King Radio Corp.

National Labor Relations Board - Board Decisions

Jan 22, 1974

208 N.L.R.B. 578 (N.L.R.B. 1974)

578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King Radio Corporation and Communication Workers
of America, AFL-CIO . Case 17-CA-5274
January 22, 1974
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
PENELLO
On April 30, 1973, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
Administrative Law Judge's Decision in light of the
exceptions and briefs and has decided to affirm the
Administrative Law Judge's rulings, findings, and
conclusions only to the extent consistent herewith.
The Administrative Law Judge found that at the
time Respondent withdrew recognition it had suffi-
cient grounds for believing that a majority of unit
employees no longer wanted union representation,
and the General Counsel has not come forward with
any evidence that the Union did represent a majority
of employees. He also found that the General
Counsel has failed to prove that since about
February 18, 1972, Respondent failed and refused
"to furnish the Union with the contract language of
items agreed upon, as promised by Respondent."
Accordingly, he concluded that the Respondent did
not violate Section 8(a)(1) and (5) of the Act and
recommended that the complaint be dismissed in its
entirety. The General Counsel and the Union have
filed exceptions to the above findings and recom-
mendations, some of which we, for reasons hereinaft-
er set forth, find meritorious.
The Respondent is engaged in the manufacturing
of aircraft radios and related navigational systems in
its two plants in Olathe, Kansas. The Union began
an organizational campaign at the plants during
early March 1966 and requested recognition from the
Company about April 12, 1966. A Board-conducted
representation election was held on June 30, 1966,
which the Union won by a vote of 182 to 114, and
the Union was certified by the Board as the
bargaining representative of Respondent's prod-
I The appropriate unit for purposes of collective bargaining within the
meaning of Sec 9(b) of the Act consists of all production and maintenance
employees at the 400 North Rogers Road and 139 South Brockway, Olathe,
Kansas, plants of King Radio Corporation , Inc, including plant clericals,
uction and maintenance employees at the plants on
August 19, 1966.1
Thereafter, a complaint issued as a result of an
unfair labor practice charge filed by the Union and
the Board found the Employer violated Section
8(a)(1) and (5) of the Act in cases 166 NLRB 180 and
166 NLRB 649. These Board Decisions were en-
forced by the United States Court of Appeals, 10th
Circuit, on July 22, 1968 (398 F.2d 14). Thereafter,
the Board issued its Decision in 172 NLRB 1051 on
July 9, 1968, finding that Respondent had violated
Section 8(a)(5) of the Act. This decision was enforced
in part by the 10th Circuit Court of Appeals on
September 17, 1969 (416 F.2d 596), and certiorari
was denied by the United States Supreme Court on
April 27, 1970 (397 U.S. 1007). The Board's Decision
required that the Respondent:
Forthwith abrogate, cancel, and disestablish, in
all respects, the wage structure system which
Respondent unilaterally established and placed
into effect for bargaining unit employees on and
since February 1, 1967; provided, however, (1) that
all increased minimum wage rates, whether
statutory or otherwise, for all job classifications,
placed into effect by Respondent for said unit
employees on or since February 1, 1967, shall not
be abrogated, reduced, or otherwise changed
without bargaining in good faith with the Union
thereon, and (2) that in all respects other than said
increased minimum wage rates (whether statutory
or otherwise, for all job classifications) the wage
rate progressions, wage rate progression system
(including automatic wage rate progressions), and
all other features of Respondent's wage structure
system which were in effect immediately prior to
Respondent's said February 1, 1967, unilateral
change, shall forthwith be reinstituted and re-
stored, and shall not be changed without bargain-
ing in good faith with the Union thereon.
and
Forthwith abrogate, cancel, and disestablish all
changes in any term or condition of employment
of said bargaining unit employees, other than any
increase in minimum wage rates (whether statuto-
ry or otherwise, for all job classifications) as
hereinabove provided, which have been estab-
lished for said unit employees by Respondent at
any time since said unit employees have been
represented for collective bargaining by Commu-
nication Workers of America, AFL-CIO, unless
but excluding the office clerical employees , accounting department
employees, research and development employees, professional employees,
guards, and supervisors within the meaning of the Act
208 NLRB No. 82
KING RADIO CORPORATION
said changes are bargained in good faith with said
Union.
and
Upon request, bargain in good faith with Com-
munication Workers of America, AFL-CIO, as
the exclusive bargaining representative of Res-
pondent's employees in said bargaining unit and
embody in a signed contract any agreement
reached. For purposes of such bargaining, the
period of l year following posting by Respondent
of the attached notice marked "Appendix" shall
be deemed and considered to be the initial
certification year of Communication Workers of
America, AFL-CIO, and the Board certificate
issued to said Union shall be deemed to be
amended and conformed accordingly.
The Employer posted the notice to employees
pursuant to the Board's Order in the above case.
After the Respondent's petition for writ of certior-
ari was denied by the Supreme Court, a disagreement
arose concerning the interpretation and application
of the remedial portions of the Board's Decision in
172 NLRB 1051. In an effort to resolve the
controversy, the General Counsel and Respondent
filed a joint motion for clarification with the Board,
which was granted on June 28, 1971. The Board
issued an Order on October 8, 1971 (193 NLRB 614),
clarifying its Order.2
The position of the Charging Party and the
General Counsel in this case is that the Respondent
illegally withdrew recognition and refused to honor
the Charging Party's certification as of August 11,
1972, not because objective circumstances justified
doubting the Union's majority as Respondent as-
serts, but because the parties were close to reaching
an agreement on the contract which the Respondent
did not want, and because there is an outstanding
unfair labor practice case against the Respondent
involving unit employees herein which has not been
complied with. In addition, the Charging Party and
the General Counsel take the position that the
Respondent violated Section 8(a)(5) of the Act by
failing to provide the Union with retyped copies of
articles agreed upon in the February 18, 1972,
bargaining session.
The Respondent's position is that it withdrew
recognition or refused to honor the certification
because it was justified in doubting the majority
status of the Union and that its bases for such doubt
were that the unit had expanded considerably since
2 As noted in the Administrative Law Judge's Decision, fn 7, backpay
has not been effected in the above proceeding and, because of the large
number of employees in""olved, the total may amount to $25 000 or
upwards General Counsel asserts that backpay totaling $25,112 33 is owed
579
the certification, there had been a great deal of
turnover at the plant since the certification, and the
Union had allegedly been inactive for certain periods
of time.
The Administrative Law Judge found in his
Decision that the question of inactivity of the Union
in this case is not pertinent in view of the pattern of
resumption of bargaining with the Union. We agree
with this finding.
Before and after April 13, 1970, the date Respon-
dent posted the notice to employees pursuant to the
Board's Decision the Respondent and Union met for
purposes of negotiating a collective-bargaining agree-
ment on 21 different occasions. These meetings were
held over a period of 40 months on the following
dates:
October 9, 1968 May 14, 1969
October 22, 1968 January 27, 1970
November 19, 1968 February 9, 1970
November 20, 1968 February 10, 1970
December 5, 1968
December 6, 1968
February 11, 1970
February 12, 1970
December 10, 1968 August 19, 1971
December 23, 1968 August 24, 1971
December 30, 1968 August 27, 1971
January 9, 1969 December 20. 1971
February 18, 1972
On November 3, 1971, William L. Brown, union
representative, sent a letter to William Haynes,
attorney for Respondent, requesting a bargaining
meeting and stating that Brown "would like to
establish a date that is to our mutual agreement in
getting back to the bargaining table," and suggested
meeting dates of either November 18 or 19, 1971.
Receiving no reply from Haynes, Brown sent another
letter dated- November 19, 1971, requesting that the
negotiations resume and suggesting that Respondent
suggest the dates for the meeting. By letter dated
December 3. 1971, Respondent's counsel answered
Brown's letter of November 19 and suggested a
meeting date of either December 16 or December 20,
1971.
A meeting was arranged and held on December 20,
1971. Prior to the meeting, Brown had sent the
Respondent a complete contract proposal and this
proposal was discussed during the 3-hour meeting.
The meeting adjourned with the understanding that
Haynes wanted to look over the Union's contract
proposals and make certain corrections. No repre-
sentatives of the Respondent stated at that meeting
to 821 employees and that interest thereon is approximately $4,935.98. How
many of the 821 employees that are owed backpay are presently in
Respondent's employment is unknown.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent doubted the Union's majority
status . Brown was to make changes requested by the
Respondent at the December 20, 1971, meeting and
submit them to the Respondent.
Brown submitted changed or redrafted proposals
to Haynes, and another meeting was held on
February 18, 1972. During the intervening period,
although there were various telephone discussions
between Brown and Haynes, Haynes did not
question the Union's majority status.
It appears that at the February 18, 1972, meeting
many provisions of a contract were agreed to. There
is an apparent dispute regarding which particular
contract items were agreed to in toto at the February
18, 1972, meeting. However, numerous items were
agreed to at that particular meeting because of
changes made and agreed to at that meeting. Richard
Johnson, personnel director for Respondent, noted
that there was a change made in the preamble and
the item was agreed upon; Respondent submitted to
the Union a proposal on management rights, which
was agreed upon; an item on new classifications was
agreed upon after a change; the Union accepted
Respondent's proposal on arbitration; an item on job
vacancies and transfers was agreed to after changes;
an item on rules, benefits, and privileges was
withdrawn by the Union; and an item on subcon-
tracting was agreed to after a change.
It thus appears that the February 18, 1972, meeting
was a fruitful bargaining session with considerable
progress made toward the completion of a contract.
There is agreement that at the conclusion of the
February 18, 1972, meeting there were only two
items standing in the way of total agreement;
namely, wages and dues checkoff. There was
considerable discussion of these matters. There was
agreement reached on the second- and third-year
wages of the contract; agreement was not reached on
the first-year wages of the contract, the Union first
requesting a 15-percent increase and then coming
down to 10 percent.3 The Respondent did not move
from its position that there would be no increase
during the first contract year.4
Regarding the dues-checkoff item, Haynes said
that he would agree to a checkoff system providing
the Union paid him 15 percent for each member's
dues collected. Brown acknowledged that he didn't
have the authority to do this and, at Haynes' request,
3 Brown said that he mentioned to Haynes that the Union would be
bound by the 5 5 percent ceiling of the wage-puce freeze in existence at the
time , although apparently this was not yet reduced to a firm proposal by
Brown Johnson testified that he "did not hear such a statement" made at
the February 18, 1971, session
4 At the December 20, 1971, meeting, there was agreement on an
immediate wage increase at that time Brown testified
Brown tried to get the authority. Brown phoned
Stanley Hubbard, area director of the Union, and
was instructed to make a counteroffer of 2 or 3 cents
a card for processing. This was rejected by the
Respondent. This was the first occasion that the
Union had offered any payment whatsoever to the
Respondent for processing dues checkoff.
At the close of the February 18, 1972, meeting,
Brown informed Haynes he would be dealing with
Mr. Lovett, a CWA representative, in the future.
Haynes said he was withdrawing the "total package,"
that is, the holiday item, the checkoff item, and the
wage item. According to Brown, with regard to the
agreed-upon proposals, Haynes stated he wanted
some language changes made, and he (Brown)
agreed at Johnson's suggestion to retype and submit
the entire contract to the Union for proofreading
with no intent to change any substantive terms. At
no time during the February 18, 1972, meeting did
any representative of the Respondent express any
doubt of the Union's majority status.
Thereafter, Brown submitted a memorandum to
Union Representative Lovett, dated February 18,
1972, stating:
Subject: Bargaining-King Radio Corporation
Final offer made by the Company as of this date
was as follows:
3 year contract
no raise the first year
5% 1st Anniversary
5% 2nd
15% to activate dues deduction to be paid to
the Company by the Union
Veterans Day
Final offer made by the Union:
10% 1st year
5% 2nd year
5% 3rd year
Dues deduction and the Union will pay .02
per card per month for processing.
Veterans Day
We are apart on three (3) items-wages, dues
deduction and Veterans Day withdrawn by the
Company. All other Articles acceptable.
About the middle of March 1972, Paul Scales,
CWA staff representative, assumed the responsibili-
ties of continuing the bargaining negotiations with
to agree to a wage increase for the hourly rated employees With
Christmas coming on and so forth we didn ' t want to deprive these
people of a wage increase and it would have no effect on future
bargaining, and I did agree to it and the committee agreed to it and we
initialed the proposed wage increases for these people We did
agree on this wage increase at this time to be effective the third of
January 1972 Based upon this. Mr Haynes felt [on February 18. 19721
that there was no wage increase due at the first year of the contract.
Mr Haynes and the gentleman at the table (Mr Johnson 1 asked me
KING RADIO CORPORATION 581
the Respondent. In the early part of April 1972,
Scales attempted to contact Haynes by leaving a
message at Haynes' office. Haynes did not return this
call and Scales called Haynes again about the early
part of May 1972. Again, Haynes did not return the
call. Scales called a third time on May 22, 1972, and
did speak with Haynes. On the same date, Scales sent
a letter to Haynes confirming the phone conversation
and stating that "I will be waiting for a projected
date [to continue bargaining negotiations] from
you." There being no response from Haynes, Scales
sent a second letter to him on July 17, 1972.
Receiving no reply Scales sent a third letter to
Haynes dated July 27, 1972, again requesting
resumption of negotiations.
Respondent's counsel, Haynes, sent to Scales the
following letter dated August 11, 1972:
I'm sorry for the delay in responding to your
letter dated July 27, 1972, as I have been away
from the office for the past two weeks.
As you may know, Company representatives
have met with representatives of the Union on
approximately five different occasions for a series
of meetings ranging from five to fifteen meetings
during the past five (5) years, during which time
written proposals and counter proposals have
been exchanged in an effort to reach an agree-
ment on wages, hours and other conditions of
employment. The last series of meetings were
conducted through November and December of
1971 and January of 1972. Although these
meetings resulted in agreement on a number of
subjects disagreement remained on others and the
disagreement was never resolved. The Company
has not changed its position on those subjects
which were in disagreement and it has never been
advised that the Union has changed its position.
The Company does not believe that it is obligated
to continue a "fruitless marathon of bargaining"
indefinitely, and thus believes it has met its
bargaining obligation.
In the interim, the Company has experienced
almost 100% turnover in bargaining unit employ-
ees and there is less than 20% of the employees
employed with the Company that were employed
in 1966 when the NLRB election was conducted.
Further, the number of employees in the bargain-
ing unit has more than doubled.
Moreover, the Union representation for bar-
gaining unit employees has been nonexistent
except to request a return to the bargaining table
on an intermittent, almost annual basis, to
rediscuss, with no change in position, subjects
which had been previously discussed, and contin-
ue to be in disagreement.
Accordingly, the Company believes it has met
its bargaining obligation. The majority status of
the Union has been affected by the large turnover
of employees as well as the doubling of the work
force within the past year.
On August 29, 1972, Paul Scales replied to
Respondent counsel 's letter as follows:
I was extremely disappointed to receive your
letter to me dated August 11, 1972, wherein you
state that continued bargaining between the
Union and the Company had developed into a
"fruitless marathon of bargaining".
It is my understanding that the last bargaining
sessions between you and Mr. Bill Brown had
been very fruitful, in fact much progress was
made. I understand the Company and the Union
were apart only on first year wages and the cost of
payroll deduction of union dues. I also under-
stand from Mr. Brown that at the last bargaining
session, which was held February 18, 1972, you
had agreed to prepare a contract on all items and
send to my office for initialing on all items but the
above mentioned items, wages and payroll deduc-
tion of union dues. As of this date, of course, we
have not received the contract from you.
The Communication Workers of America,
AFL-CIO still is a certified representative of all
conventional production and maintenance em-
ployees of King Radio Corporation, certified by
the National Labor Relations Board. Conse-
quently, you as the bargaining agent for the
company and I, as the bargaining representative
for the union have a responsibility to continue
bargaining until such time as a true stalemate has
been reached. I do not feel that the point has been
reached. I base my thinking on the gains made at
the last session with Mr. Brown.
I feel we are close to a settlement and should
again meet at the bargaining table in hopes of
consummating an agreement.
May I hear from you as to a date to continue
bargaining.
Scales assertedly received no response to the above
letter.
Richard Johnson, the Company's personnel man-
ager, testified with respect to the Company's turn-
over in personnel for the years 1967 through 1972.
Johnson indicated the number of people employed
and the number of people terminated in the hourly
classifications, which is the bargaining unit, as
follows:
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Year Employed Terminated
1967 593* 371
1968 702 554
1969 580 504
1970 208 353
1971 558 453
1972 1,573 1,188
4,214 3,423
* Does not include Jan. 1967.
It was stipulated by the parties that there were 343
eligible voters in the unit at the time of the June 1966
election . There were 182 votes cast for the Union,
and 114 against it , with 3 void ballots and 26
challenged ballots. Johnson testified that beginning
in February 1968 the Company began preparing
weekly reports on the number of employees in each
classification and on August 9, 1972, the Company
had 876 hourly employees who were employed
within the bargaining unit.
Johnson further testified that the Company's
questioning the majority status of the Union "was
based upon the turnover of personnel . . . the
increase of the work complement in the bargaining
unit . . . plus the fact we had observed or seen or
heard of absolutely no union activity in the plant."
Johnson claimed that "annually since 1967" the
Company has not "been notified as to local repre-
sentation within the plant," however, the Company
has "recently been notified of a change in local
representation in the plant." Johnson said that since
March 1967 he could recall one visit by the local
union president , and that was in 1971 , although he
acknowledged that during the strike employees
carried picket signs at the plant.
On the above facts , the Administrative Law Judge
found that at the time the Respondent withdrew
recognition the Respondent had sufficient grounds
for believing that a majority of the unit employees no
longer wanted union representation , and the General
Counsel has not come forward with any evidence
that the Union did represent a majority of employ-
ees. Therefore , he concluded the Respondent did not
violate Section 8(a)(1) and (5) of the Act . He further
found, based on credibility resolutions , that the
General Counsel failed to prove that since about
February 18, 1972, Respondent failed and refused
"to furnish the Union with the contract language of
items agreed upon , as promised by Respondent."
We do not agree with the Administrative Law
Judge 's finding that the Respondent had sufficient
grounds for believing that a majority of the unit
employees no longer wanted union representation
The law applicable to the withdrawal or failure to
honor the certification of a union has been succinctly
stated in Laystrom Manufacturing Co., 151 NLRB
1482, 1483, as follows:
Absent unusual circumstances , there is an
irrebuttable presumption that the majority status
of a certified union continues for 1 year from the
date of certification . After the first year the
certification still creates a presumption of majori-
ty status , but the presumption is normally
rebuttable by an affirmative showing that the
union no longer commands a majority . Moreover,
where the certificate is a year or more old an
employer may withhold further bargaining with-
out violating the Act and insist that the union
reestablish its statutory representative status if,
but only if, he in good faith has a reasonable
doubt of the union's continuing majority.
Two prerequisites for establishing whether or not
an employer was acting properly in questioning a
certified union ' s majority status , as set forth in
Celanese Corporation of America, 95 NLRB 664, 673,
are (1) that the employer has "some reasonable
grounds for believing the union had lost its majority
status," and (2 ) " the majority issue must not have
been raised by the employer in a context of illegal
antiunion activities , or other conduct by the employ-
er aimed at causing disaffection from the union or
indicating that in raising the majority issue the
employer was merely seeking to gain time in which to
undermine the union ." In Viking Lithographers, Inc.,
184 NLRB 139, the Board concluded that in a
context free of unfair labor practices or even of
manifest union animus the factors relied on by the
employer provided an objective basis which could
properly furnish reasonable grounds for the respon-
dent to believe that the union had lost its majority
status. Similarly, in Southern Wipers, Inc., 192
NLRB 816, the Board held that an employer had
sufficient objective considerations on which to
ground a belief that a majority of the employees no
longer desired union representation . As in Viking
Lithographers, the employer had not engaged in any
unfair labor practices.
More recently , in Emerson Manufacturing Compa-
ny, Inc., 200 NLRB No. 33, the Board set forth its
rationale on the conditions precedent to be met by
an employer in refusing to negotiate further with a
union under similar circumstances as exists in the
instant case. One consideration , as expressed in the
Emerson case, is as follows:
The initial question to be considered is whether
the record as a whole supports a finding that
5 Citing Lloyd McKee Motors, Inc, 170 NLRB 1278
KING RADIO CORPORATION 583
doubt of the Union's continued majority was the
real reason for the Respondent 's refusal to
bargain.
We turn first to the issue of whether or not
Respondent in this case had objective grounds for a
reasonable belief that the Union had lost its majority
status. We agree with the Administrative Law Judge
that the question of the inactivity of the Union in this
case is not pertinent in view of the pattern of
resumption of bargaining with the Union . With this
exclusion , the only two grounds that Respondent
could properly rely on for belief of a loss of majority
status by the Union are the increase in size of the
unit from the time of the certification until August
1972, and the large amount of turnover in the unit.
With respect to these two grounds, the Board has
held on numerous occasions , and specifically, in
Laystrom Manufacturing Co., supra, and Emerson
Manufacturing Co., Inc., supra, that new employees
will be presumed to support a union in the same ratio
as those they may replace. Thus, because the Union
maintained a majority status at the time of the
certification , it must be presumed that it still
maintains its majority status absent other strong
evidence which may form a reasonable basis for
believing that the Union has lost its majority status.
In this case , we do not find the required other strong
evidence which may form a reasonable basis for
believing that the Union lost its majority status.
The Administrative Law Judge relies upon two
cases, Taft Broadcasting, WDAF-TV, AM-FM, 201
NLRB 801, and Stoner Rubber Company, Inc., 123
NLRB 1440 , to support his conclusion that the
Respondent had a good-faith doubt of the Union's
majority status. We find that such reliance is
misplaced in view of the fact that those two cases can
clearly be distinguished from the instant case. Thus,
in Taft, the conclusion that the employer had a
sufficient basis for doubt of the union's majority
status was reached after a consideration of a number
of objective factors, including an employee poll
which showed that the union did not have majority
support , some expression of employee dissatisfaction
with the union, the fact that the union had been
certified for more than 20 years and had never
negotiated a contract with the employer , employee
turnover, and the fact that the employer had been
engaged in continuous good -faith bargaining for 4
years in an attempt to negotiate a contract . None of
these factors is present in the instant case except for
turnover. Also, in the Taft decision, the Board stated
that the prior Board Order was "extremely narrow in
scope . . . and would not be apt to have detrimental
or lasting effects upon employees in the unit ." In the
instant case , however , the three prior Board Orders
and court decrees are broad in scope and it cannot
be said that the payment of a total of approximately
$30,000 to past and present unit employees as a result
of Respondent 's prior violations of the Act would
not be apt to have lasting effects upon employees in
the unit , at least until a reasonable time after the
payments are made to the employees.
Further, in the Taft case, the Board placed some
reliance on the fact that a voluntary poll of
employees was taken , the results of which showed
that the union therein did not have majority support.
Based on the above facts , it is clear that the objective
considerations in Taft were much broader than those
in this case.
Prior unremedied unfair labor practices preclude
an employer from questioning the majority status of
the union . C & C Plywood Corporation, and Veneers,
Inc., 163 NLRB 1022; Miami Coca-Cola Bottling Co.
d/b/a Key West Coca-Cola Bottling Co., 150 NLRB
892. As stated in Taft, however , the nature of the
unremedied violation is a factor to be considered.
With respect to the Stoner case , the facts there were
also quite different from those in the instant case.
There, the union had won an election by only a small
majority 14 months prior to the withdrawal of
recognition . A strike had been in progress approxi-
mately 5 months during which there had been no
bargaining meetings and the union had not commu-
nicated with the respondent for a period of 3 months.
On the date of withdrawal of recognition , the plant
was operating with a complement of 18 permanent
replacements for strikers and a fairly high percentage
of strikers who had crossed the picket line to return
to work . In the instant case , the Union won the
original election by a much larger percentage than
did the union in the Stoner case . Also at the time of
Respondent's withdrawal of recognition , the strike
was over , unlike the Stoner case where the strike was
continuing . Finally, contrary to the facts in Stoner,
here , just prior to the withdrawal of recognition,
there had been a great deal of contact between the
parties, and the Union had been making every effort
to sit down at the bargaining table with the
Respondent although such bargaining had been
successfully avoided in bad faith by the Respondent
for approximately 5 months. Thus, the facts present-
ed here are quite different from the facts in Stoner.
As the Board has held on several occasions, the
return of an employee to work by crossing a picket
line during a strike , even an economic strike, does
not give rise to a presumption that such action
demonstrates a rejection of the union as the
employee's bargaining representative. See Frick
Company, 175 N LR B 233; Palmer Asbestos & Rubber
Corporation, 160 NLRB 723; and Medo Photo Supply
Corp. v. N.L.R.B., 321 U.S. 678, 687 (1944). Thus,
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without the additional facts present in the Stoner
case, no conclusion can be reached that those
employees crossing the picket lines in the instant case
were abandoning their support of the Union.
Based on the above, it is clear that the Respondent
has not established the existence of objective facts
establishing a reasonable basis for a good-faith doubt
of the Union's majority status as of August 1972,
when it withdrew recognition from the Charging
Party. It is obvious that the claim of such doubt of
the Union's majority status was an afterthought in
response to the charge filed by the Union on August
3, 1972, and merely constituted another effort by the
Respondent to avoid the possibility of entering into
an agreement with the Charging Party. This is clear
from the fact that during the critical negotiating
sessions involved herein and following them up until
August 11, 1972, the Respondent had never made a
claim to the Union that it doubted its majority status
even though the factors upon which it relied to
establish the alleged doubt in this case were well
known to the Respondent during all critical times
herein.
Although the Administrative Law Judge found it
unnecessary to rule on the Respondent's contention
that an impasse was reached at the conclusion of the
February 18, 1972, meeting, we find this contention
lacking in merit. The record evidence shows that
there was considerable movement by the parties at
that bargaining session ; that there was agreement on
items that had been in contention for years; and that
there was even movement in bargaining positions on
the two items that remained open. The evidence
established that at no time in the history of this
bargaining relationship have the parties been so close
to reaching an agreement.
Taking into account all the objective considera-
tions on which the Respondent relies, we find that
they are insufficient to demonstrate that the Respon-
dent had reasonable grounds for believing that the
Union no longer commanded majority employee
support at the time of its refusal to bargain. This,
coupled with the fact that the Respondent made
clear when it refused to bargain that it did not want
to deal further with the Union, i.e., it is not obligated
to continue a "fruitless marathon of bargaining,"
leads us to the conclusion that the Respondent's
asserted doubt of majority lacked sufficient basis to
justify its refusal to bargain. We conclude from
Respondent's conduct in delaying further negotia-
tions by its delay in answering the communications
6 Because the Administrative Law Judge based his finding that the
General Counsel has failed to prove that since on or about February 18,
1972, Respondent failed to and refused " to furnish the Union with the
contract language of items agreed upon, as promised by Respondent" on
credibility, we are reluctant to disturb this finding.
r The Charging Party in its brief has specifically requested that
of Scales to resume bargaining, its admitted state-
ment that an agreement was close at hand, and its
unsupportable position that an impasse was reached,
that the Respondent was not bargaining in good
faith.6
Accordingly, we find that the Union at all times
material herein was, and now is, the exclusive
representative by virtue of Section 9(a) of the Act of
the Respondent's employees in the appropriate unit
described in footnote 1, above, and that the Respon-
dent, by its refusal to bargain with the Union on
August 11, 1972, and thereafter, violated Section
8(a)(5) and (1) of the Act, thereby engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices proscribed by Section 8(a)(5)
and (1) of the Act, we shall order it to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully
refused to bargain with the Union as the exclusive
bargaining representative of the employees in the
appropriate unit described in footnote 1, above, we
shall order it do so, upon request, and, if an
agreement is reached, to embody the agreement in a
signed contract.?
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce with the meaning of the Act.
2. Communication Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act, and at all times
material has been the exclusive certified representa-
tive of unit employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment.
3. By failing or refusing to bargain collectively
concerning rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment
with the certified representative of the unit employ-
ees, Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) of the Act.
Respondent be ordered to give the Charging Party the option to begin
negotiations at the point where they left off at the end of the February 18,
1972, meeting with only two issues outstanding , wages and dues checkoff, or
to start over from the beginning We deem it unnecessary to provide
specifically for such an option in our Order. inasmuch as our Order requires
the Respondent , upon request , to bargain in good faith with the Union
KING RADIO CORPORATION 585
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
King Radio Corporation, Olathe, Kansas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
concerning rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment
with Communication Workers of America, AFL-CIO,
as the exclusive representative of its employees in
the following appropriate unit:
All production and maintenance employees em-
ployed at the 400 North Rogers Road and 139
South Brockway, Olathe, Kansas, plants of King
Radio Corporation, Inc., including plant clericals,
but excluding office clerical employees, account-
ing department employees, research and develop-
ment employees, professional employees, guards,
and supervisors within the meaning of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action found
necessary to effectuate the purposes of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of the employees in the above-de-
scribed appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a written
signed agreement.
(b) Post at its plants at 400 North Rogers Road and
139 South Brockway, Olathe, Kansas, copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director
for Region 17, after being duly signed by the
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
N In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed in as far as it alleges
violations not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively in good faith with Communication
Workers of America, AFL-CIO, as the exclusive
representative of the employees in the appropriate
unit stated below.
All production and maintenance employees
employed at 400 North Rogers Road and
139 South Brockway, Olathe , Kansas, plants
of King Radio Corporation, Inc., including
office clerical employees , but excluding
accounting department employees, research
and development employees , professional
employees , guards, and supervisors within
the meaning of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of their rights under the National Labor
Relations Act.
WE WILL, upon request, recognize and bargain
collectively in good faith with the above-named
Union as the exclusive representative of the
employees in the appropriate unit with respect to
wages, hours, and conditions of employment,
and, if an understanding is reached , we will
embody such understanding in a signed agree-
ment.
KING RADIO
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616-Two Gateway Center, Fourth at
State, Kansas City, Kansas 64101, Telephone
816-374-4518.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
FRANK H. ITKIN, Administrative Law Judge: This case
was tried at Kansas City, Kansas, on March 1, 1973. The
unfair labor practice charge was filed by the Union on
August 3, 1972. The complaint, which issued on December
22, 1972, and was amended on March 1, 1973, alleges that
Respondent Company violated Section 8(a)(1) and (5) of
the National Labor Relations Act by failing and refusing
since about February 18, 1972, to furnish the Union with
certain agreed-upon contract items as promised by
Respondent and, further, by failing and refusing since
about August 11, 1972, to recognize and bargain with the
Union as the duly certified bargaining representative of the
Company's employees in an appropriate unit. Respondent,
in denying the alleged unfair labor practices, claims a
good-faith doubt as to the Union's continued majority
status.'
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
counsel , I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find and
conclude that Respondent Company, a corporation of
Kansas, has been engaged in the manufacture of airplane
radios and related items at its two facilities in Olathe,
Kansas; that in the course and conduct of its business
operations Respondent annually purchases materials and
products in excess of $50,000 from suppliers located
outside of the State of Kansas and annually sells goods and
products in excess of $50,000 to customers located outside
the State of Kansas; and that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The complaint alleges, the answer admits, and I find and
conclude that the Charging Party Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. BACKGROUND; THE PRIOR PROCEEDINGS
As stated, the Company manufactures airplane radios
and related items at its two plants in Olathe, Kansas The
Union began an organizational campaign at the plants
during early March 1966 and requested recognition from
the Company about April 12, 1966; a Board-conducted
representation election was held on June 30, 1966, which
i Alternatively , counsel for Respondent asserts that "a genuine impasse
was reached at the conclusion of the February 18 meeting " (br p 21)
2 The complaint alleges , the answer admits and I find and conclude that
"all production and maintenance employees at the 400 North Rogers Road
and 139 South Brockway, Olathe, Kansas, plants of King Radio Corpora-
tion , Inc , including plant clericals , but excluding the office clerical
employees , accounting department employees, research and development
employees, and professional employees, guards, and supervisors within the
meaning of the Act," constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Sec 9 (b) of the Act, that on
June 30, 1966, a majority of the employees of Respondent in the above unit
in a secret -ballot election designated and selected the Union as their
representative for the purposes of collective bargaining with Respondent,
and that on August 19, 1966, the Union was certified as the exclusive
collective-bargaining representative of the employees in the unit
the Union won by a vote of 182 to 114; and the Union was
certified by the Board as the bargaining representative of
the Company 's production and maintenance employees at
the plants on August 19, 1966.2
Thereafter, the Company was involved in three related
unfair labor practice proceedings . In the first proceeding,
166 NLRB 649, which issued on June 30, 1967, the Board
found that the Company violated Section 8(a)(1) of the Act
by counsel 's coercive interrogation of an employee and by
discriminatorily promulgating a no-solicitation rule. The
Board found that the Company violated Section 8(a)(5)
and (1) of the Act by unilaterally adopting a no-talking
rule and instituting the use of warning slips, canceling
payroll deductions for savings bonds, establishing a
mandatory retirement policy and retiring an employee
under that policy, changing plant clericals from weekly to
biweekly paydays, and delaying bargaining after the
representation election in order to undermine the Union.
The Board also found that the Company violated Section
8(a)(3) and ( 1) of the Act by discharging some four
employees because of their union activities and by
suspending an employee for violating the no-solicitation
rule.3 The Court of Appeals for the Tenth Circuit sustained
the Board's unfair labor practice findings and enforced its
order on July 22, 1968, in 398 F.2d 14.
In another proceeding, 166 NLRB 180, which issued on
June 28, 1967, the Board found that the Company violated
Section 8(a)(1) of the Act by discharging a supervisor and
placing another supervisor on probation because they gave
testimony adverse to the Company in the earlier proceed-
ing and by placing on probation and discharging another
supervisor because she appeared at the Board hearing in
response to a subpena from the General Counsel.4 The
court of appeals also sustained these findings and enforced
the Board's order on July 22, 1968, in 398 F.2d 14.
Negotiations between the Company and the Union
commenced during October 1966. In the third proceeding,
172 NLRB 1051, which issued on July 9, 1968, the Board
found that the Company violated Section 8(a)(5) and (1) of
the Act by conducting bargaining negotiations without a
sincere desire to reach agreement ; by unilaterally institut-
ing wage changes; by contracting out unit work; and by
refusing to supply the Union with relevant information
pertaining to the contracting out of unit work. The Board
found that the Company violated Section 8(a)(1) by
maintaining and discriminatorily enforcing no-talking and
warning notice rules and by threatening unfair labor
i The Board 's order directs the Company to cease and desist from the
unfair labor practices found and from in any other manner interfering with
the employees' Sec 7 rights, to offer reinstatement with backpay to the
unlawfully discharged employees , to rescind the mandatory retirement
policy, to expunge from personnel records all warning notices issued under
its new warning rule, to resume payroll deductions for savings bonds upon
request , to bargain upon request with the Union , and to post the required
notice
4 The Board's order directs the Company to cease and desist from the
unfair labor practices found and from in any other manner interfering with
employees' Sec 7 rights, to offer reinstatement to the discharged supervisors
with backpay. to expunge from personnel records all reference to
production supervisors being placed on probation, and to post the required
notice
KING RADIO CORPORATION
practice strikers with discharge or permanent replacement
if they did not return to work by April 3, 1967 5 The Tenth
Circuit enforced in part the Board's Decision and Order on
September 17, 1969, in 416 F.2d 569. The court stated at
571:
When this case was here in 398 F.2d 14, to enforce
an order of the Board, we sustained the Board's finding
to the effect that the no-talking and warning notice rule
was a discriminatorily inspired violation of Section
8(a)(1) and (5). The no-talking and warning notice rule
involved here is but a continuation of the rule formerly
condemned both by the Board and this court. We again
sustain the Finding and Order of the Board based upon
the condemned practice.
This brings us to the unilateral wage changes in the
bargaining unit found to be a Section'8(a)(5) and (1)
violation. Respondent suggests that a part of the wage
change was required by the federally established
minimum wage and prompted a good faith wage
increase for all bargaining unit employees.
This argument seems plausible on its face. But the
Board thought, not without justification, that the wage
changes instituted as they were during negotiations on
that very subject, were suspect of an 8(a)(5) violation.
And when considered with the fact that the wage
increases were inequitably distributed among the
employees in the bargaining unit without regard to
merit, a clear violation was shown.
The most then that can be said for respondent's
position is that the unilateral wage changes were
instituted after the point of impasse had been reached.
Respondent insists that they were so instituted. The
Board found to the contrary. And we quite agree. The
wage changes were instituted during purported negotia-
tions concerning that very subject. And if respondent
was not bargaining in fact, it was not bargaining in
good faith. And the violation is clearly manifest.
* * *
The Board found that the strike was an unfair labor
practice strike from its inception and has been
prolonged by the unfair labor practices of respondent.
And we sustain that finding as supported by the
evidence.
The Board found respondent violated Section 8(a)(1)
by sending to the striking employees a letter threaten-
ing them with loss of employment and benefits unless
they returned to work by a designated date. Respon-
dent denied the letter was an unfair labor practice
5 The Board found that the employees' strike commencing on March 27,
1967, was caused and prolonged by the Company's unfair labor practices
and by its failure to rectify previous unfair labor practices
The Board's order requires the Company to cease and desist from the
unfair labor practices found, to abrogate the unilaterally established wage
system, to bargain in good faith, to reinstate upon request all employees
who went on strike to their former or substantially equivalent positions, and
587
because the strike was economic in nature. This
contention has been disposed of by our characteriza-
tion of the strike.6
On March 30, 1970, the Supreme Court denied the
Company's petition for a writ of certiorari, 397 U.S. 1007
(1970).
Thereafter, on June 28, 1971, the Board issued an order
in the above proceeding granting a joint motion for
clarification of its previous order. And, on October 7, 1971,
the Board issued an order of clarification, reported at 193
NLRB 614. After reciting the disputed portion of the
earlier order and the positions of the parties, the Board
held:
We find no justification for reading the Order in the
manner now suggested by the Respondent. On the
contrary, the Respondent itself previously recognized
the Order as demanding what the General Counsel
contends it does, for in its brief to the court of appeals
in the instant case the Respondent stated:
The Board's order apparently intends to
require the Company to reinstitute the progres-
sion increases of 5 cents for four consecutive
months for employees who were below the $1.40
an hour rate on February 1, 1967, totally
disregarding the Company's increasing those
employees from $1.25 to $1.40 an hour, at the
same time granting them an additional 10 cents to
$1.50 an hour, after 60 days of employment, and
5 [cent] increases each 90 days thereafter ... .
We agree that this is the intention of the Board's
Order and see no reason to construe it otherwise. The
Respondent was directed forthwith to reinstitute the
wage rate progressions in effect prior to February 1,
1967, thereby paying to its employees all increments
upward from the minimum wage rates (statutory or
otherwise) that they would have received had the wage
progression system not t een unilaterally changed. The
Order did not, as contended by the General Counsel,
either explicitly or implicitly direct the Respondent to
reimburse the employees for any increments they failed
to receive from the time the progression system was
changed unilaterally up to the time the formula for
remedying the unfair labor practice was set forth by the
Board. Instead, the Board's Order, in directing reconsti-
tution of the wage rate progressions forthwith, fixes the
date of Respondent's obligation as of the date of the
Order; it contemplates payment of the increases due
under the reconstituted progression system from the
date of the Order forward, until changed after
bargaining as required by the Act.
The Board's order of clarification directs "the Respondent
to reconstitute and restore its wage rate progression in
existence immediately prior to the changes adopted on
to post the required notice
6 The Court noted that the "Board found that Respondent contracted
bargaining unit work to a third party from April to June 1967, without
notice to or bargaining with the Union concerning the work, in violation of
Section 8(a)(5) and (1) " The Court declined to enforce the Board's
order in this and related aspects
*
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 1, 1967, such restoration not to be restricted,
limited or diminished by that provision of the [earlier]
order directing Respondent to retain its increased mini-
mum wage rates." 7
III. THE EVIDENCE PERTAINING TO THE COMPANY'S
WITHDRAWAL OF RECOGNITION FROM THE UNION
William L. Brown testified that he acted as negotiator on
behalf of the Union with the Company from about August
1971 to February 1972. Brown explained that after he
became the Union's negotiator he went to Company
Personnel Manager Richard Johnson "to introduce [him-
self ] and to assume the responsibilities of bargaining."
According to Brown, Johnson stated that William G.
Haynes, Respondent's counsel, "was handling the bargain-
ing." Brown testified that he later telephoned Haynes in an
attempt "to set up an appointment ... so we could
continue with the bargaining" and, on November 3, 1971,
sent Haynes a letter stating in part:
This is a request for future bargaining on contract
between King Radio Corporation and the Communica-
tions Workers of America. I would like to establish a
date that is to our mutual agreement in getting back to
the bargaining table.
I am free for a meeting on the 18th or 19th of
November, 1971. If these dates are agreeable with you
please pick the place and we will be there.
Brown, as be testified, received no response to his letter
and telephoned Haynes approximately three times in a
further attempt to "try to establish an appointment."
Consequently, on November 19, 1971, Brown sent a letter
to Haynes stating in part:
Once again I am making a request for future bargain-
ing on a contract between King Corporation and the
Communications Workers of America. I would like to
establish a date that we can get back to the bargaining
table.
In a prior request I recommended the 18th or 19th of
November, 1971 which was ignored. Now I would
recommend that you pick a date, place and time for
such bargaining. I am available for daily bargaining
around the clock (24 hours a day) until we can reach an
agreement.
Quite frankly, I am very disappointed in the fact that
you did not return my phone call or answer my letter
dated November 3, 1971. Being new as a Staff
Representative (no professional) and given a free hand
to negotiate an agreement, I would appreciate any and
all help you might offer me since I have only held this
job two months next week.
On December 3, 1971, Haynes wrote Brown in part as
follows:
r According to counsel, backpay has not been effected in the above
proceeding and, because of the large number of employees involved. it may
amount to $25,000 or upwards Counsel for General Counsel asserts in his
posthearing bnef (p 2). " . . subject to correction, it now appears that
backpay totaling $25,112.33 is owed to 821 employees and that the interest
I want to apologize for the delay in responding to
your recent letter suggesting dates to resume negotia-
tions with King Radio Corporation, Inc.
We understood during our last meeting, on Friday,
September 24, 1971, with Mr. Hubbard, that he would
review the Company's last proposal discussed during
that meeting and notify me as to whether or not it was
acceptable.
To date, the Company has had no response to
proposals submitted and discussed during the Septem-
ber 24 session and the sessions immediately prior
thereto.
The Company's negotiating team has been involved
in other matters and will not be available to meet again
until either December 16 or December 20, 1971. Prior
to meeting, however, we would like to receive from you
in writing your understanding of agreements previously
agreed upon as we are under the impression that all
items have been agreed upon other than wages. The
Company proposed a wage adjustment during the last
session on September 24, and Mr. Hubbard indicated
he preferred not to respond to the proposal until such
time as the Presidential Freeze was lifted. Now that the
Freeze is lifted, it would seem appropriate for the
Union to respond to the Company's last wage proposal.
And, on December 14, 1971, Brown wrote Haynes in part
as follows:
As suggested in your letter of December 3, 1971 to me,
we are agreeable to meet on Monday, December 20,
1971. Please advise place and time.
The reason for the delay is that I need to include the
changes where possible which you requested. Changes
should be in your office this week.
Brown testified that he met with Haynes at the Holiday
Inn on December 20, 1971. Also present were Virginia
Jamison and Wilma Correl, employees of Respondent
serving on the Union's negotiating committee, and Compa-
ny Vice President William Holiday and Personnel Manag-
er Richard Johnson. The meeting started about 9 a.m. and
ended at noon. Brown recalled that prior to this meeting he
had prepared a "complete contract proposal" and mailed
copies of the proposal to Haynes in Topeka and to the
Company in Olathe. At the meeting, according to Brown,
the contract proposal was discussed and there was
agreement on items contained in the proposal. Brown
testified that "Mr. Haynes wanted to look over [the
proposals] . . . he wanted certain corrections made in the
proposals that [Brown] had submitted to [Haynes] and
there was no date agreed upon for a future meeting." At no
time during this meeting, according to Brown, did Haynes
thereon to date totals about $4,935 98 How many of the 821 employees
owed backpay are presently in Respondent 's employment is unknown."
And, on the record before me. it is uncontroverted that Respondent has
complied with the Board 's Orders in all other respects.
KING RADIO CORPORATION 589
or any company representative express a doubt over the
Union's continued majority status as bargaining represent-
ative.8
Brown testified that about I week later he "had redrafted
the proposed changes [Haynes] had made and [he]
submitted [them] to [Haynes] in Topeka"; that another
bargaining session was scheduled for February 15, 1972;
and that Haynes called Brown to change the scheduled
meeting date to February 18, 1972. According to Brown,
Haynes did not question the Union's continued majority
status pending the second session .9 Brown wrote Haynes
on January If, 1972, in part as follows:
Bill, I believe that I have incorporated most all of the
changes that you required in our last bargaining session
on December 22, [sic] 1971. 1 feel that with the
understanding in which both sides approached our last
bargaining session , we are only apart on three Arti-
cles-Holidays, Wages and Dues Deduction If you
can see your way clear for agreement on these three
Articles we have an Agreement.
As you will know after reading this new contract, I
have removed stumbling blocks that have been around
for years. I have also renumbered the Articles to
coincide with your proposals which should help.
I would like to request that, if possible, we sign as
tentatively agreed to any or all Articles so that we will
not have to rehash or keep going over the same things. I
will further state that in the event we cannot reach
agreement on the three Articles mentioned above at
any time in the future before complete agreement is
reached I will tear up or destroy all Articles that have
been tentatively agreed to and start over on bargaining
if you so desire. We need a date and place for our next
bargaining session . I will leave this up to you if some
time soon.
The February 18 meeting was held at the Company's
premises. Present for the Union were Brown, Jamison, and
Correl. Present for the Company were Haynes, Johnson,
and Holiday. According to Brown, the parties agreed upon
the following contract items:
Article 11-Management's Rights
Article III-Hours of Work
Article IV-Seniority And Loss Of
Article V-Layoffs And Recalls
Article VII-Leaves Of Absence
Article VIII-Vacations
Article IX-Holidays
Article XV-New Classifications
Article XVII-Discipline And Discharge
" Brown testified on cross-examination that "on December 20 the
Company and the Union 's negotiating team went through each and
everyone of Ethe l articles contained in the package which he proposed and
discussed it "
9 On cross-examination , Brown acknowledged that he assumed responsi-
bility for redrafting the provisions which had been tentatively agreed upon
at the earlier December 20 meeting and for mailing them to Haynes Brown
acknowledged that previously he had included in his draft items which in
fact had not been agreed upon although he attempted to reduce to writing
"what [he] understood the parties had tentatively agreed to previously"
Brown also acknowledged that the Company submitted to the Union at the
subsequent February 18 meeting a "complete counter-proposal "
Article XVIII-No Strike-No Lockout
Article XX-Arbitration
Article XXI-Job Vacancies And Transfers
Article XXI I I-Non- Discrimination
Article XXVI-Sub-Contracting
Article XXXIi I-Duration And Termination
Brown explained that the above articles had not been
agreed upon at the various bargaining sessions conducted
prior to the February 18 meeting. Brown testified that
items remaining open at the end of the February 18
meeting principally pertained to checkoff and wages.
According to Brown, the Union had requested a 15-percent
wage increase for all hourly rated employees for the first
year of the contract; the Company would grant no rate or
pay increase for the first year of the contract and would
grant a 5-percent increase for the second and third years of
the contract. Brown recalled that the item pertaining to a
5-percent increase for the second and thirds years of the
contract was also agreed upon at the February 18
meeting.iO Further, Brown testified that at the February 18
meeting the Union had modified its requested wage
increase during the first year from 15 to 10 percent;
Haynes, however, declined to offer any increase during the
first year. As for checkoff, Haynes, according to Brown's
testimony, would agree to a checkoff system "provided the
Union paid ... 15 percent for each member's dues
collected." Brown responded that he "didn't have authority
to do this." Haynes "offered [Brown] his phone" to get the
authority. Brown, after speaking on the telephone with his
superior, made "a counter offer [of] two or three cents a
card for processing and' this offer was rejected by Mr.
Haynes." According to Brown, this was the first time the
Union had offered Haynes or Respondent any money for
checkoff purposes. I i
At the close of the February 18 meeting, Brown
assertedly apprised Haynes that Haynes "would be dealing
with [Union Representative] Lovett in the future ... .
[Brown] had returned to the Western Electric Company,
[his] permanent job, and ... [he] would no longer be
representing CWA in this capacity." Haynes, according to
Brown, "said he would withdraw his offer of the holiday
[see fn. 11, supra ] since [Brown] didn't accept [Haynes']
proposal of the check-off system and the wage, the total
package ..." Further, Brown claimed that "Mr. Haynes
wanted minor changes made in the contracts and he agreed
to Mr. Johnson's suggestion to retype and submit the entire
contract to the [Union's] district office in Kansas City for
proofreading with no intent of change in any of these
items." Brown testified that at no time during the meeting
10 At the earlier bargaining session held on December 20, I971,
according to Brown , the Company had "asked [ Brown ] to agree to a wage
increase for the hourly rated employees it would have no effect on
future bargaining and [Brown ] did agree to it . this wage increase to be
effective the 3rd of January 1972 " Brown testified that at the February 18
meeting, "based upon this. Mr Haynes felt that there was no wage increase
due the first year of the new contract "
i i Brown also testified that at this meeting he had requested a half day
holiday for Christmas evening in addition to the half day which the
employees had, Haynes ' "counter proposal was he would give [the Union ] a
full holiday which was Veteran 's Day. which the committee accepted"
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did Haynes or any company representative state that they
doubted the Union's majority status.12
Thereafter, Brown submitted a memorandum to Union
Representative Lovett, dated February 18, 1972, stating:
Subject: Bargaining-King Radio Corporation
Final offer made by the Company as of this date was as
follows:
3 year contract.
no raise the first year
5% 1st anniversary
5% 2nd
15% to activate dues deduction to be paid to the
Company by the Union.
Veterans Day
Final offer made by the Union:
10% 1st year
5% 2nd year
5% 3rd year
Dues deduction and the union will pay .02 per
card per month for processing.
Veterans Day
We are apart on three (3) items-wages, dues deduc-
tion and Veterans Day withdrawn by the company. All
other Articles acceptable.
Paul F. Scales, a staff representative for the Union,
testified that Brown returned to his position with Western
Electric and, about March 1972, Lovett designated Scales
as the Union's negotiator with King Radio. Scales testified
that he telephoned Haynes' office during the early part of
April 1972, "identified [himself ] and informed the person
[who ] answered the phone that [he ] desired to talk to Mr.
Haynes." Haynes did not return the call. Scales, as he
testified, called again during early May and Haynes did
not return the call. Scales testified that on May 22 he spoke
on the telephone with Haynes. By letter dated May 22,
1972, Scales apprised Haynes as follows:
Regarding our telephone conversation Monday, May
22, 1972 concerning the status of contract bargaining
between King Radio Corporation and Communica-
tions Workers of America, I would like to resume talks
as soon as possible.
As we discussed in our telephone conversation, yours
and my calendar were practically full from now until
June 19, 1972. Therefore, I suggest that we try to
arrange for meetings as soon as possible after June 20,
1972. I will keep my calendar as open as possible on the
assumption we will resume talks soon after June 20,
1972.
I will be waiting for a projected date from you.
12 On cross-examination, Brown agreed that Haynes returned to the
meeting room shortly after the close of session and said
Scales testified that he received no response to his letter
and, on July 17, 1972, wrote Haynes:
As of this date I have not received any response to my
letter to you dated May 22, 1972 requesting that we
resume contract bargaining between the King Radio
Corporation and the Communications Workers of
America.
I will be available July 25, 27, 28, August 1 and 3, 1972.
Perhaps your schedule will permit us to meet on some
of the above suggested dates.
I do not object to meeting at the King Radio offices in
Olathe, Kansas if this is your preference.
Scales received no response to his July 17 letter and again
wrote Haynes on July 27, 1972, requesting a response to his
earlier communications.
On August 3, 1972, the Union filed an unfair labor
practice charge against Respondent, claiming a violation of
Section 8(a)(1) and (5) of the Act. On August 11, 1972,
Haynes wrote Scales the following letter:
I am sorry for the delay in responding to your letter
dated July 27, 1972, as I have been away from the
office for the past two weeks.
As you may know, Company representatives have
met with representatives of the Union on approximate-
ly five different occasions for a series of meetings
ranging from five to fifteen meetings during the past
five (5) years, during which time written proposals and
counter-proposals have been exchanged in an effort to
reach an agreement on wages, hours and other
conditions of employment. The last series of meetings
were conducted through November and December of
1971 and January 1972. Although these meetings
resulted in agreement on a number of subjects,
disagreement remained or others and this disagreement
was never resolved. The Company has not changed its
position on those subjects which were in disagreement
and it has never been advised that the Union has
changed its position. The Company does not believe
that it is obligated to continue a "fruitless marathon of
bargaining" indefinitely, and thus believes it has met its
bargaining obligation.
In the interim, the Company has experienced almost
100 percent turnover in bargaining unit employees and
there is less than 20 percent of the employees employed
with the Company that were employed in 1966 when
the N.L.R.B. election was conducted. Further, the
number of employees in the bargaining unit has more
than doubled.
Moreover, the Union representation for bargaining
unit employees has been nonexistent except to request
a return to the bargaining table on an intermittent,
almost annual basis, to rediscuss, with no change in
position, subjects which had been previously discussed,
and continue to be in disagreement.
the Company wishes to at this time place you on notice that since
no agreement has been reached in full, it desires to withdraw everything
tentatively agreed to
KING RADIO CORPORATION 591
Accordingly, the Company believes it has met its
bargaining obligation. The majority status of the Union
has been affected by the large turnover of employees as
well as the doubling of the work force within the past
year.
Scales replied on August 29, 1972, to Haynes' letter, stating
in part:
It is my understanding that the last bargaining sessions
between you and Mr. Bill Brown had been very fruitful,
in fact much progress was made. I understand the
Company and the Union were apart only on first year
wages and the cost of payroll deduction of union dues.
I also understand from Mr. Brown that at the last
bargaining session, which was held February 18, 1972,
you had agreed to prepare a contract on all items and
send to my office for initialing on all items but the
above mentioned items, wages and payroll deduction
of union dues. As of this date, of course, we have not
received the contract from you.
The Communications Workers of America, AFL-CIO
still is the certified representative of all conventional
production and maintenance employees of King Radio
Corporation , certified by the National Labor Relations
Board . Consequently , you as the bargaining agent for
the company and I, as the bargaining representative for
the union have a responsibility to continue bargaining
until such time as a true stalemate has been reached. I
do not feel that the point has been reached . I base my
thinking on the gains made at the last session with Mr.
Brown . I feel we are close to a settlement and should
again meet at the bargaining table in hopes of
consumating an Agreement.
May I hear from you as to a date to continue
bargaining.
Scales assertedly received no response to the above letter.
Virginia Jamison, an employee of King Radio for 8
years, testified that she attended the February 18 session as
a member of the Union's bargaining committee. Jamison
claimed that at the end of the February 18 session Haynes
said that he was going to have the items that had been
agreed upon retyped and he would send a copy thereof to
the bargaining committee.
Jack Lovett testified that he is the Union's director for
Missouri, Kansas, Arkansas, and Illinois. Lovett claimed
that prior to February 18, 1972, there was never an
occasion when "everything but two items" had been agreed
upon. Lovett explained that before February 18 there was
never agreement on any year's wages and the Union had
not offered the Company any money for payment for
checkoff.
Richard Johnson, the Company's personnel manager,
identified Respondent's Exhibit 42 as the proposed
agreement submitted by the Company to the Union on
December 20, 1971. Johnson testified that on December 20
there "was a discussion on a contract package that Brown
proposed" and there was "also discussion of the contract
package which Respondent proposed." At the conclusion
of that meeting, according to Johnson, "Mr. Brown was to
summarize all of the discussions on articles and contract
proposals. [Brown] was . going to prepare a complete
package, a complete proposal, reflecting those things
agreed upon and where there were articles and clauses not
agreed upon, he was to mail it to" the Company.
According to Johnson , Brown "indicated [that] he would
take these [proposals] back and review them as to where
[the parties) stood exactly, and then submit a complete
package."
Johnson identified Respondent's Exhibit 8 as the
proposed contract which was mailed to the Company by
Brown on February 4, 1972. This proposal was discussed at
the February 18 session . Johnson recalled that the
"Preamble" was acceptable except for some "minor
change"; article I, Recognition, "was agreed to exactly as
Mr. Brown had proposed"; article II, Management's
Rights, "was agreed to as submitted by the Company";
article III, Hours of Work, "was agreed to as submitted by
Mr. Brown"; article IV, Seniority, "was agreed to by the
parties as submitted by Mr. Brown"; article V, Layoffs
And Recalls, "was agreed to by the parties"; 13 article VI,
Overtime, "was agreed to as submitted" with some change;
article V11, Leaves of Absence, was agreed to;14 article
VIII, Vacations, "was agreed to as proposed by Mr.
Brown"; 15 article IX, Holiday, "was agreed to"; article X,
Jury Duty was agreed upon as proposed by Brown; article
XI, General Provisions, was agreed upon as submitted by
Brown ; article XII, Plant Visitation, was agreed upon as
submitted by Brown; article XIII, Funeral Leave, was
agreed upon as submitted by Brown; article XIV, Rest
Periods, was agreed upon as submitted previously by the
Company; article XV, New Classifications, "was approved
as submitted by Mr. Brown" with "one minor change";
article XVI, Mandatory Retirement , was "agreed to as
submitted by Mr. Brown"; article XVII, Discipline And
Discharge, was "agreed to as submitted by Mr. Brown";
article XVIII, No-Strike-No-Lockout, was "agreed to as
submitted by Mr. Brown"; article XIX, Grievances, was
"agreed to as submitted by Mr. Brown"; article XX,
Arbitration, was agreed upon as submitted by the
Company previously; article XXI, Job Vacancies and
Transfers, was "agreed to as proposed by the Company"
previously and as modified; article XXII, Call-In Pay, was
"agreed to as submitted by Mr. Brown"; article XXIII,
Non-Discrimination, was "agreed to as submitted by Mr.
Brown"; article XXIV, Rules , Benefits And Privileges, was
withdrawn by the Union; article XXV, Legality Of
Contract, was "agreed to as submitted by Mr. Brown";
article XXVII, Sub-Contracting, was "agreed to with one
word change . . . as submitted by Mr. Brown"; and article
XXVIII, Payroll Deductions, was rejected by the Company
as proposed by Brown.
Johnson testified that the Union proposed at the
February 18 session "a 15 percent wage increase now, two
13 Johnson explained that "there was some give and take and agreement paragraph 4, and added it to our proposal and then it was agreed to"
reached on an overtime clause as part of this 11 15 Johnson explained that "we were apart on Veteran 's day and we
14 Johnson explained that "we agreed to take the Union proposal , agreed
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage reopeners which visualized a three-year contract .. .
15 percent the first year and one additional holiday and
dues check off." According to Johnson. the Company
countered by proposing "current wages the first year of a
three-year contract, a 5 percent increase on the second
anniversary of the contract." Later during this session,
according to Johnson, the Union proposed a 10-percent
wage increase the first year, a 5-percent wage increase on
the first anniversary date of the contract, a 5-percent
increase on the second anniversary date, an additional one
half day holiday and dues checkoff. Johnson testified that
the Company "had a caucus" and made a counterproposal,
stating : "This is our final offer." The Company proposed:
... zero percent increase the first year, . . . a 5
percent increase the second year, a 5 percent increase
the third year an additional paid holiday the third year,
and no dues deduction.
Johnson recalled that Haynes then said:
"It seems we were so close together and so close to
reaching a contract," and suggested [Brown] call his
office to see if he could agree to our last proposal, and
Mr. Brown went to [Johnson's] office . . . and called
his office ... .
Brown later returned to the negotiation room and
proposed:
A 10 percent increase the first year, 2 cents per card per
dues checkoff, 5 percent increase the second year and a
5 percent increase the third year, plus an additional
holiday.
The Company. in response , proposed:
... no increase the first year, a 5 percent [ increase]
the second year, 5 percent the third year, plus an
additional holiday, and a 15 percent charge for dues
deduction.
Brown assertedly "rejected that proposal" and stated: "he
was sorry we could not get together and he was returning
to Western Electric . . . he enjoyed meeting and working
with us, but we couldn't reach an agreement." 16 According
to Johnson, Haynes then said to Brown: ". . . since we
couldn't get together the Company was withdrawing all
offers and proposals and specifically mentioned the dues
checkoff and Mr. Brown said yes, he understood, and he
was doing the same thing on behalf of the Union."
Johnson testified that "to the best of [his] knowledge and
belief, after that meeting, the Company heard from the
Union more than four months later," in late June 1972.
When asked by counsel for Respondent: "At the conclu-
sion of the meeting was a statement made by Mr. Haynes
that he would reduce to writing a contract as agreed upon
16 Brown had testified that at the February 18 meeting, his "last proposal
was to live within the guidelines of the Administration on the wage-price
freeze" which would have been 5 5 percent He explained-
I was hanging on the 10 percent [proposal l knowing I would have to
live within the guidelines of the wage-price board and we discussed
and submit it to the Union," Johnson replied: "I did not
hear that statement made." Johnson explained that the
February 18 meeting "was adjourned with no future
meeting scheduled or any provisions made for scheduling
future meetings."
In addition, Johnson testified with respect to the
Company's turnover in personnel for the years 1967
through 1972. Johnson stated: "Our turnover rate has
always been extremely high in hourly classifications"
which includes unit personnel. Johnson identified Respon-
dent's Exhibit 44 which shows "the number of people
employed and the number of people terminated in the
hourly classifications which is the bargaining unit" as
follows:
Hourly Employees
Jan. 1967 to Dec. 31, 1972
King Radio Corp.
Employed Terminated
1967 593* 371
1968 702 554
1969 580 504
1970 208 353
1971 558 453
1972 1,573 1,188
4,214 3,423
*Does not include Jan. 1967.
It was stipulated by the parties that there were 343 eligible
voters in the unit during the June 1966 election and, as
noted, there were 182 votes cast for the Union and 114
against it with 3 void ballots and 26 challenged ballots.
Johnson recalled that beginning in February 1968 the
Company began preparing weekly reports on the number
of employees in each classification. Johnson identified
Respondent's Exhibit 46, which purportedly indicates, inter
alra, that "on August 9, 1972 [the Company] had 876
hourly employees" who were "employed within the
bargaining unit."
Johnson noted that the strike referred to above started
on March 27, 1967, and "most of the employees who were
on strike and applied for reinstatement returned" on "June
21, 1972." Johnson identified Respondent's Exhibit 46
which lists 39 persons who had been employed by the
Company prior to the strike and returned to work about
June 21, June 28, and July 17, 1972. Johnson also identified
Respondent's Exhibit 47 as a list of 19 employees who
resigned during the strike. Johnson also identified Respon-
dent's Exhibit 48 as a list of 34 employees who returned to
work during the strike. And, Johnson identified Respon-
dent's Exhibit 49 as a list of 24 employees who returned
this, touched on it, with Mr Haynes . I Just mentioned it to him
I said I would he bound to the 5.5 percent . [Haynesl told me
there would be no incrca ,e the first year of the contract
Johnson testified that he "did not hear such a statement" made at the
February 18 session
KING RADIO CORPORATION
from the strike and are presently employed by the
Company, at least as of August 11, 1972.17 Johnson
testified that on February 22, 1973, there were in fact over
1,000 employees employed in the bargaining unit . Johnson
testified that the Company's questioning the majority
status of the Union "was based upon the turnover of
personnel . . . the increase of the work complement in the
bargaining unit . . . plus the fact we had observed or seen
or heard of absolutely no union activity in the plant."
Johnson claimed that "annually since 1967" the Company
has not "been notified as to local representation within the
plant," however, the Company has "recently been notified
of a change in local representation in the plant ." Johnson
testified that "since March 1967 [he could ] recall one visit
by the Local Union President and that was in 1971
"18
The parties, according to Johnson, had bargaining
sessions on October 9, October 22, November 19, Novem-
ber 20, December 5, December 6, December 10, December
23, December 30, 1968; January 9, May 14, December 30,
1969; January 27, February 9, February 10, February 11,
February 12, 1970; August 19, August 24, August 27,
September 24, December 20, 1971; and February 18, 1972.
There were also bargaining sessions between certification
and October 9, 1968. (See sec. II, supra. ) On cross-
examination , Johnson acknowledged that the February 18,
1972, session "was the very first time throughout the
history of bargaining that second and third year wages
were agreed upon"; "that is first time the Union ever
agreed to compensate the Company for dues collection";
and the items open were the "first year of wages .. .
wages, holidays and dues collections. . .
William Holiday, the Company's vice president, testified
that he attended the December 20, 1971, and February 18,
1972, sessions. When asked: "Was there anything said by
Mr. Brown at the February 18 meeting related to the 5-1/2
percent Wage Board guide line?" he responded : "To the
best of my recollection, there was not." When asked: "Was
there anything said by Mr. Brown at that meeting relating
to the Company reducing to writing all matters which had
been agreed upon?" he replied: "I don't recall anything
like that"-he "heard nothing like that said . .. .
Holiday claimed that he did not hear Haynes state at the
close of the February 18 session "that he would make a
draft of all matters that had been agreed to and send it to
the Union." On cross-examination, Holiday recalled that
at "the beginning of the meeting we discussed drafts and
who was going to type drafts." Holiday testified: ". . . I
don't recall that anybody indicated at the conclusion of the
meeting there was going to be any drafts typed up,
anything further." Holiday also believed that there was a
discussion on February 18 during which the Union "said
10 percent or 15 percent [ increase ] or whatever the law will
allow."
The testimony of the witnesses summarized above is in
large part mutually corroborative and substantiated by
correspondence and related documents . However , insofar
as the testimony stated above of Brown , Scales, Jamison,
and Lovett conflicts with the testimony of Johnson and
593
Holiday, I am persuaded that the testimony of Johnson
and Holiday more correctly and accurately reflects the
transactions involved . In this respect, I note that the above
testimony of Johnson and Holiday was in part mutually
corroborative , substantiated in large part by General
Counsel 's witnesses and, further , substantiated by the
various correspondence and related documents.
IV. DISCUSSION
The legal principles applicable to this case were recently
restated by the Board in Taft Broadcasting, WDAF-TV,
AM-FM, 201 NLRB 801, 802 , as follows:
The legal principles relating to withdrawal of
recognition of a bargaining representative are well
settled . Absent special circumstances , a union enjoys
an irrebuttable presumption of majority status for I
year after certification . Thereafter, the presumption
continues , but becomes rebuttable upon a sufficient
showing to cast serious doubt on the union 's continued
majority status . At that point , the burden shifts to the
General Counsel to prove that , on the critical date, the
union in fact represented a majority of the employees.
In Taft Broadcasting, as here, counsel for General Counsel
and Charging Party also contended that the issue of the
union 's majority status could not be raised because of the
employer's unremedied unfair labor practices . The Board,
in agreement with the Administrative Law Judge , stated at
801:
In refusing to rely solely on a single unremedied
unfair labor practice as a basis for finding the
Respondent 's conduct violative of the Act, the Admin-
istrative Law Judge noted that the Board 's Order was
extremely narrow in scope . . . and would not be apt to
have detrimental or lasting effects upon employees in
the unit . We find significant , as did the Administrative
Law Judge , that no independent violations of Section
8(a)(1) of the Act or any other violations of the Act are
involved herein , that 28 months had elapsed between
the Respondent 's unilateral action and the withdrawal
of recognition , and that many months of good-faith
bargaining took place between the parties during that
period.
The Board, in disagreement with the Administrative Law
Judge, concluded in Taft that the respondent employer had
sustained its burden of showing sufficient objective facts to
support its alleged good -faith doubt when it withdrew
recognition . Thus, as the Board noted, the Administrative
Law Judge discounted factors relied upon by the respon-
dent to rebut the presumption that the union continued to
enjoy majority status such as, for example , "employee
expression of dissatisfaction ," " inactivity of the union at
the station ," "employee turnover," and an "employee
poll." The Board held at 803:
While it is clear . . . that each of the factors relied
17 Johnson explained that 2 of the 24 were first hired after the election
18 Johnson acknowledged that during the strike employees carried picket
signs at the plants
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on by the Respondent standing alone may have
weaknesses as a basis for supporting a good-faith doubt
of the Union's majority status, we note that the
Respondent does not rely on any one reason alone, but
rather on all as a whole . . . . The factors relied on,
particularly the employee poll which showed that
sentiment regarding the Union was evenly divided,
weakened the presumption that on the critical date the
Union in fact represented a majority of the employees.
Significantly, the Respondent . . . engaged in no
independent unfair labor practices, and was dealing
with a union which had been certified more than 20
years previously, and had never negotiated a collective-
bargaining contract with the Respondent. The record
supports the finding that the Respondent had been in
continuous good-faith bargaining with the Union since
1966 to negotiate a contract. At no time was the
Union's majority affirmatively asserted by the General
Counsel, and in fact from an evaluation of the entire
record such majority status would appear to be in
serious doubt.
Accordingly, the Board held in Taft that respondent
employer "had sufficient objective grounds for believing
that a majority of the employees no longer desired union
representation" and "since the General Counsel failed to
come forward with evidence that . . . the Union in fact did
represent a majority of employees in the unit .. ," the
complaint was dismissed as without merit.
Applying these principles here, I find and conclude that
Respondent is not barred from questioning the Charging
Party Union's majority status because of unremedied
unfair labor practices. It is undisputed that Respondent
fully complied with the Board's two 1967 Orders after
court enforcement (see sec. II, supra ). And, it is also
undisputed that Respondent similarly posted the notice
required by the Board's 1968 Order and thereafter met with
the Union for the purposes of negotiating a collective-
bargaining agreement on some 20 or more occasions
during 1968, 1969, 1970, 1971, and 1972. The only subject
remaining unresolved in the Board's third unfair labor
practice order is computation of backpay and, in view of
the joint motion of the parties for clarification of the
Board's Order and the Board's Order of clarification which
issued on October 7, 1971, I do not regard the alleged
backpay obligation as unremedied unfair labor practices
sufficient to bar the Employer from asserting a good-faith
doubt of the Union's continued majority status. Some 5
years have elapsed since Respondent committed unfair
labor practices, Respondent has posted the required
notices and complied in other respects; many months of
bargaining have since taken place; and no independent
violations have been alleged and proven.19 Accordingly, I
reject this contention.
The question remains, has Respondent made "a suffi-
cient showing to cast serious doubt on the Union's
continued majority status." Taft Broadcasting, supra. I find
and conclude that Respondent, at the time it withdrew
recognition during August 1972, had sufficient objective
grounds for believing that a majority of the employees no
longer desired union representation. Thus, the number of
employees in the bargaining unit on June 30, 1966, the date
of the election, was 343. In 1967, 593 hourly employees
were employed and 371 were terminated. In 1972, 1,573
hourly employees were employed and 1,188 were terminat-
ed. The total employees employed from 1967 through 1972
was 4,214 and the total terminated was 3,423. Moreover,
the total number of employees in the bargaining unit was
508 during October 1971, 823 during March 1972, 876
during August 1972, 937 during September 1972, and
about 1,054 during February 1973. In addition, 34 of the
343 employees in the unit at the time of the election
returned to work during the strike; 19 of the 343 resigned
during the strike; 39 of the 343 returned to work after the
strike; and there were only 22 employees employed in the
bargaining unit who were employed by Respondent on the
date of the election.
In sum , the evidence of record establishes that from the
date of the election to August 1972, when recognition was
withdrawn, the size of the unit increased from 343 to 876;
there was a turnover of some 4,000 employees; and only 22
of the employees who were employed on the date of the
election remained employed during August 1972. And
these facts must be considered in the context of an
Employer who, as found herein, has engaged in no
subsequent unfair practices and has been engaged in good-
faith bargaining with the Union for some 5 years to
negotiate a contract.
Counsel for General Counsel, quoting from Emerson
Manufacturing Company, 200 NLRB No. 33 (1972 ), argues
that "the Board has consistently held . . . that employee
turnover is not alone enough to provide a reasonable basis
for concluding that a union has lost its majority status
.. .." 20 However, as the Board held in Taft, factors such
as an "extremely high" employee turnover may with other
factors "cast serious doubt on the Union's continued
bargaining role ...." And, as the Seventh Circuit stated
in N. L. R. B. v. John S. Swift Company, Inc., 302 F.2d 342,
345 (C.A. 7, 1962):
Of itself such turnover is no evidence of loss of majority
status by the Union . . . . Unlike the instant case
where only a turnover of employees is shown to have
existed, the Board, in Stoner [Rubber Company, Inc.,
123 NLRB 1440] was speaking in the context of a
situation where the employer had a reasonable basis for
good faith belief that the union no longer represented a
majority on the crucial date ... .
The court, in discussing the various objective factors
present in Stoner, noted, inter aha, that "it was not
unreasonable to assume that the 18 early returning strikers
and 18 replacements, all of whom were crossing the picket
lines, were not adherents of the Union . . . ... Of course,
each case must rest on its own facts; however, I am
19 And, as discussed below, I do not find that Respondent further
violated Sec 8(a)(1) and (5) of the Act by refusing to furnish the Union with
certain agreed-upon contract items, as alleged
20 In Emerson, the Administrative Law Judge noted that "Respondent
has not shown anything unusual about the Respondent's hiring practices or
the presence of any other special circumstances that would serve to negate
or rebut the normal presumption" that "new employees will be presumed to
support a union in the same ratio as those whom they replaced "
KING RADIO CORPORATION
persuaded that the instant case is more analogous to Taft
and Stoner than to Ernerson. 21
Counsel for Charging Party Union argues, inter alia, that
"Respondent had never made a claim to the Union that it
doubted its majority status even though the factors upon
which it relied to establish the alleged doubt in this case
were well known to the Respondent dunng all critical
times herein . . ." (br., p. 13). However, as found above,
turnover of the unit employees substantially increased
during 1972; the size of the unit substantially expanded
between March 1972 and February 1973; and "most of the
employees who were on strike and applied for reinstate-
ment returned" during the spring or summer of 1972.
Under all the circumstances, I do not regard Respondent's
failure to assert earlier a doubt of the Union's majority
status as controlling here.
Accordingly, I find and conclude that, at the time it
withdrew recognition, Respondent had sufficient grounds
for believing that a majority of unit employees no longer
wanted union representation. General Counsel has not
come forward with any evidence that the Union did
represent a majority of employees. Therefore, I find and
conclude that Respondent did not violate Section 8(a)(1)
and (5) of the Act as alleged.
Further, I find and conclude that General Counsel has
failed to prove that since about February 18, 1972,
Respondent failed and refused "to furnish the Union with
21 Counsel for Respondent also cites the Union's local inaction and the
intervals between bargaining sessions over the years I do not regard these
factors as pertinent here in view or the pattern of resumption of bargaining
with CWA
During the hearing, I granted Charging Party Union's petition to revoke
subpoena duces iecum issued by Respondent directing the production of
informational records showing , inter alia, names of employees of King
Radio who were members in good standing in CWA during 1970, 1971, and
1972. the payment of union dues by the employees during these years, the
attendance of union meetings dunng these years, the minutes of union
meetings, and cards and other documents signed by employees for
membership in the Union. Since Respondent did not have this information
on or before its withdrawal of recognition (August 11, 1972). this data does
not support its claim of a good-faith doubt on the critical date Moreover, as
the court stated in Terreli Machine Co v N L R B. 427 F 2d 1088. 1090
(C.A 4, 1970)-
A showing that less than a majority of the employees in the
595
the contract language of items agreed upon, as promised
by Respondent." I do not credit the testimony of Brown
and Jamison in this respect. I note that at the close of
February 18 meeting, as Brown admitted, Haynes told
Brown that there had to be an agreement on the total
package and "asked [Brown] if he understood [Haynes]
was withdrawing his package and [Brown] said yes, I
understand . . .."Y2 Under the circumstances, I am not
persuaded that Haynes or his people also promised to
furnish the Union with contract language of items agreed
upon.23
CONCLUSIONS OF LAW
1. Respondent King Radio Corporation is, and at all
times material has been, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Charging Party Communications Workers of Ameri-
ca, AFL-CIO. is a labor organization within the meaning
of Section 2(5) of the Act.
3. The General Counsel has not shown by a preponder-
ance of the evidence that Respondent violated Section
8(a)(l) and (5) of the Act as alleged in the complaint, as
amended.
[Recommended Order omitted from publication.]
bargaining unit were members of the union or paid union dues was not
the equivalent of showing lack of union support Manifestly, in the
absence of a closed shop agreement . many employees are content
neither to join the union nor to give it financial support but to enjoy the
benefits of its representation Nonetheless, the union may enjoy their
support, and they may desire continued representation by it N l_R B
v Gulfmont Hotel Co, supra Cf N L R B. s. Darlington Veneer Co, 236
F 2d 85 (4 Cir. 1956)
' Brown added that he "also informed [Haynes ] future bargaining
would be with Lovett."
23 1 note that Respondent, in withdrawing recognition , also claims a
genuine impasse it is unnecessary for me to reach this issue However, I
would find and conclude that , in view of the substantial progress made at
the December 20 and February 18 sessions (see see I11, above), there was
no genuine impasse as asserted by Respondent. Cf. Industrial Union of
Marine and Shipbuilding Workers of America, AFL-CIO [Bethlehem Steel
C'of v. N LR B, 320 F.2d 615.622 (C A 3. 1963).