Greater New York Broadcasting Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1943

48 N.L.R.B. 718 (N.L.R.B. 1943)

In the Matter of GREATER NEW YORK BROADCASTING CORPORATION and
I AMERICAN COMMUNICATIONS ASSOCIATION, LOCAL 16
Case No. C-2174.-Decided March 30, 1943
Jurisdiction : radio broadcasting industry.
Unfair Labor Practices
Intel Terence, Restraint, and Coercion: securing signatures to application blanks;
unilateral change of lunch hour practice and requiring individuals to indicate
by their signatures that they had read a statement containing the respondent's
position on the lunch hour matter; conducting meeting during period of
negotiating with the employees' representative urging them to take a position
different from that being taken by their representative; threatening employees
with reprisals if they engaged in the concerted activity of striking ; attempts to
secure union information from known employee, to have him use his influence
to promote the respondent's position, and impliedly suggesting his withdrawal
from the union; attempts to get employees to desert strike action ; failure to
answer an employee's request for a letter of recommendation; refusal to permit
striking employee's use of facilities for free lance announcing as employees of
independent contractors; allegation that respondent misrepresented that Board
had no jurisdiction with respect to the issue of the appropriate unit or that
respondent offered inducements to its employees to form an unaffiliated union,
dismissed.
Discrimination: tactical discharge of certain strikes found not discriminatory;
refusal to reinstate striking employees by: reinstating those whom it chose;
failing to give reinstated strikers substantially equivalent employment by:
requiring them to sign new applications containing objectionable clauses and
treating them as new, employees; certain reinstated strikers who were subse-
quently released found not to have been discharged when contrary to Trial
Examiner's finding that "but for deprivation of seniority rights . . ." they
would have been retained, there was no evidence that they were entitled to
seniority rights or that a system of seniority was followed in releasing the
employees ; striking non-union employee found not to have been discrimina-
torily denied reinstatement when no application was made by him or bn his
behalf ; alleged misconduct found not to excuse respondent's failure to reinstate
certain of the strikers.
Collective Bargaining: majority established by signed authorizations ; respond-
ent's refusal to bargain with the union until the union submitted proof that
it represented a majority of the new group which it sought to represent for
the first time, found to have been made in good faith and not to constitute
a refusal to bargain ; majority status not dissipated by the hiring of new
employees after strike was prolonged by respondent's unfair labor practices-
refusal to bargain collectively during strike : individual dealing with pro-
longing the stake ; attempts to get strikers to deal directly with the respondent;
refusal to bargain concerning the reinstatement of the strikers ; duty to bargain
not suspended by fact that strike may have been unwise and accompanied by
wrongful acts.
48 N. L. R. B, No. 91.
718
GREATER NEW YORK BROADCASTING CORPORATION 719
Remedial Orders : respondent ordered to bargain collectively; reinstatement and
back-pay awarded : striking employees who were not given substantially
equivalent employment to be compensated for loss incurred by respondent's
failure to accord them the rights and privileges they would have enjoyed
upon full reinstatement; reinstated striking employees awarded back-pay to
date their employment was non-discriminatorily terminated ; striking-super-
visory-employee who engaged in deceptive conduct inconsistent with his duty
to respondent not ordered reinstated or made whole for any losses he may
have suffered.
Unit Appropriate for Collective Bargaining : three groups formerly under con-
tract, the technicians, announcers and sound effects men, constituted along
with certain miscellaneous employees a single appropriate unit, although
predominant form of organization in the radio field had been on a craft basis,
when among other reasons the organization had shifted its organizational
approach to an industrial basis, the consolidation of the groups constituted
a logical development in self organization, and the groups, although varied as to
skill and pay rates, were interdependent.
DECISION
AND
ORDER
On April 25, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
annexed hereto. Exceptions to the Intermediate Report and briefs
were thereafter filed by the respondent and A. C. A. Oral argument
,was held before the Board on November 5, 1942, in which the respond-
ent and A. C. A. participated. The Board has reviewed the rulings
of the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The re-
spondent has filed a motion to reopen the record for the purpose of
introducing additional evidence. Since the respondent had ample
opportunity to adduce such evidence at the hearing, and has advanced
no reason why it failed to do so, the motion is hereby denied. The
Board has considered the - Intermediate Report, the exceptions and
briefs and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of'the Trial Examiner,, except in the
respects noted below.
1. The Trial Examiner found that the respondent refused to bar-
gain with A. C. A. on and after November 4, 1940. We agree with
this finding and make the following additional findings in connection
with the respondent's refusals to bargain on November 4: Cohen denied
that he knew on November 4 that Largay or Kerr spoke to him at the
request of A. C. A. He further denied that he knew on November 4
that A. C. A. desired to negotiate. He admitted, however, that Kerr
720 DIECISIONS OF NATIOaNAL ,LABOR' RELATIONS BOARD
indicated to him that she had spoken to a representative of A. C. A.
prior to her request. of Cohen to attend a conference between the
respondent and A. C. A. Upon all the evidence, including the events
of the preceding clay and Cohen's replies' to-the requests of Largay
and Kerr that Cohen meet with A. ,C. A., we do not credit Cohen's
denials. We find that the respondent knew on November 4 that
Largay and Kerr were acting at the request of A. C. A., and that
A. C. A. desired to negotiate with the respondent.
2. The Trial Examiner found that the respondent discriminatorily
discharged Frances Hopkins and Rosalind Suchin on February 8,
1941. He based his finding upon the ground that "deprivation of the
protection of seniority rights must also be assumed to have operated
detrimentally to Hopkins and Suchin when they were discharged on
February 8,1941." However, there is no evidence that these employees
were entitled to such "seniority rights," or that any system of seniority
was followed by the respondent in releasing various employees on
February 8. Upon the entire record, we find that the evidence does not
support the allegations ^of the complaint that the respondent discrimi-
nated in regard to the hire or tenure of employment of Hopkins and
Suchin on February 8, 1941. Our Order will not provide for their
reinstatement, but 'ill provide that the respondent make them whole
for any losses of pay they may have suffered prior to February 8, 1941.
3. The Trial Examiner found that the respondent discriminatorily
'refused to reinstate Otto Janowitz. However, no application for
reinstatement was made -by Janowitz or in his behalf. We find that
the evidence does not support the allegation of the complaint that.
the respondent discriminatorily refused to reinstate Janowitz. Our
Order will not provide for back pay in his case, but will provide that,
the respondent offer him reinstatement, since he ceased work because,
of the respondent's unfair labor practices.
4. The Trial Examiner recommended that the respondent rein-
state Richard Norman with back pay. Norman's employment was
terminated on May 10, 1941. The complaint does not allege and,
the evidence does not show that Norman was discriminatorily dis-.
charged on May 10, 1941. Our Order will not provide,for his re-
instatement, but will provide that the respondent make him whole-
for any loss of pay lie may have suffered prior to May 10, 1941.
5. The Trial Examiner recommended that the respondent rein-
state Robert E. Study with back pay. Study was the chief engineer
in charge of all technical operations and technical personnel at sta-
tion WOV. His supervisory powers included the power to recom-
mend the hiring and discharge of employees. Furthermore, since
much of the respondent's technical apparatus was not of standard,
type and had peculiarities known only to engineers familiar there-
with, the position of chief engineer was one in,which management
was entitled to have a person of complete reliability. Yet, although
GREATER "NEW.Z ORK ' BROADCASTING: CORPORATION 721,
J
Stiidy .at first led K y to believe that lie would assist in returning
the station to.the• air, he subsequently refused to do so, thereby en-:
gagun 'g in deceptive , conduct inconsistent with his duty to•respondent
as chief engineer . Under these circumstances , we find that it would.
not effectuate the policies of the Act to order the respondent to re-,
instate Study or to make him whole for any losses of pay lie may
have suffered.
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 , Greater New York Broad-
castnng Corporation , New York City , and its officers, agents, suc-
cessors , and assigns , shall :
1. Cease and desist from:
(a) Refusing to bargain collectively with American Communica-
tions.Association , Local 16, affiliated with the Congress of Industrial'
Organizations , as the exclusive representative of all announcers, in-
cluding the program director ; technicians , including the chief en-
gineer ; sound-effects men; and miscellaneous employees , the said
miscellaneous employees comprising stenographers , typists, clerks,
switchboard . operators , bookkeepers, censor, page boys , copyrighter,
watchman , and translators employed by the respondent at its studios
and its transmitter , but not including salesmen , musicians, publicity
men, station manager, executives and officers;
'(b) Discouraging membership in American Communications As-,
sociatnon , Local 16, affiliated with the Congress of Industrial Or-
ganizations , or any other labor organization of its employees, by
refusing to reinstate any of its employees or in any other manner,
discriminating in regard to their hire or tenure of employment or
any terms or conditions of their employment;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right of self-organization, to
forin, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining of 'other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act. -
2. Take the following affirmative action, which the Board -finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with American Communi-
catioiis Associations, Local 16, affiliated with the Congress of Industrial
Organizations; as the exclusive representative of all announcers; incliul-
ing the program director; technicians, including the chief engineer;
sound-effects men; and miscellaneous employees, the said miscellaneous
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARID
employees comprising stenographers, typists, clerks, switchboard oper.
ators, bookkeepers, censor, page boys, copyrighter, watchman, and
translators employed by the respondent at its studios and its trans-
mitter, but not including, the salesmen, musicians, publicity men,
station manager, executives and officers, in respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) Offer to the employees whose names appear in Appendix A, ,
and to Otto Janowitz, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges, in the manner set forth in the
section of the Intermediate Report titled "The remedy"; and place
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section, and
thereafter in said manner, offer them employment as it becomes
available; - J
. (c) Make whole the employees whose names appear in Appendix A,
and Rosalind Suchin, Frances Hopkins, and Richard Norman, for any
loss of pay they have suffered by reason of the respondent's discrim-
ination in regard to hire and,tenure of employment, by payment
to each of them of a sum of money equal to that which he or she would
normally have earned as wages and/or received as fees during the
period from the date of the application for reinstatement on December
5, 1940, to the date of the respondent's offer of full reinstatement or
placement on the preferential list as set forth in the section of the
Intermediate Report titled "The remedy," less his or her net earnings 1
during such period; provided, however; that as to Rosalind Suchin
and Frances Hopkins, said period shall not run beyond February 8,
1941, and that as to Richard Norman, said period shall not run beyond
May 10, 1941;
(d) Post immediately in conspicuous places inits studios and its
transmitter, and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order ; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that
the respondent's employees are free to become or remain members of
American Communications Association, Local 16, affiliated with the
Congress of Industrial. Organizations, and that the respondent will not
discriminate against any employee because of membership or activity
in that organization;
(e) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of the receipt of tliis Order what
steps the respondent has taken to comply herewith.
1 See Intermediate Report , footnote 100.
521247-43-vol. 48-45
GREATER, NEW YORK BROADCASTING _ CORPORATION ,,723
-IT; IS. FURTHER ORDERED that the_ complaint be, and it hereby is, dis-
missed, insofar,as-it alleges that the respondent: (1) discharged any
of its employees on or about November 3 and 4,1940; (2) discriminated
in- regard to''the'hire or tenure of employment of Frances Hopkins
and Rosalind Slichin on February 8, 1941; and (3)' discriminated in
regard to the hire or ' tenure of employment of Otto Janowitz, by
refusing to reinstate him: -
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Order:
APPENDIX A
Sanford Alper Ann Murtaugh Joseph Zappulla
Gaetano Ferri Arthur Olsen Olga Steinberg
Maurice Kamke Alan Stratton Gilbert McDonald
Vivian Murgia Robert Dickens Samuel Sokal
Eric Potts Ellis C. Jones' Joseph Garafalo
David Tanzman ' Solomon Lowenbraun Lena Corrado
Charles Berry Karl Neuwirth Joseph Boley
Walter, Graham Frank Polimeni Kennedy Ludlam
Frank Kearney William Wegge
INTERMEDIATE REPORT
Mr. Millard L. Midonick, for the Board.
Mr. Sanford H. Cohen and Mr. Henry H. Silverman, of New York, N. Y., for
the` respondent. -
Boudin, Cohn & Glickstein, by Mr. Leonard B. Boudin, of New York, N. Y.,
for A. C. A.
STATEMENT OF THE CASE
Upon an amended charge duly filed by American Communications Association,
Local 16, herein called A. C A., the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region (New York,
New York) issued its complaint, dated August 13, 1941, against Greater New
York Broadcasting Corporation, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and the accompanying notice of hearing were, duly
served upon,the respondent and A. C. A.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance: '(1) that on or about September 28, 1940, and at
all times thereafter, the respondent refused to bargain collectively with A. C. -A.,
although A. C. A. had been at all times since 'September 14, 1940, the duly desig-
nated representative of a majority of the respondent's employees at both its
New York City offices and studios and its Kearny, New Jersey, transmitter in
an appropriate unit comprising "all announcers, including the program director ;
technicians, including the chief engineer : `sound-effects men ; and miscellaneous
521247-43-vol. 48-47
1724 DECJSIONS OF NATIONAL LABOR RELATIONS BOARD
,employees, the said miscellaneous employees comprising stenographers, typists,
clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter, watch-
man, and translators ..., but not- including salesmen, musicians, publicity men,
station manager, executives and officers"; (2) that the respondent's employees
went on, strike on or about November 3 and 4, 1940, because of the respondent's
unfair labor practices and that said strike was prolonged by the respondent's
unfair labor practices; (3) that on or about November 3 and 4, 1940, the respond-
ent discharged 34 named employees and thereafter refused to reinstate them
because they joined and assisted A. C. A. and engaged in a strike and in other con-
certed activities, except that the respondent reinstated 12 of the strikers at various
times during November and December 1940 and January 1941, and except that
two of the 12 so reinstated were subsequently discriminatorily discharged in
February 1941;'1 (4) that from about September 1, 1939, to January 3, 1941, the
respondent's predecessor, International Broadcasting Corporation, herein called
International_ and from about January 3, 1941, to date, the respondent urged,
persuaded, warned, and offered inducements to its ^ employees to refrain from
aiding, sympathizing with, becoming, or remaining members of A. C. A. or any
.other bona fide labor organization; threatened said-employees with, and notified
them of, discharge, demotion, and other reprisals if they should aid A. C. A. or
members thereof or engage in concerted activities, and offered inducements to
refrain from such activities ; notified employees of and inaugurated conditions
of employment inconsistent with the provisions of existing contracts with A. C. A.
in order to discredit A. C. A.; requested and required employees to sign docu-
ments stating that the signer was to have no employment contract and could
be discharged for any cause without notice ; urged and offered inducements to
employees to"form, aid, and join an unaffiliated labor organization confined to
the respondent's employees, and urged that employees negotiate directly with
the respondent ; misrepresented to employees that the Board had no jurisdiction
with respect to an issue concerning the appropriate' unit ; refused to discuss
grievances with X. C. A. in, behalf of its members ; interrogated employees
-concerning their concerted, activities and activities on behalf of A. C. A. and
I The spelling of the names of the 34 complainants and the dates set out in this footnote
have been conformed to the proof in accordance with motions granted at the hearing. Except
where a complainant testified, the spelling of his name is based upon pay-roll records, as
are the dates. An analysis of the pleadings thus conformed shows that
The following 21 complainants never resumed work :
Sanford Alper Walter Graham Ellis C. Jones
Gaetano Ferri Frank Kearney Solomon Lowenbraun
Maurice Kamke Ann Mur\taugh Karl Neuwirth
Vivian Murgia Arthur Olsen Frank Polimeni
Eric Potts Alan Stratton Robert E Study
David Tanzman Otto Janowitz William Wegge
Charles Berry Robert Dickens Joseph Zappulla
The following 13 complainants did not resume work until the dates set after their names :
James Capozucchi, Nov. 5, 1940 Samuel Sokal, Dec. 20, 1940
Leandro Forno, Dec. 2, 1940 Joseph Garafalo, Dec. 23, 1940
John C Schramm, Dec 3, 1940 Lena Corrado, Dec 23, 1940
Richard Norman, Dec. 12, 1940 Frances Hopkins, Dec. 30, 1940
Rosalind Suchin, Dec. 17, 1940, Joseph Boley, Jan 20, 1941
Olga Steinberg, Dec 17, 1940 Kennedy Ludlam, Jan. 20, 1941
Gilbert McDonald, Dec. 18, 1940
Of the above 13, Suchin and Hopkins worked only until February 8, 1941; the complaint
alleged they were then again discharged and thereafter refused reinstatement. Two others
of the above, Schramm and Norman, worked only until April 19 and May 10, 1941, respec-
tively, but the complaint contained no allegation as to a second discharge as to either of
them. As to McDonald, the complaint alleged he was not reinstated, the Board's position
being that when he returned it was to ,a less desirable position. Thus, the complaint alleged
that only 12 were "reinstated," while the answer alleged that 13 were "re-employed."
GREATER NEW YORK BROADCASTING CORPORATION 725
with respect to differences between A. C. A. and the respondent ; discriminatorily
declined to give references to employees and attempted to black-list and otherwise
prevent employment with other employers ; and discriminatorily refused to
permit A. C. A.' adherents the use of the respondent's facilities as employees of
.an independent contractor which contracted for the use of its radio time and
facilities - (6) and That the respondent, by all of the foregoing acts and each of
them, interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
The respondent's answer, as amended at the hearing,' denied that the respond-
ent had engaged in any unfair labor practices or that the unit alleged in the com-
plaint was appropriate, and alleged that A. C. A. had gone on strike "while
negotiations were proceeding. .. in good faith under -an agreement . . . that
the question of the appropriate unit and majority representation would be deter-
mined by the National Labor Relations Board." It further alleged, in effect, that
15 named employees 3 had been discharged on or about November 3 or 4, 1940, and
that all but one of them thereafter had been refused reinstatement because they
had committed, aided, abetted, assisted, permitted, or failed to prevent, the com-
mission of acts of sabotage ; had breached reasonable rules relating to the use of
the respondent's property and premises and persons permitted access thereto ; had
signed'off the respondent's radio station without authority prior to its usual
signing-off time; had barred the respondent from access to portions of its preen-
, ises ; had used or permitted the use of the respondent's facilities to publicize a
strike then in progress and the activities of A. C. A.; had interfered with the
normal operation of the respondent's business ; and had committed other acts "in
violation of the duties which such persons owed the respondent in their capacities
as employees " The amended answer further alleged that 13 named individuals,
12 of whom had "voluntarily left the employ of the respondent" about November
3 or 4, 1940, had been "re-employed" upon certain specified dates,` and that
Hopkins and Suchin had been discharged on February 8, 1941, for "good and
sufficient cause." As to ,the remaining seven employees,' who were neither among
those named as discharged,or those who resumed employment, the amended
answer alleged that some of them requested "re-employment" but failed to receive
it because the positions which they had formerly occupied had been filled by
persons who had been promised permanent employment.
Pursuant to notice, a hearing was held in New York City from September 18
to November 20, 1941, before the undersigned, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the respondent, and A. C. A. were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. At the close of the Board's case the
respondent moved to dismiss the complaint. Ruling was reserved on the motion
when made and when renewed at the close of the hearing. The motion is hereby
denied. During the course of the hearing several motions were granted, without
2 The answer was filed at the opening of the hearing on September 18, 1941, the time
for filing having been extended by the Regional Director. On September 30, pursuant to a
request by the undersigned that its defense be made more specific, the respondent filed an
amended answer.
B The 15 employees allegedly discharged were Study, Alper, Ferri,'Kamke, Potts, Berry,
Graham, Kearney, Olsen, Stratton, Dickens, Neuwirth, Pohmeni, Wegge, and Boley. Of
these, Boley was later "voluntarily re-employed "
I The 13 persons so "re-employed" and the dates upon which each resumed work appear in
footnote 1.
' These seven were Zappulla , Murgia, Tanzman , Murtaugh , Janowitz , Jones, and
Lowenbraun.
726 DECISIONS OF NA'TIO AL L^ABOiR RELATIONS BOARD
objection, amending the complaint' and thd-answer in certain minor respects.
Motions were also granted without objection conforming the complaint and the
answer to the proof in regard to such matters as dates and the spelling of names.
At the close of the hearing'the parties were afforded an opportunity to argue
orally before the undersigned and'to file briefs. No oral argument was held.
Briefs have been filed by the respondent and by A. C. A.
Upon the entire record in the case and from his observation of the witnesses,
-the undersigned makes the following : -
FINDINGS OF FAGr
l 1.
THE BUSINESS OF THE RESPONDENT
The respondent, Greater New York Broadcasting Corporations is a New York
corporation with its principal office and broadcasting studios in New York City
and its transmitting plant in Kearny, New Jersey. The respondent is engaged
in the transmission by radio through, radio station WOV of entertainment, adver-
tising, and intelligence into and through the State_ of New York and into and
through the State of New Jersey. While the respondent's transmitter is intended
to\cover the Greater New York Metropolitan Area, programs from WOV have
been received at.points in the United States as far away as California and in
foreign countries as far away as Australia. Programs are also transmitted by
direct telephone line between WOV and radio station WPEN in Philadelphia
and, upon occasion, WOV is hooked up with some New England radio stations to
form a small network. The respondent's operations are conducted under a license
granted by the Federal Communications Commission, herein called the F. C. C.
The respondent admits for the purposes of this proceeding that it is engaged in
commerce among the several States.
On January 3, 194t1, the respondent, which was organized about July 1938,
took over the business enterprise conducted through the medium of radio station
WOV from International, which had operated WOV from about 1927. The same
individual, Arde Bulova, owned the majority of the stock in and served as presi-
dent of both International and the respondent. In taking over WOV,e the respond-
ent continued to operate with the same general manager and staff, and to give
• effect to the then existing labor agreements:' The undersigned finds that, for all
purposes material in the instant matter, the respondent is the successor of
International.
II. THE ORGANIZATION INVOLVED
American Communications Association, Local 16, is a labor organization affil-
iated with the Congress of Industrial Organizations. A. C. A. admits to mem-
bership employees of the respondent and was formerly known as American Radio
Telegraphists Association, herein called A. R. T. A.
9 At the same time, the respondent combined WOV's schedule and facilities with those
of WBIL Prior to January 3, 1940, International had operated both WOV and WBIL as
part-time stations, using the same staff and studios but separate 'transmitters. After
January 3, WOV was operated as a full-time station, broadcasting from 7 a. in. to midnight
programs in English and Italian.
7 The contracts involved are described below. The general manager who was thus con-
tinued was Hyla Kiczales. She was known at the station as Miss Kay and is herein called
Kay. Most employees so continued had been on the staff for substantial periods. Of those
involved herein, l'had started working at WOV in 1930; 2 in 1931; 1 in 1932; 3 in 1934 ;
4 in 1935,; 4 in 1936 ; 10 in 1937 ; 3 in 1938 ; and 5 in, 1939.
GREATER ,-NEW YORK BROADCASTING CORPORATION 727
e - '
,III THE UNFAIR LABOR PRACTICES
A. Chronological statement of the facts
1. The development of self-organization and contractural relations
The beginning of the development of labor relations at WOV antedates the
respondent's acquisition of that station and was similar to that at radio station
WPEN in Philadelphia in which Bulova secured majority stock ownership on
August 24, 1939, and which Bulova has since continued to control. From the
latter part of 1937 to about October 1939, Kay served as general manager and
Robert E- Study as chief engineer at both WOV and WPEN. During that period,
self-organization took place among the technicians and the announcers at each
station along craft lines .8 The technicians were organized by A R. T. A. and
the announcers by American Guild of Radio Announcers and Producers, herein
called A. G. R. A. P. From November 1, 1937, to March 1, 1938, Kay entered into
or renewed 4 closed-shop contracts, two for employees at each station., Thus,
by the spring of 1938 Kay had signed two contracts with a craft organization,
A. G. R. A. P., covering the announcers in WPEN and WOV, respectively. She
had also signed two contracts wtih A R. T. A., a craft organization, thus covering
the technicians at each station. The self-organization at WOV had followed and
paralleled that at WPEN.
During 1938, A. C A. became the successor of A. R. T. A. In the latter part of
that year a constitution was adopted which changed the basis of organization
from craft to industrial. While under A. R. T. A. effort had been'made to
organize only radio technicians, the emphasis thereafter shifted under A. C. A.
.so that all employees of radio stations except musicians and artists were included.
On November 1, 1938, A. C. A. secured a contract covering announcers and
miscellaneous employees at WPEN which was renewed twice after Bulova secured
control of the station, first on November 20, 1939, and again on November 20,
1940. Among the miscellaneous employees covered were telephone operators,
building maintenance employees, secretaries, stenographers, a bookkeeper,' and
a music and record librarian ' During this same period the technicians at WPEN
also were under contract with A. C. A. by virtue of the automatic renewal of
a technicians' agreement signed March 1, 1938, to which A. C. A. had become the
successor. Thus, since November 1, 1938, A. C. A. has had substantially all of
the employees at WPEN under contract in what has been, in effect, an industrial
unit.
Turning now to the,employees at WOV, the coverage of the technicians and
announcers under agreements' with A C. A., as A. R. T. A.'s successor, and
A. G. R. A. P , respectively, continued without substantial changes, by virtue of'
renewals, until the fall of 1939. On October 1, 1939, Kay, general manager of
WOV, for International, and Leonard Oh], international vice president, for
A. C. A., signed two closed-shop agreements. One covered for the first time
,two sound-effects men who had shortly prior thereto begun devoting their time
to such work. The other covered the technicians, including the chief engineer.
Both contracts were similar in their general provisions and were to run for a year.
Some 4 months after the above development a further change took place. Ab9ut
February 1, 1940, shortly after the respondent took over WOV, all of the an-
,
8 The first contract covering technicians at WPEN was entered into in 1936, and A. R. T.
A. first organized the technicians at WOV late in 1937. At both stations the technicians
were organized, before the announcers. . "
8 The term, bookkeeper, was first used in the contract of November 20, 1940.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nouncers then employed shifted their affiliation to A. C. A. Thereafter, on March
16, a closed-shop agreement was signed by Kay for.the respondent, and Sidney
Adler, chairman of the Atlantic Branch of the Broadcast Division of A. C. A.,
covering the announcers, including the program director. Its expiration date,
like that of the technicians' contract and the sound-effects contract, was October
1, 1940. Thus, by the spring of 1940 self-organization at WOV had evolved to
the point where A. C. A. had three contracts which were to expire as of even
date covering, respectively, technicians, sound-effects men, and announcers.
2. The rise of friction in labor relations
It was during the latter half of 1939 that friction arose between International
and the unions, A. C. A.,and A. G. R. A. P., which then represented employees
of WOV. During June and thereafter, without taking the matter up with repre-
sentatives of either union or explaining the reason for so requesting,10 Kay in-
sisted that employees sign printed application blanks. Those blanks contained
the following statement just above the place for signature:
I understand that I am to have no employment contract, that I am hired
for no specific period of time ; that I can leave or be dismissed at any time
for any cause without notice.
During the summer of 1939, at least nine employees signed such applications.
Some struck out the clauses to which objection was made. All had been employed
for some time prior to their signing.
About the first of September, Kay asked Study, chief engineer of the respondent,
to sign such an application. A. C. A. had instructed its members not to sign.
Study objected to the above clauses and told Kay that the men under his
jurisdiction would not sign. Kay told Study that Bulova insisted that the applica-
tions be signed. A G. R. A. P. also protested its members signing those applica-
tions On September 26, 1939, the national president wrote that A G. It. A. P.
could not allow its members to sign since the statement was contrary to its contract
with International, and that any coercion upon the announcers to get them to
sign would be "illegal and contrary to the spirit and letter of the Wagner Act."
The contract in effect between International and A. G It. A. P. during the period
of the above controversy provided that International could not discharge an
announcer for union activity ; that 2 weeks' notice in writing of intention to dis-
charge should be given ; that during such 2 weeks the matter should be subject
to negotiation between International and the grievance committee; and that in
event of disagreement as to the justification for discharge, the matter should be
referred to an impartial arbitrator. A. C. A.'s contracts covering the technicians
and the sound-effects men, respectively, contained similar provisions . There is no
evidence that International then, or the respondent thereafter, made any attempt
to reach an understanding with either union concerning such applications. These
applications continued to be used.
On May 20, 1940, without previously having taken the matter up with any
representative of A. C. A, the respondent instituted a change which required that
technicians and announcers take their lunch hour outside of the 8-hour work
day., This change secured one additional hour's work per day from each employee
involved. thus enabling the respondent to dispense with the services of two
i0 The respondent adduced testimony to show that International 's reason for making the
request was that a former employee was suing, claiming that he had an oral contract
with the respondent . The respondent also contended that such blanks had - been used by
companies controlled by Bulova for some period of time. Cohen testified that he told gay
that the clauses objected to could be stricken.
GREATER NEW YORK BROADCASTING CORPORATION 729.
announcers and two technicians. Prior to the respondent's action, the practice
had been to give technicians and announcers a 1-hour lunch period during the
8-hour working day, thus making the time actually worked 7 hours. The contracts
then in effect covering technicians and announcers each specified the working day
as 8 "consecutive hours," and each provided, "one lunch or rest period of sixty
(60) minutes per day will be given."
The above change led to protracted friction and was eventually arbitrated.
The arbitrator's award was handed down on August.6. The respondent was
required to reinstate the four employees ; to pay them amounts equal to earnings
lost ; to give,, a week's vacation, with pay to one employee ; and to revoke its rule
for the period of the effectiveness of the contracts.
The arbitrator based the award on the express wording of the identical lan-
guage of the contracts, and upon the previous practice at the station. He also
pointed out that the respondent had failed to seek any change in the wording
of the announcers' contract which had been signed shortly before the respondent
had instituted the change, although it had had the idea of changing in mind for
some 2 or 3 months before that contract was signed. At the arbitration pro-
ceedings it was not questioned that the respondent's desire for increased profits
was its motive for changing the lunch hour practice."
The respondent did not comply with the award of the arbitrator but continued
to keep.its lunch hour rule in effect. Thus, the enforcement of the award became
a matter of litigation with which the activities of the parties discussed below'
pertaining to the expiring contracts were interlaced 12
3. The developments in the fall of 1940
On September 1, Sanford H. Cohen, general counsel and treasurer of the
respondent and general counsel of International, who has been associated with
Bulova for over 20 years, wrote A. C. A. abrogating the announcers' agreement
which was to expire October 1, 1940. The letter contained only a notice of
abrogation. Thereafter A. C. A. began signing up miscellaneous employees, of
which there were 17, one of whom had already signed in May when he had been
working as a sound-effects man. On September 10, a second miscellaneous
employee signed, and on September 11, two more. One. additional miscellaneous
employee signed on September 13, another on September 17, and another on
September 18. Thus, by September 18, A. C. A. had signed up seven of the 17
miscellaneous employees.
On September 14, while the miscellaneous employees were being signed up,
Adler`'' wrote Kay acknowledging the notice of abrogation which had been sent
by Cohen,. ,and asked as "the sole and exclusive bargaining agency for the men
concerned" in the abrogated announcers' agreement for a meeting "at your
earliest convenience to discuss terms of a new agreement representing these
men." On September 18, Cohen sent two more letters to A. C. A. One was.
identical with the letter of September 1 except that it bore the seal of the
respondent after Cohen's signature. The other letter contained only a brief
"Likewise, at the hearing in the instant matter the Board did not seek to establish
that the respondent was motivated by other than economic reasons in making the change.
Rather it was the way in which the matter was handled which was put in question.
"A. C. A. filed in the Supreme Court of the State of New York its motion , dated Septem-
ber 12, 1940 , for a confirmation of the arbitrator ' s award, and thereafter the respondent
filed its cross -motion to vacate . It was not until November 2 , the day preceding the strike,
that the court handed down an opinion confirming the arbitrator's award.
"Adler v.as the representative of A. C. A. during the arbitration matter and during the
negotiations before the strike. .
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
notice of abrogation of the technicians' agreement and was signed by' Cohen
on behalf of International, with that corporation's seal and on behalf of the
respondent with its seal
On September 19, Adler wrote Kay acknowledging Cohen's abrogation of
the' technicians' agreement and giving notice of the abrogation of the sound-
effects agreement. He requested an early meeting to negotiate "terms of a
new agreement representing the men covered in these departments." On Sep-
tember 21, Cohen answered Adler's letter of September 14,1 requesting that
Adler phone at his earliest convenience to arrange for a meeting. On Sep-
tember 23, Cohen acknowledged the above letter of September 19, and indi-
cated that he was awaiting a call.
On September 28, pursuant to arrangement, Adler and a small committee of
WOV employees covered by the expiring contracts met` Cohen at his offi
ce .14
Adler presented Cohen with a- partial agreement which set forth conditions
of employment for technicians and announcers and which, sought recognition
as the sole and exclusive bargaining representative for the radio technicians,
announcers , sound-effects technicians, chief engineer, censors, program director,
page boys, telephone operators, translators, copyrighters, stenographers, book-
keepers, and the transmitter watchman."
The meeting of September 28 was the first occasion upon which A. C. A. had
sought to represent the so-called miscellaneous employees. Cohen raised no
question as to the right of A. C. A. to represent the 10 technicians, 10 announcers,
and 2 sound-effects men then covered by closed-shop contracts. There is no
evidence that he objected to their being grouped together in a'single contract.
But he told Adler that A. C. A. had not represented the miscellaneous employees
before and that-the request for their inclusion was absurd. He also asked to
see proof of such representation. While Adler claimed to have sufficient proof,
he said it was not the policy of A. C A to show it 19 Adler told Cohen that he
could appeal to the Board, and Cohen said that if he did the Board would show
him the proof. He insisted that he was not going to bargain for the miscellane-
ous employees until he was showii'proof that A C. A. represented them. Cohen
also emphasized that the respondent would insist that the lunch hour provision,
to be negotiated be clearly worded so as to.exclude the lunch hour from the
8-hour work day,17 told Adler that he was going to send a notice concerning the
lunch hour to the employees ; but did not indicate what the wording of the notice
would be. Adler took no position concerning the sending of a notice on this
matter.
On September 30, the day before the contracts were to expire, all 22 announcers,
technicians, and sound-effects men were asked to sign, and did sign individually,
statements to the effect that' each had read and received a copy of a letter
stating that the contracts were expiring ; that the respondent was bargaining
collectively on wages and hours; and that pending such bargaining "you are at
liberty to continue in your employment with the company until further notice
at the rate of wages under which you have been working, and the hours are to
I 14 Cohen's office was a few blocks away from the studios and offices of the respondent,
which were then located at 123 West 43rd Street. '
" While some of the terms used vary from these used in the allegation as to the appro-
priate unit in the complaint , the parties understood what employees were involved.
1e At that time A. C. A. actually had authorizations from 10 technicians, 6 announcers,
and 2 sound -effects men . In addition it had 7 authorizations from miscellaneous employees,
of whom there were 17, making a total of 25 designations out of the 39 employees in the
unit sought.
17 Cohen testified that Adler admitted to him at one time that A. C. A. had no other
contract in which the lunch hour was given as a part of the 8-hour day . At the hearing,
Adler was unable to cite any instance where A. C. A . had secured such a concession.
GREATER NEW YORK BROADCASTING CORPORATION 731
be S working hours per day exclusive of the lunch hour which lunch hour shall not
be computed within the 8 working hours."
Between October 2 and 'October 9, during which period Jewish religious holi-
days occurred, Adler made several unsuccessful attempts to reach Cohen by tele-
phone. About October 9, Adler finally did reach Cohen and asked him why he
had been neglecting to meet to bargain Cohen stated that he had had other
commitments which had made it impossible for him to meet Adler personally,
and again asked about the miscellaneous employees. Adler said that A. 'C. A.
was still determined to bargain for them. Also on October 9, Adler sent Cohen'
a copy of a proposed contract which covered the same employees in one unit which
had been included in the partial contract presented September 28, but in addition
setting out proposed terms for the sound-effects man and the miscellaneous
employees.
Adler and Cohen next met on October 11 at Cohen's office Several employees
were also present.18 Adler wanted to bargain for all of the' employees named
in the.proposed agreement, but Cohen would not bargain for the miscellaneous
employees without proof that A. C. A. represented them. The proof was refused.
Cohen then said he would bargain for the other employees, but Adler would
bargain only ,if the miscellaneous employees were included too. There is no
evidence that any question as to separate contracts was raised. Adler asked
Cohen if he wanted to go to the Board about the matter, and Cohen indicated
that he did. That day, after the above conference with Cohen, Adler went to the
Second Regional Office of the Board, herein called the Regional Office, and filed a
representation petition. The unit asked for therein was the "entire staff," each
category included in the proposed contract being set forth. The petition alleged
that A C. A. represented "at least 75%" of the approximately 40 employees in
the single unit, and that the question arose because the respondent contested
A. C A 's majority of such employees and asked for an election.
No meeting took place between the respondent and A. C. A. during the two
weeks between October 11 and October 23. On October 17, the rest of the
announcers signed A. C. A. designations, and on October 18, two more miscel-
laneous employees signed, making a total of 9 out of 17 miscellaneous employees.
Thus, by October 18, 31 employees out of 39 in the inclusive unit sought had desig-
nated A. C. A. During this period, sometime about the middle of October, it was
unanimously decided at a meeting of A. C. A. to take strike action in the event
that the respondent refused to bargain.
On October 23, representatives of the parties met at the Regional Office with
Field Examiner Edna T. Kerr.19 A. C. A.'s position was that all four groups
of employees should be bargained for as one unit and that it would probably
strike the next day unless the respondent bargained on that basis. Cohen con-
tended that each of the three groups formerly under contract constituted a
separate unit,,thus leaving the matter of the miscellaneous group to be worked
out. He was unwilling to commit the respondent to accepting the miscellaneous
group even as a separate appropriate unit. During the meeting Adler presented
9 applications signed by miscellaneous employees to Kerr and indicated that in
the event of any check of cards A C. A. did not want the miscellaneous group
treated separately but desired a check of the unit as a'whole. The meeting
ended inconclusively.20
21 No employee from the miscellaneous group was present at any meeting with the re-
spondent prior to the strike.
19 The findings concerning the meeting of October 23 are based upon a memorandum
made by Kerr , as interpreted in the light of the testimony of Adler, Berry, Cohen, and Kerr.
20 The Regional ,Office was later informed that the parties were negotiating on the' basis
of four separate agreements , as is subsequently discussed herein.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 10 a. m. the next day, Lafount, the respondent's vice-president, told
Study that a strike was scheduled for 11 that morning, and said to him, "Of
course you will be included also." Study replied that he believed he would be
and told Lafount that he would call Adler and ask him to come to the station
so that they could discuss the situation. Adler arrived shortly before 11 o'clock.
Upon his arrival, a conference took place which was attended by Lafount, Adler,
and a small group of employees, including Study. Adler told Lafount that the
negotiations had been making practically no progress and that he and the men
felt that Cohen should be replaced by Kay, who knew the problems at the station
and had negotiated previous contracts Lafount stated that Cohen should never
have started the negotiations because he was too busy and did not know the
conditions. Lafount also said that he would take steps to see that Kay con-
tinued the negotiations.
Later that daycKay called Adler and told him that, pursuant to Lafount's
instructions, she was willing to meet. Upon Adler's insistence that they meet
that day, Kay, who wanted to meet later, agreed to meet the evening of October
24. That evening, Adler, accompanied by a committee of 'employees including
Study, met with Kay. Adler asked Kay to bargain for the single unit included
in the proposed agreement which had been mailed to Cohen on October 9. Kay
indicated that she would not bargain for the miscellaneous employees, and Adler
insisted that A. C. A. was resolved to negotiate "for everybody included in the
contract with no exceptions." 'Kay asked to be shown the cards of the mis-
cellaneous employees. Adler told her that it was not ink accordance with their
policy. He also indicated that such questions as unit and majority representa-
tion could be determined by the Board. There is no evidence that Kay asked for
any such determinations. Terms in the proposed contract were not discussed.
It was agreed that Adler would telephone the next morning to find out what
Kay would do regarding the miscellaneous group.
About 10 o'clock the next day, October 25, Kay told Adler when he called that
she was trying to get in touch with Bulova, who would "have to give his per-
mission" before she could bargain for the single unit. She had not said anything
the previous evening about having to go to Bulova for such permission. Adler
indicated that they had been waiting "a very long time" and were anxious to get
together as soon as possible ; that they did not believe the respondent was showing
good faith in entering into collective bargaining ; and that since the employees
were exasperated by such conduct, A C. A. could not go on tolerating it. Kay
again asked for time in which to communicate with Bulova. Adler agreed to
give her another hour, indicating that he would consider that hour a deadline
after which A. C A. would take whatever further action it deemed necessary.
By his last remark Adler intended to imply a threat of strike.
Later that morning, after the lapse of more than an hour,, Kay called Adler
and said that she had not been able to locate Bulova, and did not know when
she could get him, but was going to keep trying throughout the day. Adler
indicated that no more time could be given and that Kay could expect A. C. A.
to take any action it deemed advisable. Kay replied, "Go ahead and do as you
please" There is no evidence that Kay made any effort to contact Adler later
that day, or in fact until arrangements were made several days later through
Study, as described below 21
a Adler testified that gay gave him no time limit within which she was going to get
Bulova and that her statement made him "feel she might not have even been trying." Fur-
thermore , Cohen testified that early in October the officers of the respondent decided that
they would not recede from their position on the lunch hour or on the unit. There is also
evidence which indicates that during this period the respondent was anticipating a strike.
Hillis W. Holt, who had for many years been closely associated with Lafount and had
GREATER NEW YORK BROADCASTING CORPORATION, 733
That same day, October 25, Kay called a group of technicians, sound-effects
men, and announcers into her office and discussed the situation with them.
Shortly thereafter, nine of those employees signed a statement setting forth the'
following account of what Kay told them :
Now you know as well as I do what we are here for. You know about
the difficulties between the station and your union. Now I've called you in
here to discuss this matter with you in your own interest; You all have
families to support, obligations to meet, some of you live from week to
week. Most of us here have gotten along very well together for years. The
union has acted in a very arbitrary manner insisting that page boys, secre-
taries, and the like, be included in the same contract. The station is willing
to negotiate separate contracts for the Announcers, Engineers, and Sound
Effects men. If I want to fire a page boy why should you men be sacrificed?
You know about the turnover among the page boys and others. I'm not
threatening, you,. mind you, I'm just discussing this matter with you. But,
remember the musicians' union situation. We see no reason why a contract
can't be negotiated for you and an election will decide the position of the
other groups. If necessary I can call Mr. Bulova to come over here to talk
with you. Mr. Bulova is a very powerful man, he has plenty of money, and
this can become a very tough situation .
By the way, through an oversight,-due to all this pressure, the pay check
wasn't signed, you won't be paid today but will be paid tomorrow.
Remember the Labor Board has nothing to do with this issue.
In describing the meeting, Charles Berry, an announcer, testified that con-
cerning the musicians' strike, which had taken place about a year previously
among the musicians at WOV and WPEN, Kay said, "Look what happened in
the musicians' strike and if you lose your jobs you will not be re-hired." Berry
was hazy as to his understanding of what Kay meant by her closing statement
about the Board. At first he testified that he supposed "she,meant that the
Labor Board would intervene in some.way." Later he testified that the state-
ment "seemed to indicate a desire on Miss Kay's part to avoid red tape in the
Labor Board perhaps." Berry also testified that John , Schramm 22 told Kay
during the meeting that the employees had designated representatives to discuss
matters for them and could not speak for themselves.
Gilbert McDonald, a technician who signed the above statement, testified
that Kay asked him personally whether he had enough money to be out on
strike for several months, and that he replied that he did not. McDonald also
testified that Kay tried to convince them that a strike would be futile ; -that
they should go against A. C. A. in the "matter of insisting on a vertical con-
tract"; and that Schramm indicated that he could not speak for the group.
When asked about Berry's testimony that Kay warned that if they went out
on strike they would lose their jobs, McDonald insisted that Kay made such
served as traveling-consulting engineer among the several stations in which Bulova and
Lafount are interested, testified that about the middle of October, after Lafount had taken
Study into another room for a talk, Lafount told him that there might be a strike at WOV.
Holt also testified that very near to the time of the strike he and Lafount, in a conversation
at which he was not sure whether Study was present, decided that Study would operate the
transmitter and he the studios in case of a• strike. According to Holt's estimate, such
operation could have continued over a period of about a month on an 18 hour a day basis,
with food brought in to hun and Study.
22 Schramm was the program director, and wasa member of A. C. A. covered by contract.
He signed the above statement. -
734 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD-
a remark and,that he thought she said, "If you go out on strike you won't get
your jobs back."
It is clear from the testimony of McDonald, a credible witness, that he be-
lieved that Kay's talk constituted a threat. Concerning this point, toward.
the end of his cross-examination by counsel for the respondent McDonald testi-
fied as follows :
Q. What was the specific threat that you understood she was making?
State it for the record in your own words.
A. By the nature of her statement, I took it to mean that Bulova had
enough money, if we 'went on strike, to break us, and that the Labor Board
would not be able to help us. And I took that as being an insinuation.
Q. You mean, you understood the threat to be that if you went out on
strike, Mr. Bulova had sufficient money so that he wouldn't have to ca-
pituate to the demands of the union about a single unit ; is that correct?
A. No, that he would break the strike and-that we would lose our jobs
as a result of it.
Kay did not testify. On the basis of the above-quoted statement signed by
nine employees, the above supplementary testimony of McDonald and Berry,
and the record, as a whole, the undersigned is convinced and finds that on
October 25 Kay talked -with a. group of announcers, technicians, and sound-
effects men without representatives of A. C. A. being present, and that she
tried to persuade them that the position of A. C. A. as to a single unit was an
arbitrary one which was standing in the way of the negotiation of separate
contracts to their advantage ; that they should not sacrifice themselves for the,
miscellaneous employees whose desires could be determined later by an election ;
that she was willing-to call Bulova over to talk with them ; that to go on strike
would cost then-their jobs because Bulova was sufficiently powerful and had suf-
ficient money to break a strike ; and that the Board was not involved' in the
issue. -
On October 25, Kay gave Study a typewritten paper which she asked him
to get the technicians to sign. The statement thereon was to, the effect that
those signing would agree to negotiate with the respondent. Study did not
attempt to secure signatures as requested. From Study's testimony, the only
evidence on the matter, as the paper was not produced, it would appear that
Kay was requesting Study to secure signatures to a statement requesting direct
bargaining. However, while the matter is not without doubt, from the record
as a whole the undersigned believes and finds that Kay was rather seeking
Study's aid in getting the technicians behind a plan for immediate bargaining
for the groups formerly under contract along the lines of her talk that day.
Also about this same time,' Kay asked Study to find out just which of the
miscellaneous employees were members of A. C. A. There is no evidence that
he gave Kay such information.
On October 25, Ralph Nardella, the respondent's sales manager, had a talk
with Joseph Zappulla, a translator who was receiving $25 a week. Nardella
told Zappulla that in a few days there would be a strike at WOV, and advised
him to go to Kay and ask her for a job as an announcer. Nardella told
28 while no representative of A. C. A. was present it should be noted that it was cus-
tomary, however, for whatever employees were free at a given time to serve as an employee
committee during conferences with the respondent.
24 Study placed the request as being made the last week before the strike. i
GREATER, NEW YORK BROADCASTING CORPORATION 735
;Zappulla this would be to his advantage because he would get at least $35 a
week.` ,-
On the afternoon of October 25, Adler met at A. C. A.'s office with some of
the WOV employees. They decided that Kay was half expecting a strike and
did not, care if one took place and that they would make a further effort to
bargain'.
4. The arrangement to proceed with negotiations
The following day,'October 26, Joseph Kehoe, head organizer for the national
office of A. C. A., telephoned Bulova and explained to him in some detail A. C. A.'s
belief that the representatives of the respondent up to that point had made no
effort to enter into collective bargaining . Kehoe tried to prevail upon Bulova
to get someone representing the respondent to enter into collective bargaining.
Bulova agreed that the respondent and A. C. A. ought to get together and he told
Kehoe that he would communicate with him on Monday, October 28, the next
'business day. No such comunication on October 28, was received from anyone
connected with the respondent However, on the morning of October 29, Kay
called Study into her office and told him that it would be a good idea for Study
to go to Cohen ' s office to discuss the negotiations to see if some method could be
found-of helping the negotiations along since she felt they "were not progressing
very fast." SB Kay instructed Study that he was to let Cohen believe that the
'idea had come from him and not from her.
After the above conversation, and before he went to see Cohen, Study got in
'touch with Adler and told him that Kay thought it was advisable to see Cohen.
Adler said that he felt that nothing could be lost by doing so. About noon Study
had a conference with Cohen at the latter's office. At the outset Cohen wanted
to know why such persons as page boys should be included in-the same unit with
the chief engineer. Study indicated that he did not object to his problems being
associated with those of a,page boy. Cohen then indicated that the respondent
did not wish the chief engineer to be a member of A. C. A., as the respondent
wanted to be free to put in anyone it desired. After further discussion, Cohen
and Study reached an understanding that bargaining would proceed on terms and
conditions of employment regardless of the unit question. It was understood that
the terms for announcers , technicians , sound -effects men , and miscellaneous em-
ployees were to be discussed, and that after,agreeing on all of the terms for all
groups,'the understanding. on terms, when reached, was to be embodied in four
separate contracts, all of which were to be signed. An election was then to be
held 'to determine whether A. C. A. represented the miscellaneous group. If
25 These findings are made upon uncontradicted testimony of Zappulla which the under-
signed credits . Zappulla was' one of the miscellaneous employees who had designated
A. C. A. in September 1940. The respondent did not call Nardella , contending that be was
not. authorized to represent the respondent . That Nardella was the respondent's sales
manager is shown by his designation as such in the, "Radio Annual," an authoritative com-
pendium of information concerning the radio industry. Nardella ' s designation as sales
manager therein was based on information furnished by Kay. From pay-roll records in
evidence , it is evident that Nardella ' s income frequently was in excess of that of Kay and
Lafount. Under the conditions herein, the above remarks of Nardella to Zappulla are
chargeable to the respondent. .
26 Study testified that he believed that Kay wanted him to assist her with the negotiations
to strengthen her own position and help her make a good impression , inasmuch as he then
understood that her term of employment would soon end., Kay's connection with the station
did terminate the following January.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. C. A. failed to secure a majority designation of miscellaneous employees, that
contract was to be torn up and the other three were to remain in effect 2T
That same day, shortly after his talk with Cohen, Study telephoned Adler and
explained the understanding to him. Adler thought it was a good idea and that
they should proceed along those lines. Thereafter Adler called. Kay and asked
for a meeting that night. Kay said that she was busy, but arrangements were
made for a meeting the following night.
5. The negotiations-preceding the strike
Pursuant to the foregoing arrangements, meetings were held between Kay and
representatives of A. C. A. at Kay's office on October 30 and 31, and November
1 and 3.0 The first three were evening meetings which lasted several-hours.
The fourth meeting was on Sunday and lasted from about noon to approximately
2: 15, at which time Kay left to keep an appointment with her physician. The
four meetings were in effect a continuation of one another and are so treated
herein. The only intervening event of significance was the opinion of Judge
Steuer on November 2, confirming the arbitration award.
Upon Kay's insistence, terms for technicians were considered first although
A. C. A. desired to start with the miscellaneous employees. Thereafter, terms
for the miscellaneous group, the sound-effectsmen, and the announcers were all
discussed. During the first three meetings the discussions proceeded upon the
basis of the integrated single contract previously presented, the parties going
through that document and segregating the clauses pertaining to the particular
group under discussion at the time.
Prior to the last'meeting, Adler had four separate contracts typed up; Kay had
insisted that this be done. When Adler handed Kay the four separate documents
at the outset of the November 3 meeting, he told,her that by so doing A. C. A. was
not abandoning its contention as to the single unit. That last meeting, which
started about an hour late because Adler was delayed in getting the separate
contracts typed, was devoted largely to a discussion of terms for announcers, and
to a recapitulation covering all the groups, using the separate contracts as a basis _
for that recapitulation. At the end of the recapitulation, which Adler insisted
upon in spite of Kay's desire to get away, the parties were aware of each other's
contentions 2B Just before she left, Kay indicated that she would be willing to
meet again on Tuesday, November 5, which was election day. Adler said he
would let her know if A. C. A. desired to meet.
During the course of the above negotiations, many of the proposed provisions
covering technicians, announcers, and sound-effectsmen, which were in effect con-
tinuations of former contractual provisions, were not objected to by, Kay. How-
ever, several- requests for improved conditions, such as more favorable sick leave
provisions, the fixing of a maximum period to be worked without relief, the
27 According to Study's testimony , the four separate contracts were agreed upon in order
to facilitate an election in the miscellaneous group. It should be noted that there is some
conflict in the evidence which it is not necessary to resolve as to whether or not the con-
tracts were - actually to be signed before the election and as to whether the election was
to be conducted by the Board or by the parties.
28 The findings covering the four meetings are based upon documents and upon testimony
of Adler, Ohl, and Study , which the undersigned credits. Adler attended all four meetings
and Ohl, the last three . Various • employees were also present , Study attending the first
three.
2D From Adler 's annotations on his four copies of the proposed contracts , it is ' evident
that on the matter of fire and theft insurance on technicians ' cars used on business for the
respondent , Kay was going to make a further check as to the provisions in policies then
being carried . The status of censor, bookkeeper and watchman was being held for further
consideration, also.
,GREATER NEW YORK BROADCASTING CORPORATION 737
establishing of a minimum pay period, when overtime was required, and the
setting of maximum elapsed time between work periods, were met with refusals.
Salary increases were agreed to for two supervisors, whose differential was in-
creased from $2.50 a week to $5.00, A. C. A. having asked a $10.00 a week differen-
tial . In respect to salaries, Kay objected to any improvements in basic scales for
technicians , • announcers , or sound-effectsmen, and to any improvement in the
scale of fees paid announcers , on commercial programs ." Kay , objected to a
number of other provisions, among them one that the chief engineer not stand a
regular watch. It had not been the practice for him to do so.
Concerning the miscellaneous employees,. there were many disagreements.
Kay contended that the bookkeeper, censor, and transmitter watchman, whom
A. C. A. sought to include, should not be included in the miscellaneous group
agreement . Key claimed that the watchman, whose duties in that capacity 3i
were merely those of night watchman at the transmitter, was a confidential
employee. She claimed that the censor, whose position had been included in an
earlier contract with A. G. R. A. P., did work of such nature that, according to
a government official, he could not be included. Kay also contended that the
position of bookkeeper was confidential and should be excluded, and that Olga
Steinberg, who was in fact doing the work of the bookkeeper, had been hired
in March, 1939, to take the place of the former bookkeeper, and was carried
on the pay roll as,a bookkeeper, was scarcely even an assistant bookkeeper.
While A. C. A. asked a $21 minimum for bookkeepers, Kay would agree to no
increase over the $19 a week being paid Steinberg.32
In the cases of most of the miscellaneous employees the small pay increases
asked were not acceptable. However, in a few cases increases were agreed to.
For instance, A. C. A. asked $40 for translators, and contended that Zappulla,
then receiving $25 a week, and Lena Corrado, then receiving $17, were trans-
lators. Kay considered Zappulla a translator and agreed to $30 a week for
him. She was undecided whether Corrado, who was devoting most of her time
to translating, should be considered a translator and given $25 a week or a
secretary and given $24. It should be noted also that in exceptional cases, such
as those of two secretaries, Sandbank and Murgia, who were already receiving
$35 and $30 a week, respectively, the rates then being paid were substantially
higher than any rates set out in A. C. A.'s proposals, which contained no secre-
tarial classification but provided rather for stenographers at $24 a week. While
the picture of the negotiations concerning the miscellaneous employees is far
from clear,' the undersigned is of the opinion and finds that some of the dif-
ficulties encountered in considering the miscellaneous employees arose from
30 At one point Kay did indicate that she would consider giving a $40 floor for technicians,
but she told Study privately that she had -no intention of granting any increase above the
$37 50 floor then existing A. C. A. was asking a $45 floor for technicians . In an agree-
ment later given directly to technicians in July, 1941 , a floor of $50 was set for technicians,
except that those with no previous broadcast experience were required to serve a proba.
tionary period of not longer than 3 month at $40.
31 The watchman also did some maintenance work on the transmitter building.
32 While it is difficult to be sure from the somewhat confusing evidence on these negotia-
tions, it is possible that Kay contended that her secretary , Mildred Rosenberg , usually
called Miss Sandbank , was the bookkeeper whose position was confidential . Sandbank was
responsible for making up the payroll, and had general supervision over the work performed
by Steinberg.
33 This lack of clarity is due, among other things , to lack of any testimony by Kay, the
uncertainty as to the chronological developments of the discussions, and the inconsistency
between some of the testimony , unidentified as to chronological position in the sequence of
,events, and the specific annotations made by Adler on November 3 on the four contracts,
which documents themselves were not discovered until after most of the voluminous testi-
mony on the negotiations had been given.
738 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
such honest differences as- frequently complicate negotiations concerning em-
ployees being included in bargaining relations for the first time.
• During those four meetings , no objection was raised at any time to the closed
shop. Kay repeatedly refused to consider A. C.^ A.'s• contention as to the lunch-
hour matter, and rejected the clauses in the respective agreements intended to
reserve previous rights and privileges . Contrary to previous practice , she refused
• to agree to make the contracts retroactive to the expiration date of the former
ones. There is no evidence that any economic reason was advanced for failure
to. grant even the small increases asked in several categories , and it was known
that-the respondent was then engaged in the expenditure of large sums for•new
equipment and facilities . Kay did not explain her reason for many of the
positions which she took during these meetings"
6. The initial period of the strike
After Kay left the last of the abovermeetings about 2: 15 p . m. on November
Adler and Ohl remained at the station . Both of them were convinced that Kay
had- not been bargaining in good faith and both had had previous experience
bargaining with her in drawing up earlier contracts . Adler and Ohl then held
an informal conference in the program department with some of the men. Those
men also felt that Kay was giving them the "dust off." After considering
developments , the group decided that the only remaining course left for A. C A.
was to go ahead with strike action in an, attempt to get the respondent to bar-
gain in good faith. Accordingly , without any further notice to the respondent,
plans were made to take the station off the air.
In preparation for the strike , Ohl went to the transmitter at Kearny. Upon
arriving, he informed those in the control room , where Adler was remaining, of
his arrival.' ' It was agreed that the transmitter would not be shut down until
after an announcement signing the station off at the conclusion , about 3: 30, of
the program then in progress . Accordingly, after that program had been com-
pleted, Berry , the announcer then on duty , gave the regulation sign-off as required .
by the, rules and regulations of the F C C. and added , by way of explanation
of the unusual hour of the sign-off, that the station was going off the air due to
labor trouble 38 Following Berry's announcement , the equipment at the studios
and at the transmitter was shut down in'the customary way."
"The above finding is based on the following testimony of Ohl, a highly credible tcrt-
ness, who as vice president of the International of A. C. A. had had considerable experience
during the previous year negotiating contracts: ,
The Witness. Well, if you asked her for a particular item and she would say no,
you would say, "Why Miss Kay?" Then she would say, "Well, because." And that
is as far as you got.
35 Communication between the transmitter and the control room at the studios was by
telegraph key, operated by WOV technicians
30 Explanations of the reasons for interruption of service and for a sign-off at other than
the usual time are a usual practice. Such explanations violate the rules of neither the
F C. C nor the respondent. Berry had previously made explanations when situations
arose which in his opinion required some explanation. In such cases, he had never attempted
to consult either Schramm or Kay before making announcements , There is no dispute that
Berry's explanation was merely that the station was going off the air "due to labor
trouble " - He made no attempt to explain the nature of the labor trouble or to state the
position of A.- C. A. -
37 Chief Engineer Study was not present *hen the station was taken off the air, nor were
Neuwirth- or McDonald, transmitter supervisor and control room supervisor, respectively.
Program Director Schramm was'not present,either. `
GREATER NEW YORK BROADCASTING CORPORATION 739
After the shut-down, Ohl remained at the transmitter, with a few technicians
and Adler remained in the control room with several members of the staff as
They were awaiting the arrival of representatives of the respondent , and were
holding the staff in(readiness to put the station on the air if the respondent should
demonstrate a willingness to show what they considered good faith in collective
'bargaining. About 4:30 that afternoon, Kay arrived at the studios accompanied
by Samuel Kolin, the respondent's accountant- Upoh finding the control room
door locked, Kay went to her office to get her keys.s0 Returning with her keys,
she opened the control room door without knocking first. When Kay saw Adler
'and the group of employees in the control room, she was highly indignant,and
ordered them'all to "get out" and to'give her their keys. As the employees left
the control room, they turned in their keys to Kay. When they were all pro-
ceeding down the hall toward the elevators, Kolin, after a whispered conversation
with Kay, asked Adler to come into Kay's office while she remained outside in
her secretary's office. From all the testimony the undersigned believes and
finds that the door between the two offices was left open and that Kay could have
overheard the ensuing discussion.4°
'Kolin attempted to persuade Adler to put the station back on the air, but
Adler insisted that A. C. A. would not do so until the respondent demonstrated
a willingness to show good faith in bargaining. Adler emphasized that A. C A.
did not want "whole hog" and was willing to give and take if Kolin could get
Kay to enter into discussions in that spirit. Kolin stressed A. C. A's lack of
sportsmanship in striking and the size of the respondent's investment in the
station. He insisted that bargaining was such a time consuming process that
the respondent would not enter into discussions unless A. C ^A. put the station
back on the air first. When it became evident that the respondent would not
continue discussions unless the strike was first discontinued, Adler indicated that
A. C. A. would have to stand upon its strike action. Thereupon, about 5 o'clock,
Adler and the employees left. Under the, eircumstances,'tile undersigned believes
and finds that Kolin, in spite of his testimony to the contrary, spoke with Kay's
approval and hence acted as a representative of the respondent during the above
discussion.
Around •5 o'clock Kay telephoned Holt at his home near New York City and
asked him to come in to put the station on the air. A little earlier she had
talked with Study and was expecting him to come in also to assist in starting
operations. 'Sometime after 6 o'clock Cohen arrived, and upon his arrival
Kolin left. About 7 o'clock Holt, who was not familiar with the old type of
equipment in use at WOV,41 and who in fact had never even visited the trans-
- 38It was the usual practice at WOV and other stations for representatives of A. C. A.
to visit members at their places of duty, including control rooms , when union business
required . Such visits had been made repeatedly in the past without any objection from
Kay
3° When this door was shut, as it usually was , it latched in 'such a way that it could
be opened from the outside only , with a key. The finding as to Kay's going for her key is
based upon,Kolin ' s testimony . He also testified that he did not think that Kay knocked
. on the control room door before entering.
4u The findings concerning this discussion and the events immediately preceding it are
made upon testimony of Adler , Kamke and Alper which the undersigned believes . Accord-
ing to Kohn, Adler repeatedly demanded that , four contracts which he held in his hand be
signed before the station would be put back on the air. While A. C. A. undoubtedly wanted
to get contracts signed as quickly as possible , the undersigned does not believe that Adler
made any such flat demand upon Kay since there were some matters not fully resolved,
as Adler s own notations on those contracts show. Kohn further testified that Kay's
position throughout was that the men should put the station on the air and resume negotia-
tions on Tuesday as she said they had agreed to do.
41 Much of the equipment was not of standard type. In fact some of it had been built
under the supervision of Study and Neuwirth in the transmitter workshop.
521247-43-vol , 48-48
I
740 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitter, arrived at the studios. Pending • Study's arrival, Holt began an in-
spection of the equipment there. Study did not come to the studios that night
as he was expected to do. Instead he telephoned,42 talking with Kay, Cohen and
Holt. Cohen chided Study for not coming in as he had led Kay to believe he
would do. Holt asked Study about the power supply and Study suggested that
Holt,check the fuses. Study also told Holt, in response to the latter's question,
that the power supply for the control room came from the same fuse,panel as
the supply for-the lights. When Holt asked Study about the patch cords which
were used in connecting up various pieces of equipment, Study informed Holt
that he could not tell him where to place 24 patch cords. About midnight,
after Holt was satisfied that he was able to operate the .studios, those at the
studios left for the night.
Shortly after 7 o'clock on the morning of November 4, Kay, accompanied
by Holt and Samuel Lavit, went to the transmitter, for the first time after
the beginning of the strike. There they found transmitter supervisor Neu-
wirth and a technician, Frank Kearney. The strikers had not been previously
asked to leave the transmitter, and the night before they had arranged among
themselves to keep two men stationed there. Kay asked Neuwirth and Kearney
to turn on the transmitter to see if it would operate. The men refused on the
ground that to do so would be to engage in strike-breaking activity. Kay then
told them to get out and they thereupon went outside the transmitter building.43
While Neuwirth ' and Kearney were outside the building shortly after the
above incident, Lavit came out and talked with them. He urged them to go
inside and turn on the equipment ; reminded them of what had happened- to
the musicians during their strike and told them that they would lose their
jobs ; and exhorted them to go back to work. They told Lavit they would not
,act as strike-breakers. Lavit went back into the building. Kay then came
out and instructed Neuwirth and Kearney to leave the property altogether."
The evidence shows that during the strike Lavit was frequently on the prem-
ises of the respondent. He also talked with other strikers, as is discussed more
fully below. He had been a client of Cohen's for some three years and was
formerly a labor leader in an A. F. L. union. Concerning his relations with
Lavit during the strike, Cohen testified, "I said in connection with the strike
I consulted with him and he advised me in connection with matters then arising."
Cohen admitted that he might have talked with Lavit about the situation before
November 4, and that Lavit "advised" with him for about 3 weeks after No-
42 Study placed this telephone call about midnight while Cohen and Holt testified 'that the
call came about 10: 30.
43 The above findings are based upon testimony of Neuwirth which the undersigned
credits. Holt testified that after the,men had refused to turn on the equipment and Kay
had told them to get out, one of them said as they we're leaving, "We will not be responsible
for, any, damage that' is done to the equipment if anybody' else turns It-on ." -Neuwirth did
not remember any remark other than their refusal to start the equipment because it would
constitute strike-breaking activity. Only Neuwirth and Holt testified concerning this inci-
dent. From Holt's testimony and the record as a whole the undersigned is of the opinion
that even if such a remark were made, it does not create any presumption that Neuwirth or
'Kearney had knowledge of sabotage , especially since the equipment then in use was old
equipment with the peculiarities of which only technicians who had operated it could be
expected to be familiar.
"The above findings are made on the uncontradicted testimony of Neuwirth which is
credited . Neuwirth also testified, without contradiction as Lavit was never called, that
about a week later while he and another striker were picketing outside the transmitter,
Lavit came up in a police car with a policeman and, in the presence of the officer, -told
them they were blocking traffic ; their cars were actually parked two blocks away . Further-
more, according to Neuwirth, Lavit showed him into Kay's office when he went to the
studios about two weeks after the strike started to collect some expense money due him.
'GREATER NEW.YORK BROADCASTING CORPORATION 741
vember 4. From the record as a whole the undersigned is convinced and finds
that during the period of the strike Lavit was acting on behalf of the respondent
with its knowledge and approval.
About'7 : 30,the morning of November 4, Sokal, who had been serving as a''
'page boy, received a telephone-call from Kay's secretary, who asked him to
hurry down to the studios. When Sokal reached the studios he found Cohen
using Kay's office. Cohen asked him what his job was and Sokal explained how,
he had formerly done sound-effects work but had been demoted to page boy.
Cohen explained that a strike had been called during the course of negotiations,
and that Kay had had to leave the meeting Sunday to see her doctor. Cohen
-told Sokal it was up to him what organization he cared to be loyal to, and that
Sokal could have his sound-effects job back. Sokal considered the matter and'
refused ; Cohen then told Sokal, "You are through," and opened the door. -
During that same morning Cohen interviewed privately in Kay's office at
least 11 miscellaneous employees, including Sokal.'' He had such a talk with
Zappulla. After explaining to him the suddenness with which the strike had
been called, Cohen asked, "Are you going to side with the union, with then
people who are out, or with the company? If you are loyal to the company you
will be well protected, but if you side with the strikers you will never be taken
back." Zappulla indicated that he felt his choice was on the side of the strikers
because, his salary was involved. Thereupon Cohen informed him that they
had decided during the negotiations to increase his salary so that there was no
reason for his going on strike. Zappulla decided to leave the matter up to A. C.
A. As he was leaving ',the office, Cohen asked Leipzig, director of the WOV
Artists' Bureau, which was also owned by Bulova, to see if he could persuade
Zappulla not to go on strike. Leipzig then told Zappulla that he was doing a
"foolish thing" and that he should stay because he did not know what was going
to happen. However, Zappulla. decided to go on strike.
Cohen also talked with Steinberg, whose status as a bookkeeper had caused
considerable discussion during the negotiations. In that conversation the fol-
lowing took place, as narrated by Steinberg :
He [Cohen] 'asked me whether I would be loyal to the station or loyal to
the union.
He told me then if I was loyal to the station I would have nothing to
worry about, and he also asked me what sort of work I did.
I said I was a bookkeeper.
He said he would not press me whether I wanted to stay or go out,
because they could get a million bookkeepers.
Cohen also told Steinberg if there had been any question as to an increase in
her salary that he, was sure she-could have got an'increase-if she had "gone to
anyone in the company." Steinberg, who had previously designated A. C. A.
as her bargaining agent, decided to join the strike.
Among those with whom Cohen had similar talks that morning were Murgia,
Corrado and Murtaugh, each of whom informed Cohen that she chose to go on
'5 Cohen admitted that he had such private talks , and from a list containing the miscel-
laneous employees he selected only 6 employed at the station with whom he believed be did
not have such a talk . The findings in the body of the report concerning the, several con-
versations are based upon the testimony 'of the respective employees named. The under-
signed ' is convinced that those employees understood ,' and that Cohen intended them to
understand,- that if they did not remain loyal to the respondent they were going to lose
their jobs.' It is not clear that A. C. A. was then asking the miscellaneous employees to
go out on strike , but in any event, Cohen , in spite 'of the respondent 's previous position on
the appropriate= unit, proceeded to require 11 miscellaneous employees to`decide whether
to go on strike ; of those, 9 decided to strike.
1
742 DECISIONS OF: NATIONAL' LABOR RELATIONS BOARD
strike.4i During his talk with Murgia, Cohen gave her the choice of remaining
"loyal" to the firm or going out and losing her job.' In talking with Corrado,
Cohen expressed himself so forcefully that she understood when she left that she
was being fired because she decided to go on strike.47 When Murtaugh, during
her talk with Cohen, informed him that she figured that the men were right, he
'told her that she was through.
In addition to his conversations with miscellaneous employees, Cohen had a
conversation shortly before 9 o'clock with Study who had come in to see Kay.
She was at the transmitter and Study met Cohen. He was in a very perturbed
state and told Study, in effect, that sabotage had been committed, mentioning
fuses and scotch tape. He showed Study an open envelope which he closed before
Study had a chance to see what was in it. Just before Cohen turned and walked
away he told Study, "All you people who refuse to come back to work are
through." 4
Sometime during the day, on November 4, James Largay, supervising mediator
of the New York State Board of Mediation, telephoned Cohen after he had been
L, requested by A. C. A. to intervene in the strike. Largay asked Cohen to attend
a conference with himself and representatives of A. C A. in an effort to iron
out the differences existing between the parties. Cohen stated that the re-
spondent would not confer at that time, claiming that A. C. A. had violated its
agreement to wait two days for a further conference, and that "certain sabotage
had been 'committed." Within a few days following, Largay twice again called
Cohen who continued to refuse to meet.45
On the same day; Adler called Field Examiner Kerr, explained that A. C. A.
had struck, and said that Cohen was urging the "clerks" to quit A. C. A. and
come back to work or they were through. He asked Kerr to prevent this.
Adler explained that they had met with Kay and that she had given them only
a few "crumbs" and had wanted to cancel certain things in former contracts.
Adler said A C. A. was "tabling" its petition and that they would not go back
to work until there was a signed contract for everyone," thus leaving "no reason
now for any election." Following the foregoing conversation, A. C. A. called'
4e As of November 4, following Cohen's conversations, there were 34 out of 39 employees
on strike The 5 non-strikers were all in the miscellaneous group One of those 5 was
Way's secretary. Another, a relative of Kay's, was a telephone operator. The remaining
three were respectively the censor, another secretary, and a page boy.
47 On cross-examination Carrado was not sure that Cohen had used the word "fired", but
she was sure that he had given her that impression.
48 The above findings are based upon testimony of Study which the undersigned believes.
Because of the choice which Cohen that morning was giving miscellaneous employees, and
from his statement that afternoon to Kerr, set out hereinafter, the undersigned finds that
the above statement of Cohen to Study constituted a threat to the strikers that-if they did
not abandon the strike they would lose their jobs, and that it did not constitute a notifica-
tion of discharge of all who were at the studios or transmitter during the time sabotage
was allegedly committed The undersigned does not believe, in view of all of the circum-
stances, that at the time of his talk with Study, Cohen had formulated in his mind any
definite idea of just which 15 employees, the number the respondent later set, were present
at the studios and the transmitter . The question • of the alleged sabotage referred to by
Cohen is further considered in a subsequent division of this report.
49 The above findings are based on the testimony of Largay who testified from official
memoranda The findings concerning telephone conversations between Kerr and others,in
the succeeding paragraph are based on official memoranda , as interpreted in the light of
Kerr's testimony concerning her memoranda.
w Due consideration of the above statement , and of Cohen's statement to Kerr . set out
below, has been given by, the undersigned in weighing the evidence concerning ,,the meeting
with Bolin the day before It is plain that conditions had changed subsequent to that
meeting , The respondent had accused A. C. A of. sabotage and had offered employees the
alternative between coming back to work or losing their Jobs Also while A. C. A. was
seeking the aid of governmental agencies in working things out , the respondent was not
willing to cooperate. • '
GREATER-, NEW 'YORK ' BROADCASTING CORPORATION'- 743
again and asked Kerr to arrange a joint conference with the respondent at the
Board 's office for that day.
Later on November-4, Kerr talked with Cohen by telephone and asked for a
joint conference between the respondent and A. C. A. at the Board's office for
that afternoon. Cohen said the respondent would meet only if the men returned
to work first. He said the "engineers" had carried on extensive sabotage amount-
ing to "thousands of dollars" ; that fuses were blocked and gone ; and that the
respondent would take proper steps and that engineers might lose their licenses.
He said one of the engineers 51 had tipped them off- as to sabotage and that
engineers at the transmitter had said that if the company tried' to start up the
transmitter it would never start. In discussing the bargaining relations, Cohen
told Kerr, among other things, that clerical workers had been discussed and
issues had arisen which Kay had to discuss with the owner ; that Kay had agreed
to meet on November 5 and Adler had said he would let her know ; that although
the company had submitted its ideas regarding announcers, A. C. A. had not,
and there had not yet been any negotiations concerning announcers ; that there
was no reason for the strike as there were no issues which could not have been
settled ; and that when Kay went to the station after it was taken off the air,
Adler presented her with four contracts which he said had to be signed before
the men would go back. Concerning the "clerical workers," Cohen told Kerr
that as they came in that morning he spoke to each one, saying that he was not
interested in whether they were in A. C. A. but that the respondent had to know
what they wished to do; that there was a strike on and each one was free to go,
on working or to go on strike ; that each one should decide and should be loyal
to his commitments; and that those staying out would necessarily be replaced.
At the close of the conversation, Cohen again indicated to Kerr that there would
be no joint meeting until the strikers returned and explained the sabotage and
told where the respondent's property was.5a Kerr then called Adler, who denied
that any sabotage had been committed and stated he would not put the strikers
back to work. `
On November 4, pursuant to instructions by telephone from Cohen, a Washing-
ton law firm wrote the F. C. C. that WOV had gone off the air at 3: 30 Sunday
afternoon, November 3, "because of labor difficulties, and it has not been possible
to go back on the air because of certain damage caused to the technical equipment."
The letter stated it was expected the station would be back in operation within
a few hours and that the inspector in charge of the district had been notified.
Later the same day a follow-up letter was written, stating that the station had
gone back on the air about 4: 15 that afternoon. The second letter closed with
the following paragraph :
51 During the hearing, the terms "engineers" and "technicians " were used interchange-
ably
Sz Concerning the above, certain things should be noted. Contrary to Cohen's prediction,
no technician ever lost his license nor did the respondent ever institute any proceedings
looking to that end before the F. C. C. In fact, two technicians, Study and Neuwirth, both
of whose connections with the WOV strike were known to the F. C. C., later received tele-
grams from the secretary of the F. C. C. inquiring whether they would be interested in
positions as assistant monitoring officers at $ 2600 per year for the duration of "national
defense." Even if Holt's testimony concerning sabotage were accepted as true, the alleged
sabotage involved, at most, only a few dollars' worth of damage rather than the "thousands °
of dollars" mentioned by Cohen. It is significant that Cohen attributed Kay's desire
for further delay to her having to take up certain matters with the "owner," and that
Cohen did not say that Adler had agreed to meet on November 5, but rather that he would
let Kay know . Cohen's statement that terms for announcers had not yet been taken up and
that the respondent had submitted its ideas but A. C. A had not is contrary to all of the
evidence in the record. In fact, in its brief the respondent bases its contention concerning
the bargaining conferences , in part, on the fact that the parties "had discussed every
clause of the proposed contracts."
1
744 DECPSIONS OF NATIONAL LABOR RELATIONS' BOARD
An investigation is being conducted into the circumstances surrounding,
the damage to the technical equipment of the-station, and a complete report
will be submitted to the Commission within a- short"time.
Admittedly no one representing the respondent ever submitted a written report-
to the F. C C. of the respondent's investigation of the alleged sabotage. However,
Holt testified as to two conversations by telephone with representatives of the
F. C. C. According to Holt, he was called at his home the evening of November
4, by a representative of the F C. C., Bannister, who told him that he was at
the transmitter making an inspection of the equipment, and asked what the men
had done. Holt testified that he told Bannister what they had done and that
they "had not taken an axe and broken anything up but that they had definitely
messed up the equipment with the intent of keeping it off the air." Holt also
testified that Bannister explained to him that the transmitter was then operating
at reduced power which could be raised without undue damage. Holt further'
testified that on the morning of November. 5,-he telephoned the New -York office
of the F. C. C. at Lafount's request and talked with one," Batchellor, telling him'
"exactly what had happened" and expressing again the opinion that while no one
had taken an ax and broken things up the equipment had been tampered with
to keep it off the air. Other than a telephone inquiry to A: C. A.'s office about
November 6, by Bannister concerning three matters which were explained by
striking technicians, there is no evidence that the F C. C. took any further action.
While Study and one or two others were questioned about November 7 by local
authorities, there is no evidence that the respondent had made any formal
charges. No striker was ever brought to trial in any court or to hearing before
the F. C. C. in connection with the alleged sabotage.
7. The developments during the strike
After returning to the air about 4: 15 Monday afternoon, November 4, WOV
continued to operate throughout the strike with a makeshift staff, including
borrowed and part-time employees, a large ainount of overtime, and a high labor
turnover. Leipzig, the director of the-Artists' Bureau, was used for 4 weeks
as acting program director, and then for 3 additional weeks as an assistant
in the program department. Two of the station's salesmen took over the
sound-effects work for about 2 months. Holt, who served himself as chief
engineer, secured the services of four out of town' technicians whose work
together during their periods off from their own stations equalled approxi-
mately the services of one full time technician. Some of the technicians first
employed had had little experience and were on the pay roll for only a few
days. Others came from other stations in which Bulova and Lafount were
interested. With one exception they were all secured from outside the New
York City Metropolitan Area. ' For several weeks the technicians operating
the transmitter lived there and were given their meals. The amount of over-
time paid technicians was very high, especially at the transmitter. For in-
stance" one transmitter technician whose rate was $55 per week received as
his total pay for the 4 weeks in November, $649.54 and for the 4 weeks in De-
cember, $590.34.. A second transmitter technician who would have received
$200 in November and December respectively upon the, basis of his $50 weekly
rate, actually received, with his overtime included, $552.93 in November and
'$537.84 in December. Of the studio technicians, the only two aside from Holt
who worked 4 full weeks in November received, instead of $200 on the basis
ss For the sake"of simplification , all figures given ignore social security\deductions and
Christmas presents.
GREATER NEW YORK BROADCASTING CORPORATION 745,
of their $50 rate, the sums, $466 73 and $387.05, respectively. In December,
the three studio technicians who worked 4 weeks at the $50 rate received, re-
spectively, with their overtime, $463.29, $411.23, and $434.70.
In the other departments, overtime during the remainder of 1940 was also
high. The two salesien who took over sound-effects work at a base pay of
$25 a week received $195.94 and $203.02 in November, respectively. In De-
cember, during the last week of which neither worked any overtime, they re-
ceived $184.20 and $17920 respectively. Leipzig, whose rate was $65 a week, '
received $467.83 in November and $377.03 in December. Substantial amounts in
overtime were also received by the censor and the two secretaries who had
not gone on strike.
The respondent 's records show that at one time or another during the first
week of the strike 34 individuals were listed on the pay roll for work per-
formed in the four groups comprising the inclusive unit. Holt was listed as
chief' engineer, Leipzig as the acting program director, and the 2 salesmen as
sound effects men. 'Three e men who were listed as watchmen each received
twice the salary during that week which' the one watchman had' previously
received. Three technicians, who started on November 4, left on November 5.
The only striker to return that week was James Capozucchi, an announcer, who
returned to work November 5 after convincing Cohen that he had not desired
to "go on strike.54 After Capozucchi abandoned the strike, 33 employees re-
mained on strike. Since, assuming' all of the foregoing to be properly classed
as employees, the total number of persons employed at any one time during the
week ending November 9 was never greater than 31,65 during that first week the
number of strikers at' all times exceeded the number of persons working
On November 6, Adler filed A. C. A.'s original charge in the instant matter,
alleging that the respondent had refused to bargain collectively ; that it had
attempted to bargain individually with employees ; and that the respondent had
offered to reinstate certain strikers provided they would resign from A. C. A.
That afternoon Adler wrote Kay a letter which was sent about 2 o'clock, registered
special delivery. The contents of that letter read as follows :
We are again asking for a meeting to negotiate a contract for the em-
ployees that we rightfully represent.
We are willing to meet with you at any time to bargain collectively for our
members so that an equitable contract might be consummated.
We are asking for your immediate consideration of this matter in view
of the present circumstances.
On November 7, Kerr advised the respondent by telegram of A. C. A's charge,
and asked for a conference on November 8. Also on November 7, Kay 58 wrote
a registered special delivery letter to Adler which read as follows :
I am in receipt of your letter of November 6th.
Early last week we agreed upon a procedure for negotiation for wages and
hours for our,employees. This arrangement included a vote at the conclusion
51 However on November 4 Capozucchi had attended a meeting of another union and had
made a speech urging that union to support the strike. ,
65 The recoi ds show , that four persons were working on November 3; 23 on) November 4;
28 on' November' 5, 8 having started that day while 3 left ; 30 on November 6; and on
November 7 to 9, a total of 31. It was not until November 12 that the number of
"employees" exceeded the number of strikers even on the basis of the respondent's revised
figures.
55 At the hearing Cohen stated that of the letters written after the strike those signed
by Kay had been written by himself with Kay's assistance ; those signed by himself, he had
written ; and those signed by Bulova were written by Bulova with Cohen's assistance.
While the names of the persons signing the'letters are sometimes used herein, the letters
were from the respondent and A. C. A., respectively.
746 DECIISIO\S OF NATIONAL 'LABO'R RELATIONS BOARD,
of the negotiations by those whom you did not represent in the past. We
met in accordance with this arrangement on Wednesday evening, October 30th
and commenced these negotiations. We met again on Thursday, the next
evening, and when we had not reached, discussion as to the announcers, we
adjourned until Sunday, November 2nd at 11 a. in.
On Sunday you did not appear until 12: 15 when in the course of this
discussion you submitted new requests on salaries that had already been
submitted, discussed and 'completed the previous Thursday evening. At
2 p. in we had not completed our discussion and you still had not discussed
your, suggestions for wages and hours as to the announcers. You agreed
to meet with me on Tuesday, November 5th (Election day) at 10 a. in. to
complete these discussions with the, understanding_ that you would confirm
this meeting the following day, Monday.
Shortly after this meeting on Sunday, I left the office to keep an appoint-
ment with my physician. At about 4 o'clock that afternoon, upon reaching
my home, I learned that the radio station had been taken off the air at,3: 30
p. in. This was without notice or warning of any nature or description to
me or to any officers of the company.
When an attempt was made to reinstate, service at the station and trans-
mitter, it was found that this could not be done without the making of
repairs because of acts of omission and commission which evidently occurred
at about the time the station was taken off the air.
Incidentally, when I came' to the station from my home, I found that
you were apparently in full command of the property of the company and,
it was at that time that you gave me an ultimatum that the employees who
were then in and about the station would return to work if I signed four
contracts which you presented to me. This was in violation of the agree-
ment you made with me before you entered into the conferences above
related and of your agreement to meet with me on Tuesday, November 5th for
further negotiations.
It was you who broke off negotiations That decision was yours and not
ours. Those employees who were present when the decision was made to
,take the station off the air thereupon retired and left bur employ.
Many of our employees did not know of the situation because on Monday
morning they reported for work and were surprised at what•had happened.
I was surprised at the disorder and damage which I found at the radio
station that Sunday evening. The responsibility for these acts must be
established and to which I feel that under the circumstances you should lend
your assistance.
I wish to state again that negotiations were discontinued by you and the
employees who left their employment.
Therefore, since we did not refuse to negotiate, I do not understand why
you write asking for a meeting to negotiate when we had been doing that at
the time you caused the "present circumstances".
About the time of the above exchange of correspondence, Lavit had further
discussions with some of the strikers. On' the morning of November, 6, Lavit
saw Sokal on the picket line and told him, "You boys are foolish. Why don't
some of you get together and come up and see Dir. Bulova." Sokal said he would
have to wait to,see Adler. Lavit then said "Oh, no, get a couple of you together
without the Union officials." Sokal agreed but indicated be desired to wait.
About that time, one of the technicians came up and warned Sokal against Lavit.
That afternoon Sokal reported Lavit's conversation at a meeting of A. C., A.
The following day Lavit saw Sokal and told him he was ready to take him up
J
GREATER NEW YORK BROADCASTING CORPORATION 747
in a cab to see Bulova. Sokal said he had spoken to A. C. A. officials and would
not go.
On November 8, McDonald also had a conversation with Lavit which took
place on the street not far from the studios. Lavit told McDonald that in his
experience if a strike lasted over 2 weeks it was usually a long drawn out affair
like' the musicians' strike He told McDonald, "The thing for you boys to do
is for a few of you [to] get together and go up and see Mr. Bulova, but don't
bring 'Mr. Adler with you or anyone from the Union, go up alone" Lavit said
that Bulova was "a peach of a fellow" and that he had just come from his office.
He also said, "I am sure he will take care of you." McDonald told Lavit that if
they had wanted to go back without A. C. A. they would not have "gone out on
strike to start with " McDonald also reported his conversation with Lavit at
a meeting of A. C A 67
On November 8, Cohen and representatives of A C. A. met with Kerr in her
office pursuant to her request ! Cohen took the position that the men had had
no, right to take the station off the air; that Berry had had no right to make
the announcement which he did ; and that because the station had been signed
off and sabotage had been committed, those responsible would not be taken back.
Cohen referred to A. C. A.'s letter of November 6 as "nonsensical" and took in
effect the position, when asked if he would bargain with A. C. A., that until he
was satisfied who was responsible for "destruction of company property, he
would not consider entering into collective bargaining." The assistance of
A. C. A. was not sought in fixing such responsibility."
About the middle of November, the parties again became involved in the
arbitration matter, submitting proposed orders and objections to proposed orders,
pursuant to Judge Steuer's opinion of November 2. On November 20, an order
was issued in which, among other things, the respondent was ordered to revoke
its lunch-hour rule for the period of the effectiveness of the contracts. Upon
resettlement, the final order and decree of the Supreme Court of the State of New
York was entered on December 19, 1940 -
On November 20, Cohen wrote Kerr a letter quoting excerpts from the Federal
Communications Act to the effect that the F. C. C. had authority to suspend the
license of ,any licensee upon sufficient proof that it had "wilfully damaged or
permitted radio apparatus or installations to be damaged." The letter also
pointed out that during the first 2 days of the strike, the station had failed to
comply with the minimum regular operating schedule required by the F. C. C.
This letter closed with the following paragraph :
This taking of the station off the air could not be considered beyond our
control. Engineers were available to reinstate service but it was the damage
and manipulation to the apparatus at the New York City studio and control
room and at the transmitter which caused this, for which we have a respon-
sibility, as our then employees were in possession and control bf the equipment.
Also on November 20, the Bulova controlled station WPEN, renewed an agree-
ment continuing for a year A C. A.'s coverage of its announcers and miscellaneous
employees. That same day Kehoe, A. C A.'s head organizer, who had telephoned
Bulova on October 26, wrote Bulova a letter on behalf of the WOV employees.
After reviewing the situation extensively, the letter ended with a plea that Bulova
"'The above findings are based upon uncontradicted testimony of McDonald and Sokal
which the undersigned believes.
68 The findings above are based upon an analysis of the testimony of Adler, Berry and
Cohen, considered in the light of the entire record. Kerr did not 'testify concerning the
conference of November 8. '
748 DECISIONS OF NATIOINAL LABOR RELATIONS BOARD
consider the problem "with an open mind" and "in the light of similar requests
granted by other stations to their employees".
On November 23, Bulova answered Kehoe's letter. The following are excerpts
from Bulova's reply :
It was felt by the management that the employees in insisting that the lunch
hour was to be included as part of the working hours were taking an unfair
advantage because of the fact that there were no other radio stations in the
City of New York, under the jurisdiction of your union, functioning on this
basis.
... Miss Kiczales did not refuse to engage in bona fide collective bargaining,
but was actually in the midst of such bargaining when, as you stated "the
strike was called " It was in her absence, and without notice to the manage-
ment, that the station was taken off the air, which was a violation of the
Federal Communications Act and its rules. You understand that the station
operates under a license and the management is responsible for the act of its
employees. In addition, the studio and transmitter equipment was found to
have been tampered with, making it impossible to reinstate service for a period
of 25 hours ' This matter is still under investigation to fix the individual
responsibility therefor. All the above acts warrant the discharge of those
who committed or permitted the'commission of these acts. I am sure you
will agree with me that acts of this kind are difficult to condone and can only
be committed by irresponsible people.
I have had negotiations and business relationships with various labor organi-
zations, but have never had an experience of this kind. I am happy to say
that such conditions never existed in any of the enterprises in which I have
been interested. I have been a practical mechanic and worked at the bench
myself, and feel that I have a pretty good understanding of labor and its
important relationship to successful management.
In conclusion, as I stated at the beginning of this letter, the facts indicate
actual collective bargaining, which was terminated by the men and not by
the management.
On November 27, Cohen held a telephone conversation with Boudin in which he
took a position relative to continuing negotiations substantially like that taken in
a letter which Cohen wrote the next day to Kerr. The body of Cohen's letter of
November' 28 to Kerr follows :
Following our talks yesterday and today in.which you suggested that I
meet with the attorney for the Union and continue negotiations, without
prejudice to the position heretofore asserted by my client, I have discussed
your suggestion with my client and can advise you as follows :
My client is willing to have me meet with the attorney for the Union to
continue negotiations with respect to such of the employees as are represented
se It should be noted that the 25 hours was elapsed time from 3: 30 p. in November 3 to
4: 15 p in. November 4 The station was not scheduled to operate from midnight to 7 a. in,
and the respondent's own evidence shows that no technician was working on the equipment
either at the studios or at the transmitter during the period from midnight to 7 a. in.,
although test, maintenance, and repair work was customarily done during those hours
when ,the station was not scheduled to be on the air. Also while it would have taken
at least two technicians to reinstate service, one at the studios and one at the transmitter,'
there is no evidence that any technician other than Holt was available to the respondent
until the morning of November 4.
1
GREATER NEW YORK BROADCASTING CORPORATTON 749
by the Union, upon the express condition that the Union first recognize that
the employees whom we regard as responsible for the acts of sabotage, of
which you have already been informed, will not under any circumstances be
permitted to return to the employ of the station.
As I have previously stated to you, because of the public nature of the
business of my client and its responsibility to the Federal Communications
Commission and the public in general, it cannot place itself in a position of
rendering possible a repetition of the acts of sabotage which were committed
on November 3, 1040. Those acts, as you know, kept the station off the air for
twenty-five hours, thereby subjecting, my client to possible criticism and
charges by the Federal Communications Commission which conceivably
might result in a revocation of the license under the Federal Communications
Act and its rules.
Under the circumstances, and considering the seriousness of such possible
consequences, my client will not bargain with the Union in respect to the
employees whom it regards as responsible for those acts and who were
properly and justifiably discharged for such cause.
With such express understanding my client is quite agreeable to continue
negotiations with the Union in respect to any other employees whom the
Union may be authorized to represent. This, too, would be expressly without
prejudice to any rights or remedies of my client since you will understand
that thus far no evidence has been submitted to my client by the Union to
establish that it represents a majority of the employees in the various units
as to which it seeks to continue negotiations.
If such an arrangement is satisfactory to the Union I shall be pleased to
meet with its attorney at any time mutually convenient.
On November 30, at Cohen's request and in consultation with Cohen, Holt
prepared a four-page statement concerning the alleged. sabotage. The statement
was never submitted to any representative of any board , commission, or govern-
ment department or to A. C. A 80 It was put in Cohen's desk and first used at the
hearing as a basis for the respondent's examination of Holt. Concerning his
reason for asking Holt to prepare the statement, admittedly the only written
statement ever prepared concerning the alleged sabotage, Cohen testified in part,
"I was getting a statement that a lawyer usually does from a witness."
On December 2, Allen S. Haywood, Director of Organization for the Congress
of Industrial Organizations, wrote Bulova from Washington to the effect that he
had tried to reach him by telephone to arrange a conference. The letter con-,
eluded with the following paragraph:
I take this opportunity of suggesting to you that you meet with our Regional
Director in New York in a bona fide effort to,arrive at a mutually satisfactory
solution of the pending dispute.
On December 2, a second striker, Leandro Forno, returned to work. Like
Capozucchi, the first striker to return, Forno was also an Italian announcer.
On December 3, a third striker, Program Director Schramm, returned to work
after a personal talk with Cohen.
8. The events surrounding A. C. A.'s request that the strikers be reinstated
On December 5, A. C: A., over the signature of Adler, wrote the respondent a
letter addressed to Kay which opened as follows:
41 A few days later, Holt made an oral statement concerning the matter to Kerr.
750' DECISIONS OF' NATIONAL,-LAB OR ,IRELATIONS1 BOARD'
On behalf of the employees of'Radio Station-WOV, presently on strike, we
request that the following employees be immediately reinstated to their
regular positions :
The rest of the letter consisted of 31 names. All of the 31 persons named except
one are complainants herein. Conversely , all of the 34 complainants herein, set
forth in footnote 1 above, were named with the exception of the three strikers
who had already returned, Capozucchi, Forno, and Schramm, and the one striker
who had not designated A. C. A., Otto Janowitz.
On December 6, the respondent, over the signature of Kay, replied to A. C. A.'s
request for reinstatement. ,The contents of that reply follow in full :
This will acknowledge receipt of your,letter of the 5th inst. in which you
request that we immediately reinstate 31 individuals whom you characterize
as our "employees". In reply thereto we herewith state our position in
regard to that request and our reasons therefor, much of, which you, are
already familiar with from our prior correspondence to your Union,, to the
Labor'Board and various, conferences.
On October 30, 1940, after certain preliminary talks, we met with you and
commenced negotiations with-respect to terms and conditions of employment
of the employees whom, you claimed to represent.- These discussions were
continued on October 31st and again on Sunday, November 3rd when, at
2 P. M., discussions were adjourned to continue the following Tuesday,
November 5th at 10 A. M., .
During all of the discussions we acted in absolute good faith with a bona-
fide intention of bringing the discussions to a satisfactory conclusion, to be
embodied in formal contracts. To that end we acceded, during the negotia-
tions, to numerous requests made by you with relation to the terms of the
contract In other words, we were actually bargaining in good faith.
Notwithstanding that and at about 3: 30 P. Al. on Sunday, November 3rd,
without previous notice to us of any kind and without our knowledge and
consent our station was taken off the air.
Investigation disclosed that certain of the employees were responsible for
this and, among other things, had seized control of our property, locked
themselves, together with a Union representative, in the Control Room,
barred us from access thereto and also to other rooms at the Station and
committed physical acts of sabotage both at the Studio and Transmitter
which kept the Station off the air for twenty-five (25) consecutive hours.'
During that period requests on our part to the employees, who were under
the duty to put and keep the station on the air, to do so, were refused.
.
The occurrences and the situation at the Station on that day. were set
forth in our letter to your Mr Adler on November 7th ; and the National
Labor Relations Board has similarly been advised.
Needless to say those whom we regarded as having been guilty of or having
participated in or aided and abetted in the aforesaid illegal acts were forth-
with discharged. Included in this category were 9 radio eligineers, 5 Eng-
lish announcers and one sound-effects man.81 This much our investigation up
61 It should be noted that no names were given by the respondent until about two weeks
later when only 12 names were conveyed to A C A. through Kerr. At the time the above
letter was written , there were only 5 English announcers still on strike , Berry, • Stratton,
Norman , Boley, and Ludlam When the above paragraph is read in conjunction with the
fourth paragraph following it, it is evident that two Italian announcers, Polimeni and
Ferri , were the ones considered reemployable by the respondent since the English announcer
who had returned was Schramm and the two Italian announcers who had returned were
Capozucchi aid Forno . Furthermore it should be noted that Italian programs were not
broadcast after noon on Sundays , and that the strike started at 3: 30 on Sunday afternoon.
Hence presumably Polimeni and Ferri had left the station before the strike started.
i GREATER,NEW YORK,, BROADCASTING C'O'RPORATION 751
to the present time has disclosed. Further investigation may increase or
decrease that number. In addition to the 15 employees thus discharged one
additional engineer, one additional English announcer, 4 Italian announcers,
one additional, sound effects man, and 12 general employees left our, employ.
We immediately supplied ourselves with a new staff of employees, to
all of whom we have given assurances of permanent employment, and who
=are now presently 'employed by us. Some of these employees, assisted in
restoring service ,to the radio station, which service had been stopped for
25 hours as above set forth. You are no doubt aware that the interrup-
tion of such service was fraught with the gravest consequences to the
Station in view of the rigid rules and regulations of the Federal Com-
munications Commission and our duty to the public.
'In this situation our position is that the 15 employees above described
who were guilty, directly or indirectly, of the illegal acts committed at
the Station and Transmitter on November 3rd were justly and properly
discharged for cause and are no longer our employees. We will not re-
employ them.
With respect to the other employees who left our employ, as we under-
stand it in response to a strike call by the'Union, our position is that since
the alleged strike was not the result of any unfair labor practice on our
part and since it was called at a time when we were actually negotiating
and bargaining with the Union in good faith, we had every right to fill
the positions left by,them with others who accepted the same upon our
assurances of permanent employment. We do not recognize that we are
now under any duty, legal, equitable or moral, to discharge those persons
in order to re-employ those who saw fit to voluntarily leave under the
circumstances stated, or to create new or additional places for them.
However, we advise you that one English announcer and two Italian
announcers who were not included in the above category of discharged em-
ployees, subsequent to November 3rd, requested us to re-employ them and
we did so and they are now included in our present staff.
Moreover, we desire to inform you that at the present time our staff is
slightly smaller- than it was on November 3rd and that a few positions
are therefore available which we would be willing to fill by re-employing
some of our former employees who left our employ and who were com-
pletely innocent of any of the illegal acts above described. We would be
willing to do so provided that those few to be re-employed from that group
be selected in some fair, impartial and equitable manner satisfactory to the
National Labor Relations Board. We make this statement upon the express
understanding that it is not a waiver and is without prejudice to our po-
sition above stated, namely, that we are under no duty to re-employ the
former employees discharged for the causes above stated, ^ or those who
left our employ and were replaced by others under the aforesaid assur-
ances of permanent employment.
If there is a disposition on the part of any of our former employees in
the category abovementioned to' accept reemployment to the few available
positions, please advise and we would be willing to discuss with the Na-
tional Labor Relations Board the method of choice.
On December 9, Bulova answered Haywood's above mentioned letter of De-
cember 2, in which Haywood had suggested a meeting., The body of Bulova's
reply follows :
I am in receipt of your letter of December 2, 1940. ,
According to the information given to me by the management and the
attorney for radio station WOV,' the American Communications Associa-
752 DECISIONS OF" NATIONAL LABOR - RELATIONS BOARD
tion is in error in stating to you that unfair labor practices have been or
are being committed by the Station WOV,- and that the management re-
fused to bargain collectively.
On the other hand, certain illegal acts were committed by former em-
ployees, which are a matter of record, and the facts of which I trust were
communicated to you along with the other, information which you
received.'
All these matters are in the hands of the National Labor Relations Board.
In fact, the latter and the American Communications Association have been
advised of all the facts in writing and orally.
At the time that the employees, took the radio station off the air, the
management was in the midst of bona-fide collective bargaining with them,
and has never refused then or thereafter to negotiate or bargain
collectively.
On Tuesday, December 10, a week-end having intervened following its letter'-
of December 6, the respondent over the signature of Kay wrote A. C. A. a
second letter, the contents of which are set forth in full below :
Reference is made to our letter to you of December 6, 1940, to which we
have not received a reply. In view of your failure to reply please be advised
that we intend at once to fill vacancies in our staff by re-employing any
of our former employees who left our employ on November 3, 1940 and
who may apply to us for re-employment and who, in our opinion, were in-
nocent of any of the illegal acts referred to in the' letter above mentioned,
or from any other sources which are available to us.
Our position, as expressed in our previous letters, remains unchanged
in all respects. Our re-employment of any of our former employees we
regard purely as a voluntary act on our part. However, we are advising
you of the above so that you will know, and in turn may advise any of our
former employees in the above category, that applicants will be considered
in the order of their respective applications and that those who were our
former employees and all other applicants will be considered by us on, a
parity in relation to the filling of the few remaining vacancies.
We had hoped that in behalf of those of our former employees whom
you claim to represent that you would have availed yourself of our offer
to permit the National Labor Board to indicate some other equitable
method for the filling of the remaining vacancies, but in view of your
failure to do so we have no other alternative but to proceed in the manner
above stated.
On December 11, A. C. A. answered the above letters of the respondent. The
body of that answer is set forth in full below :
We are in receipt of your letters of December 6th and 10th rejecting our
request for the reinstatement of your striking employees. We note your
claims to having bargained in good faith and to the alleged commission of
acts by your employees which you characterize generally as "sabotage".
Both these statements, as well as numerous others appearing in your letters
are untrue and are known by you to be untrue.
s Although Bulova did not define the "certain illegal acts", from his earlier letter to
Kehoe quoted above, it is evident that Bulova considered among them, that the "station was
taken off the air" and "equipment was found to have been tampered with." As is pointed
out above, the only written record ever made of the alleged tampering with equipment
was that prepared on November 30 by Holt, which was admittedly never shown to anyone
until the time of the hearing. Ohl, A. C. A's former international vice-president, whose
testimony the undersigned believes, testified that he had never heard even indirectly of most
of the alleged tampering included in Holt's "report" and testimony.
GREATER NEW YORK BROADCASTING CORPORATION 753
` We have been advised -by counsel that your letter and your acts described
therein constitute additional violations of the National Labor, Relations Act.
We have instructed our counsel to call the National Labor Relations Board's
attention to your letters and the, admissions contained in them, so that
appropriate action may be taken by-the Board.
In neither of the two letters mentioned above have you answered the ques-
tions propounded in our letter of December 5th. We therefore should like
specific answers to the following :
1: How many and what type positions do you consider to be at present
available?
2: What are the names of-the individuals whom you have placed in the
category of re-employables?
3: What'are the names of the individuals whom you have placed in the
category of those discharged and therefore not re-employable?
4: What factors will govern which of the re-employables will be placed
in the various positions which you consider remaining available?
We should apreciate a prompt reply.
The respondent did not reply to A. C. A.'s above letter of December 11 until 10
days later. That reply is set forth below after the discussion of the several
events which transpired in the meantime.
On December 12, Richard Norman, an English announcer , returned to work.
On the basis of the respondent's letter of December 6, presumably it considered
that it had discharged Norman for sabotage. The undersigned is not impressed
with Cohen's description of the alleged several, "errors" in the letter of December
6 as an explanation of the inconsistencies between the respondent 's corre-
spondence and the respondent's subsequent actions: While at one, point in his
testimony, Cohen'denied that he knew until about a month later that Norman
had been at the studios on November 3, at another point he testified that Kay
told him on November 3 that Norman was among those there. Cohen also testi-
fied that in a conversation he had with Norman on December 12, Norman con-
vinced him that although he had been at the studios on November 3, he was free
from guilt in relation to sabotage. Whatever Norman may have told Cohen, in
taking Norman back, Cohen rehired a striker known to have been at the studios
on November 3, and presumably one of the 15 characterized as discharged for
illegal acts in the letter of December 6.
On December 13, one of the strikers, Sanford Alper,6' received an official
NOTICE OP EXTENDED WAITING PERIOD for the Division of Placement
and-unemployment Insurance of the Department of Labor of the State of New
York, herein called the Division. That notice informed Alper that he would be
required to serve a 10-week waiting period before receiving unemployment insur-
ance benefits because information had been received that his loss of employment
reported in his claim filed December 3 was due to "Strike, lock-out, or other
industrial controversy ." The space on the notice provided to indicate the reason,
"Misconduct ," was unmarked. Subsequently other strikers among those alleg-
edly discharged for misconduct received similar official notices marked in like
manner."
3 Alper was the secretary-treasurer of A. C. A 's Local 16 from about September 1940
to the time of the hearing. Cohen testified that he considered Alper to be the only one
of the strikers who had been involved in the ' arbitration proceedings . Prior to the strike,
Alper had worked in the record room where the fuse box was located in which Holt, on the
evening of November 3, allegedly found two fuses tipped with scotch tape in such a way as
to block the flow of electric current.
04 Berry received such a notice on December 28, pursuant to his claim filed on December
10 Study also received such a notice on March 14 , 1941, pursuant to a claim filed
December 17.
754 DECISIOATS OF NATIONAL LABOR RELATIONS BOARD
At the hearing the respondent presented no evidence to rebut the presumption
arising from the foregoing official notices, and contended that it had no record
of any reasons furnished - the Division . The Division would not supply informa-
tion on . the matter without a written waiver from the respondent , but the re-
spondent did not execute such a waiver. The undersigned finds that the respond-
ent'reported to the Division that the strike rather than discharge for misconduct
was the reason for the unemployment of the strikers.
About December 14 , A. C. A. ceased picketing the respondent 's premises.
Thereafter , from about December 14 to 18, pursuant to instructions from A. 'C. A.,
most of the strikers called individually at Kay's office where each was interviewed
by -Kay and Cohen, jointly . Each filled out and signed , an application blank
containing the clauses which had caused the dispute during 1939. In the course
of those interviews , the persons applying, other than the miscellaneous employees,
were asked as to their own whereabouts during the initial period of the strike and
were queried by Cohen as to their knowledge as to what other persons were at
the studios and transmitter and as to what knowledge they had of the com-
mission of alleged acts of sabotage . For instance , Cohen asked Berry who had
been present in the control room and Berry named Adler and three WOV tech-
nicians and explained that he had left the station almost immediately after his
sign off At one point Berry said he would be very glad to sift with Cohen any
information Cohen had , to test its value, but Cohen thought it would not be
advisable to do that . When Graham , who had shut down the transmitter on
November 3, applied he told Cohen and Kay how he had shut down the trans-
mitter, in the normal fashion, and also explained why he had placed a clip lead
on the transmission line.' {
When Study was interviewed on December 16, he was told that most of the
positions were filled . Cohen asked Study to account for his whereabouts and
actions on November 3; Study did . Cohen questioned Study about alleged acts
of sabotage . Upon • Cohen's inquiry , Study explained that he had given the
only explanation possible to Holt by telephone on the night of November 3,
when Holt had asked about the source of the power in the control room.' Cohen
also asked Study to name all of those who had been at the transmitter No-
vember 3, and Study did so.
During the above ex parte investigations about the middle of December, the
respondent admittedly got no admission of guilt of sabotage from anyone, nor
did it learn of any individuals ` who were responsible for any acts of sabotage.
According to Cohen's testimony , he learned from interviews with Ludlam and
Boley, two English announcers who were later reemployed on January 20, that
they were both at the studios on November 3. Furthermore , according to
63 Holt had found that clip lead on November 4, and had reported it to 'the respondent
and to the representative of the F C. C. who in turn had inquired of A C. A about the
clip,load . The explanation given the F. C C representative about November '6, that given
the respondent in mid -December by Graham , andathat given at the hearing were the same ;
namely that for some weeks prior to the strike the placing of the clip lead upon the
transmission line had been normal shut-down procedure , upon transmitter supervisor Neu-
wirth ' s instructions , in order to ground the transmission line completely , since workmen,
a ho were then remodeling the transmitter and who were often working at night, had
complained of shocks received from' the some 60 volts in the line when it was not so
grounded Upon consideration of all the evidence the undersigned accepts the foregoing
explanation
86 What was said during that conversation is set forth above. According to Holt's and
Cohen's testimony , it was pursuant to that telephone conversation that Holt had found
two fuses in the fuse box in the record room , where Alper worked, tipped with scotch
tape in such a way as to block the flow of current to the control room. Cohen maintained
at the hearing that he was convinced that Study 's explanation had constituted a tip-that
sabotage had been committed.
GREATER NEW YORK BROADCASTING CORPORATION 755
Cohen, Ludlam, who became program director several months later, told him
on December .17 of the presence at the studios on November 3 of two Italian
announcers, Ferri and Polimeni, neither of whom was later reemployed.
On the record as a whole, the undersigned is convinced and finds that it was
during its ei paste investigations that the respondent first learned much of what
it professed, at the hearing to have known early in November as to the where-
ab&uts of the various strikers on November 3 and 4; that the respondent made
electrical transcriptions of the abpve interviews; °T and that the respondent
refused to produce those transcriptions at the hearing because they contained'
evidence adverse to the respondent.
On December 17, pursuant to his application of December 16, the respondent
wrote Gilbert McDonald, who had been control room supervisor at $55 a week
'before the strike, that his application had been approved; that as stated in his'
application he understood he was to have no employment contract, was hired for
no specific period of time, and, could leave or be discharged "at any time for any
cause without notice" ; and that upon receipt of the letter he was to contact Holt.
McDonald saw Holt on December 18, and they had a short talk. Holt told
McDonald that certain damage had been done to the facilities at the station, but
that the respondent was convinced that he had had no part in it. , Holt then
asked McDonald about a so-called "master mixer" which appeared to be missing.
When McDonald explained the system of, switching which had been used, Holt
signified that he then understood. Holt had not been familiar with, that system
and had not been able to figure out how they had selected studios without some
additional equipment ; there had been no such "master mixer" in use. Holt told
McDonald to try to get along with the other men and to report to De Laurentis,'
saying that he did not know what fuither arrangements were going to be made.68
About the time of McDonald's return, some miscellaneous employees also
returned. Suchin, a clerical worker, and Steinberg, the bookkeeper, started to
work the morning of December 17.60 About December 21, Sokal returned as a
page boy. Then on December 23, Corrado started work as a clerical worker, and
Garafalo as "page boy and sound effects." i0 In connection with their return,
61 The finding as to the transcriptions is based upon testimony of McDonald and Study
which the undersigned credits and upon the respondent ' s refusal to deny that it had such
transcriptions McDonald testified that Holt told him that such transcriptions had been
made; and Holt did not deny making such a statement to McDonald McDonald also
testified that as he entered the room ' for the interview he heard the characteristic hissing
sound of the transcribing machine , a sound with which he was familiar McDonald
further testified that when he returned to work, he saw a can of approximately 50 discs
of the type used on the transcribing machine and that he had not•seen more than 25 or 30
such discs during his previous 31/2 years at the station Study testified that he had pre-
viously installed the machine and knew that it had been used in the past for the purpose
of recoidmg conversations without the knowledge of some of the participants Study
also testified that a radio supply dealer had informed him that the respondent had about
the time of the-interviews purchased unusually large supplies of the discs used on the ma-
chine The respondent repeatedly refused to admit or deny the existence of such ' transcrip-
tions and refused to produce them at the hearing both in answer to a subpoena and upon
the repeated requests of the undersigned . Also Cohen , when called as a witness, upon
advice of counsel, refused to answer questions concerning the transcriptions
w De Laurentis , who was later released on March 15, 1941, in a staff reduction because
he was considered one of the poorest technicians , was receiving $ 50 a week while McDonald
was receiving $55 a week
°D The pay roll listed Selina Elman as "bookkeeper ," and Steinberg as "assistant book-
keeper" Prior to the strike the listing of Steinberg had been "bookkeeper "
70 Before the strike Garafalo had been a page boy. Sokal had done sound -effects work
in the spring of 1940 for a while prior to the change in lunch hour, after which he was
a page boy. Prior to the time of the strike, only two miscellaneous employees, Alper and
Tanzman, neither of whom was ever reemployed, were listed as sound-effects men The
respondent ' s letter of December 6 listed only one sound man as discharged for sabotage.
521247-43-vol 48-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steinberg, Corrado and Sokal, at least, received letters 'with references to tenure
similar to those quoted above from McDonald's letter.
Subsequent to the above-described interviews and the arrangements for em-
ployees to return to work, and after-the resettled order and decree of December 19
in the arbitration matter, the respondent, on December 21, finally answered
A. C. A's above-quoted letter of December 11 The contents of the respondent's
reply which was signed by Kay were as follows :
This is in reply to your letter of the 11th instant and is also intended to
advise you as to the status of the Station with respect to positions available.
We give you the following information only because of your claim that you
represent certain of our present employees as well as certain of our former
employees In so doing you will understand that we in no way depart from
our former position as set forth in our previous letters to you and to which
we still adhere.'
In the first place, we do not wish to enter .into a protracted dispute with
you with respect to the circumstances under which you called the alleged
strike on November 3rd, 1940 We merely wish to report that in that re-
gard every statement made by us in our previous letters to you was true
and accurate and would not have been made if it were otherwise.
Nothwithstand ing that you stated in your letter of'December 11th, 1940
that you intend to prefer charges against us before the NLRB, which ordi-
narily we would regard as sufficient reason to deny you the information
requested, nevertheless, since we are confident that all of our acts as well
as our attitude are entirely proper and justified, we do not hesitate-to in-,
form you of the following :
On November 3rd, 1940, we had on our staff, one Chief Engineer and
nine (9) additional Engineers employed at both the studio and the trans-
mitter On the calling of the alleged strike on November 3rd, 1940, under
the circumstances stated in our previous letters to you, all of these positions
became vacant. As previously advised you in our letter of December 6th,
1D40; a new staff has been employed but on that date there were' still three
(3) positions available. Since then, we have accepted the application for
re-employment of Gilbert McDonald who, according to our investigation,
was wholly innocent of any of the illegal acts described in our previous
letters. This leaves two (2) vacancies which does not permit of the filling
by any of the other Engineers formerly"employed by us, and who likewise
have filed applications with us, because of our investigation which is still
continuing as to their possible participation in the illegal acts heretofore
described.
With respect to these two ( 2) existing vacancies, your Union may be as
good as any other source for the obtaining of such applicants, and we would
be,willing to entertain applications of qualified Engineers whom you may
send to us for these positions other than those mentioned in the last para-
graph. In doing so however, it is distinctly understood that we do not
acknowledge that we are under any duty or obligation to call -upon you for
such Engineers, but we make this request as we would to any source of
supply.
Furthermore, Tanzman had left the studios before 3 • 30 the afternoon of November 3. After
Sokal and Garafalo returned on December 23, they took over the sound-effects work gradually
and the two salesmen were shifted back to sales work Eventually Garafalo was returned
to work as a page boy early in February and on February 10, Francis Mellow, who had first
been hired on November 11, 1940; was transferred to the sound-effects pav roll Thereafter
be and Sokal were the only two persons carried on the sound-effects pay roll to the time
of the hearing
GREATER NEW YORK BROADCASTING CORPORATION 757
With respect to the English announcers, Italian announcers, -and sound
effects men, all positions were filled under the circumstances stated in our
letter of December 6th, 1940,, and there are now no vacancies. Applications
filed,by any of our former employees in these categories (and who were not
involved in any of the illegal acts referred to) will be retained by us and
such will probably be given preference P1 in the event that any new positions
become available.
With respect to general employees vacancies which arose on November
3rd, 1940, under the circumstances stated, are being filled from, the appli-
cations of our former employees. To date, Roslyn Suchin, Olga Steinberg
and Sam Sokal have commenced their employment, and Mrs. Ann Murtaugh,
Lena Corrado and Joseph Garafalo have been requested to report on Monday,,
December 23rd, 1940.
The last paragraph of the above letter states that Murtaugh lead been requested
to report for work. When she had been interviewed Murtaugh had been offered
the night operator's job. The relief telephone operator before the strike was
then doing Murtaugh's former work as day operator Murtaugh had received
$20 a week as day operator and had worked from 9 a. m. to 5: 30 p m. from
Monday to Friday and on Saturday from 9 a. in to 1 p in. The night operator
worked from 5: 30 p m to 10 p in. on 4 week day evenings including Saturday
and from about 9: 30 a. m to 7 p. in. on Sunday and received only $17 a week.
Murtaugh refused to accept the position as night operator because it was not her
former position and because it belonged to one of the other strikers, Frances
Hopkins. Murtaugh was never offered her position as day operator and she
never returned to work.°L The respondent thereafter offered the night position
to Hopkins who started to work as night operator on December 30.
The first list of names ever presented A. C. A. of the employees allegedly dis-
charged because of alleged acts at the time of the strike was a list of 12 employees
contained in identical letters, dated December 23, 1940, which were sent by Field
Examiner Kerr to Alper and to Boudin, respectively. ^ The contents of those
identical letters were as follows :
The company has advised us that the following list of employees are those
whom they consider discharged because of the alleged acts which occurred
at the time of the strike November 3rd:
Study Barry - Graham
Olson Alper Dickens
Wegge Polomini Nieworth
Kamke Potts Kearney
The company advised us further that all other employees are eligible for,
reinstatement as there are openings.
We would be glad to confer further with the above listed employees indi-
vidually and suggest that you clear with me the time for all appointment
when they may come in.
Cohen testified that he had given a list of names to Kerr by telephone-' on
December 21, pointing out that some names were misspelled in her ' letters
71 It should be noted that all three of the recently expired contracts had provided that
seniority rights 'should be observed in all relationships
72 Murtaugh-had started to work for the respondent in June 1939, Hopkins in October
1939 and Ruth Kiczales, the relief operator before the strike, in Januaiy 1940
Cohen admitted that at no time prior to his telephone conversation with Kerr on De-
cember 21 had the respondent furnished anyone, either verbally or in writing, any list of
names of individuals allegedly discharged for tlie^alleged sabotage.
758 DECISION'S OF NATIONAL ' LABOR RELATIONS BOARD
Cohen also testified that the names of Stratton, Ferri, and Boley, which were
not included in Kerr's letters, had been included in the list he had given Kerr.
Of those three, Stratton and Ferri were never reinstated. However Boley, whom
Cohen testified had cleared himself to the respondent's satisfaction of guilt of
sabotage during his interview in mid-December was reinstated on January 20
along with Ludlam, another English announcer. As is stated above, the under-
signed does not credit Cohen's-attempt to explain away the inconsistency between
the 15 employees referred to anonymously in the letter of December 6 and the
12 names in Kerr's letters of December 2;3. The undersigned finds that on
December 21 Cohen gave Kerr only the 12 names which are set forth above.
9 The developments during the following year
On January 15, 1941, the respondent moved to its new studios at 730 Fifth
Avenue About that time several changes were made in the staff. In the first
place, Kay ceased to be the general manager. She was succeeded for a brief
period by Naylor Rogers, who ' was in turn succeeded in February by Arthur
Simon, the general manager of WPEN, who was brought in for 2 or 3 months
to reorganize WOV. Siinon was succeeded by Paul Girard who served for approxi-
mately the month of May. Girard then was succeeded by General Manager
Dailey, who continued to be the general manager thereafter.
In addition to the change in January in general manager, Stuart Buchanan
took over the position of program director for almost all of January, during which
time Schramm served as assistant program director. Schramm returned to his
work as program director when Buchanan left on February 1. However, Schramm
later left the staff of WOV on April 19, 1941. Also in January, Holt returned
to his regular work as traveling consulting engineer among the Bulova-Lafount
stations when Whitman N. Hall was employed on January 13 to serve ,as chief
engineer. On January 20, William Murtaugh, who first started working for the
respondent on January 15 at the transmitter, was transferred to the studios and
made the control room supervisor.
During January three of the strikers with longest service records at WOV
contacted the respondent again. Study, who had started working at WOV
in 1931, wrote on January 15 asking for a letter of recommendation "stating the
period of service, the position held and other pertinent facts" regarding his -em-
ployment. Study further requested a statement to use in connection with his
F. C. C license, that from October 19, 1938, the date of his last license renewal,
he had been chief engineer of WOV, in complete charge of the operations and
maintenance of the station While he asked that the matter be given "early
attention," Study never received a reply to his letter.
During this period, Vivian Murgia again attempted to secure reinstatement.
In point of service Murgia was the oldest of the miscellaneous employees, having
started to work in July 1931. She had filled out an application blank individually
on December 14, after having been included in A. C. A's group application. About
January 15, Murgia had a talk at the new studios with Program Director
Buchanan. He asked Murgia if she "had been a bad girl", She said she had
not; not*to her knowledge! Buchanan indicated he thought it was a shame that
she had not got her position back inasmuch as Schramm had got his. He then
stated that there were two positions open for which Murgia might qualify, but
that he could do nothing until he spoke to Cohen about it. Buchanan then took
Murgia to Concetta Porreca who was serving as secretary to Rogers, the new
general manager. She had Murgia fill out another application blank. Murgia
applied for a secretarial position in the program department, and made it clear
to Buchanan that she was willing to take any available position with duties
and salary similar to her former position which had paid $30 a week.
GREATER NEW YORK BROADCASTING CORPORATPON 759
On January 19, before she had heard anything further from the respondent,
Murgia saw an advertisement in the classified section of a New York news-
paper. The advertisement, placed by an employment agency, listed two radio
positions, both requiring radio experience, one as a secretary at $30 a week
and the other as a receptionist. Murgia was,qualified to fill either one. The
following morning, Monday, January 20, Margin contacted the agency. She
was told they were not interviewing anyone at the moment but to contact them
after 1 that afternoon. About 1 o'clock Murgia telephoned the agency again
and asked if the position was still available She was told that it was and
was asked whether she could go right out for an interview. Murgia was given
the address of the WOV studios and told to go to WOV. Murgia then called up
WOV and talked-with Porreca, asking her whether or not there was any 'work
on the application she bad filled out. Porreca told Murgia that she was sorry
but there were no openings at that time. The respondent's pay roll shows that
two new employees were hired that day to fill the two positions involved.
Berry was the third employee with a substantial service record who con-
tacted the respondent about this time. He had started to work at WOV in
1035 and part of the time he had been assistant program director. Ong Decem-
ber 31, Berry wrote Lafount that his family was suffering as a result of the
situation and asked for an "off the record" chat with him. He described his
5 years of service with WOV, pointing out that he had not been merely a chief
announcer but had written continuity and created programs and publicity.
Berry assured Lafount of his best efforts in efficient production, novel presenta-
tion and, aggressiveness and imagination in getting results, attaching to his let-
ter a description of his approximately 10 years of experience in radio, dramatics,
publicity and journalism . On January 2, 1941, Lafount wrote Berry that the
matter of employing "former members of the WOV staff" had been left entirely
to Cohen, and that he would be more than pleased to take the matter up with
Cohen that day. <
On January 18, having received no further word from Lafount since Lafount's
letter of January 2, Berry telephoned Lafount and told Lafount he would like
to have a talk with him.. Lafount said that if it pertained to his reinstate-
ment he could not discuss it with Berry but would be glad to talk with him
about anything else. Lafount also said, "We can -go no further than the Labor
Board and our attorneys will permit us, on this matter."
Thereafter toward the end of January, Berry had two conversations with
Cohen at his office. During the first conversation,, Berry told Cohen of the
tragic condition of some of the strikers and asked if there was not some way to
clear up the situation so that 'employees of long standing might be restored
to their positions. Cohen was pleasant but said that since the Board, case
existed at that time he did not know of anything that could be done " A day
or so later when Berry again saw Cohen, a second discussion took place along
the same lines during which Berry asked Cohen if an avenue for reinstatement
would be open if no Labor Board case existed Cohen smiled and said that he
would not say that.
It should be noted that it was during this period ,when Berry was being refused
consideration that the respondent, on January 20, returned Boley and Ludlam
to the WOV staff as announcers . Both admittedly were known to have been
on -the premises on November 3, and both had first started working at WOV in
1937. Furthermore, during the months of March, April and May, each of two
new announcers was given the designation, "Master of Ceremonies," a title
44 On January 10, A C A. had filed its amended charge upon which the complaint herein
was issued.
0
760 DECISIONS OF NATIONAL LABOR RELAT'IONS' BOARD
not used before the strike. During this same 3 months the number of an-
nouncers, including everyone from the program director down, ranged from 16
to 18, averaging 17. Before the strike there had been only 10 announcers,
including the program director.
On February 8, as a part of the reorganizing job which Cohen testified Gen-
eral Manager Simon of WPEN had been brought to WOV to do, Hopkins and
Suchin, two of the returned strikers, "left" along with 11 other employees, 10
of whom were miscellaneous employees. The eleventh, a salesman who was
still being carried on the sound-effects pay roll, went to WPEN. The respond-
ent's only explanation of any of those changes was the following testimony of
Cohen'who indicated he had received his information from Simon who did not
testify :
The reasons were in some instances a desire to change and in others a
question of competence to do the job as required by the management.
Of the 10 miscellaneous employees, other than Hopkins and Suchia, who "left"
on February 8, 6 had been hired after the strike started, and 2 had been among
the 5 miscellaneous employees who had not gone out on strike. One of those,,
Stanley Weisenfield, had started as a page boy in October 1940 and the other,
Ruth Kiczales, had started as relief telephone operator in January 1940. Of the
miscellaneous employees retained, three were returned strikers, Steinberg,
Garafalo' and Corrado, all of whom continued on the staff until the time of the
hearing.
The pay-roll records show that preceding and following the above separa
tion of 12 miscellaneous employees on February 8, a number of new miscellaneous
employees were added to the staff. The preceding week six new miscellaneous
employees had been added, and the week before that three new miscellaneous
employees had started. The week following February 8, six new miscellane-
ous employees were added to the staff, the succeeding second week one was added,
and the third succeeding week two more. Thus while the total number of mis-
cellaneous employees during the week of January 18 was only 15, the total
during the week 'of March 8 had increased to 19. Furthermore, during the
above-period three new clerical workers were taken on and two new telephone
operators. Suchin, a clerical worker, first went to -work at WOV in September
1940 and, Hopkins, a telephone operator, started in October 1939.
The pay rolls show that in the period following Simon's reorganization in
February, the labor turnover was relatively low and the number of employees
relatively constant. Thus during the 6 months following, the average was
apps oximately 50, being 49 during the first p'ay-roll week of March, 50 during
the first pay-roll week of June, and 52 for the first pay-roll week of September,
the foregoing figures being for the four groups asked by A. C. A. as one appro-
priate unit. There was thus an increase during this period of approximately
25 per cent over the number of employees at WOV preceding the strike. While
the increase was largest among the announcers, there was also some increase
among technicians and miscellaneous employees. However the number of
sound-effects men continued to remain at two.
On February 25, pursuant to a telephone request from Pastene & Company
that he do so, Berry called at Pastene's office for an interview. He had an-
nounced a commercial program for them over WOV prior to the strike. Berry
was told that if WOV would permit it that Pastene would like very much to
have him announce its programs over WOV as a free-lance announcer on the
pay roll of Pastene. Berry agreed that he would contact the station, saying
that he did not believe the prejudice against him was "still so burning" that they
would prevent him from trying to earn that much livelihood.
GREATER NEW YORK BROADCASTING CORPORATION 761
Later that day, Berry called Lafount•and explained Pastene's request. Berry
said he did not think there should be any objection, pointing out the fact that
free-lance announcing was an accepted practice in radio. Lafount said that
he did not think there would be any objection, but before agreeing indicated
that he wanted to check with Cohen and asked Berry to call back in half an
hour. Berry later called Lafount who said that he was very-sorry but that
Cohen objected on the ground that "it was not, advisable for an announcer who
was suing the station'to appear over its air."" Berry then told Lafount, as he
later also wrote him, that he thought this denial, which prevented him from
practicing his profession, was a violation of the respondent's public responsi-
bility under its F. C. C. license.
On February 28, Berry had- a talk with Cohen at the latter's office.. He told
Cohen that he wanted to discuss the matter of free-lance announcing as he
thought the position Cohen had taken was unfair. Cohen told Berry he thought
Berry had "unmitigated gall" to expect to be permitted to announce over the
facilities of WOV at a time when he was suing WOV: Cohen asked Berry
if he thought he would retain in his employ one of his clerks if the clerk sued
him. Berry replied that he did not, but pointed out that as a free-lance an'
nouncer he would not be in the employ of WOV but would be employed by a
third party. Berry pointed out that it was accepted radio practice for a spon-
sor to employ an announcer of its choice. He told Cohen that he did not feel
the respondent could make it a condition of employment by a third party that
Berry remove any rights which he might have under any suit which he might
be engaged in at the moment, pointing out that litigation with the telephone
company would not,result in denial of the use of the telephone. Berry said he
considered a radio station a public service Cohen admitted it was a quasi-
public service, but maintained his position denying Berry the right to free-
lance over WOV. Berry thereupon left Cohen's office and mailed a letter to La-
fount which he had previously written, setting forth the unfairness of the re-
spondent's position as Berry -saw it. That letter was never answered.
On February 28, the respectne attorneys for the respondent and A. C. A.,
signed a stipulation discontinuing the action started in the City Court of the City
of New York on behalf of Frank Pohmeni, who, like Berry, was one of the 17
plaintiffs in the back-pay suit growing out of the arbitration. Thereafter Poli-
meni was permitted the privilege of acting as a free-lance announcer over WOV's
facilities.
During the first week in May, McDonald had a talk with Chief Engineer Hall
and told him that for some time he had been intending to ask General Manager
Girard about reinstatement to his former job as control room supervisor, but that
he felt he did not want to go over Hall's head. Hall told McDonald that he had
never fully understood the situation and had assumed there was a "general
clean-out." During the conversation, Hall told McDonald that he had no doubt
that McDonald was capable of holding the job of, control room supervisor and
said that he considered him "an unfortunate victim of circumstances "
That same evening, Hall having arranged for McDonald to see Girard, McDon-
ald explained to Girard that he had been given no reason why he had not again
been made control room supervisor after the strike. Girard told McDonald he
considered him the most capable technician on the staff and Murtaugh about
the worst, giving illustrations of Murtaugh's incompetence. Girard told Me-
t
75 It was stipulated that at that time two proceedings were pending, one arising from
the charge filed with the Board, and the other growing out of the arbitration proceedings.
The second involved the attempt to secure wages for the employees who had worked
during the lunch hour prior to the expiration of the contracts It was a civil suit in the
City Court of the City of New York on behalf of 17 employees as plaintiffs --
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald to "sit tight" ; ^ that he would investigate the situation and was sure
that at some future date it could be straightened out to McDonald's satisfaction.
However, before Girard was able to do anything about McDonald's request, he
"lost his job" as general manager.
About July 23, McDonald had a talk with Vice-President Lafount. He told
Lafount that he thought he had received a "dirty deal" and asked Lafount if it
was within his power to straighten out the matter. Lafount indicated he had
very little to do with WOV except signing pay rolls and checks, but. promised to
take the matter up with "the powers that be." About 2 days later, Hall told
McDonald that Lafount was taking the matter up with Cohen. Sometime dur-
ing this period McDonald had a talk with Murtaugh concerning his vacation
for that summer. It had been the practice of the station, and continued to be
through the summer of 1941, to give 1 week's vacation to employees with service
of less than 1 year and to give 2 weeks' vacation to those' with service of over
a year. McDonald had first started working at WOV in August 1937. -
Soon after talking with Murtaugh, McDonald had a further talk with Hall
who told McDonald that he was very sorry but that Lafount had informed, him
that Cohen took the position that McDonald was not entitled to 2 weeks' vacation
inasmuch as he'was a new employee beginning as of December 18, 1940, and that
for the same reason McDonald was not entitled to the position of control room
supervisor.
At the time of the hearing, McDonald was still a technician at $55 a week
while Murtaugh's salary had been advanced from $50 a week to $60 a week
about the middle of August. In connection with the foregoing treatment of
McDonald, it should be noted that even on the basis of seniority after the strike,
McDonald was entitled to the position because he had returned to work almost
a month before Murtaugh first started to work for the respondent. Furthermore,
while Cohen testified that all of the returned strikers had been treated as new
employees, he also 'testified that McDonald, whom he had seen picketing during
the strike, had never been discharged for "alleged misconduct" or for any other
reason. Finally, it is highly significant that during the week of July 11, Ludlam,
one of the English announcers who was taken back after the strike on January
20, took over the duties of program director and continued to serve in that
capacity thereafter. On the basis of the seniority policy which the respondent
allegedly applied in denying McDonald reinstatement to his position as control
room supervisor, there were clearly a substantial number of announcers whose
claim to the position of program director outranked that of Ludlam.
Under the date of July 29, 1941, 10 WOV technicians "respectfully submitted"
a "proposed working contract for the engineers . . . as agreed upon by their
authorized representatives after conversations held with the various engineers."
The list of 10 who signed the "contract" was headed by 3 individuals after whose
respective names appeared in parenthesis the word "representative." The name,
Gilbert McDonald, headed the list., The agreement was "accepted, by" Harold
A. Lafount on behalf of WOV The chief engineer was excluded from the agree-
ment which contained some provisions similar to those previously included in
A. C. A.'s contract for technicians. However, many matters formerly covered
by A. C. A.'s agreement were not included In respect to the minimum wage
scale, the $50 floor was $5 higher than that being asked by A. C. A. at the
time of the strike and $12.50 higher than that which had formerly been included
in A. C. A's agreement. Furthermore the document signed on July 29 clearly
placed the sole judgment on matters of employment and lay-offs within the dis-
cretion of the respondent. In fact, the opening clauses of the document com-
prised six specific "rules," failure to comply with any one of which would be
penalized by discharge.
\ GREATER NEW YORK BROADCAST1'ING CORPORATION
B. Conclusions concerning the unfair labor practices
1. The refusal to bargain collectively
763
a. The appropriate unit
The complaint alleged and the answer denied that the appropriate unit'embraces
all announcers, including the program director ; technicians including the chief
engineer ; sound-effects men ; and miscellaneous employees, the said miscellaneous
employees comprising stenographers, typists, clerks, switchboard operators, book-
keepers, censor, page boys, copyrighter, watchman, and translators employed by
the respondent at its studios and its transmitter, but not including salesmen,-
musicians, publicity men, station manager, executives and officers.
, The substantial issue involved is whether or not the three groups formerly un-
der contract, the technicians, announcers and sound-effects men, constitute along
with the miscellaneous employees a single appropriate unit. It should be noted
first that no othei labor organization was claiming to represent any of the em-
ployees involved. While the record establishes that the predominant form of or-
ganization in the radio field was on a craft basis, it is clear that A. C. A. in the
latter part of 1938 shifted its organizational approach to an industrial basis.
Furthermore, it is clear that A C A. Mad organized WPEN on an industrial basis
similar to that sought at WOV, and that Bulova had owned that station and dealt
on that basis for over a year prior to A C. A 's request for any industrial unit at
WOV. While there had been separate contracts at WOV covering three separate
groups on a craft basis, those contracts were expiring as of even date. Further,
such contracts had only recently been held by one single labor organization. The
sound-effects men had been under contract with A. C. A. only a year and the
announcers about 6 months. While skills and pay rates varied, the four groups
of'employees were interdependent in the actual work of broadcasting radio
.programs and in a few.cases employees had passed from one group into another."
Finally the record reveals that A. C. A. was making increasing progress in
organizing the miscellaneous employees Thus by September 18, 1940, 7 of the 17
miscellaneous employees had designated A. C A. By October 18, 1940, the
number who had designated A. C. A. was nine. The tenth miscellaneous employee
signed on November 4 and the eleventh on November 5 Furthermore, on November
4 and thereafter in the face of the warning given by Cohen, 12, of the 17 miscel-
laneous employees went on strike. In view of A. C. A.'s substantial organization
of the miscellaneous employees," and since the desire of the only labor organiza-
tion involved to include those employees along with others formerly under separate
contracts 'constituted a logical development in self-organization, the undersigned
is of the opinion and finds that such a consolidation of employees represented by
a single labor organization into a single unit is appropriate under the conditions
of this case.
Under the conditions herein, the exclusions sought are appropriate. , The
musicians had been for some time under contract with an A. F. L union
76 This is particularly, illustrated by the case of Alper, although the record contains other
examples Alper was first employed in April 1936 as a page boy. Toward the end of 1937
he started doing miscellaneous clerical work for the chief engineer. During 1038 Alper
started doing some sound-effects work. He continued in sound-effects work until January
1940, when he became a control room technician. Alper held that position until June 1940,
when be went back to sound-effects work.
77 Since it is not found below that a refusal to bargain occurred prior to November 4 by
which time A. C. A clearly represented a majority of the miscellaneous employees, it is not
necessary to determine herein the extent to which a labor organization is required to repre-
sent employees among a group which it is seeking for the first time to repiesent in combina-
tion with other groups which it has previously represented.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD/
and neither the respondent nor AA. C A. ever sought to include them Nor was
any desire expressed during negotiations by either the respondent or A. C. A.
to include salesmen, publicity men, the station manager, executives and officers.
As to the inclusions, at no time did either party object to the inclusion of the
program director who had been included in previous contracts. While the
program director had broad responsibilities for planning and executing radio
programs, supervising personnel, and recommending hiring and discharging, his
inclusion in an industrial unit is appropriate under the conditions herein, al-
though such closeness to management functions is frequently the basis for
exclusion. Similarly, the responsibilities of the chief engineer, which involved
management functions paralleling those of the program director, would make
his exclusion appropriate under some circumstances. However, the chief en-
gineer had been included in all previous agreements covering technicians, and
Kay did not object to his inclusion in the technicians' contract during the nego-
tiations preceding the strike. Under the conditions it is appropriate to include
the chief engineer in an industrial unit. As to the bookkeeper, censor, and
copyrighter, Kay did object to their inclusion during the negotiations. The
censor worked under the program director and was responsible for seeing that
programs conformed to certain standards of permissibility. The watchman
worked under the chief engineer ; his duties were those of night watchman at
the transmitter. The bookkeeper worked under the general direction of Kay's
private secretary, doing work -ordinarily assigned to a bookkeeper. In view of
the inclusion of persons of such responsibility as the program director and the
chief engineer and since there was no other labor organization advancing con-
flicting contentions, there appears to be no reason for excluding the bookkeeper,
censor and watchman from an industrial unit.
The undersigned finds that all announcers, including the program director ;
technicians, including the chief engineer; sound-effects men; and miscellaneous
employees, the said in scellaneous employees comprising stenographers, typists,
clerks, switchboard operators, bookkeepers, censor, page boys, copyrighter,
watchman, and translators employed by the respondent at its studios and its
transmitter, but not including salesmen, musicians, publicity men, station man-
ager, executives and officers, at all times material herein constituted and that
they now constitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, or other conditions
of employment and that said unit insures to employees of the respondent the
full benefit of their rights to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
b Representation by A. C. A. of a majority in the appropriate unit
The right of A. C A. to represent the 10 technicians, 10 announcers, and 2
sound-effects men, covered by the respective closed-shop contracts which ex-
pired on October 1 was never (questioned On October 18, 1940, A. C. A. had
signed authorizations from all 10 technicians, all 10 announcers, the 2 sound-'
effects men, and from 9 of the 17 miscellaneous employees, making a total of
31 of the 39 employees in the unit above held to be appropriate Thus by October
18, A. C. A. had secured a majority in each of the four groups separately and a
majority,in the unit considered as a whole.
The undersigned finds that on and at all times after October 18,
1940,78 A. C. A. was the duly designated representative of a majority of the
78 The date, October 18, 1940, is selected rather than an earlier date because by that
date there is no debatable question as to the appropriateness of the unit on the basis of
the extent of A C. A.'s organization of the miscellaneous employees, ,and because no earlier
date is material in view of the findings hereinbelow.
GREATER NEW YYORK BROADCASTING CORPORAT'PON 765
employees in the aforesaid appropriate unit,'and that, by virtue of Section 9 (a)
of the Act, A. C. A at all such times was and at all times material herein was
and is the exclusive representative of all the employees in such unit for the
purpose of collective bargaining in respect to rates of pay, wages, hours of em=
ployment, or other conditions of employment.
c. The refusal to bargain
In considering the question of whether the respondent refused to bargain, it
is necessary to keep in mind the interrelated developments described hereinabove.
While there is a History of contractual relations, tension had developed to a
marked degree before the expiration of the three closed-shop contracts on
October 1, 1940 This tension arose largely because of the lunch hour matter
which had been brought to arbitration. A. C. A believed that the respondent
had been arbitrary, while the respondent felt that A. C A had unfairly insisted
upon an advantageous interpretation of its contracts out of line with 2nytbing
which, had been secured at any other radio station. The tension and suspicion
generated by this dispute and the continuing court activity associated therewith
complicated all of the ensuing negotiations. It was the arbitration matter which
had brought Cohen into the picture. Previously Kay had handled the negotia-
tions leading to contracts. However, Cohen wrote the letters abrogating the
announcers' and the technicians' agreements, and it was with Cohen that A. C. A.
held •its first meetings in spite of the fact that A. C. A. answered Cohen's letters
by addressing letters to Kay. That Cohen was less well equipped to negotiate-
than Kay was later, recognized by the respondent itself when Kay replaced
Cohen as the 'negotiator upon the request of A. C. A. The first meeting itself
did not occur until September 28, just 3 days before the expiration of the con-
tracts. While the delay was unfortunate, it does not appear to be ascribable to
either party alone. Also during September both parties were squaring away for
court action on the lunch hour matter which was a factor entering into the
abrogation of contracts and must have been anticipated as a major bone of
contention during negotiations. In fact, at the first meeting-on September 28,
Cohen notified Adler that the respondent would insist that the lunch hour not
be given as a part of the 8-hour workday.
In addition to the lunch hour matter, a second factor arose at the meeting
on September 28-to plague negotiations. This was the respondent's demand that
A. C. A. demonstrate its right to represent the miscellaneous employees at WOV.
When A C. A. for the first time sought to include those employees in its pro-
posed contract submitted that day, Cohen asked for proof of representation of
them Adler refused to submit it In view of the circumstances involved,
Cohen's request for a demonstration that A. C. A. had organized the new group
which it sought for the first time to represent was not an unreasonable one,
especially since there is no evidence that he made any objection to the single
contract. There appears to be nothing in the Board's policy in administering
the Act which would require an employer to bargain for an additional group
of employees sought to be bargained for for the first time, either separately
or as a part of a larger unit, without a showing of organization among such
employees."
71 The situation here involved is different from that in which a labor organization orig
inally seeks to represent several groups of employees in a single unit. Under those condi-
tions a showing of representation in any one group alone would naturally not be required,
if the unit as a whole were first either held by the Board or conceded by the parties to be
appropriate . On the other hand , where a labor organization , as here , as the result of the
evolution of its own self-organization, is seeking to include an additional group of em-
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the record as' a whole the undersigned is convinced and finds that at the
outset the only substantial obstacle to the initiation of bargaining on the basis
of the single proposed contract was the doubt of the respondent that A. C A. had
organized the miscellaneous employees. In spite of inferences which can be
drawn to the contrary, and upon consideration of all the factors in the case,
the undersigned further finds that arguments, which were later advanced con-
cerning the appropriateness of separate units were afterthoughts, and that the
,respondent did not have any substantial objection which it could advance in good
faith to treating with A. C. A. for the employees in the proposed contract except
its reasonable doubt that A. C., A. actually represented the miscellaneous
employees. I
Several factors lead to, the foregoing conclusions. That the respondent was
familiar with the industrial type of unit wherein miscellaneous employees were
grouped with workers more highly skilled and paid is clearly shown by Kay's
experience as manager of WPEN when the industrial unit was developing at that
station, and by the almost simultaneous negotiations without question for, that
industrial/ unit at WPEN which was then owned by Bulova80 `Yet, instead of
bargaining at WOV on the basis of the single proposed contract, the respondent
insisted on a demonstration of A. C. A.'s majority in the miscellaneous group.
A. C. A. just as persistently refused such a demonstration; in fact it did not
have such- a majority until October 18. Thus at the second meeting on October
11 Cohen again asked proof of A C A.'s Vajority among the miscellaneous em-
ployees and the proof was refused. Cohen then indicated a willingness to bar-
gain for the other employees in the proposed contract, but A. C. A. insisted on
bargaining for the miscellaneous employees also. Even at the Regional Office
on October 23; A. C. A. forestalled any possibility of a determination of its repre-
sentation in- the miscellaneous group by an informal check, although it gave nine
cards for miscellaneous employees to the field examiner. It insisted that in the
event of any check, the miscellaneous employees should not be checked separately.'
Before Kay took over the negotiations, no arrangement had been made to resolve
the question of A. C. A.'s majority among the miscellaneous employees. That
question emerggd again at the outset of the first meeting with Kay on October 24;
she asked to see proof th