Rounsaville of Nashville, Inc.

National Labor Relations Board - Board DecisionsMay 20, 1970

182 N.L.R.B. 555 (N.L.R.B. 1970)

ROUNSAVILLE OF NASHVILLE, INC. 555 Rounsaville of Nashville , Inc. and American Federation of Television and Radio Artists, AFL-CIO. Case 26-CA-3371 May 20, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS deny instituting these changes or that it failed to inform the Union of its actions. Although the Trial Examiner concluded that "the station had unilaterally changed the wages and hours scheduled for the employees," he inadvertently failed to make appropriate findings addressed to this unlawful conduct. To correct this oversight, we hereby find that by unilaterally altering the wages and working hours of its employees, Respondent violated Section 8(a)(5) and (1). Additionally, we amend the Order and notice to take into account these violations. On December 3, 1969, Trial Examiner Paul E. Weil issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs and the Gen- eral Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Exam- iner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner with the follow- ing modification: At the hearing in this case, the Trial Examiner permit- ted the General, Counsel to amend the complaint so as to include an allegation charging that Respondent had granted a unilateral wage increase to one employee and revised the hours of employment of all its radio announcers. Evidence in support of this charge establishes that on April 28, 1969, 4 days after the Union was certified, Respondent sent a memorandum to announcer Ed Hall stating that he would receive a $5-per-week pay raise and also informed Hall as well as his fellow announcers of a change in the work schedule. Respondent did not I We do not find it necessary to decide whether the stoke was an economic or an unfair labor practice strike at its inception Even if we were to assume that it did not begin as an unfair labor practice stoke, it was converted into one shortly after it began by the Respond- ent's refusal to meet with the Union after receiving repeated bargaining demands Y The Trial Examiner's Order included a recommendation that the Respondent reinstate, upon request, employees who were discharged during the course of the stoke The General Counsel noted that the Trial Examiner failed to incorporate a provision to conform the notice to the Order We do not find, however, that a reinstatement order is warranted at this time for the stoke is not yet over, strikers have not requested reinstatement , and Respondent alleged , but was not permit- ted to prove that the strikers had engaged in such picket line misconduct as to disqualify them for reinsatement (See Fibreboard Paper Products Corporation, 180 NLRB No 33 ) ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner as modified herein, and orders that Respondent, Rounsaville of Nashville, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall tike the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 1(c) to the Trial Examiner's Recommended Order: (c) Unilaterally granting wage increases to or changing the working hours of its employees. 2. Add as the fourth indented paragraph in the Appen- dix attached to the Trial Examiner's Decision the follow- ing: WE WILL NOT unilaterally grant wage increases to our employees nor unilaterally change their hours of employment. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: Upon a charge filed May 26, 1969, by American Federation of Television and Radio Artists, AFL-CIO, hereinafter called AFTRA, against Rounsaville of Nashville, Inc., hereinafter called Respondent, the General Counsel, by the Regional Director for Region 26, issued a complaint, dated June 18, 1969 , alleging that Respondent had violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with AFTRA as the certified collective-bargaining representative of certain of Respondent's employees. The complaint further alleged that a strike which com- menced on May 15, 1969, was an unfair labor practice strike. By its answer, timely filed, Respondent denied the appropriateness of the unit which was the subject of the certification, admitted that an election had been conducted under the supervision of the Regional Director in which a majority of the employees voted for the Union, but alleged that the Board's denial of Respond- ent's objections to conduct affecting the results of the election deprived Respondent of due process of law and that the Board by failing to direct an evidentiary hearing on Respondent's objections to the election impaired the validity of the certification. Respondent further alleged that it did not refuse to bargain with 182 NLRB No. 88 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFTRA but that, with the commencement of the strike on May 15, it was apparent that AFTRA did not represent a majority of the employees and that by various acts and conduct taking place during the strike Respondent's duty to bargain with the Union if such had existed, was vitiated Thereafter General Counsel moved to strike Respond- ent's answer, or so much of it as denied the appropriate- ness of the unit, on the ground that Respondent in the representation proceeding had executed a stipulation in which the appropriate unit was set forth as it appears in the complaint This motion was opposed by Respond- ent Respondent at the same time moved to consolidate the proceedings in the instant case with those held in Case 26-CA-3278, which had heretofore been heard by Trial Examiner Eugene F Frey, and with a third case, 26-CA-3405, in which a complaint had not yet issued Respondent in this motion argued that at issue in the instant case were various matters litigated in the case before Trial Examiner Frey including "whether rumors of mass firings were circulated during the election campaign, whether a conspiracy existed to bring about the discharge of the general manager and whether private telephone wires were tapped" concerning each of which issues testimony was developed before Trial Examiner Frey and whether employees in the unit were illegally intimidated and coerced to vote for the Union, the subject matter of the objections to the election which were overruled by the Board in the representation pro- ceeding Respondent contended that each of these issues were common to the various cases Trial Examiner Frey denied the motion to consolidate the three cases on the ground that the two cases in which complaint had issued did not contain common issues of law or facts sufficient to warrant their consolidation, inasmuch as the events alleged in the instant case occurred after the close of the hearing in Case 26-CA-3278 On the same date that Trial Examiner Frey issued his order denying Respondent's motion to consolidate, Trial Examiner Bernard J Seff issued his order granting the General Counsel's motion to strike paragraphs 7 and 8(b) of Respondent's answer which are the sections of the answer in which the appropriateness of the unit is attacked Thereafter and after some delay, on the issues thus joined the matter came on for hearing on September 3, 1969, at Nashville, Tennessee, before me All parties were represented by counsel, were afforded full opportu- nity to call and examine and cross-examine the witnesses, to argue orally, and to submit briefs After the close of hearing Respondent submitted three written offers of proof pursuant to permission granted during the course of the hearing and a brief in support of its position The General Counsel also filed a brief Upon the entire record' in the case including my evaluation of the reliability of the witnesses and in consideration of the briefs I make the following ' The General Counsel s unopposed motion to correct the transcript is hereby granted FINDINGS OF FACT I COMMERCE It is alleged and admitted that Respondent is a corpora- tion engaged in Nashville , Tennessee , in the operation of a commercial radio station , WVOL During the past 12 months Respondent derived a gross income in excess of $100 ,000 from its operation of Radio Station WVOL, in excess of $10,000 of which it received for the sale of commercial advertising for national brand products During the same period of time Respondent "subscribed to an interstate news service , including , but not limited to, United Press International " [sic] Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED AFTRA is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES ALLEGED A The Representation Proceeding 1 The unit The following employees at Respondent ' s Nashville operation constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act All employees who regularly or frequently appear before a microphone at the employer ' s radio station, WVOL, in Nashville , Tennessee , including, but not limited to, staff announcers , newsmen, and regular part -time announcers , excluding all other employees and supervisors as defined in the Act 2 The certification On December 6, 1968, in an election conducted under the supervision of the Regional Director for Region 26 of the Board in Case 26-RC-3337 a majority of the employees of Respondent in said unit designated the Union as their representative for the purpose of collective bargaining with Respondent Respondent thereafter filed timely Objections to Conduct Affecting the Results of the Election alleging that from April 1968 until the date of the election leaders of the NAACP acting in cooperation with AFTRA engaged in a continu- ing campaign of harassment by means of racial appeals and threats to employees which succeeded in destroying laboratory conditions which the Board required Respondent's objections further allege that, prior to the appearance of AFTRA, NAACP had placed a picket line around the Company's facilities, demanded that Respondent fire white employees and replace them with black employees, and threatened an advertiser boycott ROUNSAVILLE OF NASHVILLE, INC. Additionally Respondent alleged that AFTRA sent a copy of its demand for recognition on November 7, 1968, to the Nashville NAACP and that thereafter AFTRA in cooperation with NAACP made repeated inflammatory racial appeals to the employees. Respond- ent finally contended that during the election campaign AFTRA claimed that the salary scale for announcers was less than that for comparable announcers in Nash- ville as a result of Respondent's racial discrimination, a deliberately false claim. ' After investigation, without a hearing, the Regional Director issued a report on objections finding them all to be without merit. Respondent took exceptions to the Board but the Board issued its Decision and Certification of Representatives adopting the Regional Director's finding and recommendations and certifying the Union as the collective-bargaining representative of the employees in the above unit. This decision issued April 24, 1969. Respondent in the instant proceeding contends that the Board erred in denying its objections and that the Board illegally deprived Respondent of due process by arbitrarily and capriciously failing to direct an evidentiary hearing on Respondent's objections. Respondent further contends in the instant proceeding that it should now be granted a de novo hearing concern- ing the issues considered by the Board in the representa- tion proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence the Respondent in an 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representation proceeding. The contentions made herein were raised by the Respondent in its objec- tions and exceptions in the representation case and were considered and rejected. With regard to the objec- tions Respondent filed an offer of proof which included various excerpts from the transcript of the proceedings in Case 26-CA-3278 before Trial Examiner Frey, two copies of affidavits submitted to the Regional Director in support of Respondent's objections during the investi- gation of these objections, and evidence of alleged acts of violence and other misconduct during the strike which began May 15, 1969, and the participation therein of one William Gregory together with allegations concerning the conduct of said Gregory and the alleged criminal record of said Gregory. It is clear that most if not all of this evidence except that concerning activities which took place after the election was in the possession of Respondent during the investigation of the objections and much of it was apparently submitted to the Regional Director. There is no showing that any of the evidence of activities prior to the election is newly discovered or was previous- ly unavailable. Accordingly it may not be relitigated in the instant case. However in any event much of the evidence proffered by Respondent is in the possession of the Board in the transcript in Case 26-CA-3278. The decision of the Board in the representation case is the law of the case as far as I am concerned. Under the terms of the Administrative Procedure Act (5 U.S.C. Sec. 557 (c)) only when the issues concerning representa- 557 tion become entwined in a subsequent unfair labor prac- tice must the Board comply with the Administrative Procedure Act and review the record and make its own decision . The Administrative Procedure Act require- ment for hearing is satisfied under the circumstances either that no issue appeared warranting a hearing or that a hearing was held on issues which do warrant such a proceeding and the Board reviews the record thereof .2 Here , to the extent that an evidentiary hearing could be required,, it would appear that Respondent has had an opportunity to adduce the evidence and has in fact done so in the proceeding before Trial Examiner Frey. The Board of course may take cognizance of its own proceedings and consider that record . It may in its wisdom consolidate the instant case with that heard by Trial Examiner Frey if it considers such a step warranted. On the record before me , as I have stated above , l; see no warrant to go behind the Board ' s decision in the representation proceeding . Accordingly I find that AFTRA is the duly certified collective -bargaining representative of the employees in the unit set forth above. B. The Request To Bargain On May 7 Paul Wilder, executive'director for AFTRA, telephoned Manager Noble Blackwell at Station WVOL. He was unable to - reach Blackwell and talked to his secretary, Dorothy Hardeson. Wilder asked Hardeson to set up a meeting for May 12 for the purpose of negotiating a contract. According to his and her testimo- ny she agreed to submit the matter to Manager Blackwell and return his call. According to Wilder, Hardeson called him back on May 7 and confirmed the May 12 date. According to Hardeson she turned the message over to Blackwell and according to Blackwell he returned Wilder's call on the morning of May 8, speaking to Wilder, informing him that he was not sure they could meet on May 12, and telling him that he would call back later, after speaking with his superiors and Respond- ent's counsel, Woods. According to Wilder on the morning of May 8, Miss, Hardeson called him asking for the New York address of Harold Kocin, the national representative of AFTRA. On this occasion she informed Wilder that he would get a letter regarding the May 12 meeting. -Wilder asked what was in the letter and she told him that she could not tell him. He asked if he could come over and pick up a copy of it and she said that she would call him back after she had asked Manager Blackwell whether she could furnish him a copy. According to Blackwell on the morning of May 8 he first called Wilder and spoke to him as I have set forth above. Almost immediately thereafter he received a call from Kocin in New York stating that Kocin would send a draft copy of the contract for his consider- ation and would send one to Respondent Counsel Woods 1 Pepsi-Cola Buffalo Bottling Company v N L R B 409 F 2d 676, 681 (C A 2, 1969) 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also. Blackwell testified that later that day Wilder called back and talked to Hardeson and that still later he wrote a letter to Kocin with a copy to Wilder stating that he saw no need to meet until Respondent had received a copy of the contract and had had an opportuni- ty to go over the matter with his superiors and counsel. Hardeson testified that apparently early in the after- noon of May 8 Wilder called her "to see if I had been able to set up the appointment with Mr. Blackwell for him." She told him that she had the letter for him and that she could not read the contents to him. She testified that shortly before 5 p.m. Wilder came by the station and picked up his copy. Shortly after 5 p.m. Kocin again called Blackwell; he was irritated and cursed at Blackwell and stated that he could not lawfully refuse to meet with the Union. Blackwell responded only that he was sending Kocin a letter and could say no more. After May 8, Wilder attempted to call Blackwell on a number of occasions on May 12; he was unable to reach him although he was informed by employees in the station that Blackwell was present at the property. Blackwell never returned Wilder's calls. Thereafter, Wil- der on the 13th wrote a letter to Blackwell stating that he had attempted to reach him to avert a walkout and was sorry that he had been unsuccessful. Again on the 16th Wilder and his attorney Bransteader both attempted to telephone Blackwell without success, on the 19th sent a letter requesting a meeting which has never been answered, and again on the 21st sent a letter demanding a meeting which was not answered. It is clear that the Union has at all times since May 7 demanded a meeting to bargain with Respondent and it is equally clear that Respondent has not bargained with the Union. Respondent's position is that it did not refuse to bargain but rather merely sought an oppor- tunity to consider the matter and specifically to consider the contract proposal prepared by Kocin before meeting with the Union. To this end, Respondent contends that at no time did it agree to meet on May 12 as the Union contends. The only evidence of such agreement is to be found in the testimony of Wilder. Blackwell denied that he ever agreed but stated that in his conversa- tion with Wilder on the morning of May 8 he said he was not sure that he could meet on the 12th and would call back.3 I do not credit Blackwell's testimony that he called Wilder on the morning of the 8th. Harde- son, whom I found to be a credible witness, testified that in the afternoon of the 8th Wilder called her "to see if I had been able to set up the appointment." If in fact Blackwell had called Wilder on the same morning and told him that he would call him back when he had determined whether the Respondent could meet on May 12, it is inconceivable to me that Wilder would have called shortly thereafter to find out if Harde- son had been able to set up such a meeting. I do not credit Wilder's testimony that Hardeson called him back and confirmed the meeting for May 12.4 C. The Refusal To Bargain Respondent contends that it was prepared to bargain with the Union pursuant to the certification until the strike commenced on May 15 and it determined that only three of the employees respected the picket line. Respondent then according to its contention determined that the Union had lost its majority and declined to bargain. The General Counsel contends that, by Respondent's actions in arranging for a meeting on May 12 and then cancelling the meeting and refusing to contact the Union to set up another meeting, Respond- ent failed to meet its bargaining obligation, wherefore the strike that ensued on May 15 was an unfair labor practice strike. The Union argues that the Respondent was at no time prepared to bargain and further argues that its letter of July 15 to the Federal Communications Commission which stated in pertinent part It is true that Rounsaville of Nashville, Inc., has refused to negotiate with AFTRA or, more speci- fically, has refused to recognize AFTRA as a proper collective bargaining agent of the air personnel of this station. It is the contention of Rounsaville of Nashville, Inc., that the election was tainted by outside influences and this contention together with other factors involved in the union dispute are now being litigated before the National Labor Relations Board. is corroborative of its position. (The letter went on, citing Lowell Corrogated Container Corporation. 177 NLRB No. 44, to state "This is precisely the type of proceeding being conducted at the present time by Rounsaville of Nashville, Inc., challenging the propriety of AFTRA to represent the employees of this station.") In my opinion the General Counsel must prevail. While ordinarily the refusal to bargain is more clear cut than the situation here discloses, I believe that Respondent's actions when faced with a demand to bargain are inconsistent with a good-faith attempt to get together with the Union. There is no explanation offered by Respondent for the fact that after Blackwell informed Kocin that he would be in touch with him after he talked to counsel and he thereupon talked to counsel that he made no attempt to call Kocin or Wilder and inform them that they would not meet on May 12. According to all the testimony Blackwell did not definitively state in his conversation with Kocin that they would not meet on May 12 and it was not until the letter was distributed after 5 p.m. that evening that the Union was able to ascertain that Respondent was not going to meet. Even then Respondent did not offer to meet at any given time other than the statement "after we receive your proposal, I shall be in touch ' Wilder in my opinion showed a tendency to shade the facts when he testified that he was probably told on May 5 or 6 that Kocin 3 Asked why he did not call back rather than write a letter, Blackwell was preparing a draft contract for Respondent Kocin credibly testified testified that the day was not yet over However, it is clear that that he first took steps hurriedly to put together a draft contract on he at no time called Wilder back May 8 after his conversation with Blackwell ROUNSAVILLE OF NASHVILLE, INC. with you about a meeting ." Nevertheless, although the proposal was received on May 10 and Blackwell was well aware from his conversation with Kocin that the Union was anxious to meet immediately, Blackwell on May 12 and 13 not only made no attempt to contact the Union but refused to accept or return telephone calls from Wilder. Respondent contends that the Union "jumped the gun" in calling a strike because Respondent was prepared to bargain at this juncture. Nevertheless, when Wilder, hand-delivered a letter on May 13 stating that he was trying to prevent a walkout, Blackwell did not respond even to the extent of a telephone call, whereupon the walkout commenced on the 15th. The question I suppose is how much patience should a union have. How long does a union have to wait to permit an employer to demonstrate that it is not going to bargain. In the instant case, 5 months had elapsed between the election and the issuance of certifica- tion by the Board. During this time two union adherents had been discharged-" and the station had unilaterally changed the wages and hours scheduled for the employ- ees on April 28. I conclude that Respondent failed and refused to bargain prior to the strike and it is clear from the testimony of Wilder that the strike which was called pursuant to a meeting with some of the employees on May 13 resulted from Respondent's dere- liction in this regard. Accordingly, I find that the strike in its inception was an unfair labor practice strike. D. Respondent's Contentions with Regard to Strike Respondent contends that, as a result of the fact that only three employees respected the Union's picket line commencing on May 15 and of the fact that the picket line activity was violent and disorderly, Respond- ent's duty to bargain was vitiated. I refused to accept evidence with regard to Respondent's "good-faith doubt of the union's majority status." Respondent filed an offer of proof after the close of the hearing (in accordance with my agreement during the course of the hearing) which states in effect that only three employees respected the picket line, two others stayed away from work on May 15 and 16 because of union threats and coercion, and that thereafter Respondent has refused to meet because of the Union' s gross misconduct during the strike. It is well settled that employers are under a statutory duty to bargain with a certified collective- bargaining representative even though the union loses its majority shortly after the election.' In the instant case it is impossible to assess the extent to which Respondent's refusal to bargain resulted in the Union's purported loss of majority. The fact that a majority of the employees worked behind the picket line is scarce- ly diapositive of the issue of whether they wanted to be represented for purposes of collective bargaining by the Union. Under what appears to have been very volatile conditions I cannot believe that the refusal of 5 The discharges are the subject of the unfair labor practice proceed- ings before Trial Examiner Frey " Brooks v. N L R B 348 U S 96 559 employees to cross the picket line must necessarily indicate that they no longer wish to be represented by the Union. With regard to the picket line activities which Respondent contends vitiated its duty to bargain, its offer of proof reveals that it consisted of blocking ingress and egress from the station's parking lot, throwing tacks and nails on the pavement, name calling , and threats. All of these are denied by the Union. While of course such activities on behalf of the Union may not be condoned, they do not in my estimation suffice to vitiate the statutory duty on the part of Respondent to meet and bargain with the Union. Protections are afforded the employees and Respondent both under the laws of the city of Nashville and the State of Tennessee and under Section 8(b)(1) of the Act. Respondent had not, at least at the time of the hearing , seen fit to file any charge against the Union for its allegedly coercive activities and there appears to have been no final action in the State courts other than an injunction against acts of violence, abuse, coercion, interference with ingress and egress, and mass picketing. I find that Respondent had a duty at all times to meet and bargain with the Union and has failed in this duty; therefore it is guilty of violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act I shall recommend that it cease and desist therefrom and, upon request, bargain collec- tively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employ- ees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law I shall recommend that the initial year of certifica- tion be construed as beginning on the date that Respond- ent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit . See Pacific Intermountain Express Company, 173 NLRB No. 75, and cases there cited. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I Rounsaville of Nashville, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 American Federation of Television and Radio Art- ists, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act 3 All employees who regularly or frequently appear before a microphone at Respondent's radio station, WVOL, in Nashville, Tennessee, including, but not limit- ed to, staff announcers, newsmen, and regular part time announcers, excluding all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 Since April 24, 1969, the above-named labor organi zation has been certified as the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 By refusing since on or about May 8, 1969, to bargain collectively with the above named labor organi- zation as the exclusive bargaining representative of all the employees of the Respondent in the appropriate unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6 By the aforesaid refusal to bargain Respondent has interfered with, restrained, and coerced and is inter feting with, restraining, and coercing employees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 8 The strike which commenced on May 15, 1969, was in its inception and continues to be an unfair labor practice strike Upon the foregoing findings and conclusions and pur- suant to Section 10(c) of the Act, I recommend that the Board issue the following ORDER A For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent com- mences to bargain in good faith with the Union as the exclusive recognized bargaining representative in the appropriate unit B Rounsaville of Nashville, Inc , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively with American Federation of Television and Radio Artists, AFL-CIO, as the exclusive collective bargaining representative of the employees in the following appropriate bargaining unit All employees who regularly or frequently appear before a microphone at Respondent ' s radio station, WVOL, in Nashville Tennessee including, but not limited to, staff announcers , newsmen, and regular part -time announcers , excluding all other employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning or Section 9(b) of the Act (b) Interfering with the efforts of said Union to negoti ate for or represent employees as the exclusive collec- tive-bargaining representative 2 Take the following affirmative action which is nec- essary to effectuate the policies of the Act (a) Upon request , bargain with the above -named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agree- ment (b) Post at its plant in Nashville, Tennessee, copies of the attached notice marked "Appendix "' Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all 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 (c) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith " Having found that the strike that took place on May 15 was an unfair labor practice strike, I shall recommend that the Board order that upon an unconditional request for reinstatement by the employees they shall be reinstat- ed by Respondent, discharging if necessary any employ- ees hired since the inception of the strike ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions recommendations and Recommended Order herein shall as provided in Section 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and order and all objections thereto shall be deemed waived for all purposes In the event that the Board s Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " In the event that this Recommended Order is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 26 in writing within 10 days from the date of this Order what steps Respondent has taken to comply herewith ROUNSAVILLE OF NASHVILLE, INC. Respondent attempted to adduce evidence that the three present strikers have by their picket line activities in effect gone- beyond the pale and are unfit to be reinstated as employees of Respondent. I declined to accept evidence in support of this contention. If and when the strike is'over if any employee seeks reinstate- ment and Respondent is of the opinion that that employee is no longer fit to be in its employ by reason of his picket line activities the issue may then be raised. At this juncture the matter is too conjectural to warrant litigation of the circumstances or an order excepting any employee from the broad reinstatement order. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with American Federation of Television and Radio Art- ists, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL, upon request , bargain with the above- named Union as the exclusive representative of all our employees in the bargaining unit described 561 below with respect to rates of pay , hours, wages, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All employees who regularly or frequently appear before a microphone at Respondent's radio station , WVOL, in Nashville , Tennessee, including , but not limited to , staff announcers, newsmen , and regular part -time announcers, excluding all other employees and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. Dated By ROUNSAVILLE OF NASHVILLE, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 562 Federal Courthouse Building, 801 Broadway, Nash- ville, Tennessee 37203, Telephone 615-242-8321, Exten- sion 5922.