 N. L. R. B. 1008, 1026. See
also Matter of Fairmont Creamery Company, 64 N. L R. B 824; Matter of Kalamazoo
Stationery Company , Division of Western Tablet and Stationery Corp.. 66 N. L. R. B. 930;
Matter of Bolin Aluminum and Brass Corporation , 67 N. L. R. B. 847.
23 Matter of American News Company, Inc., 55 N. L. R. B. 1302 ; see, however , Matter of
Rockwood Stove Works , 63 N. L . R. B. 1297.
24 N L. R . B. v. Fansteel Metallurgical Corp., 306 U . S. 240; N. L. R. B. v. Souther
Steamship Co., 316 U. S. 31.
BROWN RADIO SERVICE AND LABORATORY 495
offered to return to work, and again in December 1945, because of their union
membership and activity, and because they had resorted to a strike, thereby dis
criminating against them in regard to the hire and tenure and terms or condi-
tions of employment, and discouraging membership in the Union ; and by the
foregoing conduct, has interfered with, restrained, and coerced his employees
within the meaning of Section 7 of the Act.
It is further found, upon the basis of the foregoing, and the entire record, that
by the statements of the respondent, Brown, to employee Helen Christ on or
about January 31, 1945; to employee Beryl Shay at the respondent's transmitter
station on or about May 23, 1945, and in connection with the withdrawal of her
wage increase early -in June 1945, to employee Ciccoricco in July 1945; by inter-
rogating his employees to ascertain their union sentiment ; by requiring employees
by means of employment applications, to disclose their intention and preference
with respect to joining the Union; by engaging in surveillance of the union activ-
ities of its employees on August 11, 1945, by intercepting telephone calls; by
refusing to bargain with the Union as the exclusive representative of the em-
ployees; by discriminatorily refusing to reinstate the striking employees-after
they had unconditionally offered to return to work ; and by the totality of his
conduct, all as more fully related above, the respondent has interfered with,
restrained, and coerced his employees in the exercise of the rights guaranteed
in Section 7 of the Act.
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 described 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
It having been found that the respondent has engaged in certain unfair labor
practices, it will be recommended that the respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has refused to bargain collectively with
the Union as the exclusive representative of his employees in an appropriate
unit. It will, accordingly, be recommended that the respondent bargain collec-
tively with the said Union upon request.
It has been further found that the respondent has discriminated in regard to
the hire and tenure of employment of the employees whose names are set forth
in Appendix A to this report and who had gone on strike on August 12, 1945, as a
result of the respondent's unfair labor practices, by refusing to reinstate them
after they had unconditionally offered to return to work. It will, therefore, be
recommended that the respondent offer the said employees immediate and full
reinstatement to their former positions if they are available, otherwise to sub-
stantially equivalent positions, dismissing, if necessary, any employees who were
hired to replace the said employees subsequent to August 12, 1945, without preju-
dice to their seniority or other rights and privileges; and that the respondent
make the said employees whole for any loss of pay they may have suffered by
reason of the discrimination against them, by payment to each of them of a sum
of money equal to that which each would normally have earned from November
10, 1945, the date on which they unconditionally offered to return to work and
were discriminatorily refused reinstatement, to the date of the offer of reinstate-
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, less the net earnings 26 of each during the said period In view of the
extensive and pervasive nature of the unfair labor practices engaged in by the
respondent, manifesting an attitude of opposition to the purposes of the Act, it
will also be recommended, in order to protect the rights of the employees gen-
erally, that the respondent be required to cease and desist from in any manner
interfering with, restraining, and coercing his employees in the exercise of the
rights guaranteed under the Act R6
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. National Association of Broadcast Engineers & Technicians is an unaffiliated
labor organization within the meaning of Section 2 (5) of the Act.
2 All employees of the respondent performing the duties of radio operator and
studio operator, excluding the chief engineer and assistant chief engineer, at the
respondent's studio and transmitter plant, and excluding all supervisory employ-
ees with- authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
3. National Association of Broadcast Engineers & Technicians was, on October
18, 1944, and has, at all times thereafter been, the exclusive representative of all
the employees in the aforesaid unit, for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act
4 By refusing in November 1944, and at all times thereafter, to bargain collec-
tively with National Association of Broadcast Engineers & Technicians as the
exclusive representative of his employees in the aforesaid unit, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees whose names are set forth in Appendix A of the report, thereby discour-
aging membership in a labor organization, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (3) of the Act.
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 com-
merce within the meaning of Section 2 (6) and (7) of the Act
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, his agents, successors, and
assigns shall :
zs By net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his uglawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, S N L. R. 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 , 311 U S 7
wG See N L R B. v Express Publishing Company, 312 U. S. 426 ; May Department
Stoics v N. L R B, 326 U S 376
BROWN RADIO SERVICE AND LABORATORY 497
f Cease and desist from :
(a) Refusing to bargain collectively with National Association of Broadcast
Engineers & Technicians as the exclusive representative of all its employees within
the aforesaid appropriate unit, and from taking unilateral action, without prior
consultation with the Union, with respect to rates of pay, wages, hours, and other
conditions of employment affecting the said employees;
(b) Discouraging membership in National Association of Broadcast Engineers
& Technicians by discharging or refusing to reinstate any of his employees,
or in any other manner discriminating in regard to their hire and tenure of,
employment, or any term or condition of employment;
(c) Interrogating any of his employees, orally, or by means of employment
applications or any like or similar devices, with regard to their union member-
ship, affiliations, or sentiment regarding union; 27
(d) Engaging in any surveillance of the union activities of his employees;
(e) In any other manner interfering with, restraining or coercing his
employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist National Association of Broadcast Engineers &
Technicians, or any other labor organization, 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 and protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with National Association of Broad-
cast Engineers & Technicians as the exclusive representative of all his em-
ployees within' the aforesaid appropriate unit in regard to any terms and
conditions of employment affecting the said employees ;
(b) Offer the employees whose names are 'set forth in Appendix A of this
report, immediate and full reinstatement to their former positions if they
are available, otherwise to substantially equivalent positions, dismissing, if
necessary, any.employees who were hired to replace the said employees subse-
quent to August 12, 1945, without prejudice to their seniority and other rights
and privileges ;
(c) Make whole the said employees whose names are set forth in Appendix
A of this report, for any loss of pay they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them of a sum
of money equal to that which each would normally have earned as wages from
November 10, 1945, the date on which after they unconditionally offered to
return to work they were discruninatorily refused reinstatement, to the date
of the offer of reinstatement, less the net earnings 28 of each during said period ;
(d) Post at his broadcasting studio in Rochester, New York, and at his trans-
mitter plant in Brighton, New York, copies of the notice attached hereto marked
"Appendix A." Copies of said notice, to be furnished by the Regional Director
of the Third Region, shall, after being duly signed by the respondent, be posted
by the respondent immediately upon receipt thereof and maintained by ,hire for
sixty (60) consecutive days thereafter in conspicuous places, including all
27
Although the record indicates that the respondent has, since being informed by agents
of the Board that the use of the application might constitute an unfair labor practice,
abandoned the practice, in view of the pervasiveness of the respondent's unfair labor
practices, and the likelihood that he may resume the practice unless required to cease and
desist therefrom by a Board order, the undersigned is persuaded that the policies of the
Act will be best effectuated by ancorder that lie be required to do so
28 See footnote 25, supra.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to employees are customarily posted. Reasonable steps
shall be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(e) Notify the Regional Director for the Third Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this -Intermediate Report, the respondent notifies said Regional
Director in writing that he will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November
27, 1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and, Regulations, file with the Board,
Rochambeau Building, Washington 25, D C, an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in slid Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the
0
Dated May 9, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
IRVING ROGOSIN,
Triad Examiner
Pursuant to recommendations of a Trial Examiner of • the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist National Association of Broadcast Engineers & Technicians
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
We will not interrogate any of our employees, orally, by means of
employment applications or any like or similar devices, with regard to their
union membership, affiliations, or sentiment regarding unions.
We will not engage in any surveillance of the union activities of our
employees.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a' result of the discrimination.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
BROWN RADIO SERVICE AND LABORATORY 499
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All employees of the respondent performing the duties of radio operator
and studio operator, excluding the chief engineer and assistant chief
engineer at the respondent's studio and transmitter plant and all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action.
We will not take any unilateral action, without prior consultation with
the Union, with respect to rates of pay, wages, hours, and other conditions
of employment, affecting the employees in the aforesaid unit.
The employees referred to above are :
Joseph Durante Clara Weston
Helen Christ Frank Ciccoricco
Beryl Shay
All our employees are free to become or remain members of the'above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
GORDON P. BROWN, an individual, doing
business under the trade name and style
of BROWN RADIO SERVICE AND LABORATORY,
Employer.
By ------------------------------------------
(Representative ) ( Title)
Dated--------------------
NoTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
712344-47-vol. 70-33